Monday, December 17, 2012

A Tale of Two Spies

The Shafeek Nader Trust honored two whistleblowers at a ceremony on November 12. The ceremony was chaired by Laura Nader while her brother Ralph watched silently from the edge of the audience. They chose to honor William Binney, formerly of the National Security Administration (NSA) and John Kiriakou, formerly with the Central Intelligence Agency (CIA). Both of these men were portrayed as whistle-blowers who became targets of Obama's justice department.

The Trust used this awards ceremony as a stage to press for the impeachment of President Obama. They invited an ultra-conservative lawyer, Bruce Fein, to make their case. Fein has called for the impeachment of the last three presidents and made his reputation by participating in the impeachment of Richard Nixon. 

Conservatives have abused every part of the Constitution to keep themselves in power. Impeachment should be a last resort, as in the case of Nixon. In the case of Clinton, impeachment was a means to prevent the duly elected president from fulfilling his promises. Conservatives are now trying to destroy Obama's second term. No one who believes in democracy should support this movement.

The Trust chose to honor William Binney and John Kiriakou at one ceremony. One of them is a whistleblower; the other is a self-promoter. Both worked for intelligence agencies, Binney for the NSA and Kiriakou for the CIA. There the similarities end.

Binney worked as a codebreaker for the army and then the NSA for 40 years. He kept on doing the job because, as he says, it was fun. Binney is a tall, nerdy man with a pleasant voice and a wry sense of humor. He addressed the audience too briefly to display his humor fully. He was honored, among other things, for the 2007 New York Times video in which he described “Stellar Wind”, a top secret computer program of the National Security NSA. The NSA has been using this program to collect information on all Americans and then storing this information in a huge repository in Bluffdale, Utah. Binney, who clearly is knowledgeable on this subject, calculates that the Utah facility has the capacity to store 100 years of the entire world's electronic communication.

Binney worked for years as a code breaker and electronic espionage expert at the NSA. In 2001, the NSA proposed a new project that would cost billions of dollars. Binney coded a much more modest program that could be implemented for a fraction of the price. Binney called this program ThinThread and used it to sift through the electronic records coming in from overseas. Soon he noticed that his contractors were drifting away and computers were being requisitioned for another project. This project was Stellar Wind. His contractors told Binney they were eavesdropping on the communications of American citizens. Binney decided this was wrong so he informed the Congressional oversight committees. Since then, he has been testifying regularly.

In 2007, Binney agreed to appear in a 7-minute video for the New York Times. In the video, he spoke freely about Stellar Wind. He related an amusing incident when his home was raided by the FBI. He was in the shower and an FBI agent interrupted him while pointing a gun at his head. The FBI wanted to know if he had knowledge of any crimes. He said he did, and sat down with them (after first getting dressed) to explain the crime committed by Bush, Cheney, General Haynes (head of NSA) when they started using Stellar Wind to spy on the American people.

“I presented them with a problem,” he said. “Because these FBI agents did not have security clearance.” The problem for the government was that Binney did give up top secret information, but he did so at the point of a gun. Binney knew that the senior officer on the raid did have clearance, but could say nothing to the others. Binney reminded that officer that the Nuremberg defense would not work, that the officer could not claim that he was just following orders. To this date, Binney has not been charged with any crime. He believes the NSA needs better oversight: procedures that regulate collection of electronic data or selection of drone assassination targets need to be publicized, not executed in secret. The congress needs to act to define and limit the powers of the president in these areas.

Binney is the prototype of a whistleblower. He resigned his position with the NSA and began testifying before every committee of congress that invited him. He has told everyone who listens that he believes the actions of the NSA are unconstitutional and illegal. The second honoree at the evening's ceremony did not act from similar honorable motives.

John Kiriakou, formerly of the CIA. Kiriakou worked for the CIA for 14 years, beginning in 1990. The CIA had been directing various covert wars in Central America and the Caribbean at that time. Its proxies were widely believed to be involved in illegal activities, including dealing drugs, killing prisoners, and torture. None of these activities deterred Kiriakou from joining the CIA.

After 9/11, Kiriakou and the CIA became involved in covert activities in Afghanistan. Kiriakou says that he had the opportunity to learn how to torture prisoners using waterboarding but that he refused to take the course. Again, he was not bothered by the CIA's sanction of illegal activities. Kiriakou evidently read top secret agency reports, since he later reported that Abu Zubaida was waterboarded.

Kiriakou quit the CIA in 2004. He did not appear to have moral or legal issues with the agency. His motive was, evidently, to further his career. He immediately went to work in a series of private industry jobs related to his expertise in gathering intelligence.

Kiriakou gave an interview to ABC News in 2007 in which he claimed that waterboarding was effective in extracting data from Abu Zubaydah. After his ABC interview revealed Kiriakou as a whistle-blower, the former CIA agent gave interviews for other media organizations repeating his position that waterboarding was effective and necessary.

In 2009 the Obama administration ordered four secret memos released to the press. These memos disclosed to the first time that Abu Zubaydah had been waterboarded not once but 83 times, and that he stopped giving valuable information after his captors started mistreating him. In his 2009 book, Reluctant Spy: My Secret Life in the CIA's War on Terror, Kiriakou admitted that he had not been present at Abu Zubaydah's interrogation but instead relied had on internal CIA cables for his information.

In 2012 the Justice Department brought charges against Kiriakou for four violations of US official secrecy law, primarily based on email communications with the co-author of his book. The Attorney General had failed in its attempt to prosecute

In a question and answer period after his statement for the award ceremony, Kiriakou was asked why he was being prosecuted at this time. He avoided answering the question, but the answer is obvious from the charges against him. Three of the charges relate to revealing the name of a covert operative. In 2008, Kiriakou revealed to two journalists the name and telephone number of a covert CIA officer who had directed the waterboarding of Abu Zubaydah. The evidence for this was an email correspondence between Kiriakou and the journalists. Kiriakou's defense was that the journalist already knew the covert officer's name from another source. The evidence in the emails included in the court record did not support this.

The fourth charge against Kiriakou was that he lied to the Publications Review Board about the book he published in 2009. In the book, Kiriakou gave detailed descriptions of waterboarding, which at the time was a classified procedure. He told the Review Board, however, that this was a fictionalized account. He confided to his co-author in emails that the board would not probably not bother to check his story and that maybe they could get some classified material into the book. Kiriakou walked into a trap there. The most common charge used by the government against defendants is lying to a federal agent, a felony. The lying generally occurs during an investigatory interview, so defendants frequently avoid such interviews. Kiriakou could not avoid the interview because he had written a book. He should have taken care to tell the truth at the interview, but instead chose to deceive the FBI about the contents of his book. His hubris betrayed him.

The true whistle-blower acts selflessly. His moral sense is offended by the actions of his organization. He code of honor leaves him choice but to reveal company or government secrets to the public. William Binney expressed this by saying that he knew that spying on American citizens was wrong and he could take no part in it. But he never exposed individual operatives to danger, nor did he give details of his project away that would have permitted enemies to counteract them or use his inventions against the United States. His actions did not break any laws and he has never been charged with a crime.

Kiriakou, by contrast, did not take a personal risk by telling what he knew about waterboarding in the CIA. At the time he spoke, Kiriakou had already been out of the CIA for five years, so he did not fear dismissal. He did not oppose waterboarding on moral grounds. He argued that waterboarding was effective and almost painless, since it only took 30 seconds to elicit a confession from the most hardened Qaida soldier. Kiriakou revealed this information at least in part because he was contemplating writing a book about his experience and he needed to raise his public profile to sell the book.

Barack Obama became president in 2009. One of his first acts as president was to release four classified documents that described waterboarding by the CIA, as well as two Justice Department documents that were written at the request of the Bush administration to provide a legal opinion that waterboarding was legal, despite historical evidence that it had always been torture and therefore banned by the Geneva protocols. When Obama released these documents, Kiriakou could no longer be prosecuted for divulging classified material.

After Kiriakou disingenuously prayed that Obama might commute his sentence, Bruce Fein gave a speech calling for the impeachment of Barack Obama. Fein was a member of the team that brought impeachment charges against Richard Nixon. After serving as an assistant Attorney General in the Reagan administration, Fein also called for the impeachment of Bill Clinton and George Bush. His charges coincided with the charges that Ralph Nader has made against Obama, that Obama has unconstitutionally waged war against Libya and killed US citizens without a trial using drones.

Bruce Fein spoke for about five minutes giving as fine a jury summation as you will ever hear. Following his speech, Laura Nader, the chairwoman, called for those in attendance to sign a petition calling for President Obama to pardon Kiriakou. This petition made no sense. Kiriakou was caught by the justice department while making a series of blunders, not because he was exposing wrongdoing by the CIA but because he was marketing himself as a security consultant. The Justice department was doing its job by protecting CIA agents from having their identities compromised. The chances that President Obama would help Kiriakou were almost nil.

Jesselyn Radack from The Government Accountability Project (GAP) sat beside Kiriakou during the awards ceremony. Radack had already written a couple of articles, one on the Daily Kos and another in Salon, in which she declared her support for Kiriakou and denounced the Obama administration. The Obama administration deserves some criticism in other cases, but its behavior in this case seems appropriate. Kiriakou was a whistle-blower who acted in his own interest. Radack would have us ignore the facts of the matter (she never mentions that he publicly approved waterboarding) and also ignore the fact that Obama acted almost immediately upon his election to ban waterboarding and released previously classified documents that showed the extent of the problem.

Radack claims that the Obama administration is waging war against reporters. Not a single reporter was arrested or charged. The government charged insiders who revealed classified material to the press. The issue of protecting classified information should be entirely separate from the issue of whistle-blowing. Binney was a whistle-blower. He testified before congressional oversight committees. When they ignored him, he spoke to the press. He never revealed the identity of any NSA and he never revealed details of the classified projects he was working on. Binney wanted the leaders in the Bush administration to take the blame for breaking the law, not the low-level programmers who carried out the orders of others.

According to the indictment, Kiriakou specifically named a low-level CIA operative to three reporters. The information he gave them was forwarded to attorneys for inmates in Guantanamo, along with pictures, which were found by the jailers at Guantanamo. Kiriakou therefore endangered the life of a CIA operative, the crime with which he was charged and the one to which he pleaded guilty.

The awards ceremony had elements of a trial. The defendant, Kiriakou, could not testify fully because he had already signed an agreement with the court not to claim innocence of the crime to which he was pleading guilty. So he said he believed in his heart that he was innocent, then refused to proceed any further because, he claimed, he might have said too much already. Kiriakou pretended that he had no idea why the government had decided to prosecute him 5 years after he had given the interview to ABC. He knew very well that he was not being prosecuted for leaking information about torture. That was not one of the charges against him. The government was charging him with crimes committed after that interview and unrelated to it.

Radack took the part of his attorney in this drama. She said the only reason he was pleading guilty was so that he could be with his children while they were growing up. If Kiriakou had said that, he would have violated his plea bargain, but the substance of the plea bargain was not revealed to the audience. Just as in a criminal trial, the quasi lawyer, Radack, withheld information that made her quasi client, Kiriakou, look bad.

Radack was not Kiriakou's lawyer during his trial. She pleaded his case in the press, always arguing in ways calculated to minimize his guilt. Kiriakou pled guilty to only one count, that he lied to the FBI in an effort to get classified material into his book. Radack argued that the classified material was not published. She concealed the actual indictment from her readers. The crime he pled guilty to was lying to a federal investigator, not making classified material public.

