On Looking Deeper, Or, Things About Iran You Might Not Know June 24, 2009

It has been an amazing week in Iran, and you are no doubt seeing images that would have been unimaginable just a few weeks ago.

For most of us, Iran has been a country about which we know very little…which, obviously, makes it tough to put the limited news we’re getting into a proper context.

The goal of today’s conversation is to give you a bit more of an “insider look” at today’s news; and to do that we’ll describe some of the risks Iranian bloggers face as they go about their business, we’ll meet a blogging Iranian cleric, we’ll address the issue of what tools the Iranians use for Internet censorship and the companies that could potentially be helping it along, and then we’ll examine Internet traffic patterns into and out of Iran.

Finally, a few words about, of all things, how certain computer games might be useful as tools of revolution.

The first task for today…let’s talk about blogging:

It turns out that bloggers in Iran risk running afoul of the Press Law of 1986, which, in addition to requiring the licensing of media outlets, reads in part:

Article 6: The print media are permitted to publish news items except in cases when they violate Islamic principles and codes and public rights as outlined in this chapter…

…5. Encouraging and instigating individuals and groups to act against the security, dignity and interests of the Islamic Republic of Iran within or outside the country…
…7. Insulting Islam and its sanctities, or, offending the Leader of the Revolution and recognized religious authorities (senior Islamic jurisprudents);
8. Publishing libel against officials, institutions, organizations and individuals in the country or insulting legal or real persons who are lawfully respected, even by means of pictures or caricatures; and
9. Committing plagiarism or quoting articles from the deviant press, parties and groups which oppose Islam (inside and outside the country) in such a manner as to propagate such ideas (the limits of such offenses shall be defined by the executive by-law)…

… Article 25: If a person, through the press, expressly and overtly instigates and encourages people to commit crimes against the domestic security or foreign policies of the state, as specified in the public penal code, and should his/her action bear adverse consequences, he/she shall be prosecuted and condemned as an accomplice in that crime. However, if no evidence is found on such consequences he/she shall be subject to a decision of the religious judge according to Islamic penal code.

Article 26: Whoever insults Islam and its sanctities through the press and his/her guilt amounts to apostasy, shall be sentenced as an apostate and should his/her offense fall short of apostasy he/she shall be subject to the Islamic penal code.

Article 27: Should a publication insult the Leader or Council of Leadership of the Islamic Republic of Iran or senior religious authorities (top Islamic jurisprudents), the license of the publication shall be revoked and its managing director and the writer of the insulting article shall be referred to competent courts for punishment.

(In Iran, the penalty for apostasy is death.)

Those bloggers who are not licensed can still be prosecuted under the Penal Code, as the OpenNet Initiative reports in an excellent article they’ve just posted on the subject.

In 2008 the Iranian parliament passed a law which provides for the death penalty for bloggers who engage in non-permitted activities, a situation faced today by Yaghub Mehrnahad, who publishes the “Mehrnahad” blog.

(Interestingly, this blog can be reached in Persian, but an attempt to access the same URL with Google Translate returns this message:

“You are not authorized to view this page

The Web server you are attempting to reach has a list of IP addresses that are not allowed to access the Web site, and the IP address of your browsing computer is on this list.”

More about that later.)

There is also the risk of torture: a problem noted by the BBC at least as far back as 2005.

Ironically, Mohammad Ali Abtabi, a cleric and former Vice-President of Iran whom you may have recently seen on “The Daily Show” maintains a blog in which he does criticize Iranian society on a regular basis, including his assessment of the recent election as “a huge swindling”…which has now caused the authorities to place him under arrest.

So how does Iran manage to control Internet access?

What they aren’t doing is employing the simplest method possible: cutting off all access. This is presumably because of the negative impact on the Iranian economy that would be caused by business being unable to do what they need to do online.

There are several methods being employed, including a requirement that all Internet Service Providers in the country connect to the state-owned Data communication Company of Iran (DCI) for international access, that all ISPs put in place “filtering” and monitoring technologies, and that households be blocked from having access to high-speed Internet connections.

As of this writing the fastest Internet connection now available for an Iranian household is 128k, about double the speed of a dial-up connection…and as you might guess, not fast enough to allow Iranians to use such services as YouTube. A 6MB cable Internet connection, not uncommon in the US, would be roughly 50 times faster. Because of this the total capacity of Iran’s international Internet connections are roughly 12GB per second. Normal traffic is about 5GB per second, which, we are told, is about the same as a mid-size American city.

OpenNet reports that after an initial period of reliance upon foreign monitoring software, the government decided to create an “in-house” capability, and as a result there are locally developed software packages designed to allow access to the actual data packets in messages—meaning that authorities can read such things as e-mails and instant messages after they are sent and before they pass through the DCI “gateway”.

There has been a conversation regarding the role of Western equipment suppliers in all of this; and it is alleged that a Nokia/Siemens joint venture (Nokia/Siemens Networks) has sold to the Iranians equipment that is used to monitor the Internet use of Iranian citizens. The company denies this, however.

