Governments and Secret Evidence: an Unholy, Unconstitutional Alliance?

This well-researched story in this month's Washington Lawyer magazine stunned me:

http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/november_2009/privilege.cfm

[Khaled] El-Masri, a German citizen of Lebanese descent, was on vacation on New Year’s Eve 2003 in Macedonia when he was seized at a border crossing, tortured, and then flown to a secret prison in Afghanistan. He remained in a squalid cell for five months before his captors, realizing they had the wrong man, flew him to Albania and dumped him on a roadside, convinced no one would believe the story El-Masri would tell.

Want to guess who did this? It's the CIA. Under Dick Cheney, the CIA seems to have had no limits.

Mr. El-Masri sued, but the George W. Bush administration invoked the state secrets privilege--a presidential power intended to prevent public disclosure of classified information--to dismiss the lawsuit.

One judge has pushed back. See Mohamed v. Jeppesen Dataplan, Inc:

Judge Michael D. Hawkins said dismissing cases because the government alleges secrets are involved would “cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from demands and limits to the law.” The government’s argument has “no logical limit,” Hawkins wrote.

God bless judges that understand the judicial branch should check and limit unconstitutional use of executive power. The executive branch was never intended to be a dictatorship shielded from scrutiny. Whenever any government agency tries to hide information, my alarm bells go off. Right now, there's a five-alarm fire somewhere, and my taxpayer dollars are funding it.

25 Random Things about Me

Note: added on November 10, 2015.

Written in 2009 on Facebook:

1. Two activities that changed my life were high school wrestling and coaching kids in basketball. Without wrestling, I wouldn't know how far I could push myself without breaking. I'd also be less willing to push myself to the limit when necessary. Without coaching, I'd have no idea how much children rely on adults to set standards of behavior. This realization caused me to become much more moderate.

2. My first year wrestling, I lost every single match. I almost won my last match, but couldn't hold onto a lead. Afterwards, I was so upset, I went to the bathroom and punched (kicked?) a hole through the wall. (Thankfully, I wasn't injured.) The next year, I won several matches, including a crucial match where I was supposed to be on injured reserve but came in at the last minute. Winning that match against Homestead High helped place my team in 3rd place in our league. That same year, my coach awarded me Most Valuable Frosh/Soph Wrestler. I wrestled all four years in high school, starting at the 152 lbs weight class and ending at the 171 lbs weight class.

3. I didn't experience my first kiss until college.

4. I didn't really study for the bar exam but somehow passed. Here's what happened: I opted for the take-home study program, and BarBri (an intensive study program) sent me the materials a week late. A week in bar prep time is an eternity. Realizing I could never catch up, I uncharacteristically gave up. Instead of studying, I played basketball in downtown Campbell with the SJSU women's team most days and spent most nights terrified and in fetal position. (I did manage to attend a 3 day PMBR course shortly before the bar exam, and I also took the Conviser Mini-Review with me to the hotel.)

The first day of the exam, I ticked off everyone sitting near me. I was making jokes and smiling, and they did not appreciate my insouciance. Everything I said was met with stone cold silence and glares. Anyway, the first day, the questions seemed pretty easy. I went back to the hotel, ate at Hungry Hunter, and read the Conviser study guide until 4AM. The next day, the subjects on the exam happened to be exactly the ones I'd studied.

The second day, I studied the Conviser mini-review from 12AM to 4AM. Well, the third day, the subjects once again happened to be mostly the ones I'd studied a few hours before. When I drove home after the exam, I'd had about 5 hours of sleep in three days and almost rear-ended a BMW. Later, when I checked online and found out I'd passed, I was so happy, I picked up the law firm's secretary and gave her a bear hug.

5. After taking the bar exam, my buddy (Joe) and I saw most of western Europe with no plans, no maps, and not much money. We went to London, took the Chunnel (aka Channel Tunnel) to Brussels and went clockwise. We ended up in Paris and took the Chunnel back to London. In one month, we managed to see almost every capital in Western Europe, walked 10+ miles a day, slept on benches (sometimes, we couldn't find an open hotel), got into a screaming match in Berlin (we made up later), and just had an incredible time. And before you ask, we did _not_ partake in any Amsterdam coffeeshops. My fav city was Venice, Italy. (I love London, too, but that's like a second home to me, so I don't count it in my list of favs.)

6. I went to first grade in Scotland. I have a pic of myself in full Scottish garb, kilt and all, to prove it.

7. I have a younger sister who is much, much smarter than me. She graduated from MIT and is getting her PhD at Harvard right now.

