a citizen’s journal by Thomas Nephew

A teachable moment in which little was learned

Posted by Thomas Nephew on 1st August 2009

The “beer summit” is history; were Obama’s hopes of the Gates-Crowley incident becoming a “teachable moment” realized?  I think it’s unlikely — and whatever small amount of worthwhile learning occurred was despite Obama’s intercession and retreat, not because of it.

The incident
In my view, Obama was right the first time in saying that Cambridge PD officer Mark Crowley “acted stupidly” in arresting Henry Gates.  Of course it was also right and reasonable for a passerby seeing an apparent break-in to report that, and it was reasonable for the Cambridge PD to investigate that report — and it was unreasonable of the Harvard professor to object to that, if that’s what Gates was objecting to.  Despite all that, however, Crowley’s own incident report shows he believed early on that Gates was lawfully in the residence:

While I was led to believe that Gates was lawfully in the residence, I was quite surprised and confused with the behavior he exhibited toward me. I asked Gates to provide me with photo identification  […] Gates initially refused, demanding that I show him identification but then did supply me with a Harvard University identification card.

Once Gates presented ID sufficient to establish he was a rightful occupant of the house, that should have been the end of the story; instead, when Gates followed Crowley out onto the porch — likely still yelling, though accounts differ — he was arrested with the arch comment,Thank you for accommodating my earlier request.”

Yet it was Gates’s home and his porch; while there — actually, while anywhere, but certainly on his own property — he could be rude to and shout at whomever he likes,  including police officers, by the ancient principle of “my home is my castle,” by the First and Fourth Amendments, and even by specific Massachusetts case law.**  In one of her typically excellent analyses, digby of “Hullabaloo” sums up (emphasis added):

“Henry Louis Gates may have acted like a jackass in his house that day. But Sergeant Crowley arresting him for being “tumultuous” was an abuse of his discretion, a fact which is backed up by the fact that the District Attorney used his discretion to decline to prosecute. Racially motivated or not he behaved “stupidly” and the president was right to say so. “

Race as red herring, citizen as peon
It’s possible that Crowley was more likely to arrest an ‘uppity’ black man than an ‘uppity’ white one under the same circumstances; we’ll never know.  But I think it would have been a much more interesting discussion to take Crowley’s own documented (some would say alleged) anti-profiling expertise and/or the testimonials of his black colleagues at face value — because that would have led directly to the question why Crowley felt entitled to arrest anyone under the circumstances he described.  Unfortunately, that discussion was short-circuited first by Gates and then by Obama, both describing the case as an incident of “racial profiling” when it never really fit that label per se.

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The case of the missing half-time teacher

Posted by Thomas Nephew on 21st July 2009

French immersion, Jerry Weast, and the future of the Montgomery County Public School System

Our little girl is not so little any more: she just finished fifth grade in June.  Soon after, like many kids at the end of their elementary school years, she and her classmates went on a class trip.  Unlike most fifth graders, however, this trip was to Quebec, Canada, and my daughter and her classmates conversed in fluent French with the tour guide, hotel staff, and assorted other Quebecois.

Fifth grade class trip to Quebec: future diplomats, businesswomen,
scientists, and scholars understanding and speaking fluent French.
If this is a boutique program, it’s a triumph, and we need more of them.
Video by Madeleine Nephew.

To the right is a video Maddie took while on a guided bus tour of the city.  I took a few years of French way back in junior high school and high school.  But even back then, I think I’d have had next to no idea what the tour guide was jabbering on about.  The kids, by contrast, are understanding the tour guide, answering questions, and likely joking with and about each other — all in French.

It’s all thanks to one of the hidden gems — all too well-hidden, perhaps — of Montgomery County, Maryland’s public schools (MCPS): a French immersion program that comprises about half of the student body at Sligo Creek Elementary School in Silver Spring.  The program is one of seven K-5 language immersion programs in the system. *

Language immersion programs are exactly what they sound like: kids are dropped into a kindergarten setting in which the teacher speaks only French from the time the kids walk into the room until the time they leave for home.  By the end of kindergarten — much sooner, really — they’re doing all the things any kindergartener does: lining up for lunch, singing songs, drawing pictures, starting to read stories — all while instructed in French.  And by the end of fifth grade, they’re doing much more sophisticated projects; for her part, Maddie did one on “la lutte pour le vote des femmes americaines” — a nicely written, five page poster history of American women’s struggle for the vote.

