( – promoted by Jack McCullough)

UPDATE: Here's the VIP attendee list from the Edwards site: Ben Cohen, Kevin Leahy, Matt Dunne, Doug Racine, and John Campbell.  I'm certainly planning on showing. -odum

Good morning Friends:

I'll have more details later, but here is the gist:

This Saturday  (5th of January) a group of Vermonters will be banding together and heading to New Hampshire to canvass for John Edwards.

Here are the tentative details: Meet in Lebanon New Hampshire at 9 a.m. Begin canvassing around 10:00 a.m.

There will be a Vermonter kick-off event at 9:00 a.m. hosted by Ben Cohen of Ben & Jerry's .

January 5, 2008 – 9:00 AM
Lebanon Canvass Kick-Off
Rivermill Commercial Center
Building #5, 85 Mechanic Street
Lebanon, NH

There may also be a rally/event with John Edwards in the early afternoon in the river valley area although that is in flux and I do not expect to see final plans until after the Iowa caucus.

More info, and a Wednesay evening update, below the jump

I expect the Edwards campaign will have more on the itinerary later. 

I will post more details as we come closer to Saturday. I will link to emerging/final details as soon as they are available.

I hope you can join us and help on “Vermonter Day” in New Hampshire.

There are plenty of opportunities (read: “all help is greatly appreciated”) between now and Tuesday.  Vermonters for Edwards, who cannot volunteer on Saturday, are welcome all other days too!

Contact me directly at caoimhin [underscore] laochdha@verizon.net for more information.  Better yet, the Edwards for President event information page is http://www.johnedwards.com/nh/events/ .

———————

[UPDATE: Wednseday at 8:00 p.m.] In addition to the information Odum put up earlier:

Manchester, NH – As John Edwards' momentum builds in Iowa and New Hampshire, the Edwards for President campaign today announced the endorsement of 13 Vermont elected officials, labor leaders and progressive activists including Ben & Jerry's co-founders Ben Cohen and Jerry Greenfield. The Vermont leaders have committed to work to ensure John Edwards wins the Vermont primary, and a group of them will travel to New Hampshire on January 5th to hand out free ice cream and build campaign momentum for the New Hampshire primary.

“John Edwards has the backbone and integrity to stand up to wealthy, powerful interests and deliver the real change our nation needs,” said Ben Cohen. “We're proud to stand with him in this fight.”

The following Vermont leaders support John Edwards and will work to ensure he wins the Vermont primary:

    * Ben & Jerry's co-founder Jerry Greenfield
    * Former Vermont Lieutenant Governor Doug Racine
    * State Representative John Moran
    * State Representative Dexter Randall
    * State Representative Chris Pearson
    * President of Champlain Valley Labor Council/President National Writers' Union/UAW 1981 Jerry Colby
    * Secretary-Treasurer of Teamsters Local 597 Ron Rabideau
    * Vermont Labor Activist Connor Casey,Immediate past president Vermont State AFL-CIO Federation Teamsters Daniel Brush

Also, thank you to Greenvtster for the directions.

Full press release from Edwards campaign is right here.

——————————— 

Sláinte,

-cl 

I like snow. 

For the past decade, my neighborhood has been snow deprived, relatively speaking, to the first nine+ decades of the 20th century.

This past weekend was closer to what I expect Vermont to be in the winter.

Take a wintery look after the jump.

Here is the view from my porch Monday morning (yes that's 19″).  This was the “left over” snow from Sunday's storm (followed by a couple hours of serious wind), as of 7:00 a.m.  

Since Vermonters mostly talk about politics when we are fed up with talking about the weather, let me ask you this: how is your weather today? Take any good pictures of the storm.

Let it snow!

–cl

BTW, please don't tell my wife, but I forgot to store the deck table (see above) in the shed for the winter.

Despite the Governor being a serial offender of political double standards and hypocrisy, States Attorney Sand obviously showed mercy. With a seemingly lost cause/lost soul Republican-American Governor pleading for a second, third, forth(?) fifth just one more chance to get on the straight-and-narrow with public opinion, Mr. Sand generously offered to give a lost political soul another really big chance.

Sand exercised judicious political discretion in allowing the Governor to enter in a Political Opportunists in Trouble Diversion program (“P.O.T.dirv.”) despite a questionable showing of remorse or likelihood of rehabilitation.

Bless him.

take a hit after the jump. . .

With the State police, the AG's office and the U.S. Attorney's office all apparently not returning his calls and giving him the cold shoulder, not to mention that (“grass-is-always-greener-on-the-Republican-side-of-the-sentencing- fence-political-hypocrisy-problem), the Governor was, begrudgingly,  showing signs that he was learning his lesson or at least wanted to beat a quick retreat. 

Particularly considering (from the Valley News):

By now, it's a little hard to tell exactly what it is that Vermont Gov. Jim Douglas objects to in the decision by Windsor County State's Attorney Robert Sand to refer a controversial marijuana case to court diversion rather than pursuing a felony prosecution.

Is it that he believes Sand's decision was tainted by his personal views that marijuana ought to be decriminalized? Or is it that Douglas believes the defendant got preferential treatment because she is a lawyer? Or does the governor think the marijuana laws are not being enforced equally throughout the state?

Douglas has raised all three objections to Sand's handling of the case of Martha Davis, a Windsor lawyer who was charged last month with possession of 36 marijuana plants and more than two pounds of dried marijuana. The fourth possibility, of course, is that Douglas' outrage was fueled by partisan politics, a suspicion that unfortunately gained credence with the disclosure last week that a similar case in Orange County involving 110 marijuana plants was referred to diversion without so much as a raised gubernatorial eyebrow.

Indeed, the only salient difference we are able to discern in the two cases is that the prosecutor in Orange County is, like Douglas, a Republican, and Sand is a Democrat. [Surprise, Surprise Surprise,  Sergeant!]

So with the Governor's political liabilities piling up, Bobby Sand obviously felt the time was right for a little Solstice Season Clemency for the reeling Governor

With he Governor grasping for ANY weed straw to find his way out of the hole he dug for himself, Bobby Sand generously forwarded a prosaically straight-forward email that merely said, in effect, “Like, Dude, if you thought I had a blanket policy, I don't. But no harm no foul, man.”

