Draw A Line in the Sand: DRBC Hearing: July 15, 2009

Special Agent Leroy Jethro Gibbs says, “There are no coincidences in a murder investigation.” What about in cases of “depraved indifference?” When Coca Cola’s bottling practices destroyed water tables in India, didn’t the company know, as a “reasonable person,” that the local farmers and communities would be decimated?


Each day, we tell ourselves there are lines we won’t cross.

But, as global food, water and housing crises tear at the fabric of our local communities, it’s increasingly difficult to pay local farm market prices when Wal-mart has plastic-coated apples for less.  Eventually, as things get tougher, crossing even our most deepset lines is inevitable.  People who had jobs last year are  sleeping in tents and cars this year. Some of us will steal  food and shoes for our children and property holders wil sell gas leases to  drilling companies like Chesapeake.

It’s fine and dandy to say that stark times demand stark lines set in  stark terms but  gray areas abound. Diametrically opposed interests claim the same motivations. Consider the issue of hydraulic fracturing.  Proponents say, “Drilling is in the national interest. It’s a matter of national security.”  They say  there’s no evidence that fracking poisons our water, land, food and people.  Opponents  also cite “national security” but point to circumstantial evidence that links fracking  to increased earthquake activity, polluted well water and a plethora of health concerns. (“Circumstantial” because the gas drilling industry is currently exempted from disclosing the chemicals they use  in hydraulic fracturing.  Consequently, no  evidentiary studies have been conducted.) Interestingly,  few Congresspeople support full disclosure of  fracking chemicals. (Find out if your Senators and Representative support The FRAC-ACT (Fracking Responsibility and Awareness of Chemicals Act,  S1215/HR2766).)*

Special Agent Leroy Jethro Gibbs says, “There are no coincidences in a murder investigation.” What about in cases of  “depraved indifference?” When Coca Cola’s bottling practices destroyed  water tables in India,  didn’t  the company know, as a “reasonable person,”  that the local farmers and communities would be decimated? When Monsanto polluted water and soil in  a bevy of locales,  didn’t the company, as a reasonable person, understand  the dangers posed by its actions to the local water, soil and animal/human population?  When Dow and the US government bathed Vietnam and its populations with Agent Orange (dioxin), they knew  the dangers. When my beloved Lake Erie was dying and the great Cuyahoga River burned,  didn’t the corporate polluters know their own practices were suspect?

All over the world, like lobsters dying quietyly in cold water brought to a slow  boil,
people are being incrementally dispossessed of rights, health,  life and property by corporate-government collusion. Doesn’t that collusion meet the legal tests of “depraved indifference” and “conspiracy?”

Don’t be silly.  Of course it does! but the guilty ones have written the laws. They’ve covered their liability with convoluted “immunity” clauses.  They’ve stacked
the deck.

Petroleum wars are so passé, don’t you think? In the near future, our beautiful children will wear their patriotic colors to the  water wars.  Around the world, corporations control greater and greater percentages of the world’s water.  Rampant pollution will lead to reductions of our finite “water reserves”  and the costs of “water reclamation” will skyrocket.  Exorbitant water bills will be a fabulous source of revenue for…somebody.  Probably General Electric of Hudson-River-pollution-fame.

A smart friend of mine recently said, “We beat back NYRI because we could see the corporate bad guy.  Gas frakking’s completely different.  It’s pitting neighbors against neighbors.”

So what do I, a wildly flabbergasted opponent of fracking, say to a twenty-something  grocery clerk  who sacrificed her teen years in  minimum wage jobs because she dreamed of going to college?  What do I say when she tells me she can’t go back to college in September because even the local community college costs more than she’s saved?

What do I say to the man who folds clothes for minimum wage  at the local laundry because the bank refused him a bridge loan to keep his restaurant open?

What about the  graduate student with an education debt in excess of $250,000 and no health insurance or  the dairy farmers in hock up to their necks who anxiously watch  their corn seed rot in the field?  What is my counter-offer when a drilling company waves a $100,000 gas lease in front of  them?

The Natural Resources Defense Council tells us frakking is a done deal but Damascus Citizens for Sustainability (DCS) fights on. “The DCS is part of a nationwide coalition of groups of citizens speaking from their homes, who do not want their environment and lives and communities further ruined by the current irresponsible approach to energy sourcing. It is our right and obligation as citizens to participate in the choices that will affect our future.  DCS’s concern is for the health and sustainability of life here (NE Pennsyvania) for us as people, and for the entire ecosystem we and all those downstream depend on.”

