Charles Carreon, The Arizona Kid

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THE GREAT MCCLOUD WATER CAPER OF 2003, by Charles Carreon

October 17, 2005



The Swiss Way: When Neutrality Works This Well, War Is Obsolete

Half A Billion Gallons of H2O Per Year Up For Grabs

The Nestle Waters North America website hasn’t apparently been updated since 2003. That is probably why it says nothing about the subject of this article – Nestle’s bald-faced attempt to circumvent the California Environmental Quality Act (CEQA) by ramming through a secret contract to buy 1600 acre-feet of water per year from a tiny community resource agency in Northern California – the McCloud Community Service District (MCSD). How much is an acre-foot? That’s one acre, one foot deep, which is a lot of water – 325,851.427 gallons. Multiply that by 1,600 and you get 521,361,600. That’s over a half-billion gallons of water each year. I bet even in McCloud a bottle of Calistoga will still cost two dollars. So, aside from the costs of pumping, bottling and transportation, Nestle, a Swiss corporation, will pull out a vast amount of nature’s finest product, drawn from the watersheds and snowmelt of countless square miles, so they can sell it back to Americans. And you thought we were smart here in the USA.

The World’s Largest Food Producer Is Thirsty

Nestle’s website says it’s the world's largest bottled water company, serving H20 under seventy-seven brands in a hundred and thirty countries world-wide. They’re so proud of selling all this water, you’d think they’d invented the stuff. Or maybe it’s just the money that makes them so comfy. Quoting from the company website:

“From 1998 to 2003, Nestlé Waters North America has seen its revenue increase from $1.2 billion to $2.6 billion, sustaining a volume share (all channels) of nearly 26.0 %. Nestlé Waters is, in turn, a division of Nestlé S.A., the largest food company in the world. Sales of total Nestlé S.A. increased one percent over the previous year to CHF 88 billion. Nestlé headquarters is located in Vevey, Switzerland.”

The Swiss: Masters At Working All Sides Against The Middle

In summer 2002 I was in Vevey, one of the loveliest stops along our boat-trip around Lake Geneva, with a very splendid view of Mont Blanc. The Swiss have scenery to kill for. We also stopped at a dungeon on the lake that had been designed with Swiss efficiency – the icy winds off Lake Geneva served to torment with cold, and the uneven stone floors gave prisoners nowhere to rest or seek shelter. Upstairs from the dungeon, a court fit for dancing parties was devoted to displays of arms. Starting as the first European mercenaries, the Swiss were loyal so long as they were paid and not asked to fight other Swiss. They still bodyguard the Pope. They invented bank secrecy, laundered Nazi gold and immense amounts of money stolen by oligarchs from the coffers of the poorest nations. The Swiss have the largest standing army per capita in the world, and produce as hard goods some of the priciest – chemicals and drugs. The Swiss are a libertarian nation if you will, where it is explicitly not their business whether you are evading taxes in another country as long as you are paying them in Switzerland. And they don’t make farmers bend over to please the tourists. One morning, we were wakened in our lovely little second floor hotel room with the lakefront view by an extremely aggressive bug-eyed crop-dusting helicopter buzzing the beachside vineyards hour after hour, spraying bio-cide. We repaired to Vevey for the day.

McCloud – Terra Incognita

Although I looked at Switzerland firsthand, I have never been to McCloud, and have driven past the McCloud exit on I-5 more times than I can count. My friend Rogelio, with whom I practiced Chinese martial arts in the late seventies, told me it had been nasty and brutish living as a short, Hispanic logger in McCloud. So I viewed McCloud, without ever seeing it, as a snowy sinkhole of poverty ensconced in useless mountain beauty. A place where pickup trucks rust next to unpainted buildings, and they probably still don’t sell a lot of natural food in the stores. Perfect for Nestle to swallow whole without any hint of indigestion.

A Little Lawsuit In Shasta County

I had occasion to revisit my view of McCloud recently when I saw a young lady at the Bloomsbury coffee shop reading a big stack of typewritten papers that she was underlining in red. She said it was the record of a public meeting about a lawsuit down in McCloud where the people had to sue to get their water back from Nestle. The court order she showed me had been signed by Judge Roger Kosel of Siskiyou County Superior Court, and it did indeed invalidate a contract for the sale of water from the people of tiny McCloud to Nestle, the multibillion-Swiss-franc colossus. The text that got my attention was this:

“The agreement commits the McCloud Community Services District to an option contract with Nestle for the purchase of up to 1600 acre feet per year of District spring water for a period of 50 years with a guaranteed right to extend the term for an additional 50 years. This option is irrevocable for a period of 5 years on the District's part The potential environmental impacts to the water supply are foreseeable and obvious... The approval of the agreement amounts to the creation of an entitlement for Nestle and commits the District to a definite course of action.”

The Superior Court concluded that because “the agreement creates an option for the purchase of … drinking water … potentially … out to 100 years … it is an abuse of discretion not to proceed with CEQA compliance prior to approval of the agreement.” What is CEQA compliance? Just a matter of public involvement. As Judge Kosel ruled, “the purpose of CEQA is to … inform governmental decision-makers and the public about the potential, significant environmental effects of proposed activities.” Therefore, it would seem obvious to all but Nestle and the MCSD, that “compliance should occur prior to the approval of the agreement.” There was no environmental study, no public hearing until Nestle and the MCSD brought the matter up at a single public meeting, and of all the questions raised by the surprised public participants, none received adequate answers. Instead, the MCSD approved the contract despite having no access to legal counsel, scientific advice, or apparently anything but the pushy Nestle lawyers to advise them.

A Mighty Sweet Deal

Why was there such a hurry to rush this contract through? Well, for the same reason rape and pillage are always done in a hurry – once caught in the act, it is more difficult to complete it. According to the McCloud Watershed Council, that formed to overturn the sweetheart deal, and apparently convinced Judge Kosel of the truth of their contentions, the contract provides for:

• A 50-year term, renewable for another 50 years
• The right to take 1,250 gallons per minute of spring water
• The right to take qualified water on an interim basis from district's springs for bulk delivery to other bottling facilities located in Northern California
• The right to construct pipelines and a loading facility
• Use of an unknown quantity of well water for production purposes
• Exclusive rights to one of the Springs
• One hundred years of exclusivity, during which time no other beverage business of any type may exist in McCloud
• Use of an undisclosed, perhaps unlimited amount of ground water
• The right to take 1600 of acre feet of spring water annually
• The right, from time to time, to request purchase water in excess of the maximum take
• The right to transport bulk water from spring sources, other than the Springs, for bottling at the bottling facility (see contract details)
• The right to choose exclusive use of either Upper or Lower Elk Springs as an exclusive source for Spring Water
• The right to require the MCSD to dispose of process waste water
• The right to require the MCSD to design, construct and install one or more ground water production wells on the Bottling Facility site for Nestle’s use as a supply for non-spring water purposes.

