The proposed settlement between Google and US publishers must be resisted, argues Bill Thompson
Google is in the middle of a massive project to scan and digitise every book it can get its hands on, whether old or new, and if it gets its way then the US courts will soon endorse an agreement between the search engine giant and the US book industry that will allow it to do this without fear of prosecution for copyright infringement.
Authors and publishers will get some money in return, and we will all benefit from the improved access to digitised books that Google will provide.
The deal sounds like a good one, but not everyone is happy with it. The Department of Justice in the US has begun an investigation to see if it is anti-competitive, and last month a number of library associations got together with Amazon, Yahoo! and Microsoft to form the Open Book Alliance which argues that it should not go forward.
The details of the settlement are complex, and it is almost impossible to be sure what would emerge from it because many of the provisions involve setting up things like a Book Rights Registry, and we don't yet know what they will look like.
World's librarian
But whatever the detail there remains a fundamental problem. It is not that the settlement will give Google indemnity from prosecution should it be found to have scanned books that are in copyright without the copyright owner's position, nor even that it gives Google freedom to exploit scanned content commercially.
It is, rather, that the settlement gives only Google these privileges, and places one company in a prime position to become the world's de facto librarian instead of encouraging open access, open standards and a plurality of services and service providers.
Neither Google nor any other company should be entrusted with that responsibility, and nothing in the detail of the agreement or the funds that will be made available to authors as a consequence can change this.
If Google is given a monopoly, either explicitly in the settlement or implicitly because any other scanning project would be forced to negotiate its own multi-million dollar agreement, then the deal must be rejected.
The proposed settlement came about after Google began a project to scan and index millions of books, including many that are still in copyright.
It was sued by groups representing authors and publishers who felt that scanning books, even if the text was only used to create a searchable index which then pointed readers to the relevant text, was an unlicensed use and therefore illegal.
The book trade was also worried that Google might scan the books under the pretext of creating an index and then start offering them online or even selling them, even though it was always absolutely clear that such behaviour would be a breach of copyright.
Instead of fighting the case through the US courts and winning a great victory for those of us who believe that three hundred year-old notions of copyright should not be used arbitrarily to limit new ways of making use of creative works, Google announced in October 2008 that it had reached a settlement with the US Authors' Guild and the Association of American Publishers that would allow it to continue scanning with permission.
At the moment the settlement hangs in the balance, waiting for what is quaintly termed a 'fairness hearing' in US District Court on October 7.
At this hearing of the questions raised since the settlement was announced will be debated, including the question of how the relatively small Authors Guild came to speak for all published writers in the US, living and dead, in negotiating with Google.
One of the arguments being made in favour of Google, most clearly by US industry analyst Jeffrey Lindsay, is that Google deserves to benefit from having taken the risk of digitising books when the project's legal status was uncertain and that Google, unlike Microsoft and Yahoo!, has invested millions of dollars in the project and is committed to pushing forward.
Microsoft did indeed abandon its own book scanning project, Live Search Books, in 2008, largely on cost grounds but also because the legal uncertainties clearly exposed the company to potential liability in what was never a core area of its activity.
Tribal lands
But Lindsay's view seems hard to accept. Pretending that the world's libraries are some unexplored continent to be opened up and claimed by the adventurers from Mountain View may appeal to the frontier mentality of US commentators, but it is not a metaphor likely to have much appeal elsewhere.
For one thing the bookshelves of the worlds are already inhabited, just like the territory of the United States, and those of us who remember the fate of the Native Americans may not be happy to see Google build its railroad tracks over our tribal lands.
Even without the dodgy analogy, the project of digitising the information held in the world's printed books is too important to be dealt with purely as a commercial venture between rights holders and a potential supplier of services.
We are at an inflection point in world history, and the transition we are making from analogue to digital is happening so quickly and offers so many delights that there is a temptation to let the past moulder in archive boxes and concentrate solely on the new and digital.
For those who take that view then letting Google pay to digitise books is an uncontroversial decision, one that can deliver more digital stuff to search through without apparently costing anything.
George Santayana wrote 'those who cannot remember the past are condemned to repeat it', but it may also be true that those who do not care to digitise their own past will end up paying a high price to regain what they give up so thoughtlessly.
If we let Google have its settlement we will all be the poorer. Not for a while, perhaps, but one day we will need more from this new library of Alexandria than Google is willing to offer, and find that the price it demands is more than we can pay.
Bill Thompson is an independent journalist and regular commentator on the BBC World Service programme Digital Planet.
“An eye for an eye” is arguably the most misunderstood Jewish commandment. Most condemn it as too harsh, some praise it as just, but few cared to actually read it. This commandment applies to the narrow class of situations only rather than to all crimes.
It is indeed odd to imagine that ancient Hebrews diligently pulled out a tooth of someone who kicked out a tooth. Realizing the impracticality of such strictly defined reciprocity, sages reinterpreted it as monetary compensation: a tooth’ value for a tooth kicked out.
That, too, ran into practical difficulties: what is a tooth’s value? Obviously, the value of the last tooth is greater than of the 32nd tooth. A lost tooth doesn’t diminish one’s “reference value” at slave market. A bruise, which is temporary, doesn’t affect one’s permanent value at all, and so the sages declared a bruise value to be a price someone would ask to willingly suffer such bruise.
That definition, too, is unworkable, as a rich man and a poor one would value the bruise widely differently, thus defying the common legal guidelines. Besides all of that, there is no hint in the Torah that “an eye for an eye” should be understood figuratively, as some sort of compensation.
