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July 29, 2009
DONALD VANCE AND NATHAN ERTEL, PLAINTIFFS,v.DONALD RUMSFELD, UNITED STATES OF AMERICA AND UNIDENTIFIED AGENTS, DEFENDANTS.
This case is before the Court on the motion of Defendant United States of America to dismiss Count XIV of Plaintiffs' Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Also before the Court are the United States' objections to Magistrate Judge Keys' order. For the following reasons, the motion to dismiss and the objections to Magistrate Judge Keys order are denied.
According to the Second Amended Complaint, Plaintiffs Donald Vance and Nathan Ertel, both American citizens, traveled to Iraq in the fall of 2005 to work for a private Iraqi security firm, Shield Group Security ("SGS"). In the course of their employment, Plaintiffs allegedly observed payments made by SGS agents to certain Iraqi sheikhs. They also claim to have seen mass acquisitions of weapons by the company and sales in increased quantities. Questioning the legality of these transactions, Vance claims to have contacted the FBI during a return visit to his native town of Chicago to report what he had observed. Vance asserts that he was put in contact with Travis Carlisle, a Chicago FBI agent, who arranged for Vance to continue to report suspicious activity at the SGS compound after his return to Iraq. Vance alleges to have complied with Carlisle's request and continued to report to him daily. Several weeks later, Vance claims Carlisle put him in contact with Maya Dietz, a United States government official working in Iraq. Dietz allegedly requested that Vance copy SGS's computer documents and forward them to her. Vance contends that he complied with that request.
Plaintiff Ertel claims to have been aware of Vance's communications with the FBI and alleges to have contributed information to that end. Ertel asserts that both he and Vance communicated their concerns with SGS to Deborah Nagel and Douglas Treadwell, two other government officials working in Iraq.
Plaintiffs contend that SGS became suspicious about Vance and Ertel's loyalty to the firm. On April 14, 2006, armed SGS agents allegedly confiscated plaintiffs' access cards which permitted them freedom of movement into the "Green Zone" and other United States compounds. This action effectively trapped plaintiffs in the "Red Zone" and within the SGS compound. Plaintiffs claim to have contacted Nagel and Treadwell who instructed them to barricade themselves in a room in the SGS compound until United States forces could come rescue them. Plaintiffs were later successfully removed from the SGS compound by United States forces.
Plaintiffs were then taken to the United States Embassy. Military personnel allegedly seized all of plaintiffs' personal property, including their laptop computers, cellular phones, and cameras. At the Embassy, Plaintiffs claim they were separated and then questioned by an FBI agent and two other persons from United States Air Force Intelligence. Plaintiffs contend that they disclosed all their knowledge of the transactions of SGS and directed the officials to their laptops where most of the information had been documented. Plaintiffs also assert that they informed the officials of their contacts with agent Carlisle in Chicago, and agents Nagel and Treadwell in Iraq. Following these interviews, Plaintiffs claim they were escorted to a trailer to sleep for two to three hours.
Plaintiffs allege that they were awoken by several armed guards who then placed them under arrest, handcuffing and blindfolding Vance and Ertel and pushing them into a humvee. Plaintiffs contend that they were labeled as "security internees" affiliated with SGS, some of whose members were suspected of supplying weapons to insurgents. According to Plaintiffs, that information alone was sufficient, according to the policies enacted by defendant Rumsfeld and others, for the indefinite, incommunicado detention of Plaintiffs without due process or access to an attorney. Plaintiffs claim to have been taken to Camp Prosperity, a United States military compound in Baghdad. Plaintiffs allege that they were placed in a cage, strip searched, and fingerprinted. Plaintiffs assert that they were taken to separate cells and held in solitary confinement 24 hours per day.
After approximately two days, Plaintiffs claim they were shackled, blindfolded, and placed in separate humvees which took them to Camp Cropper. Again, Plaintiffs allegedly were strip searched and placed in solitary confinement. During this detention, Plaintiffs contend that they were interrogated repeatedly by military personnel who refused to identify themselves and used physically and mentally coercive tactics during questioning. All requests for an attorney allegedly were denied.
On or about April 20, 2006, Plaintiffs each received letters from the Detainee Status Board indicating that a proceeding would be held April 23 rd to determine their legal status as "enemy combatants," "security internees," or "innocent civilians." The letter informed Plaintiffs they did not have a right to legal counsel at that proceeding. The letter also informed Plaintiffs they would only be permitted to present evidence or witnesses for their defense if they were reasonably available at Camp Cropper. On April 22 nd , Vance and Ertel allegedly each received a notice stating that they were "security internees." The letter informed Plaintiffs they had the right to appeal by submitting a written statement to camp officials. Both Vance and Ertel appealed, requesting each other as witnesses and their seized personal property as evidence.
On April 26, 2006, Plaintiffs allegedly were taken before the Detainee Status Board. Ertel and Vance claim they were not provided with the evidence requested, nor were they permitted to testify on the other person's behalf. Plaintiffs assert that they were not permitted to see the evidence against them or confront any adverse witnesses.
On May 17, 2006, Major General John Gardner authorized the release of Ertel, allegedly 18 days after the Board officially acknowledged that he was an innocent civilian. Vance's detention continued an additional two months, where he was continuously interrogated. On July 20, 2006, several days after Major General Gardner authorized his release, Vance was permitted to leave Camp Cropper. Neither Plaintiff was ever charged with any crime.
Plaintiffs initiated this lawsuit against Defendants for the alleged constitutional violations that occurred in Iraq by the unidentified agents of the United States as well as for the practices and policies enacted by Rumsfeld which allegedly authorized such actions by those agents. Count XIV of the Second Amended Complaint, the only claim brought directly against the United States, seeks to invoke the Administrative Procedure Act ("APA") to order the United States to return certain property that Plaintiffs allege was confiscated from them by military personnel when they were arrested and detained in Iraq.
In order to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. ___, 129 S.Ct. 1940 (2009)(quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 129 S.Ct at 1940 (citing Twombly , 550 U.S. at 556). The complaint must be construed in a light favorable to the plaintiff and the court must accept all material facts alleged in the complaint as true. Jackson v. E.J. Branch Corp. , 176 F.3d 971, 978 (7 th Cir. 1999). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of a cause of action, supported by mere conclusory statements do not suffice." Iqbal , 129 S.Ct at 1940 (citing Twombly , 550 U.S. at 555).
Additionally, a complaint must first describe the claim with sufficient detail as to "give the defendants fair notice of what the.claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)(quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). However, a complaint does not need to set forth all relevant facts or recite the law. Rather, all that is required is a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a); see also Doherty v. City of Chicago, 75 F.3d 318 (7th Cir. 1996).
I. The Record Does Not Support Applying the Military Authority Exception
The United States first argues that this Court lacks jurisdiction to order the return of Plaintiffs' property, a form of relief usually available under the APA. The United States supports its argument by relying upon 5 U.S.C. § 701(b)(1)(G), which it calls the "military authority exception." Specifically, although the APA allows for review of final agency actions, section 701(b)(1)(G) excepts military authority exercised in the filed during hostilities from the definition of "agency action." It states as follows: "(b) For the purpose of this chapter... (1) `agency' means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include ... (G) military authority exercised in the field in time of war or in occupied territory." Id.
We do not believe that the language of the statute indicates an intent to exempt the military as a whole or exempt all wartime military activities unrelated to armed conflict. See Doe v. Sullivan, 938 F.2d 1370, 1381 (D.C. Cir. 1991) (finding that the "military authority" exception did not apply to suit challenging a regulation permitting DoD to use unapproved investigational drugs on service member stationed in Saudi Arabia during the Persian Gulf War). Accordingly, courts have recognized that any inquiry into the application of the "military authority" exception necessarily is "fact intensive." See, e.g., Rosner v. United States, 231 F. Supp. 2d 1201, 1218 (S. D. Fla. 2002). To that end, courts evaluate the nature of the alleged wrongful acts as well as the nature of the perpetrator in deciding whether the challenged action was taken by the military in the field and during wartime. Id.
Further, when such information is not available on the record before the court, many courts have denied a motion to dismiss pending discovery. See Rosner v. United States, No. 01-1859, 2002 WL 31954453, *2-3 (S.D. Fla. Nov. 26, 2002).