The groups involved in this awards ceremony, the Shafeek Nader Trust and the Government Accountability Project, as well as the individuals who assisted them in this enterprise, Jesselyn Radack and Bruce Fein, should have chosen a better subject for their efforts. Everyone who leaks information is not a whistle-blower. Kiriakou leaked some information (the habitual use of waterboarding) while maintaining falsely that waterboarding was effective. Binney and Thomas Drake are principled men who speak the truth at great personal risk. Drake has lost his job and pension. Radack also made a difficult decision to publicly expose the lies of the Bush Justice Department. True whistle-blowers deserve our support. Self-promoters do not.

Other progressives have called for Obama's impeachment. Ralph Nader has accused Obama of committing war crimes that amounted to impeachable offenses. Glenn Greenwald believes that Obama could be impeached over the invasion of Libya. These people want to destroy the progressive agenda by attacking Obama on constitutional grounds. We are at war now, a war between the one per cent and the ninety-nine percent. This is an all-out, no holds barred battle. Progressives need to decide which side they support and not play intellectual games as if they are lecturing on a college campus.

Sources (partial list)

Brian Ross interview with John Kiriakou, Oct 12 2007, ABC News,

Scott Shane, Waterboarding used 266 times on two suspects, New York Times,,(Shane was one of the two journalists referred to in the Kiriakou indictment).

Jessylen Radack, The Truth about the Espionnage Act Prosecution of John Kiriakou, Government Accountability Project,

Tuesday, November 20, 2012

Beauregard Legal Remedies

The City of Alexandria and developers, including JBG Corporation, have agreed on a development plan that will cause 7500 people to lose their homes within a short time. The City Planners present this plan as a done deal with no possibility of revision.

Issue: Is the Small Area Plan truly final?

The City Planning Commission claims that the developers have the right to build whatever they want on these properties. The Commission justifies their acquiescence by asserting that the developers plans would be much worse unless the Commission cooperates and enables the plan. This is absolutely untrue. The developers need to acquire building permits from the city for every structure they intend to erect. The city can attach requirements to a building permit so long as the property owner is compensated for the requirements.(1) The city has great latitude in what it requires of a builder of a single structure. The builder in this instance is proposing changes to the basic nature of the property that affect the City's Master Plan and the quality of life of other residents of the neighborhood. The city can add requirements at any time to bring the new construction into line with the Master Plan.

(1) Nollan v. California Coastal Commission, 483 US 825,842.

Issue: Are there any statutes in Virginia that protect the tenants from this action?

The tenants are protected by the Virginia Fair Housing Act, which prohibits landlords from discriminating against tenants in the sale or rental of property. 18 VAC 135-50-100(A)(1) Prohibits landlords from assigning any person to a particular section of a community, neighborhood or development or to a particular floor or section of a building because of race, color, religion, sex, handicap, familial status, elderliness, or national origin.

Issue: Can the developers avoid the Fair Housing Act by donating affordable housing units to the city? 

The developers have offered to donate two buildings to the city to be managed as affordable housing. The developer understands that it cannot segregate classes of people (based on race, color, religion, etc.) from the rest of the population in its development. The developer hopes to evade this legal prohibition by donating the affordable housing buildings to the city. These buildings will no longer form part of the landlord's property and therefore may not violate 18 VAC 35-50-100(A)(1). The effect of this plan will be exactly the same as if the developer owned the affordable housing units, and therefore they will still violate the Fair Housing Act.

Sunday, November 18, 2012

Bill McKibben and Chris Hayes

Holly and I attended's DC rally today (11/18/12). Here is a clip that shows Bill discussing his project with Chris Hayes.

Visit for breaking news, world news, and news about the economy

Wednesday, October 24, 2012

Redevelopment: The Ugly Truth

In a previous post, I outlined the joint efforts of JBG Corporation and Alexandria City Government (the Planners) to demolish 2475 low-income housing units located on Beauregard Road in West Alexandria (the Village). The Planners intend to destroy those units and force the residents to leave their homes, but have no plans to provide replacement housing for them. There is a very tentative plan to build or restore 875 affordable apartments but these will not be available until long after the current residents are forced to leave.  aside from a few, very speculative, affordable housing units (AFUs). In 30 years there may be 875 of these.

The Planners view the housing complex as an embarrassment, not just for what it is, but for who lives there. The complex is composed of 50-year-old, 3-story apartment blocks. The Planners believe these buildings can be replaced by a much more profitable mix of apartments, townhouses, and condominiums. The Planners also envision more office space, retail stores, and modifications to the streets that will improve traffic flow and well-paid office workers to settle here.

Mostly, the planners dislike the current residents, who are poor and non-white. Their ethnic cultures are diverse. Nearly half are latinos, many from Central America, but the residents also come from Ethiopia, Iran, and India. The Planners believe that these people must be removed before to make way for more affluent tenants. They envision a new neighborhood devoid of ethnic minorities. This new neighborhood, they hope, will have more expensive homes, pay higher taxes, and return more money to JBG in the form of rents or condominium sales.

This plan is not the first to expel minorities from their homes in the name of progress. It is filled with unfunded promises, like the provision of affordable housing and the streetcar that may happen some day. These extras are the bait that makes the project palatable to the city. Without them, the plan is simply a way for a corporation to make money.

Other redevelopment plans have promised much, delivered little:

Fillmore District, San Francisco, 1950s

In the early 1950s, the city of San Francisco developed a plan to remove unwanted minority populations and to reap great financial rewards. The city demolished much of the Fillmore district, a primarily African-American community in the geographical heart of the city. The Fillmore district was famous for its black culture, including jazz clubs that brought world-class talent to San Francisco in an era when the bay area was a cultural backwater. The redevelopment destroyed the cultural nexus of the region. Nineteenth-century wooden houses, for which the city is justly famous, were replaced by sterile cement-block housing projects where life took on a nightmarish quality. The neighborhood remained unsettled, with vacant lots and empty stores, for thirty years. The people evicted from their homes never returned.

Chavez Ravine, Los Angeles, 1950s

The city of Los Angeles decided to demolish the Mexican barrio in Chavez Ravine in 1950. The city planners had a lofty goal, the creation of a low-rent development called Elysian Fields. They had to evict Mexican-American homeowners and renters who had turned the neighborhood into a cultural center. Planners bought out the residents using eminent domain, threatening that those homeowners who did not sell immediately would receive less for their properties. Elysian Fields was never built. Instead, the cleared property was sold at a bargain-basement price to the Brooklyn Dodgers as an enticement to bring a major-league baseball team to Los Angeles. Once again, the city was happy, the developers were happy, and the LA Dodgers were happy, but the people who had lived in the area lost their homes and their community.

L'Enfant Plaza, Washington DC, 1966 (ongoing)

DC planners wanted to create a Parisian-style plaza through the L'Enfant Plaza project. The area south of the National Mall was a typical DC neighborhood of old wood frame houses and apartment houses. Those houses were demolished and replaced with an immense expanse of concrete pavement and office buildings. The office buildings encircle the plaza and cut it off from the National Mall. Most of the retail shops are underground. Urban spaces must appeal to people to be successful. L'Enfant plaza discourages pedestrian traffic by having an underground an underground mall and leaving the plaza itself devoid of any human-scale elements. People go to L'Enfant plaza to get to and from the Metro station work.

The National Capital Planning Commission (NCPC) recently proposed reviving L'Enfant Plaza by demolishing the Forrestal Building and restoring views of the Capitol building along Maryland Avenue. NCPC's plan recognized the shortcomings of the original plan and sought to rectify them by adding apartment houses in the area to humanize the vast stretches of concrete. JBG, which owns most of the office space around L'Enfant Plaza, rejected the NCPC plan. JBG instead proposed placing a 12-story office building in the center of the space. This would exacerbate the already severe problems of usability and design in the Plaza, but would have the effect of increasing JBG's rents.

The Village, Alexandria VA, 2014.

JBG intends to force Latinos and other immigrants out of their homes. JBG brags on its website that it is committed to giving back to the neighborhoods where it does business. This claim contradicts its intention to evict 2400 families from their homes. The scale of suffering is enormous. This redevelopment process will destroy 30% of the affordable housing in Alexandria, displacing about 7,700 people, including about 2500 children. JBG considers these people a liability because their presence will discourage upscale homebuyers from settling in the area. JBG plans to donate only two buildings, containing about 100 apartments, for affordable housing. These buildings are located at the farthest end of the property. They will not be visible from the main thoroughfare, Beauregard Avenue.

The neighborhood has changed. The new arrivals have displaced whites in the Village over the years. The white-oriented businesses in the area have withered. Landmark Mall is nearly empty of stores and has lost most of its upscale clientele, with a few remaining shops that cater to the new neighborhood.  Other new businesses in the area include a block of African restaurants on South James Mason Avenue at Seminary Avenue and a mall on Little River Parkway that contains a halal butcher, a latino bakery that also serves hot food, a pho restaurant, and the Grand International Market.

A major competitor for this new development project is the massive Kingstowne Town Center and Town Center Mall, only five miles away. The Kingstowne Town Center mall has much more space, a movie theater, and several restaurants. Walmart has located a store there. This area is far more attractive to potential home owners and apartment dwellers than the site JBG proposes to develop. It is likely, therefore, that this property will remain vacant and underutilized for 30 years after the houses on it are demolished.

The current project risks becoming a fiasco. The Planners have designed a city of the future that looks a lot like the past. Their new project will construct a grid system of streets to let residents stay in their cars right up to their doors, very much like every other urban area. The project will bring more cars into an area already jammed with them. The Planners' big idea to handle traffic is express buses with dedicated commute lanes. The wider, busier streets will divide neighborhoods and provide hazards that families with children will want to avoid. Instead of making it easier to get around by walking and bicycling, the plan will make it harder. The Planners fail to explain why the more affluent residents in their city of the future will start riding buses when they never have before.

Finally, the Planners intend to cut down hundreds of mature trees and replace them with concrete structures and pavement. Trees should be preserved and appreciated. The open spaces that contain them should be preserved and appreciated. The families who live in this area should be preserved and appreciated. Nothing in this plan makes any sense. The only reason to adopt it is to improve the bottom line of a corporation that has shown by this plan that it cares nothing at all for the city of Alexandria and the people who live here.

The City Council have given up on the city in the face of corporate bullying. They should fight this project hard starting now. It is not too late for them to preserve their self-respect.

Sources: Beauregard Tenant Survey Report on Survey Results, September 2012. Lincoln Park Strategies.

Beauregard Small Area Plan

Friday, October 5, 2012

Alexandria: Speculators Destroy a Neighborhood

by Allan Masri and Holly Masri

JBG Corp. and the City of Alexandria are planning a huge urban redevelopment project for Alexandria West.   This area, which lies roughly between Beauregard and 395, is bounded by the Southern Towers Apartments on the north, and extends south and east past Holmes Run.  It has no name, so I will call it the Village. 

There is a considerable distance between the Village and Old Town Alexandria, both physically and in attitude. Old Town is prosperous, caucasian. The Village has a rich mix of nationalities and languages; nearly all of its residents are poor. Old Town is a warren of narrow streets and high brick walls. The Village is composed mostly of 3-story brick multi-family structures, interspersed with many lawns, trees, parking lots, and playgrounds. Old Town is aging, with an average of 2 persons per residence; the Village is growing, with an average of three persons per residence, many of them children.

