On Projecting R-71’s Outcome, Or, We Visit A Political Party November 6, 2009

Over the past few days we have been talking about Washington State’s Referendum 71, which was voted on this week. If passed, the Referendum will codify in law certain protections for same-sex couples.

In the first story of our three-part series we discussed Washington’s unusual vote-by-mail system; in the second we examined the pre-election polling.

Today we talk about what happened Election Night at the R-71 event and where the vote count stands today…and where it might end up when we’re all done.

We have lots of geeky electoral analysis ahead—and as a special bonus, we have video of the event, including an exclusive interview with Charlene Strong, the woman who became one of the icons of the pro-71 campaign.

It’s a lot to cover, so we better get right to it.

The Big “Catch-Up”

If you are new to this story, we’ll give you a real quick “catch-up”:

On Tuesday’s ballot Washington voters were asked to consider Referendum 71, which is going to decide whether E2SSB 5688 (passed by the Legislature and “[e]xpanding the rights and responsibilities of state registered domestic partners”) shall be allowed to go into effect. (E2SSB, by the way, stands for “Engrossed Second Senate Substitute Bill”.)

Voting to approve means the bill will go into law, voting to reject will prevent the bill from having any force or effect under law.

Washington State votes almost entirely by mail, and all ballots postmarked by midnight, November 3rd will be counted. Since lots of voters put their ballots in the mail on November 3rd (myself included), that means, when things are close, that the outcome of any particular question might not be known on Election Day.

About 2/3 of Washington’s population of 6.8 million is concentrated in the Western portion of the State; 3.5 million of those residents live in just three counties: King, Pierce, and Snohomish (Seattle, Tacoma, and Everett being the largest cities in those counties). 25% of the State’s population (1.9 million) resides in King County.

Clark County, which is immediately adjacent to Portland, Oregon (largest city: Vancouver), is slightly smaller in population than Eastern Washington’s largest county, Spokane, which has a population of roughly 450,000.

As it happens, the voting on R-71 is rather close, which is consistent with the pre-election polling…which means at this point you’re pretty well caught up and we’re ready to move on to new business.

The morning sun rose above the Cascades and reflected its dusky orange glow off the bottom of the thin clouds Wednesday morning, enveloping those who were awake with a blanket of soothing daylight.

The night before, however, supporters of same-sex marriage had gathered, in their goat leggings and leather, to engage in a horrifying bacchanal involving the setting of bonfires, the invocation of incantations, and the sacrifices of—

Well, actually, none of that ever happened…but it sounded like a lot of fun, didn’t it?

What Actually Happened

Instead, a crowd of roughly 250 gathered at Seattle’s Pravda Studios to wait for the results. The event was quite upbeat before results were announced, and that mood was reinforced when it was announced that seven Western Washington counties, including King County, were voting to approve the Referendum.

I was lucky enough to get some insight as to how that happened when I interviewed Charlene Strong, who tragically lost her partner three years ago. Her face and her story have figured prominently in this campaign—but as she pointed out to me, the seeds of whatever happens in this election were planted years ago:

…”…the citizens of Washington State…put a Governor in place that is all about equality and a Legislative team that is all about equality and I feel very proud tonight to be a citizen of Washington State, and I’m sure I’ll be feeling that way for quite some days to come…”

(I am not, and have never been, a camera operator for the MTV Networks. Instead, I’m still getting used to my little Flip Video camera…which is why much of the interview appears to have been conducted with the most gracious Ms. Strong’s shoulder. Mea culpa.)

Numbers, Numbers, Numbers

And with the stage having been set, let’s get geeky:

Washington’s Secretary of State keeps track of statewide ballot measures (including verifying the petition signatures), and it is on their site where we will find statewide results. At the moment (the moment being 6:24 PM, November 4th) 593,956 voters have voted to approve and 556,090 voted to reject, which means R-71 is leading 51.65-48.35%.

Ballots representing almost 33% of the State’s voters have been counted so far, and it is estimated that 394,482 ballots are on hand, around the State, waiting to be counted.

Here’s how the five largest counties are shaping up:

King County Elections reports that R-71 is passing by a 66-33% margin (202,125 to 101,403), with a total of 438,557 votes having been received so far from the County’s 1,079,842 registered voters. These numbers tell us that 135,029 votes are currently on hand, waiting to be counted. (63,446 votes came in today.)

It is likely that 90,000 of those uncounted votes are going to be “approved” votes, based on current trends. If a similar number of votes came in tomorrow, roughly 40,000 more votes would be “approve votes”, suggesting as many as 130,000 more “approved” votes could be waiting to be tallied up.

(Based on these numbers, we already know that King County will exceed the 51% statewide turnout rate that the Secretary of State projected before the election.)

Snohomish County Elections reports that 101,737 votes have been received so far, with 45,000 votes currently uncounted. Voters are approving the measure, but with a much closer margin: 51.72-48.28% (51,222-47,809). The remaining 45,000 votes should add about 1,000 votes to R-71’s lead.

We do not know how many votes were received today by the County, but if we assume that 50% of the total number of votes were in the mail in Election Day, then another 50,000 or so votes should be still on the way, which should also increase R-71’s lead by about 1,000 votes, if current trends hold.

(If we assume that the County will achieve a 50% turnout rate, roughly 40,000 Ballots should be in the mail, which only adds 800 additional votes, not the 1,000 estimated in the precious paragraph.)

The Pierce County Auditor reports that 90,367 votes are in, and the “rejected” votes are leading, 47,307 (53.08%) to 41,809 (46.92%). The estimate is that 50,000 ballots remain to be counted. 60,000 additional votes would be needed for the County to reach a 50% turnout rate, and if you projected that 110,000 votes onto the current trend the “approve 71” final vote should decline by about 6,500 votes.