The benefits to Nestle in this agreement are outrageously imbalanced against the detriments to the community of McCloud. But we may also properly ask why McCloud should have control over so much water that they don’t have any use for? If the MCSD can sell over half a billion gallons a year and not miss it, why not give McCloud other vast resource tracts to sell to the Swiss, or to the Saudis for that matter? Why not sell Lake Shasta to the Sultan of Brunei. He’s really thirsty. He can ship the lake to his country in oil tankers and on the return trip, make payments in oil. The way the Swiss are pricing water, it’s already twice as expensive as gas, so we should make bank!

Of course, the anti-American lawyers who get payment in Swiss francs (stronger than the dollar for three years running now) aren’t going to give up. With the natives now rejecting the pittance in beads they were offered in exchange for this vast, unused natural resource, they will have to go the appellate courts to drag things out, cause more expense, and possible even reap a victory. CEQA is no doubt an endless problem for business interests, foreign and domestic. Perhaps the appellate judges will approve of circumventing its provisions. Perhaps an initiative can be floated to repeal it. Perhaps the endless flood of billions will bear Nestle along to success, and we will be free to buy back the resources we sell the Swiss at whatever price our poor, thirsty little mouths will compel us to pay.

Or maybe you have had enough. Maybe you thought Bolivia was the only country multinationals would roll over with their contracts and their big fat wallets. Maybe you want to help out the people of McCloud, and help pay for their one lawyer, Donald Mooney of Davis, California, to keep up the good fight. Maybe you want to vote with your pocketbook, by taking these Nestle water brands off your list forever:

Arrowhead
Calistoga
Deer Park
Great Bear
Ice Mountain
Ozarka
Poland Spring
Zephyr Hills

Maybe you don’t want to keep quiet about it, and you’d like to send an email to the CEO at Nestle’ Waters North America Inc. I thought you might, so here’s his contact information.

Kim E. Jeffrey – President and CEO
777 W. Putnam Ave.
Greenwich, CT 06830-5091
Phone: 203-531-4100
Fax: 203-863-0297
email: http://www.nestle-watersna.com/faq/submit.asp?id=1
Or email: http://www.nestleusa.com/customerService/contact_us.asp

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SECOND ANNUAL FREE SPEECH IN THE PARK DAY DRAWS CITIZENS AND COMMUNITY LEADERS TOGETHER, by Charles Carreon

October 17, 2005

The theme of the Second Annual Free Speech in the Park Day was “What the Bleep Is Happening To Ashland?” Both the crowd and community leaders had their say on the topic, and everyone was heard who wanted to speak. Even the guy who stands silently with the Jesus sign wherever people rally in Ashland garnered a round of applause from the crowd when invited to do so by the MC – Thomas Paine. Paine made an appearance due to a time warp that he said whisked him out of his prison cell in the Bastille, allowing him to visit the country he helped found two hundred and thirty years ago. Paine expressed pleasure that some of his books, “Common Sense,” “The Rights of Man,” and “The Crisis” are still in print to this day, but also said he was very troubled by the transformation of the U.S. flag from an emblem of freedom to a symbol of tyranny. He urged the audience to exert themselves to re-establish the meaning that the founders of the nation intended it to proclaim – the freedom and dignity of all individuals. Paine then put himself at the service of the crowd, ferrying a wireless microphone to anyone who wanted to speak, and speak they did.

Among the community leaders who appeared to speak were State Rep. Peter Buckley, Police Chief Mike Bianca, KSKQ Radio representative Suzia Aufderheide, Walk In Peace founder Steve Traisman, and JPR radio host Jeff Golden. Buckley lead off, telling giving his constituents a report on the maneuverings going on at the statehouse up in Salem, and expressing his appreciation for being able to represent Ashland there. Admitting that he couldn’t afford to buy his house again at current Ashland prices, he touched on an issue that many people returned to – affordable housing and city services that make the town a place where regular folks can live.

Citizens tossed out many alternative ideas on how to organize the life of the town. Michael Washington, bicyclist, spoke about living without an automobile. Montana, of Ashland Homeless Alliance, and others addressed the issues of livability for people who have no roof to sleep under. Walker recited a poem from memory about the town called “The Purse Shaped Party” that was heard and absorbed in absolute silence. It was a warm and beautiful day, and wound down with a flute and drum performance and a closing invocation by Chief Bianca. The Warstars took the stage to rock the dispersing crowd, and as things quieted down and darkened up, firedancers heated up the night until the promised closing time of 8 p.m. Thomas Paine, watching a lithe young woman twirling blazing brands, remarked that he had never seen anything like it, even in Paris.

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ROMANCE FORGERY ROCKS THE VINYL CLUB, by Charles Carreon

October 17, 2005

It takes hardware to rock, and more than just sound equipment. You need a bar with good, cheap drinks, a cool bouncer named Max, and some bands that’ll shake the fillings in your teeth. Oh, and a tiny little dancefloor where no one is more than twelve feet away from anybody else or the band itself. Gee, that perfectly describes the Vinyl Club on the last Sunday in September, where Romance Forgery played the second of two gigs in one night. I’d caught them earlier over at the A Street Marketplace, where Elena, the vocalist-songwriter who fronts the band, no doubt surprised some listeners who attended Craig Wright’s Katrina Benefit by singing in Spanish, very intensely, and with more emotion than many Ashland citizens are likely to feel in a week. That was fun to see, so after catching a few bluegrass tunes by Craig Wright & Friends, I migrated over to the Vinyl Club to hear Romance Forgery’s amplified set.

The show was opened by The Glossines, a San Diego power trio of regular chicks dressed in light blue waitress smocks splattered with red and aprons bearing the logo “Hell’s Diner,” who did real good in the three-chord monte department, getting the small crowd on its feet. With titles and refrains like “I Don’t Wanna Talk About You” and “I Don’t Think I Like You Anymore” tacked onto familiar girl-punk riffs and rhythms, these girls twirl the dial back to the days of fake IDs. They are welcome back to this town anytime.

