Archive for April, 2013

Changing things up a little, here’s a music video based on one of my songs, “Masters of Deceit,” which was written especially for a nation at war with itself. Asking “who ARE the masters of deceit?”  this song confronts the monsters and obstacles that entangle and control our lives.

 

“[Drones are a] game-changing technology, akin to gunpowder, the steam engine, the atomic bomb—opening up possibilities that were fiction a generation earlier but also opening up perils that were unknown a generation ago.”—Peter Singer, senior fellow at the Brookings Institution

America will never be a “no drone zone.”

That must be acknowledged from the outset. There is too much money to be made on drones, for one, and too many special interest groups—from the defense sector to law enforcement to the so-called “research” groups that are in it for purely “academic” reasons—who have a vested interest in ensuring that drones are here to stay.

At one time, there was a small glimmer of hope that these aerial threats to privacy would not come home to roost, but that all ended when Barack Obama took office and made drones the cornerstone of his war efforts. By the time President Obama signed the FAA Reauthorization Act into law in 2012, there was no turning back. The FAA opened the door for drones, once confined to the battlefields over Iraq and Afghanistan, to be used domestically for a wide range of functions, both public and private, governmental and corporate. It is expected that at least 30,000 drones will occupy U.S. airspace by 2020, ushering in a $30 billion per year industry.

Those looking to the skies in search of Predator drones will be in for a surprise, however, because when the drones finally descend en masse on America, they will not be the massive aerial assault vehicles favored by the Obama administration in their overseas war efforts. Rather, the drones coming to a neighborhood near you will be small, some nano in size, capable of flying through city streets and buildings almost undetected, while hovering over cityscapes and public events for long periods of time, providing a means of 24/7 surveillance.

Those looking to the skies in search of Predator drones will be in for a surprise, however, because when the drones finally descend en masse on America, they will not be the massive aerial assault vehicles favored by the Obama administration in their overseas war efforts. Rather, the drones coming to a neighborhood near you will be small, some nano in size, capable of flying through city streets and buildings almost undetected, while hovering over cityscapes and public events for long periods of time, providing a means of 24/7 surveillance.

One type of drone sensor, the Gorgon Stare, can keep track of an area 2.5 miles across from 12 different angles. Another sensor system, ARGUS, can find an object that is only 6 inches long, from 20,000 feet up in the air. A drone equipped with this kind of technology could spy on an entire city at once. For example, police in California are about to begin using Qube drones, which are capable of hovering for 40 minutes at heights of about 400 ft. to conduct surveillance on targets as far as 1 kilometer away. Michael Downing, the LAPD deputy chief for counter-terrorism and special operations, envisions drones being flown over large-scale media events such as the Oscars, using them to surveil political protests, and flying them through buildings to track criminal suspects.

These micro-drones will be the face of surveillance and crowd control in the coming drone age.

Modeled after birds, insects, and other small animals, these small airborne surveillance devices can remain hidden in plain view while navigating spaces off limits to conventional aircraft. Able to take off and land anywhere, able to maneuver through city streets and hallways, and able to stop and turn on a dime, these micro-drones will still pack a lethal punch, equipped with an array of weapons and sensors, including tasers, bean-bag guns, “high-resolution video cameras, infrared sensors, license plate readers, [and] listening devices.”

You can rest assured, given the pace of technology and the fervor of the drone industry (and its investors), that the sky is the limit when it comes to the many uses (and abuses) for drones in America. The following is just a small sampling of what will be descending from the skies in the near future.

Cyborg drones

Cyborg drones. The Defense Advanced Research Projects Agency (DARPA) has begun to develop a Micro-Electro-Mechanical System (MEMS) for the manipulation of insects into “cyborgs.” Through genetic engineering, they are aiming to control the movement of insects and utilize them for surveillance purposes.