The Village is a green and pleasant place.  Accessed by concrete paths and stairs, the apartment buildings are distributed across the contours of the rolling hills, with areas of trees and grass between them.   Children use the paths for riding bicycles and scooters, and for play.  Residents can use these paths for walking to and from parking lots, or to a nearby mall. Other walkable destinations are Chambliss Park, Dora Kelley Nature Park, and Winkler Botanical Preserve, as well as two schools and adjoining playing fields, a recreation and nature center, shopping center, playgrounds, and swimming pools.    The apartments are sixty years old, but adequate for the people who live here. Many are immigrants with nowhere else to go, but the place is livable and the people are friendly.  

The Coming of BRAC

In 2011, the Department of Defense placed its Base Realignment and Closure (BRAC) project at the intersection of Beauregard and Seminary, about half a mile from the northern end of the Village. BRAC brought 6400 jobs to the area, with an average wage of $75,000 to $100,000. Alexandria's city government was gleeful about this, hoping to get $2 million a year in added tax revenues.

JBG Corp. was also gleeful. They manage 7,500 apartment units in the area, including 2,475 in the Villages. They got together with the Alexandria Planning Commission and came up with a plan to demolish the entire Village, leaving (perhaps) 865 "affordable housing" units, and replacing the rest with an unspecified number of "upscale" units . Note that there are approximately 850 ostensibly affordable units in the Village right now, thanks to some quick rent-raising by JBG. Two years ago there were 2,475 affordable units here-- three times as many.

 Not so overjoyed were the families that live in the Village. Many have already been forced out by the higher rents. All will eventually have to leave, although some may come back to rent the 865 affordable units, when they become available. But even these units are only hypothetical. Initially, JBG proposes to turn over 2 buildings with fewer than 100 affordable units to the City of Alexandria. There may be more later on--several years later on--but these may be appropriated by Alexandria City employees, who have a representative on the Affordable Housing Commission.

The Generosity of JBG

 JBG's company motto is "Building Smart, Thinking Green", but this is the company responsible for the concrete wasteland known as L'Enfant Plaza.  This new development they are planning will be less green than the one it is replacing. It will have less green space, thus adding to the urban heat island, and it will increase production of greenhouse gases.  The Village currently has buildings distributed over the rolling hills in a manner that conforms with the topography of the place. The blocks average 900 foot square, while the spaces between the buildings act as common areas with lawns, playgrounds, and trees. JBG's plan claims to preserve open spaces, but it will actually fill most of them with streets and more densely packed buildings. Some open spaces will remain, packed into the centers of the new buildings (on 400 foot square blocks); thus, these spaces will cease to be common areas, as they will only be usable by the residents/owners of particular buildings. 

 JBG's plan promises to provide a canopy of trees, but its initial action would be to cut down nearly all the trees on the property, some of them over 100 years old, as well as removing all trees and shrubbery from a currently wooded area on a steep slope. This plan risks erosion and directs increased runoff from streets and parking lots into the already stressed streams, Holmes Run and Turkey Run. In return for destroying all these trees and paving over another 20-50% of the property with streets, JBG plans to put in a green zone along Turkey Run, and to cede an additional 0.85 acre parcel elsewhere on the property to open space. But green zones already exist, throughout the Village. JBG will need to cut down numerous mature trees to attain the type of green zone illustrated in the plan. In fact, in the plan, the green zone is depicted with no trees at all.  The .85 acres of open space will not make up for the loss of up to 50% of the open space that now exists between buildings and between neighborhoods.

 JBG promises to deliver a community garden area. Such an area already exists. JBG promises to deliver a playing field. There are currently 3 tennis courts in the designated area where young men play soccer continuously after school. JBG will have to demolish the tennis courts to replace them with a field, thereby decreasing, not increasing, the available recreation space. But JBG intends to evict the soccer players, so preserving their tennis court is unnecessary.   

JBG has promised to limit the amount of grading done, but their street grid plan will be overlaid on the rolling hills of the site. A great deal of grading will be necessary to fundamentally transform the site from hills to flats.  But JBG will not consider leaving the site untouched or renovating existing buildings, because it intends to subdivide the property and build town houses. JBG intends to sell the townhouses for about $300,000 apiece, so if they build 3,000 townhouses, the sale should net them $9 billion. Naturally, JBG is ecstatic at the prospect.

The Villagers are Forced to Leave Their Homes  

While the JBG Plan claims that affordable housing in the area would eventually be eliminated anyway by market forces,  this is not true.  Many Villagers have already been forced out by JBG's rapidly-rising rents, but no market pressures are forcing JBG to evict 7,500 residents. The taxes have not been raised. The property is either owned outright by JBG or is being used to generate cash at historically low interest rates.

Like most stereotypical landlords, JBG just doesn't care about the people who have paid them rent for the last 50 years. Many of those people have already left, but some of the Villagers have lived here for 10 years or more. The Villagers have nowhere else to go. The Village contains 30% of Alexandria's low-income housing; when it is destroyed, many of the Villagers will have to leave Alexandria. They will take a part of the city's prosperity with them, for these are the people who do the low-paid jobs that keep the tourist-based industry of the town going. There will be no replacements, since there will be no housing for low-income workers. Without low-income workers, tourism will cease to be profitable. Many local businesses will fail. Ultimately, the downtown area will change from a vibrant place that tourists want to visit into a district of businesses and condominiums.

 The Alexandria City Council has completely failed to protect the Villagers from the predations of this giant corporation. The purpose of government is to protect the weak from the powerful, not to facilitate the eviction of its residents when some corporation feels they are standing in the way of progress.  What JBG intends is not progress, but profit, and JBG's plan is not a futuristic one, as they would have us believe. The plan imposes on the city the same car-oriented non-solutions that have caused urban sprawl all across the nation. The plan solves all problems by installing more streets, more freeway ramps, more expensive homes located far from jobs and markets.

JBG's rationale for their plans makes no sense. BRAC has already flooded the streets with more vehicles and clogged the freeway entrances.  The plan presumes that the 6200 new employees at BRAC will all want to live in the Village, but this is unlikely. JBG's plan will bring yet more people and cars into the area and will make more streets for them. The plan also advertises improved buses and dedicated bus lanes, but middle-class commuters don't use buses.  Poor people do.

The plan includes some shops that it assumes will be used by area residents. These shops will have to compete with existing shops, however. The area has several shopping centers within a mile or two of the Village. No matter what grocery store is installed, four or five competing stores are nearby.

The plan also proposes improvements to the Landmark Mall, only a mile away. This mall, however, has been losing stores for several years. The mall cannot compete with other shopping centers in the area right now. The developers cannot assume that it will suddenly turn around, just because its renewed success fits into their plans.

 The City Council has been sold a bill of goods. When it should have been protecting its own residents, the council has permitted outside investors to move in with a plan that will fundamentally alter the character of the city. The City Council should locate its' conscience, and stop taking money from greedy speculators.

The Victims Protest

A recent meeting of the victim relocation committee (officially called the Affordable Housing Advisory Committee) was interrupted by about 30 Villagers of various ages clad in neon tee-shirts emblazoned with the name of their organization, Tenants and Workers United. These people did not want to wait for the end of the meeting to make comments, largely because many of their children were getting restless. A few young men and women stood up, and each made essentially the same comment: We have lived here for years, our children go to school here, we have jobs here, and we want to stay. The message was delivered with quiet defiance.

 After they left, the committee's chairman was indignant. He had never expected to be considered the enemy, he said. No, the committee was there to help people relocate. But the committee has become the spokesman for JBG, a giant corporation that clearly cares nothing for the suffering it is causing. The committee had better be ready to receive more protests of a similar nature.  

And the winner is...BIG BIRD!!!

It's not easy being green. At the recent debate, Mitt Romney offered to cut just one tiny, useless, inexpensive government program... PBS. Unfortunately for him, it turns out to be a very popular one. Mittens wants to fire Big Bird?!? BAD idea. People will remember that.

Mitt has apparently turned over a new leaf, and rewritten every position he ever had. The day after the debate, he came out and said he was wrong about the 47 percent. He even apologized. But it was too late. Obama, who everyone says lost the debate, had been careful not to let him make his apology in front of 50 million people.

Larry O'Donnell had the best take on the debate, borrowing from a Denver Post writer, who wrote, “Like a bull to a matador, Romney time and again turned toward Obama to deliver attacks on the president's job performance, portraying him as clueless to his policies' impacts and hopeless in trying to turn the economy around."

That is a great description of the debate. Now, I've actually seen a bullfight and I can assure you that this is exactly what happens. The matador pretends not to see the bull. He turns his back on him. He taunts him, getting him to charge again and again, until... until the bull is so tired he can't stand up any longer. Then the matador takes out his sword, walks up to the bull, and plunges the sword into the bull's heart.

During the debate, Obama pretended to be taking notes, just like John Stewart pretends to take notes. Obama acted as if he had an important meeting somewhere else. He scowled. But he never reacted to anything that Romney was actually saying, even when Romney said the most preposterous things. Romney flatly denied that he had a plan to lower taxes by five trillion dollars; he also stated that he had no idea how corporations could avoid paying taxes by using loopholes and overseas accounts. Both of those statements were jaw droppers, which would have prompted an ordinary person to exclaim, "Say, wha?"

Obama didn't bite. But he was taking notes all right-- notes about how best to turn Romney's outrageous statements against him.

Romney has already walked back a couple of his claims. If he truly intends to abandon his tax cut “plan” (now that he has denied that he ever HAD it, on national TV), he has less than a month to explain what, exactly, he will be doing instead. It will be interesting to hear what he comes up with, because that tax cut was the way he proposed to revitalize the economy.

The clock is ticking.

Sunday, September 30, 2012

George Will doesn't understand Science

George Will has no business criticizing scientific theories. He is an intelligent man, even brilliant at times, but his training and inclinations are religious and philosophical, not scientific. He has two major flaws that disqualify him from commenting on science.

First, Will brings to any subject a raft of opinions and prejudices. He formulates his ideas based on rigid philosophies, primarily conservatism and libertarianism. This sort of thinking is anathema to science. A scientist must be ready to modify her views based on new information.

For example, Will wrote convincingly that the filibuster was a good thing when Republicans used it against Clinton in 1992. But he condemned the filibuster when the Democrats used it in 2003. In this instance, as in many others, Will formed his conclusion first, then used his writing skills to argue for the position he already supported, namely that conservatism is good and liberalism is bad.

Second, Will resorts to cheap rhetorical tricks in his arguments. Will cited an Arctic Climate Research Center report in 2006 that stated that global sea ice levels were equal to those of 1979. He chose not to cite the next sentence from that report, which stated that Northern Hemisphere sea ice levels were one million square kilometers lower than 1979. He also failed to investigate further by contacting the Center and asking for clarification. The Center categorically denied the story.

This illustrates the rhetorical trick of cherry picking, where an author uses data that supports his position and ignores data that does not. This is a critical error is scientific argument, where data that fail to support a theory are precisely the ones which must be explained. All the data must be accounted for.

Will famously proclaimed the cause of record-breaking temperatures was summer, not global warming. He continued his argument by claiming that summers had always been hot, even when he was a child. This is an example of a straw man argument. No reputable scientist claimed that the temperatures were caused by global warming, but Will proposed that they had, then attacked their non-existent claims.