The United States first argues that the "in the field" requirement for the military exception applies because Plaintiffs' challenge is to the seizure of their property. However, it appears that Plaintiffs have not challenged the initial seizure of their property, but rather the United States' decision not to return it when asked to do so. Case law underscores the distinction between the initial seizure and the failure to return property. See, e.g., Jaffee v. United States, 592 F.2d 712, 720 (3rd Cir. 1979). Plaintiffs are contesting the United States' refusal to return their property years after it was seized; the decision not to return it now is not inherently an exercise of authority from the field of battle. Plaintiffs and the United States have submitted conflicting evidence about the allegedly seized property, its location, and its return. We believe that further discovery is needed to sort out the details.
Second, and relatedly, it is not clear (and there are no facts in the record) that a commander in the field is causing the refusal to return Plaintiffs' property, another fact-specific question that the courts have found to be determinative. For example, in Doe v. Rumsfeld, 297 F. Supp. 2d 119, 129 (D.D.C. 2003), the court found that the "military authority" exception did not apply where Defendant Rumsfeld (and not commanders in the field) ordered military members in Afghanistan and Iraq to be vaccinated. There is no evidence in the record as to who has directed the failure to return the property.
Third, there is no evidence to suggest where Plaintiffs' property is and whether some or all of Plaintiffs' property is outside of the military's possession. As Judge Keys found, if discovery demonstrates that Plaintiffs' property has been transferred to a non-military agency or is no longer in the field, then the APA's "military authority" exception would not apply. Vance v. Rumsfeld, 2007 WL 455782, at *8.
In this case, Magistrate Judge Keys previously found that the record does not contain sufficient facts to demonstrate whether the military authority exception applies, and we agree with that decision. Accordingly, the United States' motion to dismiss on the basis of the military authority exception is denied at this time pending discovery on the matter. We affirm the discovery ruling made by Magistrate Judge Keys on this issue.
II. Plaintiffs' APA Claim is Not Mooted by the United States' Affidavit
The United States also argues that there is no jurisdiction over the Plaintiffs' APA claim because that claim is moot. We disagree.
The United States claims that it has returned all of Plaintiffs' property that can be found -- one item among many. To support its claim, the United States has attached the affidavit of Lt. Melson, which details the alleged search that the United States undertook after this Complaint was filed and the Evidence/Property Custody Documents ("Property Documents") that Plaintiffs received upon their release from Camp Cropper. However, we find that neither the affidavit nor the Property Documents render Plaintiffs' APA claim moot at this time.
Plaintiffs raise numerous valid points about the adequacy of the search performed by Lt. Melson. Plaintiffs also point out numerous discrepancies in the Property Documents. These distinctions pointed out by Plaintiffs raise some doubt as to the reliability of the United States' proofs, precluding reliance on them to demonstrate that this case is moot. We believe that discovery on these issues is necessary to resolve the discrepancies. Therefore, we find that Plaintiffs case is not moot at this point and that Plaintiffs should be given the opportunity for discovery on this matter to investigate further.
III. Plaintiffs Have Properly Pled Their APA Claim
Finally, the United States argues that Plaintiffs have not properly pled their APA claim. We disagree.
Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Thus. "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus.--- U.S. --- . 127 S.Ct. 2197, 2200 (2007) (per curiam) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. ---, 127 S.Ct. 1955. 1964 (2007)). There is no requirement of heightened pleading for an APA claim.
We find that Plaintiffs' Complaint properly pleads an APA claim. In their Second Amended Complaint, Plaintiffs spell out the manner in which their property was taken, the types of property they are seeking returned, their attempts to regain control over their property from the United States Army and the Department of Justice ("DOJ"), and the Army's and DOJ's refusal to return the same. .
Nonetheless, according to the United States, Plaintiffs have not alleged sufficient facts to show agency action in their Complaint. We disagree. "Agency action" is defined to include "the whole or part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). In this case, Plaintiffs allege agency action in the form of the Army's ruling as well as the DOJ's failure to return Plaintiffs' property. Specifically, Plaintiffs alleged that they petitioned the Army for their property but the Army refused to return it. In addition, Plaintiffs allege that they have tried to secure the return of their property from the DOJ, but DOJ has stated that the government does not intend to return any of their property. These allegations are sufficient to put the United States on "notice" of what agency action Plaintiffs complain. Cf. Khelashvili v. Dorchoff, No. 07-2826.2007 WL 4293634, *3 (N.D. Ill. Dec. 6. 2007). Plaintiffs' allegations are clear.
Additionally, the United States argues that Plaintiffs' pleading is insufficient because it fails to articulate a discrete search that the Army should have performed. Of course, such detailed allegations are not required to be pled in Plaintiffs' Complaint. See Bell Atlantic, 127 S.Ct. At 1964 ("a complaint ... does not need detailed factual allegations"). To the contrary, requiring that level of detail is neither appropriate nor logical at this stage: Information regarding where the United States should have searched for Plaintiffs' property is uniquely within the control of the United States. Cf. Bd of Trustees. Sheet Metal Workers' Nat. Pension Fund v. Illinois Range, Inc.,186 F.R.D. 498, 504 (N.D. Ill. 1999) ("in that all of the information as to the transactions and the purpose behind them is in the hands of the Individual Defendants, it cannot be expected that Plaintiff could provide any additional information in its complaint."); D 56. Inc. v. Berry's Inc., No. 95-5992, 1996 WL 252557, at * 11 (N.D. Ill. May 10, 1996) (allegedly missing detail was "information which the plaintiff should not be required to know at this point, but rather something that defendants' answer and pre-trial discovery will hopefully reveal").
For these reasons, we find that Plaintiffs have properly their APA claim.
For the foregoing reasons, we deny the motion of the United States of America to dismiss [# 120]. The United States' objections to Magistrate Judge Keys' order are denied [# 94]
It is so ordered.
Wayne R. Andersen United States District Court
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Live updates
Summer reading challenge
A special event aimed at preventing children from falling behind with their reading skills over the summer holidays, has been held at Brighton's Jubilee Library.
Young people are being encouraged to read as much as they can this summer. Charlotte Wilkins has been speaking to Dr Julia Sutherland from the University of Sussex.
The Brighton Kite Festival is underway!
The Brighton Kite festival has been taking place in Stanmer Park in Brighton & Hove this weekend.
Plans to be announced to tackle homelessness
Brighton and Hove Council will announce plans to solve its homeless problem .
A new report aims to ensure nobody in the city needs to sleep rough by 2020. Charities believe more than 50 homeless people have died in the last three years.
Here's Cllr Claire Moonan from Brighton and Hove City Council:
Brighton & Hove's new plan to tackle homelessness
It's believed that more than fifty homeless people have died in Brighton & Hove in the last three years. Now, in a report soon to be released, Brighton & Hove City Council has set an ambitious target ... "to make sure no-one has the need to sleep rough in the city by 2020".
The report comes with a fresh admission that the city's homelessness problem has become "more acute" with services working with more than 1,100 cases of rough sleepers last year - figures that are almost double what the situations was like five years ago. Andy Dickenson reports.
Asbestos alert for emergency workers who dealt with the IRA Brighton bombing in 1984
People caught up in the IRA bombing of Brighton's Grand Hotel thirty-two years ago are being warned they may have been exposed to harmful asbestos. Five were killed when a blast ripped through the hotel during the Conservative Party conference. A police officer who worked at the scene has now died from an asbestos-related disease. Other rescue workers are being told to seek medical advice, as Malcolm Shaw has our report.
27,000 cyclists raise £2m in London to Brighton bike ride
More than twenty thousand cyclists have taken part in the fifty four-mile London to Brighton bike ride, raising more than two million pounds for the British Heart Foundation. From the finishing line, John Ryall sent this report.
In pictures: Brighton's i360 pod reaches maximum height
The British Airways i360 pod in Brighton has reached its maximum height for the first time.
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Ambitious plans have been unveiled to regenerate a large section of Brighton seafront.
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text:
Paul Mason, in today's Graun:
The left, Corbyn and 'Stop The War' must protest Aleppo massacre by Assad and Putin
Above: Syria Solidarity campaigners outside Stop The War's conference today
It's come to something when it takes a Guardian columnist to call the supposed "left", the lying wretches of the so-called 'Stop The War Coalition' and Jeremy Corbyn to order on their elementary duty towards the people of Aleppo:
We're watching as Aleppo is destroyed. Where is the rage?