The governor lurched for that escape hatch like a stoner going for a pint of Chunky Monkey. Next thing we see, by return email, the Governor had quickly retreated, back-tracked, reversed, double-flipped and did an about face so fast it twisted his pants up another four inches closer to his armpits.

Turns out, the Governor now claims, Bobby Sand is “doing the right thing” and the Governor is therefore “willing” (**cough, cough**) to abandon his lead balloon directive that no one in State Police, the AG's office or the U.S. Attorney's office was looking to see take a trial flight in the first place.

Don't suppose public opinion coming out overwhelmingly in favor of Bobby Sand's position, and against the Governor's, had much to do with this either, ya think?

There are all kinds of substances to which we are exposed at some point in our lives. Properly employed, many substances are beneficial and can have positive, productive or healthy side effects.

However, when abused, they can have tragic consequences for the substance abuser. When substance abuse affects an entire community, an entire neighborhood can go downhill fast.

In Vermont, we are seeing an epidemic of substance of abuse. The substance being abused is power and the substance abuser is our State government.

The quality of life in our civic neighborhood is deteriorating as a result of the addictive and destructive behavior of a power abusing state.

Why Vermont needs an intervention, after the jump.

There are only a few weeks to go before Vermont's version of its Proposed Prescription Monitoring System regulations will be up for legislative review. We now learn that the State Police are flexing their patient profiling muscle by conducting a fishing expedition of people receiving an entire class of medication.

The fact that the State Police would enter a pharmacy and demand to access pharmacy records pursuant to 42 Vermont Code Section 4218 despite no specific complaint or information regarding a violation of law, is a police state obscenity.

How did we get here?

The Vermont Prescription Monitoring System (PMS) is pending in the regulatory and final legislative review and approval process. PMS is a program established by a new Vermont law inspired by a promised grant from the Bush administration Dep't of Justice. It was diaried by GMD here.

The PMS was also developed against the backdrop of legislative consideration of repealing 18 V.S.A. § 4218, which is the statute the Vermont State Police recently upon in their recent confiscation of the highly personal, confidential and sensitive records of prescription medications dispensed to many Vermonters suffering from all types of ailments. When the General Assembly, in 2006, considered repealing §4218, the Vermont State Police submitted this argument to the legislature:

[State Police] officers only access pharmacy records pursuant to section 4218 in response to a specific complaint or information of a possible violation of law. Section 4218 is not used in an unfettered manner to search randomly through records looking for possible crimes. Generally, diversion officers receive information concerning illegal drug use involving prescriptions from a pharmacist or physician. When a diversion officer does seek access to pharmacy records, he/she only accesses patient-specific information related to the complaint and does not conduct a more general review of pharmacy records. . . [emphasis added, see page 6]

From its representations to the legislature, it seems the Dep't of Public Safety has a great deal of respect for Vermonters’ privacy rights when the General Assembly considered the repeal of an intrusive statute such as §4218. However, when the General Assembly is out of session and the PMS regulations look like they are about to be adopted, the Dep't of Public Safety's view on patient privacy seems, shall we say, a bit less guarded.

Consider this, when §4218 was challenged unsuccesfully before the Vermont Supreme Court, Justice Denise Johnson said:

One of the great conservative justices of the United States Supreme Court once observed that “[t]he history of liberty has largely been the history of observance of procedural safeguards.” McNabb v. United States, 318 U.S. 332, 347 (1943) (Frankfurter, J.). The requirements of probable cause and valid search warrants are surely among the most valued procedural safeguards against unreasonable searches and seizures contained in our constitution. An insistence upon the observance of these requirements is one of the principal defining qualities between totalitarian governments and governments devoted to the protection of the liberties of free men and women. Today's decision, albeit motivated by a well-meaning desire to curb the abuse of prescription drugs, represents a perilous step away from these constitutional values. State v. Welch at page 89

Unfortunately, we the people of Vermont, the General Assembly and the three Justices on the Vermont Supreme Court who ruled in favor of §4218 did not heed Justice Johnson's warning in 1993. Heeding Justice Johnson's history lesson in the 1990s might have made it more difficult for the Dep't of Health and the Dep't of Public Safety to go hog-wild in breaking down any semblance of respect for liberty's “observance of procedural safeguards.”

Consider the context in which this past week's outrage, committed by the Vermont State Police against the privacy rights of Vermonters, occurred. The PMS legislation was extremely specific in the type of information that the State of Vermont will be allowed to collect when monitoring Vermonter's use of prescription medication. The statute only allows the Dep't of Health to collect the name of medicine prescribed and (1) a patient identifier, which may include the patient's name and date of birth; (2) drug dispensed; (3) date; (4) quantity dispensed; (5) days' supply; (6) name of health care provider. (18 V.S.A. § 4283).

The proposed rules, if adopted, will require pharmacists to provide information on prescriptions beyond the scope of the personal information that the legislature authorized. The unauthorized information the Dep't of Health is attempting to force pharmacies to surrender includes: a patient’s complete address, a National Drug Code Number, the number of refills prescribed, the prescriber’s DEA number and including suffix if applicable, the particular dispensing pharmacy, a patient's source of payment, if the “patient” is an animal, then the report shall indicate the animal's' name and species and the owner’s full name, date of birth and complete address.

The level of mission creep is troubling on many levels. This is but one – among dozens of proposed regulations – where the State is demanding to overstep its legal authority, yet the program is not even in place. It shows that privacy rights, and legal protection of privacy rights are not a primary concern, if they are a concern at all. It also demonstrates a flagrant disregard for the legislative process.

The legislative process is the one place where the citizens of Vermont have at least a shot at influencing the policies and laws that govern their everyday lives. The committees that considered PMS spent a great deal of time developing a list of information they would permit the Dep't of Health to consider while monitoring Vermonter's use of medication. The House and Senate committees also took testimony and determined the absolute maximum amount of information necessary and appropriate to be collected for the drug monitoring. Vermonters made the effort to speak out and be heard by their representatives in Montpelier, and their elected representatives placed some safeguards and compromises into PMS as a result.