Will treats scientific theories as if they are political policies and attacks them as such. He attacks global warming because he considers it a progressive policy and because he, as a conservative, has a duty to attack all things progressive. Whether progressives or conservatives accept global warming is irrelevant to whether the theory is true or false.

Critics of scientific theories must approach their topic with an understanding of science and abandon political bias.

Thursday, September 27, 2012

Gore Vidal's "Burr": Our Founding Felons

Gore Vidal recently passed away. A few days later, I found a used copy of Burr in a small bookstore in Alexandria and began reading this formidable work. Vidal's prose style is dense, his plot is confusing and circular. But the book is well worth reading for its realistic (as opposed to hagiographic) treatment of the founding fathers.

Writers often wish that their work will affect the lives of their readers. Vidal achieved this wish when Michele Bachmann converted to Republicanism during an abortive reading of Burr. She called the book snotty and accused Vidal of mocking the Founders. I found the book snarky but refreshingly honest.

Thomas Jefferson c. 1820
Vidal was not mocking the founders. He was telling the truth about them. He concentrated on their flaws instead of their achievements. Vidal pointed out that Washington was a mediocre general who spent most of the Revolutionary War retreating from the British. Washington won two minor battles on his own and only succeeded in defeating Cornwallis at Yorktown with the assistance of Lafayette and the French navy. Furthermore, Washington had his soldiers flogged and owed his fortune to the efforts of his slaves. Both of those acts would today be felonies.

Vidal spares most of his venom for Jefferson, however. Jefferson wrote the words, "All men are created equal", but owned more than 700 slaves over his lifetime. Historians have whitewashed his reputation by claiming he treated his slaves humanely, but this was not true. Jefferson used beatings of young boys to force them to do factory work. As late as 1950, school textbooks omitted this fact from his biography. Jefferson also hired slave hunters to bring back escaped slaves, sold young boys on the auction block, and had sexual relations with at least one female slave. Many of these actions would be considered felonies today.

Perhaps most damning, Vidal accuses Jefferson of hypocrisy, since he preached equality by did not practice it. Jefferson never freed a slave during his lifetime, instead requiring a slave to buy his freedom. When Count Kosciuszko bequeathed Jefferson a large sum of money to free many of his slaves, Jefferson refused the bequest. Jefferson did free a few of his slaves on his death, but neglected to free their families, which resulted in families being irrevocably separated.

George Washington during the Revolution
By contrast, Washington freed his slaves in his will and also provided money to assure they would have livelihoods. Washington thus answered Jefferson's rationalizations about freeing slaves, namely that they were racially inferior beings, incapable of existing in an integrated society. Washington didn't agree and proved Jefferson wrong with his actions.

Only in retrospect did the founders achieve godlike status. Only in the minds of current-day jurists and tea-partiers like Bachmann have they become infallible on matters of government. The worship of these men as deities is as ridiculous as it is pernicious. Vidal has done us all a favor by depicting them as mere mortals.

[This article is based in part on a Smithsonian article, "The Dark Side of Thomas Jefferson" by Henry Wiencek.]

Friday, September 21, 2012

West Wing Reunion

The West Wing was one of my favorite shows during the Bush administration. For an hour every week I could slip into a fantasy world where a liberal democrat was president, the president cared about the environment, and every issue didn't end with an invasion. The West Wing cast had a sort of reunion to help Mary McCarthy's sister win election to the bench in Michigan. Enjoy. 

Thursday, September 20, 2012

The Cuban Five will not soon be released

Fourteen years ago this week, five Cubans were arrested by the FBI and charged with conspiracy to commit espionage. They were tried and ultimately sentenced to life sentences. This case remains one of the worst examples of judicial malfeasance in US history.

The facts are these. The five Cubans came to the US from Cuba to infiltrate Anti-Castro groups engaged in terrorist activities against Cuba. Among the terrorist acts committed by these groups were murder, assassination, and the bombing of Cuban Flight 455, a commercial airplane carrying 73 passengers. By any definition of terrorism--except one--those are terrorist acts.

Funeral for 73 people who died on Cuban Flight 455 (NYTimes)
The one exception is that a person or group of people can commit with impunity terrorist acts against governments the US doesn't like, like Cuba and Venezuela. The US arrested and convicted the Cuban Five of conspiracy to commit espionage and murder without ever producing evidence of a single act of violence. At the same time, the US government refuses to extradite suspected terrorists like Luis Posada Carriles, who has admitted to placing bombs in public places in Cuba.

Posada-Carriles, alleged terrorist
This is the topsy-turvy world of US espionage. When a US agent tortures a captive, he is a hero. When another country's agent tortures a captive, he is a terrorist. This is the inevitable consequence of the US open-ended war on terror. The US has declared war on acts of violence. The UN declarations of human rights not only condemn such acts but also provide mechanisms to punish them. The US wants no part of peaceful methods. It has declared war instead.

So now the US holds the Cuban Five in prison. They have been held in solitary confinement, at one point for 17 months as they awaited trial, an act condemned by the Geneva accords as a war crime. They have been denied visits with their wives. The rest of the world has taken up their cause. Amnesty International considers them political prisoners and has documented their abuse. Their attorney, Leonard Weinglass, stated that it was customary in espionage cases to return the captured spies to their home country, usually within 30 days.

But the Cuban Five will not soon be released.

The Cuban Five will only be released if the people who sympathize with them join together and create a public outcry against injustice. But the groups who want this to happen hardly even talk to each other. The Cubans do not understand English. The American progressive groups do not understand Spanish. The Socialist groups speak a Marxist-Leninist dialect that they alone understand.

Tom Hayden has said that reconciliation of opposites is only possible if the interested parties give up their broader interests and limit their goals to the one at hand, in this case the liberation of the Cuban Five. But the Cubans want an end to the embargo and normalization of relations with Cuba. This will take years, perhaps decades. In the meantime, the Cuban Five are in prison.

The American progressives want to reform the US prison system and punish US war criminals. This will take years, perhaps decades. In the meantime, the Cuban Five are in prison.

The Marxist-Leninists want to overthrow capitalism. This will take years. Perhaps they may never succeed. In the meantime, the Cuban Five are in prison.

The American people are fair-minded. They hate injustice when they know about it. But unless the other interested parties overcome their selfish concerns long enough to publicize the Cuban Five and petition Obama for their release, the American people will not learn about this injustice and will not demand that it be stopped.

The progressives, the Cubans, the Marxist-Leninists, must set aside their selfish, long-term goals and work exclusively for the release of the Cuban Five.

Otherwise, the Cuban Five will not soon be released.

Sunday, September 16, 2012

Key West Pirates (Hemingway's Bar)

Key West Pirates, an oil painting on wood panel by Holly Masri, appears at first glance a simple depiction of a bar. The place is Tony's Bar in Key West, Florida. The bar opens onto the street, very unusual for an American bar, where the prejudice against alcoholic consumption generally forces serious drinkers indoors. Two men are drinking at the bar, one seated, the other standing, while a bartender looks on. The most unusual aspect of the painting (and of the actual bar) is the low ceiling, encrusted with thousands of business cards left over the years by tourists.

Key West is the southernmost point of Florida, in many respects a tropical paradise. But the artist has chosen a pallet devoid of pastels. There are no flowers or broadleaf plants to be seen. Instead, the colors are somber. The frame cuts off the bright world of sun and sea. The two customers may be tourists, but their shirts are dark, as is the interior of the bar. Both are brawny and young. One of them has a skull and crossbones on the back of his shirt.

The two men in the bar are not pirates, for this is clearly a modern scene. They wear bermuda shorts, athletic shoes, and tee-shirts. One of them rests his foot on a backpack. They do have long, curly hair that reminds the viewer of 17th century wigs. They are engrossed by something to their right, which the viewer cannot see.

This is a famous bar, where celebrities met and toasted each others' health during the 1930s. At that time it was known as Sloppy Joe's. Its best known habitue was Ernest Hemingway. Hemingway arrived in Key West in 1936, when his health was already suffering from war injuries and too much drink. He brought with him friends like the writer John Dos Passos and the artist Waldo Peirce. Peirce also painted a scene in Tony's Bar, with his friend Hemingway sitting at the bar next to Peirce's wife, Alzira, and Peirce himself standing at the right.

The room next door, the room into which Masri's pirates are staring, can be seen in Peirce's painting. It is a dance hall, where sailors dance with pickups and bar girls. Perhaps the woman sitting at the end of the bar is one of those girls, being attended by two sailors in uniform and an elderly gentleman. Masri's pirates are looking at something else, though. The sailors are long gone, the dance hall a memory.

Masri's picture has ghosts, including the ghost of Hemingway and the ghost of the bar that used to be there. It has another theme as well: impostors. Sloppy Joe's Bar moved about a block away after Hemingway left town. It now occupies much larger, much grander premises than the bar depicted by Masri and Peirce. The current Sloppy Joe's, sold to tourists as Hemingway's hang out, does not much resemble the real hang out, now known as Tony's Bar.

Masri's painting captures the atmosphere of a place on the edge of history, where the people and times that made it famous are receding into the past. But Masri is not nostalgic. She depicts the scene honestly, portraying what it has become, a humble respite from the tropical sun that bakes Key West.

Note: Key West Pirates is on sale here.

Wednesday, September 12, 2012

Checking the Factcheckers (Part Two)

Seventy-seven percent is not enough

Factcheck accuses Lilly Ledbetter and Laura DeLauro of exaggeration when they stated that women earn 77% of what men earn. The figure is an official one, published by the Bureau of the Census, so Factcheck is wrong to single out this figure for special analysis. Factcheck claims that the gap between what men and women earn for the same job is much less.

The situation for women is far worse than what the single figure 77% represents. This figure compares the earnings of full-time, year-round wage earners. Other figures show women in a much more desperate plight. Families headed by women have incomes only 65% of those headed by men. Both figures are medians; half of women earn more than 77%, but half earn less.

The disparity between the sexes becomes even greater when measured over longer periods of time. A 2004 study by the Institute for Women's Policy Research found that women between the ages of 26 and 59 made only 38% of their male counterparts over a 15-year period. More than 50% of women between those ages had a full calendar year without earnings, while only 16% of men did.

Not only did Factcheck's researchers call the 77% claim false, they also discovered sources who claimed that women were better off than the figure implies. They should have investigated further and they would have found the gender gap is just the tip of the iceberg that is the gender gap.

The Bain Bailout 

The story of the Bain & Company bailout was related in an article in the Rolling Stone. The article leaves out some important details, such as how much money Romney received personally from the federal bailout, because the article was based on documents obtained under the Freedom of Information Act from which most of the dollar sums had been deleted. Romney, true to form, refuses to release the information, but it is fair to assume he made millions from the deal. 

Factcheck explains that the federal bailout of Bain was a routine settlement with bank regulators that involved no taxpayer money. It defines the FDIC as an independent federal agency, but the FDIC is backed up by the full faith and credit of the US government. Factcheck says the settlement resulted in no loss to taxpayers, because the FDIC is funded by fees paid by banks. Factcheck would have us believe that taking $14 million from the FDIC as part of a bankruptcy settlement harms no one.

The FDIC is funded by fees, but whether they are called fees or taxes they are paid by taxpayers. The $14 million taken by Romney and Bain & Company came out of taxpayer pockets. The rates paid by depositors are higher because of deals like this one. 