Dragonfly drone

Dragonfly drone. First reportedly spotted in 2007 hovering over protesters at an anti-war rally in Washington, DC, it turns out that the government’s dragonfly drones are just the tip of the iceberg when it comes to small aerial surveillance devices designed to mimic nature. Just a year later, the US Air Force “unveiled insect-sized spies ‘as tiny as bumblebees’ that could not be detected and would be able to fly into buildings to ‘photograph, record, and even attack insurgents and terrorists.’”

Hummingbird drone

Hummingbird drone. Shaped like a bird, the “Nano Hummingbird” drone is negligibly larger than an actual hummingbird and fits in the palm of one’s hand. It flits around effortlessly, blending in with its surroundings. DARPA, the advanced research division of the Department of Defense, gets the credit for this biotic wonder.

 Nano Quadrators. Similar to the hummingbird drone, these small, four-propellered nano quadrator drones, developed by researchers at the University of Pennsylvania, operate based upon the flight dynamics of insects, enabling them to operate as a swarm. Using twenty drones, researchers demonstrated how, moving compactly as a unit, the drones were able to navigate obstacles, form complex patterns, and even execute a fluid figure eight arrangement.

Black Hornet Nano drone

Black Hornet Nano drone. Weighing in at roughly half an ounce and four inches long, comparable to a finch, the Black Hornet Nano helicopter drone was designed to capture and relay video and still images to remote users, and can fly even in windy conditions.

DASH Roachbot

DASH Roachbot drone. Developed at UC Berkeley’s PolyPEDAL Lab, DASH, a 10-centimeter long, 16-gram Dynamic Autonomous Sprawled Hexapod strives to mimic a cockroach’s speed and ability to remain covert and a gecko’s speed and agility. Trained to perform “rapid inversion” maneuvers that include dashing up to a ledge and then swinging itself around to end up underneath the ledge and upside-down, DASH is being trained to make rapid transitions between running and climbing.

Samarai drone

Samarai drone. Lockheed Martin’s compact “Samarai” drone, inspired by the design of a maple seed, is capable of high speeds, low battery consumption, vertical movement, and swift ground deployment.

MicroBat dron

MicroBat drone. Additionally, CIT Group, Aerovironment, and UCLA have produced a “MicroBat”  ornithopter; it was designed in part by zoologists who have attempted to make the MicroBat mimic the movement of birds and other flying animals.

Spy-butterfly drone

Spy-butterfly drone. In 2012, Israel unveiled its new insect-inspired drone which they dubbed the “spy-butterfly” because of its two sizable wings. Weighing in at only 20g, this drone was developed for indoor surveillance, including public places such as “train stations and airport terminals—or office buildings.” The size and muted sound of the “virtually noiseless” machines makes them unnoticeable and therefore ideal for intelligence gathering. The spy-butterfly is so realistic that, when tested, “birds and flies tended to fall behind the device arranging into a flock.”

Switchblade drone

Switchblade drone. A more sinister example is the Switchblade, a small military drone intended to act as a kamikaze weapon. Weighing in at a mere six pounds and two feet in length, it flies effortlessly through urban environments before zeroing in on its target, a person, at which point it explodes, unceremoniously killing him or her.

Mosquito dron

Mosquito drone. More lethal than its real-life counterpart, the mosquito drone, while an engineering marvel, is also a privacy advocate’s nightmare with its potential to land on someone and use a needle-like-pincer to extract DNA from its victims or, alternatively, inject drugs or other foreign substances. As software engineer Alan Lovejoy notes:

Such a device could be controlled from a great distance and is equipped with a camera, microphone. It could land on you and then use its needle to take a DNA sample with the pain of a mosquito bite. Or it could inject a micro RFID tracking device under your skin. It could land on you and stay, so that you take it with you into your home. Or it could fly into a building through a window. There are well-funded research projects working on such devices with such capabilities.