8. For a specific reason you may notice if you know me, I tend to prefer solitary activities, like reading or watching films. Socially, sometimes I feel I'm the male version of Eliza Doolittle.

9. I love reading. You will hardly ever see me without a book or newspaper. Some of my fav times are spent reading a book or newspaper in a bookstore while drinking a white choc mocha or cappuccino.

10. I welcome the J-Lo / Jessica Simpson / Kim Kardashian movement away from the Kate Moss era.

11. I've seen so many divorces in family court, I am fairly certain I will not get married. Other lawyers were paying me 100+ dollars to show up and do routine appearances for them in family matters. After a few months, I got so depressed, I stopped going. This was when I was first starting out on my own and desperately needed the money. Let me give you an example of how bad things can get. I went to court in Hayward (or somewhere in Alameda County) and the only issue to be decided was how to divide the couple's *debt*--they had no assets. After I got a continuance, the ex-husband was so upset, he angrily told me he was going to hire the best lawyer in town to beat his ex-wife in the case (with what money?). It would be comical if it wasn't so sad. After seeing so much irrational behavior, I do not want to put myself in a similar position. This doesn't, however, preclude me from being in a committed relationship--it just means I don't want some stranger/judge telling me what to do if things fall apart.

12. I paid off my private law school (Santa Clara Law) loans myself. It took about three years of eating nothing but PB&J sandwiches and staying in the office 12 hours a day (when you do nothing but work and then go home and sleep right after work, you don't have any opportunities to spend money). When I would forget my bag lunch, I wouldn't eat that day.

13. I have never bought a new car and probably never will. I bought my last car from a rental car company's fleet and paid cash for it.

14. If I could make a living doing it, I would love to write about public companies and finance instead of practicing law.

15. I am convinced women pick men based on height. I had no success with women at all until I hit 6 feet. Not much about me changed--just my height. So if I had to answer Freud's question about what women want, I would say it's pretty simple: 1) be tall; 2) don't be a jerk; and 3) have a job.

16. I'd like to think I have no ego. In a rebuke to sociologists and anthropologists everywhere, I'm not status-conscious at all. I don't buy nice labels or nice cars to look good. If someone hurts me, I just move on. I've realized over the years this makes me somewhat unusual. I genuinely don't care what other people do or say, as long as physical violence isn't involved. The only time I get upset is when people in power clearly abuse their discretion or authority. George Carlin would be proud.

17. I sometimes think about moving to a small town, buying a small house, and spending my days reading books and playing basketball. It's almost like deep down, I lack aggressive ambition, despite my degrees and high work ethic. Anthony Bourdain summed up this phenomenon perfectly, except I would *not* be doing the Mary Jane, and I'm not yet completely afraid of "that guy":

"I know there's deep inside (me) some lazy hippie who'd be perfectly happy to lay on the couch, smoke weed and watch The Simpsons all day - I'm really afraid of that guy. I don't like him. I don't want him around. And my whole life is kind of constructed to avoid reverting to that guy: Stay busy. Stay focused. Try not to mess up."

18. I am probably most happy when playing basketball. Seeing your work--whether on defense or offense--create immediate results is awesome.

19. I've had my own law firm since Nov(?) 2004. I hope I can keep it for a long time. If you're interested, go to www.rafatlaw.com for more info. [Update: closed the business in 2010.]

20. I am unfortunately ultra-cheap, er, frugal. I pick up pennies and change on the ground when I see them. I park about 1/2 a mile away from my office to pay lower parking fees. I own only a few suits, most of them bought at a Gilroy outlet during a sale. I don't think I've ever spent more than 300 dollars a year on clothing, and that includes suits. I told my family I wanted nothing for X-Mas or my birthday because I didn't want to spend any money on gifts for them, and we were all old enough to buy our own stuff. Recently, when I found out how much a crown cost, I asked my dentist to remove the entire tooth (the dentist and the other dentist I went to for a second opinion wouldn't do it, so I ended up (grudgingly) paying the 900 dollars). My largest monthly expenses are food-related. Neal Templin would be proud. So would Jeff Yeager.

21. I dislike driving long distances. The human body was not designed to be sitting for hours in a car. Also, the fact that I get lost all the time might have something to do with it.

22. My travels have taught me something I think is absolutely true--under normal circumstances, all human beings, no matter where they live, what they believe, and what they look like, all want the same things--a home, a job they like or are good at, someone to love, and someone to listen to them. Any differences are a matter of degree, not substance. The key is figuring out the other person's/culture's communication style so you can understand what's really being said.