Clark County Elections indicates that R-71 is losing there as well, with 36,206 (46.01%) voting to approve and 42,481 (53.99%) voting to reject. 13,000 ballots are reported to be uncounted. Clark County has 215,626 registered voters, and based on these numbers it would take an additional 14,450 votes to get to a 50% turnout. That suggests the “approve R-71” vote should decline by about another 2,000 votes.

Finally, Spokane County. There are 257,092 registered voters in the County, and they came out against R-71 in a big way, with 38,079 (39.98%) voting to approve and 57,169 (60.02%) voting to reject. The estimate is that 35,000 votes remain to be counted, and it’s likely those votes will decrease the “approve R-71” lead by about 6,000 votes.

The County has exceeded 50% turnout, and we do not know how many votes arrived today. If we assume 60% turnout, another 25,000 votes would be in the mail, reducing the “approve R-71” lead by another 5,000 votes.

The Big “Wrap-Up”

So what does all this mean?

How about this: I have forever told people that if the candidate or measure you support can win, with a reasonable margin, in Washington’s five largest counties, you’re gonna win the election.

With that in mind, let’s tally up the numbers and see where we are:

The King County tally, by my guess, will add another 130,000 “approved” votes to the statewide total. Snohomish County voters could add 2,000 more votes. Pierce, Clark, and Spokane Counties should reduce the “approve” votes by about 14,500 votes.

Add it all up, and I’m estimating that R-71 could gain 117,500 votes…but that number will certainly go down because of the votes of the rest of the State…so if I had to guess (and I guess I am) I would project that R-71 is going to pass with a margin of victory somewhere in the range of 80-100,000 votes, as opposed to the current margin of roughly 37,000 votes.

There are lots of caveats here: the estimates of incoming ballots could be off, the 50% turnout estimate could be inaccurate, and currently uncounted votes might not follow the trends of the votes counted so far.

Additionally, I will freely admit that I’m biased: I support R-71 (and to take it further, if same-sex couples want to marry…as long as I don’t have to buy all of them presents, I don’t see the problem), and this bias could be affecting my judgment.

So that’s today’s story: based on the return data that is known, and my own guess on what’s likely, I’m going way out on the proverbial limb and projecting that R-71 wins by somewhere between 80-100,000 votes, primarily on the strength of the uncounted King County vote and an estimate of votes that will arrive over the next 48 hours.

As with any modeling project, there are a lot of potential problems that might affect the model’s output—including my own biases—but I feel good about this estimate, and over the next week or so, we’ll see if I’m right.

Additionally, we got to have an inside look at the “process” of R-71…and we got to have an exclusive conversation with Charlene Strong’s shoulder—which, I promise, will become a “teachable moment” for yours truly as we grow, going forward, from a “words only” storytelling service into a video storytelling service.

It’s a great place to end Part Three—and it leaves us perfectly positioned to move on to a discussion of what we can learn from Tuesday’s skirmishes—but for now I have to go and strap on the goat leggings and get back to work.

After all, the doomed won’t sacrifice themselves, will they?

UPDATE: 11/05/09, 8 PM PST

After looking at tonight’s numbers, I’m now thinking that the margin of victory will be closer to 30-35,000, rather than 80-100,000.

This is because King County now has only 13,800 uncounted votes, far fewer than I predicted. However, I also checked to see if my own ballot packet had arrived, and it has not. This tells us there are an unknown number of ballots that were mailed on Election Day but have not yet arrived.

An additional clue? Turnout is currently reported at 34.93% for King County, which is 15% below the projected State average. If we assume the County will make that 50% turnout number, that means 150,000 ballots are currently unaccounted for…in a County that’s voting 2:1 in favor of the Referendum.

If that many votes do turn up, my 80-100,000 vote margin of victory estimate will again be looking pretty good.

The other big question mark is Pierce County. They report 50,000 uncounted votes–but that is also the exact number they reported yesterday, which makes me think that estimate might be…shall we say, inaccurate?

Snohomish County is now also reporting 56,000 uncounted votes, but they are running something like 52-48%, and as a result I don’t expect those uncounted voted to affect the outcome in any significant way.

Spokane County reports 15,000 uncounted votes, and they are voting 60-40% against, which should reduce the margin of victory by about 10,000 votes.

Clark County has 750 uncounted votes, and they are also trending against, but near 50-50, so even if a lot of votes do come in, the effect should be minimal either way.

The quick summary?

I’m now highly confident that R-71 will win. The margin could be as low as 30-35,000 or as high as my original 80-100,000 estimate if all those King County votes come in.

I don’t think the votes in the other counties are going to change the outcome–and while it’s not yet official, I think you can start to maybe breathe just a bit easier.

On A New System (Sort Of), Or, Referendum 71 And Mail-In Voting October 27, 2009

We are now about two weeks away from the November election in Washington State, and one item on the ballot that has national attention is Referendum 71, the so-called “everything but marriage” proposal that would give same-sex couples more rights and protections than they have today.

There has been a lot of conversation about whether it will or won’t pass—and a lot of conversation about whether it should pass.

I hope it does, and if you live here I encourage you to vote “yes” November 3rd.

But that said, you may not be aware that Washington has an electoral system in transition, and that as a result of the transition Washington has some idiosyncrasies that will make forecasting the results a bit tougher, and determining the results a bit slower.

We’ll talk about that today, and by the time we’re done you should have an appreciation of the odd way in which things can work out—and that, absent a landslide, we aren’t likely to know the results on Election Day.

These Are Not Normal Times

We have the strangest weather here: it is not quite 50 degrees F. as I write this, in midafternoon; but by tonight it’s expected to get warmer as the rain moves in.