They also want you to know that the joint venture has been sold to a third party, and that, as their press release tells us: “providing people, wherever they are, with the ability to communicate ultimately benefits societies and brings greater prosperity”.

Another method of blocking access is to deny connections to certain sets of IP addresses, and this is why, presumably, I could not access the translated version of the “Mehrnahad” blog. This method would also allow the Iranians to block access to and from inside the country to sites like the BBC, Google, and Blogspot.

There is a way around “address blocking” which involves setting up “relays” and “bridges” that can be accessed by people in Iran—and this is something you yourself can do that can be of considerable benefit to Iranians trying to reach out to the rest of us.

The Iranian Government is also trying to locate and isolate those with Twitter accounts that are set to the Tehran time zone…and you can help make that process tougher by either setting up a Twitter account and setting the time zone to Tehran, or changing your existing account’s time zone.

The next few minutes are going to get a bit geeky, and for this I apologize in advance.

In order for your computer to use certain services that involve communicating with other computers the operating system utilizes a series of “ports” (this is all in the software, so don’t bother looking at the back of the machine to find them).

Some quick examples: the TCP/IP connection your computer is using to access the Internet is through Port 80 and the FTP service runs on Port 21.

There are two kinds of ports—TCP and UDP—and there is no reason to explain here why or how they differ.

There are thousands of ports, the ports used are usually specific to a particular service, and there are giant lists of assigned ports that everyone can access. A service can (and usually does) use more than one port for two-way communication with a computer, which is why the Federal Emergency Management Agency Information System uses TCP Port 1777 and UDP Port 1777.

The routing data that packets of information display as they travel through the Internet includes the port that the packet is seeking to access…and that data is accessible to all routers…and if you controlled the gateway through which all inbound and outbound Internet traffic was passing through you could block packets that seek to utilize certain ports.

Experts are suggesting that this is exactly what is happening today in Iran, with more than 80% of traffic bound for ports using the Adobe Flash Player being blocked, nearly 75% of the POP Service (e-mail) traffic being blocked, and roughly 70% of traffic bound for ports used by “proxy servers” being intercepted. (Proxy servers, by the way, are the same type of connections we discussed earlier that you can set up at home to help Iranians trying to reach the Internet.)

Voice over IP (VoIP), the Internet “telephone” service, is proving to be a troublesome issue for censors, as it has legitimate business purposes and is difficult to censor without either having someone listening on the other end of the line or installing a monitoring system worthy of the National Security Agency.

Interestingly, with the exception of the few hours immediately following the vote, the amount of Internet blockage, overall, seems to be fairly close to what it was just before the voting. However, the amount of “instability” has been highly variable, suggesting that certain blocks of IP addresses have been temporarily “withdrawn” from the Internet’s address structure, for want of a better term, and then once again made known to that same addressing infrastructure.

It is suggested that this may be because the Iranian Government has been able to institute a sufficient level of monitoring on those address blocks so as to make them comfortable with again allowing the users of those addresses access to the Internet.

In one of the oddest developments I’ve heard so far, there are reports that certain communications protocols used by some games are not being blocked. We will not go into specifics here, but it seems strange indeed that the video game your mother didn’t want you playing all day might actually be a tool for surreptitious communication.

And with all that said, let’s wrap it up for today.

Here’s what we’ve learned: it is indeed hazardous to be a blogger in Iran.

Despite the fact that it can get you tortured or get you the death penalty, there are those who take the risk—including a former Vice-President who now finds himself under arrest.

We can help Iranian citizens by installing software on our own computers that helps them obtain uncensored Internet access, and about 1/3 of that traffic is getting through.

The regime is not attempting to permanently shut down all Internet traffic—and in fact, that would be a cure that might be as bad as the disease.

The Iranian Government, instead, is developing and operating a sophisticated system of Internet blocking, but it is not perfect…and there are odd connections that could be used that most people would never think of as useful for the purpose.

Finally, a Western company is accused of selling equipment to Iran that could be used for Internet monitoring, but the company in question denies that the gear they sold Iran can perform the tasks the accusers say it can.

It is rare indeed to be able to see two revolutions taking place at the same time–but as you’re watching the news from the newest Iranian Revolution…keep an eye on the news of the Internet Revolution as well.

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected…with an announcement due this week…so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

On Torture And War Crimes, Part Two, Or, Dr. Addicott And I Find Common Ground May 30, 2009

When last we met, Gentle Reader, it was to work through a series of legal precedents and statute law; the goal of the exercise being to determine if we could or could not define waterboarding as torture.

We have the kind assistance of Professor Jeffrey Addicott, who has provided us with his written testimony from his recent appearance before the Senate Judiciary Committee and a personal interview, where he walked me through some of his thinking on the matter.

Today we’re going to take a look at the precedent that he has used to reach the conclusion that waterboarding is not torture.

