Archive for September, 2016

JASTA Truth and Nothing But

Thursday, September 29th, 2016

The passage of Senate Bill 2040, the “Justice Against Sponsors of Terrorism Act,” overriding a presidential veto, will almost certainly result in a lawsuit against the government of Saudi Arabia, seeking compensation for injuries resulting from the events of September 11, 2001. The Saud family, which rules the kingdom by divine right, could face liability for billions of dollars in damages. There is evidence that members of the Saudi Arabian government had advance knowledge of the destruction of the World Trade Center and may have financed the operation.

It is likely that the Sauds will defend themselves by pointing the finger of culpability at others, including people in the highest echelons of the United States government. In the 15 years that have intervened since the collapse of the buildings, the US government’s explanation of the events of that day has never been tested in a court of law. That’s likely to change under the new statute.

The victims’ lawyers will have to prove by a preponderance of the evidence that the skyscrapers fell down because airplanes crashed into them. That will be a problem. Video of the destruction of the buildings clearly shows explosions immediately preceding and during the collapse, and over 100 witnesses, including news reporters and rescue workers, confirm that evidence. Both buildings came down in a few seconds without apparent resistance from below, an unprecedented act of destruction except in cases of controlled demolition. Expert witnesses will testify that these could only have been demolitions, prearranged not by Saudi Arabians but by the owners and operators of the buildings. There’s also a question, under federal practice, whether the court will be able to allow expert testimony in support of the government’s theory that the buildings collapsed because of fire.

There’s a legal doctrine called “last clear chance” that mitigates the liability of a defendant if some other party had a clear opportunity to prevent the damage. If it is the case that airplanes were deliberately crashed into the buildings, why was the US Air Force not deployed to stop that from happening? It’s routine for jet fighters to intercept off-course airplanes that might present a danger, and there was ample opportunity for the Air Force to respond. In the years since 2001, the US government has offered at least three separate, mutually contradictory explanations for the failure of the military, and we should expect all of them to be trotted out by the defense.

Don’t be surprised if the Israeli government is implicated by the defendants. A group of men who turned out to be Israeli intelligence assets were arrested and held for a couple of months after they were seen celebrating the destruction of the World Trade Center from a vantage point in New Jersey. That little party is almost certain to become a point of contention in any lawsuit against Saudi Arabia.

Any claim for damages resulting from injuries sustained at the Pentagon on September 11 will have to overcome evidence that the Vice President declined to intercept the offending aircraft when he knew it was headed for Washington. There is sworn testimony to that effect from the Secretary of Transportation, who was in a bunker with Richard Cheney when warnings were relayed to him. The litigants could encounter some difficulty even proving that an airplane crashed into the Pentagon. The absence of any trace of a commercial airliner–engine, tail assembly, passengers, luggage–will be a focus of the defense.

I don’t believe the President when he says he vetoed S. 2040 because it threatens the doctrine of sovereign immunity. I think he vetoed the bill because it will bring about the reconsideration of unanswered questions surrounding the events of September 11, 2001, possibly implicating a US president in the slaughter of innocents and revealing a 15-year cover-up that exposes our current leaders as accessories to mass murder.

Unequal Education Prompts Judicial Rant

Monday, September 19th, 2016

A Connecticut judge has ordered the state government to implement key improvements to public education or else. Or else what the judge doesn’t say explicitly, but he’s so harsh in his critique of standards for academic and professional performance that state legislative and executive leaders probably shouldn’t laugh in his face. His tone was so critical that his decision made national news.

Making frequent reference to the testimony he’d heard, trial judge Thomas Moukawsher read his plain-language decision from the bench, castigating the defendant state of Connecticut for an irrational system of elementary and secondary education. The plaintiffs’ evidence, he ruled, proved beyond a reasonable doubt that in several crucial areas, the state is failing to implement the constitutional directive to provide a free public education for all children. Drawing inescapable conclusions from the testimony of the various experts who had testified at trial earlier this year, the judge found the services provided to many children so inadequate that they don’t satisfy state constitutional guarantees.