Then for a shift in attitude and intensity, on came RF, and we moved from the garage to the stage, from fun to earnest, from packaged to unpackageable. Aaron Hoppe, lead guitarist, imposes his will on his instrument with samurai intensity. Elena loves to keep a strident rhythm with a clean tone wanging out of her sherbet-green electric. With Sean Rogers on upright bass, Andrew Barnes on the trap set, Romance Forgery fires up like an aircraft engine, lifting Elena’s vocal delivery outside ordinary ranges into an intense, hypnotic realm. Sometimes I was in the clouds, watching lightning flashing, other times I found myself walking under jolting powerlines dropping arcing cascades of sparks. I found myself confronted, provoked, pushed, pulled, compelled to witness frenesis, and then they let loose another type of magic. Dropping the tempo to a strolling pace, Elena swung into a slow Spanish number with the refrain “voy a perder” – “I will lose.” On this song, Elena’s voice is vulnerable, admitting in a foreign language what every latin lover knows – we will lose. To lose gracefully, lose everything.

In a little pre-show interview, I learned a few things about RF, an art-rock band with serious skillz. They will be doing some recording in Tucson, Arizona this fall with Soiled Gold, a media collective, and Loveland, Nathan Sabattino’s independent studio. They’ll also be playing at the renowned Rialto in Tucson on November 6th, the day after the Day of the Dead, a Mexican festival that is celebrated with particular fervor in Tucson. Since Romance Forgery hasn’t put out a CD yet, the Tucson hegira should help them cross that milestone. I think they’re ready to make the trip. — Carlos Ramone

Romance Forgery on myspace

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PB&J WITH THE JUDGE, by Charles Carreon

October 17, 2005

Most people know Allen Drescher from his role on the bench as the Ashland Municipal Court Judge. I have known him since 1978, when he gave me my first paying job in town, peeling linoleum off the floor of a basement room in his office building in downtown Ashland. Another lawyer, Jim Osher, had given me a place to stay in exchange for cleaning his house, and had recommended me to Allen for an afternoon’s work. Allen paid a fair wage for my somewhat unsuccessful efforts at linoleum removal, and I formed a good opinion of him based on that, and on Jim Osher’s positive remarks about his fellow liberal lawyer. Osher, as I recall, also had been to a fine back east law school, sported a beard, sometimes cackled with zesty glee, and ran his office out of a tiny room in a house that he’d built out extensively to house young people up to the rafters. Allen, I understood, wore wide ties, but was more mainstream than Osher.

I got settled with my family and lived in and around Ashland for six years, picking up an English degree at the college, and only once appearing before Judge Drescher for executing not quite stopping as I rolled downhill on Granite onto the main drag. He gave me a break, as I remember it, cutting the fine to a bearable level in response to a genuine plea of poverty. In 1983, I moved to LA for law school and a stint in the fast lane, and in 1993 returned to Ashland. After becoming an Oregon attorney and opening a practice in Ashland, I only once crossed swords with Allen in litigation, and he referred the matter to a local litigator, with whom I resolved the case with a quick settlement that made no one any richer except on paper, as I recall.

I’ve represented a handful of clients in Ashland Municipal Court over the years, and found it easy to work with Judge Drescher. He is cordial to a fault, considerate of my clients’ concerns, and respectful of my arguments. One cannot, however, make an omelette without cracking a few eggs, and dispensing justice is similarly destructive in the service of a positive goal. Over the years, I had heard my share of stories about Judge Drescher’s sentences, some of which seemed creative. As a Deputy District Attorney, I occasionally heard of Ashland jail sentences being summarily commuted by the jail staff to a one-night stay, because the gravity of the convicted person’s crimes often paled in comparison with those of other “lodged individuals.” Put simply, Ashland criminals weren’t bad enough to keep in jail for more than a night.

So it was that the years had rolled by, and I had never really had a chat with Allen about anything besides the legal matters before us. Last month I requested an appointment to interview him, and after we discussed my expected topics, he agreed. We picked a date, and I offered to take him to lunch. In reply, he offered this quotable clue to his character: “Since I became a lawyer, I have made it a habit to eat a peanut butter and jelly sandwich in my office for lunch.” I perfectly understood. I had eaten a sandwich in my office plenty of times, so I said I’d bring my own PB&J, and we both marked our calendars. Then I wondered if he really only ate peanut butter and jelly, or if he sometimes ate other sandwiches.

When we got together and settled at the oval conference table in his quiet, comfortable office, Allen extracted his PB&J from a paper bag, and I had no further doubts on the matter. No cheese sandwiches or hoagies for this man. He seeks to embody Yankee simplicity, I decided, even if he was born in the Midwest. Sitting next to Allen, I realized he was genuinely enjoying this most recent in a long sequence of identical, yet unique sandwiches, roughly equal in their number to the number of days he had been practicing law. I understood the poetry of it, and felt the mad indiscipline of my own ways. I bit into a scone from Dave’s coffeehouse and began taking notes.

Allen was born and raised in Michigan. He went to Columbia during years of serious student unrest, graduating in 1968. He went on to graduate from Columbia Law School, then and now one of the top schools, in 1972. He spent 1970 in Eugene, taking a break from law school, and after he graduated, he moved to Portland, where he worked in Legal Aid for a year in 1972 practicing civil rights law under Laird Kirkpatrick, now on the faculty at U of O Law School, and the author of the fundamental treatise on Oregon Evidence. In 1973 Allen accepted a job to establish a Legal Aid office for Coos and Curry Counties. He’d fallen in love with the Oregon coast during the summer, so it was inevitable that the day he moved into his new home, it would start raining, and not stop for thirty days. After setting up the office as he’d agreed, he opted to move to drier places inland, and settled in Ashland in 1975. In 1976 he was elected to a City Council position, the same year Jim Sims, another progressive lawyer, ran for mayor.

In 1978, Allen was elected to the Municipal Judge position. Since then, he’s run successfully for re-election every four years. Being a lawyer, but never a judge, I’ve of course contemplated how pleasant it might be to have the last word in every argument, to always be the person who, by definition, is right. While judges are sometimes reversed on appeal, it is undoubtedly an extremely rare occurrence for Judge Drescher. His judgments go largely unquestioned and are effectively unquestionable. It is total power in small matters.

I asked Allen to describe his philosophy of judicial independence, and he responded that having to stand for election every four years, and being re-elected each time, had given him a sense of confidence that his judgments in court met with community approval. Roughly half of his judicial races have been contested ones. The elective process has put a fine point on his efforts to do the job well. As he stated, “The people who you are judging are going to come around and judge you next election.” I found this interesting, since it is usually thought that judicial independence is best secured by granting judges lifetime tenure, as is done with all federal judges appointed by the president. There is no doubt that lifetime-tenure system has produced some very independent-minded judges, and also some monsters. It was interesting to hear that the voice of public opinion, coming from the ballot box, can provide a different kind of independence. The risk of losing the next election didn’t deter him from convicting the guilty or imposing fines, he explained, but it caused him to exert himself in performing the job of judging.