It’s also possible that the analysis may result in the discovery of a bit of common ground…but as I noted in Part One, it’s common ground that neither one of us might have seen coming.

To begin, a quick review from yesterday:

Dr. Addicott wants you to know that waterboarding is not torture.

He relies on the argument that since the “Five Techniques” (“Wall-standing”, “Hooding”, the application of excessive noise, sleep deprivation, and the withholding of food and water) used on Irish prisoners by the United Kingdom were found not to be torture by the European Court of Human Rights, and waterboarding is not worse than the five techniques, it logically follows that waterboarding is not torture.

Although waterboarding might be cruel, inhuman, and degrading, Dr. Addicott would remind you that legally, torture requires severe physical pain over an extended, but unspecified, period of time.

He also notes a lack of lack of legal precedent specifically defining waterboarding as torture in either US or international courts.

I asked Dr. Addicott why 18 USC § 2340 (which defines torture, in part, as “…an act…specifically intended to inflict severe physical or mental pain or suffering” and defines “severe mental pain”, in part, as “the threat of imminent death…”) wouldn’t be the definition of torture that should apply.

His basic responses were that the alleged acts took place overseas to non-US citizens, therefore there is a jurisdictional issue; and that a lack of specificity in the statute males it unclear whether waterboarding would be torture.

Here’s how he expressed it to me:

“Those are words, those are descriptive words…that only find meaning when we have a court define what that means; that’s the whole problem with our Anglo-Saxon tradition, is that you have words that are put out in statute but what, you know, what does “severe” mean, what does “prolonged” mean, is it five minutes, is it 10 minutes…is it four drops to the head, is it three drops of water on your head, what does it mean?”

He also wants you to know that we do the same thing to our own military personnel who undergo “Survival, Evasion, Resistance and Escape” (SERE) training, which indicates the procedure isn’t torture.

He also tells us in his written testimony that the “shock the conscience” standard should apply to define torture.

Additionally, he cites Blefare v United States (362 F.2d 870) and Leon v. Wainwright (734 F.2d 770) to suggest that coercive interrogation is already permitted under US law.

With the catch-up complete, let’s have a look at Dr. Addicott’s assertions.

Right off the bat, Dr Addicott does correctly assert that…

“…the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.

168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3)”.

…in the opinion of the European Court of Human Rights.

However, there is precedent that declares waterboarding is torture, as another international tribunal saw things a bit differently.

You undoubtedly are aware of the Nuremberg Trials, which addressed the conduct of officials of Nazi Germany at the end of World War II. A similar process took place to bring Japanese officials to account, the International Military Tribunal for the Far East. Here’s what they had to say about waterboarding:

“Torture and Other Inhumane Treatment

The practice of torturing prisoners of war and civilian internees prevailed at practically all places occupied by Japanese troops, both in the occupied territories and in Japan. The Japanese indulged in this practice during the entire period of the Pacific War. Methods of torture were employed in all areas so uniformly as to indicate policy both in training and execution. Among these tortures were the water treatment [euphemism for waterboarding], burning, electric shocks, the knee spread, [page number removed] suspension, kneeling on sharp instruments and flogging.

The Japanese Military Police, the Kempetai, was most active in inflicting these tortures. Other Army and Navy units, however, used the same methods as the Kempetai. Camp guards also employed similar methods. Local police forces organized by the Kempetai in the occupied territories also applied the same methods of torture.”

Dr. Addicott feels that 18 USC § 2340 doesn’t apply because the acts took place outside the US to non-US citizens…but the statute tells us jurisdiction applies if “the alleged offender is a national of the United States”.

Conspiracy to torture is also a crime, meaning that those who ordered this behavior would also face potential legal liability, even if the person doing the torturing is not a US citizen.

So what about the argument that SERE trainees are subjected to the same treatment?

The difference, I suggest, is that there is no threat of imminent death when a trainee is waterboarded, which is what 18 USC § 2340 requires.

Can waterboarding actually carry the threat of imminent death?

I know someone who can tell us.

Dr. Allen Keller, MD is an Associate Professor at New York University and the founder and Director of the Bellevue/NYU Program for Survivors of Torture, which has provided care for more than 2000 torture survivors. He’s also a member of the Advisory Council of Physicians for Human Rights.

He offered this assessment in testimony before the Senate Select Committee on Intelligence

“Water-boarding or mock drowning, where a prisoner is bound to an inclined board and water is poured over their face, inducing a terrifying fear of drowning clearly can result in immediate and long-term health consequences. As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia, rapid heart beat and gasping for breath. There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water. Long term effects include panic attacks, depression and PTSD. I remind you of the patient I described earlier who would panic and gasp for breath whenever it rained even years after his abuse.”

Dr. Addicott also relies on court rulings to demonstrate that coercive methods of obtaining evidence are permissible under US law.