Leviticus 24:19 describes lex talionis as “will be done to him [the offender],” thus refuting any notion of compensation
The difficulty evaporates when we realize that “an eye for an eye” principle only applies to exemplary punishment in the very specific situation. In such rare cases, reciprocal corporal punishment could be feasibly carried out.
The lawgiver makes his intention known by starting the Laws section (Exodus 21) with rules about Hebrew slaves. Now, that’s exceedingly strange. Judaism is about laws and justice, and the Laws section is a centerpiece of the Book of Exodus, literally the central (middle) chapter of the scroll. We would expect the laws to start with major themes, such as life and murder.
But eleven opening verses of the Laws detail the rights of Hebrew slaves.
Those rights were exceedingly generous even by the nineteenth century C.E. norms, let alone the ancient world’s habits.
Slavery of Hebrews was limited to six years. Slave girls were to be treated on par with wives.
What’s the point? In the opening lines, the Laws immediately shock the reader into the entirely different moral reality. The Hebrews must isolate themselves from the old habits: from barbarity of neighboring tribes, brutality of Egypt, even from the inbuilt human egoism.
At this point, Hebrews are commanded to abandon the natural human behavior of exploiting their compatriots to the utmost extent feasible. They are told to
care about the most vulnerable members of their society, Hebrew slaves.
It is not that caring of Hebrew slaves is the major civil law, but it relates the major legal principle, “Love your [Hebrew] neighbor as thyself.” That principle is not merely a moral piece, but a fully actionable law.
The Laws section then proceeds with common legal issues.
Murder of a man is generally punishable with execution (Exodus 21:12). In case of premeditated murder, there can be no excuses whatsoever (21:14); the intent to murder a fellow Jew undermines the society’s very basis.
There is a legal innovation: manslaughter, voluntary or otherwise, is not punishable; the offender can find refuge among Levites and later in specially designated towns. The only criterion is whether the offender waited for his victim to kill. In Jewish law, generally only actions matter rather than intentions.
Why this case is different, why one murder is different from another? Even the nicer modern legal system punishes for manslaughter. The reason is to be seen in the opening verses on the treatment of Hebrew slaves. In such a compassionate society, unpremeditated murder must be presumed unintentional, purely an accident which does not call for punishment.
The murderer fled to a place of refuge, but what about his clan or immediate family? In barbarian societies, they would be targeted for vendetta. Jewish law, however, contains no hint of preventing vendetta, suggesting that it was non-existent in the society.
Absence of collective (clan-level) or extrajudicial retribution testifies to the Hebrews’ high morality and law obedience. The law was not idealistic, but successfully converted the throng into the perfect society.
Contrary to the common misunderstanding of “an eye for an eye,” bruises incurred in fights among men are not subject to retribution, but merely compensated.
Exodus 21:18-19, “And when [the] men would squabble, and the man will hit his neighbor with stone or fist, and he will not die but lie in bed: If he rise up and walk outside [his house] on a support, then cleansed [from the guilt of murder] will be the one who hit, only gives [for] his idleness and shall treat, treat.”
The period of acceptable illness is any. The lawgiver didn’t forget specifying the period, as it is explicitly mentioned in the following verse on beating slaves.
A good reason for not treating a fighting injury as a criminal offense is that both sides are guilty: they equally participated in fight. So there is no punishment per se, but merely compensation of lost earnings and medical expenses.
The law is careful to clarify that any squabble suffices to exonerate the offender. There need not be a fight, but merely a squabble.
Now we know the punishment for murder (execution) and any injuries incurred in a squabble (compensation).
What about the injuries inflicted without a fight: by surprising one’s opponent or where one man is clearly stronger than another?
In such situations, murder is a more likely outcome. Or, we may apply a fortiori argument: if the injuries incurred in a squabble (where both men are equally involved) are compensated, then all the more the injuries incurred in a surprise attack should be compensated.
Fully conforming to the liberal ideal, Hebrew law discusses only generic situations; in contrast, modern law is concerned with specifics, thus creates a heap of highly specific legislation and, consequently, loopholes.
Next, the law deals with the most tender and valuable members of Hebrew society: pregnant Jewish women. Exodus 21:22, “If [the] men would fight, and hit a pregnant woman, and the fetuses come out, and there will be no harm [to the woman], then he will be fined, fined as the woman’s husband imposes on him, and gives as they lay [on him].”
Contrary to anti-abortionists’ views Hebrew law does not treat fetus as a human being: killing a fetus is punishable with fine only, it is not a criminal offense such as killing a human being.
The fine is not specified here, and whether it is large or small, is a matter of conjecture. On one hand, the law carefully specifies the double and quadruple fines, and therefore leaving this fine unspecified hints at it being insubstantial. On other hand, the law uses strong language: “fined, fined” and “lay on him.” My feeling is that the first option is true, and the fine is small, thus not subject to specification; strong language refers to sureness of the fine rather than its amount.
And here the Hebrew criminal law culminates. Exodus 21:23-25: “And if there would be harm [to the woman], then give a soul for a soul, an eye for an eye, etc.” The tit-for-tat retaliation is prescribed only for harming pregnant women.
The legal status of women in Hebrew society vastly exceeded the men’s. Maiming a man is subject to fine only, but similar harm to woman involves harsh retaliation. The legislator recognized that women are inherently more vulnerable than men and need stronger protection.
The law teaches us that men cannot claim weakness: it is their responsibility to be on par with any attacker, as they will not be awarded any compensation beyond the costs of treatment and idleness. Women are not expected to counter the attackers except by screaming (and surely must not serve in the army). The society, therefore, punishes even the innocent harm to women severely. The law enjoins the women from participating in men’s fights: a woman who indecently touches a man involved in brawl with her husband, is punished.