The case of the missing half time teacher
While looking over the MCPS web site one evening in January, my wife came across a “Q&A” exchange (between school board members and MCPS staff about the 2010 budget.  Question 10 read: “Will the reduction of 8.7 elementary special program teacher positions impact the French Immersion classes at Sligo Creek Elementary School?” The answer — unbeknownst to the school administration until my wife told them about it — was yes, but don’t worry about it too much:

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The greening of Van Hollen

Posted by Thomas Nephew on 18th July 2009

A couple of weeks ago, I got an email from Chesapeake Climate Action Network (CCAN) that read, in part:

Thanks to your hard work, the American Clean Energy and Security Act passed 219-212 in last Friday’s historic vote. Although, as we’ve said, key features of the bill fall short of what scientists say is urgently needed, there were several members of Congress who emerged as true climate leaders — including Congressman Van Hollen. Congressman Van Hollen is on a well-deserved recess until July 6th but I want to make sure he hears from his constituents when he gets back. That’s why on Tuesday, July 7th, I plan to hand-deliver a giant thank you card to his office. (Care to join me? Just email me)…

I decided against joining in on the giant thank you card. But I think the story of just how Congressman Van Hollen got the “climate leader” accolades and “climate herogala festivities CCAN has been bestowing on him is worth telling.

Gordon Clark, the 2008 election, and “cap and dividend”
In last fall’s election, Representative Van Hollen was opposed by (among others) Green Party candidate Gordon Clark — whom I supported. Van Hollen is a personally popular liberal Democrat elected in something of an uprising against local moderate Republican Connie Morella in 2002; he’s not hurting for campaign funds, and many in the area are proud he’s chair of the Democratic Congressional Campaign Committee — despite Van Hollen’s association with the disappointing Democratic “opposition” to Bush between 2002 and 2008.

Clark, a long time activist in and director of peace and environmental movements,  campaigned hard and turned in a strong debate performance — which Van Hollen couldn’t attend due to the emergency bailout vote the same evening.  On Election Day Van Hollen easily outdistanced both Clark and his Republican challenger.

But the Clark/Green Party campaign was influential nonetheless; as often happens with third parties, they peel off some activists, they serve as an important source of ideas, and they can win some important skirmishes even if they wind up losing the contest. In this case, the skirmish Clark won was one for the endorsement of an influential local political group, Progressive Neighbors. In a very surprising development (covered on this site), Clark tied with Van Hollen after a kind of “mail-in debate” — the only debate of any kind between the two candidates in the campaign. Clark had parried Van Hollen’s less coolly composed letter with point after point detailing Van Hollen’s lack of leadership, especially on the financial crisis, peace, and environmental issues.

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On Broder’s “Stop Scapegoating”

Posted by Thomas Nephew on 27th April 2009

We have, in my view, a fairly simple set of connected propositions:

  1. Torture is illegal under United States law and international law.*
  2. The United States of America knows of Americans who have committed torture, as well as of Americans who have conspired to commit torture.**
  3. The United States of America is required by U.S. statute and international treaty to prosecute such crimes when it becomes aware of them.***

It’s really all over but the shouting and denials when you set these propositions next to each other.

Of course, shouting and denials there will be.  But while I’d expect it from borderline psychopaths like Karl Rove, Rush Limbaugh, and Dick Cheney, it remains unsettling to see it from David Broder, who this weekend penned the most shameful editorial of a once illustrious career. Broder’s Sunday “Stop Scapegoating” piece is a kind of negative Gettysburg Address: a radical downward redefinition of the American creed.  His lazy, deeply dangerous argument against prosecution boils down to one irrelevant canard, one telling assertion, and one pitiful abdication of what it means to be an American citizen.