In normal times, this is the kind of thing experts would be considering as they tried to estimate what turnout might be in the upcoming election—but these are not normal times. After the November ’08 election, Washington, following Oregon’s lead, became the second “vote-by-mail” state, and now the question has become not whether weather will impact the turnout…but if it will matter at all.

“Democracy is only an experiment in government, and it has the obvious disadvantage of merely counting votes instead of weighing them.”

–Dean William Ralph Inge, “Possible Recovery?”

The first unusual thing about Election Day in Washington is that there no longer is an Election Day. Voting now begins when the ballots begin to arrive in voters’ homes (20 days before Election Day), and as of Sunday, October 25th, King County Elections (Washington’s largest county; the county that includes Seattle and almost 1/3 of the State’s population) reports that 8.59% of the ballots are already in. All ballots with a postmark before November 4th will be counted, which means there will be new ballots arriving for several days after the “polls close”.

(As you may have guessed, each county operates their own elections office. All elections in the State are regulated by the Washington Secretary of State, which is also the office that handles paperwork for State-level candidates, initiatives, and referenda.)

This is driving the professional political community nuts, because it means every day there is a smaller pool of voters to influence, even though the cost of advertising time isn’t going down. Additionally, it is at the moment unclear exactly who has voted and how; over time, I think we’ll begin to see patterns emerge.

For example, in King County in this election cycle, the locations most likely to have already voted are, for the most part, the wealthiest regions of the county. A group of six communities clustered around Bill Gates’ house all have “in” rates above 10.5%, including three above 13%. The Town of Beaux Arts Village is at the top of that pack, running almost double the countywide rate at 16.74%.

The other communities most likely to have already voted are among the most rural in the County. Skykomish has 16.31% in, Enumclaw 12%. Unincorporated rural King County, however, is only running 8.49%, suggesting that the trend to vote early among the wealthy is more predictable than that same trend among the rural voters.

Among the many communities with average “in rates”, however, are clusters of low- and upper-income housing—and that’s where it is impossible to determine precisely who’s voted already and who is left to influence. With polling reports on Election Day you can track by precinct (and that type of tracking will be available after November 3rd), but for now an effective method of tracking has not emerged.

We assume that over time we’ll see the development of some form of “exit polling” of those who have already voted…but this is the first significant election since all-mail voting began, and prediction tools are as of yet untested.

“Message, We Have A Problem”

All of this is affecting advertising—after all, if you don’t know what portion of the electorate has already voted, how do you target your message to the remaining voters? When we get a week out, if we have 20% or more of the ballots in, this question will begin to loom very large as campaigns have to decide whether they have spent enough campaign dollars to buy airtime…or not…and whether the target audience they seek to influence is actually responding to the message…or not.

This all becomes even tougher to figure out because it’s a series of state and local races that are being contested in this election; as a result there is no daily tracking poll data available from which we might draw some near real-time conclusions.

Speaking of polling data: here’s some. A Survey USA poll conducted October 3rd and released October 6th of 548 likely voters suggests R-71 was winning 45%-42%. Women were both more likely to vote for the measure and more unsure as to how they would vote, relative to men (48% yes, 36% no, 16% unsure for females; 42% yes, 46% no, 12% unsure for males).

Voters 35-49 were simultaneously the least supportive of the measure and the most unsure as to how they’ll vote (35% approve, 49% reject, with 20% unsure). Voters over 65, the group most likely to vote, were supporting the measure (44%-40%, 16% unsure) as of October 6th.

The poll has a 4% margin of error, and some of these results are within that range, so as of October 6th this was still a race that’s very much up for grabs.

There are no Federal or State offices being contested in this election, and the only other statewide ballot issue, Initiative 1033, seeks to limit the growth of State income. The presence of the two ballot measures is likely to increase voting by 3% to 8%. It is suggested that a lower turnout will help the anti-71 crowd, a higher turnout, the pro-71 crowd.

All of this has had a major impact on “get out the vote” efforts as well—for example, no one volunteers to drive voters to polling places anymore…because there aren’t any polling places left. (There are a few exceptions for the disabled.) Instead, the effort here is to make sure those ballots get in mailboxes before Election Day.

It is possible to construct ads that attempt to “close the deal”: suggesting, in the last 20 days, that voters vote right now for or against the candidate or issue, but I haven’t seen ads of that type yet.

Finally, a few words about the “after Election Day” action. If this election is close, the number of votes that are in the mail in the days following the close of voting (and where they’re from) will be critical—and in the ‘08 cycle 50% of the total votes cast were in that “in the mail” category.

(Washington has been moving to voting by mail for some time, and in the 2008 cycle more than 90% of the votes cast were mail-in ballots. At that time 37 of the State’s 39 counties were voting entirely by mail.)

The bad news: it could take anywhere from several days to several weeks before we absolutely know the results. This process may include “reevaluation” of votes after Election Day and efforts by either party to disallow votes based on what they think they can get away with, and the result could be litigation.

The good news: there are no electronic voting machines in this system, and every ballot is a paper ballot. This means we can determine, eventually, exactly how the votes were cast—and if it takes a few recounts before we know the results, well, that’s what it will take.

So as of right now, that’s where we’re at: it’s the first major election since mail-in voting was adopted statewide, we are not sure of exactly how the impact of early voting is being felt, even though we know that almost 10% of the votes are in, professionals are still not exactly sure of what’s going on, and there should be a higher turnout due to the fact that we have two questions on the ballot for the entire voting public to consider.

Don’t expect a final result on Election Night, and if we do have to go to a recount, there won’t be any electronic voting machines to screw things up. Instead, every vote will be on a paper ballot. Most importantly of all: this ain’t Florida, we’ve been through recent close elections and recounts before—and we were able to work things out just fine.

On Respect, Or, How To Avoid Mispronounciation July 26, 2009

For today’s story, we will travel far afield from the typical domains of politics or science or law that have so often provoked our thinking into an often overlooked area of human relations:

To which gender do you belong?