Because Vermonters spoke out to their elected officials, the legislature placed some minimal procedural safeguards in place before passing the PMS. The Dep't of Health obviously did not get the message. The Dep't of Health's attempt to implement PMS demonstrates no interest in “observing the procedural safeguards of our liberty” about which we have been warned. The proposed PMS regulations will come before the legislative committee on administrative rules in the next few weeks. I will keep everyone posted. I will invite everyone to attend and post more information about this issue in the interim.

————————————————-

Finally, a prediction — Expect to hear, at some point, the false claims that this most recent outrage against our privacy rights – the taking of Vermonters' medication records – is a critical component to fighting the misnamed “war on drugs.”

This is not part of a “war on drugs.” This is war on sick people.

Sick people, not criminal suspects, had their records searched and seized without cause or without a warrant. Sick people are the victims of this state action. The Vermonters who had their confidential medical records searched and seized by the state of Vermont are our family members, our neighbors and, most likely, people reading this diary. If this is in fact a “war,” the police, the Douglas administration (and the health department since this was done under the authority of laws under its jurisdiction), have serious explaining to do. The first public official who says this is necessary to fight a war on drugs is really saying they have just declared war on every sick Vermonter, and every Vermonter who has been sick, and every Vermonter who might someday be sick and every Vermonter who once believed that their constitutional rights meant anything. This is not a war on drugs, this is a war on Vermonters.

The fact that no warrants were issued and no crimes were identified shows that this is an attack on the privacy rights and an intrusion into the medical care of sick people, not a war against drugs.

Please see JD's earlier post on this topic for  background. 

In a nutshell, the owners of the iBrattleboro website (an interactive computer service) are defendants in a lawsuit.  The Plaintiff alleges that the owners of iBrattleboro are responsible for damages caused by content posted on iBrattleboro by a third party.

The suit is going nowhere relative to iBrattleboro & its owners.

The owners of the iBrattleboro website are immune from liability in this situation.  Federal law requires that the claims against iBrattleboro's owners must be dismissed.  Why is this case meritless and why must it be dismissed without further proceedings? . . . below the fold . . .

The following are the facts as I understand them.  I will paraphrase them and I will assume the facts & allegations – as reported thus far – are true for the purposes of the legal issue raised in this discussion.  In fact, I do not care which allegations are true, to what extent they are true or what the bigger context is. The issue to me is liability and the status of the law.  Therefore bear with me and let's assume for now that everything you read in the papers (**cough, cough**) is true. (If Mr. Dunn's attorney or the Plaintiff's attorney wishes to email me with supplemental information or comment here at GMD, they are welcome to do so.  I'm sure we'd all love to learn more about this).

Here goes:

1.  Plaintiff Effie Mayhew is suing David Dunn, and iBrattleboro owners Chris Grotke and Lise LePage for damages caused by what the Plaintiff claims is libel committed/pubished at iBrattleboro.  Mr. Dunn and the owners of iBrattleboro allegedly committed the libel according to the Plaintiff.

2. Dunn posted a comment at iBrattleboro claiming the Plaintiff was flagrante delicto with a co-worker to whom she maintained no state licensed carnal privileges (i.e. they were not married). FN1

3. The Plaintiff says she was not fishing (being fished?) off the company pier. She further states that Dunn’s claims, that she defiled the sanctity of anyone's marriage, are false; and she claims damages in her complaint. FN2

4. iBrattleboro is a website/blog/forum for citizen journalists.  It publishes news.  iBrattleboro also provides a forum for people to submit comments.

5. Most people agree that iBrattleboro is cool, however, that is subjective.

6. Comments to iBrattleboro are third party generated content by registered users.  iBrattleboro and its owners do not edit, modify or promote the content supplied by users within the comments sections.

7. Chris Grotke and Lise LePage neither edited, modified or otherwise contributed to or directed the writing of Mr. Dunn's statement about the Plaintiff.

8. I do not know what iBrattleboro's “Notice and Take-down Procedure” is. Typically notice and take-down procedures allows persons who see their copyrighted material, libel, trademarks etc. used improperly to contact a website's owners.

9. Upon notice of the potentially libelous nature of Mr. Dunn’s comment, iBrattleboro took the “offending” comment down. (It is not clear to me how iBrattleboro’s owners became aware or when they became aware of the offending comment).

Finally- fyi – under Vermont law, libel is tort recognized where there is "(1) a false and defamatory statement concerning another person; (2) negligence, or greater fault, in publishing the statement; (3) publication to at least one third person; (4) lack of privilege in the publication; (5) special damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory damages."

Just for fun, let's also assume and I will state in my personal opinion, that Mr. Dunn's comment was libelous.  I will therefore refer to Mr. Dunn's comment as libel. The point being, regardless of whether Mr. Dunn's comment is libelous, that does NOT impact on whether the owners of iBrattleboro have any liability to the Plaintiff.

Here is the issue. 

Information content providers are liable for the information they generate.  I am responsible for what I publish at GMD or what I personally write in the comments at any particular blog, for instance.  If readers comments below, those readers and I shall be "information content providers." We will all be responsible for what we individually publish, and we are all answerable to anyone who happens to get the vapors from what we write.  The key is that by writing this, I am a "content originator."  I am therefore the liability magnet for anything I say, as it should be.  I am not, however, responsible — nor is GMD — for any of the comments any reader affixes to this post.

The Communications Decency Act, in addition to its unconstitutional parts regarding "decency," states that: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The way courts read the CDA and apply its immunity generally works like this.

(a) Immunity from liability applies to a defendant (e.g. iBrattleboro) who is

(b) the provider of an interactive computer service if

(c) that defendant is being sued based on the comments or information provided by someone else (e.g. a commenter on the website).

Many cases have already decided this issue and I suspect the Windham Co. Superior Court will be well served by a motion to dismiss the lawsuit against the owners of iBrattleboro.  I don't have time to collect all the cases tonight.  If you are interested in legal resources on this issue, I suggest starting at http://onlineliabilityblog.com/significant-47-usc-230-decisions/ and looking that the CDA decisions at this really informative website. I suspect the first person to read all the 47 U.S.C § 230 cases linked on that site will be well prepared to argue the iBrattleboro motion to dismiss in Windham Co.