What about the non-pregnant women? Young females are not expected to come close to men; only married women might defend their husbands. Old females were uncommon in antiquity. So the generic case was a pregnant woman.
The legislator makes sure that his intention of protecting the weak is clear by the following verses, “And if a man would strike his slave or concubine in an eye and destroys it, he will set him free for his eye. And if he would kick out a tooth of his slave or concubine, he will set him free for a tooth.”
How unusual is that, freeing a slave for merely a tooth! In that era and for three millennia afterwards, masters could kill their slaves with impunity.
This rule is a Jewish version of the affirmative action. According to the tradition, the rule does not apply to Hebrew slaves. Thus, Hebrew concubines are treated on par with wives (Exodus 21:7-11). Such a concubine should be set free even if her master/husband diminished her allowance of clothes. As she has her own clothes, she is a subject of property rights, and not a rightless slave.
Similarly, Hebrew male slave owns his wife and children (Exodus 21:3), and so is not a slave in the regular sense. Hebrew slaves are set free at the end of six-year periods, so in effect they are temporary laborers rather than slaves.
In the case of foreign slaves, their masters own their bodies, but Hebrew slaves possess property rights: if they own their wives, then all the more they own their own bodies. Any injury done to a Hebrew slave’s body should be compensated like to free men.
The legislator here solved a curious puzzle: since foreign slaves are their masters’ property, a master cannot compensate his slave for injury like he would compensate a free person. Sort of fining oneself for breaking one’s own instrument. That paradox surfaced in Exodus 21:20-21: murder of a slave is a punishable offense, but any other harm is not punishable as slave’s body is “his master’s silver.”
Freeing injured slaves is both ethical, instructive (to slave-owners), and the only logical way to enforce justice while respecting the property rights.
Here is the affirmative action: a Hebrew slave is only compensated for his eye or tooth, but foreign slave is released for the similar injury.
The master is, in effect, fined by the tooth’ cost and the entire slave’ cost, respectively. Therefore the fine for harming the rightless, defenseless foreign slave is much larger than for similarly injuring a Hebrew slave.
No system of justice accounts for all the possible circumstances. Murdering a slave is a criminal offense (Exodus 21:20), injuring him permanently is a civil offense (21:26-27), but what about the situation when the slave died a considerable time after the beatings?
Being dead, he cannot be released on the account of injuries, as Exodus 21:26-27 prescribes. At the same time, he was not exactly murdered, as he did live for considerable time afterwards; perhaps the blows were not lethal but his treatment was wrong?
Even in the modern courts, which have the benefit of autopsy and other types of expert analysis, there is often no clear-cut answer. And so the legislator sighs, “And if he lives for a day or two, he should not be avenged, as he is [his master's] silver.”
Note that the great kindness was prescribed not to the weak in general, but only to loyal (wives) or submissive (slaves). Nothing in the Hebrew law implies kindness or even restraint to enemies, but only to subjugated enemies.
The law equates hitting (21:15) and abasing (17) one’s parents; both actions are punishable with death. There is no issue about murdering them: such crime is covered by generic rule of executing murderers. The law is a direct consequence of, “You shall respect your father and your mother” in the Ten Commandments.
Rabbis effectively abrogated a similar law about unruly child by demanding unrealistically that both father and mother accuse him in the same voice tone. In the law, however, abasing any parent is a capital offense, no other evidence is required. The law does not sentence merely for a heated argument: only the one [continuously] abasing his parents is liable to death.
How do we know it is a crime to abase any parent rather than both of them, for it is said, “his father and his mother”? By comparing this law with, “And he who is hitting his father and his mother, shall die by execution” (21:15): obviously, it is a crime to hit any parent rather than both of them.
Why so harsh a punishment?
It’s not because of primitive paternalistic concerns; such concerns would justify execution for insulting one’s father (head of the clan) but not mother.
The law is meant to strengthen the society by strengthening family. The law emphasizes family in the modern sense rather than clan. By making it unthinkable to abase mothers, the law forced Hebrews to leap into the mutually respectful society.
Now we see that Jewish law prescribes different levels of retaliation: mild for the offenses between men, harsh tit-for-tat for attacks on women, hyper-compassionate for wounding slaves, and exceedingly cruel for offending parents.
What about the other nations? The Torah deals with two classes of the offending nations.
One is Amalek: those who harassed the Jews; such nations must be exterminated even in the remotest generations for their past crimes, probably on the presumption that national character doesn’t change and children would readily repeat their parents’ sins if given an occasion.
The second class is the nations which settled the Promised Land before Jews; such nations would always remember that the land was theirs, will consider the Jews occupiers, and hate us. Unlike Amalek, they should not be wiped out as they committed no crime against Jews, but rightfully defended themselves against aggression.
Jews must evict the core inhabitants (Exodus 23:31), destroy their places of worship (23:24), and God will efface them (23:23).
The raw justice mercilessly extirpates the offenders so that law-abiding Jews can live comfortable lives. Jewish criminal law is unforgiving: neither a victim, nor the society can forgive, but the offender must be punished severely. Forgiveness paves the way to repeated crimes.
Leviticus 24:19-20 suggests that Jews originally adhered to across-the-border “an eye for an eye” and that rule was later softened to apply to pregnant women only.
Jews, themselves recently slaves in Egypt, hardly acquired Jewish slaves already in the Sinai. The subsequent verses deal with a settled society with houses, pastures, holes on the roads, and so on. Whatever the legislative sequence, at some point Jews were given a law that presumed goodwill among neighbors, protected the weak, and severely punished the wicked.
The book's dedication could be expanded to include
Baruch Goldstein. Isn't he a criminal? For one, aren't Bonnie and Clyde criminals, and yet they became popular, almost positive characters.