“The hardest thing,” the judge noted noted, is to “really apply the presumption of innocence” in a criminal prosecution. He reminisced about a DUI defendant who had been using an alcoholic mouthwash to treat the hole he’d pierced in his tongue for his new ring, noting that while he couldn’t recall how he’d resolved the issue, “People do dumb stuff, but dumb stuff is not always against the law.” When, I asked him, do attorneys ask for a jury trial? Very rarely, he responded, about once a year. And why do they ask for a jury instead of trial before a judge? Because, he admitted wryly, they stood a better chance of acquittal if tried by a jury. In a jury trial, he said, “My role is to be stonefaced and not give them a clue what I think.”

Volunteering an answer to a question I hadn’t asked, Allen explained that he hadn’t sought to climb the judicial ladder, and had enjoyed the caseload of misdemeanors and traffic infractions. “I like dealing with the people. Most often, in municipal court, there are no attorneys. I like not getting the orchestrated, filtered version. They just say it from their heart and mind.” Further, he observed although the cases concern small matters, “to the people involved, it’s important.”

Turning to the subject of political activity and citizen participation in government, he said that he believed democracy does work in Ashland, and we can “save our schools and playgrounds.” As I pressed further, though, I asked him to remark on the difference between the seventies, when we both arrived in Ashland, and the mood these days. He agreed that inspiration is lacking, and explained why it was different then: “I was inspired by JFK. He really appealed to my generation in a powerful way. The Vietnam war affected us directly. We were being killed. The cultural revolution of the sixties – long hair, strange clothes, the Beatles message of love and peace, that really had an effect on a whole generation. You can’t overlook the effect that cultural movements have on how people relate to society. So a whole generation felt it could make a change, and we did. The kids I see in municipal court are not getting a message from the top – national leaders are so cynical. People believe the government does bad stuff. It’s powerful and you don’t want to go there. It’s 180 degrees from the 1960s and 70s. The music’s not inspiring. Once I heard Martin Luther King speak to a mixed-race audience, and it was so inspiring. We’ve achieved racial equality and some people are doing great, but some people got left behind. We have an underclass and we’re not helping them.”

With the larger problems of the world looming over our discussion, we turned again to the place we call home, and the town that calls Allen its judge. He returned again to the theme of listening to people and their problems. He expressed satisfaction with many young people who have successfully completed drug and alcohol education programs, and praised Jan Janssen’s work helping young people to meet the challenges of growing up in Ashland today. Allen spoke contemplatively, “Maybe I can help individuals. I can get them when they are still young and still amenable to change.”

The interview actually turned from one lunch into two, and the second time I didn’t even bring a scone, just coffee. Allen had his PB&J, though. Some things don’t change, and maybe that’s how we like them.

[admin]

OLD PIRATE IN THE BRIG: STEVE COHEN IN LA METRO, by Charles Carreon

10:57pm, October 27, 2005

My thanks to Hal Meyer for calling my attention to this article in the LA Times. Gary called a little while ago to tell me the news. This has got to be Cohen's worst nightmare. Locked in a cell with Judge Ware holding the key, and a record of defying the courts by flinging his unwelcome briefs into the courts from his fugitive perch in Tijuana, worldwide center of culture, drug money and mayhem against women.

How long can the judge hold him in? Well, if Gary has his say, until he has disgorged every last piece of silver from his ample gullet. A little abdominal massage with a baseball bat might assist in the disgorgement. Who knows if Gary will get his wish? Certainly Judge Ware would have little reason to trust Cohen, who has been a fugitive for nearly five years, to appear at future court proceedings. No doubt both the INS and Gary Kremen will demand his appearance at such future proceedings. Thus, I would think that things do not look good in the short term for Cohen. Will he pull a Houdini?

The arrest coincided with some seizures of Cohen's remaining Stateside property. Gary says he seized a "little money, a couple hundred thousand dollars," from accounts held by Cohen's Mexican lawyer Gustavo Cortez. Well, it may not be much to Gary, but for Cohen it might be the difference between the best representation money can buy and the Federal Public Defender.

By Richard Marosi and Joseph Menn for LA Times wrote:

Fugitive Online Porn Mogul Is Handed Over to U.S. Agents

7:18 PM PDT, October 27, 2005

SAN DIEGO — Four years after dodging a $65 million court judgment by fleeing the country, former online-porn mogul Stephen Michael Cohen was arrested by Mexican authorities in Tijuana on an immigration violation and handed over Thursday to U.S. agents.

Cohen, a multiple felon and longtime con man, had been on the run since before 2001, when a judge ordered him to pay a San Francisco entrepreneur for hijacking the Internet address Sex.com. In 1995, Cohen forged a letter to Internet authorities to gain control of the address, which he transformed into a highly profitable site for pornography ads.

Cohen, who had been living in a Tijuana mansion, was being held without bail at the Metropolitan Correctional Center in downtown San Diego. His apprehension was the latest twist in one of the most bizarre and longest-running feuds of the dot-com explosion.

The contest pitted Cohen against Gary Kremen, a San Francisco engineer and investor who had the foresight to register the Web address in 1994, when names were doled out for free to the first person who asked.

While Kremen was busy with other things, including the company that grew into the online dating site Match.com, he did nothing with Sex.com. But Cohen, fresh off a federal prison term for fraud and forgery, saw the domain's potential.

In 1995, Cohen presented a forged letter to Network Solutions, ostensibly from Kremen's company, that said Kremen had been fired and that Cohen should get control of Sex.com. Network Solutions handed over the site.

When Kremen discovered what had happened, he was told by Network Solutions that they couldn't help him. They suggested he sue Cohen.. But Cohen was raking in what grew to be tens of millions of dollars by selling ads on Sex.com, and he and his lawyers put up a fight — so ferociously that the federal judge on the case ordered Cohen arrested for contempt of court.

But Cohen was unavailable. During the years of litigation, he moved his millions overseas and left the country, occasionally calling Kremen to taunt him. Kremen got Sex.com back in late 2000 and the next year was awarded $65 million — an amount that has since grown to $82 million, with interest. Kremen has collected some property from Cohen, but has yet to break even on his legal fees.

"I'm excited, and I'm happy to prepare for the next stage of justice," Kremen said Thursday.

An attorney for Cohen did not respond to a message seeking comment. Cohan was turned over to agents of the U.S. Border Patrol, Immigration and Customs Enforcement and U.S. Marshals Service, according to Deputy Marshal Tania Tyler.