Raven drone

Raven drone. Weighing in at 4 pounds, the RQ-11 Raven drone is not as small, nor is it as agile as its smaller counterparts, but with more than 19,000 out there already, it is the most common. Useful for seeing around corners and sending footage back to its handlers, the Raven resembles a rudimentary model airplane and crumbles like Legos upon landing.

With 63 active drone sites across the nation and 56 government agencies presently authorized to use drones, including 22 law enforcement agencies and 24 universities, drones are here to stay. Indeed, the cost of drones—underwritten by a $4 million Homeland Security program which encourages local law enforcement to adopt drone technology as quickly as possible—makes them an easy sell for most police departments. Moreover, while manned airplanes and helicopters can cost $600/hour to operate, a drone can be put in the sky for less than $25/hour. That doesn’t even begin to cover drone use by the private sector, which is already chomping at the bit at the prospect.

No matter what the future holds, however, we must ensure that Americans have a semblance of civil liberties protections against the drones. Given the courts’ leniency towards police, predicating drone use on a warrant requirement would provide little to no protection.  Thus, the only hope rests with Congress and state legislatures that they would adopt legislation specifically prohibiting the federal government from using data recorded via police spy drones in criminal prosecutions, as well as preventing police agencies from utilizing drones outfitted with anti-personnel devices such as tasers and tear gas.

Either way, we’d better get ready.

As Peter W. Singer, author of “Wired for War,” a book about military robotics, warns: “The debate over drones is like debating the merits of computers in 1979: They are here to stay, and the boom has barely begun. We are at the Wright Brothers Flier stage of this. There’s no stopping this technology. Anybody who thinks they can put this genie back in the box—that’s silliness.” — John W. Whitehead

School officials who stripped a 10-year-old boy down to his underwear in an aggressive strip-search that included rimming the edge of his underwear, allegedly in an attempt to find another student’s missing $20 bill (which was later found on the cafeteria floor), are attempting to justify their actions as being within their legal purview. Yet as The Rutherford Institute points out, in challenging the school’s attempt to have the lawsuit against it dismissed, there is no justification for the school’s decision to so egregiously violate the fifth-grader’s Fourth Amendment rights or for the alleged failure to train school employees in how to appropriately deal with such matters.

Indeed, such outrageous conduct by school officials not only dehumanizes students but it also deprives them of the fundamental right of privacy under our Constitution. These types of searches clearly illustrate the danger inherent in giving school administrators carte blanche authority to violate the civil liberties and privacy rights of students. Do we really want young people to be taught that they have no true rights and that government authorities have total power and can violate their rights as they see fit?

J.C. Cox, victim of an aggressive strip search by school officials

The lawsuit arose over an incident that took place on Friday, June 12, 2012. J.C., a fifth-grader attending Union Elementary School in Clinton, N.C., was in the school cafeteria eating lunch when a female classmate dropped money onto the floor. J.C. went under the table, retrieved the coins and returned them to the girl.

Upon approaching J.C.’s table, Assistant Principal Teresa Holmes was informed that someone had dropped $20 on the floor, that the money was missing, and that J.C. had gone under the table in search of the missing money. Despite J.C.’s insistence that he did not have the money, Holmes ordered him to go to her office and with a school custodian present, interrogated the 10-year-old again.

Again, J.C. denied having the money, going so far as to pull out his pockets to show that he had no money. Insisting that she had no choice but to search J.C. and was within her legal right to do so, the assistant principal then allegedly ordered J.C. to remove his shoes, socks, pants and shirt. With J.C. stripped to his underwear, Holmes ran her finger around the waistband of his undershorts. No money was found. However, while J.C. was being searched, another teacher arrived to report that the $20 had been found on the cafeteria floor.

Coming to the defense of J.C. and his family, The Rutherford Institute filed a civil rights lawsuit against the Sampson County Board of Education and former Union Elementary School Assistant Principal Teresa Holmes in December 2012 in the U.S. District Court for the Eastern District of North Carolina.

