The easiest, most effective step that the federal and state governments can take to stem the tide of deaths from opioid overdoses is to make naloxone easier to get …”

Megan McLemore of Human Rights Watch, as quoted in The Lancet[1]

 

[This is G. Sallust again. It’s said that more than 90 Americans die every day from opioid overdose.[2] That simple fact makes opioids truly blog-worthy, and worth an update, so I asked for volunteers to do the job.  Unfortunately I didn’t get any. Instead my loyal staff told me to write it myself. This isn’t a democracy; but everybody here is a volunteer, so I have to listen when they yell at me. And this time they made a good case.

It’s true that I’m uniquely qualified to talk about opioids. And no, that’s not because I’m a heroin addict. Actually I don’t take anything unless it’s prescribed by a doctor, and I especially I don’t like pain killers, no matter who wants me to take them, because they make us stupid.  I’m qualified because I (i) live in a rural area that has a horrible problem with opioids and (ii) am morally offended by the situation.

Actually they didn’t say it that way. Fred says I’m loud and abrasive, and an attention-getter, and that’s what’s needed. Phil says I often sound reasonable, even when I’m not, and that might help with some readers, the ones who are not too far gone in politics. And Larry, bless his heart, says that I can be persuasive when I stick to the facts, which isn’t always the case, and if I do that I might do a passable job. All of them had other pressing business, and none of them wanted to get involved. I call that mutiny, thinly disguised.

So I’m writing this myself. And speaking of politics, which I just did, let’s start by saying that in my opinion Donald J. Trump, is not responsible for the opioid epidemic. He’s been President only since January 20, 2017[3];  and the problem predates him by several years. Of course, the same could have been said of Barrack Obama, when he first took office in 2009. The economy had collapsed in the second half of 2008, and threatened to go belly-up. That pretty much gave the election of 2008 to the Democrats. Conservative pundits then argued that Obama, who wasn’t President at the time, was actually responsible for the 2008 crash, because the mere fact that he might be elected had upset the market. A few months later they followed up by complaining that the recovery was taking too long.

Well, that was then and this is now, and today we’re talking about crimes, the criminal law and public health, not about the economy. So far no one has blamed Trump for the opioid problem, but they will. At some point the loyal opposition is going to start asking why President Trump hasn’t done more to solve it. But before we go down that road, it might be best to take a look at where we are, medically speaking, in the battle to restrict opioids. Luckily there are a couple of recent articles, one in The Lancet[4] and the other in the New England Journal of Medicine[5], to help us understand the situation.]

The Lancet Says

Let’s take first things first. Heroin is an opioid, as are morphine, opium, and various synthetics, such as fentanyl and its numerous cousins.[6] One can overdose on any of these, but it’s more likely with street drugs because those are frequently mixed with one variety or another of fentanyl. Some versions of fentanyl (I don’t know how many) are extremely potent, and can kill with very, very small quantities. So if a dealer is an amateur, he can easily kill a lot of people.

Naloxone is an antidote that reverses the effect of overdose. (In my neighborhood it’s also called Narcan.) Many jurisdictions are equipping their first responders with it, so that they can treat an overdose on the spot, rather than cart the victim off to an ER. That’s a good thing, because [apparently] it saves lives. But that doesn’t necessarily reduce the addiction rate. In fact, one can speculate that the more addicts survive overdose, and if new addicts continue to enter the population at the usual rate [whatever that is], the total number of addicts will grow over time. And as the numbers increase, the addiction rate will as well.

So that brings us to the bigger problem: How do we, in the U.S., treat addicts to reduce their numbers? Well, the Administration resolved to study the matter, which sounds like a good idea, and interim recommendations are due the 27th of this month. That sounds like something we ought to read. In the meantime The Lancet reports that a policy is beginning to emerge. So far –

  • The president’s budget for the next fiscal year (FY 2018) calls for a $279.7 million increase in funding for drug control efforts;
  • That includes a $103 million increase to the Department of Justice’s budget to “fight against opioids and other illicit drugs”.
  • Last March, the new Attorney General said “we need to focus on…preventing people from ever taking drugs in the first place”. On May 13 he ordered federal prosecutors to utilize mandatory minimum sentencing for heroin offenses. This would “prescribe that possessing any amount of heroin would be a minimum fine of $1000 and 1 year in prison.”[7]

So far none of those initiatives sound like slam-dunk wins. Do they?

Then, of course, there are the current Congressional efforts to repeal and replace Obamacare. That effort, if successful, might throw many of the addicted into the ranks of the uninsured. “The American Society of Addiction Medicine, a professional society of physicians, warned that [if so] a ‘critical lifeline for people with addiction’ would be severed.”[8] That’s interesting, but speculative. So far Congress hasn’t really done anything. I’m going to wait until there’s actual legislation on the table before I start an argument.

Science from the NEJM

OK, from what little we know of President Trump’s program, he doesn’t seem to be counting on any scientific breakthroughs to solve the opioid problem. How about the scientists? What do they think? Well, the National Institutes of Health say that since April of this year they have been working with pharmaceutical industry in three important areas:

  • Overdose Treatment. Naloxone is good, and has saved lives, but other, more effective overdose treatments are possible. The NIH/ industry objective is to develop “better overdose-reversal and prevention” therapies[9];
  • Curing Addicts. Currently “sustained treatment over years or even a lifetime is often necessary to achieve and maintain long-term recovery.” There are only three medications available for treating Opioid Use Disorder. These are methadone, buprenorphine and extended-release naltrexone. We need more and better medicines in this area.[10]
  • Managing Pain. For many, addiction starts with opioids prescribed by a doctor to relieve chronic pain. If we develop “safe, effective, non-addictive interventions” to deal with pain, we can greatly restrict the use of opioids in medical practice. That should reduce the rate of addiction as well.[11]

The NIH expect “some advances” may occur rapidly, “such as such as improved formulations of existing medications, opioids with abuse-deterrent properties, longer-acting overdose-reversal drugs, and the repurposing of treatments approved for other conditions.[12]” Others may take longer. Nevertheless, the goal “is to cut in half the time typically required to develop new safe and effective therapeutics.”[13]

Conclusion

To date the new Administration seems to have focused primarily on law enforcement to control the opioid crisis. That’s short-sighted. Addiction is a problem for doctors and scientists, as well for the police. I’m not in a position to judge the validity of the initiatives the National Institutes of Health have proposed, but they are our experts; so perhaps we should fund their initiatives, or over-fund them if necessary, to see what they can do for us. The problem with addicts is that they’re, well, addicted. There’s no talking them out of their addiction, and locking them up doesn’t seem to be helpful. Speaking for the public, we need a damned cure!

[1] See The Lancet, Reinl, Trump administration and the opioid epidemic in the USA (June 17, 2017), available at http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(17)31543-X/fulltext?elsca1=etoc (The proper citation for this, I think, is Reinl, Trump & Opioids at 389 World Report 2181 (June 3, 2017). We’ll just call it Trump & Opioids, until someone corrects us. To access this article [apparently] you need to register with The Lancet. Do that [it’s free] and you can download a pdf version.

[2] See New England Journal of Medicine, Volkow & Collins, The Role of Science in Addressing the Opioid Crisis (May 31, 2017), available at http://www.nejm.org/doi/full/10.1056/NEJMsr1706626#t=article There are no page numbers; henceforth we will cite this as Opioid Crisis at __ and reference the § in which the quote appears.

[3] See the President’s inauguration speech at https://www.nytimes.com/video/us/politics/100000004863342/donald-trump-full-inaugural-address-2017.html

[4] See n. 1.

[5] See n. 2.

[6] For a more full discussion of the subject, take a look at the Wikipedia entry at https://en.wikipedia.org/wiki/Opioid .