Here is a further taste of how courts looks at this issue.  The Third Circuit Court of Appeals recently ruled on a case named DiMeo v. Max, which involved a website that took comments. One of the comments was allegedly "disparaging." The disparaged Plaintiff sued the owners of the website for the comment posted by the third party.  The Court made extremely quick work of the appeal:

Max's website is an interactive computer service because it enables computer access by multiple users to a computer server. See 47 U.S.C. § 230(f)(2) (defining “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions”). DiMeo’s complaint alleges that Max is a publisher of the comments on the website.

However, DiMeo does not allege that Max authored the comments on the website or that he is an information content provider. See 47 U.S.C. § 230 (f)(3) (defining “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service”). As such, the website posts alleged in the complaint must constitute information furnished by third party information content providers. Therefore, the requirements of § 230 immunity are satisfied.

In Green, we affirmed the dismissal of a complaint against America Online based on § 230 immunity from tort liability stemming from messages posted in chat rooms by unnamed defendants impersonating the plaintiff. 318 F.3d at 469-70. Similarly, we will affirm the dismissal of the complaint against Max based on § 230 immunity from tort liability resulting from messages by third party message posters.

-cl 

Disclaimer:  This post is not legal advice.  If you want to call someone a asshole on your personal blog or in comments here at GMD, get your own attorney.

—————————— 

Footnotes:

FN 1: Having lived in three jurisdictions where it was against the law for consenting adults to screw without a state license, I consider this to be a material fact.  I acknowledge that Vermont law does not prohibit (consistent with local noise ordinances) the practice.

FN 2: If what the Plaintiff alleges in her lawsuit is true, regardless of liability, she has been seriously wronged by Mr. Dunn's conduct. That, however, is a fact issue for the jury to decide.  The particular legal issue concerning the liability of iBrattleboro's owners is already clear.

Voters and the media continue to ask the presidential candidates to state whether troops will remain in Iraq should they be elected.  The candidates are also being queried about the troop level that might remain as part of other military and foreign policy objectives.

Some answers are better than others.  However, in addition to the answers so far, the question: “will there be troops in Iraq [1, 2, 4 etc.] years into your presidency?” also misses the mark.

What the candidates have not yet said, below . . . 

A gold star round of applause for the first candidate to shove the “will you keep troops” question back down Timmah Stephnopolarkeys Softballs-Matthews Blitzer's throat and who says: 

“As you know Wolf, it is not up to the President to make that decision, you need to ask Congress since the Constitution vests the power and authority to authorize the deployment of forces exclusively with the legislative branch.

“There is a false underlying assumption in the question that a President, alone, decides whether to place troops in a foreign nation.

“My agenda will be to bring the troops home immediately. I recognize that the U.S. war on Iraq and occupation is the biggest foreign policy disaster in our country's history.

“Recognize the situation one of us will inherit.  George Bush is the first President to return to a war the U.S. already won and then lose it.  The only way the U.S. can and should remove the cloud of shame of the loss of an illegal Republican war of aggression in the Middle East is for the entire nation to commit to rebuilding Iraq – NOT occupying it. 

“Whether troops remain in Iraq is NOT, ultimately, the President's decision. Rather, continuing an occupation force or committing war on a non-threatening nation will ONLY depend and it will REQUIRE — at a minimum — the following:

1. The sovereign nation of Iraqi gives permission for U.S. troops to be stationed in their country;

2. The Congress expressly authorizes them to be there; and

3. There is a strategic need to keep them there.

I do not foresee any of those three criterions being in place and I cannot imagine all three criteria ever compelling the imposition of U.S. force on a non-threatening nation. 

* * * * *  Extra Credit Answer for candidates Biden, Clinton, Dodd and Obama * * * * *

Responding to the questions about long-term troop deployment, war and occupation, compels an additional answer from the four members of the U.S. Senate who are running. Biden Clinton Dodd Obama (BCDO Inc.) need to convincingly advocate this answer as well:

“Wolfie, I must emphasize to you and the rest of your panel of Thorazine-fed-GOP-compliant-media-whores, that the U.S. Senate can and has an obligation to end Mister Bush's ability to continue the U.S. war on Iraq.”

“By developing a 'Senate Global Peace & Security Caucus' of 41 or more of my colleagues under my leadership, this war will end because we can absolutely halt any funds and authorization to continue waging this illegal Republican led foreign policy failure.  In addition to the four of us standing here running for president, we only need 37 of our colleagues to stand with us against any further appropriations to fund the illegal U.S. war on the Iraqi people.

“As candidates for President, we have a special responsibility as spokes(wo)men for our party to lead the effort in the Senate to build and hold together the Peace & Security caucus. That is why you will see the four of us proving our leadership ability to the American people by using the power of our offices and the constitutional power Congress has to end the war. 

“It is not enough to talk about the “leadership” any us will bring to the White House.  Instead, voters expect – and I commit to proving my ability to lead – a mere 37 of my Senate colleagues to do exactly what the overwhelming majority of Americans want congress to do and want us to do.  End.The.US.WAR.On.Iraq.

     *    *    *

At this point in the primary campaign and with an Iraqi occupation sapping the U.S. of its security and standing in the world, I really do not give a rat's ass about BCDO Inc's claims about troop plans for 2009.  Talk is cheap, especially in primary campaign and especially when BCDO Inc are only promising what all of us already want. Who really cares what proposals BCDO Inc are putting forth for 2009-2013 when the ONLY relevant question is: who is taking the leading role in the Senate, today, to end the war.

I respect the fact that we need more (& better!) Democrats in Congress.  However, the “we need 2/3 of the Senate to override a veto” (or similar) arguments from BCDO Inc., ring of defeatism. These expedient rationals also minimize and ignore the (dusty) tools these leaders have at their disposal.  It also allows BCDO Inc. to skirt scrutiny of their real life leadership ability and it shifts the focus to the hypothetical “what I will prefer to do if I can” future leadership intentions.