[admin]

SCOOTER LIBBY'S NEW NICKNAME: BENEDICT ARNOLD
by Charles Carreon
October 28, 2005

The NYT, whitewashing the outing of Valerie Plame as if blowing a CIA agent's cover were nothing more than a faux pas, just reported that: "The Wilson affair is not Watergate, and Mr. Libby's alleged misdeed may seem small potatoes compared with the work of the Nixon-era White House 'plumbers.'" Really!

To what foolish person would outing secret agents be "small potatoes?" Didn’t the author of this line ever read The Hardy Boys, or Nancy Drew, or 007 stories? Get a clue! Secret agents have friends all over the world whose covers are compromised unto the point of exposure and death. Maybe nobody gets killed over secrets at the NYT, but it’s not uncommon to wake up dead in a world full of "nuclear proliferators" like General Musharraff, Kim Jong Il, the Iranian Ayatollahs, the Israeli nuke-wielders, and various and sundry Rumanians, Albanians, Bulgarians, and other freebooters with loose protons. It happens all the time, and concealing this fact is just as dirty as outing Valerie Plame. For shame, shame, shame, the NYT is lying again.

Let’s put it in simple terms. “Scooter” Libby is traitor. When I was a kid, everybody learned that the worst thing you could be was a Benedict Arnold. We had a special day in history class just to dig into his loathesome memory. The man who would have sold out the American Revolution. A traitor. Scum. The whole schoolroom would fill up with righteous loathing when we contemplated his crime.

Then of course there’s Judas Iscariot. Not a sympathetic figure, selling out the Savior for thirty silver coins. Of course, the heat was on then, everybody was out looking for Jesus. If Judas hadn’t sold him out, one of the other thirteen would have. That’s what Judas said to himself, no doubt, but he couldn’t hack the guilt. Rumor says he hanged himself, but maybe the Romans did that to him as an easy way to recover the bribe money.

Oh surely I’m going too far. Surely this is just a little teensy weensy disclosure that didn’t mean anything. CIA agents walk all over Washington DC and nobody cares. Don’t blow it out of proportion.

Well you can’t have it both ways, guys. Either security is real, and secrets must be kept, and the Dept of Homeland Security and the CIA have a real mission, or it’s all a pile of horseshit, and secrets are just what you use to conceal your shenanigans. And the rule is, you have to decide before the shit hits the fan. The Bushies and Scooter decided to make all serious with the secrecy rules, so now they have to live by serious secrecy rules. They want to make big gestures in Washington DC, line themselves up next to our national heroes, and rule from the big, high place. Well, guess what, it’s a long way down when you fall.

But the New York Times, busy dumbing down our morality to its own Bloombergian level of greasy pragmatism, can’t see Benedict Arnold. They see a bureaucratic slipup, a Beltway fumble that won’t play in Peoria. Just call it a technical violation, and the people won’t notice. Don’t bet on it. While the NYT is trying to soak their own roasted ass in a bucket of ice water by glorifying a slezoid like Judith Miller who says she "can't remember" who told her Valerie Plame was a CIA agent, the people in Peoria are about ready to hurl. Miller and the New York Times are also traitors.

Remember that Judith Miller was the irresponsible NYT journalist who laundered all of the neocon lies that launched the nation into the firepit of Iraq without reason or reflection. She has betrayed every soldier, at last count over two-thousand, who has died there “fighting terrorism,” a threat that was entirely in the minds of the oil-addled Bushies. She supported all of the pre-invasion attacks on Iraq, bolstered the lie that Hussein had some involvement in the WTC attack, and in the absence of any real weapons of mass destruction, concocted the “mushroom cloud” vision in the public mind that short-circuited political decision making and handed the Chief the Hammer of Thor, the Lightning Bolt of Odin, the Tomahawk missile to bury up to the hilt in the soft body of a weak Iraq.

Miller rubbed elbows with the Iraqi expatriates in London, the Challabis, both father and son, cut from the same corrupt mold, and made them credible informants. She made the mad fantasies of Paul Wolfowitz and his Project for the New American Century seem like a noble vision. She spun the lies about the danger posed by Saddam Hussein together with the neocon nostalgia for war and imagined that the happy faces of our our sons, jutting from the tops of their tanks and Humvees, would be draped in lotus blossoms by the grateful daughters of laughing Iraqi merchants. Traditional facial veils would be thrown aside, democracy would blossom as quickly as the Berlin wall fell. Walt Disney would return from the dead to film the whole grand spectacle.

Traitors all! When someone leads you into a trap and your men are killed, you hang them from the highest tree you can find! When your children are killed for the lies of greedy people who enticed them to their deaths, you say death is too good for them! Small potatoes. I’d like to take just one sack of small potatoes and shove them up the New York Times’ nonexistent, unfeeling, inhuman asshole. Maybe that would stop up the flow of repugnant bullshit.

[admin]

DICK CHENEY, PRIME CONSPIRATOR IN THE PLAME PLOT
by Charles Carreon
October 28, 2005

The Intelligence Identities Protection Act, 50 U.S.C. 421, was originally adopted in 1947, and amended to add criminal penalties for violations of the Act in 1982. Sponsored by Congressman Edward P. Boland of Massachusetts, the Act passed in the House by a large margin, 354-56, and in the Senate by an even larger margin, 90-6. The Act is simple, and I bet anybody with an office in the White House can figure out what it means: If you get secret information in the course of your government job that identifies someone as a spy, and you know the government is trying to keep the status of the spy a secret, you must not tell anyone that the person is a spy, or you can be sent to jail.

Now what’s so hard to understand about that? To hear the media talking about it, law is such a difficult business, and the concepts are so rarified, and the requirements of the courthouse so terribly strict, that no one could ever be convicted under the Act. Bollocks. It’s blatantly obvious that on July 12, 2003, Cheney chewed on everybody’s ass as they were flying around in Air Force 2, his huge, private gas hog airplane. I bet Cheney sounded something like this:

“What are you waiting for, Scooter? I gave you the dope on Wilson’s wife being a spy a month ago to the day! Yesterday Karl said Novak was going to write something, but I’ve got the papers here and I don’t see shit! I thought we had the New York Times in our camp. Doesn’t look like it to me! I’ve had it with that little twit Wilson and that jet-set spy wife of his. I’ll send that slut to be worked over in Syria if you don’t rein them in! I want action, you fucks! Now bring me a drink.”

If you imagine that things happened substantially differently, you apparently do not know “how things are done in Washington.” The media works this angle relentlessly, depressing the quality of our government by lowering public expectations. On the one hand, they say that you can’t assume that any evil lurks in the hearts of a high politician. He’s innocent until proven guilty. You can’t even throw a spitwad until there’s an indictment filed, and afterward, you must bow your head before the presumption of innocence until the last appeal is heard. Yes, of course, the presumption of innocence, in the face of common sense and common knowledge.