In suing the school for violating J.C.’s Fourth Amendment rights, Rutherford Institute attorneys point to a 2009 ruling by the U.S. Supreme Court in Safford Unif. Sch. Dist. # 1 v. Redding which held that school officials do not have the authority to strip search a student absent evidence that the student possesses contraband that poses a danger. Moreover, the lawsuit argues that the search was constitutionally unreasonable because school officials did not have sufficient grounds to believe J.C. was hiding the lost money and because student strip searches of students are allowed only in the interest of school safety. — John W. Whitehead

“There’s a tremendous push where if the kid’s behavior is thought to be quote-unquote abnormal — if they’re not sitting quietly at their desk — that’s pathological, instead of just childhood.”—Dr. Jerome Groopman, professor of medicine at Harvard Medical School

According to a recent report by the Centers for Disease Control, a staggering 6.4 million American children between the ages of 4 and 17 have been diagnosed with attention deficit hyperactivity disorder (ADHD), whose key symptoms are inattention, hyperactivity, and impulsivity—characteristics that most would consider typically childish behavior. High school boys, an age group particularly prone to childish antics and drifting attention spans, are particularly prone to being labeled as ADHD, with one out of every five high school boys diagnosed with the disorder.

Presently, we’re at an all-time high of eleven percent of all school-aged children in America who have been classified as mentally ill. Why? Because they “suffer” from several of the following symptoms: they are distracted, fidget, lose things, daydream, talk nonstop, touch everything in sight, have trouble sitting still during dinner, are constantly in motion, are impatient, interrupt conversations, show their emotions without restraint, act without regard for consequences, and have difficulty waiting their turn. 

The list reads like a description of me as a child. In fact, it sounds like just about every child I’ve ever known, none of whom are mentally ill. Unfortunately, society today is far less tolerant of childish behavior—hence, the growing popularity of the ADHD label, which has become the “go-to diagnosis” for children that don’t fit the psycho-therapeutic public school mold of quiet, docile and conformist.

Mind you, there is no clinical test for ADHD. Rather, this so-called mental illness falls into the “I’ll know it if I see it” category, where doctors are left to make highly subjective determinations based on their own observation, as well as interviews and questionnaires with a child’s teachers and parents. Particular emphasis is reportedly given to what school officials have to say about the child’s behavior.

Yet while being branded mentally ill at a young age can lead to all manner of complications later in life, the larger problem is the routine drugging that goes hand in hand with these diagnoses. Of those currently diagnosed with ADHD, a 16 percent increase since 2007, and a 41 percent increase over the past decade, two-thirds are being treated with mind-altering, psychotropic drugs such as Ritalin and Adderall.

Diagnoses of ADHD have been increasing at an alarming rate of 5.5 percent each year. Yet those numbers are bound to skyrocket once the American Psychiatric Association releases its more expansive definition of ADHD. Combined with the public schools’ growing intolerance (aka, zero tolerance) for childish behavior, the psychiatric community’s pathologizing of childhood, and the Obama administration’s new mental health initiative aimed at identifying and treating mental illness in young people, the outlook is decidedly grim for any young person in this country who dares to act like a child.

As part of his administration’s sweeping response to the Newtown school shootings, President Obama is calling on Congress to fund a number of programs aimed at detecting and responding to mental illness among young people. A multipronged effort, Obama’s proposal includes $50 million to train 5,000 mental health professionals to work with young people in communities and schools; $55 million for Project AWARE (Advancing Wellness and Resilience in Education), which would empower school districts, teachers and other adults to detect and respond to mental illness in 750,000 young people; and $25 million for state efforts to identify and treat adolescents and young adults.

One of the key components of Obama’s plan, mental health first-aid training for adults and students, is starting to gain traction across the country. Incredibly, after taking a mere 12-hour course comprised of PowerPoint presentations, videos, discussions, role playing and other interactive activities, for instance, a participant can be certified “to identify, understand and respond to the signs of mental illness, substance use and eating disorders.”