An “Eye For An Eye”
I disagree with Goldstein on technicality, the place. Terrorists do not largely attack synagogues, and he should not shoot in a mosque. An idea behind an eye for an eye is very clear connection between damage and retribution. Had he been shooting in a bus - like the terrorists do - many would find that less objectionable.
Hurrah For Osama!
I love bin Laden! I was
telling the Israelisfor years to start reprisals against Saudi oil facilities to stop financing of Wahhabism and Palestinian terrorists. The only one who listens is Osama. Oil corporations are greedy but cowardly. Few attacks will sent them looking for more stable sources - Russian, Central Asian, and American. Without Saudi money, Islamic clerics worldwide will abandon Wahhabism. That will not extinguish terrorism, but will dry its religious support base. Besides, I believe in vengeance. So, hurrah to Osama! Go on against the Saudis!
Censorship
We launched a petition to bomb Iranian nuclear facilities, and what is really odd, the number of news agencies that refuse us coverage because of the violence involved. They have no problem to cover Islamic terrorism or Iraqi insurgency, though. In politically correct societies, media forget that they serve to deliver news, and begin censoring opinions. Done with government censorship, welcome to corporate censorship. Back to the violence, everyone lauds police violently catching violent criminals. Not violence per se is bad, but only initiated violence; we object violence that initiate damages, not violence that mitigates them.
Religion Of Peace?
Some rabbis, mostly Reform, tell us that Judaism is a religion of peace, and we should not introduce violence. My reply is, Read the Tanakh! Moses killed the Egyptian. Hebrews incessantly warred in Sinai, and Joshua exterminated the Canaanites. Prophets urged Jews for the utmost intolerance toward idolaters, and many respected Jewish kings led expansionist wars. Psalmist was much less than loving toward enemies (remember where that hate-no-one-love-your-enemies is from?) Maccabees were everything but nice to Jewish gentilizers, and neither was bar Kochba. Modern Israelis violently swept Arab enemies in every war, and only the pseudo-liberal government prevents the Jews from carving a decent state for themselves.
Judeo-Christianity
What a bizarre notion Judeo-Christianity is! Judaism and Christianity are the different poles, practicality and idealism. Jews do not preach poverty and humility. Judaism and Christianity are incompatible, not parts of the same culture. If anything, Islam is closer to Judaism than Christianity is. It is also repugnant to side with people who oppressed and exterminated Jews for millennia against Muslims who were reasonably tolerant to the Jews. Peaceful relations with Christians are perfect, but lumping Jewish heritage together with Christian doctrine is abominable.
“Cooks Can Govern The Country”
Opponents of Revisionist Zionism tout Einstein's condemnation of Zhabotinsky. If Zhabotinsky understood nothing in physics, why assume Einstein understood anything in politics? Menachem Begin and Arik Sharon were great soldiers, but they committed major political mishaps. Lenin exaggerated when remarked that cooks can govern the country. Politics is an art, and requires high and specialized skills.
Divine Intervention
Nazis exterminated European Jews; how can we still claim the divine protection and biblical rights? The Lubavitcher Rebe remarked that he sees divine intervention in Germany, the military superpower, being crashed. Also in being a few months short to develop nuclear bomb. But the German annihilation of Jews reminds of the generation of Egyptian bondage that perished in Sinai steppe. Only free Hebrews were to enter the Promised Land with Joshua. Could not it be the divine intention to keep the shtetl Jews out of Israel? In the last moment, the divine compassion saved the remnant: the accursed Stalin died before realizing the already launched relocation of the remaining Jews to Siberia, exactly the place the Nazis initially fathomed for their bloodless extermination.
Hamas
Hamas' victory benefits Israel. Efficient terrorists will become corrupt, non-delivering politicians. Involving them in political process is the most straight way to discredit them.
Major Terrorist Attack Brewing
Bin Laden's offer of truce concerns me a lot. Earlier, he offered the West to convert, and himself as spiritual guide for that conversion. The symbolism is there, Osama shows that he tried every option to spare the West. It looks like a major terrorist attack is brewing.
So much attention to Rafsanjani's anti-Israeli pronouncements... His is mere rhetoric, common among Muslims. The attention will only provoke him to talk more in the same vein.
"Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power"
~ Benito Mussolini
We are now entering an era where not only is your patriotism questioned but the word traitor is bandied about with abandon by the usual suspects in DC whenever one is disappointed or outraged by the latest usurpation of liberties and freedom from the central government and the Offal Office in the WAFL (War Against Freedom and Liberty) House formerly known as the White House.
Little did we know that in 1917 Woodrow Wilson and Vladimir Lenin started an ideological race to see whether America or Russia would form the perfect Soviet union. Fast-forward to the last decade of the Busheviks and Obamunism and it appears obvious the Russians came in second and we took the Gold Medal. The collectivist efforts of the Government Supremacist Party with its Democrat and Republican wings have finally paid off and we are entering the home stretch where the Federal Government now takes ownership in major corporate ventures, the entire banking system and the national security apparatus is being used to seal the deal. I would submit the system is doomed but it does not mean the DC regime won’t take the rest of us down with it.
Now we are asked to pledge our support and monies to a government that is not only out of control and extra-Constitutional but seeking to turn America into a Stalinist hellhole flying a Green Swastika.
So what is treason and what is traitor?
The Constitution of the United States, Article III, defines treason against the United States to consist only in levying war against them, or in adhering to their enemies, giving them aid or comfort. This offence is punished with death. By the same article of the Constitution, no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. The more conventional definition means one’s refusal to acknowledge the legitimacy of the present government or performing services for foreign nations like spying or fighting as the Patricios did during the 1848 Mexican-American conflict.