It’s a simple question, or so common sense would tell us—either you’re male, or you’re female.

As it turns out, things aren’t quite so simple, and in today’s conversation we’ll consider this issue in a larger way. By the time we’re done, not only will we learn a thing or two about sex and gender and sexuality, we’ll also learn how to offer a community of people a level of respect that they often find difficult to obtain.

Do you get off casting hexes?
Assuming forms of either sexes
And oh…are you a boy or a girl?

–Imperial Drag, “Boy Or A Girl?”

The best place to start today’s story, I suspect, is with a story.

Regular visitors to this space will recall the recent conversation we had regarding the life and times of Gladys Bentley. The kind folks at the Bilerico Project (“daily experiments in LGBTQ”) asked me to repost at the site, and it was there pointed out to me that I was confusing gender and sexuality at various times in the diary.

It occurred to me that education was the solution here; to that end I located Lifelines Rhode Island’s “TGI/Gender-Spectrum Terminology Guide” (which, unless indicated otherwise, will be the source for the material you see here today). Tobi Hill-Meyer, who also posts at the Bilerico Project, was able to confirm to me that the information here “covers a lot more than most terminology lists I’ve seen”…and with a confirming source in place, I think we’re ready to move forward.

Actually, before we do that…a caveat. Everything that will be presented today is “in flux”. Terminology and attitudes and thinking evolve rapidly in this area, and Ms. Hill-Meyer would tell you to worry less about exact terms and to pay more attention to the general concepts that this discussion incorporates.

The first thing you should know is that biological sex, gender, and sexuality are three completely different things, neither associated with the other. What I mean by that is that an individual might be male, or female, some combination of the two (intersex persons)…or none of the above—but that has no bearing on whether that same person might find themselves sexually attracted to males, or females, or intersex persons…or no one at all.

Let’s start with biological sex.

The human body expresses sex in four different ways, the first being genetic. Genetic males carry an X and a Y chromosome, genetic females two X chromosomes. Intersex persons might have a single X chromosome (known as XO) or some combination of three or more X and Y chromosomes.

“Gonadal” males possess testes, gonadal females possess ovaries; intersex persons might possess undescended testes or streak ovaries.

Those persons who possess testosterone or DHT in the body are “hormonal” males. Estrogen and progesterone are found in hormonal females, and intersex persons might have levels of any of these hormones that are either high or low…or they might not have the “receptors” that allow the body to recognize the hormones that are present.

Morphological sex is expressed by the presence, in males, of the Wolffian duct and a penis. Females will possess a Mullerian duct and a vagina. Intersex persons might possess both a Wolffian and a Mullerian duct or incomplete internal sexual organs—or none of the above—and an enlarged clitoris, a “micro-penis”, or a shallow and fused vagina.

Perception, the folks at Lifelines would tell you, exists in two parts: gender, which is derived from the perception of whether you appear to others to be male or female, and gender identity, which is based on your own perception of yourself as male, female, neither, both, or whatever other label you might choose to attach to your gender identity. The “take-away” from this line of thought is that people are entitled to make their own choices regarding gender identity.

Sexuality, or sexual orientation as it’s used by Lifelines, can be a bit tricky, but it works like this: start with an individual’s chosen gender identity, then proceed to whom they are attracted to. For example, if your gender identity is female, and you are attracted to females, you would be a lesbian. Options include straight, gay, lesbian, bisexual, asexual…and pansexual, a term used by those who see more than two sexes—and genders—within the rich tapestry of human existence.

I ought, therefore I am.

–From Immanuel Kant’s “Fundamental Principles of the Metaphysic of Morals”

Everyone still with me on all this?

Good, because now we get to the heart of the matter…the “how to show respect” part…and if you’ve been keeping up, what’s coming next will be fairly simple to grasp.

Mispronounciation is the act of referring to someone with the incorrect personal pronoun—in other words, incorrectly referring to a “he” as a “she”. To avoid this, all you need to do is refer to the individual using the pronouns that match that person’s appearance.

If the person to whom you are speaking is visually expressing their gender as female, that person is referred to as “she”, and vice versa. The fact that the person might not be “passing” in a manner that you find entirely convincing is irrelevant, as is the fact that the person may or may not have had sexual reassignment surgery.

If that same person were to express their gender, on another occasion, as a male, you would refer to the same person as “he”.

In keeping with the admonition to not worry so much about every single term, but instead to make an effort to grasp the concepts presented here, we will not endeavor to define everything on the list; instead touching on just a few terms and explaining why they are important.

“Tranny” is considered offensive and should be avoided.

A “crossdresser” is someone who does not associate their clothing choice with a desire to express as a different gender. In other words, when Rudy Giuliani dresses as a woman—even as he views himself as a man while doing it—that’s crossdressing.

Drag Kings and Drag Queens are entertainers who express themselves in an alternative gender. If the person with whom you are speaking is not on stage at the time…these terms are probably inappropriate.

Transsexual persons are taking hormones and have had sexual reassignment surgery…most of the time. (Some people use the term to describe themselves even though they have not had surgery.) This term is often used within the medical community.

There are some people who do not prefer this term, either because it implies that a mental illness is somehow involved, or because it implies a change of sexuality, as opposed to a change of gender. (You should know that the “Diagnostic and Statistical Manual of Mental Disorders”, also known as the “DSM-IV-TR”, does in fact describe Gender Identity Disorder as a mental illness.)

The word transgender, which has been in common use to describe people who are expressing any number of gender options, is considered offensive by some people because it is sometimes used to describe a person’s gender choice, instead of the preferred “he” or “she”.