He points two cases for guidance. In the first, Blefare v United States (362 F.2d 870), he tells us (in written testimony) that:

“the appellants were suspected of swallowing narcotics which were lodged in their rectums or stomachs…Then, without Blefare’s consent the doctor forcefully passed a soft tube into the “nose, down the throat and into the stomach,” through which fluid flowed in order to induce vomiting. This resulted in the discovery of packets of heroin and the subsequent conviction of Blefare.

Unlike Rochin [Rochin v. California, (342 U. S. 165)], the Ninth Circuit refused to hold that the involuntary intrusion into Blefare’s stomach shocked the conscience.

While all that is true, it’s also irrelevant to the facts of the case as it appears in the record.

First, the Ninth Circuit had no reason to reach a conclusion about whether evidence was obtained from Blefare in a manner that “shocked the conscience” because the evidence that the appeal was trying to suppress did not belong to Blefare, but to his co-defendant, Donald Michel (who had voluntarily consented to the intubation that led to the recovery of the challenged evidence).

The second reason the challenged evidence was not suppressed had to do with the fact that the searches of Blefare and Michel were held to be “border searches”.

This, from Blefare:

“No question of whether there is probable cause for a search exists when the search is incidental to the crossing of an international border, for there is reason and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone. That the customs authorities do not search every person crossing the border does not mean they have waived their right to do so, when they see fit…Mere suspicion has been held enough cause for a search at the border.”

Dr. Addicott also misstates the effect of Leon v. Wainwright (734 F.2d 770).

From his written testimony:

“For instance, in Leon v. Wainwright the Eleventh Circuit brushed aside the fact that police officers had used “force and threats” on kidnap suspect Jean Leon in order to get the suspect to reveal the location of his victim. When apprehended by a group of police officers in a Florida parking lot, Leon refused to reveal the location of his kidnap victim (the victim, Louis Gachelin, had been taken by gunpoint to an apartment where he was undressed and bound). In order to get the suspect to talk, police officers then physically abused Leon by twisting his arm and choking him until he revealed where the kidnap victim was being held. In speaking to the use of brutal force to get the information needed to protect the victim, the Court deemed that the action of the officers was reasonable given the immediate concern to find the victim and save his life.”

It is inaccurate to say the Court “brushed aside” the use of force and threats.

What actually happened was that the defendant confessed twice—and it was that second confession that was being challenged.

The first confession…the one taken by force…was not admitted into evidence; therefore its admissibility–and by extension, the means by which it was obtained–was not an issue to be considered by the appeals court.

This, from the ruling in Leon v Wainwright:

“Meanwhile, Leon was taken to the police station. He was questioned there by detectives who had neither been involved in the threats and use of force at the scene of his arrest nor witnessed it. After being thoroughly informed of his rights and signing a Miranda waiver form, he gave full oral and written confessions of the crime. This entire process was concluded about five hours after his arrest…

…The totality of the circumstances in this case clearly confirms the finding that the second statement was voluntary.[4] The police, motivated by the immediate necessity of finding the victim and saving his life, used force and threats on Leon in the parking lot.[5] Hours later, Leon was questioned at the police station by a completely different group of police officers. These officers were not even participants in the surveillance team at the parking lot. Prior to questioning him the officers meticulously explained to him his constitutional rights. He specifically waived his right to have counsel present. The necessity of saving the victim’s life, the different physical setting, the different group of questioning officers, and the meticulous explanation to appellant of his constitutional rights constituted a sufficient break in the stream of events to dissipate the effects of the first coercion. The challenged confession was properly admitted into evidence.”

There is a question of what to do if it is suspected that torture has been committed. Here is a portion of Dr. Addicott’s comment on the matter, from his written testimony.

“…those who order, approve, or engage in torture must be criminally charged. If the United States determines that waterboarding as practiced by the CIA is torture, there is no option. Under the Torture Convention violators must be prosecuted. Similarly, lawyers at the Department of Justice who approved the practice must also be prosecuted… In short, in my legal opinion, the subject waterboarding technique used on the al-Qa’eda operatives did not constitute torture and requires no binding obligation to prosecute.”

With all respect to the Professor, this looks like circular logic. To “determine” that torture occurred requires a trial, as Dr. Addicott has previously noted, yet he says here there’s no need for a trial because, by his determination, no torture occurred.

It also appears that his analysis on this point is factually inaccurate, in that there is no obligation to prosecute under either the Geneva Conventions or the Torture Convention. Here are the pertinent texts:

“Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee [sic] in any territory under its jurisdiction.”

–UN Convention Against Torture

“Article 129

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”

–Geneva Convention relative to the Treatment of Prisoners of War

The phrase “bring such persons…before its own courts” will be a subject of controversy, so let me clear it up now. In Europe, the “court” process involves the use of “investigating magistrates” who would decide if this sort of case should or should not be brought to trial; a function that, in the US, would be handled by a Special Prosecutor or the FBI and the appropriate US Attorney, possibly through the federal grand jury process.

As you can see, there is an obligation to investigate people suspected of torture…but no mandate to prosecute every suspected offense…which means, just like in a RICO case, you can round up the lower-level “actors”, convince them to “flip” on the other co-conspirators up the chain in exchange for immunity…and then you prosecute the ringleaders.