Pay attention to the second clause. Who in America truly thinks we were destined to become a stronger imitation of the pathetic Soviet structure of state organizing principles embracing the worst economic nostrums, the brutality of occupation behavior by the central government toward its citizens ensuring the creation and nurturing of a special class of rulers in our own American nomenklatura? I would suggest that our rulers in DC are adhering to their enemies, giving them aid or comfort because they are contravening the Constitution and the spirit and letter of limited governance on a daily basis.
Let me make one more clarification that will alienate some readers. My reference to patriot is lower case much like my use of libertarian. I have no use for the conspiracists, religionists and opportunists who use the capital-P Patriot nomenclature as a thin disguise for their lack of intellectual rigor or a red, white and blue excuse to avoid their financial obligations (I am not referring to taxes). Whether the Christian Identity church or the self-styled Patriot lawyers who plead their cases before government courts, I am not interested.
It is high time to revisit the definitions because the gulf between our rulers and the people is ever widening and the knives are coming out. The question actually becomes who is the traitor. Those who seek to lift the Constitution above men to substantiate the rule of law or a rule by men who hold themselves above the Constitution in interpretation. I have commented before that the Supreme Court is the use of robed government employees to expand and approve the growth of the Leviathan state at the expense of individual liberty with an imprimatur of legitimacy and it has proven out.
We now see that there is nothing the Federal government can recognize as a brake or impediment to whatever power they wish to exercise. We have sophisticated men and women going through intellectual rationalizations of torture and the imposition of institutionalized physical pain on men who have no Constitutional rights whatsoever. Washington, with a sweeping gesture of overbearing arrogance, participates in the largest multi-trillion dollar money-laundering exercise in the history of man to satisfy bankster special interests and does not allow the bill-payers to see where or what the money is doing and discourages the borrowers to repay the monies loaned.
So it appears as if we are laboring under a tyranny that would make George III blush. The Tea Parties have at least encouraged some Americans to look at their roots. I, for one, agree with the recent Tea Party critic on LRC that the events are far too civil but the time for mischief is coming. The original Boston Tea Party did not file EPA impact statements or ask permission to smash the state.
The point is that treason is usually the term employed by the besieged statists when they discover someone has parted the curtain or discovered their tailors are using vapor fabric. The eminent Lysander Spooner would inform you it is no treason at all to oppose bad laws.
The Congress has even gone so far as to question the use of wiretaps that catch them in the net when they betray their country to a foreign power which are the very authorizations they themselves enjoined against the American people. CongressCreature Jane Harmon obviously has loyalty issues that are much more germane to the traditional understanding of traitorous behavior:
Lo and behold, Jane’s had an epiphany. She now "think[s] the question is about ... did our government abuse the rights of American citizens, including members of Congress, with legal or illegal wiretappings…" It seems that compromising yourself on tape focuses the mind about as wonderfully as hanging does. And catch Jane’s conflating "members of Congress" with "American citizens." What a wit!
What an ingenious defense from the same Congress that has appointed the illiterate Janet Napolitano to head up the Department of Fatherland Security which is presently hounding the right-wing terrorists of the nation who either agree with the Constitution or served in the military. A tangled web we weave. So, so (your best Joe Pesci imitation), let me get this straight. I am a traitor if I wish to observe the Constitution as the highest law of the land using strict constructionist interpretation but I am a loyal American if I seek to exercise leniency or influence on the outcome of a spy debacle by AIPAC. Just so you know that justice turns in the way we have cynically come to expect in DC, the espionage charges against the AIPAC defendants have been dropped.
The Tea Party in 1775 was a traitorous act by Britons against Britain and a necessary event to sever the illegitimate rule of a faraway government (much like DC but more mild and principled) which sought through taxes, regulation and military occupation to lord over a people who wanted none of it. It was a traitorous act in the sense it refused to any longer recognize the legitimacy and span of control exercised by a many-tentacled imperial beast reliant on a host to draw energy and power from much like a remora. DC is the sine qua non of the modern phenomenon of a Remora Nation. It represents the last gasp of a grasping, imperious and unprincipled kakistocracy (government by the least qualified or most unprincipled citizens) desperately clinging to power for the sheer sake of it.
We are in a unique situation in these united States as opposed to the Colonists. We have founding documents in both the DI and the Constitution (dare we say the unfairly maligned Articles of Confederation) that can be used as a measure of performance and a report card for our rulers in DC. They have failed. The whole Progressive and Neoconservative project is in an ascendant position that will either collapse or seal the fate of all freedom-loving Americans. I would suggest that we are strikingly similar to the Soviet Union in the 1980s with the implementation of policies that are nonsensical, dangerous and economically illiterate. They are conducting themselves much like a nomenklatura bent on securing their fortunes and immunity before the whole rotten system known as modern twentieth-century American governance rips asunder under the weight of its stunning contradictions and absurdly vicious behavior to its host population.
My point is that the traitors aren’t us; it is every man and woman who places their allegiance to a contemporary power structure in DC and not to the foundational documents that animated the Founding. In the end, the government-media complex is a powerful propaganda tool which may succeed in identifying Americans who want limited or no government as traitors, so there it is. If a traitor is the American who takes a stand, draws a line in the sand and stands against the Red Tide emanating from DC, count me in the ranks. I love my country but fear my government.
"...it does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people's minds..."
Among the myriad JFK assassination controversies, none more cleanly divides Warren Commission supporter from skeptic than the “Single Bullet Theory.” The brainchild of a former Warren Commission lawyer, Mr. Arlen Specter, now the senior Senator from Pennsylvania, the theory is the sine qua non of the Warren Commission’s case that with but three shots, including one that missed, Lee Harvey Oswald had single handedly altered the course of history.