Androgyne persons do not wish to express a single gender choice, instead choosing to present themselves in a way that blurs the line between male and female. Someone who expresses their gender in this manner might or might not also express their sexuality the same way.

Trans is the currently preferred term to describe people who are…well, trans.

Someone who fits into any of the categories we have described here would be considered a trans person. A trans man would be someone who was female at birth, but is now expressing the gender choice of male; obviously a trans woman would be someone who was designated male at birth and is now expressing the gender choice of female. (“Trans” is a prefix defined as “across, over, or beyond”)

If you fit into none of these categories, but instead are always expressing yourself in the same gender as your birth gender, the term cisgender or cissexual is in current use; this derived from the prefix “cis”, which is defined as “on this side of”.

So what have we learned today?

We learned that there is a community of people who do not find the two gender choices “man” and “woman” representative of all the options available…and we learned that, within that community, there are people who might wish, from time to time, to vary their gender role.

Beyond that, we found out that gender and sexuality are separate and not interrelated, and that a person can change one while not changing the other.

We learned that addressing someone using the gender they have chosen is the best way to show that person respect—and the other thing we should be taking away from this discussion is that terminology changes rapidly, but the larger concepts presented here have more permanence, and over the long term I would expect those concepts to change less than the terminology.

So go forth and have some summer fun…and should the occasion arise, apply these principles, and summer will be more fun for those you meet up with as well.

And who doesn’t love that?

On Gay History, Or, This Is Not A Stonewall Story July 9, 2009

Pride Month has come and gone, Gentle Reader, with no comment from this desk.

It’s not that I’m in some way insensitive to the subject; instead it’s more of a desire, once again, to stay off the beaten path.

And in that spirit, I do indeed have a story of Gay History…but it’s not from the Summer of ’69…instead, this story was already well underway before the Summer of ’29.

So put on something très chic and let’s head on over to Harlem…at the time of the Renaissance…because it’s time to meet Gladys Bentley.

As so often happens, I had no idea I would be writing a Gay History (HerStory?) story—and the funny thing is, it’s all Groucho Marx’s fault.

For those not aware, Groucho starred in what is now an ancient television game show, “You Bet Your Life”. The basic concept was that the guest would come on and demonstrate a talent, do a little comedic banter with Groucho, and then answer questions for money.

There is a newly released DVD set of episodes from the show, and I was watching the very first episode of the set…and along comes this woman who introduces herself as Gladys Bentley. After a few words, she sits down at the portable piano that was provided, and much to my amazement she proceeds to pound out some of the most amazing boogie-woogie it has ever been my pleasure to watch.

Naturally, a Google search ensued…and that’s when it got interesting.

You see, Gladys Bentley, in 1920s and 1930s Harlem, was the most famous Drag King of her time (yes, Virginia, there are Drag Kings, just as there are Drag Queens)…and all of a sudden, it was time to write a “couple days after Pride Month” story.

The history of early 20th Century Harlem is associated with two notable trends: black migration caused by the gradual desegregation of the neighborhood and the introduction of Prohibition and the speakeasy culture.

“…a costume ball can be a very tame thing, but when all the exquisitely gowned women on the floor are men and a number of the smartest men are women, ah then, we have something over which to thrill and grow round-eyed.”

–“Lady Nicotine”, Geraldyn Dismond Major, describing the “Faggot’s Ball” in her “Between Puffs” column for “The Inter-State Tattler”, February 1929

For those unaware, 1920s Harlem was the home of an active gay community, and it was apparently the perfect place for a black woman who once wrote that “even as I was toddling, I never wanted a man to touch me….”. By the end of the decade she had worked herself up from playing rent parties to stardom on “Jungle Alley”: appearing at The Cotton Club and eventually becoming the “headliner-in-residence” at the predominantly lesbian The Clam House (the entendre being entirely intentional).

It is reported that there was a surprising amount of integration on Jungle Alley—of multiple kinds—which helped Gladys Bentley soon became the darling of the white, black, gay, and straight social sets. (Langston Hughes even modeled a character in the play “Little Ham” after her.) Her ability to write and perform some of the bawdiest lyrics ever while “working the room”—especially the ladies–kept The Clam House packed…and it set her up for an even bigger gig to come.

Connie’s Inn, another famous speakeasy, had closed, and in its place was the Ubangi Club. To “kick things up a notch”, as it were, the new management not only hired Bentley, but provided for her an entire chorus line of “pansies”; the combination of the effeminate male chorus line and the female butch headliner forming a sort of gender-bending fugue that that came together in elaborate stage shows produced by the likes of Leonard Harper.

Eventually she moved over to the Mad House, performing under the stage name of Barbara “Bobbie” Minton…which, before long, caused the club to change its own “stage” name to Barbara’s Exclusive Club in her honor.

She recorded music as well, first in the late 1920s, for OKEH records; some of that music can be heard today by visiting just the right websites.

Eventually…Miss Bentley became a Mrs….more than once.

“A friend, visiting her, pointed inquiringly at two pictures on Miss Bentley’s dresser…

“Who are they?” the visitor inquired innocently.

“Oh” Miss Bentley replied “That’s my husband (pointing to the male) and that’s my wife.”

–From “The Third Sex” By Albert Duckett, in “The Chicago Defender”, March 2, 1957

Bentley’s first marriage—to a white woman, in Atlantic City—was reportedly covered in the society pages of the New York papers. Bentley also reports that there were two marriages to men, in later years, both ending in divorce—a topic to which we will return later.

All of this came to an end as the Depression deepened, and in 1937, less than five years after she had moved into a Park Avenue apartment she moved out to Los Angeles to live with her mother.

World War II revived the gay scene on the West Coast, and Bentley was able to find work at bars such as the San Bernardino Club and Joaquin’s El Rancho in Los Angeles and Mona’s Club 440 in San Francisco (“Where Girls Will Be Boys!”), along with other artists such as Miss Jimmy Reynard and Miss Beverly Shaw.