While commendable in its stated goals, there’s a whiff of something not quite right about a program whose supporting data claims that “26.2 percent of people in the U.S. — roughly one in four — have a mental health disorder in any given year.” This is especially so at a time when government agencies seem to be increasingly inclined to view outspoken critics of government policies as mentally ill and in need of psychiatric help and possible civil commitment. But I digress. That’s a whole other topic.

Getting back to young people, Dr. Thomas Friedan, director of the CDC, has characterized the nation’s current fixation on ADHD as an over diagnosis and a “misuse [of ADHD medications that] appears to be growing at an alarming rate.”

Indeed, not that long ago, the very qualities we now identify as a mental illness and target for drugging were hallmarks of the creative soul. Many of the artists, musicians, poets, politicians and revolutionaries whom we have come to revere in our society were unable to sit still, pay attention, concentrate on their work, and stay within the confines which had been set out for them in the classroom.

Visionaries as varied as Mahatma Gandhi, Richard Feynman, John Lennon, Pablo Picasso, Jackson Pollock, Thomas Edison, Susan B. Anthony, Albert Einstein, and Winston Churchill would have all been labeled ADHD had they been students in the public schools today. Legendary filmmaker Woody Allen claims to have “paid attention to everything but the teachers” while in school. Despite being put in an accelerated learning program due to his high IQ, he felt constrained, so he often played hooky and failed to complete his assignments. Of his school days, Gandhi said, “They were the most miserable of his life” and “that he had no aptitude for lessons and rarely appreciated his teachers.” In fact, Gandhi opined that it “might have been better if he had never been to school.”

One can only imagine what the world would have been like had these visionaries of Western civilization instead been diagnosed with ADHD and drugged accordingly. Writing for the New York Times, Bronwen Hruska documents what it was like as a parent being pressured by school officials to medicate her child who, at age 8, seemed to have “normal 8-year-old boy energy.”

Will was in third grade, and his school wanted him to settle down in order to focus on math worksheets and geography lessons and social studies. The children were expected to line up quietly and “transition” between classes without goofing around… And so it began. Like the teachers, we didn’t want Will to “fall through the cracks.” But what I’ve found is that once you start looking for a problem, someone’s going to find one, and attention deficit has become the go-to diagnosis… A few weeks later we heard back. Will had been given a diagnosis of inattentive-type A.D.H.D….The doctor prescribed methylphenidate, a generic form of Ritalin. It was not to be taken at home, or on weekends, or vacations. He didn’t need to be medicated for regular life. It struck us as strange, wrong, to dose our son for school. All the literature insisted that Ritalin and drugs like it had been proved “safe.” Later, I learned that the formidable list of possible side effects included difficulty sleeping, dizziness, vomiting, loss of appetite, diarrhea, headache, numbness, irregular heartbeat, difficulty breathing, fever, hives, seizures, agitation, motor or verbal tics and depression. It can slow a child’s growth or weight gain. Most disturbing, it can cause sudden death, especially in children with heart defects or serious heart problems.

As Hruska relates in painful detail, each time the overall effects of the drugs seemed to stop working, their doctor increased the dosage. Finally, towards the middle of fifth grade, Hruska’s son refused to take anymore pills. From then on, things began to change for the better. Will is now a sophomore in high school, 6 feet 3 inches tall, and is on the honor roll.

The drugs prescribed for Ritalin and Adderall and their generic counterparts are keystones in a multibillion dollar pharmaceutical industry that profits richly from America’s growing ADHD fixation. For example, between 2007 and 2012 alone, sales for ADHD drugs went from $4 billion to $9 billion.

If America could free itself of the stranglehold the pharmaceutical industry has on our medical community, our government and our schools, we may find that our so-called “problems” aren’t quite as bad as we’ve been led to believe. As Hruska concludes:

For [Will], it was a matter of growing up, settling down and learning how to get organized. Kids learn to speak, lose baby teeth and hit puberty at a variety of ages. We might remind ourselves that the ability to settle into being a focused student is simply a developmental milestone; there’s no magical age at which this happens.