Mr. Specter’s hypothesis was not one that immediately leapt to mind from the original evidence and the circumstances of the shooting. It was, rather, born of necessity, if one sees as a necessity the keeping of Oswald standing alone in the dock. The theory had to contend with the considerable evidence there was suggesting that more than one shooter was involved.
For example, because the two victims in Dealey Plaza, President Kennedy and Governor John Connally, had suffered so many wounds – eight in all, it had originally seemed as if more than two slugs from the supposed “sniper’s nest” would have been necessary to explain all the damage. In addition, a home movie taken by a bystander, Abraham Zapruder, showed that too little time had elapsed between the apparent shots that hit both men in the back for Oswald to have fired, reacquired his target, and fired again. The Single Bullet Theory neatly solved both problems. It posited that a single, nearly whole bullet that was later recovered had caused all seven of the non-fatal wounds sustained by both men.
But the bullet that was recovered had one strikingly peculiar feature: it had survived all the damage it had apparently caused virtually unscathed itself. The shell’s near-pristine appearance, which prompted some to call it the “magic bullet,” left many skeptics wondering whether the bullet in evidence had really done what the Commission had said it had done. Additional skepticism was generated by the fact the bullet was not found in or around either victim. It was found instead on a stretcher at the hospital where the victims were treated.
Mr. Specter’s idea was that, after passing completely through JFK and Governor Connally, the bullet had fallen out of the Governor’s clothes and onto a stretcher at Parkland Hospital. But it was never unequivocally established that either victim had ever lain on the stretcher where the bullet was discovered.[2]Nevertheless, studies done at the FBI Laboratory seemed to unquestionably link the missile to Oswald’s rifle, and the FBI sent the Warren Commission a memo on July 7, 1964 detailing how it had run down the bullet’s chain of possession, which looked pretty solid. According to the FBI, the two hospital employees who discovered the bullet originally identified it as the same bullet six months later in an FBI interview
That a bullet, fired from Oswald’s weapon and later identified by hospital witnesses, had immediately turned up on a stretcher in the hospital where the victims were treated struck some as perhaps a little too convenient. Suspicions it had been planted ensued. But apart from its peculiar provenance, there was little reason in 1964 to doubt the bullet’s bona fides. But then in 1967, one of the authors reported that one of the two hospital employees who had found the bullet, Parkland personnel director O.P. Wright, had told him that the bullet he saw and held on the day of the assassination did not look like the bullet that later turned up in FBI evidence. That claim was in direct conflict with an FBI memo of July 7, 1964, which said that Wright had told an FBI agent that the bullet did look like the shell he’d held on the day of the murder.
For thirty years, the conflict lay undisturbed and unresolved. Finally, in the mid 1990s, the authors brought this conflict to the attention of the Assassinations Records Review Board, a federal body charged with opening the abundant, still-secret files concerning the Kennedy assassination. A search through newly declassified files led to the discovery of new information on this question. It turns out that the FBI’s own, once-secret files tend to undermine the position the FBI took publicly in its July, 1964 memo to the Warren Commission, and they tend to support co-author Josiah Thompson. Thompson got a further boost when a retired FBI agent, in a recorded telephone interview and in a face-to-face meeting, flatly denied what the FBI had written about him to the Warren Commission in 1964.
A Bullet is Found at Parkland Hospital
The story begins in a ground floor elevator lobby at the Dallas hospital where JFK and John Connelly were taken immediately after being shot. According to the Warren Commission, Parkland Hospital senior engineer, Mr. Darrell C. Tomlinson, was moving some wheeled stretchers when he bumped a stretcher “against the wall and a bullet rolled out.” He called for help and was joined by Mr. O.P. Wright, Parkland’s personnel director. After examining the bullet together, Mr. Wright passed it along to one of the U.S. Secret Service agents who were prowling the hospital, Special Agent Richard Johnsen.
Johnsen then carried the bullet back to Washington, D. C. and handed it to James Rowley, the chief of the Secret Service. Rowley, in turn, gave the bullet to FBI agent Elmer Lee Todd, who carried it to agent Robert Frazier in the FBI’s Crime Lab. Without exploring the fact that the HSCA discovered that there may have been another witness who was apparently with Tomlinson when the bullet was found, what concerns us here is whether the bullet currently in evidence, Commission Exhibit #399, is the same bullet Tomlinson found originally.
The early history of the bullet, Commission Exhibit #399, is laid out in Warren Commission Exhibit #2011. This exhibit consists of a 3-page, July 7, 1964 FBI letterhead memorandum that was written to the Warren Commission in response to a Commission request that the Bureau trace “various items of physical evidence,” among them #399. #2011 relates that, in chasing down the bullet’s chain of possession, FBI agent Bardwell Odum took #399 to Darrell Tomlinson and O.P. Wright on June 12, 1964. The memo asserts that both men told Agent Odum that the bullet “appears to be the same one” they found on the day of the assassination, but that neither could “positively identify” it.
Positive identification” of a piece of evidence by a witness means that the witness is certain that an object later presented in evidence is the same one that was originally found. The most common way to establish positive identification is for a witness to place his initials on a piece of evidence upon first finding it. The presence of such initials is of great help later when investigators try to prove a link through an unbroken chain of possession between the object in evidence and a crime.
Understandably, neither Tomlinson nor Wright inscribed his initials on the stretcher bullet. But that both witnesses told FBI Agent Odum, so soon after the murder, that CE 399 looked like the bullet they had found on a stretcher was compelling reason to suppose that it was indeed the same one.