Where are the demonstrations in western capitals to denounce the brutal onslaught on Aleppo? Around 300,000 people are exposed to carpet bombing, including bunker-busting and fragmentation ordnance. Is the weather so bad that no one wants to stand on a square, or in front of a Russian embassy? Or does no one care? Does no one think protesting would make a difference? (read the rest here)
Statement from Syria Solidarity UK:
Protect the Children of Aleppo: Stop the War in Syria
250,000 people live in East Aleppo, including an estimated 100,000 children. These people are not terrorists; they simply don't want to live under a leader, Assad, who has killed, raped and tortured their kin.
On Wednesday the Syrian military warned these civilians to flee or meet their "inevitable fate." Russian and Syrian airstrikes are targeting hospitals, schools, bakeries, and underground shelters. This policy of deliberately targeting civilians is a war crime that will cause trauma for generations.
The leaders of Britain, America, Russia, Iran, etc. have done nothing to protect Syria's civilians; it falls to us who do care to organise and speak out on their behalf.
Please join us to call for an immediate end to the bombing in Aleppo and a properly enforced UN ceasefire.
Syria is the worst war of this decade, even of this bloody century so far.
What will you do to stop the war in Syria?
READ: Left activists call on Jeremy Corbyn to speak out on Syria
Below: Syria activists leafleting outside today's Stop The War conference in London.
'Corbynistas' and the 'liberal' commentariat
By John Cunningham (this article also appears in Solidarity and at the Workers Liberty website)
Although I've never had had warm feelings towards the media, I also dislike the tendency to blame the media for every ill or woe in the world; it just doesn't work like that. The media isn't all bad all the time.
Personally, I have regularly turned to the journalism of people like Andrew Rawnsley, Nick Cohen, Polly Toynbee, John Harris and others, not because I agree with them (this rarely happens) but because of a desire to read some occasionally intelligent — or moderately intelligent — viewpoints put forward in a clear and articulate manner. However, within the last year or so, the commentaries and analysis coming out of even the middle-ground "liberal" press has descended to unprecedented levels of odious bile which has little, if any, connection with reality. They have descended in a very short time to "a superficial and dismal swamp" (to paraphrase Frederick Engels).
At times the abuse has been astonishing. Increasingly it is directed not just at Corbyn but also at his supporters, often referred to, in the most childish manner, as "Corbynistas" or "Corbynites" as if somehow, those supporting Corbyn were the followers of a boy band or, as alluded to on occasion, attendees at a Nuremburg rally.
A list of these abuses, insults and smears would make lengthy — and dismal — reading; so here are just a few examples from a variety of sources: Polly Toynbee (Guardian 18 July) claimed that the "incomers" [to the Labour Party] are "fronted by a small handful of wreckers armed with political knuckledusters." Also from Toynbee we have her measured description of Corbyn as "dismal, lifeless, spineless…" (Guardian 25 June). Carole Malone (Daily Mirror 16 July): Corbyn supporters are "Lenin style bully boys who'd send women to the Gulag." John Harris (Guardian 12 August) deserves a special mention for his article entitled "If Trotsky is back at the centre of things, there's chaos ahead", which not only raises infantilism to an art form but contains an "explanation" of Trotsky's notion of transitional demands which is so laughable that it wouldn't pass muster in a third rate pub quiz.
Probably the worst example, so far, that I have come across is worth quoting at more length: Nick Cohen (Observer, 31 July) "…after the killing of Jo Cox by an alleged right wing extremist, Angela Eagle and Jess Phillips and all the other anti-Corbyn MPs who are speaking out know that the death and rape threats from left-wing extremists may not just be bluster." There you have it — if you are a Corbyn supporter you are (a) automatically a "left-wing extremist" and (b) a potential rapist and/or murderer!
I wrote to the Readers' Editor of the Observer pointing out this slander. Initially, he did not respond but after a second e-mail merely drew my attention to an article by Cohen in the Spectator and remarked that he obviously wasn't talking about people like me! While I am mightily relieved that the Observer's Readers' Editor thinks I am a decent sort, what, might I ask about all the other thousands of Labour members who will be voting for Corbyn, murdering and raping all the way to the ballot box? A third e-mail from me calling for an apology drew no response at all (surprise, surprise). What is it that drives journalists like Cohen and Toynbee, who are by no means stupid people, to descend into this gutter? After all, life for the Cohens and Toynbees of this world will not be drastically altered by the continuance of Jeremy Corbyn's leadership of the Labour Party, nor would life be suddenly rosier if, by some Potterish intervention, Owen Smith were to win.
Toynbee has already shown her propensity for jumping ship if things don't go her way. My guess is that for the educated snobs of this liberal and not-so-liberal commentariat the thread that binds them together is a sense of elitism, a dislike, a repugnance of ordinary people doing things for themselves. It is, more-or-less, the same elitism, the same distrust of the masses, that drove some of the early socialists like Charles Fourier and Saint Simon to condemn the emerging trade unions, while slightly later the Webbs and the Fabians were to embrace similar ideas about the untrustworthiness of ordinary workers.
This trend dominated the Parliamentary Labour Party for years and it manifests itself, for example, in the way that routinely, throughout the history of the Party, conference resolutions have been ignored if the Party leadership didn't agree with them. Whether we are talking about Tony Blair, Ramsey MacDonald, Hugh Gaitskell, Polly Toynbee, Anne Perkins, Nick Cohen or ex-Stalinists such as the Times journalist David Aronovich; the approach is top-down, "we know best and if you don't agree with us shut up or bugger-off".
Clearly, the wisdom of these sages is being ignored, sometimes by the very people who would normally listen to them… and they don't like it one bit; hence a peevish and prolonged bout of name-calling and the sneering dismissal of thousands of ordinary people who are making their voices heard and trying to shape a new political agenda. In short they sound like nothing but spoilt schoolchildren who have had their ball taken away.
In any other place in the world the massive increase in Labour Party membership would be shouted from the rooftops. No Social Democratic party in history, with the possible exception of the pre-First World War German Social Democratic party, has seen such exceptional growth. Yet the newcomers are cast in the role of the biblical Gadarene swine, rushing headlong to a certain death while the comfy, smug, complacent ladies and gentlemen of the press tut-tut their displeasure. As a certain London-based political exile of Jewish origin once remarked, "…they confess they are striving to replace the old aristocracy with a new one. To counter the existing oligarchy they would like to speak in the name of the people, but at the same time avoid having the people appear in their own person when their name is called."
John Harris: Watson's useful idiot
There are journalists and commentators whose views I don't agree with (and in some cases, hate), who are nonetheless interesting, intelligent and worth reading. John Harris of the Guardian is not one of them.
I first came across Mr Harris in 2001 or early 2002, when he first started writing for The Guardian. He was, then (like many other Guardian coumnists), an uncritical supporter of the Stop the War Coalition (STWC), and keen to defend it against any suggestion that it was led, or politically dominated by the SWP.
This was shortly after the STWC's first conference in October 2001, when the SWP and its allies like George Galloway and Andrew Murray had ensured the defeat of calls to reject 'Muslim fundamentalism' as well as US imperialism. The slogan "No to fundamentalism" indicated that opposition to war did not mean support for the 9/11 attacks or the Taliban reactionaries: but the SWP, Murray, Galloway & co were determined not to alienate Islamists and cared nothing for the anti-fundamentalist views of Iranian and Afghani socialists in Britain, or the only Iraqi socialist organisation (the WCPI) active in Britain, all of whom were horrified by STWC's alliance with Islamists.
In fact the leading members of the STWC were, and remain, soft on political Islam. This is clear from a footnote in Andrew Murray's history of the STWC which says: "Political Islam… has expressed, in however warped a fashion, some of the anti-imperialist demands which were once the preserve of Communist and nationalist movements of the region."