[7] All quotations are from Trump & Opioids.

[8] Id.

[9] See Opioid Crisis at Overdose-Reversal Interventions.

[10] See Opioid Crisis at Treatments for Opioid Addiction.

[11] See Opioid Crisis at Nonaddictive Treatments for Chronic Pain .

[12] See Opioid Crisis at Public-Private Partnerships.

[13] Id.

[This is G. Sallust, and today I’m only doing the introduction, so relax. There will be no long sermons from me. I see in the news that our current President is auditioning lawyers and law firms to see which of them will represent him in the multitudinous investigations now sprouting inside the Beltway. Really, we need a scorecard to keep track of things.

  • Our loose-lipped and always indignant Congress wants to know whether our President is “too close” to the Russians[1]; their evidence of that is that he’s been seen talking to Russian emissaries in the White House, and even the Oval Office[2]; that he’s said it would be nice to “get along’ with them, if possible[3]; and that prior to the last election the Russians, allegedly, gave documents to WikiLeaks that were authentic, but embarrassing to Democrats.[4] (The Russians deny they were the source of the documents, and WikiLeaks agrees.[5])
  • In the meantime the FBI is interviewing senior members of the Trump entourage, about Russia[6], and DOJ has nominated a Special Prosecutor to do pretty much the same thing.[7]

Given all that, how should the President handle the legal traffic? Is he right to hire outside counsel, or should he rely on internal resources? Of course, DOJ is an investigator in these matters, so it can’t [and shouldn’t] defend the President at the same time. But the President also has an official counsel in the White House, with a staff, so should he use them as his advisers, defense counsel and the rest?

I’ve asked Larry, our resident legal consultant, for his views on what’s going on. He wants me to say that he’s retired; he’s not advising anybody in the White House, or anywhere else on these matters, or anything related to them. Like any other pundit, he’s merely offering opinions, but unlike most of them he’s basing his views on decided cases and the written record. So with that in mind, let’s hear from Larry!]

Thanks, G. I don’t care what anybody says, it’s good to have you back. How did that romance of yours go? … Oh, strike that! Sorry I asked!

The main advantage of talking to a lawyer is, when the criminal allegations start to fly, you can discuss them frankly with an experienced person, clarify the issues, and decide what to do. These kinds of discussions need to be privileged, i.e., protected from disclosure, otherwise you can’t have them at all. At one time Presidents thought they could shield discussions about sensitive internal matters simply by claiming executive privilege, but they lost that option for criminal matters when Richard Nixon was President. So now Presidents [and other government employees] can talk only to lawyers when the gumshoes call, and not just any lawyer. One who works for the government may be no help at all.

Executive Privilege

The granddaddy of cases about executive privilege and the White House is, of course, United States v. Nixon.[8] There was a special prosecutor in those days, appointed to look into events surrounding an attempted burglary of the DNC Headquarters in Washington, D.C. Various Nixon apparatchiks were indicted in connection with that and, once it became known that the President routinely taped conversations with his staff, including apparatchiks, the relevant tapes were subpoenaed as part of the investigation.

President Nixon resisted the subpoena on the theory that his tapes were protected by “absolute” executive privilege.  This was true, he said, because (i) the doctrine of separation of powers, en-grained in our Constitution, called for it, and (ii) the President needs “complete candor and objectivity from his advisers,” which he would not get if their conversations might be exposed in some investigation.[9]

The Supreme Court rejected both claims. “[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”[10]

The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.[11]

In short, the internal communications of presidents may be subpoenaed in a criminal investigation. [Communications involving “military, diplomatic, or sensitive national security secrets” might be exempted, but it’s not clear from the decision how that would work, because those kinds of documents were not in play in the case]. Once made available the papers, etc. would be reviewed in the usual manner and with appropriate safeguards.[12]

Attorney Client Privilege

So if you are a President, and there is a criminal inquiry going on in your operation, who can you talk to? Better yet, who can you talk to in confidence? How about the White House Counsel or some other government lawyer? Well, of course you can talk to anybody you want to. The question is, when the subpoenas begin to fly, who can [or must] protect your conversations from hostile scrutiny by outsiders?

Lawyers and their clients have something called attorney-client privilege which should do the job. Basically in most states the lawyer’s duty to keep secrets is defined very broadly.[13] It applies to all information related to the representation of the client. The lawyer must be discreet with the information regardless of whether the client has revealed it to others. And in most states the same standard applies to government and private sector lawyers.[14]

The District of Columbia seems to be different, at least on that last point. I guess we all remember the lengthy investigation of the Clintons back in the 1990s. A “Special Prosecutor” was appointed to investigate some financial dealings Mr. Clinton had in Arkansas before he became President; collectively they were nicknamed “Whitewater;” [15] but eventually the investigation spread to all manner of things, including Mr. Clinton’s alleged sexual proclivities and stains on a junior staffer’s dress. White House Counsel staff were scheduled for interviews, but the Deputy there, Bruce Lindsey, asserted attorney-client privilege and refused to cooperate. His refusal was taken to court, first to the trial court supervising the investigation and later, to the Court of Appeals for the D.C. Circuit. That particular bit of litigation did not turn out well for the Clintons or for those of us who think that the attorney-client privilege is a good thing.

The case is In re: Bruce Lindsey [Grand Jury Testimony].[16] The basic facts were that a Grand Jury was investigating alleged wrongdoing in the Executive Branch. In that situation, the appellate court said, the duties of government lawyers are very different from those of lawyers in private practice. Members of the Executive Branch, including attorneys, must “take Care that the Laws be faithfully executed.” That’s a Constitutional duty.[17] When crimes are being investigated “and especially offenses committed by those in Government, government attorneys stand in a far different position from members of the private bar.” The government lawyer’s duty “is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure.”[18] A lawyer in private practice has exactly that duty. The loyalties “of a government lawyer cannot and must not lie solely with his or her client agency.”[19] The loyalties of the private practitioner lie solely with the client.

So given that I guess we can conclude (i) when crimes are being investigated at an agency, (ii) government attorneys can’t invoke attorney-client privilege to withhold pertinent information from the investigators. There’s no such privilege available to them in that situation. However, there are other reasons why information might be withheld. It might be highly classified technical data, and withhold-able on that basis alone; or core information related to military, diplomatic or national security matters, legitimately subject to executive privilege; or who knows what? The holding of the case is simply that government attorneys can’t use attorney-client privilege to block criminal investigations..

Conclusion

So what’s a President to do when the investigators come a calling. Who does he talk to and what does he say? Well, the court had some ideas on that. It said:

Moreover, nothing prevents government officials who seek completely confidential communications with attorneys from consulting personal counsel. The President [Mr. Clinton] has retained several private lawyers and he is entitled to engage in the completely confidential communications with those lawyers befitting an attorney and a client in a private relationship.[20]

So there you go. If our current President wants or needs all of the advantages of dealing with a private attorney, and can afford it, perhaps he should hire one or teams of them, if necessary.[21] What’s my opinion? In the current environment, it would be irrational for him not to do so.


[1] See, e.g., the screed published by the American Bridge PAC, whatever that is, at https://americanbridgepac.org/app/uploads/Too-Close-To-Russia.pdf Strictly speaking this isn’t a Congressional product but its emblematic of the kinds of things being said on the Hill.

