Wine Shelf-Talkers: Consumer Aid or Consumer Fraud?

If you’ve ever wandered around a liquor store or the alcohol section of many groceries, you’ve no doubt seen how many different bottles of wine are available for purchase. Unless a consumer has previously tried a particular bottle or had one recommended by a trusted friend, how is a consumer supposed to choose a bottle? After all, from the hundreds, even thousands, of different wines available, there are dramatic differences in quality and taste, not necessarily associated with price.

Better liquor stores (and even more so with wine shops or liquor stores specializing in wine) have employees (or proprietors) who are familiar with as many of the wines as possible and, even if not familiar with a particular bottle, usually have some knowledge of the producer or other information from which they can help a consumer make an informed decision. The best employees of the best wine shops and liquor stores know the right questions to ask of customers to learn their particular palates in order to recommend appropriate wines. But at your run-of-the-mill liquor store or grocery store, there is simply no way to have employees this knowledgeable about the wines and customers or willing or able to devote the time (and expense) to learn about the wines and customers. Try asking an employee at most grocery stores whether a particular bottle of wine is any good and you’ll most likely get a blank stare or a simple “Uh, I dunno”.

My mother used to own a women’s clothing store. One of her strengths was knowing her customers’ tastes (not to mention what they’d previously purchased). Thus, if a husband came into the store and wanted to buy his wife a present, my mother could direct him to something that she knew the wife would like (and look good in and didn’t already own). A similar philosophy must work for a wine store: If the proprietor learns what I like and consistently recommends wines that I do, in fact, enjoy, then I will continue to respect and follow his advice (and shop at his store). By contrast, if the proprietor recommends wines that I do not like or doesn’t take the time to learn my palate, then I have no reason to trust his recommendations (or frequent that store).

But not everyone has the time to develop a palate, to shop at a specialty wine store, to get to know the proprietor (or allow the proprietor to get to know them), or, perhaps most importantly, to spend much money for a bottle of wine. How then can a consumer decide which of the numerous bottles available at the local grocery or regular liquor store to buy? How do you separate the good from the mediocre from the swill?

One method employed by many stores (and eschewed by many others) is the “shelf-talker”. This is usually a small note displayed by the bottle to tell the consumer what to expect from that particular wine. Within the wine community, there is some controversy about the use of shelf-talkers. For myself, I recognize the usefulness of shelf-talkers, but am often wary. A recent incident (discussed at the end of this post) led me to take the time to write about shelf-talkers.

On the positive side, the use of shelf-talkers can to some extent help a consumer with no other information “get into the game”. If the store carries 500 different bottles of wine, there would most likely be no other way for a consumer to make a choice other than buying based solely on price or brand name. But in the case of wine, more so than almost any other product I can think of, there is far, far more than just price or brand that needs to be considered. You can buy a lot of very good wines for $10; but you can buy even more bad wines for that price. You can also buy a lot of very bad wines for far more money. And a winery that makes a very good $10 Merlot doesn’t necessarily also make a good $10 Riesling, so reliance upon brand doesn’t work quite so well, either (and add to this the fact that many brands make only one or two varieties and thus may have no brand recognition beyond wine connoisseurs). Plus, just because that Merlot was good last year doesn’t mean that it will be good this year.

So when a consumer walks into a store that does use shelf-talkers, they can be quite helpful. Knowing that a particular wine won a medal at a prestigious wine competition or was highly recommended or considered a best value by a respected wine magazine can do quite a lot to help a consumer make an informed decision. If there are 20 bottles of $10 Merlot and one of them received a “Smart Buy” rating from Wine Spectator and another has a 92 rating from Wine Enthusiast, then the consumer at least has something on which to base a decision and a reason to choose one wine instead of another. (I’m not going to get into the issue of how various wine magazines make their ratings or whether there is bias; that is a complicated and controversial enough issue for another day.) So, in that respect, shelf-talkers can be a valuable aid to consumers. Similarly, a shelf-talker that helps a consumer know what to expect from the wine or suggest food pairings can also be quite useful (especially for a consumer interested in trying a more “exotic” wine).