We have spent some considerable time addressing the questions around what is and what is not torture…but now we get to an issue that makes the “torture question” irrelevant.

Remember way back in Part One when I asked you to keep that “cruel and inhuman treatment” phrase in the back of your mind?

And remember the European Court of Human Rights ruling that called the “Five Techniques” cruel and inhuman?

Well, guess what?

If a prosecutor can demonstrate that waterboarding is not torture, but merely “cruel or inhuman” (a standard that only requires “serious” mental or physical pain, not the “severe” standard required for torture)…that’s a “war crime”, as defined by the War Crimes Act of 1996 (18 USC § 2441(d)(1)(B)).

And those who commit a war crime, it turns out:

“…shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”

And that’s where we get to the point that Dr. Addicott and I finally reach some common ground:

Maybe torture prosecutions are bad policy.

Especially when it’s easier to prove a war crime than it is to prove torture.

Once again, we have come a long way to get here, but let’s review it all before we finish:

Dr. Addicott and I differ on where we should look for a definition of torture.

Despite the language of 18 USC § 2340, he does not feel there’s jurisdiction to prosecute under the US Code.

He does not feel waterboarding is torture, but he acknowledges that the “Five Techniques” are “cruel and inhuman”.

There is precedent in international law to draw the conclusion that waterboarding is torture which Dr. Addicott did not note in his written testimony.

Because waterboarding does create the threat of imminent death and does cause severe and long-lasting mental problems, I feel it is also torture as defined by US law.

Dr. Addicott proffers legal precedent to support his position that the use of coercive techniques does not violate US law…but when you actually examine the texts of the rulings he cites, it appears that he either misunderstands the rulings or misstates their application to this question.

He also testifies inaccurately when he asserts that all cases “determined” to be torture must be prosecuted…firstly, because of the circular logic of “determined”, and secondly, because the two pertinent texts simply don’t read the way his testimony reports they read.

But all that said, it turns out that even if waterboarding is somehow not torture…that it does not cause “severe physical or mental pain or suffering”…it appears highly likely that the technique causes “serious physical or mental pain or suffering”…which, mirabile dictu, is the legal standard for proving a war crime.

Which leads us to the one point upon which we both agree: there should be prosecutions.

Prosecute under 18 USC § 2441 or treat it like any other “organized crime” case: start inviting “parties of interest” to flip on their co-conspirators, immunize the cooperative…and if a judge and jury decides it’s the right choice, people are going to have to go to prison.

So there you go: we started out questioning how torture is defined, and we ended up at a place where, because of the War Crimes Act, that definition become less relevant, a bit of common ground might have been found, and in the search for that common ground we’ve discovered a better way to ensure that justice can be done.

AUTHOR’S NOTE: I want to offer a hearty “thank you” to Dr. Addicott for taking the time to talk to me for this story. If we wish to do serious journalism, interviewing the people in the news is critical, and I very much appreciate his willingness to make himself available during the production of this pair of stories.

WARNING—Self-promotion ahead: I am competing for a Netroots Nation scholarship, and I was not selected in the first round of voting. There are two more chances to be selected, and the voting has restarted from scratch…so even if you’ve done so before, I still have to ask you to stop by the Democracy for America site and click on the “Add your support” link to offer your support for me again. Thanks for your patience, and we now return you to your regular programming.

On A May-December Romance, Part Two, Or, Las Vegas, Integrated May 12, 2009

Moulin Rouge.

The mention of that name, in the right circles, brings back a flood of associations.

Among them: a famous cabaret in Gay Paree, a Nicole Kidman movie rich in costume and set design and…well, a movie, anyway; or, if you really know your films, perhaps the association is with the 1952 John Huston “biography” film of the same name.

The one association that might not quickly come to mind, even though it should: ground zero in a battle that led to the desegregation of Las Vegas.

Today’s story will fill in the blanks that you might have regarding that association—and by the time we’re done, we’ll have covered, just as we promised last time, the 55-year history of a place that began in 1955, lasted for not quite six months, and ended just last week…maybe.

It’s another one of those American history stories you never heard before, and it’s well worth the telling…so let’s get right to it.

“Last year people won more than one billion dollars playing poker. And casinos made twenty-seven billion just by being around those people.”

–Samantha Bee, “The Daily Show”, March 10, 2005

For those of you who missed Part One, we better take a moment to catch up:

Las Vegas, as World War II came to an end, was very much a segregated city, with blacks, who by that time were roughly 3000 of the city’s total population of 20,000, literally forced to live on the Wrong Side of The Tracks (a problem that continues to create headlines even as recently as 2008).

(Irony number one: “The Tracks”, or at least 60 acres of the land upon which they used to sit, are now the site of an upscale redevelopment effort (“Union Park”) that Westside residents note has the potential to leave them even more geographically isolated than they were when The Tracks occupied the site. To further the irony, far more redevelopment money is being spent on the Union Park project then is being spent in the severely economically disadvantaged Westside.)