[2] See The Washington Post, Rucker, et al., Inside the Oval Office with Trump and the Russians: Broad smiles and loose lips (May 16, 2017) at https://www.washingtonpost.com/politics/inside-the-oval-office-with-trump-and-the-russians-broad-smiles-and-loose-lips/2017/05/16/2e8b0d14-3a66-11e7-8854-21f359183e8c_story.html?utm_term=.b335e08c0e39

[3] See The New York Times, Burns, Donald Trump Reaffirms Support for Warmer Relations With Putin (Aug. 1, 2016), at https://www.nytimes.com/2016/08/02/us/politics/donald-trump-vladimir-putin-russia.html?_r=0

[4] See, e.g., The Observer, Schindler, Wikileaks [sic, WikiLeaks] Dismantling of DNC Is Clear Attack by Putin On Clinton (07/25/16)  at http://observer.com/2016/07/wikileaks-dismantling-of-dnc-is-clear-attack-by-putin-on-clinton/

[5] See CNN, McKirdy, WikiLeaks’ Assange: Russia didn’t give us emails (January 4, 2017) at http://www.cnn.com/2017/01/04/politics/assange-wikileaks-hannity-intv/index.html

[6] See CBS Los Angeles (video) Trump Son-In-Law under FBI Scrutiny (26 May 2017) at http://www.msn.com/en-us/foodanddrink/video/trump-son-in-law-under-fbi-scrutiny/vp-BBBxL3C

[7] Robert Mueller is the Special Prosecutor. He now has an official spokesperson.  See Politico, Gerstein, Trump-Russia special prosecutor Mueller taps spokesman, (May 26, 2017) at http://www.politico.com/story/2017/05/26/peter-carr-robert-mueller-spokesman-238860

[8] See United States v. Nixon, 418 U.S. 683 (1974).

[9] Id. at 706.

[10] Id.

[11] Id.

[12] At that time, it would have been under Rule 17 of the Federal Rules of Criminal Procedure. Note that the Court did not address the question of what rules might apply to civil proceedings involving one or more private parties. That wasn’t an issue in the case.

[13] This is a paraphrase of the findings of someone who’s actually done the research. See Clark, Government Lawyers and Confidentiality Norms, 85 Wash. Univ. L. Rev. 1033. 1035 (2008): “In most states, a lawyer’s duty of confidentiality is defined very broadly and applies to all information relating to the representation of the client. The lawyer is required to be discreet with such information whether or not it could harm or embarrass a client, and whether or not the client has revealed the information to others. In most states, the professional confidentiality rule does not distinguish between government and private sector lawyers.”

[14] See Leong, Note, Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys, 20 Geo. J. Legal Ethics 163 (2007), at http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1237&context=facpubs

[15] Rather than “Watergate.” We pundits really need our labels, don’t we?

[16] See In re: Bruce Lindsey [Grand Jury Testimony], 158 F.3d 1263 [D.C. Cir.], cert. denied, 525 U.S. 996 (1998). Here I need to apologize.  We have the correct citation for this case, but not the official report of the opinion. Also there doesn’t seem to be a way to get the official opinion without paying West Publishing or somebody like that for it. As you know, if possible we try to point our readers to free sources for the things we cite. So for the moment we’re going to rely on unofficial sources, i.e., the Washington Post for the original, redacted version, and the Justia website for the later, more complete version. You can find the version published by the Post in 1998 at http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/ruling072798.htm . We’ll call it the WAPO version. Page citations will be to that version unless otherwise noted. We’ll make appropriate changes once we access the official version. You can find the more complete, un-redacted version maintained by Justia at http://law.justia.com/cases/federal/appellate-courts/F3/158/1263/544889/ . That one doesn’t have page numbers, so it’s more difficult to cite.

[17] Citing Article II, §3 of the Constitution. The President takes an oath to do that, and so does every federal employee. See Article II, §1, clause 8; Article VI, clause 8.

[18] See WAPO version at p. 9 of 24

[19] See WAPO version at p. 10 of 24

[20] See WAPO version at p. 14 of 24.

[21] The following paragraph falls at the end of the un-redacted version of the majority [per curiam] opinion published by Justia. There are no page numbers in this version!! The paragraph quoted appears just before commencement of the dissent: “If the President wishes to discuss matters jointly between his private counsel and his official counsel , he must do so cognizant of the differing responsibilities of the two counsel and tailor his communications appropriately; undoubtedly his counsel are alert to this need as well. Although his personal counsel remain fully protected by the absolute attorney-client privilege, a Deputy White House Counsel … may not assert an absolute privilege in the face of a grand jury subpoena, but only the more limited protection of executive privilege. Consequently, although the President in his personal capacity has at least some areas of common interest with the Office of the Presidency, and although there may thus be reason for official and personal counsel to confer, the overarching duties of Lindsay in his role as a government attorney prevent him from withholding information about possible criminal misconduct from the grand jury.”

 

[Recently I heard a story about World War II that rings true today. Back then both sides used cyphers to scramble their messages, especially the ones about war plans, troop movements and so forth. The Germans had an especially good cypher, called Enigma, which they thought unbreakable. What they didn’t know was that the British had, in fact, broken it. So the Brits had a window into German operations and could take appropriate countermeasures when necessary. But the British advantage would last only so long as the Germans were unaware that their messaging was compromised.

The British advantage could be helpful for a lot of reasons, most especially because in the 1940s the Germans did a lot of bombing in England. In those days, by the way, many bombing campaigns were considered “strategic;” i.e., were focused on destroying factories, ports and other war-making “infrastructure.” The Germans didn’t worry much about civilian casualties when going after strategic targets. Later in the war our side pretty much did the same thing to them.

Well, one day the Germans did a major bombing run against Coventry, England, a town in the industrialized Midlands. The locals weren’t told about it in advance, didn’t evacuate, and the raid was catastrophic. In one night over 4,300 homes were destroyed, and two-thirds of the city’s buildings damaged.[1]So why wasn’t the target city warned? Well, there are two versions of an answer:

  • One is that the central government simply didn’t know Coventry was targeted that night. The government had data about an impending attack, but didn’t know where the German bombers would go.
  • The other is that the government did in fact know the target, but withheld the information for reasons of state. Warn Coventry and most likely that would tell the Germans Enigma was compromised. The British would lose their intelligence advantage.

So which is it? Did Winston Churchill sacrifice some civilians to preserve a competitive advantage in World War II? Or did he not know about the Coventry raid? Some say that the British had some information that might have helped them identify the target, but they didn’t understand it. On the other hand, Churchill himself is quoted as saying he had “aged 20 years” when he decided to let Coventry burn.[2] That implies he knew. This sounds like a good topic for a thesis. Perhaps some Ph.D. candidate in History can get to the truth for us.

The point of the story is not that it’s true or false. It’s that there are circumstances, conceivable circumstances, where our government – or any government – might elect not to tell its citizens about a threat. The TV version of that, of course, is the plastic character who decides people would panic if they knew the truth about this or that, so he [or she] lies to save us from ourselves. That’s pretty much a sci-fi cliché. Don’t tell anybody about the space aliens; if you do, the country might disintegrate!

But instead let’s talk about something more serious, about what happens if our government lies to us or says nothing about impending danger, and when that might happen. In particular, let’s look what might happen at the start of a global thermonuclear war.]

This is Fred, by the way, and yes, I’m back on nuclear war. Lots of people criticized my last post, saying I was far too pessimistic. Sure, if war caught us by surprise, people at the various grounds zero would not have much time to evacuate. But really, the critics said, when would a major war sneak up on us like that? Crises leading to war take time to build. Surely there would be advance warning. People would leave their bullseye neighborhoods as soon as they knew there was a problem.

Perhaps. Let’s think about evacuation for a bit. People won’t run until they’re sure there’s a crisis, right?   So who should they believe: the media [who these days are alarmists about everything, just to keep the ratings up]; the family psychic or minister, who seems to know just about everything; or our government?  I’m betting that, at the end of the day, most folks would turn to the government when the issue is war or peace. After all, it’s supposed to be the expert on foreign crises and will fight any wars that erupt. And in a crisis what will our government say about whether people should flee their homes? That depends. Remember Coventry.