Which brings me to the idea of “normal.” The Merriam-Webster definition, which reads in part “of, relating to, or characterized by average intelligence or development,” includes a newly dirty word in educational circles. If normal means “average,” then schools want no part of it. Exceptional and extraordinary, which are actually antonyms of normal, are what many schools expect from a typical student.

If “accelerated” has become the new normal, there’s no choice but to diagnose the kids developing at a normal rate with a disorder. Instead of leveling the playing field for kids who really do suffer from a deficit, we’re ratcheting up the level of competition with performance-enhancing drugs. We’re juicing our kids for school.

We’re also ensuring that down the road, when faced with other challenges that high school, college and adult life are sure to bring, our children will use the coping skills we’ve taught them. They’ll reach for a pill.

UPDATE [4-8-13]: In response to First Amendment arguments raised by The Rutherford Institute, a state district court has dismissed charges against a Michigan cattle farmer who was cited and fined for displaying political banners critical of the Obama administration on a farming truck parked on his private 40-acre lot. The banners mounted by Vern Verduin on his farm truck proclaim “Marxism/Socialism = Hunger and Poverty” and “Obama’s ‘Mission Accomplished,’ 8% Unemployment, 16 Trillion Debt.” In censuring Verduin, Gaines Township officials alleged that his political banners violate the township’s sign ordinance, which allows only business-related signs on vehicles, restricts the size to no more than 20 square feet, and limits the time period for displaying political signs from 45 days before an election to ten days past an election. Upon review, Judge Steven Servaas of the 63rd District Court found the sign ordinance for the Gaines Township to be unconstitutional, agreeing with The Rutherford Institute’s arguments that the ordinance violated the First Amendment because it treated commercial speech and advertising more favorably than political speech. Read more here.

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The latest news from The Rutherford Institute

Attorneys for the Rutherford Institute have come to the defense of a Michigan cattle farmer who was cited and fined for displaying political banners critical of the Obama administration on a farming truck parked on his private 40-acre lot.

The banners mounted by Vern Verduin on his farm truck proclaim “Marxism/Socialism = Hunger and Poverty” and “Obama’s ‘Mission Accomplished,’ 8% Unemployment, 16 Trillion Debt.” In censuring Verduin, Gaines Township officials insist that his political banners violate the township’s sign ordinance, which allows only business-related signs on vehicles, restricts the size to no more than 20 square feet, and limits the time period for displaying political signs from 45 days before an election to ten days past an election. Rutherford Institute attorneys will appear in state district court on Friday, March 22, to challenge the township’s actions and sign ordinance as an unconstitutional violation of Verduin’s right to free speech, free expression and equal treatment under the law.

“Americans have a clear First Amendment right to freedom of political expression, whether that ‘expression’ takes place at a podium, on a t-shirt, a billboard, a picket sign, or on the side of a farm truck parked on private property as in the case of Vern Verduin,” said John W. Whitehead, president of The Rutherford Institute. “By denying this farmer the right to freely express his political views on his own property, no less, city officials have essentially done away with one of the key ingredients in a democracy such as ours, which is the right to freely speak our minds to and about those who represent us. It is our hope the courts will recognize and rectify this wrong.”

In September 2012, Gaines Township officials ordered Vern Verduin, who owns and operates a 40-acre cattle farm, to take down two political banners displayed on one of his farming trucks, which was parked on his private property. The banners proclaimed, “Marxism/Socialism = Hunger and Poverty” and “Obama’s ‘Mission Accomplished,’ 8% Unemployment, 16 Trillion Debt.”

City officials justified their demand by pointing to the city’s sign ordinance, which permits business-related signs on vehicles, restricts political signs of more than 20 square feet, and limits the time period for displaying political signs to a time spanning 45 days before an election until ten days past an election.

