TWIST

Like they really care if you wish This information will only be considered in relation to program qualification determinations as described above. Rig

2008-07-13T03:29:00.000-07:00

Equal Opportunity is the Law

Texas Workforce Commission (TWC), in accordance with the law and as a recipient of Federal financial assistance, prohibits discrimination on the following bases:

against any individual in the United States, on the basis of race, color, religion, sex, national origin, age, disability, political affiliation or belief; and
against any beneficiary of programs funded under Title I of the Workforce Investment Act of 1998 (WIA), on the basis of the beneficiary's citizenship/status as a lawfully admitted immigrant authorized to work in the United States, or his/her participation in any WIA Title I-financially assisted program or activity.

Specifically, TWC prohibits such unlawful discrimination in the following areas:

deciding who will be admitted, or have access, to any WIA Title I-funded program or activity;
providing opportunities in, or treating any person with regard to, such a program or activity; or
making employment decisions in the administration of, or in connection with, such a program or activity.

What To Do If You Believe You Have Experienced Discrimination

If you think that you have been subjected to unlawful discrimination under a WIA Title I-funded program or activity, you may file a complaint within 180 days from the date of the alleged violation with either TWC's Subrecipient and Equal Opportunity Monitoring Department; or the Director of the Civil Rights Center at the Department of Labor.

Gene Crump, State Level Equal Opportunity Officer
Subrecipient and Equal Opportunity Monitoring Department
Texas Workforce Commission
101 E 15th Street , Rm. 242T
Austin, Texas 78778

Director, Civil Rights Center (CRC)
U.S. Department of Labor
200 Constitution Avenue NW, Room N-4123
Washington, DC 20210

If you file your complaint with TWC, you must wait either until TWC issues a written Notice of Final Action, or until 90 days have passed (whichever is sooner), before filing with the Civil Rights Center (see address above).

If TWC does not give you a written Notice of Final Action within 90 days of the day on which you filed your complaint, you do not have to wait for TWC to issue the Notice before filing a complaint with CRC. However, you must file your CRC complaint within 30 days of the 90-day deadline (in other words, within 120 days after the day on which you filed your complaint with the TWC).

If TWC does give you a written Notice of Final Action on your complaint, but you are dissatisfied with the decision or resolution, you may file a complaint with CRC. You must file your CRC complaint within 30 days of the date on which you received the Notice of Final Action.

Voluntary Disclosure for Specialized Services for People with Disabilities

The Americans with Disabilities Act and Texas Commission on Human Rights Act place limits on inquires regarding whether or not an individual has a disability and to the nature and extent of such a disability. Despite said inquiry limitations, various federal and state programs are specifically tailored to grant benefits and services to individuals based on their disability status, both veteran and non-veteran. Should you wish to have your eligibility for such services considered, please inform a TWC representative regarding any relevant disability information. This information will only be considered in relation to program qualification determinations as described above.

Although any of TWC's staff can assist you, the agency has staff specifically trained to serve veterans and clients with disabilities should you wish to receive these specialized services.

Auxiliary Aids and Services are available upon request to individuals with disabilities.
Equal Opportunity Employer/ Program.
Deaf, hard-of-hearing or speech impaired customers may contact Relay Texas: 1-800-735-2989 (TDD) and 1-800-735-2988 (Voice).

a "roving" wiretap follows the target, and defeats the targets attempts at breaking the surveillance by changing location or their communications....

2008-05-13T06:53:00.000-07:00

Roving wiretap
From Wikipedia, the free encyclopedia
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A roving wiretap is a wiretap specific to the United States that follows the surveillance target. For instance, if a target attempts to trying to defeat surveillance by throwing away a phone and picking up a new phone or by moving or whatever method he would use, another surveillance order would need to be applied for. However, a "roving" wiretap follows the target, and defeats the targets attempts at breaking the surveillance by changing location or their communications technology. It is allowed under amendments made to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Statute") in 1988 by the Electronic Communications Privacy Act, and was later expanded by section 604 of the Intelligence Authorization Act for Fiscal Year 1999.[1][2]

They are controversial because a roving wiretap can be done under a court order that does not name a specific telephone line or e-mail account but allows the government to tap any phone line, cell phone, or Internet account that a suspect uses. This is problematic because it conflicts with the particularity requirement of the Fourth Amendment to the United States Constitution. Innocent civilians may also be the inadvertent target of surveillance.[3]

2008-03-20T02:15:00.000-07:00

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THE ELECTRIC CHAIR AND THE CHAIN GANG:

CHOICES AND CHALLENGES FOR AMERICA'S FUTURE

Lecture presented by Stephen B. Bright, director of the Southern Center for Human Rights and J. Skelly Wright Fellow at Yale Law School, at the Notre Dame Law School on February 15, 1996, and published in Volume 71, Notre Dame Law Review, page 845 (1996).

Copyright (c) 1996 University of Notre Dame; Stephen B. Bright

The use of capital punishment in America today presents a number of fundamental moral issues about our society and our system of justice. It is fitting that we address those issues here at Notre Dame Law School, which has a well-deserved reputation for raising moral issues, for a deep commitment to justice, and for responding to human needs with compassion.

Our society and the legal professional are failing to meet the need for legal services of many of those most desperately in need of such services in cases involving the highest stake, life itself. There are, of course, urgent needs in other areas besides capital punishment. Those accused of crimes which do not carry the death penalty, the poor, people of color, homeless people, people with mental impairments, people who are HIV positive, people in prisons and jails and many others are without lawyers to represent them in cases which involve their freedom, their shelter, their survival.

Those needs will be greater when you graduate from law school than they are today. But there could be fewer jobs and less resources for those who respond. And, as you know, you will be saddled with enormous debts. This presents a challenge, but it should not deter you from responding. Indeed, my message to you is that you have no choice except to respond Ä the needs and the times demand it.

Let's examine the needs and how individuals and institutions may respond to them.

Children and the poor are going to have a tremendous need for your services. The states are increasingly passing so-called welfare reform measures and Congress and the President are about to follow suit with a measure that will "end welfare as we know it." The result of these "reforms" will be to put thousands of children on heating grates to live.

This message to "get a job or starve" comes even as America's most prosperous companies are "down-sizing" Ä laying off thousands of workers who dedicated their lives to their companies. You will be practicing law in a world in which your fellow human beings are increasingly looked upon by the corporate structure and the government as disposable, as Charles Reich eloquently describes in his book, Opposing the System.1 A person can work hard all her life and suddenly, one day, lose her job, her health insurance, her home and everything Ä not because she did anything wrong, but because the company does not need her any more. Many of those who lose their jobs in this manner have little prospect of finding employment elsewhere.

Many of those growing up in our country today have little chance of obtaining a job because we have not met the promise of providing a quality education for all of our children. Of course, a quality education is essential for a job in today's world. Silicon Valley did not appear by coincidence in California. The opportunities offered there are the sweet fruit harvested as a result of the country's best system of higher education. But now that system is being raided to pay for unnecessary prisons. California now spends more money on its prison system than on its university system.

As a result of the denial of education, opportunity and even hope for so many of our children and their parents, the choice for many by age sixteen is not the one you had Ä which college to attend, what career to pursue. It is a choice between trying to find a minimum wage job at a fast food restaurant or getting in on the material wealth of the American dream through the only business available, the selling of illegal drugs.

As was pointed out recently by Steven Duke and Richard St. John:

Those who would eviscerate welfare contend that welfare recipients need the threat of severe deprivation to motivate them to seek a job. But all the evidence proves that there are no jobs for most of the people now on welfare . . . . A recent study of fastfood workers found 14 applicants for every opening.

There is another glaring gap in the reasoning of those who want to rescind the war on poverty: They assume that the only alternative a welfare recipient has is legitimate work. This overlooks the omnipresent alternative of crime.2

But America's children can still count on their government to fulfill one promise. Both the federal and state governments are committed to spend up to $30,000 a year on every child in the United States. All that child must do to obtain this government support is to try to medicate his depression or despair with illegal drugs or commit some other crime. The state and federal governments are absolutely committed to having a maximum security prison cell for any child who commits a crime Ä especially if that child is a person of color.

Some of those accused of crimes will be entered in a lottery Ä a lottery rigged by race and poverty. Out of thousands eligible, about 250 will be condemned to be strapped down and shot, hung, gassed, electrocuted or injected with lethal drugs.

Other industrialized nations have abandoned the death penalty. Recently the Constitutional Court of South Africa unanimously found the death penalty to be cruel, unusual and degrading punishment under that country's constitution.3 But we continue to sentence people to death in the United States.

I was in a Georgia courtroom last fall defending an African American facing the death penalty for a crime committed against a white person. We were trying to persuade the judge to remove the Confederate battle flag from the courtroom Ä it is a part of the Georgia state flag. The flag was adopted in defiance of the Supreme Court's decision in Brown v. Board of Education4 that schools be integrated.5 We were also asking the court to bar the state from seeking the death penalty against my client because of racial discrimination in the infliction of the death penalty in Georgia.

As we were litigating those motions, I was struck by several thoughts. The Olympic games are coming to Georgia next year. Georgia, like South Africa, has a long history of apartheid, racial oppression and racial violence. Yet now South Africa has moved ahead, it has joined the rest of the civilized world in abandoning capital punishment. But Georgia is still flying the Confederate battle flag in its courtrooms and burning people up in its electric chair while others celebrate their deaths outside.

But the problems are not limited to Georgia. The sad fact is that, increasingly, our state and federal governments are offering the young not hope, opportunity and equality, but the threat of incarceration and execution. Last summer, President Clinton began running television advertisements proclaiming his support for the death penalty and tough sentencing laws. In 1994, he signed into law a crime bill providing for the death penalty for fifty federal crimes.

The federal death penalty was brought back in 1988. Since that time the Justice Department has approved fifty-four capital prosecutions. All but nine have been against people of color. During the Clinton administration, Attorney General Reno has approved twenty-seven capital prosecutions. Twenty were against African Americans. Yet despite this sorry record, even more capital crimes were adopted last year.

In addition to providing for more death, state and federal governments pass new measures each year to provide for more incarceration. Longer prison sentences, mandatory minimum sentences, unreasonable and inflexible sentencing guidelines and other legislation such as "three strikes and you're out" result in more people serving longer periods of time behind bars at enormous cost. The United States now imprisons more people than ever before Ä over 1.5 million in both prisons and jails Ä and has the highest incarceration rate of any country in the world.6 To keep up with the growth in prison population will require the construction of 1,725 new prison beds each week.

And legislatures are moving to make life even more unbearable for those crowded into prisons and jails. Alabama has brought back the chain gang.7 Its only purpose is degradation and humiliation of human beings for political points. A person cannot get much work done chained to another person. Alabama has also returned to the practice of having prisoners stand in the hot Alabama sun for ten hours a day breaking rocks with ten-pound sledge hammers.8 This activity serves no practical purpose Ä there is no need for the crushed rock Ä but apparently it serves political purposes.

Not long ago such barbarism would be seen as just another aberrational act by Alabama. Today, it starts a national trend. Arizona and Florida have already reinstated the chain gang and other states are contemplating it as well. And the Alabama legislature, continuing its role as the trend setter, is now considering a bill to return to caning as punishment for crime. Children even as young as thirteen are being prosecuted as adults. Not just in Alabama, where fourteen and fifteen year old children are serving sentences of life imprisonment without any possibility of parole, but all across the land.

As prisons and jails become even more overcrowded, conditions deteriorate. Yet legislation proposed in the United States Congress would restrict the ability of federal courts to provide relief for unconstitutional conditions in prisons.9 This legislation is based on irresponsible assertions by the National Association of Attorneys General and members of Congress that prisoner lawsuits are about nothing more important than soggy sandwiches or being deprived of watching football games on television or the use of electronic games.

Nothing is said about the unconscionable degradation and violence in America's prisons that was corrected only by order of federal courts in response to suits brought by prisoners. Judge Frank Johnson ordered the correction of barbaric conditions in Alabama's prisons twenty years ago. Judge Johnson found "horrendous" overcrowding with inmates sleeping on mattresses in the hallways and next to urinals; prisons were "overrun with roaches, flies, mosquitoes, and other vermin"; mentally disturbed inmates were "dispersed throughout the prison population without receiving treatment"; and robbery, rape, extortion, theft and assault were "everyday occurrences" among the general inmate population.10

Prisons in thirty-nine states and the District of Columbia have been put under some form of court supervision because of the failure of state officials to operate constitutional facilities. For example, a federal judge found that residents of the California State Prison at San Quentin were "regarded and treated as caged animals, not human beings."11 At a prison in Pendleton, Indiana, the federal court found that inmates were shackled spread- eagle to metal bed frames for up to two and a half days at a time and "frequently denied the right to use the toilet and had to lie in their own filth."12 At the Southern Center for Human Rights, our docket of suits on behalf of prisoners is not about melting ice cream, but about the most fundamental human rights of people, such as the right to safety and security, to basic medical and mental health care.

It is the threat of punishment and degradation, not the promise of hope and opportunity, that we hold out to children who have the misfortune to be born into poverty, the victims of brutal racism, those who have the misfortune to be born into dysfunctional families, those who are the victims of physical, sexual and psychological abuse, and those who have the misfortune to be born with a deficit in intellectual functioning or some other mental impairment.

One would think that if all we hold out to these children is a prison cell, the chain gang and the electric chair, at least we could provide a little process Ä fair procedure with a good lawyer Ä before we take away their lives or freedom and subject them to such suffering and degradation for the suffering and degradation they caused others. And one would think that, at the very least, we would make sure that racial prejudice, which already puts so many at such a disadvantage, would not influence the severity of their punishment. But both fair procedures and the access to courts through competent and experienced counsel are being taken away even from those with the most desperate needs of all, those facing the executioner. And the courts are completely indifferent to the prominent role that race plays in the criminal justice system.

Since 1977, Chief Justice Rehnquist has waged a relentless war on the once great Writ of Habeas Corpus, which the Supreme Court described over thirty years ago as "the common law world's 'freedom writ."'13 It gives a person the right to go into federal court and assert that he or she has been imprisoned in violation of the Constitution. It gives a life-tenure federal judge the power, where there has been a constitutional violation, not to let the defendant go free, but to require the state to provide a new and fair trial. The Supreme Court once said "there is no higher duty than to maintain it unimpaired."14

But the Supreme Court under the leadership of Justice Rehnquist Ä later Chief Justice Rehnquist Ä has placed all manner of technicalities in the way of vindication of violations of the Bill of Rights.15 And now Congress and the President are poised to finish off the Writ. The Anti-Terrorism Bill that has passed the Senate includes provisions which would limit even further the ability of federal judges to set aside an illegally obtained death sentence.16 It will impose time limits that would treat capital cases like small claims cases.

This legislation would leave enforcement of the Bill of Rights primarily to state court judges. This sounds reasonable, but it overlooks that state court judges in all but a handful of states must stand for election.17 Those judges are not independent. In high publicity, high profile cases, enforcing the law may cost them their jobs. In the present political climate, an elected judge who grants relief in a capital case signs his or her own political death warrant. It has happened in California. Three justices of the state supreme court were swept from office because of their votes in capital cases.18 It happened in Mississippi.19 It has happened in other places, but often it does not happen because judges pay more attention to the next election than to the law in making their rulings.

There was an election last year for the Texas Court of Criminal Appeals. Stephen W. Mansfield ran for a seat on the court on a three-plank platform: greater use of the death penalty, greater use of the harmless error doctrine, and fines for lawyers who file "frivolous appeals" in death penalty cases.20 Mansfield challenged an incumbent, a former prosecutor, who had served for twelve years on the court. Before the election, it was revealed that Mansfield had been a member of the Texas bar only a couple of years, that he had been fined for practicing law without a license in Florida, that he had almost no criminal law experience.21 Nevertheless, Mansfield won the election. The Texas Lawyer aptly described him after his election as an "unqualified success."22

Of course the most fundamental element of a fair process is the right to counsel. Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them. I am sure that many of you were inspired to go to law school, as I was, by Anthony Lewis' marvelous book, Gideon's Trumpet. It is the story of Clarence Earl Gideon who was convicted in Florida and then filed his own handwritten petition with the United States Supreme Court saying it just was not fair that he did not have a lawyer at his trial. This ultimately led to the case of Gideon v. Wainwright,23 which held that the poor person accused of a felony is entitled to a lawyer. Anthony Lewis observed after the decision:

It will be an enormous task to bring to life the dream of Gideon v. Wainwright Ä the dream of a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.24

Over thirty years after Gideon was decided, this dream has not been realized. There is no public defender office in many jurisdictions; in some jurisdictions, the indigent defense work is assigned to the lowest bidder.25 It was recently discovered that in Putnam County, Georgia, the local sheriff appointed lawyers to the cases of poor defendants and refused to appoint lawyers who would not agree to the plea dispositions proposed by the sheriff.26

Congress cut off all funding in the fall of 1995 for a very modest program to provide some measure of justice to those facing the death penalty Ä the post-conviction defender organizations or resource centers that had existed in twenty states. The resource centers, created in 1987, were a relatively small program for the size of the problem. All together they had about 200 lawyers to deal with the post-conviction representation of over 3,000 people condemned to death. But the young lawyers who were at the resource centers during their eight years of existence proved what a difference you can make if you tackle a problem, work hard at it, build an expertise and are committed to justice.

Some of the resource center attorneys were right out of law school. They were not paid very much by the prevailing standards of the legal profession. But after two or three years, those young lawyers had mastered the complex areas of criminal law, the sub-specialty of capital punishment law, and the procedural maze of state and federal post-conviction law. Besides building their own expertise and applying it, they recruited lawyers from firms to provide pro bono representation. Many lawyers responded to the call. And they, working with the resource center lawyers, provided the highest quality of representation.