Who Wants A Nuclear War?

Atomic conflicts are not a new problem. Luckily we’ve avoided nuclear war for seven decades, so we have no actual experience with it. But we’ve been thinking about it all that time, and a lot of good work has been done. For our purposes let’s start with an early example of the war plan genre: Herman Kahn’s scary treatise about the unthinkable, On Thermonuclear War.[3] It’s a classic; old but still relevant; one of the foundational books in the field. It also has things to say about our current subject.

Herman Kahn believed most governments, if left to their own devices, would prefer peace over war. [He said that over 50 years ago, and perhaps had in mind stable governments like those in Eastern and Western Europe; not the failed states we find today here and there around the globe.] Peace is safer than war. But, he added, if war is inevitable, most governments would prefer to strike first, rather than wait for their enemy to take the initiative.[4] Those who go first, attacking the enemy’s strike forces, improve their chances of surviving the engagement. This, of course, also was Dwight Eisenhower’s view when he was President.

If a country decides war is probable, the pressure on it to strike first increases. Once the other side understands that, it’s also motivated to do a first strike.  There is a “reciprocal fear of surprise attack” that pushes both sides toward war.[5]

How Bad the War?

It would be very bad. Back in the 1950s we had a combination of nuclear and thermonuclear weapons in the inventory. [The so-called “A” and “H” bombs.] The difference between them is the difference between kilotons and megatons. A kiloton is 1000 tons. A megaton is 1000 kilotons. The destructive power of the bombs used on Hiroshima and Nagasaki was measured in kilotons. Today the warheads on our missiles are measured in megatons. “Megaton weapons are comparable to gross forces of nature, such as earthquakes and hurricanes.” [6] If used, they would be enormously destructive.

Evacuating People

So here we are in a paranoid situation, two countries, hyper vigilant, sure that there will be a war, each afraid that the other will attack first, and then one of them evacuates its cities. Flee, flee, it says to its people! The bombs are coming! What does that tell the other side? That its enemy is going to war, and is preparing its people to survive retaliation after it strikes? That’s the logical conclusion, wouldn’t you think? But evacuation is more than a “tell” in poker. It’s the same as a declaration of war. [7]

Herman Kahn was of two minds about this. He thought that evacuations should be low key and reassuring to the other side. Evacuations should be “as undramatic as possible,” and assurances should be given that no decision has been made to go to war. But if one side has decided to launch a surprise attack, of course it would make reassuring noises. Why ruin the surprise? And why would its adversary believe anything from a country that’s obviously mobilizing?

Why indeed? Even Herman Kahn saw the problems. “Evacuation-type maneuvers,” he said, “are risky because they may touch off an attack by the other side.[8]” And that, I think, is the answer to the question I posed at the beginning of this piece. Why would a government refuse to tell its population about an impending threat? Answer: To avoid aggravating an already bad situation. Perhaps it thinks a peaceful resolution is still possible. Perhaps it’s going to launch a pre-emptive strike and doesn’t want to telegraph its intentions. Either way, it doesn’t want to agitate the other side. Boom!

Conclusion

So get used to it. In a crisis your government may well lie to you, for the very best reasons, of course. There are always reasons. Use your own judgment when you read the news.

[Please note: This post is speculative only. We don’t have any government secrets here at Elemental Zoo Two, and don’t want any. If you want confidential sources, named or unnamed, go to the Washington Post. And we’re not accepting calls from North Korea. Have a nice day.]

 

 

[1] See the Wikipedia entry on the Coventry Blitz, at https://en.wikipedia.org/wiki/Coventry_Blitz .

[2] Id. at Coventry and Ultra.

[3] See Kahn, On Thermonuclear War (Princeton, 1960, Transaction 2007, 2010). The Transaction edition is a reprint of the original, plus some additional material added by the publisher. The book will be cited as Thermonuclear War at __. Page references will be to the 2nd Transaction edition of 2010.

[4] Thermonuclear War at p. 136. “Most governments when asked to choose between war and peace are likely to choose peace, because it looks safer. These same governments, when asked to choose between getting the first or the second strike will very likely choose the first strike. They will do so for the same reason they choose peace in the first choice; it is safer.… [M]ost governments would much prefer getting in the first strike once they feel war is inevitable, or even very probable.”

[5] Id. “As soon as either side thinks that war is probable it is under pressure to pre-empt. …[T]he instability is increased  by the “reciprocal fear of surprise attack” in which each side feels a pressure to strike mainly because it feels the other side has exactly the same pressure.”

[6] Thermonuclear War at p. 313: “The most important technological development … is the fact that it would have been a thermonuclear rather than an atomic war.  The difference between megaton and kiloton is very large, in some ways larger than the difference between a kiloton and a ton. Megaton weapons are comparable to gross forces of nature, such as earthquakes and hurricanes. The effects of the use of such weapons are not only extremely widespread; they are also occasionally very subtle and hard to predict. As a result, for the first time in the history of war we have what might be called the problem of the post attack environment.”

[7] Thermonuclear War at p. 648. “If true and clear to the enemy, this is extremely serious, because he will be impelled to strike the U.S. during the evacuation (not to kill civilians, who are not really a military target, but to get in the first blow.)”

[8] Id. at 132.

[This is G. Sallust, and today I’m doing a [hopefully] short post on health care, a subject that’s bedeviled our politics for years. More specifically, we’ll talk about the Patient Protection and Affordable Care Act[1], popularly known as Obamacare, passed in 2010. As you may know, we did a lengthy blog a while back detailing how that was done, and the rather clownish debate that accompanied the complex parliamentary procedures employed by both sides.[2]  As I recollect, the Republicans took the position that anyone who supported the bill probably was a Marxist, while the Democrats said that basically the Republicans just wanted to kill the poor. The “debate” was not a consensus-building exercise.]

As we all know Obamacare finally did pass, and thereafter Republicans in the Congress voted repeatedly to abolish it. None of these efforts got by President Obama because a President has the power to veto legislation, and it’s very hard for Congress to overcome one of those even when Conservatives wish it so. [3]  My take on President Trump is that he is more moderate on Obamacare than the far right wing of his party really likes. He’s willing to “repeal and replace” the program, not just do away with it. We’ll find out what that means when the Republican House and Senate produce legislation that they both agree to. If he signs it, that act will define his Administration’s policy.

Best Care in the World?

Back in 2009, 2010 one of the arguments against Obamacare was that we already had the best medical care in the world, so why tamper with it by regulating service and letting more people in? That would have been a good argument if it were true, but it wasn’t. In 2000 WHO [the World Health Organization] published a report that studied and ranked health system performance around the world.[4]   France was ranked # 1 in “Overall Health System Performance”; Germany, # 25; and the U.S., # 37.[5]

When WHO issued its 2010 report, in time for the great debate on healthcare here in the U.S., it had even more embarrassing facts for people who thought we were the greatest. [6] Just looking at the same 3 countries, France, Germany and us, it’s obvious that the people there live measurably longer than we do here. Our life spans are OK, I guess, but definitely we’re not # 1, ever. Take a look at these statistics from 2000 and 2008:

Life Expectancy at Birth in 2000, 2008, for France, Germany and the United States

France

  • CY 2000: men 75 years; women 83 years; average 79 years;
  • CY 2008: men 78 years; women, 85 years; average 81 years;

Germany

  • CY 2000: men 75 years; women 81 years; average 78 years;
  • CY 2008: men 77 years; women 83 years; average 80 years.