The court focused on four key deficiencies, finding no rational basis for school funding decisions, for elementary and secondary school instructional requirements, for professional evaluation and compensation and for the provision of services to children with learning disabilities. The judge ordered the state to present a plan within six months that would remedy the enumerated deficiencies, but he didn’t say just how the legislative branch might proceed to comply with his ruling or mention what he might do if the state fails to comply.

State school funding decisions are arbitrary, with rich communities benefiting at the expense of children in poor urban districts. Some years ago, in the wake of a state supreme court decision faulting the government for unconstitutional inequities in the allocation of educational resources, state legislators devised a formula to deliver resources where most needed, but that formula has since degenerated to a system that fails to address the inequities. A third of the state money spent on schools is dedicated to building construction and renovation, the judge pointed out, at a time when the population of school children is in decline. This huge pot of money–one billion dollars–is spent disproportionately in districts with politically powerful legislators. The judge didn’t say it explicitly, but he implied that connected construction contractors are the principal beneficiaries of school funding decisions. “Spending,” the judge stated, “must follow a formula influenced only by school needs and good practices.”

The state has no rational, objective definition of elementary and secondary education. Elementary school children in many districts now enter high school without knowing how to read, write or do math well enough to progress, and many urban high schools now graduate students who fail to meet basic academic requirements.

The judge found unanimous agreement among the witnesses appearing at trial that only tiny minorities of students in the poorest school districts leave elementary school with sufficient skills to learn anything in high school, but Connecticut has no rational standard for students to pass to secondary school. The judge pointed out that the situation with unprepared elementary school children is dire but not irremediable. He was sympathetic to the plea of one trial witness who advocated “triage,” whereby all educational resources are marshaled to bring third-graders to third-grade competency. He ordered the state to propose a definition of what it means to have an elementary school education that is rationally and primarily related to developing the basic skills needed for high school.

High school graduation rates have been rising, the judge noted, but the educational attainments of graduates, according to facts and figures cited in the decision, have been falling in many urban school districts. Taking a critical look at the statutes governing high school graduation, the judge found them devoid of substance, likening them to a “sugar-cube boat” that dissolves before it’s launched. The judge referred to the report of a legislative task force convened in 2015 on graduation requirements as “some kind of spoof.” A new system is constitutionally required to rationally, substantially and verifiably connect a high-school diploma with an education.

The problem with professional pay and evaluation is that they have no rational connection to the education of children. Teacher evaluation is locally controlled and results in a stated proficiency rate of 98 percent, a figure that the judge found neither accurate nor helpful. Such guidelines as the state has for teacher evaluation are not mandatory, and they do not measure student growth over the course of the school year. Standards for the evaluation of principals and other administrative personnel are even looser, the court found. The problem with teacher pay is that it’s determined by just two factors: seniority and the possession of advanced degrees. That’s not good enough, according to the judge. A rational system would at least provide pay differentials to attract the best teachers to the neediest school districts and afford incentives for teachers to take jobs where instructional help is in short supply. The judge was not particularly sympathetic to suggestions that teacher pay be tied to student test scores, but he was not averse to rewarding teachers for academic growth in their pupils.

The judge found wide disparities from school district to school district in the identification of students in need of special education, attributing the chaotic situation to a lack of state standards for identifying specific disabilities and methods of dealing with them. He was also critical of irrational interpretations of federal disabilities law that lead many school districts to spend vast sums to place multiply-disabled children in mainstream classrooms when there is no prospect of educating them. The judge ordered the state to submit a plan that focuses efforts on those disabled students who can profit from some form of elementary and secondary education. The judge conceded that the state may have a duty to serve multiply-disabled children, but suggested it rethink whether local school districts should pick up the tab using local school money.

The state is appealing the judge’s decision as a judicial intrusion into what is a legislative function. This sort of intrusion is not without precedent in Connecticut, but the conditions cited by this judge might not exist if the legislative branch had paid any heed to past intrusions into state education policy. There’s a veiled threat in the decision to start voiding unconstitutional laws if the legislature fails to act, but that threat probably won’t bring about any sort of consensus among legislators, who have digested the lessons of the past and learned not to take judges’ rants very seriously. ┬áIf his reasoning holds up on appeal, this judge may have occasion to crack down with something a bit more substantial than critical rhetoric.