And they made a difference. Walter McMillian, who spent six years on Alabama's death row, is a free man today because the Alabama Resource Center proved that he was innocent of the murder for which he was condemned to die.27 Lloyd Schlup is alive today because the resource center in Missouri established his innocence.28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence.29

In addition, these young lawyers, and the pro bono attorneys with whom they worked, exposed constitutional violations in other cases Ä violations such as failure to disclose exculpatory evidence, racial discrimination, and prosecutorial misconduct. These are not technicalities. These are constitutional violations that go to the very integrity and reliability of the system.

And because these lawyers and these programs made a difference, they came under attack by the National Association of Attorneys General, led by the new Attorney General of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.30 Apparently the attorneys general consider it a bad reflection on our criminal justice system that innocent people are being sentenced to death. The House and the Senate responded by cutting off all funding last fall.

Those who depend upon government funding must recognize that a reality of our times is that if they are effective in helping the poor or people of color, there is a very substantial risk that the government will take away or reduce the funding or, as with the federal Legal Services Corporation, which makes legal assistance available to the poor in civil cases, interfere with their ability to help their clients by placing restrictions on their practices. Of course, that has always been the case in many states; the only programs that received funding were the ones that were completely ineffective. But at least the federal government could be counted on for some programs and the federal courts for some measure of justice that could not be obtained in the state courts. But now there is no commitment to access to the courts or to fairness on the part of our national leadership in either party.

The result is that many who most need legal assistance are without it. Many of the 3,000 men, women and children on death rows throughout the country are without counsel. Many of the lawyers from the capital resource centers who would have provided representation have gone to other jobs in other states. This leaves two choices. One is the states can execute the condemned without providing counsel for the post-conviction stages of review. The Supreme Court has held there is no right to counsel in state post-conviction proceedings.31 The other choice is to assign a lawyer who knows nothing about post- conviction practice and pay the lawyer a token amount for providing the appearance of some process. Alabama compensates lawyers $600 for handling post-conviction representation. An attorney who devotes the necessary time will be earning less than ten cents an hour. But the fees in Alabama are better than in Georgia, Mississippi and some other states. They pay nothing.

If the states do provide counsel, we can expect to see the same quality of representation during post-conviction that we see at trial. And the quality of representation at trial in capital cases has been a disgrace to the legal profession.32 For example, judges in Houston, Texas have often appointed to defend capital and other criminal cases a lawyer who occasionally falls asleep during trial.33 When a defendant in a capital case there once complained about his lawyer sleeping, the judge responded that the Constitution guarantees the accused a lawyer, but it does not guarantee that the lawyer must be awake.34 The trial of a woman facing the death penalty in Alabama had to be suspended for a day because the lawyer appointed to defend her was too drunk to go forward.35 The judge sent him to jail for a day to dry out and then produced both the client and lawyer from jail and resumed the trial. She was sentenced to death.

Last month, I handled a post-conviction proceeding in a capital case in Georgia in which the court-appointed lawyers did not make one objection during the entire trial, which lasted only one and a half days.36 Only one motion was filed prior to trial. One of the attorneys appointed to defend the accused had never heard of two important Supreme Court decisions in Georgia capital cases, Furman v. Georgia37 and Gregg v. Georgia,38 which provide the structure for much of the Eighth Amendment law governing capital trials. Another lawyer who has handled a number of criminal and capital cases in Georgia was asked to name all of the criminal law decisions of which he was aware. He could answer only Miranda and Dred Scott.39

The Alabama Supreme Court affirmed a conviction and death sentence in a case after receiving a brief from the lawyer that was only one page long.40 The lawyer did not show up for oral argument. One might have expected the Alabama Supreme Court Ä or the courts in the other cases I have described Ä to call a halt to proceedings where the lawyering was so bad and appoint new counsel, not only to protect the rights of the accused, but also so that the court could do its job. Do these courts care at all about justice? How can a court decide a capital case based on a one-page brief and without oral argument? But the Alabama Supreme Court affirmed without ever having adequate briefing or any argument. The client was eventually executed.

Poor people do not choose their lawyers. They are assigned lawyers by state court judges, many of whom are elected and are more concerned about the next election than the Bill of Rights. We must ask, is it morally right to assign a poor person a lawyer who does not know the law, who does not care enough to investigate, who is incapable of properly handling such a serious case, and then penalize the poor person for errors made by the lawyer?

Another great moral and legal issue that courts continue to ignore is the role that racial prejudice plays in deciding who dies. Edward Horsley was executed in Alabama's electric chair on February 16, 1996. He was the eleventh African American put to death by Alabama of the fourteen that have been executed since the Supreme Court allowed resumption of capital punishment in 1976. He and his codefendant were sentenced to death by all- white juries selected in Monroeville, Alabama.

Two African American men sentenced to death by an all-white jury in Utah were executed even though jurors discovered during a lunch recess a note which contained the words "Hang the Nigger's" [sic] and a drawing of a figure hanging on a gallows.41 No court, state or federal, even had a hearing on such questions as who wrote the note, what influence it had on the jurors, and how widely it was discussed by the jurors. William Henry Hance was executed in Georgia without any court holding a hearing on the use of racial slurs by jurors who decided his fate.42 The racial disparities in the infliction of the death penalty are undeniable,43 yet courts refuse even to hold hearings on such ugly racial incidents as I have described here.

But even if our system could provide the person facing the death penalty with a fair and impartial judge, a responsible prosecutor who was beyond political influences, a capable defense lawyer, and a jury which represented a fair cross-section of the community, it would not eliminate the discrimination and unfairness in the infliction of the death penalty. No procedure employed by the court during jury selection or trial can eliminate the centuries of racial prejudice and discrimination in our history. Beyond that, the task of deciding who should live and who should die is simply too enormous for our court system. And our courts do not function best when caught up in the politics and passions of the moment, which is almost always the case when a capital trial is taking place.

I am reasonably confident that this sad situation is only going to get worse because no one in a leadership position speaks out against it. That was not always the case. Over thirty years ago, the Attorney General of the United States, Robert F. Kennedy, observed, "the poor person accused of a crime has no lobby." And he did something about it. He, the Attorney General of the United States, became a lobby for the poor person. He found responsible leaders on Capitol Hill who responded to his call. Together they brought about passage of the Criminal Justice Act to give lawyers to poor people accused of crimes in the federal courts. One opportunity that will be open to you upon graduation is to work at one of the federal defender offices all across the country now in existence thanks to the leadership of Attorney General Kennedy. Attorney General Kennedy supported the Criminal Justice Act not because he was soft on crime Ä Robert Kennedy was a tough prosecutor Ä but because he believed in fairness. It was as simple as that.

But after the election of 1994, as the state attorneys general and politicians in both parties moved to take away funding for the resource centers Ä to remove the small fig leaf of fairness that did not begin to cover the injustices and inequities in the use of the death penalty Ä not a word of protest was heard from the White House or the Department of Justice.

Those of us who remember Robert Kennedy hoped that someone might at least say: "Wait, if we are going to have the death penalty, if we are going to kill our own people Ä even our children Ä at least we must give lawyers to those accused of crimes." And not just a stable of plug horses that would not be accepted by a decent glue factory, but real lawyers who know what they are doing. It is a matter of fairness. We hoped that someone might say: "Wait, we cannot gut the great Writ of Habeas Corpus. Life and liberty are too precious. Even in this material world, life and liberty should have the protection of the federal courts." Our country could have benefitted from a lesson in fairness and due process from the President or the Attorney General or some of the leaders in Congress.

Those are some of the challenges. What can we do about them?

It can be difficult to find a public interest job Ä not as hard as some think, but it is certainly more difficult than finding a job with a law firm. As I said earlier, there are no public defender offices in many jurisdictions where those accused of crimes have the greatest need for competent legal counsel. And it is getting harder. Many of the capital resource centers have closed. The civil legal services programs are also under attack for providing too much justice. They are being cut back and restrictions placed on their work. And of course you have those law school debts.

Law schools and human rights organizations must come to the rescue. The legal profession must respond to the challenge. And you as individuals must respond to the problems I have described.

A number of law schools have responded. The University of Texas Law School now has a capital punishment clinic which provides an outstanding experience for students and desperately needed help for lawyers defending capital cases in that state. The Capital Clearinghouse at the Washington and Lee College of Law has helped improve the quality of representation in Virginia. Loan forgiveness programs are making it possible for law school graduates to take jobs which pay very little but allow them to respond to desperate needs. Yale and New York University are among the leaders in providing full loan forgiveness for students who go into public interest careers. Law students at many institutions have created public interest foundations, through which those who have well paying jobs make contributions to enable other graduates to accept public interest jobs and pay their loans.

Our program, the Southern Center for Human Rights, has benefitted tremendously in the last six years because each year we have had a Skadden Fellow, a new law graduate whose salary and benefits were paid for by the fellowship foundation of the law firm of Skadden, Arps, Slate, Meagher & Flom. Now in its seventh year, the Skadden program provides two-year fellowships for twenty-five law graduates. Thanks to that program, we have had three outstanding lawyers who would not have been with us otherwise. There are clients who are alive today who would be dead were it not for our Skadden Fellows. It is time for other firms to follow Skadden's lead.

Some people concerned about the death penalty created last year the Harry A. Blackmun Fellowship at our office. That fellowship is making it possible for us to put another recent law graduate in the field to respond to these desperate needs.

Judy Clarke, the federal public defender in Spokane, Washington, recently donated her fees for representing Susan Smith in South Carolina, $83,000, to the South Carolina Post-Conviction Defender Organization so it could establish a fellowship to provide representation for condemned inmates.44 This contribution was made by a public defender who is providing representation in the courts to poor people every day. Where is the rest of the legal profession? Lawyers have a monopoly on access to justice; they have a duty to see that it is not only available to those who can pay.

But what is also needed is the response of individuals who are willing to go where the needs are. The legal services offices that survive, the public defender offices that exist, and the various public interest law projects, like my office, are not going to offer you jobs a year before you graduate like the law firms do. The reason is we do not know if we will be cut back thirty percent or eliminated completely.

But those offices will need you at some point. Last year, two of my third-year students at Yale Law School were discouraged in January because they could not find public defender jobs. But by May they were calling for help in deciding between the three public defender offices that had made offers. Another recent graduate worked for a criminal defense lawyer in Atlanta while he waited for his bar results and an opening at a public defender office. He passed the bar and will start practicing with the public defender office in Atlanta next month.

I also urge you to explore creating your own programs, your own non-profit public interest law projects Ä not offices where lawyers get rich, but places where people get justice. But to do that, you must settle for less in material rewards than what other lawyers are receiving for their work.

It is easy to lose perspective. Remember that it is no sacrifice to receive the same income as that received by teachers, farmers, workers on the assembly line and other good, decent working men and women who raise families and contribute to their communities. To the contrary, it is a great privilege to devote one's life to things that are important and about which you care passionately.

You who will someday graduate from law school have the opportunity to become what Martin Luther King, Jr., in one of his many great sermons, called "drum majors for justice." Dr. King described the drum major for justice as one who speaks the truth Ä no matter how unwelcome it may be and no matter how uncomfortable it may make the listener Ä and as one who gives his or her life to serving others: to feeding the hungry, clothing the naked, and Ä particularly important for lawyers Ä to visiting those who are in prison, and to loving and serving humanity.45 He described his goal as a drum major for justice: "I just want to be there in love and justice and in truth and in commitment to others, so that we can make of this old world a new world."46

Follow the example of a young lawyer who graduated from Howard Law School, opened a practice in Baltimore and handled civil rights cases and became a great drum major for justice Ä Thurgood Marshall. Follow the example of a nun who ministered to the poor in the projects of New Orleans and on death row at Angola Ä Sister Helen Prejean.47

I offer my office as an example of what you can do only because it is the one I know something about and we have had some experience in surviving in hard times without much money. We have never received any government money. We must spread very thinly what little money we have to provide justice for those most in need of it. And that requires living a simple life, not letting a lot of material things clutter our existence.

We pay everyone the same, whether secretary, senior lawyer, or junior lawyer. Our annual salaries have been as low as $8,500. Now, everyone makes $23,000. You can live on this amount. I have lived on such a salary for the last thirteen years. But, of course, so have many other people in our society who work at jobs that are not nearly so interesting and fulfilling as what we do.

A law firm may pay one partner $600,000 or even more. At the Southern Center for Human Rights, that is the entire operating budget for a year for nine lawyers, three investigators, one paralegal, three administrative people and a number of law students. With that we provide representation in fifty capital cases and twenty-four cases challenging prison and jail conditions.

There are other possibilities. The new technology of today enables us to practice law from our homes with a computer, a modem, a printer, a telephone and a fax machine. It is possible to maintain very low overhead so you can charge reasonable fees for services or even barter, as William Kunstler often did with his neighbors.

Consider practicing law not in Washington, New York or the Bay Area, but in communities where there has never been a lawyer who would question the status quo, who would give African Americans the same representation as white people, who would give the poor the same representation as the rich. You can change that. Those communities are not hard to find. Get a map of any state in the Union. It will be full of them.

We live in a society where it is possible to isolate ourselves from the poverty, the racism, the injustices that affect the lives of so many people. The culture of becoming a lawyer is one in which there is almost overwhelming temptation to take the job that pays the most money to pay those debts; but then it is so easy to fall into a costly culture of BMWs, big houses, and summer homes. There is so much money available and so many good uses we can think of for it, that it is easy to give in to the twin evils of complacency and complicity.

I urge you to commit yourselves today not to do that. As Elie Wiesel said in accepting the Nobel Peace Prize, "Our lives no longer belong to us alone; they belong to all those who need us desperately."48 I have not had enough time to describe all the desperate needs, only some of what needs to be done to work toward finally realizing the promise of Clarence Earl Gideon's case.

Your time, your talents and your commitment are urgently needed. Let me give you an example of how much you are needed. Cornelius Singleton, a mentally retarded African American youth on death row in Alabama, went eight years without seeing the lawyer assigned to represent him in post-conviction proceedings. Can you imagine what it must be like to be on death row for eight years and not see a lawyer? Not to know whether you are going to be executed the next day, the next week, the next year? To have no idea what is even happening on your case? Do you see what a difference you could make if you had been Cornelius Singleton's lawyer? Just by going to see him, by counseling him, you would have provided a valuable service.

We cannot solve all the problems, but we can lend a helping hand and our professional skills to those who most need us. Like those who helped slaves escape to freedom as part of the underground railroad before the Civil War, we can help people reach safe passage, one at a time, from the injustices which threaten to destroy them.

And what a difference you can make to those individuals whom you help. Last summer, one of my clients, Tony Amadeo, who had been condemned to die by Georgia when he was only eighteen years old, but whose death sentence was set aside due to racial discrimination,49 graduated summa cum laude from Mercer University. Do not let anyone tell you that you cannot make a difference as a lawyer.

And we can bear witness to the injustices we see until we shake our fellow citizens out of the indifference which we see about us.

I leave you with the challenge issued by Justice Thurgood Marshall, six months before he died, in accepting the Liberty Bell Award in Philadelphia. Justice Marshall was frail. He was in a wheelchair. But by the end of his remarks, it was observed that "his voice was as booming as [it had been] in those magnificent times when he argued before the Supreme Court."50 Justice Marshall said:

I wish I could say that racism and prejudice are only distant memories . . . and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity. But as I look around, I see not a nation of unity but of division Ä Afro and white, indigenous and immigrant, rich and poor, educated and illiterate. . . .

Look around. Can't you see the tensions in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?

We cannot play ostrich. Democracy cannot flourish among fear. Liberty cannot bloom among hate. Justice cannot take root amid rage. We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. . . . We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and an absence of leadership. We must dissent because America can do better, because America has no choice but to do better. Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.51

That's the challenge. To continue the work which Justice Marshall so nobly advanced in his great career at the bar. Now it's your turn.

I hope to see you in the courts.

. Charles Reich, Opposing the System (1995).

. Steven B. Duke & Richard St. John, Less Welfare: More Crime, Pittsburgh Post-Gazette, Jan. 14, 1996, at B1.

. The State v. Makwanyane, Constl. Ct. of South Africa, June 6, 1995, reprinted in 16 Hum. Rts. L.J. 154 (1995).

. 347 U.S. 483 (1954) (holding that racial segregation in the public schools violates the Equal Protection Clause); see also Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (requiring that desegregation of the public schools proceed "with all deliberate speed").

. Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D. Ga. 1995) (finding that the flag was adopted "as a statement of defiance against federal desegregation mandates and an expression of anti-black feelings").

. 1,725 New Prisons Beds a Week; Biggest 1-Year Spurt in Inmate Population, Atlanta Const., Dec. 4, 1995, at 1A (reporting a Department of Justice announcement that there are 1.1 million inmates in prison and another 484,000 in jails, giving the United States an incarceration rate of 565 per 100,000, higher than even Russia, which had been the world leader).

. Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. Times, Mar. 26, 1995, at 16; Brent Staples, The Chain Gang Show, N.Y. Times Mag., Sept. 17, 1995, at 62.

. Alabama to Make Prisoners Break Rocks, N.Y. Times, July 29, 1995, at 5.

. Stop Turning Out Prisoners Act, H.R. 667, 104 Cong., 1st Sess. (1995). After some modification, the restrictions were adopted as the Prison Litigation Reform Act by the Congress as a rider to the Omnibus Rescission and Appropriations Act of 1996, Pub. L. 104-134, and signed into law by President Clinton on April 26, 1996.

. Pugh v. Locke, 406 F. Supp. 318, 322-27 (M.D. Ala. 1976), aff'd as modified, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).