United States   

  • CY 2000: men 74 years; women 80 years; average 77 years;
  • CY 2008: men 76 years; women 81 years; average 78 years[7]

So did things get better in 2015? They did so marginally; but we were still last of the 3, and again men were dying sooner than women:

Life Expectancy at Birth in 2015 for France, Germany and the U.S.

France

  • CY 2015: men, 79.4 years; women, 85.4 years; average 82.4 years;

Germany

  • CY 2015: men, 78.7 years; women, 83.4 years; average 81.0 years;

United States

  • CY 2015: men, 76.9 years; women, 81.6 years; average 79.3 years. [8]

U.S. Spending

But in spite of our poor performance compared to France and Germany, we do lead everyone in one important area. We spend more on healthcare than anybody else in the world.  And how do I know that? Well, the CIA keeps track of that kind of thing. According to the CIA World Factbook[9],

  • The U.S. spent 17.1 % of its GDP on healthcare as of 2014
  • France spent 11.5 % of its GDP on healthcare as of 2014
  • Germany spent 11.3% of its GDP on healthcare as of 2014

So we lead the pack overall in spending, if not in results. After all, the spending numbers are expressed as a percentage of Gross Domestic Product; our GDP is the largest in the world, at least for now; and we spend the highest percentage of GDP on healthcare, so we are, by definition, the big spenders of the planet. We just don’t get as much for our money as others, like the French seem to do. And costs here are going up. If you don’t believe that, take a look at your medical insurance premiums, deductibles and co-payments. Word is, they’ll rise again, unless the insurance companies drop their medical coverage altogether, or the Government steps in with a subsidy. Is this a great country, or what?

And by the way, current news is that the new president of France, Emmanuel Macron, is looking for ways to improve French health care.[10] He seems to think that the French system is a bit too expensive. Hopefully he won’t ask us for advice, or if he does so to be diplomatic, he won’t take it. Why would he want to ruin the better [and less expensive] French system by adopting our mistakes? It would be like sending American wine to France and expecting people there to like it.

Or perhaps he might decide to adopt the good parts of our system and forget the rest. If he does that, and can identify them for us, then perhaps we should take his advice, rather than vice-versa.  But actually I don’t think our economists, or politicians, would ever accept ideas from a foreigner that contradicted their own. We are the greatest, right?

 

 

[1] The official citation is Pub. Law 111–148, Patient Protection and Affordable Care Act, 124 Stat. 119 – 1025 (March 23, 2010).

[2] See the blog of 09/19/2013, Health Care Again and Again, available at https://opsrus.wordpress.com/2013/09/19/health-care-again-and-again/

[3] See U.S. Constitution, Article 1, §7. For an interesting article on the veto, see Cameron, The Presidential Veto, available at https://www.princeton.edu/~ccameron/The%20Presidential%20Veto%20v3.pdf

[4] See WHO, The World Health Report 2000, available at http://www.who.int/whr/2000/en/.

[5] Id. at p. 153 – 155.

[6] See WHO, World Health Statistics 2010, available at http://www.who.int/whosis/whostat/EN_WHS10_Full.pdf?ua=1

[7] Id. at Mortality and Burden of Disease, p. 50 – 54.

[8]  By the way, for future reference you can download the most recent data from the WHO Global Observatory, at http://www.who.int/gho/publications/world_health_statistics/en/ These numbers are taken from Annex B, Part I of the 2015 data.

[9] This is another Government document that’s not a secret, but this time it’s intentional. You can  find it at  https://www.cia.gov/library/publications/the-world-factbook/fields/2225.html#fr

[10] See The Lancet, Casassus, Macron’s vision for the French health system (13 May 2017), available at http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(17)31268-0/fulltext?elsca1=etoc

[This is Fred again. I was more or less shut out of the UFO project, so I decided to look for something else civilized folks don’t like to talk about and discuss that. That could have been any one of a lot of things, usually involving sex or death, and possibly the End Times. But last week I spotted a new book about bomb shelters that fits perfectly, and is interesting to boot, so I went with that. The book is Raven Rock;[1] my local book store got only two copies; I snapped up one of them; and have been reading it since. It’s well researched, has lots of footnotes [I like that sort of thing] and seems accurate. I lived through some of the events it describes and haven’t found any glaring errors.

Also it’s worth noting that our posture vis-a-vis North Korea and its weapons program has worsened quite a bit and people are beginning to notice. North Korea has built some of the smaller nuclear weapons – the  so-called atomic ones – and our media and foreign policy establishment seem totally afraid that North Korea might use a few of those to attack us or someone we like. Some, most notably the hackers known as “Anonymous,” have predicted a nuclear war in our future: no, strike that; in our near future[2]. See https://www.youtube.com/watch?v=GfOC2nz5Nmc&feature=youtu.be . I don’t agree; nor do I disagree with Anonymous.[3] Who knows what might happen? But the current furor makes revisiting the bomb shelter issue look a bit more intelligent than it did, say, last week.

G. Sallust has a story that pretty much explains who needs bomb shelters and who doesn’t. It seems that he worked in the Pentagon in the 1970s, and lived within walking distance of it. Each day he would leave work via the South Parking entrance, walk through the parking lot to a tunnel under the highway[4], go through the tunnel, then cross a road to his apartment building. So one day he was doing just that and was passed by a military guy doing the same thing. Being a friendly sort, G. decided to make small talk. “I read in the Post,” he said, ‘that Soviet missiles could reach us within 15 minutes of launch if we go to war. What would you do if you got word that was happening?”

“I’ve thought about it,” the guy said. “I’m not responsible for making launch decisions, so probably I would do what we’re doing now. I would have just enough time to leave the Pentagon, go to our apartment building, take the elevator to the 14th floor, go to the roof, crack open a beer, and watch the traffic jam. Then, boom!” The moral of the story was, you don’t have post-apocalypse worries if you live or work on Ground Zero. The Pentagon certainly was that.

The same was true for me back in the 1960s, when I lived outside an air base that hosted SAC B-52s[5] kept ready to respond if Soviet missiles came our way. The bombers were “locked and loaded,” you might say, and so were the crews; both were ready to take off in less than 15 minutes if the need arose. That made the air field a prime target for our enemies; in time of war they would try to strike before the planes took off. Whether the planes escaped or not, bystanders didn’t need to make long-term survival plans. The whole area would go boom when the missiles arrived!]

So bomb shelters aren’t really for the people at Ground Zero. Modern thermonuclear weapons [bombs or warheads] most likely will destroy anything in the blast zone that humans have built. Shelters are for the people who aren’t immediately incinerated; they’re for survivors who need to be fed, watered and protected from radiation. You put them far away from the blast zones and hope survivors get there before they die of the aftereffects of the attack. What aftereffects? Well, radiation poisoning, dehydration, starvation, epidemics, violence, that kind of thing.

We do have bomb shelters for that, but mostly to protect the Government, and its ability to fight a war; and to plan for reconstruction; not to shield civilian bystanders. The public are expected to flee the various Ground Zeros that will dot our landscape, and forage for food and take shelter on their own. No doubt there’s a Government plan to help with that – usually labeled “Civil Defense”- but I haven’t heard much about it in recent decades. I’ll bet you haven’t, either. Post war everything will be magically reconstructed through the miracle of capitalism. Details to follow.

Global Nuclear War

These kinds of things were openly discussed back in the day, and sometimes intelligently, but you don’t hear much about nuclear war in today’s media. Instead you hear babble and chatter about our “national interest” in this sea lane or that mountain top, or in righting wrongs in one place or another, or spreading democracy here and there, or in fighting terrorism or making the world safe for our way of life. Our leadership in the 1950s didn’t think that way. They were much more practical, and knew stupidity could have consequences. “Global war as defense of freedom [is] almost [a] contradiction in terms.[6]Who said that? Our President, Dwight Eisenhower, a seasoned warrior from World War II who held five stars and commanded the European Theatre of that war.[7] His Vice President, Richard Nixon[8], also had served, and so had a large part of the American population.