Bill Simmons in S.F.

As part of his book tour, Bill Simmons visited S.F. on November 5, 2009. He apologized about not wearing his Golden State Warriors jersey, and then mistakenly praised Stephen Jackson. The crowd booed immediately at the sound of Stephen Jackson's name. (Jackson has publicly demanded a trade.) Apparently, Simmons interpreted the boos as a perfect segue to mention Chris Cohan, the much-hated Golden State Warriors owner. Simmons asked about the proper spelling of Cohan's name, which few people knew off the top of their heads. Then, without further ado, he sat down and started signing books.

Although Simmons is in his forties, he looks (and dresses) like he's in his late twenties. I suppose if my job consisted of watching sports and going to Vegas, I'd look perpetually young, too.

I read some of Simmons' book, and I liked it. He trashes my favorite player, Reggie Miller, but he does it in a way that allows me to still like him.

How to Judge a District Attorney

[Note: I revised the last two paragraphs to update facts relating to Vahid Hosseini's prosecution.]

Shouldn't the main factors used to judge a D.A.'s success be 1) winning trials; 2) managing costs, i.e. winning cases without overspending taxpayer monies; 3) not prosecuting unwarranted cases; and 4) promoting settlement when non-violent crimes, such as drug possession, are involved?

On these four factors, where is the evidence that Santa Clara County D.A. Dolores Carr has failed? Where is the evidence that challenger Jeff Rosen will do a better job than Attorney Carr on these four factors? [Update: at this point, I had not met Mr. Rosen. Having met Mr. Rosen, I can tell you that he seems very motivated to bring a new culture to the D.A.'s office.]

I don't have a dog in the D.A. race, but I am curious why the SJ Mercury dislikes Attorney Carr so much. Scott Herhold, one of my favorite local columnists, trashed her in a recent column. See here. He also wrote, "I personally like to think I'm near the top of her enemies list." (Wow.)

I know Attorney Carr's husband was involved in an ethics issue, but I haven't heard of the D.A.'s office botching any major cases (Maybe I've missed something--and I consider the DeAnza case to be more of a tragedy than a missed opportunity to prosecute). I know prosecutor Benjamin T. Field allegedly committed ethical violations, but that wasn't necessarily Attorney Carr's fault.

Bottom line: the legal profession is monolithic enough as it is. District Attorneys tend to be hyper-aggressive, egotistical men with Superman complexes. (See here for further explanation.) I like the idea of having a female D.A., even though I realize gender has nothing to do with competence. Plus, I don't know much about challenger Jeff Rosen, and it seems to me that the devil you know is better than the devil you don't.

At the same time, I am a harshly judgmental voter. Some readers may remember that the Santa Clara County D.A.'s office transferred the prosecution of Vahid Hosseini's alleged killers to the state AG's Office (Attorney Geoff Lauter?). The D.A.'s office may have transferred the case to avoid making Attorney Carr the centerpiece of an "O.J. Simpson, 'local law enforcement is corrupt'" defense strategy. If, however, the AG's Office fails to convict the killer and his alleged accomplices, I may vote against the incumbent D.A. Is that unfair, given that Attorney Carr's office is no longer responsible for the Vahid Hosseini case? Perhaps. But to me and many others, not putting Vahid Hosseini's killer(s) in jail would be a monumental failure worthy of widespread blame.

[Update on November 10, 2009: One person has questioned my comments regarding the transfer of the Vahid Hosseini case. Apparently, Attorney Carr's office would not have had to transfer the case to the AG if the Mercury News hadn't raised issues about a possible conflict with Attorney Carr's husband being hired by Mrs. Hosseini's civil lawyer. (Mrs. Hosseini hired Attorney Carr's husband to investigate protocols used by bank security personnel in a separate civil lawsuit.) In short, Attorney Carr may have transferred the Hosseini case not because she had to do so, but because she wished to avoid the appearance of impropriety.]

Updates on June 22, 2010 and April 7, 2011: Mr. Rosen won the D.A.'s race by a razor-thin margin. More here on his swearing-in ceremony and an important change in the prosecution's procedures.

Hamed Haddadi: First Iranian NBA Player

2009 Golden State Warriors: My Solution

The Warriors need to switch to a D'Antoni/Phoenix style offense using PG Ellis, SG Morrow, PF Randolph, SF Jackson, and C Biedrins. Right now, Maggette slows down the offense and the Warriors rise and fall with his inconsistent (read: generally poor) shooting.