The best test of Biden, Clinton, Dodd or Obama's leadership is how well they lead the Senators they have — not the Senators they want — into battle.  They already have public support and the constitutional home-court advantage should they choose to use it. So BCDO Inc., if you want me to take your candidacies seriously:

— take your positions as U.S. Senators seriously;

— be honest about the tools you have at hand right now; and

— stop whining about the saw and screwdriver you do not have when you are not bothering to use the hammer and shovel already collecting dust in your tool shed.

If our party's leaders, especially Sens. Clinton and Obama, want to concede the congressional battle, that undercuts the remaining members of the Democratic caucus. It also creates a narrative of inevitability that lets Republican members of Congress off the hook.

How many times do we need to hear these questions before we hear the correct answers from our party's leaders?

*    *    *

“Thanks for asking, Wolf.”

“Next question?”

( – promoted by Caoimhin Laochdha)

Despite better education and more awareness within the general population, a pervasive bias remains against people with mental health problems. 

Suffering from mental illness too often means suffering from prejudice or discrimination as well. The systemic biases in our communities and institutions exacerbate the very illness afflicting those who most need support and understanding. Prejudice and lack of access to care are another set of roadblocks for people struggling with acute and/or chronic serious mental health problems. 

It is an all-consuming task, for many who have mental problems, to cope with their disabilities and work toward maintaining or preserving – to the full extent they can – a functional life. This burden frequently falls on the family and loved ones who help to care and take responsibility for those with mental/behavioral health and personality disorders.  Now, throw in the added burden of prejudice, neglect, a judgmental community that fails at its duty to be a support system (or to allow a support system to be in place), and life for the mentally ill is one nasty uphill fight.

If you haven't guessed already, this is about the  U.S. war on Iraq . . .(more below)

This past week, police officers acting on behalf of the United States of America arrested Army Sergeant Brad Gaskins.

I do not know the legal background to this case, but the fact that Sgt. Gaskins has suffered severe disability from two combat tours in Iraq is not in dispute.  The United States arrested him for being AWOL after he sought treatment for his mental illness. The treatment he sought and needs is unavailable to him in the overstretched, understaffed, unprepared and ill-equipped health care system that is responsible for U.S. solders and marines. 

As reported by the AP

SYRACUSE, N.Y. (AP) — A soldier who served two combat tours in Iraq was arrested Wednesday. . .

. . . Sgt. Brad Gaskins said he left the base in August 2006 because the Army wasn't providing effective treatment after he was diagnosed with PTSD and severe depression.

“They just don't have the resources to handle it, but that's not my fault,” Gaskins said.

Tod Ensign, an attorney with Citizen Soldier, a GI rights group that is representing Gaskins, said the case is part of a “coming tsunami” of mental health problems involving Iraq and Afghanistan vets.

Last month, the Veterans Administration said more than 100,000 soldiers were being treated for mental health problems, and half of those specifically for PTSD. . .

 So here's the problem.  The U.S. government, unable to treat seriously ill soldiers, is criminalizing their illness.  This is where the mental/behavioral health and physical injury prejudices come into play.  I acknowledge not knowing the specific medical and legal details of Sgt. Gaskins' case. However, regardless of the specifics of Sgt. Gaskins plight, his case is one more blatant indictment of the United State's and especially the current administrations', pattern of neglect and betrayal of our all volunteer recruited military.  Compound this continuing mistreatment of our soldiers and marines, with the historic and systemic prejudices surrounding mental illness; and a pre-existing medical double standard becomes a societal and governmental double betrayal as well.

Sgt. Haskins arrest is one example demonstrating the ways in which the physical/mental health double standard has eaten its way into the Pentagon and is one more way in which we are disgracing our troops. 

Imagine, for a moment, a soldier with shrapnel in her brain who faces a lifetime of paralysis if she does not find a neurosurgeon to remove the shrapnel. Then imagine the Army will not provide a surgeon trained or capable of removing the shrapnel in order to save this soldier from a lifetime of disability and suffering. Forced to accept only one acceptable option, the soldier leaves the base infirmary and goes AWOL. The soldier then ends up at Mass General, Dartmouth or a local community hospital where a surgeon can salvage her future.

Unfortunately, for our hypothetical soldier with the shrapnel in her brain, a local TV crew shows up at the hospital parking lot to tell the story (like the media did with Sgt. Gaskins) of her combat injuries and the military's unwillingness to provide critical treatment for her.  Now, imagine as she is going through her pre-operative tests, the MPs arrive and arrest her: putting her in shackles and walking her out of the hospital still wearing a surgical gown. Preposterous? (I hope you said “yes” although what is preposterous any more). That is the  attitude feeding our double standard because it is truly difficult to see much difference in the level of outrage either type of case should generate.

People generally understand and are less likely to “stigmatize” traumatic head injuries and their corresponding disabilities than the mental health trauma suffered by soldiers such as Sgt. Gaskins.  To the soldier facing the consequences of either trauma, the responsibility of the United States to the people we recruit to serve in our military is no different. How short we fall from that responsibility is apparent when the United States arrests a sick soldier rather than treats him.  It is a further apparent when we allow the Pentagon to criminalize illness rather than treat it. 

Sgt Gaskins' case is a gross betrayal by the United States of its soldiers and marines.  It is also a symptom of a bigger problem faced by veterans.  The example of his situation sends a message from the Pentagon and the administration to the tens of thousands of soldiers and marines who are receiving either substandard care, or not receiving any care. And this is the message: “We know you're in bad shape and we know you hurt.  Now you know that we can make it much worse for you too.” 

Every day, the United States War on Iraq proves there is no shortage of ways for the U.S. to shame itself in the eyes of the world, in the eyes of our soldiers and in the eyes of history.

It appears we have shamed ourselves in the eyes of Sgt. Gaskin as well.

Thousands of us face myriad barriers — financial, access, policy, intentional corporate interference and other impediments — when it comes to receiving basic (or any) health care.

With a health care delivery system imploding in front of our eyes, the Vermont Department of Health is going full-bore with a new initiative. To aid physicians and patients in these troubled times of healthcare delivery collapse, the Department of Health has deputized enlisted the helping hands (and eyes) of law enforcement throughout the State.