Accountability cloaks vengeance – so no accountability
Broder’s irrelevant canard comes early in the piece in guessing at the motives of those who want prosecution, and pretending that should matter:

Obama is being lobbied by politicians and voters who want something more — the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps — or, at least, careers and reputations. Their argument is that without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

As hilzoy writes, “First, who died and made David Broder Sigmund Freud? How on earth does he presume to know what the actually motivates those of us who think that the people who authorized torture should be investigated?” But also: So what? Suppose our “plausible-sounding argument” is actually true: “without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations.” In that case, by not investigating torture now, we would be setting ourselves up for future government lawbreaking. Isn’t it obvious that preventing this matters more than anyone’s motives?”

Everything was done properly
But Broder’s most telling assertion — and, in the context of the rest of his opinion piece, the most deeply shameful one — comes next:

The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places — the White House, the intelligence agencies and the Justice Department — by the proper officials.

Let’s assume Broder was right (although he isn’t****).  Would that be sufficient?
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Of searches, seizures, the society we want, and the rights we have regardless

Posted by Thomas Nephew on 11th February 2009

Another point of view about license plate scanners, followed by my response.

You’re going to have to come up with something better than the Fourth Amendment if you want the Constitution to support your position. Unreasonable search and seizure? I’m sure you’re not referring to “seizure” so “search” must be the issue. You want to try to craft a definition of “search” that fits here? I can’t.


From my perspective, the license plate scanner issue is one of surveillance and data protection.  Those issues are not just about what is and is not narrowly permissible to the police and the state, but about what our rights should be. Those rights were not exhaustively described by the Constitution or the Bill of Rights — how could they have been, by people who had no inkling of computers, video surveillance, GPS systems, etc.

I believe that the plain spirit of the Fourth Amendment and the Bill of Rights supports my view that license plate scanners represent an unreasonable search or seizure of information.

But whether I’m right about that or not, we still have the right to choose a less-surveilled, less abuse-prone society over a more heavily surveilled one. We can decide what kind of community we want. And I should think the burden ought to be on those who want more surveillance, not those who want less of it.

I’m not a legal expert (obviously, many will snort). I just try to reason out how my fundamental rights are or are not protected by what I see happening. I understand the counterarguments — you won’t need to repeat them — but the “search” or “seizure” of my “effects” that I see happening takes place at the time my license plate identification is compared to a database, for no reason other than that a squad car rolled past my car. (I use both words only because while it seems more like a “search” to me, some legally trained people I’ve talked to say it’s perhaps more of a “seizure”.)

But even if license plate scanning is permissible under the 4th amendment, as narrowly understood and adjudicated today, I’m more concerned with the anti-surveillance spirit that caused that amendment to be written. We fought a revolution once, among other things to be rid of unwarranted intrusions and chilling oversight, to be able to stand up and say we’re a free people, secure in the knowledge that we control and monitor our police and our government, not the other way around.

I like that spirit better than one seeking to justify “security” measures of little value. I hold out hope that we’ll either reject this particular security measure, or very, very strongly regulate its use.

EDIT, 9/22/10: ‘that amendment’ for ‘them’.

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License plate scanners coming to a community near me

Posted by Thomas Nephew on 13th January 2009

Last month I happened to open an email on a neighborhood listserv I follow.  It was a Takoma Park Police Department press release titled “Takoma Park Police to Acquire License Plate Recognition Scanner.”  The announcement was as follows:

Chief Ricucci is pleased to announce that the Takoma Park Police Department has been granted funding in FY2009, through the Governor’s Office of Crime Control & Prevention (GOCCP), for a “License Plate Recognition Scanner (LETC).”

LETC is attached to a police cruiser. It works by capturing digital license plate images as they pass a camera, whether mobile or fixed. The plates are automatically cross-checked in real time against multiple local, regional, statewide and, if appropriate, national databases to identify vehicles that are of interest to the authorities. In fact, LETC can access multiple databases simultaneously and report not only matches but which database contained the vehicle of interest. Vehicle matches are reported instantly, allowing the officer to take appropriate action. […]

Research has shown that patrol officers equipped with the technology can have arrest rates significantly higher than officers working without it. This will deliver reductions in crime, enhanced community safety and safer roads.”