So Libby went scooting down the hall with his ass on fire to get a drink and an Alka Seltzer for the real chief of this nation, and got to work throwing more gasoline on the media fire, trying to defame an American Ambassador by accusing him of being, what, pussy whipped? He wasn’t man enough to engineer his own boondoggle? Had to get his wife to pull strings so he could go to Nigeria? Why would he want to go to Nigeria, anyway? Doesn’t he get enough email from scammers, like the rest of us? Shit, if you even try at all, you can probably order uranium from Nigeria via email.

Would there be consequences for the nation, for Ms. Plame, for the people who had trusted her with confidences? Did Cheney and his minions even consider the requirements of a law enacted by an overwhelming majority of Congress to protect the safety of intelligence agents and their contacts? Did Cheney not know the meaning of a secret? He, who was so zealous and successful in concealing all of his contacts with Ken Lay, Enron, and the other energy players from the Office of Management and Budget? Did he not know the meaning of “CIA agent?” Did he not realize he’d been given the secret information about Ms. Plame’s employment as part of his sacred trust as the second in command in our nation? Does loyalty to the secrets of the nation mean nothing to him? Or does it simply not weigh much when measured against the importance of keeping the spin-machine in operation?

People like Cheney aspire to live as a law unto themselves, and when they reach a position of absolute power such as we presently allow him, they ruin whom they will, and don't look back. Henry VIII told his men, “Will no one rid me of this troublesome priest?” Later, he claimed he had no idea his nobles would actually go out and kill poor Thomas More, and right in the Church, no less. Tisk, tisk.

Mr. Fitzgerald, the special prosecutor, has labored for two years, and claims to be stymied by the law. For the sake of the gang, one sacrificial head must roll, and hardly any blood is spilled. We're lucky there wasn't a Congressional inquiry, those costly sideshows that allow self-righteous politicians to pontificate before the cameras, revealing nothing and exonerating everyone, or at least immunizing their testimony.

As the investigation dragged on, everyone knew Cheney wouldn't be charged with a crime. That was and remains, unthinkable, as Fitzgerald made clear when he drew a sharp line around the big man, declaring him above suspicion. Footsoldiers like Libby expect to shoulder the burden of their superior's crimes, and in the current regime are rewarded for their loyalty with good lawyers, support in the media, and consulting work. Libby can reduce his own share of guilt by saying he relied on some legal theory of innocence that his lawyer will help him concoct. Evil motives disappear, and a quiet plea bargain will serve the needs of the day.

Thus Cheney's arrogant assault on the nation's security escapes any real scrutiny. The investigation itself provided the fodder for Libby's indictment for lying, not treason, the real crime. That crime was successful, and injured the nation's security, if only by telling the world that no secret is safe with Dick Cheney if he wants your ass. The perpetrators of the crime, including a wide array of White House staff and Cabinet members, have all escaped justice, and just as clearly, future crimes will follow. Whatever you say about Bush's power waning, Cheney's ability to defy the law is at a high-water mark. And so long as he has power, he will abuse it. Dick will strike again, and again, until he is stopped.

[admin]

OKAY, WE'LL JUST SAY HE GOT WHAT WAS COMING TO HIM
by Charles Carreon
November 2, 2005

Dick Cheney's new hit man, Mr. Addington, has not just taken Libby's place, he has jumped into his work with a will. Moving to the hot policy debates, like the need to preserve "the option" for American soldiers to engage in cruel, humiliating and degrading treatment, Addington decided to demonstrate why such techniques can be useful.

Tim Golden and Eric Schmitt for The New York Times wrote:

A central player in the fight over the directive is David S. Addington, who was the vice president's counsel until he was named on Monday to succeed I. Lewis Libby Jr. as Mr. Cheney's chief of staff. According to several officials, Mr. Addington verbally assailed a Pentagon aide who was called to brief him and Mr. Libby on the draft, objecting to its use of language drawn from Article 3 of the Geneva Conventions.

"He left bruised and bloody," one Defense Department official said of the Pentagon aide, Matthew C. Waxman, Mr. Rumsfeld's chief adviser on detainee issues. "He tried to champion Article 3, and Addington just ate him for lunch."

After taking the gloves off to rough up Mr. Waxman, Addington let his lackeys clean up the interrogation room:

NYT wrote:

A spokesman for the vice president, Stephen E. Schmidt, said Mr. Addington would have no comment on his reported role in the policy debates. A Defense Department spokesman, Bryan Whitman, also would not discuss Mr. Waxman's role except to say it was "certainly an exaggeration" to characterize him as having been bloodied by Mr. Addington.

And, we might add, it was obvious hyperbole to suggest that Mr. Addington would engage in cannibalism. Such revelries are no doubt reserved for high holy days in the Bohemian Grove.

But let's keep things in perspective. Sure Addington took off the gloves. He got a little rough, but look at the people he has to deal with. Towelhead sympathizers in the Defense Department who go soft on you right when we've got the terrorists on the ropes. This is no time to give up on a program that is working. The guy got what was coming to him.

________________________________________

Bull Troglodytes
8:21pm, November 6, 2005

It seems my intuition about Addington, based on the above description of his behavior, was true. Newsweek has just written a piece called Cheney In The Bunker that provides a more complete view of the Addington-Cheney track record on this torture stuff. It all adds up. They really believe in violence as a way of prevailing in every aspect of life. I do believe they are from that very special breed: Bull Troglodytes.

Newsweek wrote:

In his time of need, he has counted on the help of at least one unswervingly faithful aide. With Libby sidelined, the vice president has elevated David Addington, a loyal acolyte, to be his new chief of staff. Addington has been at the vice president's side since the 1980s, when Cheney was a congressman and Addington a lawyer for the House intelligence committee. When Cheney became secretary of Defense during the first Bush presidency, Addington went with him. A skilled bureaucratic infighter who uses his temper strategically to stun foes into submission, Addington, now 48, has matured into a classic Washington type: the most powerful man you've never heard of. As Cheney's counsel, Addington—a private workaholic who, unlike Libby, shuns reporters—was one of the most forceful voices for tough treatment of terror suspects. It was Addington who drafted the January 2002 Alberto Gonzales memo which argued that captured Taliban and Qaeda fighters shouldn't be covered by the Geneva Conventions. He was behind the presidential order establishing military tribunals. And he passionately argued that in wartime the president has almost unlimited power—a point of view that was spelled out in the "torture memo" that the administration was eventually forced to rescind under public pressure.