Harris wrote a column in the Guardian at the time defending STWC and denying that the SWP, etc, ran the campaign. I sent a comment to CiF calling Harris a "useful idiot" which apparently upset him at the time. Unfortunately, Harris's 2001 (or 2002 ?) column does not seem to be available anywhere on the web, but this 2008 article gives a taste: http://www.theguardian.com/politics/2008/feb/15/iraq
Since then, I haven't spent much time reading the banal outpourings of this rather stupid ex-New Musical Express journalist, but I have noted that he claims to have been in the Labour Party Young Socialists in the 1980's, before being driven "to despair" by the Militant Tendency and subsequently leaving the Labour Party for fifteen years.
Now, it's a matter of record and straight fact, that those of us around in the 1970s and '80s, can vouch for, that the Militant Tendency were a bunch of thugs, bullies, homophobes and sexists. But they've been out of the Labour Party since 1991 when they abandoned entryism and decided to establish themselves as a separate party. Ted Grant, the group's founder and leading theoretician, was expelled, and his breakaway minority, now known as Socialist Appeal, continued in the Labour Party. The majority changed its name to Militant Labour, and then in 1997 to the Socialist Party. Their leader, Peter Taafe, is now making ridiculous noises to the bourgeois media, suggesting that his group now expects to be readmitted to Labour – having spent more than twenty years denouncing the Party as irreformable and the past eleven months trying to stop his members leaving to join Labour.
The idea that the hundreds of thousands of new (and, in some cases, re-joining) members of the Labour Party who've signed up since Corbyn's victory last year, are doing so under the influence of the Socialist Party, the Alliance for Workers Liberty (AWL), or any other 'Trotskyist' organisation, is a preposterous conspiracy theory put about by Tom Watson in a desperate attempt to undermine Corbyn and boost the hapless nonentity Owen Smith. But the wretched Harris asks Guardian readers to believe this nonsense in a truly ridiculous article entitled If Trotsky is back at the centre of things, there's chaos ahead. This idiot's ignorance and stupidity knows no bounds: and while there's no requirement upon Guardian columnists to have any knowledge of (let alone sympathy with) Trotskyism, someone writing about it might be expected to have at least an elementary grasp: Harris clearly hasn't.
To give one simple example, Harris describes Trotskyist transitional demands thus:
The practice of Trotskyist politics has long been built around the idea of the "transitional demand", a rather cynical manoeuvre whereby you encourage people to agitate for this or that – a hugely increased minimum wage, perhaps, or the end of all immigration controls – knowing full well it is unattainable within the current order of things, but that when the impossibility becomes apparent, the workers will belatedly wake up. In other words, the herd gets whipped up into a frenzy about something you know it won't get, while you smugly sit things out, hoping that if everything aligns correctly, another crack will appear in the great bourgeois edifice.
The reality (as explained by the AWL) is this:
These are not catchpenny demands designed to capture or mirror back an existing "mood". In some cases, such as open borders, they are ideas that are positively marginal and currently rejected by most working-class people. Others, such as the demand for a democratic federal republic (rather than secession for Scotland and Wales), or opposition to withdrawal from the EU, are marginal even on the far-left.
But we cannot hope to popularise them or make them less marginal except by raising them consistently, within the context of a programme which starts from the logic of our current struggles. The boldness required is the difference between attempting to create a political "space", through the hard work of agitation and education in our workplaces and communities, and cynical attempts to manoeuvre into some existing space where people are already imagined to be by mirroring back to them slightly more radical versions of the ideas we presume them to already hold.
These wouldn't be demands that we'd orient towards the state, necessarily, as if we expect a Tory government to implement them. They are demands that make up part of our own political narrative, our own plan for remaking society, just as the Tory policies of cuts and privatisation make up theirs.
Capital make concessions to labour either when we are strong enough to simply overwhelm it and impose ourselves, or when it is too scared of the consequences of not making concessions. For either condition, a conscious programme – a working-class socialist alternative to austerity – is necessary.
Floppy-haired ex-pop music journalist Harris is, indeed, an idiot (whether "useful" or not): first on behalf of Galloway and the SWP; now on behalf of Tom Watson and Labour witch-hunters.
Brexit: a realistic scenario
Letter published in The Guardian 10/06/16:
Polly Toynbee is right (There is still time for hope – Brexiters can be persuaded, 7 June). Brexiters can be persuaded if they realise what British politics could be like after a vote to leave. Here's a realistic scenario.
On 24 June Brexit begins. Cameron resigns. Boris Johnson becomes prime minister, Michael Gove becomes chancellor. With Ukip's role over, Nigel Farage and company join the Tory party. Scotland leaves Britain. The rump gets a new name (as it can't be called the UK) – KEWNI – and a new flag
Anti-democratic developments begun under the pre-Brexit government are extended. The Tories form KEWNI's governments for decades to come. The post-EU economic shock is compounded by the structural problems derived from KEWNI's dysfunctional capitalism (low productivity, weak innovation etc) and its semi-feudal state. Excluded from the European single market, KEWNI is forced closer to the US and China. Having no choice, it accepts a version of the TTIP with the US. Having shunned the EU's collective sovereignty, it has no power to insist on safeguards. US companies begin to take over the NHS; Chinese companies, manufacturing and real estate.
Accelerated economic decline inevitably follows. The Johnson/Gove response is even more austerity. The xenophobia currently directed at EU migrants becomes directed inward – against people of colour. Inequality and poverty escalate and dispossessed KEWNIs mobilise in struggle. The government response is repression, both covert and overt. Gradually, KEWNI becomes dominated by an ultra-rightwing nationalism: a version of fascism with "gentlemanly" English characteristics.
Is this what Brexiters seek for our country?
Jeffrey Henderson
Professor of international development, University of Bristol
The Guardian's Adams continues to squirm and obfuscate over 'Trojan horse'
Above: Adams
By Champagne Charlie
Last Friday's Guardian carried a piece by Education editor Richard Adams headlined "Ofsted Inspectors upgrade Birmingham school in 'Trojan horse' scandal to good".
The piece begins "The school at the centre of the Trojan horse scandal has been given a clean bill of health by Ofsted inspectors, two years after allegations of an Islamist plot to infiltrate education made national headlines."
The inattentive reader could be forgiven for thinking that it has now been shown that there was no Islamist plot and the allegations against senior teachers and governors at the school have been disproven. It is only when you read on, that it becomes apparent that Adams is writing about the school as it now is, under a new leadership team, the previous Islamist leadership having been removed. Even so, Adams feels it necessary to throw in one of his typical weaselling half-truths: "allegations of a city-wide plot were never substantiated and are thought to be a hoax."
It's time the facts of the 'Trojan Horse' affair that have been established beyond reasonable doubt (sources can be checked on Wikepedia, from which I've drawn extensively) were set out clearly, if only to counter the torrent of downright lies, half-truths and obfuscation that continues to emanate from Mr Adams, the SWP and elements within the NUT.
The 'Operation Trojan Horse' letter was leaked to the press in early March 2014. It is an anonymous document, purporting to be from an Islamist in Birmingham, advising a fellow Islamist in Bradford, on how to take over schools and impose an Islamist agenda. Early on, most informed commentators expressed the opinion that the letter was probably a fake, created by someone who wished to draw attention to alleged Islamist influence in Birmingham schools.
The author of the letter claimed responsibility for installing new headteachers at four schools in Birmingham, and identified 12 others in the city which would be easy targets due to large Muslim attendance and poor inspection reports. It suggests encouraging parents to complain about a school's leadership with accusations of sex education, forced Christian prayer and mixed physical education, with the aim of obtaining a new, Islamist, leadership. It was also suggested that once successfully taken over, schools should apply for Academy status so as to have a curriculum independent of the Local Education Authority. The author described the plan as "totally invisible to the naked eye and [allowing] us to operate under the radar".
Despite widespread doubts about the provenance of the letter, Birmingham's education commissioner Sir Mike Tomlinson stated his belief that what the letter described was happening "without a shadow of doubt". Read the rest of this entry »
The Guardian and the Panama Papers
The 'Panama Papers' is without doubt the biggest and most important story (so far) of the century, and Shiraz will be keeping a sharp eye, in particular, on how Putin's fans and apologists on the supposed "left" deal with it. The Mossack Fonseca documents were initially passed to the German newspaper Süddeutsche Zeitung, which then shared them with the International Consortium of Investigative Journalists. The fact is that the Guardian is just one among 109 media organisations in 76 countries that have helped break the story – which makes this message from Deputy Editor Paul Johnson a bit of a damn cheek. I don't think I'll be sending them any money just yet:
The "Panama Papers" is the biggest leak in history: 11.5m documents – which would take one person 27 years to read – describing in the finest detail, for the first time, how rivers of money are moved around the world, hidden from sight by secret offshore banking operations.