Factcheck only muddies the waters

A fact is just a fact. Its understanding does not require a dissertation on whether the facts underlying assumptions are correct. When Democratic speakers used the figure of 77% to describe the gender gap, they took the figure from the US Census Bureau. That's the fact, not the wealth of quibbles unearthed by Factcheck. When Democratic speakers stated that Romney went to the US government to get a bailout for his company, that's a fact. The FDIC is a federal agency. Romney arranged a deal for his company with the FDIC.

Claiming that facts are false because of details obscures the issues involved here. It doesn't matter whether Romney owned Bain & Company when he negotiated the bailout. The important part of the Bain story is that Romney went to the federal government, asked for and got $14 million for Bain & Company, and profited richly from the deal. 

Romney opposes federal aid to poor people, however, because, one might say, suffering builds character. But he favors federal aid to the rich, including the undisclosed amount of federal funds he received from the FDIC for arranging a bailout. One of the aspects of the bankruptcy revealed by the Rolling Stone was that Romney inserted a clause in the bankruptcy agreement that distributed $5 million in bonuses to the executives of the company if creditors challenged it.  The wealthy financiers of this country have developed some very shoddy business practices by taking advantage of tax loopholes and federal agencies. That is the story of Bain & Company, and that is the story of Mitt Romney.

Friday, September 7, 2012

Checking (Part One) published a preliminary evaluation of claims at the Democratic Convention after the first night. They should have waited until their staffers came back from the convention. Their article is filled with erroneous criticisms of true statements made by Democrats.

In its title, FactCheck called these statements "disinformation". Disinformation is deliberately false information created to deceive or confuse people. Soviet Russia perfected the use of disinformation in its propaganda campaigns. Disinformation requires secrecy about the sources of the false information.

FactCheck's calling Democrat statements "disinformation" is almost equivalent to comparing the Democratic party to the KGB. The word has no place in an article written by a neutral source.

Romney would raise taxes for the middle class

FactCheck called the claim that Romney would raise taxes on the middle class to be false. The disputed claim is based on a report by the Tax Policy Center, a bipartisan non-profit organization. The Tax Policy Center report states that it would be impossible for Romney to make all the tax cuts he plans for the wealthy without raising taxes on the middle class. Romney claims that he will make up for tax shortfalls by eliminating tax deductions, without specifying which ones he will target, and by increasing the prosperity of the country.

If Romney makes his tax cuts, amounting to $5 trillion, that heavily favor the wealthy, one of three things has to happen: 
  1. Assuming he pays for those tax cuts with tax deductions, Romney will raise taxes on the middle class by eliminating or reducing tax deductions they currently rely on, such as mortgage deductions, deductions for dependent children, education deductions and charitable giving deductions. The loss of these deductions will raise taxes for the middle and lower class.
  2. Assuming he reduces government spending to pay for those taxes, Romney will reduce government expenditures on Pell grants, college loans, early childhood education, and health care (by repealing Obamacare), causing the middle class to pay more for goods and services currently subsidized by the government. This will create a burden for the middle class that is equivalent to a rise in their taxes; or
  3. Romney will continue to explode the size of the debt as the Republicans did under Bush, weakening government and making it incapable of providing services that the middle and lower class currently rely on, such as Social Security, Medicare, and Medicaid, (which provides for the elderly and disabled as well as the poor). Cuts to these programs will create a burden for the middle class that the economy may never recover from.
Factcheck discounts these options and trusts Romney's promises to keep middle class taxes the same and make up the difference in increased prosperity caused by lower taxes on the wealthy. Factcheck not only assumes that Romney will keep his promise, but that the conservative analysis of the effects of tax cuts for the wealthy will bring prosperity. This approach didn't work when Reagan tried it and it didn't work when Bush tried it. A definition of insanity is trying the same thing twice and expecting a different result.

Factcheck concludes by saying that Romney has promised to increase neither middle class taxes or the national debt. He hasn't said how he will do it, but "as things stand", Democrats who say he will increase middle class taxes are misrepresenting what he said.

Factcheck knows (or should know) that Romney cannot possibly keep both promises. Democrats are not misrepresenting what Romney said. They are drawing the only possible conclusion that can be drawn from his promises. The Democrats have an obligation to expose their rival's blunders.

Jobs growth under Obama

Factcheck not only agrees with the Democratic claim that the economy created 4.5 million jobs, they demonstrate the math. They assert, however, that Obama should be blamed for the job losses that occurred during his first year in office, before he passed the stimulus plan and before he presented his first budget to congress. Factcheck knows. or should know, that President Obama cannot be held responsible for events that happened before he came into office, such as Bush's off-budget wars and massive tax cuts. Factcheck's attempt to blame Obama for Bush's budget busters is precisely what the Republicans are trying to do. Factcheck should be criticizing them for this falsehood, not repeating it.

Pell Grants

Keynote speaker Castro made the statement that Romney's budget "guts Pell grants". Factcheck accepts Romney's promise that he won't decrease the amount of Pell grants. They don't compare this promise to other statements he has made during the campaign, as when he promised to eliminate the Department of Education, which administers Pell Grants for college students. They also fail to observe that Romney, if he intends to reduce government spending from its present 24% to 20% of the GNP, will have no choice but to gut Pell grants, along with a number of other programs that benefit the middle class and poor. Here again, Factcheck should make a close analysis of the assumptions that surround Romney's promises. Romney cannot keep promises that are cancelled out by his other promises.

(To Be Continued)

Monday, April 23, 2012

Asbestos and the Law

Asbestos and the Law
By Allan Masri
I. Introduction
Asbestos is the name of a group of fire-resistant minerals that have naturally-occurring fibers.1 Asbestos was widely used in industry for its insulating and flame-retardant properties before its harmful effects became widely known.2 The ancient Greeks called asbestos the miracle mineral because it seemed indestructible, a quality they also attributed to their gods. 3
Scientists conducted studies on asbestos toxicity as early as 1924.4 They found that asbestos exposure led to asbestosis, an irreversible lung condition.5 Studies linked asbestos to serious diseases such as lung cancer and mesothelioma as early as 1964.6 Up to 27 million people, including shipyard workers, construction workers, and miners, were exposed to asbestos from 1940 to 1978.7 All these people were potential plaintiffs in asbestos product liability cases. The latency for mesothelioma is from 10 to 40 years, so new cases are still occurring despite decreasing use of asbestos in consumer product. By 2003, asbestos plaintiff's had filed 730,000 cases and won $70 billion in awards.8 The costs of asbestos judgments eventually could total $130 to $195 billion.9
The asbestos producing companies (“producers”) knew about the toxicity of their products since the 1930s but failed to take steps to protect users, especially their own workers, from suffering harm.10 A 1965 study of asbestos workers in New York found convincing evidence that exposure to asbestos caused mesothelioma, parenchymal asbestosis, asbestos-related pleural abnormalities, lung cancer, and cancer at some extra thoracic sites.11
In the early 1970s, asbestos workers and victims of diseases specifically associated with asbestos inhalation (“claimants”) began filing product liability law suits against producers. In response to these legal actions, producers set in motion a number of strategies to secure the continued profitability of their asbestos enterprises and reduce the sums that might be awarded to victims.
Among the producers' most successful actions were:
  1. Applying Political Pressure. Producers sabotaged enforcement of the Toxic Substances Control Act (“TSCA”) by applying political pressure to prevent the Environmental Protection Agency (“E.P.A.”) from enforcing the law.
  2. Spreading disinformation. Producers secretly funded public relations organizations to spread disinformation about asbestos. This led both to public confusion about the true risks of asbestos and also to the passage of laws to reduce damage awards generally.
  3. Tort Reform. Producers, allied with corporations and insurance companies, lobbied state legislatures for laws that made it more difficult and costly to sue corporations for liability.

II. Applying Political Pressure

Producers sabotaged enforcement of the law by applying political pressure on the E.P.A..12 This pressure resulted in the E.P.A.'s failure to ban asbestos completely. E.P.A.'s failure to do so will ultimately cost thousands of lives and tens of millions of dollars in medical fees and clean-up costs. Later, producers used loopholes in E.P.A. regulations to continue legally producing new asbestos products by claiming these products harmlessly small amounts of asbestos.
The TSCA gave the E.P.A. authority to regulate pollutants that harm the health of the general population.13 Subsequently, the E.P.A. began work on a study of asbestos, which it identified as a major pollutant.14 The E.P.A. completed this study in 1989 and promulgated regulations calling for the total ban on the sale or import of asbestos products in the U. S.15 This study and promulgation was the E.P.A.'s first major action under the TSCA.
In 1979 the E.P.A. released an Advance Notice of Federal Rulemaking.16 After taking testimony, the E.P.A. published three possible plans for banning asbestos outright and a rule for possible labeling of products containing asbestos.17 The E.P.A. received over 200 comments on the proposed rule.18 The E.P.A. also held a legislative hearing on the rule and permitted extensive cross-examination of E.P.A. personnel and contractors in 1986.19
Twenty asbestos producers, led by Johns-Manville, had formed the Asbestos Information Association (“AIA”) to counter scientific findings on the public health risks of asbestos.20 The AIA joined plaintiffs in Corrosion Proof Fittings v. E.P.A. (1991)(“Corrosion”) to block the E.P.A.'s proposed ban on asbestos.21 Plaintiffs charged that the E.P.A.'s rulemaking procedure was flawed.22 The court ruled that the E.P.A. should have provided similar studies of possible replacements for asbestos in the environment.23 The court held that the E.P.A.'s most serious error was that it failed to permit sufficient cross-examination of its witnesses.24
The E.P.A.'s actions were based on sound science.25 It acted to save lives and prevent further damage to the environment.26 The court rejected the results of what the E.P.A. called an “analogous” study because it contained no real world examples of asbestos toxicity.27 The E.P.A. failed to make this kind of study because mesothelioma occurs 30 or more years after exposure to asbestos.28 Scientists discovered that finding a control group of people who could certify that they had not inhaled asbestos 30 or 40 years ago was impossible.29 The court in this instance demanded evidence that did not exist because the scientific study of asbestos was still ongoing. In a similar case, another court took the position that the finder of fact must accept certain areas of uncertainty, since scientific evidence can never provide the level of certainty that courts ordinarily encounter.30 Another court ruled that the E.P.A. could not be expected to give findings of the sort familiar from the world of adjudication because it was dealing with matters on the frontiers of scientific knowledge.31
The Court may have committed reversible error by not following the administrative deference rule established in Chevron v. Natural Resources Defense Council in 1984.32 The court in Chevron ruled that it was appropriate for agencies to decide how to interpret laws made by congress, since federal judges are not experts in the field and are not part of either political branch of government.33 The court in this case ignored the conclusions of the E.P.A. and instead accepted the arguments of the producers, which the E.P.A. was required by law to regulate.34
Producers argued that the E.P.A. had not tested other materials that would be substituted to discover if they might be more toxic or less effective than asbestos.35 The E.P.A. spent $10 million and devoted 10 years to producing this study on asbestos.36 The agency did not have the resources to test every one of the tens of thousands of chemical mixtures used in commerce to determine its relative toxicity.37 The court may have committed reversible error when it failed to acknowledge that Congress had given the responsibility for collecting data on possibly toxic substances to manufacturers, not the E.P.A.38
The court ruled that the study was flawed because the E.P.A. had not informed the appellants that the analogous study would be the basis for their decision on whether to ban asbestos.39 The E.P.A. had provided numerous opportunities for comment and testimony, and the industry took full advantage of these opportunities.40 The appellants argued that the E.P.A. had not permitted cross-examination of some witnesses.41 The TSCA permitted the E.P.A. to limit cross-examinations, to save time, if it was clear that the testimony of the witness was similar to that of other witnesses.42
The E.P.A. argued that the estimated $459 million cost of its regulation would not be onerous to any single party, since most costs would be borne by consumers over a period of 13 years, and would therefore be hardly noticeable to them.43 The E.P.A. Contended that only the complete banning of asbestos could prevent larger concentrations from occurring, bringing with them further loss of life and high costs associated with removing toxic waste.44 The court ruled that the E.P.A. had not considered less burdensome solutions, as required by law.45 The E.P.A. announcements in the Federal Register, however, show that they did consider other solutions and received comments and testimony on them before coming to their final decision.46 The court recognized this fact but ignored the opinion of experts within the E.P.A. and replaced the E.P.A.'s regulations with its own.47
The E.P.A. had a legal duty to promulgate such regulations.48 The agency had fulfilled that duty in a study that took ten years and cost $10 million.49 The E.P.A.'s staff of expert scientists had agreed on the final regulations. Yet in the court's final ruling, the judge decided arbitrarily how the asbestos industry should be regulated, substituting his own opinion for the opinions of qualified scientists.50
Employees of the E.P.A. who had worked on the study sent many memos urging the director of the agency to appeal the ruling, stating that they believed the scientific basis for the action was valid.51 These employees believed that the analogous study was difficult to validate but easy to find fault with.52 The E.P.A.'s general counsel asked the Department of Justice to appeal the ruling in Corrosion.53 The Director of the E.P.A.'s National Program Chemical Division blamed the White House for blocking the appeal.54 The decision has yet to be appealed.
In 2001, the E.P.A. determined to declare a public health emergency in the town of Libby, Montana, where nearly 18% of 6,149 residents tested were found to have at least the initial signs of asbestos related disease (“ARD”).55 The purpose of the declaration of emergency would be to protect the citizens of Libby from enduring further exposure to asbestos.56 In a meeting with E.P.A. representatives, the White House Office of Management and Budget (“OMB”) convinced the E.P.A. not to declare a public health emergency.57 The OMB believed that such a declaration by the E.P.A. would create public hysteria.58 Instead, the OMB demanded that the E.P.A. invent some pretext to begin cleaning up the town of Libby without declaring an emergency.59 No declaration was made.
A congressional investigation in 2008 turned up an internal memo at the E.P.A. stating definitively that the agency was prevented from acting by the political influence of W. R. Grace, the company that owned the asbestos mines in Libby.60 The E.P.A.'s failure to act deprived the residents of Libby of medical care that would have been available to them in the event of declaration of a public health emergency.61
After a change of leadership, the U.S. Senate conducted an investigation into the Libby situation.62 The investigation determined that the OMB had interfered with the E.P.A.'s decision making process.63 The investigation further determined that the reason given publicly by the E.P.A. for not declaring an emergency stemmed, not from any factual basis, but from a concerted effort to avoid declaring one.64 Pursuant to the investigation, on June 17, 2009, the E.P.A. declared a public health emergency in Libby and in Troy, Montana.65 The E.P.A. estimated that it would spend an extra $125 million to deal with the health emergency in addition to the costs already incurred by cleaning up the superfund site in Libby.66