Members of the DCS are regular attendees at Delaware River Basin Commission (DRBC) meetings. They are knowledgeable about the threats posed by  hydraulic fracturing   to our ground water, food supply and health. Their site is chock-full of facts, studies, maps and advocacy as well as articles about The FRAC-ACT (Fracking Responsibility and Awareness of Chemicals Act,  S1215/HR2766).

Please  browse their resources.  Plagiarize  their text and write a letter to the DRBC. Contribute to the DCS  legal fund and attend the DRBC Hearing on  Wednesday, July 15th.  (Email me at cottageworks@lizbucar.com  if you’re looking to carpool and I’ll forward your information to a carpool coordinator.)

The Hearing will consider an application by Chesapeake Appalachia for  “permission from the Delaware River Basin Commission (DRBC) to withdraw 1 million gallons a day from the West Branch of the Delaware River for hydraulic fracturing and natural gas extraction.  This is the first application to the DRBC for this purpose and would put the Delaware River Watershed at risk for tens of thousands of applications to follow…The Hearing will be held at 1:00 pm at…Northampton Community College’s Fowler Family Southside Center, 511 East 3rd Street, 6th Floor, Room 605, Bethlehem, Pennsylvania. WE NEED PEOPLE THERE!”

(If nothing else, please read the Damascus Citizens’ Letter to Delaware River Basin Commission It is a  comprehensive  iteration of why the DRBC must deny Chesapeake’s current application.)

*As to The Frac Act: it will NOT stop the drilling.  It merely forces drilling companies to identify the  chemicals they use during the hydraulic fracturing process so that once our public water supply is poisoned, we can, ostensibly, prove the drilling companies did it.  (The Safe Drinking Water Act only protects  public water wells that service 25 or more individuals. Very few rural-dwellers   get their water from public wells!)

So who will buy our properties when our aquifers are poisoned?  Who will pay the taxes?  When our ground water is polluted, who will buy the food we produce locally and work so hard to distribute?  And even if the FRAC Act is passed, how many of us will have health insurance?  Who among us will be able to afford the diagnostic tests  necessary for participation in full-blown epidemiological studies?  And  once we’re guinea pigs without a human voice, who will ensure that epidemiological studies of our poisoned bodies are conducted?

When your local legislator refuses to draft a  resolution banning hydraulic fracturing until chemical disclosures and studies are made,  ask him/her the questions posed here.

In  The Pianist, Warsaw prisoners are made to lie belly-down in the dirt.  Their
shoulders nearly touch.  Each body shudders as an executioner’s bullet shoots through the back of its head. First one… then the next and the next. Each prisoner feels the slight jar and stillness when the one beside him is killed.  None raises a voice  or a hand. Their eyes are closed. I’ve thought they succumbed without a fight because  the horror was beyond understanding; or because the crushing of the Warsaw Ghetto Uprising had sapped their will; or that they hoped for a miracle or believed, if  they were very, very quiet, they’d be invisible to the executioner.  The nearer the footsteps behind them, the quieter they lay — like babies hiding behind their hands in games of peek-a-boo — seeking invisibility.

Wherever we draw the line at this crucial moment, saving our communities isn’t over just because  the Natural Resources Defense Council says fracking is inevitable. It’s  over when we quit.

When people lose control of their local resources, it’s hard to argue  the existence of healthy communities. I grew up on Lake Erie. I watched it die  and our community with it.  When it was revived, so was our village.

If I thought a line of  Neo-Gandhis standing in front of the drilling equipment would  turn the tide, I’d do it in a heartbeat but I still wouldn’t know how to convince the grocery clerk, the farmer or the graduate to join me.

Good informational links:

Hydraulic fracturing and  fishing

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Torture Photos: Is a public release necessary?


It depends on our purpose.

In October 2003,  The American Civil Liberties Union (ACLU)  sent  a Freedom of Information Act (FOIA)  request to the Departments of Defense,   Homeland Security,  Justice  and several  other Bush Administration agencies.  The request was for  documents related to the US Government’s role in the torture and/or rendition of individuals in its custody.  The ACLU claimed,  “[The  Government has] failed to address the numerous credible reports recounting the torture and rendition of Detainees.  Nor have they explained what measures, if any, the United States has taken  to ensure compliance with its legal obligations with respect to the use of torture and the infliction of cruel, inhuman or degrading treatment or  punishment.  [And] to determine whether the United States is honoring its obligations under domestic and international law….”