As the casinos began to become the major driver of the local economy, blacks were allowed to work on the properties, but they could not patronize the segregated casinos in which they worked.

This extended to the highest levels of worker, as even the entertainers who were brought in to work the showrooms were forced to seek accommodations in the Westside neighborhood…which is why the neighborhood’s rented cottages and hotels, such as the famous Harrison Boarding House, could count among their many famous guests Nat King Cole, Lena Horne, Sammy Davis, Jr. and Jack Benny’s “valet” and sidekick Eddie “Rochester” Anderson.

By the middle of the 1950s there had been unsuccessful efforts in Nevada to pass laws mandating an end to segregation in the casinos and elsewhere (oddly enough, there had never been a law requiring segregation); and it has been suggested that casinos were resistant because their customer base at the time was mainly Californians who had settled there from the Southern states, and who presumably brought their racial animus with them.

And it wasn’t as if blacks were not allowed in bars or casinos: there were several on the Westside that catered to a black clientele.

(Irony number two: it’s reported that among those were Jewish-owned properties, including the Brown Derby, the Cotton Club, and the Ebony Club.)

Want to see a product of Strip segregation history with your very own eyes? The New Town Tavern, who once hosted Redd Foxx and B.B. King on its now-closed showroom stage, has remained open on the Westside from 1955 to the present day at the corner of F Street and Jackson Avenue.

Which brings us to Frank Sinatra.

By 1953 Sammy Davis, Jr., and the other members of the Will Maston Trio, of which he was the featured player, were splitting $5,000 a week for their services…but they could not stay at the place they played. By 1954, Sinatra convinced Sammy to open for him at The Sands; and in November of that year The Will Maston Trio was not only making $7500 a week at the Frontier, the hotel “comped” their room, board, and drinks, and allowed them the run of the casino, making them the first black act to receive that sort of treatment from a Strip casino (although others report that Nat King Cole was actually the first, in 1955).

Later that same month, Sammy lost an eye in an automobile accident, and was offered $25,000 a week to play The Sands, along with what are described as “Sinatra-like accommodations”.

In May of 1955, in an effort to “change the rules of the game”, Alexander Bisno and Lou Rubin opened the Moulin Rouge Hotel and Casino on a site in between the Strip and the Westside.

Bisno and Rubin opened the property as a completely integrated facility, bringing blacks and whites in as guests and staff…and even as management and owners. Boxing great Joe Louis was both the official greeter and a partner in the venture. The great Benny Carter was brought in as musical director.

(Fun Fact: the distinctive neon signage for the Moulin Rouge was designed by one of the few women in the business at the time, Betty Willis, who also designed one of the most recognizable signs in advertising history, the “Welcome to Fabulous Las Vegas” sign.)

The hotel was an immediate and massive hit with visitors, who were treated to the best entertainment available anywhere: Sammy, naturally, played the room, along with The Platters, Harry Belafonte, Louis Armstrong, Nat King Cole, and Eartha Kitt, to name but a few.

But here’s the thing: a major reason the place was so popular was because Sinatra, Dean Martin, and the rest of the Rat Pack would head over to the Moulin Rouge, either to put on impromptu performances or to just hang out in this newly swinging atmosphere—and suddenly, the Moulin Rouge, after the other shows on the Strip had ended for the evening, became possibly the hottest joint in the world; with everybody, and I mean everybody, heading over to see and be seen with Sammy, Sinatra, Dino, and the rest of the Pack…and of course, the “Tropi-Can Can” girls.

Things got so crazy that the Moulin Rouge added a 2:30 AM “Third Show”—but within six months, the Moulin Rouge had closed its doors; possibly the victim of mismanagement, possibly the victim of an oversaturated market, possibly the victim of policies designed to make blue-collar black patrons feel less welcome…and possibly the victim of “The Mob”, who had a hand in several of the Strip hotels that were suddenly losing significant amounts of gambling business to the new hotel.

“We don’t think that we, or any other hotel, should give away a $30,000 show for a Coke and two straws.”

–Former Riviera Hotel Chairman Morrie Mason, in “Time” Magazine, September 19, 1955

And with that, you’d think the history of the Moulin Rouge had come to an end.

In fact, there was quite a bit more history yet to come.

Throughout the ‘50s, Sinatra had been busy working to eliminate what he called the “national disease” of bigotry. He wrote this in a July 1958 “Jet” Magazine article, “The Way I Look At Race”:

“A friend to me has no race, no class, and belongs to no minority. My friendships were formed out of affection, mutual respect, and a feeling of having something strong in common. These are eternal values that cannot be racially classified. This is the way I look at race.”

By 1959, the Rat Pack was in town filming “Ocean’s Eleven” and going after segregation in their own unique way. They would show up at a casino, and if the casino would not admit Sammy Davis, Jr. to the gaming floor, then they would move on to the next one. Since no one wanted the bad publicity…Sammy usually got in. (That same year, blacks and whites in Nevada were legally allowed to marry.)