The scale of the story is staggering: inside those papers 113,000 shell companies were discovered – helping hundreds of national leaders, politicians, celebrities and business people hide their money.
If the scale of the leak was enormous, the journalistic effort to bring it to full exposure was just as big: 370 journalists from 70 different countries worked in an unprecedented scale of co-operation. At the Guardian, we had five journalists dedicated to the investigation for six months, in conditions of tight secrecy, working through the dozens of stories and an exhaustive legal process.
Readers can support such journalism by making a financial contribution to the Guardian. Make a contribution here.
Today's investigation has created a much-needed worldwide debate about tax and fairness. There are another four days of stories to come. We think they are of vital public importance. We hope you agree.
Thank you for your support and for reading the Guardian.
Paul Johnson
Deputy Editor, Guardian News and Media
Putin: a murderous authoritarian beloved of the far-right (and some on the "left")
Opposition to Putin and his ultra-reactionary regime ought to be second nature for self-proclaimed leftists. Unfortunately, it isn't: the Morning Star and former Guardian columnist (now a senior adviser to Corbyn) Seumas Milne, for instance, have a long record of defending and justifying Putin, especially (but not only) with regard to Russian imperialism in Ukraine.
So it was a welcome development when Guardian columnist Owen Jones recently admonished certain (unnamed) sections of the left for remaining silent about the reactionary nature of Putin's regime. Even so, Jones's piece was hedged about with embarrassed apologetics designed to appease the pro-Putin "left" and to excuse in advance his own half-hearted apostasy:
"Yes, there is something rather absurd about the baiting of the anti-war left for not protesting against, say, Putin or North Korea. The baiters are always free to organise their own demonstration (I would be happy to join), and protest movements can only realistically aspire to put pressure on governments at home, whether it be on domestic policies or alliances with human rights abusers abroad (whether that be, say, the head-chopping Saudi exporters of extremism, or Israel's occupation of Palestine). In democracies, protests that echo the official line of governments are rare. If the west was actively cheering Putin on and arming him to the teeth, we might expect more vociferous opposition."
Anne Field, writing in the present issue of Solidarity, is more straightforward:
Putin: a model of reactionary politics
The report of Britain's official Owen Inquiry into the 2006 murder of former Russian security service agent Alexander Litvinenko was published on 21 January. It attributed responsibility for the murder to Russia's President Vladimir Putin.
Putin ruled Russia as its President from 2000 to 2008. Barred by the constitution from seeking a third successive term of office, Putin was nominally Prime Minister between 2008 and 2012. In reality, he remained the ultimate source of authority in Russia. Amid widespread allegations of ballot-rigging, Putin was re-elected President for six years in 2012. (The presidential term of office had been increased from four to six years while Putin was Prime Minister). He is already on record as saying that he will seek re-election in 2018.
From the outset Putin's rule has been based on "siloviki" (strongmen): former KGB agents and serving agents of the police and the FSB (the Russian successor to the KGB), and former and serving military commanders. According to a survey carried out by Olga Kryshtanovskaya in 2004, "siloviki" constituted around 25% of Russia's political elite, and over 50% of Putin's inner circle. Their influence has continued to grow since then. Putin himself is a former KGB agent. But, as Kryshtanovskaya wrote: "Putin brought 'siloviki' with him. But that's not enough to understand the situation. The whole political class wished them to come. There was a need of a strong arm, capable from point of view of the elite to establish order in the country."
One of Putin's first acts was to incorporate Russia's 89 regions into seven new federal districts. The districts are run by appointees personally selected by Putin as his representatives. They have control over the armed forces, the budgets and activities of the regional governors in their districts.
Five of the first seven appointees were "siloviki". At the same time Putin weakened the powers of the Federation Council, the upper chamber of the Russian Parliament with representation from the country's different regions. Putin also scrapped the election of regional governors (they too were to be personally appointed by Putin) and empowered local legislatures (dominated in practice by Putin's supporters) to sack popularly elected mayors. Over the past decade and a half potential sources of opposition to Putin's rule in civil society have been attacked, one after another. The media empires run by the oligarchs Vladimir Gusinsky and Boris Berezovsky were both effectively taken over by Putin and their owners forced to flee Russia. Dissident journalists have been sacked, programmes critical of Putin have been taken off the air, and attempts to create independent television channels blocked by the government. The only surviving independent channel is now run from an apartment in Moscow.
Under a law signed off by Putin in 2014, international organisations, foreigners and Russians with dual citizenship will be banned from owning mass media outlets by the end of 2016. Its main target is Vedomosti, jointly published by the Financial Times and the Wall Street Journal. The internet in Russia is controlled by the government agency Roskomnadzor, created in 2012. Russian bloggers with 3,000 or more visitors a day have to register with Roskomnadzor, reveal their identities, and verify the accuracy of their blogs. Roskomnadzor can also block websites which "refuse to follow Russian laws", which carry "extremist" political content, or which "encourage illegal activities and participation in public events held in violation of the established order." Foreign-funded non-governmental organisations (NGOs), described by Putin as "jackals" and "Judases", have been singled out for repressive legislation. They are required to register as "foreign agents", submit quarterly reports on their funds and resources, and submit six-monthly reports on their personnel and activities. They are also subject to mandatory audits and can be fined for publishing anything not described as having been published by "a foreign agent".
In the spring of 2013 alone, 2,000 NGOs, including Amnesty International and Human Rights Watch, were raided by government authorities. After a wave of protests at Putin's decision to seek re-election as President in 2012, he increased fines for taking part in unauthorised protests to 300,000 rubles, and fines for organising such protests to a million rubles. In 2014 Putin ramped up the penalties yet again. Repeated participation in unauthorised protests now attracts a penalty of up to a million rubles and up to five years of forced labour or prison. A law passed in 2013 banned the "propaganda of non-traditional sexual relationships to minors". Breaches of the law could result in fines or imprisonment. The following year another law banned all swearwords in films, on television and in theatre performances. And last year new rules for licencing the showing of films were introduced, banning films which "defile the national culture, pose a threat to national unity, and undermine the foundations of the constitutional order."
Other laws have obstructed the registration of "non-indigenous religions" and prevented them from acquiring land and building permits. This has benefited the religious monopoly enjoyed by the Russian Orthodox Church, described by Putin as one of the two "pillars" of national and state security. The other "pillar" is nuclear deterrence. Reflecting Putin's own views on Stalin ("his legacy cannot be judged in black and white"), Russia adopted Stalin's national anthem (with different lyrics) in 2000, and Russian textbooks now explain that while the Stalinist and post-Stalinist USSR was not a democracy, it was "an example for millions of people around the world of the best and fairest society." Putin has also regularly contrasted his authoritarian conservatism with western "decadence", denouncing the west as "genderless and infertile" and guilty of "the destruction of traditional values from the top."
This has provided a basis for political alliances between Putin and parties of the European far right: the French National Front, the Hungarian Jobbik, the Bulgarian Attack, the Slovak People's Party, and various far-right parties in Germany. Putin's endorsement of Donald Trump for US president last month was only a logical development of his support for political reaction at an international level. Putin's record since 2000 has not been one of a failed attempt to establish a functioning democracy after the chaos and corruption of the 1990s. It is a record of success in establishing an authoritarian regime which has promoted itself as a model for far-right movements and regimes round the world. And it is a record regularly punctuated by the physical elimination of Putin's critics and opponents: the journalist Anna Politkovskaya, the anti-corruption campaigner Sergei Magnitsky, and the opposition politician Boris Nemtsov, as well as Litvinenko.
Stop the War "has lost its moral compass and authority"
Letter published in today's Guardian:
We write as previous strong supporters of the Stop the War Coalition and applaud its mobilisation against the disastrous UK and US attack on Iraq. Sadly, since then, on the issue of Syria, StWC has lost its moral compass and authority (Green MP Caroline Lucas steps down from Stop the War Coalition role, 8 December). Stop the War has failed to organise or support protests against the Assad dictatorship and the regime's massacre of peaceful democracy protesters in 2011 – and since. Nor has it shown solidarity with the non-violent Syrian civil society movements for democracy and human rights and with the millions of innocent civilians killed, wounded and displaced by Assad's barrel bombs and torture chambers. It portrays Isis as the main threat to Syrians, despite Assad killing at least six times more civilians.