. Toussaint v. McCarthy, 597 F. Supp. 1388, 1400 (N.D. Cal. 1984), aff'd in relevant part, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

. French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). These are, of course, only a few of the many examples of unconscionable constitutional violations that could be found in America's prisons before they were corrected by federal lawsuits brought on behalf of prisoners. For an excellent and sobering account of conditions in the Mississippi State Pentitentiary over the decades before federal court intervention, see David M. Oshinski, "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice (1996); see also Nils Christie, Crime Control as Industry: Toward GULAGS, Western Style? (1993) (a description of failures of the American prison system by an eminent Norwegian criminologist); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. Pa. L. Rev. 639 (1993) (describing reforms accomplished through corrections litigation).

. Smith v. Bennett, 365 U.S. 708, 712 (1961).

. Id. at 713 (quoting Bowen v. Johnson, 306 U.S. 19, 26 (1939)).

. The Court has limited the availability of the Writ to vindicate constitutional rights by adopting strict rules of procedural default, see, e.g., Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91 (1977); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989); by excluding most Fourth Amendment claims from habeas corpus review, Stone v. Powell, 428 U.S. 465 (1976); by requiring deference to fact finding by state court judges, see, e.g., Patton v. Yount, 467 U.S. 1025 (1984); Sumner v. Mata, 439 U.S. 539 (1981), after remand, 455 U.S. 591 (1982), after second remand, 464 U.S. 957 (1983); by making it more difficult for a petitioner to obtain an evidentiary hearing to prove a constitutional violation, Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992); by adopting an extremely restrictive doctrine regarding the retroactivity of constitutional law, Teague v. Lane, 489 U.S. 288 (1989); James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991); by reducing the harmless error standard for constitutional violations recognized in federal habeas review, Brecht v. Abrahamson, 507 U.S. 619 (1993); and by restricting when a constitutional violation may be raised in a second habeas petition, McCleskey v. Zant, 499 U.S. 467 (1991).

. The Antiterrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton on April 24, 1996, Pub. L. 104-132, requires deference by federal courts to decisions of state courts unless the decision is "contrary to, or involved an unreasonable application of, clearly established Federal law," id. s 104(3); establishes a statute of limitation for the filing of habeas corpus petitions, id. s 101; further restricts when a federal court may conduct an evidentiary hearing, id. 104(4); and adds new barriers to hearing a successive habeas corpus petition, id. s 105; see David Cole, Destruction of the Habeas Safety Net, Legal Times, June 19, 1995, at 30.

. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 779 n.89 (1995) (in 32 of the 38 states that have the death penalty, state court judges must stand for periodic election or retention).

. Governor George Deukmejian announced his opposition to Chief Justice Rose Bird because of her votes in capital cases and warned two other justices he would oppose them unless the death penalty was upheld. Leo C. Wolinsky, Support for Two Justices Tied to Death Penalty Votes, Governor Says, L.A. Times, Mar. 14, 1986, at 3; Steve Wiegand, Governor's Warning to 2 Justices, S.F. Chron., Mar. 14, 1986, at 1. He eventually campaigned for the removal of all three justices and the voters responded by voting all three from their positions. Frank Clifford, Voters Repudiate 3 of Court's Liberal Justices, L.A. Times, Nov. 5, 1986, pt. 1, at 1 (describing results of election and commercials in the last month of the campaign which insisted "that all three justices needed to lose if the death penalty is to be enforced").

. David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1, 15-20 (1992) (describing how Justice James Robertson was defeated by a "law and order candidate" who had the support of the Mississippi Prosecutor's Association). Robertson was the second justice to be voted off the Mississippi Supreme Court in two years for being "soft on crime." Andy Kanengler, McRae Overwhelms Justice Joel Blass, Clarion-Ledger (Jackson, Miss.), June 6, 1990, at 4A; Tammie Cessna Langford, McRae Unseats Blass, Sun Herald (Biloxi, Miss.), June 3, 1990, at A1.

. Janet Elliott & Richard Connelly, Mansfield: The Stealth Candidate; His Past Isn't What it Seems, Tex. Law., Oct. 3, 1994, at 1, 32.

. Id.; John Williams, Election '94: GOP Gains Majority in State Supreme Court, Houston Chron., Nov. 10, 1994, at A29.

. Jane Elliott, Unqualified Success: Mansfield's Mandate; Vote Makes Case for Merit Selection, Tex. Law., Nov. 14, 1994, at 1.

. 372 U.S. 335 (1963).

. Anthony Lewis, Gideon's Trumpet 205 (1964).

. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1849-55 (1994).

. Judy Bailey, Does Sheriff Run Putnam's Indigent Defense?, Fulton County Daily Rep., Nov. 10, 1995, at 1.

. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1.

. See Schlup v. Delo, 115 S. Ct. 851 (1995).

. Kyles v. Whitley, 115 S. Ct. 1555 (1995) (finding a violation of due process by the prosecution due to failure to turn over exculpatory evidence).

. Marcia Coyle, Republicans Take Aim at Death Row Lawyers, Nat'l L.J., Sept. 11, 1995, at A1, A25 (describing the effort of South Carolina's Attorney General and other members of the National Association of Attorneys General to eliminate funding for the post-conviction defender organizations even though the organizations had established the innocence of at least four men condemned to die); David Cole, Too Expensive or Too Effective? The Real Reason the GOP Wants to Cut Capital-Representation Centers, Fulton County Daily Rep., Sept. 8, 1995, at 6 (pointing out that eliminating funding for the capital representation centers would increase the cost of providing representation, but decrease the quality).

. Murray v. Giarratano, 492 U.S. 1 (1989).

. For a more comprehensive discussion of the problems of deficient representation in capital cases and the reasons for it, see Bright, supra note 25.

. Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System, Wall St. J., Sept. 7, 1994, at 1 (describing Houston lawyer Joe Frank Canon, who is known for hurrying through capital trials like "greased lightening," occasionally falls asleep, and has had 10 clients sentenced to death); Ex Parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (Maloney, J., dissenting) (noting testimony of jurors and court clerk that defense attorney slept during trial).

. John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Said, Houston Chron., Aug. 14, 1992, at A35.

. Record at 846-49, Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992), cert. denied, 113 S. Ct. 1297 (1993).

. Judy Bailey, A Poor Example of Indigent Defense, Fulton County Daily Rep., Jan. 16, 1996, at 1 (describing hearing in Fugate v. Thomas, Super. Ct. of Butts Co., Ga., No. 94-V-195 (Jan. 10-11, 1996)).

. Furman v. Georgia, 408 U.S. 238 (1972) (striking down Georgia's death penalty statute).

. Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the death penalty statue enacted by the Georgia legislature in 1973 in response to the Court's decision in Furman).

. Transcript of Hearing of Apr. 25-27, 1988, at 231, State v. Birt, Super. Ct. of Jefferson Co., Ga. No. 2360 (1988) (on file with author). The lawyer was referring to Miranda v. Arizona, 384 U.S. 436 (1966), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott was not a criminal case.

. Brief for Appellant, Ex parte Heath, 455 So. 2d 905 (Ala. 1984). The brief is set out in full in Bright, supra note 25, at 1860-61 n.154.

. See Andrews v. Shulsen, 485 U.S. 919 (1988) (Marshall, J., dissenting from denial of certiorari).

. See Hance v. Zant, 114 S. Ct. 1392 (1994) (Blackmun, J., dissenting from denial of certiorari); Bob Herbert, Mr. Hance's 'Perfect Punishment,' N.Y. Times, Mar. 27, 1994, at D17; Bob Herbert, Jury Room Injustice, N.Y. Times, Mar. 30, 1994, at A15.

. For further discussion of the influence of race on the imposition of the death penalty and the failure of legislatures and courts to deal with the problem, see Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

. Clif LeBlanc, Smith Lawyer Donates $83,000 in Fees, The State (Columbia, S.C.), Feb. 2, 1996, at B3; Andrew Blum, Defender Proffers Fees, Nat'l L.J., Apr. 15, 1996, at A7.

. Testament of Hope: The Essential Writings of Martin Luther King, Jr. 259- 67 (James M. Washington ed., 1986).

. Id. at 267.

. See Helen Prejean, C.S.J., Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993) (describing her work with death row inmates).

. Wiesel's Speech: This Honor Belongs to All the Survivors, N.Y. Times, Dec. 11, 1986, at A2.

. Amadeo v. Zant, 486 U.S. 214 (1988).

. A. Leon Higginbotham, Jr., Justice Clarence Thomas in Retrospect, 45 Hastings L.J. 1405, 1430 (1994).

. Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall 453-54 (1993).

Page

Use the force.....at the source I file the motion of discovery for disclosure and production ........

2008-02-06T01:35:00.000-08:00

Newton's laws of motion
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Newton's First and Second laws, in Latin, from the original 1687 edition of the Principia Mathematica.
Newton's First and Second laws, in Latin, from the original 1687 edition of the Principia Mathematica.

Newton's laws of motion are three physical laws which provide relationships between the forces acting on a body and the motion of the body. They were first compiled by Sir Isaac Newton in his work Philosophiae Naturalis Principia Mathematica (1687). The laws form the basis for classical mechanics and Newton himself used them to explain many results concerning the motion of physical objects. In the third volume of the text, he showed that these laws of motion, combined with his law of universal gravitation, explained Kepler's laws of planetary motion.

Briefly stated, the three laws are:

1. A physical body will remain at rest, or continue to move at a constant velocity, unless an unbalanced net force acts upon it.
2. The net force on a body is equal to its mass multiplied by its acceleration.
3. For every action there is an equal and opposite reaction.

We completely redesigned the database; we wanted the capability to modify a person’s record, not a case.

2007-12-24T04:35:00.000-08:00

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Customer Success Story Gutter Spacer
Texas Workforce Commission

The Texas Workforce Commission, a state agency that oversees workforce development programs, needed to overhaul its popular client/server application to keep up with growth in size and functionality. Using Sybase® technology, it was able to re-architect and re-implement the application, reducing both the size and frequency of client releases.

Key Benefits
Bullet Graphic Reduces size of the client by more than 75 percent
Bullet Graphic Completed transition without added development costs
Bullet Graphic Decreases number of database connections with transaction pooling

Sybase Technology
Bullet Graphic Sybase Adaptive Server® Enterprise
Bullet Graphic Sybase EAServer
Bullet Graphic Sybase PowerBuilder®

Industry
Public Sector

The Evolution of a Successful Application
The Texas Workforce Commission (TWC) is the government agency overseeing and providing workforce development services to employers and job seekers in Texas. To track benefit and retraining programs for unemployed workers and welfare recipients, TWC developed the TWIST application.

TWIST was originally developed as a two-tier client/server application with large Sybase PowerBuilder clients connecting directly to a Sybase database on the back-end. TWIST has been a successful application with a growing number of government users and nearly 2.5 million people entered in its database. However, the rules governing the services were somewhat fluid and sensitive to regulatory changes.

In many ways, TWIST became a victim of its own success. As more business rules were added to the client-side application, not only did it grow in both size and functionality, but it became increasingly sensitive to changes in the laws and procedures represented by the business rules. Eventually, the TWC was facing a situation where they had 10,000 users of a 45-megabyte client application needing a patch release every three to four weeks in addition to major quarterly releases. This frequent synchronization of 10,000 clients was bogging down the FTP site used to deliver the releases.

The short cycle of patch releases was sapping productivity; frustrated users were often running back versions of the software or spending far too much time getting the latest TWIST client to their desktop.

Sybase PowerBuilder to Sybase EAServer: A Natural Extension
To fix the client-side release issues while retaining TWIST’s core usability, TWC developed a multi-phase plan to move from a client/server version to a three-tier architecture built around an application server. TWC liked the Sybase PowerBuilder development environment and had a large library of existing Sybase PowerBuilder code. Their programming staff was comfortable and productive in Sybase PowerBuilder. Retooling their programming skills would have a negative effect on their ability to continue adding functionality to the system. Ideally, the selected application server would be able to leverage this existing investment in Sybase PowerBuilder talent and code.

After evaluating several application servers, TWC ultimately selected Sybase EAServer. Not only was Sybase EAServer a world-class application server capable of handling their current and future server needs, but Sybase EAServer had the additional, unique advantage of natively running Sybase PowerBuilder code.

Using Sybase EAServer to Thin the Client
Once the team got up to speed on Sybase EAServer, Sybase PowerBuilder non-visual objects (NVO) and three-tier architecture, they were ready to make some fundamental changes to the application, both in the database design and in the location of the business rules.

“TWIST was originally based on a case approach where caseworkers focused on state programs and everybody worked independently,” said Chris Bohne, a lead contractor at TWC, who worked on TWIST. “TWC decided they wanted to become more customer-centric, where a caseworker can view an entire customer’s history by just looking at the customer record. We completely redesigned the database; we wanted the capability to modify a person’s record, not a case.

Bohne added, “The original system was designed around old state employment programs which no longer existed. Over the years, new state programs were squeezed in by modifying the database a little bit here and there. For the newest release, we made the decision to align the database architecture with today’s business model. We also took all the business rules that were on the client, moved them into non-visual objects, and did everything we could to thin out the client.”

By moving the rules from the Sybase PowerBuilder client to Sybase EAServer, the team was able to trim the size of the client by more than 75 percent; from 45MB to 10MB. The reduction in the client size would dramatically lighten the load on the FTP site as new releases were downloaded. Even more importantly, the need to continually update the client with patch releases diminished because the business rules moved from the client to Sybase EAServer.

Injecting New Life Into a Successful Application
By employing Sybase EAServer, the TWIST application was able to make the transition from its original client/server architecture to a three-tier architecture with a redesigned database. Without incurring the expenses of retooling the development staff or purchasing entirely new development environments, the transition was accomplished through augmenting the programmers’ skill set and the existing code base. This approach revitalized a highly successful application by creating a new architecture that invites new users and easily supports additional functionality.

“We have been pleasantly surprised with the performance of EAServer on AIX,” Bohne said. “We throw more users on the boxes and EAServer handles it well. We don’t see a significant increase in the load as we add more users.”

“We have been pleasantly surprised with the performance of EAServer on AIX. We throw more users on the boxes and EAServer handles it well. We don’t see a significant increase in the load as we add more users.”

Chris Bohne, contractor, Texas Workforce Commission

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We know the cost of non-peaceful dispute resolution.

2007-05-17T01:30:00.000-07:00

A management consultant firm serving the insurance industry has labeled "misleading" the U.S. Chamber of Commerce's national cable ads' use of its study in claiming "lawsuit abuse is forcing your family to pay $3500 more each year for everyday goods and services".

Lead author Russ Sutter explained that his study, which looked at plaintiffs' tort recoveries, defense costs and administrative claim cost, never distinguished between legitimate and other claims. He concluded that the Chamber ad-makers are "misleading in how they characterize it." The study looked only at the so called costs, and made no distinction between viable, legitimate, worthy claims and not.

The benefit of our judicial system, and access to courts for legitimate wrongs causing harm to individuals and business, far outweigh the Chamber's flawed claim of $261 billion, or $880/person. (The Chamber also miscalculated "average household" to be approximately 4 people. Average household is 2.6, and average family household is 3.18).

Our system, including trial by jury and right of appeal, providing employment to many great civil servants, allows the peaceful resolution of disputes. The system saves lives and money. It is the solid backup and makes possible the systems of arbitration and mediation which are called "alternate dispute resolution". It is used by businesses for massive corporate disputes and by individuals who have been wronged. The tort system is responsible, for example, for saving lives and reducing injuries in product safety. No one disputes that cars now are better able to withstand crashes because of the accountability in the system.

The current pattern of threatening our judicial system, our judges, and lawyers represents a threat to all who believe in democracy and three branches of government.

We know the cost of non-peaceful dispute resolution. A country which cannot peacefully resolve its disputes will descend into chaos, unable to protect its borders or provide for the needs of its citizens. These conditions are the Bush Administration criteria for terrorism seeding and growth. After 500 billion U.S. dollars, it is the system we've created in Iraq.

Consider the Chamber ad-makers and promoters who misrepresent the cost of "lawsuit abuse" as anarchists, intent on destroying the American civil justice system so they can run amok, with no accountability.

BAR

Source: FactCheck.org 5-11-07

Barbara Ann Radnofsky
email: katie.floyd@radnofsky.com
phone: 713-858-9391
web: http://www.radnofsky.com

“any person who willfully violates any provision of this chapter . . . .” The SEC has jurisdiction to enforce this provision.

2007-05-13T03:46:00.000-07:00

day, May 13, 2007

A Tickler of Events to Come: Ben Blanco, Mike Westergren, Carlos Garcia, Chris Adler, Jose Rivera, Ed Cohn....
“any person who willfully violates any provision of this chapter . . . .” The SEC has jurisdiction to enforce this provision....
Sunday, May 13, 2007
Section 3(b) provides:

Sarbanes-Oxley Criminal Whistleblower Provisions and the Workplace: More Than Just Securities Fraud
by Jay P. Lechner and Paul M. Sisco

Page 85

The Sarbanes-Oxley Act (SOX) was enacted in 2002 to restore investor confidence in the nation’s financial markets in the wake of the Enron scandal.1 Its whistleblower provisions, both civil and criminal, were specifically designed “to prevent recurrences of the Enron debacle and similar threats to the nation’s financial markets” by protecting whistleblowers who report fraudulent activity which could damage innocent investors.2 In light of these goals, one might reasonably assume that a whistleblowing employee must assert at least some degree of fraud affecting shareholders before SOX’s protections are implicated.3 However, as the following two scenarios demonstrate, both SOX’s criminal and civil whistleblower provisions can be interpreted as extending far beyond their intended scope.