Because so many people were pushing for integration, segregation was beginning to be bad for business, and something had to be done.

Even Nevada’s Governor, Grant Sawyer, was trying to change the culture of segregation…and as 1960 rolled around, the NAACP was applying its own pressure.

Dr. James McMillan, leader of the local NAACP chapter, announced that he would organize a series of “sit-down strikes” in the restaurants of the Strip casinos. The day before the strikes were to begin, Oscar Crozier, representing the hotel interests, met and negotiated with NAACP representatives, Hank Greenspun, the publisher of the “Las Vegas Sun”, and some assorted politicians at…wait for it…the abandoned Moulin Rouge, where the Moulin Rouge Agreement was struck, which immediately desegregated the patronage of casinos on the Strip.

“When these fellows realized that they weren’t going to lose any money, that they might even make more, they were suddenly colorblind.”

–Dr. James McMillan

(The new colorblindness, oddly enough, did not extend to the Downtown casinos, and Binion’s Horseshoe was among of the last of those casinos to desegregate.)

Over the next few years, employment on the gaming floors was also desegregated, and in 1971 the State Legislature passed a law barring racial discrimination in the housing market.

Even after all that, the Moulin Rouge wasn’t through making history. The property and buildings and…casino license…passed from one owner to another, and eventually one of those owners, Sarann Knight-Preddy, became the first black woman to hold a Nevada gaming license.

The property did operate as a sort of “apartment-motel” for a number of years, and even reopened as a casino during the 1990s, but a 2003 arson fire destroyed the casino/showroom building and removed it from Preserve Nevada’s list of 11 most endangered historical sites in the State.

Even then the remaining “hotel” buildings became low-income housing…until they became too dilapidated for that purpose.

And even then plans continued to float around, including an effort that seemed to be gaining momentum in 2008 to build an entirely new project on the old site…until a bad economy and bankruptcy brought that momentum to a crashing halt.

In an ending reminiscent of something that might have happened in the movie “Casino”, on May 5th of this year, Olympic Coast Investments of Seattle took ownership of the Moulin Rouge through foreclosure…and on May 6th, another fire took out the remaining buildings on the site. Olympic Coast reports they intend to sell. (Luckily, the neon sign had been removed in the weeks before the fire to the Neon Boneyard.)

We have come a long way with this story, but here we are at last.

Las Vegas, we’ve learned, has had to deal with a history of racial segregation, was able to break the back of that segregation through the efforts of people as diverse as local neighborhood organizers, Jewish financiers…and the Rat Pack.

That history was forever changed because one casino, for not quite six months, showed what Las Vegas could be—but as we said at the beginning of Part One, even though the casino was only open for those few months, the history it represents continues to unfold, more than 50 years later.

What happens next, no one knows…but in Las Vegas, with a piece of land and an available gambling license to work with…I wouldn’t be too quick to bet that the history of the Moulin Rouge is over just yet.

Warning—commercial message ahead: I’m competing for a Netroots Nation scholarship, and I could use your support. Just head on over to the Democracy for America website, click on the “Add your support” link under “Grassroots Supporters”, and offer a word or two…and with that, thanks very much, and we return you to your regular programming.

On Judicial Empathy, Or, Random Roadblocks Aren’t Annoying. Really. May 7, 2009

So a Supreme Court justice that hardly anyone noticed has announced his retirement and all of a sudden the lips of The Experts are all a-flutter with the word “Empathy”.

President Obama reports he wants his nominee to have it; and Republicans are convinced that the word is a secret code for something that eventually ends in the death of free speech, massive roundups of guns by the Secret United Nations World Police, and the Internment Of All The White People In Reeducation Camps Run By Americorps And ACORN And Gay People Who Want To Marry And Are Funded By George Soros.

It is suggested that Evil Activist Judges will trample the Constitution as they create Law out of whole cloth; and that only those who interpret the Constitution just as it was written can bring the proper attitude to the Court.

It sounds like somebody needs to come along and provide a couple of cogent thoughts about this whole empathy thing…and lucky for you, Gentle Reader, we have before us today specific examples of how the quality of empathy can express itself in Court Doctrine.

So right off the bat, a few words about how cases are interpreted by the Supreme Court are in order:

A lot of the talking heads on the tee-vee frame the Court’s job as one of basically hearing the arguments in a case, reviewing the record, and deciding whether some action of Government violates someone’s constitutional rights.

That framing ignores two huge elements of the Court’s job: resolving the conflicts between the protected rights of two groups of private citizens (for example, does the right of all citizens to have access to the “public square” for purposes of political campaigning override the right of shopping center owners to control who has access to their private property?)…and creating rulings that attempt to discern what the mood or motivation of the public might be regarding aspects of potential Court Doctrine (for example, does a particular item of pornography violate “prevailing community standards”?).