(Fun Fact: Some sort of club has occupied the same location as the old Mona’s right up to this very day, and if you find yourself in San Francisco you can visit Apartment 24, the current occupant of the spot (the website tells us to “think of classic age rock star David Bowie’s over the top apartment in the 1960s….”).)

In 1945 World War II came to an end…and not long after that, so did the “gender-bending” phase of Gladys Bentley’s life.

“I thought that nought is worth a thought,
And I’m a fool for thinking.”

–From ”The Chant of the Brazen Head”, Winthrop Mackworth Praed

Before we proceed further, a few words about the public ”presentation” of homosexuality.

If you read media accounts from the 1930s—and later–that deal with gay issues, one thing that will become quickly apparent is the way the gay lifestyle is presented as an aberrant condition. You will likely also note the admonitions that a gay person must be suffering from internal torment, and unable to live a happy life.

Here are a couple quick examples:

“…Dr. Berger reasons that 99 out of any 100 Lesbians are successful in hiding their strange sex habit…

…Since it is easier for a woman to hide the fact that she is sexually cold than for a man to hide the fact that he cannot satisfactorily perform functions expected of a normal husband…

–From “The Third Sex” by Albert Duckett, in “The Chicago Defender”, March 2, 1957

“…still, in my secret heart I was weeping and wounded because I was traveling the wrong road to real love and true happiness. I could not find them in the cruel, unusual world of my strange private life.”

That second example is from an August 1952 “Ebony” Magazine article written by Gladys Bentley, “I Am A Woman Again”.

In the article Bentley renounces her entire life…and in doing so she paints a portrait of a woman who would have been a whole lot happier if she would have had the freedom to just be herself.

She describes a childhood that was spent mostly alone, parents who tried to “fix” her gender confusion by making her dress in something other than her brothers’ suits…an attraction to her teacher that she did not understand…and what she herself portrays as “extreme social maladjustment”.

Even then there was a feeling that you could cure “Teh Gay”, and as a child Bentley’s mother “began to take me from doctor to doctor…”; an effort to which Bentley herself would eventually return.

Fast forward again to post-1945…and the time she married a sailor.

“Don” was a friend-of-a-friend from San Diego via San Francisco who was told to introduce himself to Ms. Bentley if he should happen to find himself in Los Angeles…which eventually happened.

Despite the fact that “I hated sailors at the time” because of their aggressive nature they began to spend a great deal of time together—so much so that she began to introduce him as her brother.

“One day, I told Don all about my life. I admitted to him that he had me very confused because I couldn’t understand what I was doing letting a normal man pay attention to me.”

In the midst of tremendous anxiety about the future of their relationship (what with Don being the accepting type and all, they had decided to marry), she decided to visit another physician, to whom she announced the news of her impending marriage.

““That’s just what I wanted to hear” the doctor told me. “Now I can tell you what I’ve known for a long time. Your sex organs are infantile. They haven’t progressed past the stage of those of a fourteen-year-old-child.””

The solution? Injections of female hormones, three times weekly.

(There are those, notably Eric Garber, who question this account.)

“The treatment was expensive but it was worth every penny it cost.”

Fast forward to two lines later in the story:

“Even though our marriage did not last…”

Eventually Bentley began to study religion seriously, and she was in the process of becoming an ordained minister at the time of her 1958 appearance on the episode of “You Bet Your Life” that was the genesis for this story in the first place.

(Another Fun Fact: An 11-year-old Candice Bergen appears as a contestant in the second half of that same episode.)

In one way, Gladys Bentley’s story came to an untimely end just two years later, in 1960, when she died from influenza…but in another, more profound way, the story remains unresolved to this day.

It is, after all, still impossible for most same-sex couples to marry—and the Federal Government has yet to acknowledge the legal marriages that have occurred.

And those who do choose to carve out a different gender rôle for themselves, as well as those who are merely “committing the crime” of being gay are still ostracized by many in the larger society, even to the point that “God Hates Fags” has become the rallying cry for a weird and twisted church.

That said, the story is moving in the right direction…Prop 8 notwithstanding…with several states now granting to same-sex couples the right to marry—and the LBGT community gaining more and more political power all the time (can you say gAyTM?).

The remainder of the Obama Administration promises to be an exercise in…well, we’re not sure: will the Administration live up to the Candidate’s promises—or will the LBGT community find itself feeling the same way vis à vis the Democrats as the “teabag” community (not that one…the other one…) feels about the Republicans: taken for granted while at the same time lacking better options.

So how’s that for a “not Pride Month” story?

History that stretches back more than 40 years before Stonewall…great music…a bawdy personal life…repression, regret, and recriminations…and in the end, an Administration that is having to face up to the demands of those who seek more equal treatment.

And all of that…because of Groucho Marx.

WARNING—Self-Promotion ahead: I am competing for a Netroots Nation Scholarship, and I was not selected in either the first or second rounds. There is one more chance…and while I’m not inclined to use the “hard sell”…I guess I will today.

If you like what you’re seeing here, and you’d like to help me make these stories even better, swing by the Democracy for America site (even if you have before…) and express your support.

All of us here thank you for your kind attention, and we now return you to your regular programming (which, in keeping with the “hard sell”, is rated PG, instead of the usual G).

On Death And Justice, Or, What If The Death Penalty Could Be Fair? June 28, 2009

Those who support Progressive causes are in an odd position these days: we’re often in the majority on issues that matter; and we’re seriously talking about how to turn what, just a few years ago, was a wish list…into a “reality list”.

Staying in the majority, however, requires the assistance of centrist voters–and that means, from time to time, finding philosophical compromise with voters we’d like to keep “in the fold”.