Given that, why would a store choose not to use shelf-talkers (presuming that it doesn’t have knowledgeable employees)? Here’s one simple reason: Take two bottles of Merlot, one costing $10 and the other costing $20. Now presume that the $10 bottle gets better ratings (or wins more awards, or whatever) than the $20 bottle. How many consumers are going to choose the lesser-rated, more expensive bottle? Obviously, the store has more incentive to sell the more expensive bottle.

So a shelf-talker can provide good information to a consumer, but not necessarily to the benefit of the store.

But there are downsides to consumers, too (and, unfortunately, these may be to the benefit of retailers).

First, many stores that do use shelf-talkers, use them selectively; that is, only some wines have an associated shelf-talker. How does the store decide which wines will get shelf-talkers and which won’t? One possibility is that poorly-rated wines don’t get a shelf-talker while highly-rates wines do. However, experience suggests that this reasoning is not employed. I’ve seen plenty of stores with shelf-talkers on mediocre wines while very good wines have no associated shelf-talker. Thus, when a consumer sees selective use of shelf-talkers, the consumer should at least consider why the store has chosen to use them only selectively. Why this bottle, but not that bottle? Perhaps the use of a shelf-talker is more indicative of wines that the store is working hardest to sell (perhaps there is a glut in the storeroom or the store got those bottles at a particularly good price). Or perhaps the store has been paid by a particular winery or wholesaler to utilize shelf-talkers for its wines. In some respects, use of a shelf-talker may not be much different than the way the grocery chooses to put a particular brand of cookie or soft drink in its Sunday circular.

The other downsides for consumers are more troubling, sometimes (as we’ll see), even fraudulent.

Many stores use a shelf-talker that recites ratings (usually from wine magazines) for the past several vintages. For example, at Fresh Market or Costco, you’re likely to see a shelf-talker that says something like this:

2007: No rating

2006: 90 Wine Spectator

2005: 91 Wine Enthusiast

2004: 88 Wine Spectator

Generally, that shelf-talker is “fair”. But what if the 2007 vintage has been rated subsequent to the time that the shelf-talker was printed? If the wine got a good rating for 2007, I guess it’s mostly a case of “no harm, no foul”. But what if the 2007 vintage received a poor rating? If the store is trying to sell the wine on the basis of past good ratings, then isn’t the more recent poor rating relevant? Certainly, the store shouldn’t be expected to revise shelf-talkers daily, but shouldn’t a consumer be able to expect that a statement that a particular wine hasn’t been rated is at least a reasonably up to date statement?

This example above also illustrates another frequent problem. Note that the 2004 and 2006 vintages cite Wine Spectator while the 2005 vintage cites Wine Enthusiast. Why? Maybe the 2005 vintage wasn’t rated by Wine Spectator; if not, it is certainly fair to cite another source for a rating. But what if Wine Spectator’s rating for 2005 was 82? In this case, is it fair to cite good ratings from one source but when that source gives a poor rating to change to a source that gave a better rating? On one hand, as long as all of the sources are reputable, what’s wrong with choosing the source that gave the best rating? On the other hand, something just seems “wrong” with changing sources mid-stream, when the only reason is to avoid noting a poor score.

Shelf-talkers like that in the above-example are also known to employ an additional bit of deception. Occasionally, you’ll see the list of vintages omit a particular year. In my experience, that is almost always a sign that the store is trying to hide a bad rating for a particular vintage (rarely it is because that particular wine was not produced that particular year). This practice also seems “wrong”; moreover, I don’t really understand this practice given that the store is not trying to sell the wine that received the bad rating anyway.