Also, the Warriors should trade Maggette and either Azubuike or Jackson for Channing Frye and Barbosa. The trade would benefit both Phoenix and the Warriors. (Of course, the fact that it makes perfect sense for both teams automatically means the trade will never happen.)

Overall, the Warriors have excellent young talent. They should do whatever it takes to keep all of their young players, even if it means dumping Jackson and other veterans.

Fort Hood Shootings: a Hostile Work Environment?

As we reflect on the Fort Hood shootings, I hope we remember that a person's religion has nothing to do with his or her acts of violence. Did Christians apologize for Steven Dale Green or Charles Graner? Of course not. 

A solider necessarily places himself or herself in violent situations. Sometimes, soldiers snap (for example, Steven Dale Green), and the consequences are tragic. Numerous Muslim groups have already condemned the Fort Hood shootings. My thoughts and prayers are with the soldiers and their families. 

Here is James Fallow's take on the situation: 

Forty years later, what did the Charles Whitman massacre "mean"? A decade later, do we "know" anything about Columbine? There is chaos and evil in life. Some people go crazy. In America, they do so with guns; in many countries, with knives; in Japan, sometimes poison. 

Something is terribly wrong when people shoot strangers or acquaintances. We need to find ways to prevent similar incidents. The NRA's solution--giving everyone a gun--is not the best answer. This shooting shows that even when nearby people are armed, a lone gunman can cause numerous deaths. How can we prevent these types of incidents from happening again? 

Bonus: from The Atlantic's website: 

Michael Moore: "After a shooting like this it's very important that no one jump to conclusions and take out any revenge against doctors or psychiatrists." 

Matthew Yglesias: "Lucky for us Christians never shoot anyone. Otherwise America might have the developed world's highest murder rate." 

Update: I am having a back-and-forth Facebook discussion on The Atlantic's wall with Kim P. See below. 

Me: Violence is not a religious issue--it's an issue of unstable people attaching themselves to a particular ideology. Remember what Charles Graner said: "The Christian in me says it's wrong, but the corrections officer in me says, 'I love to make a grown man piss himself." (That quote still makes me shudder, because it's wrong on so many levels.) 

No sane person would say that Graner's Christianity had anything to do with him torturing detainees. If you agree that Graner's religion had nothing to do with violent behavior, then you must also agree that Nidal Hasan's religion had nothing to do with his violent behavior. 

Her: What reality are you living in?? Didn't he shout "Allahu [sic] Akbar!" as he opened fire??? 

Me: to be consistent, you must agree that Christianity influenced Charles Graner when he tortured Abu Ghraib detainees. After all, Graner did mention Christianity, and he is a Christian, correct? So *obviously* Christianity had something to do with Graner's actions, right? (I hope you see the sarcasm and problem with your "logic.") 

To support a link between Islam and the shootings, you mentioned a rumor that the shooter yelled, "God is great." If that's the case, then you must believe "God" had something to do with the killings. If a white Christian American shot somebody and yelled "God is great," would you link Christianity with the shootings? Of course not. You'd be crazy to do such a thing. Yet, you have no problem making the same crazy link when the shooter happens to be from a different religious background. If that's not Islamaphobia, I don't know what is.

Her: Remember 9/11??? Islam is much more dangerous than Christianity. Most people would agree they are just to PC to say so. 

Me: [after picking my jaw off the ground] I can't believe my eyes. First, you fail to respond to any of my actual comments, and then you pull 9/11 out of your arse? Are you seriously comparing the Fort Hood shootings with 9/11? Really? I'll just say this: the 9/11 attacks were carried out primarily by European residents who--as far as we know--did not become radicalized until they lived in a Christian-majority culture. More here. When you get a chance, look up the most populous Muslim country in the world. I bet the answer will surprise you. 

Her: The Fort Hood shootings are a domestic terrorist attack just like 9/11. It doesn't matter where the terrorists resided before the attack, homegrown or not, families are grieving for their loved ones now. [Hallelujah! She finally made a rational statement.] 

Me: I think we've finally found the answer to why Nidal went nuts--imagine him being surrounded 24/7 by mostly white conservative Christians who probably associated him with 9/11 merely b/c of his religious choice. Congratulations, Kim--you may have helped us figure out why all this happened. 

Her: Any religion that promotes blowing oneself up or denying women rights is nuts. The Fort Hood shooter had sympathy for suicide bombers. What a coward. Interesting that you have sympathy for this guy... 