However, CE #2011 included other information that raised questions about the bullet. As first noted by author Ray Marcus, it also states that on June 24, 1964, FBI agent Todd, who received the bullet from Rowley, the head of the Secret Service, returned with presumably the same bullet to get Secret Service agents Johnsen and Rowley to identify it. #2011 reports that both Johnsen and Rowley advised Todd that they “could not identify this bullet as the one” they saw on the day of the assassination. # 2011 contains no comment about the failure being merely one of not “positively identifying” the shell that, otherwise, “appeared to be the same” bullet they had originally handled.
Thus, in #2011 the FBI reported that both Tomlinson and Wright said #399 resembled the Parkland bullet, but that neither of the Secret Service Agents could identify it. FBI Agent Todd originally received the bullet from Rowley on 11/22/63 and it was he who then returned on 6/24/64 with supposedly the same bullet for Rowley and Johnsen to identify. Given the importance of this case, one imagines that by the time Todd returned, they would have had at least a passing acquaintance. Had it truly been the same bullet, one might have expected one or both agents to tell Todd it looked like the same bullet, even if neither could “positively identify” it by an inscribed initial. After all, neither Tomlinson nor Wright had inscribed their initials on the bullet, and yet #2011 says that they said they saw a resemblance.
And there the conflicted story sat, until one of the current authors published a book in 1967.
Two Different Accounts from One Witness
Six Seconds in Dallas reported on an interview with O.P. Wright in November 1966. Before any photos were shown or he was asked for any description of #399, Wright said: “That bullet had a pointed tip.”
“Pointed tip?” Thompson asked.
“Yeah, I’ll show you. It was like this one here,” he said, reaching into his desk and pulling out the .30 caliber bullet pictured in Six Seconds.”
As Thompson described it in 1967, “I then showed him photographs of CE’s 399, 572 (the two ballistics comparison rounds from Oswald’s rifle) (sic), and 606 (revolver bullets) (sic), and he rejected all of these as resembling the bullet Tomlinson found on the stretcher. Half an hour later in the presence of two witnesses, he once again rejected the picture of 399 as resembling the bullet found on the stretcher.”
Thus in 1964 the Warren Commission, or rather the FBI, claimed that Wright believed the original bullet resembled #399. In 1967, Wright denied there was a resemblance. Recent FBI releases prompted by the JFK Review Board support author Thompson’s 1967 report.
A declassified 6/20/64 FBI AIRTEL memorandum from the FBI office in Dallas (“SAC, Dallas” – i.e., Special Agent in Charge, Gordon Shanklin) to J. Edgar Hoover contains the statement, “For information WFO (FBI Washington Field Office), neither DARRELL C. TOMLINSON [sic], who found bullet at Parkland Hospital, Dallas, nor O. P. WRIGHT, Personnel Officer, Parkland Hospital, who obtained bullet from TOMLINSON and gave to Special Service, at Dallas 11/22/63, can identify bullet … .”
Whereas the FBI had claimed in CE #2011 that Tomlinson and Wright had told Agent Odum on June 12, 1964 that CE #399 “appears to be the same” bullet they found on the day of the assassination, nowhere in this previously classified memo, which was written before CE #2011, is there any corroboration that either of the Parkland employees saw a resemblance. Nor is FBI agent Odum’s name mentioned anywhere in the once-secret file, whether in connection with #399, or with Tomlinson or with Wright.
A declassified record, however, offers some corroboration for what CE 2011 reported about Secret Service Agents Johnsen and Rowley. A memo from the FBI’s Dallas field office dated 6/24/64 reported that, “ON JUNE TWENTYFOUR INSTANT RICHARD E. JOHNSEN, AND JAMES ROWLEY, CHIEF … ADVISED SA ELMER LEE TODD, WFO, THAT THEY WERE UNABLE TO INDENTIFY RIFLE BULLET C ONE (# 399, which, before the Warren Commission had logged in as #399, was called “C ONE”), BY INSPECTION (capitals in original).
Convinced that we had overlooked some relevant files, we cast about for additional corroboration of what was in CE # 2011. There should, for example, have been some original “302s ” – the raw FBI field reports from the Agent Odum’s interviews with Tomlinson and Wright on June 12, 1964. There should also have been one from Agent Todd’s interviews with Secret Service Agents Johnsen and Rowley on June 24, 1964. Perhaps somewhere in those, we thought, we would find Agent Odum reporting that Wright had detected a resemblance between the bullets. And perhaps we’d also find out whether Tomlinson, Wright, Johnsen or Rowley had supplied the Bureau with any additional descriptive details about the bullet.
In early 1998, we asked a research associate, Ms. Cathy Cunningham, to scour the National Archives for any additional files that might shed light on this story. She looked but found none. We contacted the JFK Review Board’s T. Jeremy Gunn for help. On May 18, 1998, the Review Board’s Eileen Sullivan, writing on Gunn’s behalf, answered, saying: “[W]e have attempted, unsuccessfully, to find any additional records that would account for the problem you suggest.” Undaunted, one of us wrote the FBI directly, and was referred to the National Archives, and so then wrote Mr. Steve Tilley at the National Archives.
On Mr. Tilley’s behalf, Mr. Stuart Culy, an archivist at the National Archives, made a search. On July 16, 1999, Mr. Culy wrote that he searched for the FBI records within the HSCA files as well as in the FBI records, all without success. He was able to determine, however, that the serial numbers on the FBI documents ran “concurrently, with no gaps, which indicated that no material is missing from these files.” In other words, the earliest and apparently the only FBI report said nothing about either Tomlinson or Wright seeing a similarity between the bullet found at the hospital and the bullet later in evidence, CE #399. Nor did agent Bardwell Odum’s name show up in any of the files.