Standing firm in his free speech rights and insisting that politics is a year-round discussion, Verduin continued to display the political banners and signs on his private property. At the same time, the cattle farmer called on city officials to amend the ordinance in order to better respect the rights of individuals wishing to exercise their free speech rights on private property by displaying political signs. City officials refused to accommodate Verduin’s request, and in January 2013 cited him for violating the sign ordinance, which levies a $50 fine.

In coming to Verduin’s defense, Rutherford Institute attorneys are challenging the city’s actions and its ordinance as a clear violation of Verduin’s rights under the First and Fourteenth Amendments to the United States Constitution. Institute attorneys will appear in the 63rd District Court in Kent County, Michigan at 9:45 am on Friday, March 22, to request that the charges against Verduin be dismissed.

“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.”―Thomas Paine

At a time when the courts are increasingly giving deference to the police and prioritizing security over civil liberties, the U.S. Supreme Court’s ruling in Millbrook v. United States is a glimmer of hope in a sea of gloom.

Handed down on the second day of the Court’s same-sex marriage arguments, Millbrook has been largely overshadowed by the debate over marriage equality. However, this ruling should not be overlooked—not only for what it says about the need to hold law enforcement officials accountable to abiding by the law, but more importantly for what it says about the extent to which the government has given itself free rein to abuse the law, immune from reproach.

In its ruling in Millbrook v. United States, a unanimous U.S. Supreme Court concluded that the U.S. government may be held liable for abuses intentionally carried out by law enforcement officers—whether they’re police officers or prison guards—in the course of their employment. Critics of the government’s tactics hope the Court’s ruling will send a strong message to the government’s various law enforcement agencies that they need to do a better job of policing their employees and holding them accountable to respecting citizens’ rights, especially while on the job.

The facts in Millbrook are particularly egregious.

Kim Lee Millbrook is serving a 31-year sentence, reportedly for drug and gun-related charges along with witness intimidation. On March 1, 2010, Millbrook was transferred to a high-security federal prison in Lewisburg, Pa., which specializes in dealing with inmates who are highly disruptive and difficult to manage, including gang leaders. On March 4, 2010, a few days after being installed at the Special Management Unit (SMU) in Lewisburg, Millbrook and his cellmate got into a fight and were temporarily placed in a shower area. Then, according to Millbrook, three prison guards escorted him to the basement holding-cell area, where one guard choked him until he almost lost consciousness and a second guard made Millbrook perform oral sex on him, while a third guard stood watch by the door. Conveniently, no video cameras were monitoring the basement at the time of the alleged assault.

Although Millbrook claims the guards threatened to kill him if he reported the incident, he filed a complaint with prison officials, which then led to a formal investigation. During the course of the investigation, a prison physician determined that Millbrook did not show signs of having been choked, a prison psychologist concluded that Millbrook did not exhibit trauma consistent with a sexual assault, and the prison guards and Millbrook’s cellmate all testified to having no knowledge of any such assault taking place against him. Prison officials also noted that Millbrook had filed a similar complaint against guards at his previous prison, which was eventually dismissed when the charges could not be substantiated.

A non-lawyer relatively well-versed in navigating the legal system, Millbrook turned to the courts for relief in January 2011, suing the federal government for $1.5 million in damages for negligence, assault and battery and requesting a transfer out of the Lewisburg facility.

Neither the federal district court nor the Third Circuit Court of Appeals proved to be receptive to Millbrook’s argument that the prison guards should be held liable under a provision of the Federal Torts Claim Act (FTCA), which allows individuals to sue federal law enforcement officials for misconduct. As reporter Ailsa Chang explains:

Under the law, the government allows itself to be sued when a government representative commits a tort. A tort is an act done negligently or intentionally that results in injury to someone. However, if the tort was intentional, the law does not allow the lawsuit to proceed — except in cases where the defendant is a law enforcement official. And even in those cases, the federal government can be liable only if the officer was acting “within the scope of his office or employment.”