So what? You might ask. Nobody wants a “global” nuclear war. Let’s just have a limited one. We’ll just use a few nukes here and there, and promise not to do more; the other side will fold; and we’ll win. What’s wrong with that? Winning is good.

It’s unrealistic.  Suppose we launch one or two nuclear missiles at Russia to punish its government for something it did, or we thought it did, in the Middle East. Then we promise that we won’t throw any more at them. Why should they believe us? We already did a sneak attack. What’s to stop us from doing another? Also, the Russian military would be livid. If they were caught napping by us, they won’t want to repeat the experience. It would be better, they would argue, to strike first, in strength, to maximize Russia’s chance of surviving a war. Otherwise Russian armed forces would be merely targets for the Americans.

So how do I know that’s the way they would think? Because it’s the way we would.[9] President Eisenhower, for one, understood that “… the only way to mitigate losses [in a nuclear war] would be to strike first in a surprise attack ordered on the sole authority of the president himself ….”[10] If he did otherwise, he said, the Congress should have him shot for dereliction of duty.

Shelters

Raven Rock isn’t about bomb shelters for the masses, so probably we should reserve that topic for a later post. The book discusses four principal ones, two of which are well known today, and two that are relatively obscure. All are [or were] intended to help preserve the “continuity of government”[11] in the event of a big war. In Government-speak that’s also known as “COG.” The facilities are:

  • A very large fallout shelter built into the Greenbrier Hotel, a resort complex in West Virginia, to shield our Congress in the event of war.
  • The Cheyenne Mountain communications center, maintained by the North American Aerospace Defense Command [NORAD] near Colorado Springs, CO.
  • Raven Rock, an alternate DoD command post and communications center maintained in Pennsylvania in case the Pentagon is destroyed. Actually the military identified a need for an alternate Pentagon just six years after the original opened for business.[12] They selected Raven Rock and have been digging there and improving the site ever since.[13]
  • Mount Weather, a similar facility maintained for the civilian agencies.[14]

There was a time when each of these was a big secret. Since they were alternate command and control centers for use in time of war, or as a refuge for key members of our Government, or both, no one wanted them targeted for nuclear weapons. While three of them were truly “hardened” sites, possibly able to withstand a nuclear attack, why test that if you can keep the site a secret? The enemy can’t nuke what it doesn’t know about. However, none of the big 4 is secret anymore. Today they all have very informative Wikipedia entries.[15] So if the Government wants to have secret places to hide again, it will have to build new ones. Perhaps it has. Stay tuned.

Reconstruction

President Eisenhower was not an optimist about nuclear war, and how it might turn out for us. He thought, for example, that every country that entered such a war would emerge as a dictatorship. Democracies could not survive the stress of all that death and destruction.[16] Also the survivors might be set back quite a bit in their technology. If World War 3 is nuclear, the one after that might be fought with bows and arrows.[17]

Nevertheless, he didn’t give up on the notion that we might rebuild something after a nuclear war and, to that end, made arrangements to appoint key people, leaders of industry, to guide the effort. These individuals, also known as his “shadow government,” were specially appointed by him to take charge if disaster struck, and do what was necessary. Perhaps the legality of all that was questionable, but the idea was that if everything was falling apart, the survivors would go along.[18]

The idea began with the Eisenhower Administration, but didn’t end there. The Reagan people, for example, devised a complex plan to deal with a hypothetical “decapitation attack,” i.e. a successful attack mounted by our adversaries to eliminate most or all of our leadership. It also included a list of civilians who could be drafted to take over in case of need.[19]

My guess is that those are not the only administrations to have had that idea. It’s a natural if one is planning for catastrophe. So don’t be surprised if there are more revelations.

Conclusion

So that’s enough for now about bomb shelters and disaster plans.  I don’t put a lot of confidence in shelters largely because, if they’re hardened, most likely they’ll be obvious from the air, something like a castle in the middle of nowhere, with roads running to it and no reason to exist. I’ll just bet that we spend a lot of satellite time looking for that kind of thing in Russia; and they do the same with us. And both sides, if they find something interesting, add it to a target list, along with a note as to what size nuclear device might be needed to crack it. Aerial and/or space surveillance can be very effective. Just ask ISIS about the MOAB.

Of course if you live out in the country and a good distance from a potential Ground Zero, and worry about nuclear war, you might want to consider some sort of fallout shelter, perhaps like the ones people use to shelter from tornados. But be sure to cover it with at least 3 feet of earth. And, of course, if you live near any kind of military installation, you might want to forget the whole thing. You’re probably in a Ground Zero of some sort. Blast is your problem, not radiation.

 

[1] See Graff, Raven Rock, The Story of the U.S. Government’s Secret Plan to Save Itself While the Rest of Us Die (Simon & Schuster, 2017).  Hereafter the book will be cited as Raven Rock at __.

[2] See also New York Post, Perez, Anonymous warns world to ‘prepare’ for World War 3 (May 8, 2017), available at http://nypost.com/2017/05/08/anonymous-warns-world-to-prepare-for-world-war-3/  

[3] If I did, no doubt they wouldn’t forget. Who would want Anonymous for an enemy?

[4] Today it’s called I-395. Before that, it was “Shirley Highway.”

[5] For those of you who must know, it was Robins AFB in Georgia. It’s still there, but apparently the nuclear weapons aren’t. See the Wikipedia entry on Robins AFB at https://en.wikipedia.org/wiki/Robins_Air_Force_Base

[6] This is from President Eisenhower. See Raven Rock at p. 46.

[7] Wikipedia has a pretty good Eisenhower biography at https://en.wikipedia.org/wiki/Dwight_D._Eisenhower .

[8] Wikipedia’s Nixon biography is at https://en.wikipedia.org/wiki/Richard_Nixon .

[9] See Raven Rock at p. 67. “Wars and military endeavors were unpredictable, irrational and difficult to control once started; they escalated in unintended ways and, and military commanders would never admit defeat if they still had weapons to deploy. Eisenhower was certain any war with the Soviet Union would become a nuclear war, and that any nuclear war would escalate into a full, all-out general nuclear exchange. That end, catastrophic for the planet, was just too awful to contemplate. … ‘You might as well shoot everyone you see and then shoot yourself.’”

[10] See Raven Rock at p. 68.

[11] See Raven Rock at p. 49.

[12] See Raven Rock at p. 50.

[13] See Raven Rock at p. 49 – 54.

[14] See Raven Rock at p. 61-62, 130-32, 185 –188, 228 – 231.

[15] See Raven Rock at https://en.wikipedia.org/wiki/Raven_Rock_Mountain_Complex ; Mount Weather, at https://en.wikipedia.org/wiki/Mount_Weather_Emergency_Operations_Center ; Cheyenne Mountain Complex, at https://en.wikipedia.org/wiki/Cheyenne_Mountain_Complex ; and The Greenbrier Bunker photos at http://www.bing.com/search?q=the+greenbrier+bunker+photos&FORM=QSRE7 .

[16] See Raven Rock at p. 57. “The President said that, of course, his imagination as to the horrors of a third world war might be overdeveloped, but he believed that every single nation, including the United States, which entered into [a nuclear] war as a free nation would come out of it as a dictatorship … That will be the price of survival.”

[17] See Raven Rock at p. 77: “The destruction,” Eisenhower told his cabinet at one point “might be such that we might ultimately have to go back to bows & arrows.”

[18] See Raven Rock at p. 92 – 97.