EEO Participation Clause Retaliation Claims — Potential Criminal Sanctions and Civil RICO Liability
Assume an employee at a small, privately-owned company files an EEOC complaint alleging her supervisor discriminated against her because of race. In response, the supervisor and her coworkers engage in a pattern of harassment until the employee finally complains to the owner. The owner promptly fires the harassers and resolves the problem to the employee’s satisfaction. Because the company has less than 15 employees and promptly corrects any harassing behavior, liability arising from the harassment is unlikely under Title VII. In addition, because the company is not publicly traded and no fraud against shareholders is alleged, one might assume that SOX’s whistleblower provisions would not be implicated. However, that is not necessarily the case.
• SOX Criminal Whistleblower Provision — SOX contains both civil and criminal whistleblower provisions. The criminal provision, §1107, provides:

Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any [f]ederal offense, shall be fined under this title or imprisoned not more than 10 years, or both.

Criminal sanctions include, for individuals, fines up to $250,000 and/or imprisonment of up to 10 years and, for organizations, fines up to $500,000.4 The Attorney General has expressed that the DOJ will “play a critical role” in implementing the criminal provisions of SOX, including §1107.5
Section 1107’s real value as a substantive prosecutorial tool may be questionable, however. It is arguably merely an extension of the already existing obstruction of justice charges currently available under 18 U.S.C §1510 (obstruction of criminal investigations) and 18 U.S.C. §1512 (tampering with witnesses, victims, or informants). What it does do, however, from a sentencing perspective is increase the penalty for such offenses from a maximum of five years in many cases to a maximum of 10 years.
The specific inclusion of §1107 within SOX certainly reflects Congressional intent to aggressively ferret out criminal malfeasance in the post-Enron corporate environment. As recent prosecutions such as United States v. Scrushy, 366 F. Supp. 2d 1134 (N.D. Ala. 2005), may suggest, however, Congress’ zeal to get tough in the corporate sentencing arena often has the unintended result of creating more trials and less guilty pleas.
Additionally, §1107 does have a number of potentially significant ramifications, none of which have yet been addressed by the courts. First, §1107 applies not only to publicly-traded companies, but to any “person.” Because the term “persons” generally includes individuals, corporations, and other organizations, §1107 covers both employers and employees. Therefore, employees who in the past were not subject to individual liability under other federal retaliation statutes now could face enormous fines and jail time for their workplace misconduct. Moreover, employers are covered regardless of corporate status or number of employees. Thus, companies too small to be covered under Title VII or other antiretaliation statutes are covered under §1107. Finally, because there is nothing limiting the criminal provision to the employment relationship, third parties, regardless of their agency relationship with the employer, may be liable for participating in prohibited retaliatory conduct.
Second, §1107 may criminalize retaliatory conduct in seemingly unrelated contexts which, in the past, may have given rise only to civil liability. Protected activity under §1107 is not limited to complaints of fraud or securities violations, but covers truthful disclosures to any “law enforcement officer” relating to commission or potential commission of any federal offense. This provision could reasonably be interpreted as protecting complaints to the EEOC under federal employment discrimination statutes such as Title VII, ADA or ADEA, or to the DOL under the various statutes within its jurisdiction. Whether such an interpretation is adopted by the courts hinges largely on the meaning of the term “federal offense,” which is not defined anywhere in SOX or the federal criminal code. Although the term is usually used in reference to criminal violations, the courts have used the term in both civil and criminal contexts.6 Moreover, it appears that an act committed in violation of a federal statute will still be considered an “offense” even if the statute of limitations on the offense has run.7
Third, if the term “federal offense” is interpreted as including violations of federal civil statutes, a complaint to the EEOC, DOL, or other employment-related agency would likely be covered under §1107, because “law enforcement officer” is defined broadly as including any federal officer or employee “authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense.”8 Surely, federal agencies such as the EEOC or DOL have the authority to investigate and supervise the prevention of violations of the statutes within their purview. In what appears to be the first case to date addressing this provision, hospital employees contended they suffered retaliation in violation of §1107 for having informed their employer/hospital’s governance board of ethnic remarks made by hospital administration and staff concerning another employee. The court noted that §1107 “simply cannot be read to reach the reporting of ethnic remarks to a local hospital’s governance board.”9 The court did not comment, however, on whether such reports would be covered if they were made to the EEOC or even if such a private cause of action would be viable under §1107.
Finally, the conduct prohibited by §1107 is extremely broad, covering any action “harmful” to any person, including “interference with the lawful employment or livelihood” of any person. An actual violation is not required, as a disclosure is protected as long as it is “truthful” and relates to the “possible commission” of any federal offense. Unfortunately, Congress did not define the terms “harmful” or “interference,” leaving it to the courts to decide their meaning. However, these concepts are certainly at least as expansive as the hostile work environment concept applied under other discrimination/retaliation statutes. Indeed, nothing limits §1107 to retaliation that causes economic harm or even to retaliation that occurs during or within the scope of the employment relationship. Thus, harassment occurring outside of the workplace could give rise to criminal sanctions even if it is not covered by Title VII. Furthermore, one can readily think of any number of workplace-related actions that may not rise to the level of “severe or pervasive” harassment or otherwise constitute an adverse employment action, but would be “harmful” to a person or would “interfere” with one’s employment or livelihood within the meaning of §1107.
As a result, companies, supervisors, and coworkers who engage in participation clause-type retaliatory harassment, even if not subject to civil liability under Title VII, could be subject to felony criminal sanctions, including jail time.
• Civil RICO — In addition to criminal sanctions, the above harassment scenario could give rise to a cause of action under the civil RICO statute, with the availability of treble damages. This is so because §1107 amends 18 U.S.C. §1513(e), and under RICO, “racketeering” includes “any act which is indictable under . . . 18 U.S.C. §1513.”10 Therefore, by engaging in a pattern of retaliation prohibited by §1107 (e.g., by creating a hostile work environment) and/or commission of other predicate offenses under RICO (e.g., mail, wire, or securities fraud), an employee or company commits a predicate act of racketeering under RICO.
Of course, to state a civil RICO cause of action, one must allege more than just the occurrence of racketeering, but also “1) conduct 2) of an enterprise 3) through a pattern 4) of racketeering activity.”11 One must also allege an injury in fact arising from the conduct constituting the violation. In other words, the injury must be proximately caused by the predicate acts sufficiently related to constitute a pattern.12 A civil RICO action may proceed even if the defendant has not been convicted of a predicate act or of a RICO violation.13
Prior to the enactment of §1107, retaliatory discharge did not fall within the definition of “racketeering” and, therefore, generally could not give rise to a RICO action.14 Even if a plaintiff did allege that her employer committed a predicate act under RICO, the injury suffered from the retaliatory action would have been caused by the adverse employment decision and not the result of a predicate act under RICO.15 Some courts recognized a limited pre-SOX exception to this rule in the rare case where the adverse employment action was proximately caused by racketeering activity, such as retaliation by commission of the predicate offenses of witness tampering or obstruction of justice.16 Section 1107, by identifying retaliatory discharge as a predicate act, gives whistleblower victims legitimate grounds to allege civil RICO claims against their employers or coworkers beyond the very limited circumstances involving witness tampering or obstruction of justice.
Of course, a plaintiff must also prove the other civil RICO elements, such as existence of an enterprise and a pattern of racketeering. The Supreme Court has described an “enterprise” as “an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct.”17 Returning to the above scenario, one could reasonably argue that a group of coworkers who engage in long-term or ongoing harassment against a complaining employee act with a “common purpose” and could have sufficient organization and continuity to constitute an enterprise under RICO. Additionally, a “pattern of racketeering” requires at least two acts of racketeering activity and must manifest “continuity” and “relatedness.”18 Ongoing harassment egregious enough to give rise to a hostile work environment would arguably manifest “continuity” and “relatedness” and would almost always involve at least two acts in violation of §1107 sufficient to constitute a “pattern of racketeering.”

FLSA Collective Actions or Discrimination Class Actions — Potential SOX Civil Liability and Criminal Sanctions
Assume an HR employee of a publicly traded company reports to her supervisor that, due to a company-wide policy of not paying employees for their 10-minute breaks, employees are regularly underpaid in violation of the FLSA. In retaliation, the supervisor fires the employee. Despite a seeming lack of connection to fraud against shareholders, this action could give rise to civil and criminal SOX liability.
• SOX Civil Whistleblower Provision — Under §806 of SOX, publicly traded companies may not “discharge, demote, suspend, threaten, harass or in any other manner discriminate against an employee in the terms and conditions of employment” because of any protected whistleblowing activity.19 To constitute protected activity:

(1) The action must involve a purported violation of a federal law relating to securities fraud, bank fraud, wire fraud, or violation of “any rule or regulation of the Securities and Exchange Commission, or any provision of [f]ederal law relating to fraud against shareholders”;
(2) The employee’s belief about the purported violation must be objectively reasonable; and
(3) The employee must communicate his concern to either a person with supervisory authority over the employee (or other person working for the employer who has the authority to investigate, discover, or terminate misconduct), the federal government or a congressional member.

In the above scenario, the employee’s complaint regarding pay shortages, although protected under the FLSA, would not appear at first glance to constitute protected activity under SOX because it does not implicate a violation of a federal law relating to fraud or violation of an SEC rule or regulation, or any “provision of [f]ederal law relating to fraud against shareholders.”
Yet, one administrative law judge has written that “complaints of systemic violations of FLSA might reach the necessary magnitude to effectively perpetrate a fraud on shareholders,” and, therefore, may fall within the purview of §806.20 The judge noted that §302 of SOX, which requires corporate officer certification that a financial disclosure is accurate and does not contain any untrue statement of material fact, is “a provision of [f]ederal law relating to fraud against shareholders.” Conceivably, company-wide systemic under compensation of a company’s employees could rise to the level of materiality such that it could “impermissibly alter the accuracy of its financial disclosures mandated by SOX.”21 Accordingly, an employee’s complaints that such systemic violations are occurring and are not being accurately reported in the company’s financial disclosures could constitute protected activity under SOX.
Two administrative law judges have recently addressed similar concerns arising out of complaints of racial discrimination. One judge has suggested that “[p]erhaps, the failure to disclose a class action lawsuit based on systemic racial discrimination with the potential to sufficiently affect the financial condition of a corporation might become the subject of a SOX protected activity if an individual complained about the failure to disclose that situation.”22 Another judge has noted that a disclosure of company-wide discrimination could form the basis of a SOX whistleblower claim if the potential liability rises to a sufficient level of materiality, explaining, “[h]ad [a discrimination law]suit actually been filed, and if [the company] had prevented that information from reaching its shareholders, and if the [c]omplainant learned of this omission and if he had reported it, then he would have engaged in protected activity under the [a]ct.”23 Thus, publicly traded employers must be aware that complaints regarding systemic discrimination or FLSA violations sufficient to give rise to class or collective actions may now, in certain circumstances, give rise to SOX liability.
• SOX §3(b) Criminal Provision — Because there was no complaint to a “law enforcement officer,” it does not appear that the above scenario regarding a complaint of pay shortages would give rise to criminal sanctions under §1107. However, beyond §§806 and 1107, another section of SOX can be interpreted as expanding criminal liability for any retaliatory action prohibited by §806, including the above collective action scenario, regardless of whether the retaliation was related to the disclosure of truthful information to a law enforcement officer.
Section 3(b) provides:

a violation by any person of th[e Sarbanes-Oxley] Act . . . shall be treated for all purposes in the same manner as a violation of the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) . . . and any such person shall be subject to the same penalties, and to the same extent, as for a violation of that [a]ct or such rules or regulations.

In turn, the penalty provisions of the Exchange Act, 15 U.S.C. §78ff, provide for fines up to $1,000,000 and 10 years in jail for “any person who willfully violates any provision of this chapter . . . .” The SEC has jurisdiction to enforce this provision.
Interpreted broadly, §3(b) would create potential criminal liability for any act that gives rise to civil liability under §806’s civil whistleblower provisions. On November 9, 2004, Senators Grassley and Leahy sent a letter to SEC Chair William Donaldson advising him that they want “aggressive enforcement to deter retaliation against corporate whistleblowers,” and asking, “[w]hat is your position on whether or not a violation of the §806 whistleblower prohibitions can generate criminal liability under Section 3(d) [sic] of the [a]ct?” In February 2005, Donaldson responded to the effect that, while §3(b) is a useful provision allowing the SEC to enforce new laws enacted under SOX, the SEC has been guided by the principle that its resources can be applied most effectively to combat substantive violations of the securities laws, thereby leaving it to the DOL to investigate and prosecute potential §806 whistleblower violations.24
Regardless of whether the SEC interprets §3(b) as criminalizing whistleblower retaliation prohibited by §806, it is important to note that all §806 complaints are brought to the attention of the SEC and, therefore, may give rise to prosecution for substantive violations of the securities laws. In his response to Senators Grassley and Leahy, Donaldson noted that OSHA regulations require the DOL to notify the SEC of §806 complaints. The SEC and DOL have established a system under which such referrals are sent directly to the Division of Enforcement, and the DOL and SEC are considering the need for preparing a memorandum of understanding to further facilitate coordination.

Conclusion
One well-publicized example of how a whistleblower claim can give rise to both civil RICO claims as well as federal investigations by the DOJ and SEC is the case of Whitley v. Coca-Cola Co., No. 03-CV-1504 (N.D. Ga., dismissed Oct. 9, 2003). In Whitley, a former manager asserted civil RICO and retaliation (but not SOX) claims arising from his termination, which he alleged occurred in retaliation for his reporting that Coke manipulated market tests relating to Frozen Coke. Defendant argued in a motion to dismiss that, under Beck v. Prupis, 529 U.S. 494 (2000), retaliatory discharge was not an act of “racketeering.” The civil case quickly settled but the allegations led to investigations by both the SEC and the DOJ. According to a company press release, on April 18, 2005, the company settled with the SEC, and the DOJ decided to close its investigation.25 Now, in light of the potentially sweeping scope of SOX’s criminal and civil whistleblower protections, employers should be aware that civil liability, treble damages under RICO, federal investigation, and criminal sanctions for workplace retaliation could become more common place, even in situations where the whistleblowing activity does not appear to fall within SOX’s intended scope.

1 See 148 Cong. Rec. S1786 (daily ed. March 12, 2002) (statement of Senator Leahy).
2 See S. Rep. No. 107-146, 107th Cong., 2d Sess. 19 (2002); 148 Cong. Rec. S7420 (daily ed. July 26, 2002) (statement of Senator Leahy).
3 See, e.g., Minkina v. Affiliated Physician’s Group, 2005-SOX-19 (A.L.J. Feb. 22, 2005) (SOX “was enacted to address the specific problem of fraud in the realm of publicly traded companies and not the resolution of air quality issues, even if there is a possibility that poor air quality might ultimately result in financial loss”).
4 See 18 U.S.C. §3571.
5 See Attorney General Memorandum on Implementation of the Sarbanes-Oxley Act of 2002 (Aug. 1, 2002) (“it is vital that all components of the Department of Justice …work together to ensure that we take full advantage of the provisions of this new law to enhance our prosecution of significant financial crimes”).
6 See, e.g., Cole v. United States Dept. of Agric., 133 F.3d 803 (11th Cir. 1998) (referring to “criminal and civil offenses”); Thornton v. United States Dept. of Agriculture, 715 F.2d 1508, 1512 (11th Cir. 1983) (referring to “[b]oth criminal and civil offenses”).
7 See United States v. Keller, 808 F.2d 34 (8th Cir. 1986).
8 18 U.S.C. §1515(a)(4).
9 MacArthur v. San Juan County, 2005 U.S. Dist. LEXIS 25235 (D. Utah June 13, 2005).
10 18 U.S.C. §1961.
11 See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985).
12 Id.
13 Id.
14 See Beck v. Prupis, 529 U.S. 494 (2000).
15 See Miranda v. Ponce Fed. Bank, 948 F.2d 41, 47 (1st Cir. 1991).
16 See, e.g., Dooley v. United Techs. Corp., 1992 U.S. Dist. LEXIS 8653 (D.D.C. June 17, 1992).
17 United States v. Turkette, 452 U.S. 576, 583 (1981).
18 Sedima, 473 U.S. at 496 n.14.
19 18 U.S.C. §1514A(a).
20 Harvey v. Safeway, Inc., 2004-SOX-21 (A.L.J. Feb. 11, 2005).
21 Id.
22 Harvey v. Home Depot, Inc., 2004-SOX-20 (A.L.J. May 28, 2004).
23 Smith v. Hewlett Packard, 2005-SOX-88 (A.L.J. Jan. 19, 2006).
24 See James Hamilton, SEC Responds to Senate Letter on Whistleblower Provisions, 2005-32 SEC Today Online (CCH) (Feb. 17, 2005).
25See News Release: The Coca-Cola Company Comments on SEC Settlement (Apr. 18, 2005), available at www2.coca-cola.com/presscenter/nr_20050418_corporate_sec_settlement.html; see also SEC Press Release: The Coca-Cola Company Settles Antifraud and Periodic Reporting Charges Relating to Its Failure to Disclose Japanese Gallon Pushing (Apr. 18, 2005).

Jay P. Lechner, a graduate of the University of Florida School of Law, is an associate with Zinober & McCrea, P.A., in Tampa, where he represents employers in labor and employment matters.
Paul M. Sisco is a board certified criminal trial lawyer at Jung & Sisco in Tampa focusing primarily on white collar criminal defense.

This column is submitted on behalf of the Labor and Employment Law Section, Frank D. Kitchen, chair, and Frank E. Brown, editor.

[Updated: 07-01-2005 ]

Labels: DelMar College, DOJ, SEC, SOX, Whistleblower

Labels: DMC, EEOCi, Mike Westergren, Teresa Cox, whistleblower

posted by dannoynted1 at 3:17 AM 0 comments links to this post

called a "war". One reason for this was that there never was a real honest to God military objective of this war. There never has been in Vietnam that

2007-04-16T11:06:00.000-07:00

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Chapter 22

Camelot: From the Bay of Pigs to Dallas, Texas

DURING THE AFTERNOON, SNOW BEGAN TO FALL. It had that windblown, leaden look of a major storm. Those who could, slipped out of their offices early to beat the traffic. Few cities in the world suffer more in snowstorms than Washington. The view from the big windows in the office of the Secretary of Defense, out over the Tidal Basin and the Potomac, was wintry and beautiful. A heavy curtain was falling on the end of an era. Men who had been in Washington since the days of Franklin D. Roosevelt were planning to leave, or at least to retire from the daily commitment to government.