StWC has repeatedly refused to have anti-Assad Syrian democrats and leftwingers on its platforms at events where Syria is being discussed; whereas it has offered a platform to pro-Assad speakers such as Issa Chaer and Mother Agnes. Moreover, StWC intervened to stop a Syrian Solidarity UK speaker from addressing the Migrant Lives Matter rally in London in April. It has one-sidedly failed to support demonstrations against the escalating Russian, Iranian and Hezbollah military interventions in Syria.
As well as systematically ignoring war crimes committed by the Assad regime, StWC often misrepresents the opposition to Assad as being largely composed of jihadi extremists and agents of imperialism; marginalising the non-violent, secular, democratic, local community and non-aligned opposition to his tyranny. It also misrepresents the call by Syrian civil society organisations for civilian safe havens and humanitarian corridors; claiming they are calls for western bombing, when they are actually bids to stop Assad's bombs and save lives. We urge StWC to take on board these constructive criticisms and change its stance to support the Syrian people's struggle against the war being inflicted on them by both Isis and Assad.
Abdulaziz Almashi Syria Solidarity UK
Peter Tatchell human rights campaigner
Yasmine Nahlawi Rethink Rebuild
Dr Rupert Read University of East Anglia
Dr Amer Masri Scotland4Syria
Darren Johnson Green party London assembly member
Zaki Kaf Al-Ghazal Syrian Association of Yorkshire
Dr M. Alhadj Ali Syrian Welsh Society
Andy Wilson Founder, Reservists Against The War
Muzna Al-Naib Syria Solidarity UK
Dr Odai Al-Zoubi Syrian exile and journalist
Shamira A Meghani scholar
Mark Boothroyd Syria Solidarity UK
Ayob Rahmani & Sattar Rahmani International Alliance in Support of Workers in Iran
Javaad Alipoor Iranian socialist activist
Sam Charles Hamad writer
John Game independent researcher
- Related comment from Paul Canning, here: http://paulocanning.blogspot.co.uk/2015/12/deselect-stop-war-coalition.html
Cripps: egalitarian hero or reformist sell-out?
"(Cripps's 1948 economic programme) is a programme to make Corbynomics look positively Thatcherite by comparison. A rough modern equivalent would involve today's government spending £61bn on food subsidies alone. Yet Cripps and his generation were cutting with the grain of history."
But Tony Cliff wrote:
From Socialist Worker Review, No. 88, June 1986.
Transcribed by Christian Høgsbjerg.
Marked up by Einde O'Callaghan for the Marxists' Internet Archive.
In the 1930s Stafford Cripps became the most prominent spokesman for the far left of the Labour Party. His rhetoric was well to the left of Tony Benn's in the 1980s. Yet in the 1945–51 Labour government he became 'Mr Austerity', congratulated by the Tories for his budgets. Tony Cliff looks at the career of Stafford Cripps.
HALF a century ago the left of the Labour Party was organised in the Socialist League. Its main leader was Stafford Cripps. His story is quite revealing of the weaknesses of the Labour left, not only in the 1930s, but also today.
Cripps was born into a very rich family and was educated at Winchester then at Oxford. His father was a Tory MP for some two decades, and then received a peerage to become Baron Parmoor. Stafford was not indifferent to his father's political activities. One biographer writes: 'Stafford took up the furtherance of his father's cause as the Conservative candidate with all the ardour of a young man of drive and initiative.'
In 1913 he was called to the Bar, and a short time later was appointed Justice of the Peace. In 1927 he became King's Counsel.
'In the years from 1919 to 1926 Stafford Cripps had one other interest outside the law and the village of his adoption. He had become engaged in the affairs of the Church, and particularly in the affairs of the World Council of Churches.'
In 1924 when Ramsay MacDonald formed his first Labour government he hunted for talent outside the Labour Party, and got four Tories and Liberals to join his government: Lord Parmoor, Lord Haldane, Lord Chelmsford and H.P. Macmillan (later to become Lord Macmillan). 'Macmillan, with the consent of the Conservative Party leaders, accepted the office from MacDonald on a non-political basis as a matter of public duty.' In the 1929–31 Labour government Lord Parmoor served once again – as President of the Council and Labour's leader in the House of Lords. (Stafford's uncle, Sidney Webb, who became Lord Passfield, served as Secretary of State for the Colonies.)
As the 1929 general election approached Herbert Morrison tried to attract Stafford Cripps to the Labour Party. Morrison wrote to Stafford Cripps:
'I am personally very anxious to have you in the Party. Please let me know if and when you would like to join the ranks of the Party and I shall be very happy to make the necessary arrangements.'
In May 1929 Cripps became a member of the Labour Party. Early in 1930 he became candidate for the West Woolwich division, and for the rest of that year he gave much time to that constituency. In October 1930 the Solicitor-General, Sir James Melville, resigned in ill health, and Ramsay MacDonald offered the position to Stafford Cripps. He at once accepted, though without a seat in Parliament. On the death of the Labour MP for East Bristol, Cripps was adopted as the Labour candidate and in January 1931 was duly elected.
In government Cripps did not evince any leftist tendencies. Quite the contrary. When he spoke on the 1927 Trades Disputes Act, imposed by the Tories after the defeat of the general strike, Cripps called not for its repeal, but only its amendment. Read the rest of this entry »
Trojan Horse: The Graun's Adams shows his hand – again
Above: Adams
Teachers and senior staff linked to the Trojan Horse allegations of "undue religious (ie Islamist) influence" in Birmingham schools, have been appearing before the misconduct panel of the National College of Teaching and Leadership (NCTL) since mid-October. The NCTL is the professional body for teachers and has the power to impose lifetime prohibitions on teachers.
As the hearing has not yet concluded (it is expected to last until December), Shiraz has taken a conscious decision not to cover the proceedings, even though the hearing is in public and the local Birmingham Mail has carried extensive reports of the disturbing evidence presented by witnesses. Most of the national press, including (until now) the Guardian, also seem to have decided not to cover the hearing in detail, or to be very circumspect in their coverage, while it is in progress*.
But today's Guardian carries an article by the paper's Education editor, Richard Adams, headlined "Witness in 'Trojan Horse' case accused of religious slurs".
Adams's story is written entirely from the standpoint of the teachers and senior staff accused of misconduct, and seems to be based upon the 'line' of cross-examination being pursued by their lawyer, Andrew Faux, as he attempts to discredit one of the witnesses ('Witness A', a former teacher at Park View School) who has given evidence of malpractice. Faux has accused Witness A of herself making a series of racial and religious slurs.
Faux, as a lawyer acting for some of the accused teachers, is perfectly entitled to pursue this line of cross-examination. What is, however, quite outrageous, is for the Guardian, in one of its few articles covering the hearing, to report Faux's attacks in detail, adding that the witness "faced an internal complaint in the wake of comments she was alleged to have made at an event." No details whatsoever are given of the evidence presented by Witness A against the teachers and senior staff of the Trojan Horse schools.
Adams closes his article by repeating, once again, the tired old red herring that "The [Trojan Horse] letter is widely regarded as a hoax" – yes it is, but that's not the point. The question is, are the claims of Islamist influence in Birmingham schools true or not? The answer to that question has nothing to do with whether the Trojan Horse letter was all it purported to be.
Whether Adams is acting directly on the wishes of Mr Faux and his clients, or whether he (Adams) is so committed to defending/excusing the accused teachers and senior staff that he simply cannot write an impartial article, we shall probably never know.
But he has form:
Here's what Adams, had to say about this matter in June 2014, shortly after the story first sufaced: "Is the Trojan Horse row just a witch hunt triggered by a hoax?"
This shabby article by Adams was not a one-off: he had previously reported on Park View School (the academy at the centre of the allegations) following a visit that was quite obviously organised and supervised by the school's ultra-reactionary Islamist chair of governors, Tahir Alam. In short, Adams has been a mouthpiece and conduit for the Islamist propaganda of people like Alam, Salma Yaqoob and the SWP throughout.