III. Spreading Disinformation
Disinformation is defined generally as false information intended to deceive or mislead.67 Producers turned to spreading disinformation as a means to reduce the public's understanding of the asbestos problem and to convince the public that claimants had few, if any, legitimate cases against the asbestos companies.68
In 1968 Johns-Manville, the largest producer of asbestos, began a secret program to discredit scientific studies of asbestos, focusing particularly on scientists working on asbestos epidemiology.69 This secret program, funded and staffed by Johns-Manville but not revealed to the public, began operation with a Johns-Manville public relations executive as co-ordinator of special projects.70 His job was to find out everything he could about the asbestos-health issue.71
Johns-Manville founded the American Asbestos Association (“AIA”) in 1970 with the ostensible objective of correcting misleading and uninformed reportage on asbestos-health problems and counteracting the effects of scientific publications detailing the health hazards of asbestos.72 A Johns-Manville executive became its Executive Secretary.73 The AIA fought against impending federal legislation and worked to prevent the words “cancer” or “danger” from being used on labels.74 In 1973 AIA's Executive Secretary declared that the purpose of the organization was to protect the interests of the asbestos industry from claims that asbestos was harmful to health.75
That same year, Johns-Manville's Vice President for Advertising and Public Relations attacked scientists who published studies which blamed asbestos for cancer claiming that they were terrorizing people who had contracted asbestos poisoning three decades earlier.76 He called the scientists cruel for revealing the illness and its cause to its sufferers when there was no longer anything they could do about it.77
Johns-Manville and other business leaders also helped found the American Tort Reform Association (“ATRA”) in the mid-1980s.78 ATRA was especially important to the asbestos and tobacco industries.79 Both industries were engaged in combatting scientific attacks on their products.80 ATRA called for the passage of tort reform legislation to meet the threat posed by ostensibly frivolous lawsuits.81 Thousands of product liability claims were filed against producers and tobacco companies and charged that they had suffered cancers or other diseases by using defective products.82
ATRA claimed to be an independent organization dedicated to reforming civil tort litigation rules.83 In fact it was funded by the industries most affected by product liability suits.84 The amount given by producers is unknown, but some of the funding by tobacco companies has been made public. In 1995 Philip Morris, a tobacco company, budgeted $200,000 for ATRA's general support and multiple punitive damages project as recorded in a privileged and confidential memo entitled Tort Reform Project Budget.85 The same memo budgeted $2,993,770 to ATRA for Communications in 1995 and an additional $3,500,000 in 1996. 86
Citizens Against Lawsuit Abuse (“CALA”) was another part of the Tort Reform Project.87 CALA consisted of smaller, ostensibly independent groups, operating in individual states. These groups had were intended to appear to be grass roots groups favoring tort reform, but in fact they received substantial funding from large corporations in the asbestos and tobacco industry. Philip Morris's 1995 budget for Louisiana CALA was $130,000.88 Philip Morris also gave substantial funding to other ostensibly grass-roots orgnizations: Alabama Voters Against Lawsuit Abuse ($225,000); Michigan Voters against Lawsuit Abuse ($35,000); Ohio Alliance for Civil Justice ($40,000); and Oregon Litigation Reform ($10,000). Philip Morris's total budget for the tort reform project in 1995 was more than $21 million.89 These large sums spent for financing tort reform, donated by a tobacco company, suggest that ATRA and the CALA groups were not grass-roots groups as they claimed, but public relations groups that received funding from a few companies whose interests they represented.90 These companies frequently found themselves defendants in product liability suits and therefore stood to benefit from the activities of ATRA and CALA, whose main purpose was to reduce the number and size of liability suits brought against corporations.91
ATRA defined itself on its IRS Form 990 for 2009 as a broad-based bipartisan coalition supporting civil and justice reform with the goal of ensuring fairness, balance, and predictability in America's legal system.92 Its activities, however, show that it is entirely dedicated to reducing the number of product liability cases filed and the amounts awarded in compensation.
One of ATRA's important functions has been to spread disinformation about asbestos. AIA, ATRA, and their allies (“reformers”) have used this technique since 1972 to turn public opinion against victims of asbestos corporations.93 In 2002, a public relations executive with a degree in English who has been a long-time ATRA associate published a disinformative article on the internet.94 He claimed that real victims of abestos-caused diseases were being denied compensation while people who will never experience an asbestos related disease received million-dollar awards from confused and misled juries.95 This statement was an attack on the American system of justice, including lawyers, judges, juries, and the laws themselves, for which the author offered no proof.
The author claimed that asbestos litigation had driven 60 companies into bankruptcy.96 This assertion was false. Asbestos companies were not driven into bankruptcy; they used bankruptcy courts to escape liability, since liability trust funds set up by bankruptcy courts could reduce payments to claimants substantially.97 Producers declaring bankruptcy frequently reduced their liability by 75%.98
The author claimed that nearly all independent asbestos health experts agree that asbestosis occurs only after decades-long occupational exposure to asbestos fibers.99 The author further asserted that these medical facts were well-established 30 years ago and had remained true up until the present time.100
Widely respected scientists have reported, on the other hand, that some victims of mesothelioma had worked in polluted environments for as little as one month, only to succumb to the disease decades later.101 Some victims worked in mill towns but had no other contact with asbestos. 102 Others had been exposed through fibers on clothing of their husbands.103
Public relations firms, like ATRA, AIA, and CALA, funded secretly by producers, published attacks on the judicial system, which they claimed unjustly targeted the asbestos producers.104 The producers anonymously funneled millions of dollars into publicity organizations and campaigns designed to convince the public that there was a crisis in the judicial system.105 This barrage of disinformation led jurors and voters to believe that claimants were fraudulently looking for a windfall.106
One producer, W. R. Grace, took advantage of a loophole in E.P.A. regulations to introduce new insulation products made from “Monolith”, its brand name for vermiculite, which Grace extracted from its mine in Libby, Montana.107 Monolith contained at least one percent asbestos, but Grace never admitted this publicly, instead pursuing a policy of silence.108 Grace lobbied the E.P.A. to set the threshold for asbestos at just over one per cent.109
All of these efforts had their effect. The producers and their allies (including insurance companies and the tobacco industry) succeeded in convincing many people that there was a crisis of large, unjustified judgments.110 Legislators took campaign contributions and passed tort reform laws designed to reduce payments to claimants.111
A group of W. R. Grace executives were indicted for conspiring to release asbestos into the air in violation of the Clean Air Act112, and for conspiracy to defraud the United States for their part in causing the deaths of over 600 residents of Libby, Montana.113 The Department of Justice failed to make its case and the company and its executives were acquitted.114