Now those policies have become a burden for the White House. When Bush began his second term in 2004, a group of top administration officials, led by Secretary of State Condoleezza Rice, began a quiet campaign to back off some controversial detention and interrogation methods that were damaging U.S. credibility around the world. At White House meetings, Rice openly worried that in the aftermath of Abu Ghraib "these policies threatened to be the president's legacy," says an administration official who was present but asked for anonymity about the private sessions. Among the proposals seriously considered inside the bureaucracy: shutting down the prison at Guan-tanamo Bay, allowing U.N. inspectors to tour Gitmo and pledging to follow Article III of the Geneva Conventions, which bars "cruel, degrading and inhumane" treatment of prisoners. Among Rice's supporters were two staunch defenders of the war on terror: national-security adviser Stephen Hadley, and Gordon England, Donald Rumsfeld's new deputy—an important shift that suggested Rumsfeld had qualms of his own.

Staffers were dispatched to write up the new policies. But in the end, nothing came of them. Cheney and Addington, who usually stayed silent at meetings, used their influence afterward to kill the ideas, according to three administration officials who asked for anonymity to avoid crossing the vice president. "Each time, [we] hit a brick wall—the vice president's office and Addington," says one of the officials. The vice president's office declined to comment for this story beyond saying that Cheney "is motivated first and foremost in support of policies that will save American lives from a brutal enemy that has declared war on us."

Cheney relied on Addington to help him wrestle with the bureaucracy. "He knows it inside and out," says Juleanna Glover Weiss, Cheney's former press secretary. "He's a master of the Rube Goldberg-esque workings of the executive branch." Friends marvel at his ability to wade through hundreds of pages of turgid government reports to seize upon the one fact he needs to win an argument. "If you threw the entire U.S. budget into the air, David Addington could read it and mark it up before it ever hit the ground," says David Gribbin, a former Pentagon colleague. He could also be unforgiving. When a young Justice Department lawyer named Pat Philbin crossed Addington in a policy dispute, Addington made it his mission to block Philbin's promotion to a top Justice job. Addington let it be known that Philbin was a "marked man," says a colleague who spoke anonymously to avoid clashing with Addington. (Addington and Philbin declined to comment.)

Cheney and Addington's single-minded devotion to the idea of a powerful wartime presidency has, at times, led them to ignore important political realities. In 2002, administration lawyers tried to persuade Cheney and Addington to back off from the policy of denying U.S. "enemy combatants" access to legal counsel. But Cheney and Addington refused. But by 2004, the case had reached the Supreme Court and the administration wound up abandoning the position anyway, before the Justices could knock it down as unconstitutional. "David could be principled to a fault," says Bradford Berenson, a former White House colleague. It's a quality the vice president and his loyal aide admire most about one another—and one that will help define the battles to come.

© 2005 Newsweek, Inc.

[admin]

YES, KARL IS HERE; NO, I CAN'T TALK ABOUT HIM, by Charles Carreon

1:22am, November 2, 2005

The day Libby was indicted, Scott McClellan gave a press briefing, and he was asked about Karl Rove's status at the White House. McClellan first played dumb, then, when asked whether Rove still had a job in the White House, he refused to confirm Rove's continued employment, referring the reporters to Rove's lawyers. Now if I were Karl, I would think about working on my resume, because when people won't confirm your employment, it's like, maybe they're thinking about firing you.

WhiteyHouse.gov wrote:

Q. Is Mr. Rove's status the same? I mean, the reports say that he remains under investigation. He was not indicted today. Is there anything —

MR. McCLELLAN: Anything — go ahead.

Q. Any change in his status? Has he talked to the President about the continuing investigation?

MR. McCLELLAN: Are you talking about change in his legal status? Is that what you're — I mean, it's —

Q. Does he still — he still works here, correct?

MR. McCLELLAN: That would be a Q.uestion to direct to his personal attorney.

Q. No, but he still works here, right?

MR. McCLELLAN: I saw his personal attorney put out a statement earlier today. But, yes, he has been here doing his work.

[admin]

HEY HON, ABOUT THAT ABORTION I WANTED TO HAVE ..., by Charles Carreon

3:35am, November 2, 2005

Bush needed a distraction from the impending indictment of Karl Rove, so let's make a sideshow out of the Supreme Court appointments. Good-bye Harriet Miers, hello Sammy Alito. Who is this guy Alito? One scary dude. He thinks it's Constitutional to require a woman to ask her husband for permission to get an abortion unless she could satisfy some very restrictive requirements to qualify for an exemption. Law professor Richard Schragger paraphrases the law Sammy thought Pennsylvania women should be forced to live with:

Richard Schragger wrote:

[The law] required a married woman to notify her spouse if she was planning to have an abortion unless she swore that her spouse was not the father of the child, her husband could not be located after diligent effort, the pregnancy was a result of a sexual assault that had been reported to the authorities, or she had reason to believe that notification would likely result in infliction of bodily injury.

Judge Alito's belief that woman can lawfully be so subordinated to the will of someone that they signed a contract of marriage with is consistent with his belief that contracts should be given great deference. The Wall Street Journal noted on November 1, 2005:

In 15 years on the federal bench, Judge Samuel Alito often has sided with positions backed by business leaders — and shown himself a strict interpreter of contracts — in cases ranging from employment discrimination and commercial speech to shareholder suits. ... One of the best-known is a 1997 dissent in which Judge Alito argued against a racial-discrimination claim made by a black housekeeping manager who was denied promotion to a job at a Marriott International Inc. hotel. The position, at a hotel in Park Ridge, N.J., went to a white woman. While the court ruled the woman could take the case to a jury, Judge Alito argued that, although she might be able to claim she had been treated unfairly, that wasn't enough to let her sue. "What we end up doing then is...allowing disgruntled employees to impose the cost of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly," he wrote. "This represents an unwarranted extension of the anti-discrimination laws." ... Last year, Judge Alito wrote an opinion striking down a Pennsylvania law that barred alcoholic-beverage advertising in college newspapers. The law violated advertisers' First Amendment rights, he found, while doing little to prevent underage drinkers from seeing liquor ads, since they were prevalent in many other media to which students had access. ... And in 1997, Judge Alito affirmed the dismissal of a shareholder class action filed against Burlington Coat Factory Warehouse Corp., of Burlington, N.J., after its earnings fell far short of its projections and its stock fell 30% in one day. He ruled that shareholder plaintiffs had failed to specify how the company's performance amounted to fraud, in a close reading of applicable statutes. Judge Alito has insisted on enforcement of contract terms challenged as unfair or otherwise as void, such as provisions that require consumers to use arbitration rather than lawsuits to pursue complaints, said Larry E. Ribstein, a law professor at the University of Illinois

The problem of course with enforcing contracts formed between one powerful party (an employer or husband) and a weak party (an employee or wife) are that these contracts aren't fully voluntary or clearly negotiated. Indeed, where in the marriage contract does it say that a woman must ask permission before choosing to conceive or not conceive? Alito must think that this is an implied contractual term. One could question what implied rights a woman has to dictate a man's bodily functions? Does he need permission to get a vasectomy? To take Viagra? To read pornography? To have gay sex? How should we punish men who break these rules? Alito's jurisprudence is twisted, and we don't need more twisted brethren on the Court.