Thinking of having surgery? Got a chronic condition?  Do you have a spouse or family member fighting cancer? Does your child struggle with ADHD? Well, guess what the Department of Health's brand spanking new program will do to for you.  For starters, it's designed:

 — to spy on patients, and
 — to monitor the specific treatment practices your physician provides for you, and
 — to transfer your confidential medical information to various police agencies and state investigators, all in contravention of Vermont law . . .

(of course, there is more, below . . . )

The Vermont General Assembly passed a law in 2005 called the “Vermont Prescription Monitoring System” (VPMS).  Sound ominous? Well it is worse than it sounds. 

The Department of Health is in the process of seeking legislative approval of administrative rules the Department drafted to govern VPMS. The proposed rules will monitor your physician's provision, and your access to, hundreds of treatments for thousands of conditions. The purpose of the law is intended to identify substance abusers and to facilitate their treatment — nothing inherently wrong with that and in fact it is a laudable goal.  However, the proposed regulations by the Department of Health do not accomplish the goal set out by the legislature, violate the laws governing the VPMS and present too many dangers for disclosure, misuse, mishandling of sensitive patient medical information. 

“Administrative Rules”  Administrative rules, or regulations, are the Vermont regulatory laws that implement state agency programs. These regulations flesh out the details of the tatutes that fall under the jurisdiction of various bureaucracies. The Department of Health's proposed regulations violate the laws they are intended to facilitate.  Here a few reasons why these regulations must be stopped before they go into effect.

The law creating VPMS, Title 18 Chapter 84a requires the Department of Health to do ONE THING.  The legislation states that the Department of Health must:

adopt rules for the implementation of VPMS . . . 45 C.F.R. Part 164 [federal privacy and data protection guidelines] that limit the disclosure to the minimum information necessary for purposes of this act.

In other words, the legislature passed a law requiring, and authorizing, the Department of Health to regulate, with the strictest protocols possible, any potential disclosure of medical information it collects as part of VPMS.  The legislature did not give the Department of Health authority to do much else.

It was the legislation's intent that the Department of Health develop a system to protect the confidential information it collects in VPMS.  It must then use that information consistent with the overall purpose of the legislation, which is to facilitate public health and treatment of those who need it. That did not happen. Instead, there are a significant number of legal, policy, practical problems and mistakes in the Department's proposed VPMS regulations. I will highlight just three.

                     *          *            *

#1 The legislature required the Department to write ONE policy and procedural objective into the regulations, and the Department ignored this statutory mandate. The law requires procedures to identify and then disclose if necessary the minimum necessary information to achieve VPMS's goal. Facing just this one requirement, the Department of Health has given birth to VPMS Regulations devoid of a single strand of “Disclosure Limiting” DNA.  The Department has effectively ignored its primary responsibility to Vermont patients and physicians.

On the flip side of this same problem, the VPMS law prohibits the Department from disclosing your medical information in specific instances for your protection and for your medical provider's protection.  The Department's proposed rules ignore this critical aspect of the law as well.

For this reason alone, the proposed rules must be withdrawn, rewritten or outright rejected by the Legislative Committee on Administrative Rules.

                      *          *            *

  #2 The Department of Health is also attempting, in proposed Rule 1.7, to divest Vermont Courts of jurisdiction over one critical aspect Vermont patients and physicians may encounter with VPMS.  Without any legislative authorization, the Department is claiming for the Commissioner of Health “sole discretion” over any decisions related to erroneous, or other corrupt or suspect data.

Consider this, like the federal no-fly list, if your records have a mistake (purely hypothetical, right?) you cannot ask a court to require VPMS to account accurately or report to your health care providers reliable information about your prescription history.  Vermonters have a right, under our Constitution, to remedies at law and it is doubtful that the legislature could have given the Commissioner this type of authority even if it wanted to. Here the Department of Health is merely claiming legal authority for its Commissioner, which the law in no way envisions. For this reason alone, the proposed rules must be withdrawn, rewritten or outright rejected by the Legislative Committee on Administrative Rules.

                     *          *            *

#3 The Department's proposed rules violate one of the key compromises worked out in the legislature among the various parties involved in developing the final statutory language passed and signed by the Governor. The legislature, medical providers, patient advocates and others were rightly concerned that this program might turn into a state tool to spy on people or that highly sensitive personal medical information may circulate through policing agencies inappropriately. 

To curb possible abuses, the legislature MANDATED (18 V.S.A. §4284(6)) that only the commissioner of health “personally” – in limited and defined circumstances – may disclose your medical information to Vermont police. The law specifies that the commissioner of public safety may receive, directly and personally, limited information from the health commissioner, personally, in rare emergency circumstances.

The point of this disclosure limitation and requirement was due to the fact that this is a public health statute, not a police monitoring statute.  Disclosure to policing agencies, if made at all, is only permitted under the VPMS law in a rare emergency case of an “imminent” threat to public safety as personally determined and evaluated and communicated by the Commissioner of Health.  No Exceptions.

To sneak around this legal requirement, the Department of Health’s proposed regulation (Rule 3.4) includes this gem:

For “purposes of this [law],” the term Commissioner shall mean: “A deputy Commissioner of Health” and on the law enforcement side, “Commissioner” shall mean “Director of Vermont State Police” or “other management designated by the Commissioner of Public Safety to receive” the information.  In other words “anyone.”

Hey, why not define your neighbors, your employer and business associates as “Commissioner for the purposes of implementing VPMS” while we are at it?

The contempt for the enabling legislation is palpable in this proposed rule 3.4.  The Department of Health has taken an important legislative compromise — one that received significant testimony and deliberation, — and it has re-written the law to suit its own agenda outside of the governing law. 

                     *          *            *

The Department of Health must not be allowed to treat the administrative rulemaking process as an opportunity to re-write state law.  The rulemaking process is an obligation to implement state law not an opportunity to change it. The proposed rules ignore the critical restrictions the legislature put on the transfer of health data to Vermont police.  For this reason alone, these proposed regulations must be either withdrawn and re-written or outright rejected by the legislative committee on administrative rules.