Although both courts noted that the prison guards’ alleged behavior was troubling, they ducked the issue and dismissed the case on the grounds that the federal government has sovereign immunity—that is, although an egregious wrong may have been committed by a government employee, they cannot be held liable for money damages for their behavior. Specifically, the courts reasoned that the FTCA only applies to “police officers” while they are in the process of making an arrest or seizure, or executing a search.

Undeterred, Millbrook filed a handwritten petition, in pencil no less, to the U.S. Supreme Court, and in a rare show of magnanimity, the Court agreed to hear his case and assigned a lawyer to represent him. Curiously enough, after the Court announced it could hear the case, the U.S. Justice Department—which had defended the government’s actions at every level of the judicial proceedings, including asking the Supreme Court not to take the case—did an about-face and switched its position to argue that the FTCA does apply to prison guards as law-enforcement officials.

The Supreme Court’s subsequent ruling, written by Justice Clarence Thomas, is a technical analysis of the FTCA, to whom it applies and in what circumstances. The bottom line, according to the nine justices in a rare show of agreement, is that the lower courts misconstrued the FTCA, which clearly provides for the government to be held accountable for wrongdoing carried out by law enforcement officials in its employ while on the job. (Although even the FTCA, it must be said, is notable for the many exceptions it provides to shield government officials from wrongdoing.)

Having been given the green light for his lawsuit to proceed, Millbrook still has an uphill battle ahead of him. Indeed, Millbrook has to prove to the lower courts that he was, in fact, sexually assaulted by the guards. Whether or not his allegations prove to be true, however, his case is a painful reminder that such kinds of abuses are not only par for the course in our nation’s overcrowded prisons but are often tolerated by prison officials.

Inmate Jens Soering’s insightful book One Day in the Life of 179212: Notes from an American Prison (Lantern Books, 2012), with its accounts of therapeutic beatings, rapes and the sense that one is in constant peril, may be the most vivid first-person portrait of the failure of America’s penal system to date. As Soering writes:

“Repeated anonymous surveys have determined that 20 percent of all inmates are forced to have sex each year, and 10 percent are violently raped. The overwhelming majority of these crimes are never reported: a silence maintained out of fear of retaliation from the perpetrators and because of the indifference of prison officials.  In 2004, only 8,210 sexual assaults were documented, even though correctional experts testifying at a U.S. Senate hearing in 2003 estimated the actual number of cases to range from 250,000 to 600,000per year.”

The question that we must ask ourselves is what kind of government not only turns a blind eye to such abuses but absolves itself of any responsibility for righting such wrongs?

The answer is a government whose system of “checks and balances” has given way to a concerted effort by all branches of the government, including the courts, to maintain their acquired powers at all costs. Looked at from this perspective, while Millbrook was, indeed, a welcome respite from the Supreme Court’s usual practice of giving law enforcement officials a “get out of jail free” card, it may prove in the long run to be little more than a bone tossed to a dog, a small concession amidst a sea of abuses.

Jeff Bucholtz, the lawyer who argued against Millbrook and in favor of government immunity, didn’t appear to view the ruling as much of a loss. Responding to the assertion that the Millbrook ruling ensures that the “government now has a direct pocketbook interest in stopping this kind of behavior,” Bucholtz pointed out that “FTCA judgments are paid by an unlimited fund provided by Congress, so it doesn’t hurt prison guards or their supervisors when judgments are paid out under the statute.”

In other words, it’s just business as usual, with the taxpayer forced to pay the penalty for the government’s misdeeds. In days gone by, this payment to right a wrong was called “blood money,” and it was paid by the guilty party to his victim. Could it be that the government has managed to slip the noose from around its own neck, leaving us to hang for the crime—figuratively speaking, of course? — John W. Whitehead