It turns out that “LETC” is not a technical acronym, but merely a funding source — it stands for “Law Enforcement and Corrections Tech Center” (and is therefore sometimes abbreviated LECTC), which is a federal funding mechanism (via the Department of Justice) for law enforcement technology grants such as this one.  The Maryland Governor’s Office of Crime Control & Prevention (GOCCP) receives LETC funds and disburses them to grant applicants deemed worthy of support; I’ll return to that in a moment.

This kind of program is something security expert Bruce Schneier calls “wholesale surveillance,” and it’s spreading fast.  Possibly the best known example is New York City’s “Operation Sentinel” scanning license plates coming into Manhattan via bridges and tunnels; in August 2008, WJZ (Baltimore) reported that a $4.5 million Homeland Security grant will pay for about 200 of the devices (either fixed or in squad cars) in the Maryland/DC area.

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Risen and Lichtblau vs. Keller vs. Bush

Posted by Thomas Nephew on 5th January 2009

On the occasion of Mark Felt’s (a.k.a. “Deep Throat” of Watergate) recent death, the Washington Post’s former executive editor Leonard Downie pondered whether breaking another Watergate story “could happen again,” and confidently concluded — what with prepaid cell phones, bloggers, whistleblower protection laws and all — that it could, and faster than ever: “Nixon was re-elected five months after the burglary in 1972, and Watergate was not much of an issue during the campaign. That would not happen today.”

But it did.

The NSA warrantless surveillance story —  lawbreaking arguably even more serious than Watergate, and also directly at presidential command — was ready to go before the 2004 election, but far from becoming the critical election issue it deserved to be, it was delayed for more than a year.

My timeline* of the events related to the NSA warrantless surveillance program and its reporting, and my rereading of a lot of secondary reporting, convince me that while there were many contributing factors to the Times’s failure, the most important ones boiled down to one thing: the news leadership at the  New York Times — executive editor Bill Keller, Washington bureau chief Philip Taubman — put an appeasing, fearful kind of politics ahead of reporting a critically important story.  Their own statements and actions indicate they were more concerned — much more concerned — with adapting to and accommodating events than in reporting them.

“There’s more there”

“There’s more there…. There’s talk of indictments over at the Justice Department. Whatever’s going on, there’s even talk that Ashcroft could be indicted.”
— Eric Lichtblau, “Bush’s Law,” p. 186-187,

Eric Lichtblau
Eric Lichtblau (standing, center), DCDL/firedoglake
“Bush’s Law”book discussion, 5/13/08.
Originally uploaded by Thomas Nephew.

Times reporter Eric Lichtblau says a tipster told him the above sometime in 2004; assuming that the tipster is in fact former Thomas Tamm, a recent Newsweek story by Michael Isikoff (“The Fed Who Blew the Whistle“) pinpoints the timing to “spring 2004” and “eighteen months before the [mid December, 2005] Times report.” While his name has been in the news at least since an FBI raid in 2007, Michael Isikoff’s December Newsweek story  confirmed Tamm was Lichtblau’s whistleblower; with elements of Isikoff’s story matching elements of both James Risen’s and Eric Lichtblau’s accounts.

As the “eighteen months” figure indicates, though, Tamm’s risky whistle-blowing took a long, long, long time to turn into the “Bush Lets U.S. Spy on Callers Without Courts” story Lichtblau and Risen published to the Internet on the evening of December 15, 2005.

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How that worked out: an election followup

Posted by Thomas Nephew on 4th December 2008

My yard signs, Election ’08
Results: lost, wouldn’t want to bet a great
deal of money on it, lost, ongoing (Purple
Line, a transit proposal).
Originally uploaded by Thomas Nephew

A look back at at my ticket-splitting, effort-splitting, and other split decision-making in the 2008 elections.

Virginia Senator Jim Webb had one of the memorable quips of the campaign in October. Speaking in Roanoke to an Obama rally, Webb said McCain’s choice of Sarah Palin for veep reminded him of the line from a country song, “I know what I was doing, but what was I thinking?”

Whatever McCain’s motivations were, though, my own choices might seem equally hard to explain.  I wound up working hard for a vice presidential candidate who was instrumental in passing the Bankruptcy Bill; for a presidential candidate who went back on his word and voted for a FISA Amendment Act featuring telecom company immunity, and who arguably took the oxygen out of a favored candidate’s campaign when he promised to stick to a publicly financed campaign — which he obviously did not do.