IV. Tort Reform
The Seventh Amendment to the U. S. Constitution guarantees a trial by jury in civil cases at common law.115 Reformers have promoted tort reform laws to protect corporations from product liability law suits. The result of this tort reform has been to reduce the number of suits and to reduce the value of judgments rendered against tortfeasors. The Seventh Amendment is under attack because claimants who lack the means to sue have been denied justice, and because reduced judgments have kept attorneys from taking cases on contingency.
Reformers promised to eliminate frivolous law suits, which they claimed cost the American economy billions of dollars every year but the legal system already had a built-in ability to throw out frivolous suits. Judges can reject any case they consider pointless or a waste of time. The only means for frivolous lawsuits to get into the courts is for judges to permit them. Reformers, therefore, were not actually targeting frivolous lawsuits for their reforms, but legitimate lawsuits that cost corporations money.
Reformers have been successful in convincing legislatures and the public in general that frivolous law suits are an expensive problem that amounts to a crisis. Reformers have passed laws that act primarily to exclude plaintiffs who lack the means to prosecute their cases. They have partially succeeded, therefore, in taking away the right of less well-heeled plaintiffs to obtain a jury trial, a right supposedly guaranteed to them by the Seventh Amendment.
Producers and other corporations have funded tort reform nationwide.116 Thirty states have passed some version of reforms. All of the following have been enacted in one or more states:117
  • Summary Judgment Reforms. Texas passed a tort reform act in 1997.118 The new act included a change to Rule of Evidence 166(a) pertaining to summary judgments, permitting a “no-evidence” motion for summary judgment.119 Under a no-evidence rule, the movant need not have any evidence, nor does the judge have to rule that there is no disagreement between the parties on the facts of the case.120 Instead, movant requires the other party to show evidence to convince the court that there is a basis for the case to continue.121
The summary judgment rule is intended to eliminate cases that have patently unmeritorious claims and untenable defenses.122 When the rule is applied without evidence, as in the Texas case, the effect is to eliminate cases by plaintiffs who do not have sufficient funds to prosecute a case. The summary judgment rule removes the jury from the case and lets the judge decide it. The Texas rule does not change the rules for deciding the case. It forces the plaintiff to marshal his evidence, which would generally include expert witnesses, doctors, and test records. Gathering this evidence is expensive and time-consuming, creating a strong disincentive to prosecute what might be a valid claim.
A result of summary judgment reforms in Texas has been that fewer plaintiffs can qualify to go to trial. In 2010 a federal judge, acting in accordance with Texas law, dismissed 85 cases of plaintiffs in a summary judgment.123 The plaintiffs failed to meet the Texas standard that they must be impaired to qualify for trial. This reform addresses a problem peculiar to mesothelioma. Mesothelioma does not appear until many years after exposure to asbestos.124 The law defines a statute of limitations on product liabilities, however. Those at risk from asbestos-related disease must file their claims before any symptoms appear. Many plaintiffs file claims when x-rays of their lungs show evidence of pleural scarring but before they suffer symptoms of mesothelioma. Another peculiarity of mesothelioma is that lesions may never appear on x-rays. The affliction in those cases manifests itself by metastasizing into lung cancer or, possibly, other non-thoracic cancers. Tort reformers may consider such cases frivolous as well, since they lack mesothelioma lesions.
Result of reforms: Fewer plaintiffs can afford to file cases, whether the charges are legitimate or not. This may cause those plaintiffs who cannot afford to pay for preliminary investigations and expert witnesses to lose their right to a trial by jury as guaranteed under the Seventh Amendment.
  • Joint and Several Liability Reforms. Reformers recommend replacing joint and several liability rules with proportional liability.125 This would particularly benefit the asbestos industry where the long period between disease contraction and onset make it impossible to determine precisely the proportions of liability that can be assigned to each defendant. Abandonment of this rule would take American jurisprudence back to the era when the injured party had to bear the entire cost of damages because the defendant who caused the damage could not be absolutely determined.
Result of Reforms. Reformers argued against joint and several liability laws by claiming that fewer tort cases would be filed under more restricted laws. Researchers have discovered that the number of tort cases filed did not decrease after modification of these laws.126
  • Collateral Source Rule. Tort reformers advocate laws that require other payments for damages (an insurance settlement, for example) to be subtracted from the total damages allotted to a defendant at trial. This change, if enacted, would sometimes reduce defendants' liability. This reform would only help defendants. Plaintiffs who receive relief from the court would find their total judgment reduced. This would reduce the deterrent value of judgments, since defendants would only be required to pay anything if the amount of the judgment is larger than payments the plaintiffs have already received. It would also limit the total amount that could be received by plaintiffs.
The court struck down the Kansas version of this reform, saying that the victim would not receive the full amount of damages from the person who harmed them.127 Additionally, the court doubted whether the act would achieve its stated purpose, which was to reduce liability premiums, and ruled that the act therefore did not substantially fulfill a legitimate legislative purpose.128
The Wisconsin Supreme Court also ruled against State Farm for refusing to pay collateral benefits on the ground that the plaintiff had already collected damages from another policy.129 The Court directed that plaintiff be paid the full amount of her medical expenses, regardless of whether part of them had already been paid by another policy, because plaintiff's insurance policy specified that she be paid the full amount and plaintiff was entitled to the coverage she paid for.130 If the collateral source rule were abolished by reformers, insurers in Wisconsin would be able to evade paying damages that they underwrote in insurance policies.
Result of Reforms: Defendants in some cases would pay lower settlements. This lower payment is not related to the severity of the tort nor to the medical needs of the victims. Its main purpose is to benefit the companies who are financing the tort reform movement.
  • Punitive Damage Reform. Reformers advocate placing caps on punitive damages.131 Punitive damages are awarded as a punishment for wrongdoing, however. Juries sometimes award large punitive damages against asbestos companies who were found to have withheld information that would have protected their workers or the general public. Without punitive damages there is no incentive for tortfeasors to act more responsibly in the future.
  • Noneconomic Damage Reform. Reformers argue that the award of noneconomic damages is the single greatest cause of inequity in the tort liability system.132 They prescribe caps to the amount that juries can award for pain and suffering and other economic damages. A Federal Appeals Court struck down Alabama's noneconomic damages cap.133 The court ruled that jury damages could only be reduced for certain specific reasons, such as bias, prejudice, or corruption, under Alabama's Constitution. The law additionally violated the state constitutional right to equal protection by creating a favored class of tortfeasor and balanced the direct burden of catastrophically injured victims against indirect and speculative benefits of reducing health care costs.
Result of Reforms. Caps on payments to plaintiffs, when they are reached, benefit defendants at the expense of plaintiffs. Congress passed the Amtrak Reform and Accountability Act in 1997 with a provision that limited the total amount of liability for negligence in any single instance to $200 million.134 On Sep. 12, 2008, two trains collided near Chatsworth, California.135 Twenty-four people were killed and more than 100 were injured.136 The plaintiff's attorney's estimated that there were approximately $320 to $350 million in damages to their clients.137 Because of the congressional limitation, only $200 million could be awarded.138 The railway companies and insurance companies benefitted from this limitation, leaving the victims and their families with 57-67% of what the judge would otherwise have awarded.139
The Supreme Court of Georgia ruled Georgia's limit on noneconomic damages unconstitutional because the statutory limit undermined the jury's basic function as finder of fact.140 The Court also found that the existence of the caps on noneconomic damages, in any amount, violated the right to trial by jury.141
  • Prejudgment Interest. Reformers consider interest paid on damages to be unfair to defendants because it may penalize them for delays they did not cause, and impede settlement, meaning that the plaintiff will refuse a settlement if he believes that the amount of the settlement will be increased by interest more if he refuses to settle longer.142 Reformers also charge that overly generous interest rates may result in over-compensation.143 Reformers always look at problems from the viewpoint of defendants, which is not surprising since they have historically been funded by Producers. Prejudgment interest provides a check against defendants delaying trials to force plaintiffs, who have limited funds, to accept inadequate settlements. Defendants have no incentive to accelerate the case if they suffer no penalty from doing so.
Results of Reforms. Plaintiffs may accept smaller settlements than they deserve from fear that they will not have sufficient funds to prosecute their case adequately. Defendants, who are usually corporations, generally have much deeper pockets than plaintiffs.
  • Class Action Reform. Reformers argue that class actions have become a means of defendant distortion.144 Class actions are often the only means for large numbers of plaintiffs to sue large defendants, when a single plaintiff could not afford the cost of prosecution. Texas passed a stringent anti-class action law that permits attorneys to receive fees only on time and cost-expended basis. This limitation makes it difficult for attorneys to take on class-action cases because they must bear the entire costs of these cases, sometimes for years, before receiving any compensation. The risk in these cases would often outweigh the reward.
  • Result of reforms. Class-action suits are one of the few ways for consumers or employees to receive remedies for torts committed by large corporations. The suits are also a check to the tortious actions of corporations. Without the ability to file these suits, consumers will find themselves powerless. Conversely, corporations will find they risk little by their tortious actions.

Reformers give numerous reasons for the necessity of reform. They claim that there is a great crisis in the courts caused by overzealous and unscrupulous plaintiffs and their attorneys.145 They accuse these attorneys of filing frivolous lawsuits and filling the courts with cases without merit.
Reformers have used funds from producers and their allies to blanket the nation with stories about frivolous law suits. They have publicized widely extreme cases, such as the case where a jury awarded a MacDonald's customer $6.2 million. With this and other examples of seemingly astronomical awards, producers have succeeded in convincing the public that the courts are in fact filled with frivolous lawsuits and that these lawsuits are costing the public millions of dollars. Largely as a result of their efforts, numerous tort reform laws have been passed in the last 20 years.
Reformers argue that frivolous lawsuits cause two major consequences: high malpractice insurance premiums and subsequently high medical costs; and unemployment, caused by the resources that companies must expend to contest the suits. These effects however, are theoretical, not proven. Where tort reforms have been adopted, as in Ohio, the cost of medical care continues to rise.146 Further, employment in Ohio has worsened significantly since tort reform, although this cannot be conclusively attributed to anything but a weak economy.147
Reformers have published a story of massive fraud in the asbestos litigation industry.148 The fraud consisted of thousands of individuals seeking recovery for alleged injuries, 60 percent of whom had already recovered from lung injuries caused by asbestos.149 Scientific studies, however, have shown that asbestos fibers can never be removed from the lungs, so victims will never recover fully from their injuries.150 There are recorded cases where a person may have worked in unsafe conditions for as little as a month, yet still contracted mesothelioma decades later.151 A person can never recover from lung injuries even though evidence of their existence may vanish from their x-rays.152
Reformers also claim that plaintiffs who show no injuries are filing frivolous cases. Plaintiffs must file their cases before the statute of limitations, usually five years, expires for them. At that point they may show no symptoms other than characteristic abnormal x-rays and their awards, either from an insurance trust or from results of a class action suit, are generally small. These same plaintiffs may find themselves suffering from cancer in 5, 10, or 20 years. At that point, they can refile their claims and receiver larger settlements. Calling the original filing a frivolous suit is false. Without the original filing, they could never recover the actual amount due them.
There is a great crisis in the courts, but it was caused by the asbestos companies, whose actions resulted in 730,000 claims filed by plaintiffs at risk of mesothelioma and other asbestos-related disease. This number is not irrationally high considering that there may be 27 million potential plaintiffs. Tort reform has reduced the number of claims filed and has lowered awards but this does not serve justice.153
Ohio has been passing tort reforms for several years. Records of Ohio court filings before reforms (2002) show that 629 products liability cases were filed, just 0.10% of all civil cases filed in that year.154 Similar records for 2009, gathered after tort reforms passed the Ohio legislature, showed 263 products liability cases filed, 0.03% of all civil cases.155 Reformers have asserted that this reduction in court cases should have resulted in higher employment in Ohio, but it has not.156 Employment in Ohio was much worse in 2009 than in 2002. The small number of actual cases tends to refute the idea that product liability tort cases (along with professional torts and civil torts) could possibly be costing the U.S. economy $265 billion a year (or whatever Tillinghast-Towers Perrin estimates for the current year).157 These figures show that many victims of corporate tortfeasance in Ohio have been unable to afford lawsuits that might give them a measure of justice. Others may have found their awards substantially reduced.
The Governor of Minnesota recently vetoed a law that would have explicitly limited the liability of corporations that acquired companies that had liabilities from asbestos production.158 The Governor stated that he did so because it would shift the costs of injuries from Asbestos manufacturers to taxpayers and others.159

IV. Conclusion
The health of the American people is too important to entrust to the political process alone. Elected officials who swore to uphold the laws have subsequently refused to enforce them, due to the influence of powerful lobbies. The body politic can be persuaded of almost anything by clever arguments repeated ad infinitum, but those arguments cannot change the scientific facts. Those facts need to be recognized and acted upon when necessary.
The tort reform movement, supported by the asbestos industry and their insurers, has caused great harm to our liability laws. Producers have used political pressure to thwart corrective action by federal agencies, like the E.P.A. Producers have also spent millions of dollars spreading disinformation that has poisoned the jury pool and created an electorate willing to countenance irrational changes to tort law.
Appropriate measures should be taken to reverse these actions:
  1. State Attorneys General should examine tort reform laws and challenge the constitutionality of those that cannot pass scrutiny. Some of these laws have already been struck down by the courts. Others may be ruled unconstitutional in the future.
  2. State legislatures should pass laws that reinstate strong punitive verdicts to punish tortfeasors and deter others from following their bad example.
  3. State legislatures should extend statutes of limitation in cases where disease symptoms may not appear for decades. New Jersey recently passed a law eliminating such statutes entirely in certain cases.
  4. Congress should increase the funding and independence of the E.P.A. by giving it autonomy like that enjoyed by the Federal Reserve Board. This will prevent cases critical to the well-being of the nation from being unduly influenced by political factions.
  5. Congress should strengthen the ability of regulatory agencies like the E.P.A. to fulfill their legislative mission under the Clean Air Act and the Toxic Substances Control Act. This task may entail making interference with these agencies punishable by fine, imprisonment, or both.
  6. Pamphlets, advertisements, and other publications attempting to influence public opinion about scientific findings should reveal the sources of their funding. An article funded by the asbestos industry claiming that asbestos is not harmful must contain a disclaimer naming its sponsors, not merely the innocuous-sounding name of the organization that the industry has funded.