The Department of Health has spent months of work and invested significant State resources on VPMS but:

A. the Dep't did not write the regulations the law requires the Dep't to do; and

B. the Dep't exceeded is statutory authority by revising VPMS beyond anything permitted in Vermont law; and

C. the Dep't, in addition to exceeding its authority, is now poised to impose regulations that violate the express language of the VPMS statute.

This is really the scary part. The Department of Health, before it even begins assembling your most personal and confidential medical data into a giant and ill-defined state program, has already telegraphed its intention to ignore the governing law.

Tomorrow, Monday the 5th of November, is the final day to comment on the Department of Health's proposed rules.  If the Department of Health does not withdraw the proposed rules after the public comment period, then the proposed rules will go to the Legislative Committee on Administrative Rules (LCAR) for its approval.

No Vermonter or citizens' group should have to go to court to stop these rules from taking effect. The Department of Health needs to withdraw the rules and rewrite them or LCAR must reject them. The public is invited comment directly on the proposed rules at the Department of Health website: http://healthvermont.gov/admin/comment/RxMonitoring_comment.aspx.  The Department of Health is required to respond and to consider any substantive comments, suggestions or proposed changes it receives. 

I will post VPMS updates in the upcoming days addressing comments to the Department of Health on the proposed rules, and Department of Health's responses to those comments.

Private medical information is serious business affecting people's lives and livelihoods in many ways. This makes it a dangerous area for irresponsible government.  No matter what the subject, however, there is no excuse for state agencies jeopardizing our rights by acting so blatantly outside of the law.

My frustration with the content of Sen. Obama's campaign overheated while reading the friendly exchange between Vermonter and JD.

The Obama critiques are being hijacked by perceived slights. This misses the chance to examine the inherent – and obvious – dangers of the campaign Sen. Obama is waging.  For better or worse, Sen. Obama is the frontrunner and he (and we) only have so much time to salvage a campaign that is becoming more and more ruinous in its squander of an historic opportunity.

Senator Obama is running an “Up-With-People” feel good campaign which, given our situation and unfortunate place in history, is insulting. It dismisses the dire jeopardy into which Mister Bush has placed the U.S.  It shows an alarming insouciance for the pain caused by Mister Bush's actions, and it glosses over the behavior of a congress, in which he has been inaudaciously silent, that blithely enables those policies.

The issue of how candidates campaign is just as important as what the candidates declare they want to happen if elected.  There are a boatload of things we all want to “happen;” however, explaining the fundemental changes required to accomplish anything of value is the most critical responsiblity facing each of the major Democratic candidates.

JD 's recent diary starts with a the politically (and phenomenologically) valid observation that

I tend not to like candidates that have that cult of personality thing going on, because if he wins, and pushes through bad legislation or ideas, his most ardent supporters are going to go along for the ride, unquestioning. We already have that with Bush. I don't want it with Obama.

Predictably, out come the complaints that he is trashing the Obama supporters. Read it again.

The criticism is squarely on Senator Obama's campaign strategy of non-offensive playing-out-the-clock to a nomination victory instead of running and leading to earn a mandate. He is squandering a chance to lead his supporters and the rest of us to accomplish the change and earn the political capital to destroy the ingrained policies and institutions that have corrupted the future of our country. The criticism is against the type of support a painless and leaderless campaign generates.  It is a stretch to read it as criticism of those supporting a campaign when we all generally share common ground with our supporter of the various serious Democratic contenders.

Granted Sen. Obama is running a campaign.  It is hard to fault a guy for sticking with a winning strategy. (My take is that Obama is playing it safe because he knows he's the front runner in the same way that Sen. Clinton is saying what she thinks people want to hear rather than what they need to because she thinks she is the front runner). The point for us Democrats (and nauseous nose-holding but engaged voters like JD) is that we already own a winning climate, not because the Democrats earned it but because the Republicans have alienated enough of the hardened and ambulatory brain injuries, who typically vote GOP, that it will be hard for the Dems to lose in 2008.  Unlike 2004 we do not need to defeat a Republican in November, we need a candidate who will defeat the ingrained pathologies that have killed any meaningful future this country might otherwise possess.

Our need is for a leader who will not merely undue the damage of the last six years generation, but we must demand one who will attack the system that led to our current fiscal, economic, health care, security, foreign relations and physical infrastructure decay. A leader will not successfully “build bridges,” as Sen. Obama keeps metaphorically promising, without explaining how the construction will occur, how the construction needs to occur and why the old engineering is so broken and corrupt that it must be abandoned forever.

The criticism of Obama's campaign is well taken. I highlight it because I take his frontrunner status seriously and I see a trainwreck of squandered opportunity at the end of the tunnel. We ignore at our own peril the substantive criticism of the insubstantial campaign Sen. Obama is waging.  Our risk is a nomination barely worth winning followed by an opportunity we jointly squander with another leader elected official who will otherwise coast when he needs to be pulling.

(an excellent follow-up to my brief piece on earmarks… – promoted by JDRyan)

JD put up a interesting piece explaining the fact that Vermont receives a good chunk of change from the feds (relative to most of our sister states) from the regressively acquired income tax they take from us each April 15th.

I guess I'm comforted by the fact that we “beat” out a few states where the money might go to, for instance, subsidize educational mind bending child abuse. Still I see only one discussion about the federal balance sheet and it centers on how every one of us individual U.S. taxpayers fits into conservative Republican tax and fiscal policy?

George Bush and the conservative Republicans looting the treasury have deliberately put into place the largest tax bill increase in the history of the world and this is the only fiscal/tax issue that registers with me.

Let's go to the board . . .

 Every taxpayer in the United States now has a Bush tax bill/liability of $95,000.00.  Your $95,000.00 “Bush” tax surcharge is in addition to your previously tallied and billed regressive income tax obligations.  This additional $95,000.00 tax bill is only for the last six years.  I'm not an economist, and my math is rudimentary.  However, these numbers are pretty close to the mark, the discrepancies are rounding errors of relative insignificance.  While dealing with approximations, the picture these numbers paint is as real as it gets.   