In years past, the issue of the death penalty has created a considerable chasm between Progressives and centrists; with the one side concerned about the misapplication of capital punishment, and the other convinced that, for the most heinous of crimes, the only way to achieve a truly just outcome is for the guilty party to face the most severe of punishments.

What if we could bridge that gap?

In today’s discussion we propose to do exactly that: to create a death penalty process that only executes those who are truly guilty and excludes those who might not deserve to be put to death…in fact, those who might not be guilty of any crime at all.

Before we proceed further, a bit of “full disclosure”: I am personally inclined to end the death penalty. The reason for this change in personal philosophy is related to the work of The Innocence Project, who would want you to know that as of the date of this writing 240 people convicted of various crimes were later exonerated in the United States through the use of DNA testing (17 of those being inmates who were on various Death Rows at the time).

It occurs to me that the only acceptable level of error in executions is zero, which has also led me to support the option of life without the possibility of parole as an effective death penalty substitute; the thinking here being that a wrongly convicted individual can always be released from life without parole…but until Dr. McCoy returns from his five year mission, the odds that an accidental execution can be reversed are quite low indeed.

“On the other hand, the worst nightmare of a death penalty supporter and of everyone who believes in our criminal justice system is to execute an innocent man.”

–From “A Charge to Keep”, George W. Bush

As you are no doubt aware, in order to obtain a criminal conviction in the United States a prosecutor must prove “guilt beyond a reasonable doubt”.

This standard, however, does not guarantee that only the guilty are convicted.

Improper convictions can be obtained for a variety of reasons, which can include eyewitnesses who make mistakes, situations that involve false confessions, the inappropriate use of informants, or even the occasional governmental misconduct.

To reduce the potential for these sorts of failures, I’m proposing that after conviction, and during the “penalty phase” of a trial involving capital crimes, we determine if the evidence presented can meet a higher “burden of proof” than what is required to merely convict a defendant of the crime for which they are facing trial.

That higher burden of proof:

“Guilt beyond any doubt.”

In other words, if, during the penalty phase, the defense could create any doubt at all as to whether the defendant is guilty, or that the conviction is appropriate, that defendant would no longer be death penalty eligible, and a sentence of life without the possibility of parole would be imposed.

This is a good start to reduce the number of improper capital convictions…but there is another important reason the innocent are convicted that this proposal cannot address: incompetent lawyers.

However, there is a way to get at a resolution for this problem: a requirement that all defendants in capital cases be represented by Federally-accredited “death penalty” attorneys, combined with a requirement that each State maintain a staff of accredited attorneys that would be available to defend those individuals who are facing capital crimes and cannot afford private accredited counsel.

All of this could be imposed by Congress with statute law; and an Act defining “cruel and unusual punishment” in part as a failure, in capital cases, to provide the “guilt beyond any doubt review” and accredited attorneys should do the trick just nicely.

Dimitri: I was talking to Zeus the other day, and he thinks you’re a bad influence on me.
Tasso: That’s interesting, because I think he’s a bad influence on you.
Dimitri: In what way?
Tasso: He makes you think the voices in your head are real.

–From “Plato and a Platypus Walk Into A Bar…“, Thomas Cathcart and Daniel Klein

There are two counterarguments that might quickly occur to the reader, and I will attempt to address them both here.

First, it is indeed true that this will not absolutely guarantee that there will be no further improper executions…and it is also true that the only way to make such an absolute guarantee is to end the use of the death penalty altogether.

However, this is a great compromise, in that is reduces the odds of such an execution to near zero while still leaving open the potential for executions in cases where no doubt of any kind can be established by the defense.

Secondly, there will be concerns that this proposal will only allow the death penalty to be imposed under the most extreme and unusual circumstances, to which I would reply: that’s exactly correct.

The idea here is that virtually everyone who is accused of a capital crime would end up sentenced to life without the possibility of parole…except in those most rare of circumstances where there can be no doubt whatever as to the guilt of the accused.

This is also a great compromise—after all, does even the most conservative Christian voter amongst us really want to take the chance that innocent people are executed?

To help this process along, I would further propose that Congress enact legislation that allows anyone facing Federal crimes or capital crimes, in any State, the right to obtain and introduce, post-conviction, evidence that could absolutely prove the innocence of a convicted person…and I would encourage Congress or the State Legislatures to pass legislation that would apply this protection to those convicted of all crimes in all States.

We might consider creating “Review Magistrates” to conduct an initial, less formal, review of such claims, with claims deemed appropriately credible advancing to a more formal Court setting for final disposition.

This will also cause some to object to the added burden imposed on the legal system…but the goal of the Constitution’s due process and equal protection clauses is not to round up a few of the innocent in order to get all the guilty incarcerated…instead, it’s just the opposite: to let a few of the guilty go free in order to ensure that the odds of the innocent being convicted remain as low as possible.

And with all that said, let’s wrap this thing up:

In order to find a way to compromise between the philosophies of those who seek to end capital punishment and those who support its application, I’m proposing that we review the evidence after conviction in capital cases, as part of the “penalty phase” of such trials, and if the defendant can create any doubt at all, of any kind, as to the propriety of that conviction, that defendant shall be sentenced to life without parole.

I’m also proposing that all defendants facing capital crimes be represented by accredited “death penalty” attorneys, and that defendants have the opportunity, post-conviction, to present exculpatory evidence if it should become available.

The use of the death penalty, not unlike the issue of abortion, has pulled people of good conscience to diametrically opposite sides of a national debate that is not easily resolved.

This set of proposals tries to find the compromise between those two sides, and in doing that we hope to convince centrist voters that Progressives are more than just wild-eyed dreamers—that, instead, they’re realists who seek solutions that represent the interests of all Americans, even those with whom they might not always agree.