I thereby worked on behalf of a party that had effectively abandoned opposition to the Iraq War in 2007 — despite sweeping back to power on that promise — and on behalf of a party that had stonewalled pleas to hold the architects of that war, of torture, of warrantless surveillance, and more accountable by impeachment.

Meanwhile, though, I joined in a campaign for Gordon Clark, a Green Party candidate who wound up with around 2 percent of the vote.  I supported that campaign with time, writing, and even some money — with the net effect, particularly of the writing, perhaps making me persona non grata to a Congressman I’d frequently praised on this site.

So what do I have to show for it?  What explains the mixture of satisfaction and regret I feel?
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What trumps a pardon?

Posted by Thomas Nephew on 10th October 2008

In one very important way, impeachment does — and maybe soon.

The news was quickly buried under an avalanche of financial crisis, Palin, debate, and election horse race stories, but it was significant all the same.  In late September, Murray Waas reported in that Department of Justice investigators were zeroing in on former Attorney General Alberto Gonzales’s July 24, 2007 testimony to Congress.  In this testimony, Gonzales asserted that in a critical March 10, 2004 meeting — immediately prior to the notorious “hospital confrontation” between Comey, Ashcroft, Gonzales, and Card — a key group of Congressional members privy to intelligence secrets* shared a “consensus” with Cheney, Addington, and Gonzales that the NSA’s warrantless surveillance program described to them should go forward.

Unfortunately for Gonzales, this assertion was denied** by many of the congressmembers involved. Waas:

Gonzales said that he had told the congressional leaders “in the most forceful way that I could [about] … the disagreement that existed.” Gonzales said that in response to that, there had been a “consensus in the room” from the legislators, “who said, ‘Despite the recommendation of the deputy attorney general, go forward with very important intelligence activities.’ ”

This assertion that there had been “a consensus” is currently under investigation by the Justice Department’s inspector general as possible perjury or as a false statement under oath.

According to Waas, Gonzales also developed after-the-fact “notes” on the March 10 meeting, at the direction of President Bush; beginning with one sentence(!) , jotted down on March 11.  Gonzales asserted he wrote up the remainder of his notes on the March 10, 2004 meeting “the following weekend,” i.e., March 13 and 14.

But on March 11, when he renewed the NSA warrantless surveillance program, Bush could only have had Gonzales’s say-so and the alleged one sentence note as “documentation” of Congressional acquiescence.  According to accounts like those by the Washington Post’s Barton Gellman, Bush finally modified his March 11 order on March 19 — well after being informed by Comey, on March 12, of likely widespread resignations at the Department of Justice should the program continue in its prior form.

The NSA warrantless surveillance program may well have always been an impeachable offense.  Its continued approval through March 19, 2004, despite the March 12th disapproval of Acting Attorney General Comey — was even more certainly one, at least in my view and that of many others.  Should the March 11th reapproval have been based on evidence of congressional “acquiescence” known to be false or even suborned, that would be yet further grounds for Bush’s impeachment.

But I think it’s also crucial that by feigning that evidence — and by restating that lie in his July 24, 2007 testimony before the Senate Judiciary Committee — Alberto Gonzales can be impeached as well. And there’s nothing President Bush could do to stop that — not even a pardon.

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Sachs Report on Maryland State Police surveillance: rein in database abuse

Posted by Thomas Nephew on 2nd October 2008

In “Review Assails Spying in Md. By State Police,” the Washington Post’s Lisa Rein reports:

The Maryland State Police “significantly overreached” when they spied on peaceful opponents of the death penalty and the Iraq war and were oblivious to their violation of the activists’ rights of free expression and association, an independent review concluded yesterday.

Calling the 14-month monitoring during the administration of then-Gov. Robert L. Ehrlich Jr. (R) a “systemic failure,” former U.S. attorney and state attorney general Stephen H. Sachs said the police violated federal regulations and showed a “lack of judgment” when they entered personal information about some activists into a federal anti-terrorism database.