[19] See Raven Rock at Chapter 16, Nine Naught Eight, p.297 – 337

[G. Sallust, our reprehensible founder called the other day, and I was the one who answered the phone. So, being startled and at a loss for words, I asked the obvious question. “G,” I said, “you left us a while back to elope with a 19 year old; so how’s your sex life?” First he said nothing, then mumbled something that sounded like “not interested,” and “creepy old man,” then changed the subject. “There may be UFOs in New York,” he said, “and I want to look into it.” It seems that he read our post on printing money, especially the end part about watching the skies, and heartily agrees. The skies shouldn’t be left to NASA and DoD. We all need to be vigilant.

This is Fred, by the way. Normally UFOs are part of my beat here at the Zoo, but G. Sallust is the boss, even though many of us would rather not be seen in public with him, so he gets to go anywhere and discuss anything he wants. But there’s more to it than that. It – the UFO story – starts in Upstate New York, where he’s currently lurking, and he is our expert on what happens up there. That’s because he was raised in the area, and knows a little bit about the deep background of the locality: about the depressed economy, local native tribes, religious communities, witch covens, political movements, criminal enterprises and local oddities, plus the numerous local colleges, public and private; all percolating amongst the dairy farms and hollow cities. So I guess he’s the one best qualified to do our first report on who’s seeing UFOs today.]

You bet I am. But let’s start with today’s theme, which is watching the skies. It dates back to 1951, when Hollywood unleashed The Thing from Another World[1] on the American public. Wikipedia says it is “now considered by many to be one of the best films”[2]of that year and I’ll not dispute them on that. I searched for it on YouTube, and it no longer seems to be available as a free download, which implies that today it’s still worth something to somebody. Nevertheless the mantra of “watch the skies” was pretty common back in the 1950’s, and still resonates today. We were mostly looking for Russian bombers, but space aliens were always a possibility. You can see that if you take a look at a film clip that actually is available on YouTube, i.e., the one at https://www.youtube.com/watch?v=muFNT069Igw

For a while the Air Force ran a program to investigate UFO sightings and perhaps uncover the truth about them. It was called Project Blue Book.[3] But that was discontinued around 1970 after publication of the so-called Condon Report.[4] Of course the Report didn’t actually disprove all such sightings. That would have involved proving a negative, i.e., that something [space aliens, interdimensional beings, etc.] did not exist. That’s hard to do, unless one can identify – conclusively – something previously unidentified. What the Report said, instead, was

“In our study we gave consideration to every possibility that we could think of for getting objective scientific data about the kind of thing that is the subject of UFO reports. As the preceding summary shows, and as is fully documented in the detailed chapters which follow, all such efforts are beset with great difficulties. We place very little value for scientific purposes on the past accumulation of anecdotal records, most of which have been explained as arising from sightings of ordinary objects. Accordingly in Section I we have recommended against the mounting of a major effort for continuing UFO study for scientific reasons.”[5]

The record was not useful. End of story, at least for the Air Force. Eventually private sources began to collect and report on the more recent sightings, the two most important sources currently being MUFON[6] and NUFORC.[7] These aren’t Government entities, of course; they’re enthusiasts, probably working as volunteers[8]; and mostly they take reports.

Now comes the good news!  Someone is analyzing the current data! I found this out from, of all places, the New York Times.[9] I know a lot of you don’t trust that paper but even today it’s full of reporters and occasionally they do turn up things which, mirabile visu, the Times reports! In this case it was a story about UFOs that’s datelined “Syracuse!” Then I looked a little further and found that Central NY also has a blog[10] that concerns itself with UFOs and their comings and goings. But for the Times, I wouldn’t have known any of that. And finally, there’s a book just out that analyzes UFO sighting data for the last 15 years.[11] Whose data? Why the sighting reports collected by MUFON and NUFORC.

So I ordered the book; it’s called the UFO Sightings Desk Reference[12] and I’ve been paging through it. It’s massive and very interesting. It says, for example, that annual UFO sightings have increased dramatically in the last 15 years, from 3479 in 2001 to 11,868 in 2015.[13] In total MUFON and NUFORC collected over 121,036 sighting reports over the sample period.[14] When you think about it, that’s quite a few, and they’re all eyewitness accounts. Are they all “vetted,” i.e. personally examined by somebody in MUFON or NUFORC? Not likely. The Government used to do that kind of thing back in the 1950s and 1960s, but gave that up when it ended Project Blue Book. MUFON and NUFORC vet reports from time to time, but lack the resources to do it consistently. That would require an “army of volunteers” that currently doesn’t exist.[15]

Nevertheless, the numbers are interesting. They’ve gone way up in the last 15 years. If somebody decided to look at the underlying reports, would that disprove all of them? Probably not. Does that mean some of them are true? No. Most likely it would mean that there’s not enough evidence to decide one way or the other. It’s like the search for extraterrestrial life in general. Absence of proof [that such life exists] is not proof of its absence. It’s not proof that it exists, either. It simply means that we have to look further to decide.

Now let’s get back to the data, unreliable as it may be. In general UFO sightings are trending up, dramatically up; but the trend isn’t uniform; some states lead the pack, like California, which has had a 15 year total of 15,836 sightings;  followed by Florida [7787], Texas [7058], Washington [5226], Pennsylvania [5176], New York [5141], Arizona [4726], Illinois [4191], Michigan [4160] and Ohio [4115].[16] But that’s not nearly as interesting as what’s happened in small parts of individual states. You see, Costa and Costa also break out their data by county, and some of those seem to be virtual beehives of UFO activity.

Take, for example, Onondaga County in Upstate New York, where the authors live. [It’s named after the Onondaga Nation, one of the six tribes of the Iroquois Confederation.] Anyway, the county started in 2001 with 3 sightings, and eventually progressed to 29 in 2015. Sightings for the past 5 years have been 14 in 2011, 18 in 2012, 22 in 2013, 21 in 2014 and, of course, 29 in 2015.[17] That’s a lot for a small area.

It seems to me that, with all the advances in recent decades made in sensor technology, we ought to be able to solve the problems that government investigators had in Project Blue Book. Instead of going in after-the-fact to study events, today our Government ought to select 5 or 10 areas that are known hotbeds of UFO activity, like Onondaga County; blanket them with the latest sensor technology; and wait to see what turns up. Because we’d be setting up in advance, rather than after the fact, we could lay careful plans and use anything that might work: spy satellites; airborne reconnaissance [e.g., loitering drones]; ground sensors and even stuff we haven’t heard about yet. The public doesn’t need to know what’s deployed; just that the Government is back on the job. Details of the effort should be highly classified.

Anyway, that’s my modest proposal to repel UFOs and other night-time intruders. And please don’t thank me, all of you residents of Onondaga County! I’m just trying to keep us safe.

[1] Wikipedia does a good job with this kind of thing, so for more information check out its piece on the movie at https://en.wikipedia.org/wiki/The_Thing_from_Another_World .

[2] Id at Critical and box office reception. See also the Internet Movie Database at for a somewhat unenthusiastic posting about the Thing from Another World. It’s at http://www.imdb.com/title/tt0044121/

[3] Wikipedia has a good piece on Project Blue Book. It’s at https://en.wikipedia.org/wiki/Project_Blue_Book

[4] If you’re interested, a copy currently is maintained on the internet by NCAS [National Capital Area Skeptics] at http://files.ncas.org/condon/index.html . The official citation for the report would be, I guess, Condon,  Scientific Study of Unidentified Flying Objects, Conducted by the University of Colorado under Contract No. 44620-67-C-0035 with the United States Air Force (1968).

[5] Id. at Conclusion, p. 67.

[6] That’s the Mutual UFO Network, at http://www.mufon.com/ .