- * Adams has written two other articles covering some of the allegations, and emphasising that "The Department for Education said its case against Johirul Islam, a former teacher at Park View, 'has been discontinued' in the hearing's fourth day… The decision suggests the NTCL may struggle to press its case against several other teachers facing similar allegations" (here)
- * The Guardian website has carried another article reporting one of the allegations of misconduct: this was not, however written by Adams, but came from the Press Association. And as far as I'm aware (and I read the Graun every day) it did not appear in the print edition – C.C.


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July 21, 2008
DEVIN WELCH, PETITIONER,v.UNITED STATES OF AMERICA, RESPONDENT.
On February 25, 2008, Petitioner Devin Welch filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, along with a Memorandum of Law in Support (#1). On April 3, 2008, the Government filed its Response (#4), and on June 17, 2008, Petitioner filed a Reply (#7). For the reasons that follow, Petitioner's motion is DENIED in part and GRANTED in part.
On September 8, 2005, Petitioner was indicted on a charge of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. §922(g)(1). On November 16, 2005, Petitioner pled guilty to the charge in the indictment. At sentencing, it was determined that Petitioner had four prior convictions that would qualify him as an Armed Career Criminal (ACC) under the provisions of 18 U.S.C. § 924(e)(1). Petitioner had prior convictions for attempted armed robbery (committed as a juvenile), aggravated fleeing, and two aggravated batteries, one of which stemmed from an incident where Petitioner spit on a hospital employee. The court chose not to rely on the spitting conviction, holding that Petitioner still had the requisite three violent felony convictions necessary to qualify as an ACC. Petitioner was sentenced by this court to 180 months imprisonment, the statutory mandatory minimum sentence.
Petitioner asserts several interwoven claims. First, Petitioner argues that this court improperly delegated authority to the Probation office with regards to the number and range of drug-tests to which Petitioner is to be subject during supervised release, and that defense counsel was ineffective in failing to raise this issue at sentencing. Next Petitioner argues that two of his prior offenses should not have been considered when calculating his sentence as an ACC, and that counsel was ineffective in failing to challenge the characterization of those offenses. Finally, Petitioner contends that his appellate counsel was ineffective in failing to challenge on direct appeal the finding that he qualified as an ACC. A § 2255 motion to vacate, set aside or correct a sentence is "neither a recapitulation of nor a substitute for a direct appeal." Daniels v. United States, 26 F.3d 706, 711 (7th Cir. 1994), quoting Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992). Constitutional errors not raised on direct appeal may not be raised in a § 2255 motion unless Petitioner can show cause for failing to raise the issue on appeal and that Petitioner suffered prejudice as a result of the default, or else that "a fundamental miscarriage of justice" would result from failing to consider the claim. McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir 1996).
To establish ineffective assistance of counsel, Petitioner must demonstrate that his counsel's representation: (1) fell below an objective standard of reasonableness; and (2) that the attorney's deficient performance prejudiced the Petitioner. McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007) citing Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). In evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, quoting Michel v. State of Louisiana, 350 U.S. 91, 101 (1955). To establish the prejudice prong, Petitioner must show that there is a reasonable likelihood that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687. Petitioner's claim fails if he fails to establish either the reasonableness or prejudice prong of the Strickland test.
Petitioner asserts that drug-testing requirements that were a condition of his release were improperly delegated to the probation office. The government concedes that, according to the Seventh Circuit's holding in United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998), the responsibility for determining the number or range of drug tests to which a defendant must submit falls to the district court and cannot be delegated to the probation office. The Government accordingly recommends, and this court agrees, that the proper remedy is to strike the word "testing" in the second sentence of Special Conditions of Supervision #2 and replace it with "not more than six tests per month." This amendment clarifies that the Court has specifically ordered the range of drug tests to which the Petitioner must submit, and renders Petitioner's drug-testing requirements identical to the language that the Probation office now recommends in all cases involving drug-testing as a condition of supervised release. Petitioner's motion is granted, to the extent that his sentence, in this regard only, is vacated and an amended special condition is imposed that corrects for the improper delegation of authority to the probation office.
Petitioner next contends that he was improperly classified as an ACC, and that his lawyer was ineffective in failing to challenge this classification at sentencing. To qualify as an ACC pursuant to 18 U.S.C. § 924(e)(1) (ACCA), a defendant must possess three prior convictions for a violent felony or a serious drug offense. Because Petitioner was determined at sentencing to have three prior qualifying offenses, he was sentenced as an ACC. At his sentencing hearing Petitioner objected, pro se, to the characterization of several of his prior convictions as predicate offenses under the ACCA, but the issue was not raised on direct appeal. Petitioner now challenges two of those three determinations.
At sentencing, the court determined that Petitioner's juvenile conviction for attempted armed robbery did qualify as a violent felony. Relying heavily on the Ninth Circuit's decision in United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), Petitioner contends that this conviction should not qualify him for classification as an ACC since it did not result from a jury trial, and that his lawyer was ineffective in failing to raise this claim at sentencing. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),the Supreme Court held that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory minimum must be submitted to a jury, and proved beyond a reasonable doubt." In Tighe, the Ninth Circuit held that the prior conviction exception in Apprendi did not cover juvenile adjudications, asserting that "the fundamental triumvirate of procedural protections," namely fair notice, reasonable doubt, and a jury trial, must be in place before an adjudication can qualify for an Apprendi exception. Tighe, 266 F.3d at 1193-1194.
Since Tighe, every other Court of Appeals to consider the issue has rejected the Ninth Circuit's reasoning and concluded that juvenile adjudications can count as predicate offenses for ACCA purposes. See United States v. Matthews, 498 F.3d 25, 34-36 (1st Cir. 2007); United States v. Crowell, 493 F.3d 744, 750-751 (6th Cir. 2007); United States v. Burge, 407 F.3d 1183, 1190-91 (11th Cir. 2005); United States v. Jones, 332 F.3d 688, 696 (3rd Cir. 2003); United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002). Noting that there is no constitutional right to a jury trial in a juvenile court's adjudicative stage, the Third Circuit held that, "[a] prior non-jury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes." Jones, 332 F.3d at 696.
The Seventh Circuit has yet to make a determination on this issue, and this court does not feel that it is necessary to do so here. Unlike the cases cited from other circuits, this is not a direct appeal, but a motion to vacate a sentence under § 2255, in which Petitioner's principal claim is ineffective assistance of counsel.*fn1 An assessment of counsel's performance must rest on the state of the law when Petitioner was sentenced. See Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003). The Government is correct in asserting that, at the time of Petitioner's August 2006 sentencing, three circuits had already rejected the holding of Tighe, and reaffirmed the prior conviction exception to Apprendi for juvenile offenses. Thus, it was not outside the range of reasonable professional behavior for Petitioner's counsel to choose not to challenge the characterization of Petitioner's juvenile conviction in light of the fact that the Ninth Circuit stood, and still stands, alone among the circuits in refusing to recognize such crimes as predicate offenses.
In addition, Petitioner cannot show prejudice based on counsel's failure to challenge the status of his juvenile conviction at sentencing, since Petitioner himself raised these concerns, and they were fully heard by the court. The record shows that the court specifically indicated to Petitioner that, while the issue was not resolved in his favor, he had successfully preserved the issue of the constitutionality of his sentence, including the status of his prior juvenile offense, for challenge on appeal. Petitioner's claim of ineffective assistance of counsel on this point thus fails both the prejudice and the reasonableness prong of the Strickland standard.