(Emphasis added.)  This was the part of the scandal I singled out for scrutiny in late July when the story broke (“Maryland police surveillance: “Case Explorer” and civil liberties“), and I’m pleased to see it got detailed attention in the Sachs report.

From that report (“Review of Maryland State Police Covert Surveillance of Anti-Death Penalty and Anti-War Groups from March 2005 to May 2006“; .PDF, 149 pages, link added):

Second, MSP [Maryland State Police -ed.] violated federal regulations when it transmitted some of its investigative findings to a database maintained by the Washington-Baltimore High Intensity Drug Trafficking Area (HIDTA) program, a federally-funded initiative to promote cooperation and information-sharing among federal, state, and local law enforcement agencies. Regulations promulgated by the United States Department of Justice permit MSP, when participating in the HIDTA project, to collect and maintain intelligence information concerning an individual “only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.” See 28 C.F.R. § 23.20(a). Again, no such reasonable suspicion existed with respect to the investigation at issue here. To its credit, in late 2005 MSP discontinued, on its own initiative, its practice of sharing this type of information with HIDTA. […]

While the MSP employees with whom we spoke recognized that the individuals and groups under investigation here were not “terrorists,” under any reasonable and accepted definition of that word, none who were aware of the use of the designation seemed to consider that a government agency’s decision to label someone a terrorist, particularly when that label is included in an external database, could cause serious harm to that person’s reputation, career, and standing in the community.

While this is absolutely no reflection on Mr. Sachs’s excellent report, that last part seems so implausible that I wonder if any of this was based on depositions under oath; if not, that’s a step I would then hope is not long in coming.*

Setting that aside, the Sachs report provides a wealth of information about the decision to use Case Explorer, and the ramifications of that decision; I’ll be studying that part of the report and writing about it separately.

Meanwhile, Sachs recommends that the Maryland State Police “formulate binding regulations that govern covert surveillance of “advocacy” or “protest” groups” which respect their constitutional rights.  But Sachs also makes several specific database- and “Case Explorer”-related recommendations (emphases added):

2. MSP should establish standards for the collection and dissemination of criminal intelligence information; provide for periodic auditing of the contents of MSP’s intelligence database; and require that information inappropriately entered as criminal intelligence information be purged promptly and that other information be purged on an appropriate cycle. Numerous law enforcement agencies around the country, including in Maryland, have promulgated regulations that address these issues. In Section IV below, this report identifies several models from which MSP may choose to draw.

3. MSP should revise, and possibly discontinue, its use of the Case Explorer database in connection with its intelligence-gathering activities. If funds are available, it should separate its criminal intelligence database from the information that it maintains in Case Explorer for other purposes. As presently employed by MSP’s Homeland Security and Intelligence Division, Case Explorer encourages the overinclusion of individuals and groups in the database, does not facilitate supervisory review of ongoing investigations, and, for a variety of technical reasons, frustrates the troopers, civilian analysts, and supervisors who have to use it on a regular basis.

He also recommends that MSP allow surveilled individuals who aren’t suspected of violent crime to see their files and then purge those files.

These recommendations echo those by constitutional law professor Jack Balkin in “The Constitution and the National Surveillance State”, which I outlined in my “Case Explorer and civil liberties” post: “…create a regular system of checks and procedures to avoid abuse … stop collecting information when it is no longer needed … discard information at regular intervals to protect privacy.”  If the Sachs recommendations are enshrined in state law and regulations, Maryland will have turned an deeply disturbing civil liberties failure into a historic civil liberties success, one that can show the way for other states and even the nation.

I’ll be forwarding these comments to all of my Maryland state representatives, and to any others who seem to have a role to play in enacting reforms.  I hope other Maryland citizens will add their voices in support of the Sachs recommendations.

* UPDATE, 10/2: Sachs notes that he could not take testimony under oath, but got full cooperation from the MSP.  From the introduction: “As you know, I was not asked to conduct a formal investigation.  I had no power to issue subpoenas and no authority to take testimony under oath.  That said, my colleagues and I consider it important to note that we have received full cooperation from the State Police in [making MSP personnel] available for interviews, and giving us full access to all of the many documents we sought to examine…”

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