Bush Administration officials refused to release the “torture photos” because, according to them,  the photos would inflame the Middle East, put unidentified individuals, groups and in-theater military personnel at risk and would run afoul of  international laws  prohibiting the public parade and humiliation of war prisoners.

In September 2004,  the US District Court in the Southern District of New York (SDNY) stated,  “Congress enacted FOIA to illuminate government activities.  The law was intended to provide a means of accountability, to allow Americans to know what their government is doing….  Yet, the glacial pace at which defendant agencies have been responding… shows an indifference  to the commands of FOIA.”  The judge also noted,  “As of today, eleven months later, with small exception, no documents have been produced by [the Department of Defense, et al].”

The District Court ordered the public release of  the photos after viewing a representative sample in camera (e.g. in the privacy of the Judge’s chambers).  Since then, the Federal judiciary has consistently ordered that the photos and other pertinent  documents be  redacted and released in compliance with national and international laws that prohibit the public humiliation of prisoners.

In August 2006,  the United States Court of Appeals for the Second Circuit upheld the SDNY’s order to release the photos after  noting that the Bush Administration had interpreted certain legislative amendments to FOIA as “a diffuse and nebulous authority for keeping inflammatory information secret (though, curiously, only inflammatory information in law enforcement files).”  The Court continued, “Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners.”

On April 23, 2009,  the Obama Justice Department informed the Court that the Department of Defense would release its photos by May 28, 2009.

On May 13, 2009, nearly six years after the ACLU issued its first FOIA request, President Obama’s Justice Department informed the Court that the President had changed his mind,  “…upon further reflection at the highest levels of Government, the Government has decided to pursue further options regarding that decision…”  including a possible appeal to the US Supreme Court by June 9, 2009.

Press Secretary, Robert Gibbs expressed President Obama’s concern that release of the photographs would inflame the Middle East and increase the threat to US personnel serving in Iraq and Afghanistan.  The Obama team does not believe the Bush Administration adequately portrayed those risks in its Court filings and appeals.

Yesterday, The Huffington Post carried this ACLU response, “These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib….  Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”

The U.S.  Federal Rules of Evidence state, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice… or needless presentation of cumulative evidence.”  In short,  not all relevant evidence is equal or admissible. A judge must determine whether its value as evidence substantially outweighs its potential harm.

There’s also a notion in civil societies  that an inflamed person is unlikely to be judicious.

Is it reasonable to believe that “The Amorphous Middle East” would be inflamed by a 24-7  media blitz of photos in which an occupying military force tortures citizens of  foreign lands?  Will “The Amorphous Middle East” see the photos as evidence  of the  Bush Foreign Policy, distinct from Obama’s?  And,  will that Middle East view efforts to hide the photos as a continuation of Bush policies?

One friend I spoke with said she wants the photos disseminated publicly. “Maybe pictures will  make Americans feel shame.  Maybe pictures will provoke an American conversation about who we really are and what ethics we really believe in.  Maybe it’ll force the politicians to really do something.”

Maybe;  but I doubt  the photos will stimulate the American public to a greater outrage.   Many of the people I know have been outrage- saturated by a plethora of criminal actions and a dearth of incarcerations.  Thankfully, the ACLU has a ton of arrows in its quiver.

Germany was shamed after World War I and a handful of years later we fought World War II.   We fire-bombed Germany during World War II and held them to account at Nuremburg. Germany is now home to one of the world’s fastest growing populations of Skinheads and other xenophobes.  Whether or not  cause and effect can be proved  in those examples,  they tell us  that shame is not a cure-all.

Our purpose, as opined by  the United States Court of Appeals for the Second Circuit, should be to deter “future abuse of prisoners”  and to ensure, as the ACLU demands,  that  “the United States is honoring its obligations under domestic and international law….”

We have a system of justice intended to do just that.  We place the accused on trial.  We hear the evidence against and for  them.  We release or punish them.  As a matter of course,  we  parade our convicted felons publicly.  We hope that their shame will deter others – will demonstrate our adherence to the rule of law.

With that in mind, whether the photos are released publicly or viewed in camera or by a jury,  the real issue is not which evidence will be presented (there’s tons) but rather, will Donald Rumsfeld, George Bush, Dick Cheney, et al stand in the dock.  Will they be paraded publicly to cleanse rather than inflict shame?

A public trial of those who conceived and implemented the torture policy would stimulate a discussion about the American ethic and reassure the world of our honorable intention to uphold our ideals. Without that,  publishing the photos is just more Bread & Circuses and I fear, provocation.

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Legal documents at ACLU website