In 1960 Washington had become a rather shabby city. The massive government buildings stood stark and cold. The many parks and monuments had been neglected by the aged tenants, who had grown too accustomed to their appearance. No one noticed any longer how drab the whole city had become. They never remembered it any other way. It was evident everywhere that this was the end of an era. An era of depression and recovery; of major war, victory and hopeful peace; of the atom bomb and of worldwide, instant communications. An era of great depths and an era that had the promise of great heights. But all of its leaders were now old and spiritless. Their great moment, those years of preparation for the ultimate summit conference and for the crusade for peace, had come to a shattering end. Now, in the shambles of that dream, that weary generation was turning over the mantle of government, the greatest government the world has ever known, to a young man who was barely a youngster when they had first come to Washington. And as many of the old stalwarts gathered in the office of the Secretary of Defense to say their farewells to him and to the world of great power they knew so well, they looked for the last time out over the Potomac into the sweeping and deepening snow as the night, and history, closed over them.

As if to presage the change that was taking place beneath the surface of the glittering events, the streets of Washington had been plowed, shoveled, and swept clear of all snow for the inaugural parade, not by the municipal equipment other cities would have used, but by the U.S. Army and its heavy equipment. The Kennedy Administration owed its very inaugural festivities to the might of the U.S. Army, to its stealthy appearance by night into the streets of the city -- a United States city. And this was part of the new era, too. Subtle changes, which had been under way, began to burst forth into the open with the inauguration.

From the first, changes were visible. The Kennedy team had been together through a tough and long battle. Their operational procedures were honed and ready. There was a Kennedy way and there was the other way. They changed Washington a lot with the Kennedy way. Eisenhower had been precise in his administrative practices. He had made great use of the National Security Council and of the implementing support of the Operations Coordinating Board. His decisions were the product of open and free discussion in the NSC chambers; and then having been made, those decisions were followed up by the OCB to assure their proper accomplishment within the Government. But Kennedy saw no real need for the NSC method. In the beginning he did not recognize and understand its usefulness and significance. When he wanted something done, he called upon one of his close friends, even upon one of his relatives, and after a brief discussion, they would go out and do what he had directed. This system can work in an operation such as the campaign had been, where the campaign team is the whole organization. However, in any organization as large and as immobile as the ponderous U.S. Government, this system is quite ineffective and leaves much undone and uncontrolled. It tends to leave tens of thousands of lesser bureaucrats on their own and to their own devices. It encourages the stagnation of the bureaucrat, and the catastrophe of the irresponsible in action.

Almost immediately following the inauguration, the ST saw that the door was wide open. With practically no NSC meetings, and therefore no Council to effectively control the CIA, there was no application of those crucial parts of the National Security Act of 1947 that require the NSC to direct the Agency. Without such direction and control, the CIA was practically free to act on its own.

Few men in the new Government had any idea of what was being put into shape for the Cuban invasion. Those who did knew only bits and pieces of the whole plan. These men were not accustomed to the double-talk and undercover language and actions of the Agency. They heard briefings, but they did not know what they really meant. On the other hand, a large number of the new Kennedy team were old CIA hands. They did know exactly what was going on, and they used their special knowledge and experience to further isolate those who did not.

There is a peculiar and dangerous characteristic that derives from the continuing application of secrecy. In an open government such as this country has been accustomed to having, it is only natural to believe that if a man is a fire-fighter, then his job has to do with putting out fires; and if he is a soldier, then his job is being prepared for war. In a simpler sense, Government workers are trained to expect that if the men in the next office are working on the Military Aid Program for Pakistan, then those men are doing that work. Customarily, if they meet those occupants of that next-door office in the snack bar or at the dining hall, they might be expected to ask them how things are going on in "Pakistan".

Now if the men who are supposed to be working on the Pakistan aid program are not working on that program at all, but are actually working on a special support program for the border police of India, and the Pakistan aid program is simply a cover story, then whatever they tell their office neighbors is part of their cover story too. In other words, it is false -- more plainly, a lie. However, they justify that lie as being permissible, in fact necessary, because they have been told that the "border police project" is highly classified and that they cannot tell anyone about it. So if you are on a classified project, it is all right, in fact it is essential, for you to lie. So you lie, the other man lies, everyone lies. But it is all supposed to be for the good of the cause.

Over a period of time this can develop many strange situations too involved to mention here; but one or two examples may be useful. In the Pentagon there are many offices established to do one thing. They really do not do that thing at all, but something entirely different. As a result, there are hundreds and even thousands of men who either cannot say what they are doing; or if they are forced to say something, they must lie. The polite thing is to say that they are "following their cover story".

This can lead to further complications. Even within the cover Story scheme there will be factions. Some men may be working on a certain project with a cover story, and others may be working on exactly the same project under another cover story; and neither group will know about the other. Later, when the Secretary or some other high official wants to be briefed, he may meet with one group and not the other -- simply because the first group did not know of the other's existence. And he will not hear the whole story; he will hear only the first group's version of the activity. So it is not that the new Kennedy team was not properly briefed about anti-Castro activities as it was a matter of the inability of any one briefing officer to give all the facts at one time. There may have been no way to have rounded up all the facts and present them; so much of what was going on was decentralized. In spite of this, each briefing officer may have thought that he knew all the facts and that he was telling the whole truth, as happened when Tracy Barnes was sent to give Adlai Stevenson his briefing at the United Nations.

Other complications crept in. Under the cover of the Bay of Pigs operation, much bigger moves were being made. All over the world the MAP training program was picking up volume and momentum. Thousands of foreigners from all forty countries converged upon the United States for training and indoctrination. The new curriculum was either the one at Fort Bragg or like it. The Army interest in political-social-economic programs, under the general concept of "nation building", was gaining momentum. For every class of foreigners who were trained and indoctrinated with these ideas, there were American instructors and American soldiers who were being brainwashed by the very fact that they were being trained to teach this new doctrine. These instructors did not know otherwise. To them this new nonmilitary political, social, and economic theme was the true doctrine of the U.S. Army. A whole generation of the American Army has grown up with this and now believes, to one degree or another, that the natural role of an army lies in this political field. Also they believe that an army mixes some medical and educational ingredients into this nation building. They believe the army is the chosen instrument in nation building, whether the subject be political -- social, economic or military. In many cases, due to the great emphasis the CIA placed on training the police forces of certain foreign countries, a large number of American servicemen who were used for such training became active in what was really police work and not the scope of regular military work.

It was the CIA, with help from a few other agencies, that put together the Inter-American Police Academy during the early Kennedy years, which played such an important part in emphasizing national police power in the nations of Latin America. The CIA brought in police instructors from all over the United States and from the military for this school. The success of this school, operating covertly from an Army base in the Canal of Panama, led to other schools in the United States that have carried on this type of work for police forces in this country. Part of the impetus behind the great buildup in the strength of police force all over the country dates back to this CIA police academy work and to the other schools it spawned. This police work not only involved training but it integrated new weapons, new procedures, and new techniques into American police work, some of which has been good and much of which has been quite ominous.

Anyone who doubts that this nation building and police activity has not become real and very effective right here in the United States need only visit the area around Fort Bragg to find one of these early paramilitary CIA-oriented specialists, General Tolson, sending his American soldiers out into the countryside with nation-building programs for the citizens of the United States. If such tactics continue, it is possible that an enlargement of such a program could lead to a pacification program of areas of the United States, such as the CIA and the U.S. Army have carried out in Indochina.

At the same time this training program was under way, larger and larger civic action teams and other benevolently named organizations spread throughout the world. MAAG units were no longer small logistics and training organizations. They had grown to large size and were frequently and almost augmented by large units on temporary duty in the host country. This Army accounting device of "temporary duty" is always interesting because of the way the Army uses it. The Army may tell an unwitting Congressman or reporter that there are 50 men in the MAAG of a given country, although there may be many more men there. The Army will justify this lie about the total number by claiming that the extra men, sometimes many more than the regular staff, are there on temporary duty. And of course there may even be 100 or 150 more men there, but since they are on the CIA cover payroll, the Army won't report them either even though they are there on Army cover. In that case there will be another justifiable lie to protect the existence of the CIA.

All of this is a game. The secrecy can't mean a thing to the host country, they know exactly how many men are there and it makes no difference to them whether they are Army, Army temporary duty, or Army cover. By the same token, the Soviet embassy, and all other embassies, will know exactly how many Army men are there. And to them, the fine distinction makes no difference. The only people these devices fool are American. American reporters, American Congressmen, American government specialists, and of course the American public. There was almost no way in which anyone in the United States Government could unravel the whole clandestine business. But at least a beginning was made as a result of a most unexpected series of events and as a result of some very shrewd and clever work by Bobby Kennedy and his closest associates.

What had grown quietly, secretly, and almost totally unobserved within the infrastructure of the U.S. Government was by 1961 so large that it was time to bring it to life and give it some reason for existence. While Jack Kennedy and Bobby Kennedy were seriously pondering what had gone wrong with the Bay of Pigs operation, this new doctrine and new organization was emerging. It remained necessary, then, for the Kennedys to find the master key to all of this activity. It took the Bay of Pigs Board of Inquiry to perform this feat. The day-by-day litany of the Board was designed to indoctrinate Bobby Kennedy and to win him over to this new doctrine of counterinsurgency, flexible response, civic action, nation building, and the rest -- and through him, to win over the President. While the Board was meeting day after day in the back room in the Pentagon, something more important than the fate of the Bay of Pigs was being discussed and elaborated upon. As witness after witness filed through the Board's chambers Bobby Kennedy sat there saying absolutely nothing, just soaking up the hearings and searching for cracks in the story. At the same time, Allen Dulles and Maxwell Taylor paraded a hand-picked group of disciples into the room for interviews and questioning. These men were selected to preach the doctrine of the new covert intervention. Their interviews were designed to train, indoctrinate, and to use an overworked term, even to brainwash Bobby Kennedy. What he heard each day was the Maxwell Taylor new-military-plan-for-flexible-response theme, blended with the White House Committee report material, and topped off by Allen Dulles's own theme of secret operations. This was a most heady mixture, and it was effective. Some of the men who were called to talk about the tactics of the Bay of Pigs had not been connected with it at all, but were Special Forces men from the Army Staff or directly from Fort Bragg. Bobby Kennedy emerged from the incessant catechism of the "truths" ready to soak up the doctrine of counterinsurgency. This was to be the new watchword. The Kennedy Administration became hooked on counterinsurgency, and the indoctrination occurred to a good measure right there in the Board of Inquiry process.

Thus the inner Kennedy clan came out of the Bay of Pigs disaster with two strong convictions. Closely held and deeply felt was the conviction that the CIA had somehow done them in and that they had better be extremely wary of anything it did in the future. This was a very deep feeling and only seldom revealed in any official actions. In fact, Jack Kennedy developed a cover story of his own by giving the appearance as much as possible in public that he could go along with the CIA, when private actions and discussions tended to support otherwise.

The second conviction was that the world was being divided sharply into two strong camps in the battle between the "world of choice" and the "world of coercion". It was President Kennedy who said to Chairman Krushchev, "The great revolution in the history of man, past, present and future, is the revolution of those determined to be free." The Dulles contribution to this philosophy was the reiteration of the Krushchev challenge to support all wars of national liberation; and the Maxwell Taylor contribution was the simple reflex of the counterpuncher, the plan of flexible response. Defined in terms of the infantryman, this meant counterinsurgency.

One of the better definitions of counterinsurgency as practiced in the Kennedy era was that written by a general who worked for the Secretary of Defense: " . . . the technique of using, in appropriate combination, all elements of National Power in support of a friendly government which is in danger of being overthrown by an active Communist campaign designed to organize, mobilize and direct discontented elements of the local population against the government." Although counterinsurgency has been generally regarded as a military activity, careful analysis will reveal that it is really more a civilian-controlled action in the paramilitary area of operation. This is a most important consideration as we observe the country moving from the "Roosevelt-Eisenhower" era into the "Kennedy-Johnson" era, which includes the Vietnam episode. Note also how the definition of counterinsurgency, above, written by an Army General closely allied with the CIA and with the authors of the President's Committee report, almost precisely paraphrases sections of that report. In other words, the actions of this Government, which were called counterinsurgency, were not very different from the actions that were attributed to the Communists and called subversive insurgency. As a matter of fact, they seemed to be identical.

This may seem to be a fine point, but it is the key to much that has happened since then and particularly in Vietnam. Note that the same material written by the spokesman for the Office of the Secretary of Defense continues as follows: "A successful counterinsurgency strategy requires, therefore, the integration of all U.S. Government activities in the country concerned, under the central leadership of the Ambassador or [if the local situation had deteriorated to the point where U.S. Armed Forces are actively involved] the military area commander. In the final analysis, the defeat of a Communist-led insurgency hinges largely on the effectiveness of the Country Team. This depends in great measure upon the willing cooperation of the government departments and agencies in Washington."

When one realizes that this was written by a man who was for years the executive assistant to the Deputy Secretary of Defense and in his own right an acknowledged leader in the new Army doctrine, he begins to see that this is another part of the pattern that was changing this country's entire traditional idea of military action. We have a new doctrine at the Special Forces school, we have worldwide MAP training in the political-social-economic spheres, we have the new creed dramatically spelled out by the President's Committee report and then, to tie this all together, we have the definition of counterinsurgency. We find the official version of counterinsurgency is not to be confused with the more or less public idea of counterinsurgency, which assumes that it is a form of anti-guerrilla fighting against Communist-inspired rebels. The official doctrine of counterinsurgency states clearly that it is carried out "under the central leadership of the ambassador". This means that counterinsurgency is intended to be civilian directed, even though it appears to be a military program, and that the senior man is to be the ambassador. He is placed in charge, not actually to be the country-team commander in chief, but to make it possible for him to delegate his authority to the CIA station chief rather than to some senior military officer.

This has shaped the total efforts of the United States in Vietnam for the past decade and more. All of U.S. history prior to the past decade, more or less followed the general principles of warfare which state that in time of peace the Army trains for war, and during this time the affairs of the nations are carried out by diplomats. When diplomacy fails, then the military men take over and accomplish by military means what the politicians had been unable to accomplish. It has always been clear that when war was the only remaining means of accomplishing national objectives, the ambassador and his staff would leave the scene and the generals would take over. Now here was the highest echelon of military power in the United States stating publicly the new doctrine of the Kennedy era to the effect that counterinsurgency (a form of war) would be "under the central leadership of the ambassador".

Why would a ranking U.S. Army general on a special assignment to the White House define the new training program for mutual security, and another ranking U.S. Army general on assignment to the Office of the Secretary of Defense define the new method of warfare designed to counter the Communist support of "wars of national liberation", and both in terms of civilian direction of the military operations of U.S. forces? To anyone trained in the profession of arms, this is heretical. The answer is simple, although it has lain buried under the long years of the horrible disaster in Vietnam. Both of these men were closely affiliated with and had served with the CIA, and both were the type of men who make up the ST. Even though they wear the uniform of the U.S. Army, their primary allegiance has been with the STICIA new method of operations in peacetime. They saw that the time had come for the ST to make its big move and for it to sweep out beyond the DOD and the CIA to form a massive paramilitary international power under para-civilian leadership and a monstrous cloak of security. Their words were so simple and so Boy-Scout sounding; yet they have changed the entire world during the past decade.

They went on to say, "The United States therefore has made the decision to enter the lists early, to throw its national power into the counterinsurgency campaign on the side of our allies, the local authorities. The problem of counterinsurgency now is receiving the personal attention of the President and his senior advisors. A major effort is being made throughout the government, and particularly within the DOD to develop sound doctrine for the conduct of this unorthodox form of warfare. The JCS, for example, have recently established within the Joint Staff a special staff section dealing exclusively with the problem of counterinsurgency. . . counterinsurgency is not susceptible to a purely military solution. . . it requires the closest possible coordination of political, economic, psychological, and military actions." By the end of 1962 this nation had gone so far down the line following the Agency, the new Special Forces doctrine, the MAP, and the new U.S. philosophy as outlined in the President's Committee report, that it was saying openly it was well on its way to carrying out as top national policy a major clandestine operation so big in fact that the entire government would be involved. Obviously, it could not be really clandestine in the sense that it would be kept secret from our enemies; on the contrary, it was a new kind of "clandestine", so it would be kept secret from all Americans.

When such men stated that the war would be waged under civilian leadership, and then named the ambassador as the commanding and senior officer, they simply were carrying out their usual cover-story double-talk. Any such counterinsurgency would be initiated and directed by the CIA. Of course the generals involved would be real generals; but they would be working inside of and for the CIA -- or in some cases not exactly inside of the CIA, but certainly under its direction. Has it ever been properly explained why this country has retained an ambassador in Saigon since the first one was selected by the CIA to go to that new piece of real estate, a new nation called South Vietnam, back in 1954? Why should the longest war in which this country has ever been involved, and the second costliest and second most destructive, have been waged through all these futile years under the direction of an ambassador? Is it because of the above doctrine? Is it because we entered this conflict to support what were, at first, minor CIA operations? Then when these actions grew and grew, there never was a time when the "war" transitioned from the clandestine operators to the military operators. During all of these years the ambassador has remained as a sort of minor commander in chief, one step down from the Commander-in-chief role of the President. And this has been done so that he could serve as a referee between the CIA and the military, the end result being that neither one of them has been really in complete control since 1964, when the first Marines arrived in Vietnam. Before that, the CIA was in control of operations, while the military played a logistics role and perfunctorily acted the part of a military organization.