The Asbestos Industry, in alliance with its insurers and others, created a number of organizations that convinced the American people of the need for tort reform. For the industry, tort reform meant decreasing the awards made by judges and juries against them in product liability suits. The industry deserved these adverse verdicts, however, because it chose to ignore workplace safety for its miners and workers for decades. The industries and its allies funded a network of groups that allowed them to campaign for verdict reductions under the guise of tort reform. They used their political influence to interfere with the congressionally mandated activities of regulatory agencies. Their actions led to the deaths of thousands and the suffering of thousands more.
From an ethical standpoint, the worst result of these actions is the unnecessary infliction of disease and death on thousands of people. From a legal standpoint, the worst result of these actions has been the steady erosion of the average citizen's right, guaranteed by the Seventh Amendment, to trial by jury. The tort reform laws passed by state legislatures have traded payments to victims for profits to corporations. These reforms should be reversed. Measures should be taken to protect plaintiffs from unethical practices in the future.

1What Is Asbestos?, American Cancer Society (Nov. 11, 2010),
3The Unfortunate History of Asbestos, The Miracle Mineral, Metal Technology Roofing (2012), .
4Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1083 (1973).
6Mesothelioma Statistics & Facts, (Feb. 20, 2012), .
7Asbestos Toxicity, Case Studies in Environmental Medicine, Agency for Toxic Substances and Disease Registry 20 (Aug. 18, 2010), .
8 Stephen J. Carroll et al., Asbestos Litigation, RAND Institute for Civil Justice 6 (2005) ,
10Unfortunate History ¶3.
11Robert Sherrill, Asbestos, the Saver of Lives, has a Deadly Side, N. Y. Times (Jan. 21, 1973),
12 Andrew Schneider and Carol Smith, Asbestos -- It’s the killer that won’t die: Failure to ban fiber in U.S. imperils more lives, Seattle Post-Intelligencer (Feb. 11, 2000),
13 15 U.S.C. §2601 et seq. (1976).
14Asbestos; Manufacture, Importation, Processing, and Distribution in Commerce Prohibitions, 54 Fed. Reg. 29,460 (July 12, 1989) (to be codified at 40 C.F.R. pt. 763).
15Anne McGinnis Kearse, Decades of deception: secrets of lead, asbestos, and tobacco, Trial ¶23 (Oct. 1, 1999),,+asbestos,+and+tobacco.-a056909661 .
1644 Fed. Reg. 60,061 (Oct. 17, 1979).
1754 Fed. Reg. 29,460 (July 12 1989).
18Id. at 29,461.
21 Corrosion Proof Fittings v. E.P.A., 947 F. 2d 1201 (1991).
22Corrosion at 1211.
23Corrosion at 1211.
24 Corrosion at 1212.
25Andrew Schneider and Carol Smith, Asbestos -- It’s the killer that won’t die: Failure to ban fiber in U.S. imperils more lives, Seattle Post-Intelligencer ¶22(Feb. 11, 2000), .
2654 Fed. Reg. 29,460.
27Corrosion at 1213.
28Asbestos Toxicity.
29Reserve Mining Co. v. E.P.A., 514 F.2d 492 n.27 (1975).
30Id. at 507.
31Amoco Oil Co. v. E.P.A., 501 F.2d 722, 741 (1974).
32 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
33Id. at 865.
3415 U.S.C. § 2601(b)(2).
35Corrosion at 1221.
36 Schneider.
3815 U.S.C. § 2601(b)(1).
39Corrosion at 1213.
4054 Fed. Reg. 29,461.
41Corrosion at 1211.
4215 U.S.C. § 2601(c)(3)(A)(ii).
4354 Fed. Reg. at 29,468.
45Corrosion at 1229.
4654 Fed. Reg. at 29461.
47Corrosion at 1213.
4815 U.S.C. § 2605(a).
49Schneider ¶22.
50Corrosion at 1230 (ON MOTION FOR CLARIFICATION).
51Id. ¶30.
52 Powell at 311.
53Schneider ¶33.
54Id. ¶35.
55EPA’s Failure to Declare a Public Health Emergency in Libby, Montana, U. S. Senate Committee on the Environment and Public Works (Sept. 2008), .
56Id. at 21.
57Id. at 25.
58Id. at 24.
59Id. at 25.
60Public Health Emergency Declared, The Montanian (Libby, Montana) ¶16 (Jun. 24, 2009), .
61E.P.A.'s Failure at 38.
62EPA's Failure to Declare a Public Health Emergency.
63Id. at 3.
65Public Health Emergency Declared ¶1.
67Collins English Dictionary - Complete & Unabridged 10th Edition, HarperCollins, .
68Carl Deal & Joanne Doroshow, The CALA Files: The Secret Campaign of Big Tobacco and Other Industries to Take Away Your Rights, Center for Justice and Democracy and Public Citizen (2000), .
69Sherill at 4.
70Matthew M. Swetonic, Sourcewatch, Center for Media and Democracy (Apr. 30, 2009), .
72 Profile of the AIA/NA, UCSF Legacy Tobacco Documents Library (1972), .
74Anne McGinnis Kearse, Decades of deception: secrets of lead, asbestos, and tobacco, Trial (Oct. 1, 1999),,+asbestos,+and+tobacco.-a056909661 .
75Id at 9.
78Matthew M. Swetonic.
83Deal at 2.
84Deal at 2.
85 Tort Reform Project Budget, Legacy Tobacco Documents Library, UCSF 1 (1995), .

86Id at 8.
87Deal at 1.
88Tort Reform Project Budget at 4.
89Covington & Burling, Tort Reform Project Budget (Oct. 3, 1995), Bates No. 2047648299/8307, .
90Carl Deal & Joanne Doroshow, The CALA Files: The Secret Campaign of Big Tobacco and Other Industries to Take Away Your Rights, Center for Justice and Democracy and Public Citizen 5(2000), . 1.
94Matthew M. Swetonic, Taming the Asbestos Monster, Heartland Institute (Nov. 5, 2002), .
95Id. ¶1.
96Id. ¶3.
97Asbestos Bankruptcy Trusts: The Good The Bad And The Ugly, Mesothelioma Empowerment ¶1 (2010), .
98Id. ¶22 (Citing a RAND study, Stephen J. Carroll et al., Asbestos Litigation, RAND Institute for Civil Justice, RAND Foundation (2005) , .
101 Robert Sherrill, Asbestos, the Saver of Lives, has a Deadly Side, N. Y. Times (Jan. 21, 1973), .
102 Id.
103 Id.
104 Carl Deal & Joanne Doroshow, The CALA Files: The Secret Campaign of Big Tobacco and Other Industries to Take Away Your Rights, Center for Justice and Democracy and Public Citizen 1 (2000), .

105 Id. at 2.
106 Id. at 3.
107 Asbestos cleanup 'emergency' declared in Montana town, CNN U. S. (Jun. 17, 2009),
108 Michael Moss & Adrianne Appelm, Protecting the Product / A special report: Company's Silence Countered Safety Fears About Asbestos, N. Y. Times (Jul. 9, 2001), .
109 Id.
110 Deal at 7.
111 Deal at 10.
113 United States v. W. R. Grace, 504 F.3d 745,749 (2009).
114 Id.
116 Deal at 3.
119 Id.
120 Tex. R. Civ. P. 166a(i) as cited by Kuhn at 3.
121 Id.
123 Id. at 413.
124 What is Asbestos?
125 Tort Reform Record at 4.
126 Han-Duck Lee, Mark J. Browne, and Joan T. Schmidt, How does Joint and Several Tort Reform Affect the Rate of Tort Filings, 61 J. of Risk and Insurance No. 2, 295-316 (Jun. 1994),
127 Farley v. Engelken, 241 Kan. 663 (1987).
128 Id.
129 Lindy Orlowski v. State Farm Mut. Auto. Ins. Co.,Sup. Ct. Wis., Case No. 2009AP2848 (March 7, 2012),
130 Id. at 11.
131Tort Reform Record, American Tort Reform Association 19 (Dec. 22, 2011), .Tort Reform Record at 19.
132Tort Reform Record at 33.
133 Moore v. Mobile Infirmary Ass'n, 592 So.2d 156.
134Andrew Cohen, The Real Victims of 'Tort Reform', ¶3 (Jul. 18, 2011), .
135 Id. ¶5.
136 Id.
137 Id. ¶12.
138 Id. ¶3.
139 Id. ¶9.
140 Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731,735 (2010).
141 Id. at 736.
142 Tort Reform Record at 42.
143 Id.
144 Tort Reform Record at 53.
145 Asbestos: A Report on the Asbestos Litigation Industry, 2008, Trial Lawyers Inc.,
146 Stephen Koff, Ohio's tort reform law hasn't lowered health-care costs, Plain Dealer)(Mar. 20, 2010),
147 Justinian Lane, No jobs in Ohio after tort reform, 15, 2011),
148 Asbestos: A Report on the Asbestos Litigation Industry, 2008, Trial Lawyers Inc.,
149 Id.
150 Robert Sherrill, Asbestos, the Saver of Lives, has a Deadly Side, N. Y. Times (Jan. 21, 1973)(quoting Irving Selikoff), ..
151 Id.
152 Id.
153 Brian Wilson, The Chamber, Lawsuits, and Jobs: If only the Truth Mattered, Nicodemo & Wilson Bulls-Eye Blog, (Jan. 12, 2011), .
154 Id.
155 Id.
156 Id.
157 See Richard Posner, Is the Tort System Costing the United States $865 Billion a Year?, Becker-Posner Blog (Apr. 1, 2007), .
158Beth Hawkins, Asbestos-bill veto was Dayton's 7th related to ALEC efforts, MinnPost (Apr. 10, 2012), .
159 Id.