Petitioner also challenges the determination that his Cook County conviction for aggravated fleeing/eluding a police officer qualified as a violent felony for ACC purposes. In contrast to Petitioner's characterization of this type of charge as merely a serious traffic offense, the Seventh Circuit held in United States v. Howze 343 F.3d 919, 921 (7th Cir 2003) that flights to avoid arrest are categorically crimes of violence because they involve serious potential risk of injury to another. Noting that flight to avoid apprehension may in fact present more risk of violence than escape attempts, which are regarded as violent crimes for ACCA purposes, the Seventh Circuit reasoned, "[b]ystanders are in particular jeopardy. Collisions between fleeing vehicles and pedestrians or others who get in the way are common." Howze, 343 F.3d at 921. Thus, although Petitioner is correct that the Seventh Circuit has not specifically determined that the crime as defined in Illinois law qualifies as a violent felony for ACC purposes, the categorical language of the holding in Howze, and the similarity between the Wisconsin statue at issue in that case and the Illinois statue under which Petitioner was charged, lead to a determination that this court was indeed correct in interpreting Petitioner's aggravated fleeing offense as a violent felony.*fn2
With regards to Petitioner's claim of ineffective assistance of counsel, at the time of Petitioner's sentencing there was very little in the case law to suggest that an objection to the categorization of the aggravated fleeing charge as a violent felony was likely to succeed, given the holding in Howze, Thus, it was not unreasonable for Petitioner's defense counsel to choose not to raise this issue at Petitioner's sentencing hearing. Moreover, Petitioner cannot demonstrate the necessary prejudice based on counsel's failure to challenge the categorization of the fleeing offense as violent felony, since Petitioner himself raised this issue, and the sentencing court rejected it. Because he cannot demonstrate prejudice, Petitioner's claim of ineffective assistance of counsel fails.
Petitioner finally asserts that his appellate counsel was ineffective in failing to challenge the sentencing court's determination that his prior offenses qualified him as an ACC. In a related claim, Petitioner argues that appellate's counsel's ineffective assistance provides the necessary cause to bar a procedural default of those claims. Even if Petitioner can demonstrate cause for the procedural default, however, he cannot demonstrate prejudice. Admittedly there is no controlling authority directly addressing the question of whether juvenile offenses in non-jury adjudications count as violent felonies under the ACCA, nor has the Seventh Circuit, to date, ruled that flight to avoid apprehension, under the Illinois statue, should qualify. However, the case law that does exist leans heavily towards the conclusion that this court was correct in finding that both offenses did qualify Petitioner for an enhanced sentence under the ACCA. The case law is clear that an attorney's failure to anticipate changes in existing law does not rise to the level of constitutional ineffectiveness. See Lily v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993) (holding that the Sixth Amendment does not require counsel to forecast changes or advances in the law). Because Petitioner has not demonstrated that a constitutional challenge to the district court's characterization of his prior offenses as violent felonies was likely to succeed, he has not shown that he was prejudiced by his appellate counsel's failure to raise the issue on appeal. Because there was no prejudice, his claim of ineffective assistance of counsel fails. Likewise, Petitioner's constitutional challenge to the characterization of his prior offenses is procedurally defaulted because Petitioner has not demonstrated that he suffered prejudice as a result of the default, nor has he shown that failing to consider these issue on the merits would lead to a fundamental miscarriage of justice.
(1) Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) is DENIED in part and GRANTED in part.
(2) Petitioner's Motion (#1) is granted solely to the extent that his sentence is vacated regarding the improper delegation to the probation office of the drug-testing requirements that were a condition of his release. Accordingly, this court orders that the judgment entered in Case NO. 05-CR-20038 is corrected so that the word "testing" in the second sentence of Special Conditions of Supervision #2 is replaced with "not more than six tests per month." Petitioner's (#1) motion is denied in all other respects.
(3) This case is terminated.
ENTERED this 21st day of July, 2008
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34 Holiday Ideas for Gifts in a Jar
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Latest Comments
"I saw this pattern and thought it would be great to go in my gift tins for my homemade spa sets for Christmas. I started the pattern but kept having trouble with the puff stitch. When I try to pull through the loop the hook gets stuck and pull a strand or two out making it look un-neat. Is there a way to prevent this? Could it be the yarn I am using?"
"I love this pattern for making dishcloths! It is so simple and it's so easy to remember. It makes a great,durable dishcloth. Does anyone tried this pattern with that new yarn that is made for making dishcloths? I think it might be a rayon blend. I'm going to try it next time I need dishcloths."
"This is a great beginner project, it was easy to follow and gave great instruction. I was able to work up several of these for co-workers who thought it was so cute. I am going to make several more for my home for company to use when they come over and have coffee."
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Cool Yule Card
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Create a snowman card from Uchida of America, perfect for the winter season.
- Marvy® Wafugami Specialty Paper Crafting Bundles - Light Blue Gingham Combo, Summer Daze Combo (small scrap of orange)
- Marvy® Clever Lever Punches (Super, Extra Jumbo, Jumbo) - Circle
- Marvy® Pigmented Artist Pen- Black
- Cardstock- Black, White, Bazzill Basics®
- Black paper with white dots- Making Memories®
- Alphabet Stamps- 1/2" Mixed Letters, Hero Arts®, 1/4" lowercase letters
- Black pigment inkpad- Versacolor, Tsukineko®, Inc
- Paper Glue - Zip Dry™ Paper Glue, Beacon Adhesives®
- 3/8" ribbon: Black and White Gingham - 6 1⁄2" Bobbin Ribbon, Morex®; White with black dots - 6", Offray®; Light blue with white dots - 5", Offray®
- Ruler
- Marvy® Squishy Scissors
- Paper Trimmer, paper scorer
All measurements are in inches.
- Cut and glue papers to card. Cut black cardstock to 6 1/2" x 10". Score and fold in half for card. Cut black and white dots paper to 5" x 6 1/2". Glue to front of card. Cut white cardstock to 3" x 4". Glue to inside center of card. Cut Wafugami paper as follows:
Blue- one 3 1/2" x 4"
Light blue gingham- one 1 1/2" x 4", one 1/2" x 4"
Black and white dots- one 1" x 3 1/2"
White- one 3/4" x 3"
- Tear edges of cut blue paper. Ink with black ink pad if desired. Adhere to top front of card. Layer remainder of cut rectangles, except 1/2" x 4" piece. Glue together and adhere to bottom front of card.
- Assemble snowman. Use punches to punch one circle each from the white paper. Ink edges if desired. Glue to card on blue paper for snowman. Fold remaining 1/2" x 4" piece for scarf and glue under head piece. Cut triangle from blue gingham paper for hat. Cut small triangle for nose from orange scrap. Tear small strip of black and white dots paper for hat brim. Glue hat, hat brim and nose to snowman. Use fine tip of marker for eyes and mouth.
- Rubber stamp card. Use 1/2" mixed letter stamp set to stamp "Very" on white paper on card. Use 1/4" stamps for "cool yule." Use swirl stamp in 1/2" letter set for details on blue paper and blue gingham paper on card.
- Adhere ribbons. Glue black and white gingham ribbon to left edge of front of card. Cut white ribbon with black dots into two lengths of 5" and one 1". Glue 5" white ribbon with black dots to front of card, 3/4" down from top of card above sentiment. Glue blue with white dots ribbon to right edge of card. Glue remaining knotted piece to far right side of card on white with black dots ribbon.
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Photo: Homemade
Steak and polenta chips
Perfectly cooked steak and light polenta chips – ideal for dinnertime for two
Ready in 45 minutes, plus cooling time
Cooking time 30 minutes
Prep time 15 minutes, plus cooling time
Serves 2
- 100 g polenta
- 1 garlic clove, peeled and crushed
- 2 tbsp grated parmesan cheese (8g weight when freshly grated)
- 1 tsp freshly ground black pepper
- 1 tbsp olive oil
- 2 x 100g British beef sandwich steaks (at room temperature)
- 8 large cherry tomatoes, halved
- 10 fresh basil leaves, shredded
Put 425ml water and a large pinch of salt in a heavy-based pan and bring to the boil. Slowly whisk in the polenta, stirring continuously. Bring back to the boil and simmer, stirring all the time, for 2-3 minutes until thickened. Remove from the heat and stir in the garlic and half the parmesan and half the black pepper.
Spoon the polenta on to a board lined with cling-film and shape to a rough 25 x 8 cm rectangle. Leave to cool completely.
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Serve the steak and polenta chips with the cherry tomatoes sprinkled with the basil.


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Free Download: Mitzi Meyerson plays Lessons for Harpsichord by John Jones
This Week's Free Download
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NFL's Wealthiest Players or Coaches of All Time
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Another financial summer that wasn't
Recent northern hemisphere summers have seen volatility wreak havoc on the markets like an untamed monsoon. Worrying, there are five good reasons we could see the same again this year.
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