At that time, 1963-1964, the ambassador could have been withdrawn in favor of the military commander as the escalation went into effect. Then the CIA chief should have been relegated to the Fourth Force role he should have in a wartime situation. As late as the end of 1963, every U.S. Army combat soldier in Vietnam (excepting a few assigned to such offices as the legitimate MAAG section -- as differentiated from the oversized cover MAAG section) was under the operational control and direction of the CIA. It was only after the beginning of real escalation that the Army soldiers under Army generals began to take over certain roles and missions and areas in Vietnam. They never did take over full responsibility for what was called a "war". One reason for this was that there never was a real honest to God military objective of this war. There never has been in Vietnam that objective, which when achieved by military force, would have spelled victory. There never has been that battle which, if won, would assure victory. Of course, the counterinsurgency supporters have said, "That's the nature of this type of warfare. You can't beat insurgents that way." That is nonsense. When a nation is ready to demand from its people fifty-five thousand lives and more than $200 billion of its wealth as a contribution to some foreign action, it should at least have an objective that can be achieved in a tangible manner so that one can tell when it has been reached or when such attainment is beyond reach. What has happened in Vietnam is that the CIA got in over its head, and the Army was sent in to attempt to bring some order out of the chaos that existed there after the assassination of President Diem. Only then, when the Marines and the Army arrived, were troops serving under the actual command and direction of their generals.

One of the real reasons the Army got in there in the first place was because when the Marines came in they refused to take the field under the CIA. By that time, General Krulak, formerly the Special Assistant for Counterinsurgency and Special Activities on the Joint Staff, and then commanding general of Fleet Marine Forces, Pacific, knew too much about the CIA and its activities to permit his Marines to hit the beaches of Indochina under any command other than Marine and the U.S. Military Command, Vietnam.

Kennedy undoubtedly saw the beginnings of this serious problem after the Bay of Pigs investigation. At that time he wrote two very powerful National Security Action Memoranda, NSAM 55 and NSAM 57. Both were issued from the White House in June 1961. NSAM 55 was a brief memorandum of greatest significance, which was addressed directly to the Chairman of the JCS and was signed personally by the President. In essence it said that Jack Kennedy would hold the chairman (Lemnitzer) responsible for all action of a military nature during peacetime in the same manner as he would hold him responsible for such action in time of war. In other words, the President was saying that he wanted any and all peacetime operations (military type-clandestine, covert, paramilitary, etc.) to be under the control, or at least under the close scrutiny, of the chairman of the Joint Chiefs. One way to interpret this in light of the then current events would be, "No more Bay of Pigs." This was a powerful memorandum, which set forth Kennedy's views without equivocation. It was in fact more positive as an action against the non-addressees than it was for the addressee, the JCS.

General Lemnitzer, a fine soldier of the old and traditional school and one of the best administrators to serve after World War II, did not take advantage of this memo. He knew exactly what it meant, and he did not intend to abuse it. The best way he knew to have no more Bay of Pigs disasters was to have no more Bay of Pigs. He noted the memo, had the Joint Chiefs of Staff "Red Stripe" (formally approve it), then filed it for future use, if needed. As far as that old soldier was concerned, that memo meant there would be no more clandestine military operations in peacetime and that such things as Indonesia, Laos, Tibet, and the Bay of Pigs were a thing of the past.

I was the officer responsible for briefing this paper to General Lemnitzer and to the other Chiefs of Staff, and that NSAM rested in my files. There need be no misunderstanding about what the memo meant, what the President meant, what Lemnitzer understood and did, and what the other Chiefs of Staff understood.

This was an unusual memorandum because Kennedy sent it directly to the chairman and sent information copies only to McNamara, Rusk, and Allen Dulles. It should also be noted that Robert McNamara, Dean Rusk, and Allen Dulles knew that NSAM well and understood its full meaning and intent; and they knew exactly what President Kennedy meant by it. In other words, President Kennedy by the explicit publication of this brief memo was letting the entire top echelon superstructure above the ST, wherever it existed, know that from that time on there were to be no more such ill-conceived, inadequately planned, and inherently dangerous clandestine operations. If this directive had been followed explicitly and if Kennedy had lived to assure that it was followed as he intended it to be, there is a very good chance that United States involvement in Indochina would never have been escalated beyond the military-adviser level. He had learned his grim lesson at the Bay of Pigs, and as his directive made clear, he was not going to become involved in that type of operation again. If evidence of this is needed, consider how he handled the missile crisis in Cuba a year later. Once he had been convinced of the gravity of the situation, he directed the mobilization of sufficient troops overtly, and challenged the Cubans and the Soviets to comply with his demands. He respected the proper employment of military power and had seen how undercover military power fails.

The second memorandum, NSAM 57, though issued at the same time, was signed, as most NSAMs were, by a member of the NSC staff for the President. Coming as it did paired with NSAM 55 there could have been no misunderstanding that it carried the same thrust as NSAM 55, and that it fully expressed the views of President Kennedy. This memorandum was much longer, and it gave much more detail.[1]

Following the policy of the National Security Act of 1947 and of such other directives as NSCID 10/2 and later NSCID 5412/2, it recognized that there might be requirements for clandestine activity from time to time. Then it went further than those earlier directives and became much more explicit. It said that any small and truly covert type of operation "may be assigned" to the CIA and that any which were larger would be the subject of special study and planning and then "may be assigned" to the military, that part of the military which would be sufficient only to carry out that one operation on a one time basis. It directed that large covert operations would not be assigned to the CIA.

This attempt at clarification provided the opportunity for the CIA and its fellow travelers with a chance to blow up the balloon. They counterattacked with a long and drawn out argument about what was a "small" operation and what was a "large" one. They then proceeded to argue about what happens if the Agency goes into some country with a small operation, and then it expands. At what point will the CIA operation be transitioned from the CIA control to the military solely on the basis of size, since it might be assumed that it might or might not have remained covert. The CIA argued that if it remained covert, regardless of size, no such transition of direction could take place. The whole point of the CIA argument was to invalidate the President's controlling mechanism, which depended upon a scale of size.

This started some very long and heated arguments, and as often happens, since the real career military such as Lemnitzer had very little interest in this subject anyhow, the well drilled opposition made quite a bit of headway. After all the dust had settled, it began to appear that except for NSAM 55 which Lemnitzer had let remain in the file (his being of the it-can't-happen-here school), Kennedy's directive had been turned into an encouragement to the CIA to go out and start small fires and count on the military to bail them out. This may seem an odd conclusion -- almost funny -- but it is exactly how we got into Vietnam in spite of the directives from the White House. The ST is perfectly capable of turning a No into a Yes by its gift of irrepressible argument.

I have quoted the ranking U.S. Army officer who worked in the office of the Secretary of Defense, with reference to his definition of the term "counterinsurgency". Now I shall add a few lines written almost exactly one year after the NSAM 57 arguments about how big and when to transition to the military, and which take on a special meaning in this relationship. In this one critical year here is exactly how the fight came out: "A successful counterinsurgency strategy requires, therefore, the integration of all U.S. Government activities in the country concerned, under the central leadership of the ambassador . . . or, if the local situation had deteriorated to the point where the U.S. armed forces are actively involved, the military area commander." In this special sense, read "deteriorated" to mean "expanded beyond the ability or desire of the CIA to continue to be involved". This is exactly what was happening in Laos at about this same time. The CIA had become overextended, and things were going very badly. The CIA wrote a letter to the Secretary of Defense, asking relief or suggesting the abandonment of the Meo tribesmen whom they had been supporting.

Recall how the trouble in Vietnam started. The CIA had been involved in a great number of brush fire operations there for a number of years in one way or another since the OSS days of 1945. These raged out of control, becoming a general conflagration by the end of 1963. At that time there were more than sixteen thousand American military personnel there, more or less in the ostensible role of advisory personnel; but all of these were under the actual direction of the country team, which meant that they were under the operational direction of the CIA. (Some parties may wish to deny this in an attempt to maintain the fiction of those earlier days; but the early general officers who were serving in Vietnam at that time were either serving with the CIA under the cloak of CIA or were closely affiliated with the CIA, such as the Special Forces. One more bit of operational evidence is offered by the combat intelligence available in those days. There was none of the real military kind. What was there was a form of CIA village network intelligence, which on most counts was dependent upon the native population. Even as late as the attacks on the villages in the My Lai complex, it was the Agency intelligence functionary who told the military to attack.)

On the "when to transition" concept it will be noted that even ten years later and after the escalation of military manpower had reached the staggering figure of 550,000 men -- to say nothing of gross amounts of civilian manpower -- the central leadership was never transitioned to the military as President Kennedy's NSAM 57 had ordered. If anyone ever wanted an example of how far the ST can turn things around, this is one of the best. In June 1961 the President stated one thing categorically; by 1962 the Army's spokesman (actually in Army uniform; but a CIA/ST spokesman) had totally turned this around in his counterinsurgency doctrine and definition. Then, after President Kennedy died, the ST retained control of most of the Vietnam war from its earliest birth pangs to the peak of escalation. Even to this day the combat phase of the Vietnamese war, which is called "pacification" and which in fiscal year l972 cost more than $1 billion, is totally under the direction and control of the CIA.

The key to all of this, the matter that made it so easy for the ST to wrest control of this major peacetime "covert" operation, even from the hands of the President and Commander in Chief, lay in the words of the Army general quoted above: "The JCS have recently established within the Joint Staff a special staff section dealing exclusively with the problem of counterinsurgency." This was a carefully designed move, and it emerged from a formative series of events. Almost from the time of the creation of the CIA, the Secretary of Defense had maintained on his immediate staff an Assistant to the Secretary for Special Operations. Among other things, this man was charged with the responsibility for liaison with the CIA, NSA, Department of State, and the White House. His area of interest was almost totally within the field of clandestine operations, although he was interested in routine intelligence matters and other related functions. For the five or six years prior to the Kennedy inauguration, this office was filled by an extremely able and wise figure, a retired four-star Marine general, Graves B. Erskine. He had served in that capacity longer than any man had ever served in the office of the Secretary of Defense at such a level of responsibility. His tenure had covered service under Charles Wilson, Neil McElroy, Thomas Gates, and for a brief period, Robert McNamara. As he was utilized by the secretaries prior to McNamara, he kept a close eye on all CIA operational activity that involved the military in any way, and whenever in his judgment things were going too far he would inform the Secretary, and in most instances the CIA would be asked to drop its request for military support, which generally was tantamount to halting the project. Erskine's role was one of considerable quiet power; yet he used it sparingly. Then shortly after U.S. Air Force Colonel Edward G. Lansdale came back from Saigon, where he had been working for the CIA ever since the establishment of the Diem regime and immediately before that had been in Manila during the selection and establishment of the Magsaysay regime, he was assigned to General Erskine's office at the specific request of Allen Dulles. Along with a number of other CIA agent cover "plants" in the Office of the Secretary of Defense, Lansdale provided a strong counterfoil to his boss, General Erskine, within the military departments, where he was known, except to a few, only as an Air Force officer on the Secretary of Defense staff. (By 1961 the CIA, partly as a function of the vast U-2 project, was widely and deeply entrenched in the DOD.)

When McNamara became Secretary, he was advised that he really would not need an Assistant for Special Operations. He abolished that office. Then many of the old office staff were dispersed, especially in one sudden move the day after the failure of the Bay of Pigs operation. Those who were left moved to a new location in a new office, which was then headed by General (recently promoted) Lansdale. During this period, I had been assigned to the Erskine staff and was performing a rather special function, which I had been doing for about five years before in the Pentagon, but in a different staff location. Shortly after the new Lansdale office had been established I was asked by General Earle Wheeler, then the director of the Joint State, if that function would not be better applied if it were moved from OSD to the Joint Staff, so that it might he applied uniformly for all the services and for the many major military commands overseas. He discussed this further with McNamara. In a most unusual administrative maneuver, required because of the stringent limitations of the size of the Joint Staff, my office was transferred from OSD to the Joint Staff, along with the necessary manpower spaces and authorization to staff the office with representatives of all services and administrative support. This small staff was joined later by another highly classified group, which performed a somewhat related function. Then, as a progression of this first move, the Joint Staff created an office called the Special Assistant for Counterinsurgency and Special Activities (SACSA). This new office was much larger than the original office that had moved down from OSD, and it brought with it a large staff of CIA oriented personnel from all services. It had several temporary special assistants, among them General Hemtges and General Craig, before it acquired its greatest and most dynamic driving force, U.S. Marine General Victor H. Krulak.

The important thing to understand is that the much-heralded office of SACSA had very few military responsibilities. It was almost entirely CIA oriented. Most of its dealings with the services were in areas in which the CIA was most active. For example, the great proportion of its dealing with the Army was strictly limited to Special Forces activity. With the Air Force it was for the most part limited to Special Air Warfare activity, and with the Navy it was active in the Sea, Air, Land (SEAL) teams. There were other duties of course; but most of them gave the office something it could say it was doing while it performed its primary task of supporting the CIA, the ST, and of breathing life unto the massive Frankenstein called counterinsurgency.

SACSA played another very important role in the highest level policy discussions of this country. It has been said that Kennedy wanted to get out of Vietnam in 1963 but deferred it "until after his re-election", as he told Senator Mike Mansfield, because such a move would stir up a "McCarthy (Joe) wave of sentiment" and would lose him the support of the JCS.

The JCS Kennedy knew best was the voice of SACSA. The one officer he saw from the Joint Staff more than any other during those crucial days was General Krulak. (See how often Krulak's name appears in the Pentagon Papers, and then see if the name of General Dean ever appears. Technically, General Dean should have been the action man -- he was the operations director of the Joint Staff -- but General Dean was not the CIA/ST man.) This was because Allen Dulles and Maxwell Taylor (at that time the military advisor to the President) opened the door for Krulak, since Krulak's job was to "support the CIA". General Krulak's closest advisors were such men as Bill Bundy, a long-time career CIA man on McNamara's staff at that time; General Lansdale, and other key CIA agents and high officials, whose names will be omitted because some of them are still active. (Some of these highly placed officials were so deeply covered that it is possible that no one in OSD, including Krulak, knew that years ago they had been planted by the CIA. Thus, when he worked frequently with a man in the Department of Research and Engineering, from whom he had been told he could get some assistance, it is quite possible he never knew the man he saw was from Dulles's office.)

Later, when Maxwell Taylor had become the chairman of the JCS, the only JCS John Kennedy knew was even more CIA biased, since Maxwell Taylor himself was by that time more oriented toward the ST than the military, and Krulak was closer than ever to the President.

Thus it was not the real military that Kennedy would have offended if he had withdrawn from Vietnam in 1963. It was the chameleon STICIA military who made him think they would have objected, and who made him think that they represented the military. In this special sense the creation of SACSA and the appointment of Maxwell Taylor as Chairman of the JCS were most influential events. It is no wonder ST writers have made so much of the great importance to them and to the CIA, of SACSA. A careful reader of the Pentagon Papers will see how well documented all of this is, especially if he observes how many "JCS" papers were actually not bona fide JCS papers but were in reality SACSA/STICIA papers, attributed only to the JCS.

As important to the ST as SACSA was, of equal importance was the return to the government and especially to the Pentagon of Maxwell Taylor. After the Bay of Pigs, it was inevitable that Allen Dulles would leave the CIA. His chief lieutenant, Dick Bissell of U-2 fame and of Laos and Bay of Pigs infamy, left the Agency to become the head of the Institute of Defense Analysis, an organization with many interesting functions -- among them acting as a conduit for CIA activities. Dulles again showed that uncanny ability of his and of the Agency's to rise above each fiasco on to new heights. During the Bay of Pigs inquiry he ingratiated Maxwell Taylor to the Kennedys so firmly that Jack Kennedy assigned General Taylor to the position of Military Adviser to the President. This was a good cover assignment for General Taylor. For those who thought he might be interfering with the duties and prerogatives of the chairman of the JCS, this assignment caused a few raised eyebrows. Dulles and Maxwell Taylor were content to let those rumors and fantasies spread because they did much to help transfer some of the blame for the Bay of Pigs from the CIA to the military. However, everyone else in the need-to-know clan knew that Maxwell Taylor was in the White House to be the President's liaison man with the CIA. The President may not have known how closely Maxwell Taylor's aspirations and those of Allen Dulles matched each other. During the last days of the Dulles era, Maxwell Taylor served as the Focal Point man between Dulles and his Agency and the White House.

This was a perfect role of Maxwell Taylor. He had quit the Army in a dispute with the Eisenhower Administration and now he was in an ideal position to encourage with all support and haste the urgent development of the new flexible response army, attuned to the trumpet of Taylor's own choosing -- counterinsurgency. All the pieces were coming together, and during this formative period a new special group was formed. This was the Special Group (of the NSC), Counterinsurgency, better known as the Special Group CI, or CI. This group presided over the CIA, State and Defense Departments, and others, who hastily put together a host of counterinsurgency nations. It was a watch list, which varied from time to time as intelligence inputs rose and fell with the tides of international events. The Special Group CI list usually ran to about sixteen or seventeen countries, in the order of how deep they were along the path to insurgency and decay. It is worth noting that although the automatic target of CI was Communism, not a single "Communist" country, including Cuba, was on the list. It was characteristic of the new ST focus that the United States was to intervene in the affairs of its friends and not in the affairs of Russia's friends or of China's friends.