In a political world where one side seeks fairness and compromise and inclusion and the other side seeks a ever-crazier brand of moral purity…which they can’t quite seem to live up to…it seems to me that the side seeking compromise is hugely advantaged in elections…and that, as far as I’m concerned, sounds pretty good.

Special Note: We have become aware of concerns related to the health of Walter Cronkite, and we hope he is as hale and hearty as he would want to be.

WARNING—Self-Promotion ahead: I am competing for a Netroots Nation Scholarship, and I was not selected in either the first or second rounds. There is one more chance…and while I’m not inclined to use the “hard sell”…I guess I will today.

If you like what you’re seeing here, and you’d like to help me make these stories even better, swing by the Democracy for America site (even if you have before…) and express your support.

All of us here thank you for your kind attention, and we now return you to your regular programming (which, in keeping with the “hard sell”, is rated PG, instead of the usual G).

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.

On A May-December Romance, Part One, Or, Las Vegas, Segregated April 15, 2009

There may be no more recognizable icon of “Retro-Cool” than that photograph of the Rat Pack standing in front of the marquee at The Sands Hotel in Las Vegas.

They’re right there, lined up in front of their own giant names on the marquee: Frank Sinatra, Dean Martin, Sammy Davis, Jr., Peter Lawford, and Joey Bishop.

Night after night they would gather with friends such as Shirley MacLaine, Angie Dickinson, and Johnny Carson, to deliver some of the greatest nightclub performances in entertainment history.

Today’s story, however, focuses on what happened after the show: when four of those five could leave the showroom, drink at the bar, gamble at the casino, and go upstairs to their rooms.

In a town sometimes known as the “Mississippi of the West”, however, one of those five performers could not do any of those things.

Our Journey In Two Parts literally crosses over to the “wrong side of the tracks”, tells a story of segregation overcome, and recounts the six-month history of a Las Vegas hotel that has a 55-year history: the Moulin Rouge.

“…We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of “equal” accommodations…will not mislead anyone, nor atone for the wrong this day done.”

–Justice John Marshall Harlan, from the dissent in Plessy v. Ferguson, 163 U.S. 537 (1896)

So let’s start with the “literally” part: Las Vegas’ “Westside”, which was the original Vegas townsite, was located across the “Cement Curtain” of railroad tracks from “new” Las Vegas, and it was the only place the black population was allowed to live.

This was not a new situation in Nevada, or unique to Las Vegas: when the Six Companies built what became Hoover Dam in the ‘30s, some say only 30 blacks are estimated to have been employed on the entire project. (Others put the number nearly 50% higher, suggesting 44 out of the workforce of 5000 were black.)

World War II had swollen Las Vegas’ population, and the “new” Vegas—the white Vegas—included the land that would eventually become The Strip. While blacks were allowed to work out of the Westside, beyond that area they could not own property…and they most assuredly could not be guests of the hotels and casinos in which they worked.

In fact, blacks who owned businesses beyond the borders of the Westside were “motivated” to move them there during the ‘40s.

By the early 1950s the Thunderbird, the El Rancho Vegas, and “Bugsy” Siegel’s Flamingo, among others, were drawing big crowds from Los Angeles and points beyond for the floor shows, lounge entertainment, and casino gambling.

With the exception of Josephine Baker’s performance at the El Rancho, blacks were generally not allowed among those crowds; and performers such as Louis Armstrong and Sammy Davis, Jr. were forced to stay in rooming houses or other accommodations on the Westside.

“In Vegas for 20 minutes, our skin had no color. Then the second we stepped off the stage, we were colored again…the other acts could gamble or sit in the lounge and have a drink, but we had to leave through the kitchen with the garbage.”

–Sammy Davis, Jr.

At this point, a few words on Rat Pack history (and if you only click on one link in this story, this might be the one…).

Humphrey Bogart was the founder of the first Rat Pack; then called the “Holmby Hills Rat Pack”, after the Los Angeles neighborhood in which he and Lauren Bacall lived following their 1945 marriage. These Rat Packers included Judy Garland, “Swifty” Lazar (still considered one of the most notable agents in Hollywood history), and, eventually, Frank Sinatra.

This members of this group were not “Hollywood Society” types; as a result the Rat Pack spent a lot of its time up in the Holmby Hills…laughing at Hollywood Society over cocktails…making the odd trip to Vegas to spend a night out…and occasionally adjourning to fellow Rat Packers Mike and Gloria Romanoff’s restaurant…where the Hollywood Society types vied to be seen with them.

Upon Bogart’s death in 1957 Sinatra, partly because of his friendship with Bacall, was able to continue the Pack (at one point called “The Clan”; a name that was quickly dropped) with new members (and old friends) Dino, Sammy, Joey Bishop, and Peter Lawford (Not-Yet-President John F. Kennedy’s brother-in-law), while still keeping continuity with Bogart’s Rat Pack. (Some might also describe Sinatra and Bacall’s romantic relationship following Bogart’s death as another part of that continuity.)

We’ve come a long way to get to this point, and we have a long way to go—which makes this a perfect “rest stop” between Parts One and Two.

A Barstow, if you will.

Way back at the beginning, we learned that blacks in Las Vegas really were living on the wrong side of the tracks, that separate was in no way equal; and that even if you were Louis Armstrong, or Lena Horne, or Sammy Davis, Jr., you might be allowed to work in white Las Vegas, but you weren’t going to be allowed to eat there, drink there, or sleep there…and you weren’t going to be allowed to gamble your paycheck away there, either.

In the meantime, Las Vegas was attracting entertainers—black and white—who would chafe at these rules. The group that would become the new Rat Pack was going to be at the heart of that change…and in our next installment, we’ll talk about six months of Las Vegas history that ultimately, despite great resistance, forced that change to happen.