Me: Again, thanks to you bringing up non sequiturs like 9/11 and suicide bombings, we can finally understand that Nidal may have been surrounded by mostly white Christians who blamed him for 9/11 because of his religious choice. We also know Nidal's car was vandalized in an act of anti-Muslim hatred. Obviously, a hostile work environment does not excuse murder. At the same time, everyone is asking, "Why did he do this?" Unfortunately, the answer may be unsatisfying and therefore overlooked; in short, we may be dealing with another case of a hostile work environment leading to workplace violence. That hypothesis is much more rational than believing, as you apparently do, that God caused Nidal to murder numerous people. 

Her: He had Sudden Jihad Syndrome... 

[At this point in the discussion, Kim or someone else deleted all of her comments from the Atlantic's Facebook wall, so I have to start paraphrasing.] 

Me: Is it like Crazy Christian Syndrome, which tolerated lynchings, slavery, and black church bombings? You conveniently forget that many Americans once despised white Christians b/c of their willingness--similar to yours--to advance hatred against minority groups. Guess who said the following? 

"I ain't no Christian. I can't be, when I see all the colored people fighting for forced integration getting blown up. They get hit by stones and chewed by dogs, and they blow up a Negro church and don't find the killers... Followers of Allah are the sweetest people in the world...All they want to do is live in peace." 

I have no doubt that if you were in the South in the 60's, you'd be at Little Rock screaming those kids down and in Alabama cheering on Bull Connor. You've somehow inherited the kind of cultural myopia that went out of style several decades ago. Back then, though, people could blame segregation for their cultural myopia--after all, the law prevented them from interacting with people different from themselves. You, on the other hand, have no excuse for your cultural myopia and anti-Muslim beliefs. My prayers are with the families who lost their loved ones at Fort Hood. May God look over them and the 5000+ American soldiers who have died so far in the Iraq and Afghanistan wars. 

Her: [Again, I am paraphrasing this comment from recent memory.] Almost all Muslims are not terrorists, but almost all terrorists are Muslim. When an act of terrorism happens, you can be sure that a Muslim is behind it. 

Me: you have access to a list of crimes committed all over the world, broken down by religious affiliation? Or are you just pulling your "facts" based on arbitrary mass media accounts? You have made a statement that is impossible to verify, b/c no reliable evidence exists to support it. 

Let me explain why your comment lacks credence, common sense, and logic. Here are some other lovely "facts" we can agree on if we go by mass media accounts: (WARNING: heavy sarcasm to follow...) 

1. You can be sure whenever a crime is committed against a gay person in America, a white Christian is behind it. Remember Matthew Shepard? Clearly, gay people need to avoid white Christians if they want to feel safe, right? 

2. Whenever there is corporate embezzlement in America, you can be sure a Jew (Madoff) or Christian (Pendergest-Holt) is behind it. Last time I checked, no devout Muslims have committed securities fraud...well, at least that's what the television told me (note the dripping sarcasm) 

3. Whenever an American president lies to the American people, whether it's about WMDs or Watergate, we can be sure he's a white Christian. Obviously, we need to stop electing white Christians as presidents. 

I could go on for days, but just like you, I don't know if any of the above statements are actually true. They might sound true, but only a dimwit would actually believe such statements without reviewing actual statistics...which don't exist for the type of comment you made. Even if they did exist, making any broad statement based on statistics is foolish. 

Let's say, for example, we determine that mostly African-Americans are on death row for committing capital crimes. So what? It doesn't tell us anything about whether black people commit capital crimes at higher rates than the general population, because too many other factors are involved. For example, lack of adequate representation could be involved. Perhaps D.A.s prosecute black persons at higher rates than non-black persons. Perhaps juries tend to give white murderers jail sentences and black murderers the death penalty, etc. 

I could also copy your style of "reasoning" and say, "Almost all white people are not NeoNazis, but almost all NeoNazis are white. Or have you already forgotten about the Holocaust Museum shooting and the anthrax mailings?" (I hope you understand that unlike you, I am being sarcastic.) 

Even a 6th grader ought to be able to understand that broad statements, like the ones you are making, lack value. Anyone can speculate about what they see on TV. But it is shocking that an adult who has presumably graduated high school is unable to understand that mass media isn't a reliable indicator of overall and total criminal activity. To copy your "logic," I hope you understand that while white Christians like yourself aren't necessarily NeoNazis, we need to be careful about people like you because almost all NeoNazis are white Christians. Please contact the FBI and have them monitor you pursuant to the Patriot Act immediately. Thank you for your service to this country. [Again, note sarcasm.]