This game as it was then played in Washington was a most serious business. As countries were added to the list their military aid programs were hastily escalated, and literally hundreds and sometimes thousands of American military personnel of all types descended upon them. Sometimes they arrived in uniform and sometimes in civilian disguise. They went to work immediately in support of the new political-social-economic doctrine, and before long new schools were being built -- by the army; new hospitals were being built -- by the army; new farming techniques were under way -- by the army; irrigation and water purification projects were under way, -- again by the army. Underlying all of the paramilitary and sometimes real military work was the CIA, working with the host government to weed out, to identify, and to categorize all of the subversive insurgents. In countries where the word Communism had never been applied to bandits, beggars, and rebels before, all of a sudden all opposition was given the name "Communist". All the problems were attributed to Communists, and the counterinsurgency action was under way.

These rather amateurish activities were met with all kinds of receptions in the various host countries. Some were cool to this love-your-army doctrine. Some were stunned. It was pretty bitter medicine for many countries, where hatred and fear of the army had been traditional, to find the Americans coming in with a program designed to make the army into local heroes according to the Magsaysay formula of a Robin Hood game. But what were they -- the Colombians, Congolese, Laotians, Jordanians -- able to say in the face of American "goodwill" and concern? It did a lot of good for the "do-gooders" of counterinsurgency action in the U.S. Government, and if nothing else it served to quickly coalesce the ST. The next move, as SACSA and the Agency consolidated their power and influence in the White House and in the DOD, was to propose the "logical" move of General Taylor to the Pentagon to become chairman of the JCS. As soon as this was accomplished, the Army actively threw itself into the Special Forces mold and set out to win back its position of number one on the defense team.

Thus, all of these pressures and behind-the-scenes efforts piled up before Vietnam, and came to a head in Vietnam. As we have said before, the logistics equipment in huge amounts from Indonesia, Tibet, Laos, the Bay of Pigs, and many other operations all began to accumulate in Vietnam along with the ST personnel, who saw an opportunity to accomplish, almost with abandon, all of the things that they had failed to do or had been unable to do before.

While this was going on quietly and quite subtly before his eyes, President Kennedy did a lot of talking with many old hands about "what has gone wrong with the Bay of Pigs" and "what is the meaning of Vietnam". As has been ably reported by many good writers, President Kennedy was forming his own opinion of what was going on, and the evidence is that he was quite close to the facts and to a real evaluation of what was happening. One of Kennedy's closest friends, Kenny O'Donnell, reports that General MacArthur had "stunned" the President in 1961, after the Bay of Pigs, with his warnings about the folly of trying to match Asian manpower and about the absurdity of the domino theory "in a nuclear age." O'Donnell further reports, "The General implored the President to avoid a U.S. military buildup in Vietnam, or any other part of the Asian mainland. . . ." And Mary McGrory, a reporter, has said, in words more truthful and important than she knew, "President Kennedy, who at the time was caught up in the counterinsurgency mania which had swept the New Frontier, was subsequently startled by the passionate objections of Mansfield. But he told Mansfield privately, after a White House leadership meeting, that he agreed with him "on a need for a complete withdrawal from Vietnam, but I can't do it until 1965 after I get re-elected".

Kennedy had the misfortune, which he was overcoming rapidly, of being young and inexperienced in the inner ways of government, such as those employed by the ST. He could not have realized that Maxwell Taylor, for example, by the time he had returned to the Pentagon as chairman of the JCS, was actually more of a Judas goat, as far as the military was concerned, than the leader of the herd, as he had been when he left three years before. Few great armies have been so vastly demoralized and stricken by an integral campaign as has the U.S. Army since those dark days of 1964 and 1965, when Maxwell Taylor and his ST counterparts led them into Vietnam under the banner of counterinsurgency.

Vietnam is not a simple thing. There were many new forces at play there. It had always galled the Navy and the intelligence community the way General MacArthur had dominated the Pacific during World War II and then later in Korea; and in so doing, he had gained the complete upper hand over all of his adversaries in the U.S. military, especially over "Wild Bill" Donovan of the old OSS. They were violently jealous of him. Admiral Radford, who had been Commander in Chief, Pacific Forces, objected strenuously to any decision that would make Southeast Asia an Army theater of action as MacArthur had made the Korean action an Army show. Radford supported the CIA and Lansdale when they moved into Saigon from Manila. For other reasons the Navy and the CIA had the full support of Cardinal Spellman, since he strongly urged the installation of a Catholic in the President's office in Saigon, and Ngo Dinh Diem and his family were pillars of the Catholic Church in Indochina.

Businesses that had been all but knocked out of the defense contract arena by the end of the Eisenhower regime -- some by the sudden and abrupt swing to ballistic missiles and space during the late fifties -- saw new light at the end of the tunnel in the resurgence of the foot-soldier army and the ground warfare this new dogma presaged. They could expect to go back to making World War II type munitions again and dumping them on the shores of Asia. Perhaps the strongest support for the Vietnamese war has always come from the national defense industries, which benefited tremendously by this windfall. The helicopter industry, which was on the ropes in 1958-59, became a major supplier of war material for Vietnam. At the beginning of the war in Vietnam the Air Force had very few aircraft that could carry a respectable tonnage of bombs -- not because the planes could not carry the load, but because they had all been designed to carry nuclear weapons. As the war became a bombing war -- what McNamara called the "sophisticated war of the North -- all of these huge bombers had to be refitted to carry bombs, and the huge munitions industry put back to work manufacturing bombs. There were many periods in the early days of the bombing when the Air Force actually ran out of bombs while the industry was getting out its old tooling and delivering World War II weapons again.

This war halfway around the world was a major bonanza for the transportation industry and especially for the air transportation groups. During peak years, the DOD was spending three quarters of a billion dollars on charter airlift for Vietnam alone.

In the services, military personnel who saw forced retirement facing them during the sixties were looking at the inevitable retirement as majors, lieutenant colonels, and colonels, until a whole new vista opened with the new plan and its return to a ground war of massive troop strength. Men who had lingered in the grade of lieutenant colonel got their colonel's eagles and some of them leap-frogged by way of the Green Berets and CIA recommendation to become brigadier general, major general, and even lieutenant general. There were so many diverse interests, which all came together in the springtide of Vietnam and grew and grew from under a cloak of classification and secrecy. It would be interesting to discover how men like Lansdale, Peers, Dupuy, Stilwell, Tolson, Rosson, and so many others had served with the CIA and also made rapid promotions to the grade of brigadier general and higher as a result of the CIA, Special Forces, and Vietnam. The list is long, and mostly comprised of the men who are listed in the Pentagon Papers, including of course a great number of civilians in the same category.

Few people realized how some of these operations got started, and how important some of these seemingly small things were in the escalation of Vietnam. The Agency brought a squadron of helicopters down from Laos, and immediately these complicated machines needed a great number of skilled men to support them; then these vast agglomerations of men and machines created their own requirements for additional men to protect them and to feed, house, and support them. The first helicopters came in under the wraps of secrecy. No one seemed to know how they got there; but once they were there the great logistics tail that was essential to keep them operating had to be built in the open, without classification. It could not have been kept secret, even if anyone had tried.

On top of this, since the ST was running the beginnings of the war from Washington, they felt that every gimmick they could dream up was worth a try. Even before the escalation, this plan to build up the action in Vietnam was foreshadowed and preordained by official military-type ST doctrine, which stated: "These natural advantages [of the guerrilla] can be largely neutralized by the imaginative employment of modern technological advances which military research and development have been perfecting since the last war . . . night vision devices, lightweight body armor, portable radar for infantry use, invisible phosphorescent dyes, defoliants to deprive the guerrillas of their jungle cover; fast lightweight, silent, shallowdraft boats for river patrol, and tiny reliable short-range radios. . . . Practical uses for all these new developments can best be found by establishing combat development and test centers in the country where the counterinsurgency campaign is being waged."

Such centers were set up later in Vietnam and proved to be the modern counterpart of the horn of plenty and the runaway Connecticut Yankee in King Arthur's Court. The center in Saigon was given the highest priority to send daily messages to the Pentagon, and from there every single request, large and small, important or unimportant, was given a high priority to be carried out, all on the assumption that each and every request of the CDTC (Combat Development Test Center) would help win the war of counterinsurgency. The floodgates were open for the zealots, the irresponsible, and the special interests. Such things make small wars grow fast.

The CIA was the first in Vietnam with helicopters. It introduced the M-16 rifle there, and it brought into Indochina the B-26 bombers left over from Cuba and Indonesia and the T-28 trainer aircraft modified as a ground-attack plane. It had the first L-28 utility aircraft, and it brought in the old C-46, C-47 and C-54 aircraft of World War II vintage. It introduced many new ships, such as the Coast Guard patrol ships and the Norwegian-built PT boats. It used the U-2 and had the use of the product of the RF-105 reconnaissance planes. Many of the battlefield tactics used later by the army were first used in the field by the CIA.

By the middle of 1963 it had become evident that either the President was going to have to step in and put a halt to the spread of this counterinsurgency conflagration or it would consume the country. Everywhere the young Kennedy team turned, they came up against CIA and ST specialists. With the sage and powerful General Erskine gone from the staff of the Secretary of Defense, his replacement in this type of activity was either Bill Bundy, a long-time CIA man; Ed Lansdale, a long-time CIA man also, or others too numerous to mention and so well concealed (such as those who really sent the U-2 out on that fateful May 1 mission) that the unaware McNamara had no defense against their continuing pressures. Even in the office that he thought would give him some buffer between the Agency and the military -- that special office in the Joint Staff -- SACSA, McNamara was getting almost 100 percent CIA action, and when Maxwell Taylor became Chairman even his efforts were expended more in support of the ST, as he saw it, than in regular line military.

This was most discernible to those of us who had been in the Joint Staff for some time. In the days of other chairmen, such as Twining and Lemnitzer, JCS meetings used to be wide-open, entirely professional, and generally constructive. This is not to say there were not some strong differences and stronger language when such men as Arleigh Burke the Chief of Naval Operations, or Curt Lemay, the Air Force chief, did not see eye to eye. In any case, they were marked by discussion. They were not dominated and controlled by the chairman. Then, when Maxwell Taylor became chairman, the meetings were somber and apt to be a one-man-show. Little was ever said by any of the Chiefs pro and con when he was in attendance; but let Taylor be away and the meeting then be chaired by another man, the meetings would be open again.

These top military men who had known Taylor for years, had seen him leave the Army in a huff and had watched him return to the White House, where he cast his lot with the CIA and the ST. They knew that even though he was among them officially as the chairman, he was no longer one of them. He was leading the Army and certain elements of the Navy and Air Force away from their traditional roles and into an opportunistic and uncertain future with the CIA and the ST -- into the orgy of Vietnam.

We have seen earlier that President Kennedy's directive NSAM 57, which laid out the ground rules for covert operations and broke them down on the basis that very small was for CIA and the larger ones must be reviewed and probably assigned to the military, had been so turned around that it had become, in practice, almost meaningless on the intangible issue of when to transition from the CIA to the military. To demonstrate how totally this directive has been circumvented, we should note that there has never been a transition in Saigon, even when the force strength stood at 550,000 men. How large does a peacetime operation have to get before the CIA is told to give up its more than intelligence and more than clandestine operations role? How long before the ambassador is withdrawn? before it is placed in the hands of the professional military commanders?

We have not seen what had happened to NSAM 55, the memo Kennedy had sent directly to General Lemnitzer. The General filed that memo and used its silent power to assure that the military would not become involved in covert operations. When Maxwell Taylor became the chairman, he inherited this power. As a prime mover of the inner and security-cloaked ST, he now had the scepter of greater power in his hands. Whereas the President had called upon the chairman of the JCS to advise him in peacetime as he would in wartime, now he had appointed an adviser who was with the other side. The CIA knew that Taylor would not advise against them any more than Lansdale and Bundy would, up in McNamara's office.

Therefore, with the move of Maxwell Taylor to the chairmanship of the JCS, the ST had checkmated President Kennedy on both NSAM 55 and NSAM 57. As the country moved into the crucial summer of 1963 the President admitted to his closest confidants that he could not move against the right-wingers and the ST. As he told Senator Mansfield, "I can't do it until 1965, after I'm re-elected." And as he told Kenny O'Donnell, "In 1965, I'll be damned everywhere as a Communist appeaser. But I don't care. If I tried to pull out completely now, we would have another Joe McCarthy Red scare on our hands." Then in a broadcast on Sept. 2, 1963, President Kennedy gave a hint of his plans for disengagement when he said, speaking of the Vietnamese, "In the final analysis it is their war. They have to win or lose it." Then, as Mary McGrory says, "But Kennedy, like the two presidents who have followed him, was a captive of the Saigon Government." It is typical of reporters and other researchers to give such limited conclusions, because even as close as they are to the Government they are unable to get behind the screen of secrecy and see how the ST really works. Not only was Kennedy captive of the Saigon Government but he and the Saigon Government were captives of the ST.

As we look back to the beginning of this narrative and to those remarkable papers called, quite incorrectly, the Pentagon Papers we recall that early in October 1963, only one month after the above cited broadcast, McNamara and Maxwell Taylor reported to the President that it looked to them, after their visit to Saigon, as though things could be put under control and that we would be able to withdraw all personnel by the end of 1965. Now we can see why they chose that date. This was the date the President had used in his own discussions with his closest advisers. They all knew that he planned to announce a pullout once he had been re-elected. Less than one month after that report, the men who had been running South Vietnam since they had been placed in power there by the American CIA, along with Ngo Dinh Diem and his brother Nhu, were dead, and the government had been turned over to one of the friendly generals who more properly fit the pattern for counterinsurgency and the new plan. If South Vietnam was to be redeemed it would best be saved by a junta of benevolent army generals -- or so the new military doctrine went.

Less than one month after that date, President Kennedy himself had been shot dead in Dallas. And what is even more portentous, it was less than one month after that tragic date that the same two travelers, McNamara and Taylor, returned again from Saigon and reported to a new President that conditions were bad in South Vietnam and we would have to make a major effort, including American combat troops and a vast "sophisticated" clandestine program, against the North Vietnamese.

The ST struck quickly. While the echo of those shots in Dallas were still ringing, the ST moved to take over the whole direction of the war and to dominate the activity of the United States of America.

In the face of these shocking and terrifying events, who could have expected a man who had been in the range of gunfire that ended the life of his predecessor, to make any moves in those critical days that would indicate he was not going to go along with the pressures which had surfaced so violently in Dallas? He knew exactly what had happened there in Dallas. He did not need to wait for the findings of the Warren Commission. He already knew that the death of Lee Harvey Oswald would never bring any relief to him or to his successors.

_______

1. It may be worthwhile to note that both memoranda were very well written, exceeding by far the usual bureaucratic language of such papers in style and clarity. The writer -- Sorenson? -- was certainly more than one of the run-of-the-mill memo writers. Since the Pentagon Papers seem not to have contained these memoranda, it may be some time before we can learn who wrote these excellent and extremely significant papers for the President.

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Loyd Neal: i do days and hours in a role without clarifying it. Let's spell out what we are.".....yes loyd, tell us what U r ...economic adjustment?

2007-04-15T02:44:00.000-07:00

Group changes direction, decides to advise port

Role in redeveloping Ingleside base land needs clarification

By Fanny S. Chirinos Caller-Times
April 14, 2007

A committee that had planned to ask for federal recognition to qualify for funds to redevelop Naval Station Ingleside now plans to act only in an advisory capacity to the Port of Corpus Christi, committee officials announced Friday.

When the port established the Coastal Bend Redevelopment Planning Committee in January 2006, its goal was to receive local redevelopment authority recognition from the Office of Economic Adjustment, the federal agency that disburses funds to communities affected by base closures, and act as the funnel for federal funds related to the reuse of the base.

Not receiving the desired status could mean the loss of federal dollars, which could amount to hundreds of thousands. Port commissioners have earmarked $500,000 to plan the redevelopment of the base.

Next meeting

# What: Coastal Bend Redevelopment Planning Committee
# Where: TBA
# When: 8 a.m. May 11
# Information: 885-6211

The base is scheduled to close Sept. 30, 2010, as a result of the 2005 Base Realignment and Closure round, one that also realigned Naval Air Station Corpus Christi. The changes mean the loss of 7,015 direct and indirect jobs and $364 million in annual payroll, according to the Defense Department.

Of the base's more than 1,000 acres, 912 acres revert to the port. The remaining acres do not revert to the port and are considered surplus federal property.

To receive federal funds to redevelop the surplus property, a group must have redevelopment authority status and it is unknown which group or groups will ask for that status. But San Patricio County Judge Terry Simpson believes the committee still could get funds from the Office of Economic Adjustment.

Disagreement arose last year between Nueces County commissioners and the committee over that surplus property and the makeup of the committee. The county asked for more representation by commissioners before playing a part in the group.

The county also hired a consultant to help the commissioners court receive redevelopment authority recognition to redevelop the surplus property. The county has not taken further action since it ended its agreement with the consultant in March 2006.

Nueces County Judge Loyd Neal replaced Terry Shamsie in January as a member of the committee's executive council. During Friday's meeting, he said he wanted to be a part of the committee so long as its purpose was made clear.

Neal said there was no need for the committee to have bylaws.

"The bylaws were designed when this committee had another purpose, to be an over-arching (local redevelopment authority)," Neal said. "As the bylaws are set up, it sounds as if we have authority, but we're just an advisory group. I don't think it makes sense to spend days and hours in a role without clarifying it. Let's spell out what we are."

Simpson agreed with clarifying the role of the group, but hesitates to remove its bylaws.

"The real world is that we're broke and the only money we have is what the port has allocated," Simpson said. "To strike the bylaws would be to reinvent the wheel. We have the wheel. Well, it's more like a spare tire, but we want to keep that spare tire in case we should need it in the future. But I do feel we need an amendment to the bylaws to clarify how our role has changed."

The matter will be discussed with the port's legal counsel and a possible change or clarification to the bylaws will be discussed at the next port commissioners meeting and the next committee meeting, said John LaRue, the port's executive director.