The obvious example of how all this can play out might be found in the way the Court saw things when they ruled in Plessy v Ferguson, followed later by Brown v Board of Education; in which the Supremes first ruled that “separate but equal” was just fine and then ruled it wasn’t fine after all. Lots of others will examine these cases in detail, so, instead, we shall take a different tack.

The Fourth Amendment, in requiring that searches not be “unreasonable” and that warrants be justified by probable cause, guaranteed that Justices would forever be required to interpret without clear definitions to guide them.

Let’s now examine how “empathy’ has affected those interpretations.

If you are driving north from San Diego to Los Angeles…and you’re not a Marine…you’ll be inspected by Customs and Border Protection officers manning an immigration checkpoint on I-5. It’s possible that you might be directed to a “secondary inspection” area for a search of the contents of your vehicle, based on nothing more than the hunch of the Inspector on duty.

In 1975, the Court, showing one kind of empathy, unanimously ruled that:

“The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents…”

–United States v. Ortiz, 422 U.S. 891

However, Chief Justice Burger, who generally joined in the concurrences of the other Justices, had his own “empathetic” point of view:

“Like MR. JUSTICE WHITE, I can, at most, do no more than concur in the judgment. As the Fourth Amendment now has been interpreted by the Court, it seems that the Immigration and Naturalization Service is powerless to stop the tide of illegal aliens — and dangerous drugs — that daily and freely crosses our 2,000-mile southern boundary….Perhaps these decisions will be seen in perspective as but another example of a society seemingly impotent to deal with massive lawlessness.”

Amado Martinez-Fuerte, who had been arrested at the same checkpoint, probably thought that the Court would continue to see things as they had in 1975…but by 1976, the Court no longer felt as empathetic towards the concept that consent or probable cause…or even reasonable suspicion…was required for vehicle searches as they had the year before:

“To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens.”

–United States v. Martinez-Fuerte, 428 U.S. 543

This ruling is particularly significant in that it allowed the checkpoint to operate under a general “warrant of inspection” (a device usually used only to allow building inspections and the like), and for the evidence obtained there to be admissible against individuals in criminal trials.

However, the plain text of the Fourth Amendment seems to take a different view, stating that:

“…no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

By this time, Thurgood Marshall had left the Court (his empathy demonstrated perhaps best by the fact that in 1954 he had argued—and won–Brown v Board of Education before the Supreme Court); and the new Court ruled 7-2 in favor of the Government’s position in Martinez-Fuerte.

You’ll recall that we discussed the fact that the Court often has to determine the public mood. Here’s a very specific example:

The Court, in deciding that the immigration checkpoint was not an “unreasonable” search, felt no empathy toward the idea that being stopped every day would bother any commuter who was legally using I-5 several days a week, nor to the concept that the delay of legal commercial traffic would be bothersome. Their sole concern was that the motorist would view the checkpoint as “legitimate”:

“Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere….The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops…”

(A quick Fun Fact: the location of the checkpoint near San Clemente appears to have been chosen specifically because it allows the stopping of virtually all traffic between San Diego and Los Angeles. You might think setting up a checkpoint to stop all traffic is a bit arbitrary…and I would agree with you. The Court, obviously, did not.)

The ruling in Martinez-Fuerte also does not display empathy with the Defendants’ assertions that being ordered to “Secondary Inspection” is intrusive…even if there for no reason at all to suspect the vehicle–or even if the reason for the stop is entirely race-based:

“The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby “stigmatizing” those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive because of their public and relatively routine nature. Moreover, selective referrals – rather than questioning the occupants of every car – tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public…

… Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry…we perceive no constitutional violation…As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol…officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.”

And with that (and a few cases to supplement the concept), the idea that the police require an actual reason to stop people and then conduct searches and seizures has gradually faded into a quaint anachronism of history.

So where does all this leave us?

Well, how about this: it leaves us more aware of the fact that there are rarely “simple” interpretations of the Constitution. Rather than just relying on the plain text of the document, the Justices, using the sense of empathy they’ve developed throughout their lives, interpret and create new law in each and every case.

It should leave us more aware that the arguments made by those who support “strict constructionists” for the Court reflect less of a desire to remain pure to the principles of the Constitution, and more a desire to advance very specific, and often radical, policies that favor Government over the People who are supposed to be its master—policies that are often based more on a sense of fear than an appreciation of the strength of the system their new policies seek to “save”.

Mr. Obama is absolutely correct in seeking a Justice with “empathy”.

Let’s just hope the one he picks has the kind of empathy that, for a change, advances civil liberties, instead of sending them to the sort of “Guantanamo Chainsaw Massacre” that Justice Scalia finds so in keeping with his sense of empathy.

Warning—commercial message ahead: I’m competing for a Netroots Nation scholarship, and I could use your support. Just head on over to the Democracy for America website, click on the “Add your support” link under “Grassroots Supporters”, and offer a word or two…and with that, thanks very much, and we return you to your regular programming.