Rough numbers: 

Considering all the costs, (i.e., hard costs, military waste, ruin & depreciation, opportunity costs and the trillion(s) related to current (and soon to be more) casualties in Iraq,) we are looking at well over $1 trillion in additional Pentagon appropriations solely for the U.S. war on Iraq.

Do not (please don't) forget the Iraqis, whose suffering is far greater than anything the U.S. can imagine. Future Iraqi generations will live painfully with the cost of the U.S. war.  The Iraqi's economic losses (think of, for example, economic production, destroyed infrastructure, employment/wages, future medical costs, rebuilding costs, environmental damage, leftover bombs/mines/munitions, maimed children and even farm animals), will be far more than what the U.S. cost is.  

Pretend for a moment that the U.S. is a civil and moral society (I said PRETEND). Pretend this nation could muster the courage and moral resolve to restore some semblance of the future we stole from the Iraqi people, and pretend we were willing to help them through their suffering and rebuilding. How much would that cost – excluding any thoughts of developing a military capacity for them?  Three $Trillion? Four $Trillion? Easy. 'Just' two trillion $$ in a country of approximately 20 million (and shrinking) equalls approx. $100,000 per person. When talking about rebuilding entire towns, lifetimes of prosthetic limbs and medical rehab/chronic suffering, environmental damage etc. that is not a great deal of money.   

Iraq.  Let’s hold the line at $2 Trillion — cheap. Unreasonable at the rate we're going, but let's pretend it's only $2 Trillion.

The U.S: Our future military medical costs far exceed $1 trillion just for the troop's various cuts & bruise.  Then, minimally, there is another $1 trillion just for lost equipment costs, future equipment repair/replacement needs etc. One can at least assume Congress will actually appropriates replacement $$s to the military industrial complex to buy new hardware to replace all the toys we destroyed in the the U.S. War on Iraq (yes, this is one bill the Congress/President will pay).  

Consider the lost economic productivity of everyone associated with the war effort, the debt the U.S. is incurring, the lost future wages and economic activity associated with the misuse of military assets both human and tangible and you are talking about another $2 trillion. I won’t even speculate how much wealth might of have been generated by directing our dollars and assets toward constructive activities (education, infrastructure, developing an alternative fuel economy etc. & what about genuine tax cuts because we could actually afford them w/o war?).  Those economic gains would be worth an incalculable amount of money in the future, but I am not an economist and quantifying them is too depressing.  Even before the escalation of our War on the Iraqis and their civil war against each other, conservative projections of future U.S. Troops' health care cost had reached almost $700 billion, which is already starting to look like a “quaint” figure.  

Similarly, money can, and never will, replace the value of our national security that we squandered through intentional mlitary misadventure. 

I’m not an economist or even a mathematician but it seems, conservatively and realistically, that our dollar losses and commitments may total $1 Billion (pre-existing military medical costs) + $2 trillion (minimal compensation to Iraq) + $2 trillion (military/pentagon costs so far exclusive of veteran costs) + $1.5 trillion economic activity & economic generation/productivity and tax generation by productive military employment losses + (I will ignore the trillions of lost opportunity and cost of “security replacement that we can’t afford regardless).  That adds up to $6.5 trillion so far assuming we stop before September 2007.

Fiscal policy malpractice:  Mister Bush just delivered a growing $6.5 trillion liability by invading a country that did not threaten the U.S. (although the U.S. war on Iraq will certainly threaten the U.S. for the rest of our lifetimes).

Mister Bush has also thrown a few extra (borrowed) trillion $$ onto the national debt in addition to the U.S. War on Iraq liabilities for which no appropriation has been planned or outlined.  His spending in just six years so far has increased the national wealth of China debt from roughly $6 to roughly $12 trillion.    (War $6.5 trillion + Wealth transfer & credit card debt $6 trillion.  Total so far $12.5 trillion — give or take).

There are approximately 131,000,000 individual U.S. taxpayers who have been handed a bill for $12.5 trillion dollars. That works out to the nice round number of $95,420.00.

On top of ALL the other taxes working people in the U.S. must pay, and for which they are obligated to pay in the future, Mister Bush has hit us wiht a bill, more correctly known as a “tax increase,” since that is how the bill must be paid. It must be paid to the tune of another $95,000.00 per individual taxpayer in the U.S. 

My understanding of history is that this represents the single largest tax burden and tax increase in the history of the world.  I hope I am wrong because my wallet just spontaneously combusted and I do hope that I missed a decimal point somewhere.

Regardless of where I may have made my rounding errors, it is safe to say,  when it comes to taxes, Mister Bush is responsible for the largest tax burden on individual taxpayers in U.S. history.

Perhaps the media (and preferably our Democratic candidates and friends in Congress) will be kind enough to acknowledge the fiscal and tax burden side of the federal spending picture.  For instance, when asking us to salivate over the whopping $250 bucks we receive from D.C. every year, perhaps an explanation about why we are each racking up about $1,400 in tax increases each month Bush serves as President.

Better yet, at the same time Congress starts digging in to consider when to cut U.S. war on Iraq funding, maybe it will require Mister Bush to raise the money he is charging and spending at the same time. Just sayin.’ After all, Congress is not asking the U.S. war supporters to actually fight the damn thing, might Mister Bush at least ask someone to pay part of the neocon war bill against which our social security trust fund has been hypothecated to the Chinese? 

A “my-$250 circle-is-bigger-than-your-$210 circle” is an attractive distraction placating millions of voters in the partial rebate states. In fact, it is typically enough to distract most people from the federal fiscal-fist-fuck in ass we all take with each additional annual half trillion $$ in defense appropriations, shortly followed by another GOP race to spike the debt ceiling another $trillion pursuant to Republican credit card economics. So, ever wonder how much of that pork is defense related?

Every individual taxpayer in the U.S.A. needs to understand s/he just received a $95,000.00 Working Person Surcharge along with their $150-$250 in-kind pro rata appropriation. Perhaps then voters will understand why countries spending their money on health care and infrastructure, as opposed to killing people and burning their literal and figurative bridges abroad, have substantially greater quality of life, more efficient public services, affordable health care, better education and more overall security. All this but without the burden of a supplemental tax bill for $95,000.00 sitting on the kitchen table, which is unique only to the U.S.