[editor's note: Dr. Aguilar followed up in 2005 with the National Archives, asking them in letters dated March 2and March 7to search for any FBI "302" reports that would have been generated from CE399 being shown to those who handled it. On March 17, 2005 David Mengel of NARA wrote backreporting that additional searches had not uncovered any such reports.]
Stymied, author Aguilar turned to his co-author. “What does Odum have to say about it?” Thompson asked.
“Odum? How the hell do I know? Is he still alive?”
“I’ll find out,” he promised.
Less than an hour later, Thompson had located Mr. Bardwell Odum’s home address and phone number. Aguilar phoned him on September 12, 2002. He was still alive and well and living in a suburb of Dallas. The 82-year old was alert and quick-witted on the phone and he regaled Aguilar with fond memories of his service in the Bureau. Finally, the Kennedy case came up and Odum agreed to help interpret some of the conflicts in the records. Two weeks after mailing Odum the relevant files – CE # 2011, the three-page FBI memo dated July 7, 1964, and the “FBI AIRTEL” memo dated June 12, 1964, Aguilar called him back.
Mr. Odum told Aguilar, “I didn’t show it [#399] to anybody at Parkland. I didn’t have any bullet … I don’t think I ever saw it even.” Unwilling to leave it at that, both authors paid Mr. Odum a visit in his Dallas home on November 21, 2002. The same alert, friendly man on the phone greeted us warmly and led us to a comfortable family room. To ensure no misunderstanding, we laid out before Mr. Odum all the relevant documents and read aloud from them.
Again, Mr. Odum said that he had never had any bullet related to the Kennedy assassination in his possession, whether during the FBI’s investigation in 1964 or at any other time. Asked whether he might have forgotten the episode, Mr. Odum remarked that he doubted he would have ever forgotten investigating so important a piece of evidence. But even if he had done the work, and later forgotten about it, he said he would certainly have turned in a “302” report covering something that important. Odum’s sensible comment had the ring of truth. For not only was Odum’s name absent from the FBI’s once secret files, it was also it difficult to imagine a motive for him to besmirch the reputation of the agency he had worked for and admired.
Thus, the July 1964 FBI memo that became Commission Exhibit #2011 claims that Tomlinson and Wright said they saw a resemblance between #399 and the bullet they picked up on the day JFK died. However, the FBI agent who is supposed to have gotten that admission, Bardwell Odum, and the Bureau’s own once-secret records, don’t back up #2011. Those records say only that neither Tomlinson nor Wright was able to identify the bullet in question, a comment that leaves the impression they saw no resemblance. That impression is strengthened by the fact that Wright told one of the authors in 1966 the bullets were dissimilar. Thus, Thompson’s surprising discovery about Wright, which might have been dismissed in favor of the earlier FBI evidence in #2011, now finds at least some support in an even earlier, suppressed FBI memo, and the living memory of a key, former FBI agent provides further, indirect corroboration.
Missing 302s?
But the newly declassified FBI memos from June 1964 lead to another unexplained mystery. Neither are the 302 reports that would have been written by the agents who investigated #399’s chain of possession in both Dallas and Washington. The authors were tempted to wonder if the June memos were but expedient fabrications, with absolutely no 302s whatsoever backing them up.
But a declassified routing slip turned up by John Hunt seems to prove that the FBI did in fact act on the Commission’s formal request, as outlined in # 2011, to run down #399s chain of possession. The routing slip discloses that the bullet was sent from Washington to Dallas on 6/2/64 and returned to Washington on 6/22/64. Then on 6/24/64, it was checked out to FBI Agent Todd. What transpired during these episodes? If the Bureau went to these lengths, it seems quite likely that Bardwell Odum, or some other agent in Dallas, would have submitted one or more 302s on what was found, and so would Agent Elmer Todd in Washington. But there are none in the files. The trail ends here with an unexplained, and perhaps important, gap left in the record.
Besides this unexplained gap, another interesting question remains: If the FBI did in fact adjust Tomlinson and Wright’s testimonies with a bogus claim of bullet similarity, why didn’t it also adjust Johnsen and Rowley’s? While it is unlikely a certain answer to this question will ever be found, it is not unreasonable to suppose that the FBI authors of #2011 would have been more reluctant to embroider the official statements of the head of the Secret Service in Washington than they would the comments of a couple of hospital employees in Dallas.
Summary
In a memo to the Warren Commission [C. E. #2011] concerning its investigation of the chain of possession of C.E. #399, the FBI reported that two Parkland Hospital eyewitnesses, Darrell Tomlinson and O. P. Wright, said C.E. #399 resembled the bullet they discovered on the day JFK died. But the FBI agent who is supposed to have interviewed both men and the Bureau’s own suppressed records contradict the FBI’s public memo. Agent Odum denied his role, and the FBI’s earliest, suppressed files say only that neither Tomlinson nor Wright was able to identify the bullet in question. This suppressed file implies the hospital witnesses saw no resemblance, which is precisely what Wright told one of the authors in 1967.
What we are left with is the FBI having reported a solid chain of possession for #399 to the Warren Commission. But the links in the FBI’s chain appear to be anything but solid. Bardwell Odum, one of the key links, says he was never in the chain at all and the FBI’s own, suppressed records tend to back him up. Inexplicably, the chain also lacks other important links: FBI 302s, reports from the agents in the field who, there is ample reason to suppose, did actually trace #399 in Dallas and in Washington. Suppressed FBI records and recent investigations thus suggest that not only is the FBI’s file incomplete, but also that one of the authors may have been right when he reported in 1967 that the bullet found in Dallas did not look like a bullet that could have come from Oswald’s rifle.
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