Richard Schragger wrote:

Alito's unequivocal abortion decisions. Nov. 1, 2005, at 4:08 PM ET

Supporters of Judge Samuel Alito are out in full force today, arguing that he is conservative but not extreme; principled but not overzealous. The example being widely touted: He may have voted against a broad right to abortion in one case, but he struck down an abortion regulation in another. In one article after another it is suggested that Alito has taken a middle-of-the-road position in abortion cases. Now, let's be very clear: Judge Alito might be ambivalent about many things, but he is not ambivalent about abortion. Seeking to cloud this issue by pointing out that Alito authored opinions on both sides of the issue is nonsense. Nothing could be further from the truth.

In 1991, Alito was very clear. In Planned Parenthood v. Casey—the very case the Supreme Court later used to affirm Roe v. Wade—Alito joined the majority in holding that it is not an undue burden on a woman's right to choose to require women to wait 24 hours for an abortion, to require minors to obtain parental consent, or to require that abortion providers give women information about alternatives to abortion and comply with certain disclosure and public-reporting requirements. But Alito went even further than the majority in that case. Though he joined the other two judges in upholding most of Pennsylvania's law, he disagreed with them that the spousal notification portion of the statute was unconstitutional. Alito would have upheld the entire statute, including the spousal notification provision, on the grounds that it did not constitute an undue burden. It was this part of the statute the Supreme Court struck down in Casey.

Nine years later, in 2000, in Planned Parenthood v. Farmer, Alito faced a Pennsylvania statute banning the so-called partial-birth abortion procedure. But this time he did not get a chance to rule. The Supreme Court had granted review on an almost identical Nebraska statute, and the 3rd Circuit postponed handing down its own decision until it could hear from the Supreme Court. Alas, the Supreme Court struck down the Nebraska statute in Stenberg v. Carhart. Therefore the Pennsylvania statute had to fall as well. Alito had no choice: To do otherwise would have been to ignore a direct command of the Supreme Court.

What is interesting, however, is that Alito did not join the majority opinion in Farmer. He wrote separately. Why? Here's a very good guess: The majority opinion in Farmer had been drafted before the Supreme Court had issued its decision in Carhart; indeed, Judge Maryanne Trump Barry, who wrote it, expressly noted as much. Instead of rewriting the draft opinion, Barry simply tacked on the Carhart precedent to the beginning of her existing decision, observing that her opinion was essentially in agreement with the Supreme Court's. Had Alito originally agreed with Barry, it is a good guess he would have gone along with this shortcut, since the outcome was exactly the same. But I suspect that he didn't agree with the majority and certainly did not want some reasoning lurking out there that might have been even marginally broader than the Supreme Court's. So, Alito went out of his way to distance himself from Barry's opinion, which, he observed in concurrence, "was never necessary and is now obsolete."

Alito's snub of the Barry majority opinion echoes his logic in Casey, in which he rejected the majority's application of the undue burden test to Pennsylvania's spousal notification provision. That provision required a married woman to notify her spouse if she was planning to have an abortion unless she swore that her spouse was not the father of the child, her husband could not be located after diligent effort, the pregnancy was a result of a sexual assault that had been reported to the authorities, or she had reason to believe that notification would likely result in infliction of bodily injury.

The 3rd Circuit majority in Casey accepted expert testimony that this provision—even with its exceptions—would impose an undue burden on a woman's right to choose to undergo an abortion. The majority observed that most married women would voluntarily tell their husbands of their plans, but that in circumstances where they would not, requiring notification could result in spousal coercion. The exception for bodily harm, reasoned the majority, did not take into account the myriad forms of psychological coercion a husband could apply to a wife, including withdrawal of financial support or threats to dissolve the marriage. Moreover, the exception for spousal sexual abuse required that women report their abuser to the police, an action experts testified was likely to lead to further abuse and one a battered woman was unlikely to take. The majority of the Casey judges, taking account of the "real world consequences of forced notification," concluded that "because of the nature of the marriage relationship and the emotional character of the human response to pregnancy and abortion, the number of different situations in which women may reasonably fear dire consequences from notifying their husbands is potentially limitless."

But Alito rejected this "real world" approach, arguing that the plaintiffs had not sustained their burden of proving that the spousal notification provision would result in spousal coercion. Alito's interpretation of "undue burden" is noticeably crabbed: It is not enough, he argued, to show "that a law will have a heavy impact on a few women." Rather, those challenging the law must prove a "broader inhibiting effect." Alito thus demanded that the plaintiffs provide the court with a rough number of how many women would be inhibited from obtaining an abortion by the requirement of spousal notice. The majority's common-sense reasoning was not enough; the "undue burden" test required the plaintiffs to provide actual evidence that coerced spousal notification would inhibit some actual number of women's decision-making.

Of course, that kind of evidence is almost impossible to obtain. How would one begin to figure out just how many women would have sought an abortion but did not because they were required to notify their spouse? The plaintiffs provided expert evidence that women are often coerced physically and emotionally by abusive husbands; that the abortion decision presents them with a terrifying choice in those circumstances; and that required notification adds to the burden of an already difficult decision by holding out the threat of spousal reprisal. For Alito, this was not enough, and so he dissented.

That Alito was on the wrong side of the 3rd Circuit majority and the Supreme Court should be enough for those who are full-throated supporters of a woman's right to choose. But this fact is also important for anyone who finds themselves in the middle on this issue: Note that the judges who joined the 3rd Circuit opinion in Casey—Judges Walter Stapleton and Collins Seitz—were not radical, bra-burning feminists of any sort. Stapleton—who wrote Casey—was appointed by Ronald Reagan, and Seitz was a Johnson appointee; one can only characterize their jurisprudence as emphatically moderate and mainstream. And remember that the swing justices who upheld Casey and reaffirmed Roe—Anthony Kennedy and Sandra Day O'Connor—were also appointed by Republicans and are also moderate and well within the mainstream of judicial attitudes.

If Alito replaces O'Connor, both of his crucial abortion opinions in the 3rd Circuit indicate that he will not take her centrist path. But this time, there will be no moderate Supreme Court above him to put on the brakes.

Richard Schragger is an associate professor at the University of Virginia Law School.

Article URL: http://www.slate.com/id/2129230/