Contact Fanny S. Chirinos at 886-3759 or chirinosf@ caller.com

the plain meaning leads to absurd results that the Legislature ignore any doubt resolved in favor of the accused.....

2007-04-02T00:03:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1094-06

THE STATE OF TEXAS

v.

CRAIG HILL JOHNSON, Appellee

ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

GILLESPIE COUNTY

Keller, P.J., delivered the opinion of the Court in which PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined. JOHNSON, J., filed a concurring opinion. COCHRAN, J., filed a concurring opinion in which PRICE and JOHNSON, JJ., joined. MEYERS, J., filed a dissenting opinion.

Does a motorist violate the law when a license plate frame obscures or partially obscures some aspect of the original design of the license plate, such as the name of the issuing state, the state nickname, or a pictorial design? We answer that question "yes."

I. BACKGROUND

Appellee was stopped by a police officer solely because the license plate on his car was partially obscured by a license plate frame. The license plates on appellee's car were of the standard Texas design. The frame partially obscured the word "Texas," fully obscured the nickname "Lone Star State," and obscured a depiction of a space shuttle in a nighttime sky. A black-and-white copy of an exhibit depicting the license plate with the frame is attached to this opinion. After the stop, the officer determined that appellee was intoxicated and arrested him for driving while intoxicated.

Before his trial, appellee moved to suppress evidence obtained as a result of the stop on the ground that his car's license plate was not displayed in violation of the law. The trial court granted the motion, and the State appealed. The court of appeals reversed, holding that appellee had violated Texas Transportation Code §502.409(a)(7). (1)

II. ANALYSIS

We read a statute in accordance with the plain meaning of its language, unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not have possibly intended. (2) The Transportation Code provides in relevant part: "A person commits an offense if the person attaches to or displays on a motor vehicle a number plate or registration insignia that . . . has a coating, covering, or protective material that: . . . (B) alters or obscures the letters or numbers on the plate, the color of the plate, or another original design feature of the plate." (3) Even if we assumed that the state name and nickname do not constitute "letters on the plate" within the meaning of this provision, (4) they, along with the pictorial designs, plainly constitute other original design features of the plate, the obscuring of which is prohibited by the statute.

Moreover, this reading of the statute does not lead to an absurd result that the Legislature could not have possibly intended. Subsection (B) of §502.409(a)(7) was added to the statute after the Fifth Circuit handed down its decision in Granado, which held that a motorist did not violate the law when his license plate frame obscured the name of the issuing state. (5) It is reasonable to infer that this provision may have been part of a legislative response to that decision. (6) Subsequently, in Contreras-Trevino, the Fifth Circuit concluded that the statutory amendment changed the legal landscape in which Granado had been decided, and held that the 2003 amendment to the Transportation Code proscribes the use of such license plate frames. (7)

We also observe that, although specialized and personalized plates are available, there are a limited number of designs, which are dictated by statute and by the Texas Transportation Commission. (8) The Legislature might have wished to require the entire design of a license plate to be displayed to help facilitate the quick detection of counterfeits. License plates are primarily functional items, and it is not unreasonable to prohibit decorative items or accessories that affect that functionality even to a small degree.

We are mindful of the proposition that criminal statutes outside the penal code must be construed strictly, with any doubt resolved in favor of the accused. (9) So was the court of appeals. (10) But "strict construction" does not mean that we ignore the plain meaning of the statutory language. (11) We are also aware that the plain reading of the statute that we accord today (and that was also accorded by the court of appeals in this case and by the Fifth Circuit) may mean that a small percentage of vehicles in this state do not currently comply with the law. Nevertheless, the timing and the plain language of the statutory amendment compel our conclusion.

The judgment of the court of appeals is affirmed.

Delivered: February 14, 2007

Publish

1. State v. Johnson, 198 S.W.3d 795 (Tex. App.-San Antonio 2006).

2. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

3. Tex. Transp. Code §502.409(a)(7)(B).

4. A different subsection within the same statute specifically proscribes conduct with regard to both the "letters and numbers on the plate" and "the name of the state." Tex. Transp. Code §502.409(a)(6).

5. See United States v. Granado, 302 F.3d 421, 424 (5th Cir. 2002); Contreras-Trevino, 448 F.3d 821, 823-824 (5th Cir. 2006)(discussing the effect of amendments to §502.409 on its prior decision in Granado).

6. The legislature also amended §502.409(a)(6), in part to add language referring to "the name of the state in which the vehicle is registered." See Contreras-Trevino, 448 F.3d at 823.

7. Id. at 823.

8. See Tex. Transp. Code §502.052 (designs selected by Texas Transportation Commission); §504.102 (relating to personalization of specialty plates); see also Tex. Transp. Code, Ch. 504, generally (various specialty plates dictated by the Legislature).

9. Thomas v. State, 919 S.W.2d 427, 430 (Tex. Crim. App. 1996); cf. Tex. Pen. Code § 1.05(a)("The rule that a penal statute is to be strictly construed does not apply to this code.").

10. Johnson, 198 S.W.3d at 797.

11. Thomas, 919 S.W.2d at 430.

"Even if the State had a wicked mind, there was no wicked result." okay then.. Even if the "unknown wicked mind" was undisclosed as to it's existence?

2007-03-24T03:00:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0521-05

Ex parte JAMES S. MASONHEIMER, Appellee

On Discretionary Review of Case 11-03-00234-CR of the

Eleventh Court of Appeals from

Taylor County

Womack, J., filed a dissenting opinion, in which Keller, P.J., joined.

I.

As I understand the facts, there was no Brady violation in the first mistrial.

First, the evidence wasn't unknown to the defendant. The evidence in question was something that he said to a neighbor after he shot the deceased. It's pretty hard for a defendant to claim that he has been denied discovery of something he said to a non-officer.

Second, the existence of the statement was not undisclosed. The witness referred to it in direct examination, and it all came out. Even if the State had a wicked mind, there was no wicked result.

Third, we don't know that the statement would have remained undisclosed. The State had not turned it over before trial. But the non-discretionary right to a witness's statement is not in the pre-trial discovery statute; it's in Rule of Evidence 615, which requires production only after the witness's direct examination. It would be routine for a defendant to ask for a witness's statement at that point, if none had been provided previously. So as far as we know, the State would have turned over the witness's statement on a Rule 615 request.

Fourth, although the Court is very concerned about the failure to disclose the witness's statement before trial, the Due Process Clause doesn't require pretrial disclosure; it only forbids nondisclosure at trial -- which did not happen.

Fifth, there's a little problem of how the defendant would have been able to get his hearsay statement admitted even after he found out about it.

Sixth, it doesn't look like the first mistrial was provoked by this "violation." As I understand it, after the disclosure of the defendant's statement to this witness, there was a delay because the court told the State to look for other discoverable evidence. During the delay, the lead prosecutor's relative died, and the defendant asked for the mistrial. It seems to me at least reasonable that, in addition to his courtesy in the circumstances of the death, the defendant wanted to have a new trial now that he knew how the State was going to be able to prove that the defendant shot the deceased. (See pages 8-9 of the opinion for the defense counsel's statements about being disadvantaged in his trial preparation by not knowing how the State would prove this fact. But remember, this disadvantage is not a due-process violation.)

II.

The second mistrial was granted because the State did not disclose evidence about steroids. This mistrial was necessary only if the defendant wanted to withdraw his waiver of a jury trial. (A jury had been waived, and the defendant pleaded nolo contendere.) The defendant's argument about this proceeding being one in which he hoped for an acquittal is incredible to me. No one pleads guilty or nolo contendere hoping for an acquittal. If he had said that he waived a jury and pleaded not guilty because he thought he had a better chance for acquittal with the judge than with a jury, I could believe it. But not that he entered a plea of nolo in hopes of an acquittal.

The opinion refers to Article 1.15's requirement of evidence (other than the plea) to establish guilt in a non-jury trial. But there obviously was such evidence; it was uncontested that the defendant intentionally killed the deceased.

If the defendant asked for a mistrial so that he could change his choice of fact-finder, I might go for it, but that is not his theory.

III.

I agree that the prosecutor was wrong, wrong, wrong in not giving the discovery that was ordered. But I do not see that it caused a violation of either the federal or the state jeopardy clause. I respectfully dissent.

Filed March 21, 2007.

Publish.

My JOB is to confess ur error& make sure you do ur JOB!

2007-03-13T07:16:00.000-07:00

E. The Workforce Information System of Texas (TWIST)
The Texas Workforce Commission (TWC) is currently constructing a data system that will
combine the separate data systems currently being used for JTPA, Employment Services, the
Child Care Subsidy, Food Stamp, Employment and Training, and CHOICES (the JOBS
successor) programs. This data system, The Workforce Information System of Texas (TWIST),
is being implemented in three phases, scheduled to be completed in the next two years. Since its
initial implementation in 1996, data for the JTPA and Employment Services have been converted
into the system. TWIST carries out a number of major functions, including case management,
following participant outcomes, and program reporting and evaluation.
TWIST was developed to assist the implementation of a new model for delivering employment
services in Texas, referred to as "One Stop." This model allows a person seeking services to
obtain assistance from a single caseworker, no matter for which program they are (or become)
eligible. TWIST facilitates the use of the One Stop model by allowing caseworkers to use one
system (rather than six) for managing clients in each of the different employment services
programs. TWIST was constructed using Sybase and, at the time of the interview, was
approximately six gigabytes in size. All historical data from the previous systems are converted
and maintained in TWIST.
TWIST uses Social Security number as the primary individual identifier. In addition, TWIST
assigns a case number for each program in which an individual participates. The system
routinely and consistently collects a number of other pieces of identifying information including:
first and last name, date of birth, sex, race, and mailing and residential address with county and
zip code.
Some demographic data fields (such as address) are overwritten when data for the field change.
However, TWIST does maintain a record of who changed the information and when the change
took place. No participation or services tracking data are ever overwritten. Because the system
is so new, no data have been purged from TWIST. However, TWC does plan to eventually
implement a purging process. Similarly, although there are plans to archive data, at the time of
the interview, no TWIST information had been archived.
There are some data from other state information systems that are automatically entered into
TWIST. Both the TANF and Food Stamp (SAVERR) and the JOBS successor (CHOICES) data
systems have nightly interfaces through which TWIST extracts demographic and case
participation data for clients listed in the TWIST system. In addition, these interfaces populate
the TWIST system with data for other individuals who might be eligible for TWIST-related
services. TWC plans to also extract Unemployment Insurance wage records for TWIST clients.
The only sharing of data from TWIST is with the SAVERR system. Through the automated
interface, TWIST passes information regarding employment program participation and suggested
case actions to TANF administrators.
F. Automated Student and Adult Learner Follow-Up System
The Automated Student and Adult Learner Follow-Up System, implemented by the Texas State
Occupational Information Coordinating Committee (SOICC), is a service that facilitates the
evaluation of a number of Texas job training and education programs. Through the Automated
Student and Adult Learner Follow-Up System, the Texas SOICC routinely provides data to a
number of private and government agencies on the post-exit results achieved by their former
education and job training participants. The Follow-Up System facilitates linkages of records
from a variety of data systems to state Unemployment Insurance wage records. In addition, the
Follow-Up System obtains data from a number of other federal and state databases likely to
contain information on the post-exit experiences of former education and job training
participants. While responsible for carrying out the data linkages, the Texas SOICC typically
turns the linked data back to the requesting agencies for evaluation and analysis.
The Texas SOICC has collaborated with (among others):
• the Texas Workforce Commission to generate follow-up data for JTPA, Food Stamp,
Employment and Training, Job Corps, and JOBS/CHOICES participants
• the Texas Education Agency to follow-up on senior high school exit cohorts and on exit
cohorts from a variety of specialty schools
• the Texas Higher Education Coordinating Board to follow-up on exit cohorts from all the
state's technical and community colleges as well as a large number of volunteer four-year
colleges and universities, and
• the Texas Department of Criminal Justice to follow-up on prison-based vocational
education participants.
These organizations provide administrative data on cohorts of participants to the Texas SOICC.
Using Social Security numbers, the Texas SOICC links the individual participant records to the
state's Unemployment Insurance wage record files. The Unemployment Insurance wage records
provide data on a number of items, listed below.
• Employment status
• Industry of employment
• Quarterly earnings
• Employer contact information
Data from the Unemployment Insurance wage records are supplemented with data from other
systems to more completely determine the post-exit status of former program participants. Texas
Department of Criminal Justice records are searched to identify former participants who have
been incarcerated. Federal employment records are used to identify former participants who
have found federal employment (which is not included in Unemployment Insurance wage
records). Texas Higher Education Coordinating Board records are searched to identify program
participants who have enrolled in public postsecondary education in Texas. GED files from the
Texas Education Agency are used to identify former participants who complete the GED
requirements.
In addition, the Texas SOICC is negotiating with other agencies to gain access to more data
systems. Vital statistics would allow the Texas SOICC to identify former participants who are
deceased. Education and Unemployment Insurance wage records from other states or federal
data sets would allow the Follow-Up System to determine the post-exit status of participants who
have moved from Texas.
Since the start of the Follow-Up System, the Texas SOICC staff have linked over 2 million
Social Security numbers to post-program achievement data. The Texas SOICC has created
annual databases with linked data since 1991 for JTPA participants, since 1996 for JOBS
participants, and since 1996 for Food Stamp Employment and Training participants. The
databases are created when, at the end of each program year, the administering agencies provide
exit cohort seed records to the Texas SOICC. These seed records contain information on the
entire population of program exiters from the previous program year (typically July through
June). The Texas SOICC insists that data on all exiters (including those who successfully
completed programs as well as those who did not) be contained in the seed records. For each
exiter, the seed records include Social Security number, an identifier for the program in which
the client participated, information about any occupational-specific training or education, exit
status, reason for exit, and exit date. In addition, the data provided by the administering agencies
also include relevant program-specific information. For example, the JOBS seed records include
fields from which length of time the exiter has received public assistance can be constructed.
With the Automated Student and Adult Learner Follow-Up System, the Texas SOICC uses
Social Security numbers to link these seed records to the Unemployment Insurance wage records
and other databases described above. Wage record data are added to the data set for two
quarters: the quarter prior to receipt of services and the final quarter of the calendar year in
which the program year ended. The "quarter prior to receipt of services" is identified for each
exiter using individuals' program start dates. When program start dates are not included in the
seed records, they are imputed using exit date and program guidelines that describe the expected
length of service.
JTPA Title III participants are the only ones for whom additional wage record data are linked.
Because this program specifically targets dislocated workers, wage record data are collected for
the entire year prior to receipt of services, rather than for just one quarter. This ensures that data
on wages prior to dislocation can be compared in more meaningful ways with wages after receipt
of services.
There is typically a lag of several months before each set of linked data is ready for use. The
Texas SOICC usually gains access to the fourth quarter wage record data in May of the
following year. Ultimately, the linked data are used by the requesting agencies to answer a
number of important client follow-up status questions.
The data have been used to study (among other things) earnings gains that result from program
participation, employment retention of program exiters, and job mobility (specifically the
distance participants must travel to find a job in the field in which they received training). In
addition, aggregate data that compare the achievements of exiters across training and education
programs are included in career planning software produced by the Texas SOICC.
In some cases, the linked records are supplemented with data from employer surveys. The
Survey Research Center at the University North Texas identifies the employers to be surveyed
using data from relevant Unemployment Insurance wage records and obtains data from the
employers about the occupations of former participants. This information is used by service
providers to assess how closely related specific types of training /education are to actual post-exit
occupations.
The Texas SOICC will continue generating data sets for new exit cohorts in all of the programs
described above. In addition, the Texas SOICC has a number of planned enhancements to the
data sets generated using the Automated Student and Adult Learning Follow-Up System.
Reduced welfare dependency will be explored as the "flipside" of employment. This will be
done by linking welfare payment data from a Texas Workforce Commission data warehouse
(under construction) to the other data routinely linked by the Texas SOICC. In addition, the
Texas SOICC is working on a number of pilot data sets that will assess the feasibility, usefulness
and costs of linking wage record data three and five years after program exit.
The Texas SOICC maintains the data sets on servers running the Windows NT operating system.
The data management architecture is a relational database constructed using Visual Fox Pro
software. There are plans to move to Oracle software for database management. Statistical
analyses are carried out using SPSS, although there are plans to move to SAS for statistical
analyses.
The data sets are jointly owned by the Texas SOICC and the agency that requests the data. The
data sets are not accessible to anyone, under any circumstance, who is not duly authorized.
According to the Texas SOICC, the innovative collaboration between agencies that administer
training and education and the agency that maintains Unemployment Insurance wage records is
based on strict understanding and adherence to privacy laws. The data are shared among
government agencies according to formal data exchange agreements that specify that the data
may only be used by public officials in carrying out their official duties leading to program
improvement. The agreements prohibit any participating agency from doing secondary releases
of the exchanged data.
The Automated Student and Adult Learner Follow-Up System was initiated in the early 1990s
with follow-up for graduates of one community college. The community college was facing
accreditation by an agency which wanted to know if there was a connection between fees
charged and wages in occupations for which the community college provided training. The
college had been conducting alumni surveys to collect these data but the surveys were expensive
and had a low (20%) response rate. As a result, the college approached the Texas Employment
Commission (now the Texas Workforce Commission) and asked them to link student and
Unemployment Insurance wage records. The success of this work led to the expansion of the
project to all community colleges in the state.
Expanding the use of wage records for follow-up of JTPA and other job training programs came
about as program funders (primarily legislators) demanded more rigorous accountability studies,
carried out by objective, neutral, third-party investigators. Success of the project can be
attributed to the commitment of the legislature to ask for and fund this type of follow-up study as
well as to the desire of various government entities to create a system that standardizes core
performance measures and research methods. In addition, the importance of adherence to the
data confidentiality rules cannot be overemphasized. The misuse of linked data by any