[7] That’s the National UFO Reporting Center at http://www.nuforc.org/  .

[8] Don’t hold me to that. This is America, after all. No doubt somebody is drawing a salary.

[9] See New York Times, Blumenthal, People Are Seeing U.F.O.s Everywhere, and This Book Proves It (April 24, 2017), available at https://www.nytimes.com/2017/04/24/science/ufo-sightings-book.html?_r=0

[10] The blog is called New York Skies, and it’s hosted by the Syracuse New Times at https://www.syracusenewtimes.com/category/blogs/new-york-skies-ufo-blog/

[11] It’s Costa & Costa, UFO Sightings Desk Reference: United States of America 2001-2015 (March 24, 2017). I bought our copy from Amazon, where else? I found it at https://www.amazon.com/UFO-Sightings-Desk-Reference-2001-2015/dp/1544219237

[12] See Costa & Costa, UFO Sightings Desk Reference, United States of America 2001 – 2015 (Dragon Lady Media 2017), hereafter cited as Costa & Costa at __.

[13] See Costa & Costa at p. 5.

[14] See Costa & Costa at p. 1, 121,036 Eyewitness Accounts.

[15] See Costa & Costa at p. 21.

[16] See Costa & Costa at p. 7.

[17] See Costa & Costa at p. 240.

[We’re working on a hot project for next week, which originally was to be for this week, but production was interrupted due to lack of research materials. Sorry, we won’t review a book until we have it in our hot little hands. We aren’t pundits on major media. They get paid to do that kind of thing; we don’t get paid at all; so we have the luxury of standards.

So, lacking anything publishable in the in-box, I polled the staff for ideas. What can we do very quickly, I asked, to publish something this week? One guy said he’s been experimenting with his new phone, and found out how to take a picture with it. He could donate a great picture of a bagel from a nearby coffee bar. [At least it wasn’t a donut.] It was appetizing for sure, and very artistic; but, frankly, not our kind of thing. There’s no policy or social commentary inherent in bagels; at least not right now. So I turned it down.

Then there was the guy who wanted to do a rant on gender-bending sociologists, and how they threaten the English language. Look at the nonsense they teach! I turned that down also, at least for now. My theory was this: Apparently there are 50 or more of the new genders, or sub-genders; at least that’s what I’m told. How can that be a threat to our language? No students will remember any of that stuff after the exams they’re cramming for are over, so they won’t use it, either. Only the Government would adopt that kind of thing. Can you imagine the furor it might cause if someone incorrectly identified his or her [or …?] gender on a federal form and is prosecuted for it?[1] Now that would be a blog! Come back when something like that happens.

So that leaves me with Larry’s suggestion, which is to commemorate the end of the 8 judge Supreme Court. Will the new justice inject more partisan rancor into the Court’s deliberations? Will his presence mark the end of the occasional “unanimous” Court decision? Frankly I don’t know, but perhaps Larry does.]

I don’t either and won’t speculate. There aren’t many unanimous opinions in a year, and I don’t know if they will increase or decrease with the advent of Justice Gorsuch. Only time will tell. But I do have an interesting one, Dean v. United States,[2] that came out just this month and shows what the pre-Gorsuch Court could do when the Government clearly overreached. Let me explain.

Levon Dean, Jr. and his brother were not nice people. They robbed a methamphetamine dealer in a motel, and another at home, and used a modified semiautomatic rifle both times. Apparently the gun wasn’t fired: it was used to threaten the victims, and later to club them.[3] At the end of the trial Levon Dean was convicted of:

  • one count of conspiracy to commit robbery,
  • two counts of robbery,
  • one count of possessing a fire­arm as a convicted felon, and
  • two counts of possessing and aiding and abetting the posses­sion of a firearm in furtherance of a crime of violence.[4]

Dean did not challenge these convictions, but disputed the way his sentences were calculated.

The last charge was brought under 18 U.S.C.  §924(c). That statute “criminalizes using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or possessing a firearm in furtherance of such an underlying crime.” The two robbery convictions “qualified as predicate crimes of violence” under that statute.[5] However, §924(c) was very important for sentencing purposes: it provides that, in addition to any other sentences, someone who uses a firearm in a “drug trafficking crime” will get a mandatory minimum sentence of 5 years for the first offense, plus 25 years for the second. So someone like Dean, who had a first offense and a second in the same incident, was facing a mandatory minimum of 30 years, plus whatever might be assessed for the other counts.

The mandatory minimums had to be run consecutively – that is, in addition to – anything imposed for the other offenses. “For Dean, this meant a 30-year mandatory minimum, to be served after and in addition to any sentence he received for his other counts of conviction.”[6] The trial judge recognized that the 30 years was, indeed, mandatory, but saying that Dean “was ‘clearly the follower’ and that he lacked ‘any significant history of any violence,’ agreed that 30 years plus one day was ‘more than sufficient for a sentence in this case.’”[7] There were guidelines that recommended more than 1 day for the remaining crimes, and the trial judge felt constrained by Circuit precedent to do more; but due to the severity of the mandatory minimum sentences, he still imposed less than the guidelines.[8]

Sentencing decisions are guided by statute, specifically by 18 U.S.C. §3553(a) and the factors it specifies:

The list of factors is preceded by what is known as the parsimony principle, a broad command that instructs courts to “impose a sen­tence sufficient, but not greater than necessary, to comply with” the four identified purposes of sentencing: just pun­ishment, deterrence, protection of the public, and rehabili­tation ... A sentencing court is then directed to take into account “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as “the need for the sentence imposed” to serve the four overarching aims of sentencing … The court must also consider the pertinent guidelines and policies adopted by the Sentencing Commission.[9]

The Government argued, and the appellate court agreed, that the trial court should have calculated the proper sentences for each count without adjusting any of them to account for the impact of mandatory minimum sentences impose by §924(c). The mandatory minimums are imposed to prevent “district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory mini­mum under §924(c) is already punishment enough.”[10]

But the Court found “no such intent [to limit judges] in the language of §924(c).” That language “simply requires any mandatory minimum under §924(c) to be imposed ‘in addition to’ the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sen­tencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.”[11] In short, while the mandatory minimums can’t be changed, other sentences can.

So what conclusions do we draw from this? Well, perhaps that the Court doesn’t much care for mandatory minimum sentences; that it thinks sentences should be tailored to the crimes; that it will give mandatory minimums force and effect when they are expressly required by law; but that it’s not eager to expand them beyond their obvious scope and intent. Anyway, that’s what looks to be the view of 8 judges on the Court. What about Justice Gorsuch? Who knows, perhaps he agrees that enough is enough?

 

 

[1] That’s for making a “false statement,” of course. See, e.g., 18 U.S.C. §1001(a): “Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both ….” The statute is available from the GPO, at https://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap47-sec1001.pdf There are lots of other “false statements” provisions in the U.S. Code, but this is the one you often see cited on federal forms, like those you might use to apply for a government job.

[2] Dean v. United States, 581 U.S. ___ (2017) (slip opinion) (hereafter cited as Dean at ___.) The Court was unanimous; the opinion of the Court was delivered by Chief Justice Roberts.

[3] See Dean at p. 1 – 2.

[4] Id. at 2. See 18 U. S. C. §§2 & 924(c).

[5] Id. at 2.

[6] Id.

[7] Id.at 3.

[8] Id. at 3: “. Viewed on their own—and not as part of a combined package—those counts plainly warranted sentences longer than one day. In the end, the judge still granted a significant downward variance from the 84–105 month Guidelines range. Dean received concurrent sentences of 40 months for each non ­§924(c) conviction ….”

[9] See Dean at 4.

[10] Id. at 8.

[11] Id.