Another thing to look for on these kinds of shelf-talkers is the use of lots of different sources for ratings, especially sources not usually considered among the “usual suspects”. Different people have different opinions about the ratings of different sources, but generally Wine Spectator, Wine Enthusiast, and Wine Advocate (Robert Parker) are reasonably well-respected. Wine & Spirits and Steven Tanzer are also reasonably well-respected, though not used as commonly as the first three. But there are numerous other sources that you may see on shelf-talkers from time-to-time. Unfortunately, most consumers who don’t read wine trade magazines have no idea who these sources are and have no reason to respect one more than another. So query the “fairness” of using the lesser-known sources. It’s a bit like when a newspaper prints a movie review by the reviewer for the North Podunk Post rather than a review from the New York Times or one of the well-known reviewers from one of the major papers or magazines. Why should a consumer give any credence to that reviewer’s opinion? This issue may be exacerbated in the case of wine magazines where there is a lot of speculation (maybe even evidence) that some sources (maybe even the well-respected sources) employ a “pay-for-play'” methodology; that is, wineries who advertise with that periodical tend to get more favorable treatment. Maybe yes, maybe no. But certainly it would be improper for a shelf-talker to quote a periodical where the reviews are not presumed to have some degree of impartiality and independence.

Another common “trick” employed on shelf-talkers is to mention awards that a particular wine has won. “Gold Medal at 2008 Santa Fe Wine Competition” for example. Here’s the problem: Is the Santa Fe Wine Competition a good competition? Is it even a real competition? If I tell you that a film won an Academy Award, you know what that is and you know that’s an impressive achievement. Of course, if I failed to mention that the award was for editing, rather than for best picture, you’d probably be a bit miffed. And what if I tell you that a movie won the Journalist’s Guild Achievement Award (no such thing as far as I know…)? In the world of wine, there are hundreds if not thousands of contents and awards a wine could wine, but how many are really important? But if you don’t follow wine closely, how would you know which of those awards are meaningful? Recently I was shopping at a reputable wine store with good, knowledgeable staff. I asked about a particular bottle and the clerk laughed and told me that it had recently won a gold medal. But then he laughed again and told me not to get too excited; the gold medal, he told me, came at the San Antonio Rodeo Wine Festival.

One of the more troubling practices (though I’ll admit that it may be a function of carelessness) is having a shelf-talker that doesn’t match the vintage of the bottle being sold. I’ve seen that at Kroger with some frequency. Kroger’s shelf-talkers do tell the vintage of the bottle that the review applies to (well, at least usually), but it is not always easy to find the vintage on the shelf-talker. Many times I’ve seen a shelf-talker telling me that a particular wine had a good rating only to discover that the shelf-talker and rating were for the previous vintage, not the vintage actually for sale. If both vintages received good ratings, then again, “no harm, no foul”. But if the vintage being sold received a worse rating, especially a much worse rating, then is it fair for the store to use that old shelf-talker? I wonder the extent to which the average consumer recognizes the difference in quality from vintage to vintage and that a 91 rating for 2007 may not translate to another 91 rating for 2008. I suspect that in most cases this is a case of carelessness; the original shelf-talker was printed when the wine was first put on the shelf and nobody took the time to replace that shelf-talker when bottles of the new vintage were added. But is that kind of carelessness acceptable? After all, we don’t accept it as acceptable carelessness for a store to continue to sell meat or other products beyond their expiration dates. And we certainly wouldn’t view it as acceptable for a store to put a false expiration date on a loaf of bread or carton of milk.

I’ve also seen the inverse of this problem. Recently at Costco, I saw a shelf-talker that mentioned the 2006 and 2007 ratings (both of which were good). The problem was that the wine being sold was the 2005 vintage. Hmm. That doesn’t strike me as the same kind of carelessness. Is it simply an effort to provide the consumer with some kind of information upon which to base a decision? Or is it something less noble?

Finally, I want to address a very specific instance of the use of a shelf-talker that I recently encountered that was, in my opinion, the most deceptive use of a shelf-talker that I’ve ever seen. In fact, this particular shelf-talker went beyond mere carelessness or somewhat deceptive sales practice to outright consumer fraud.

On February 13, 2010, I visited the Fresh Market at 2490 E. 146th Street in Carmel, Indiana. I enjoy taking a few minutes to look at the wines that are available. In the rear of the store, just across from the seafood counter, was a freestanding display stand with several wines. What I saw caused my jaw to drop. Here’s a photograph of the shelf-talker that I saw (note that this photo was actually taken on February 26; the display had changed slightly [more on that below], but the shelf-talker appeared to be the same):

So what’s wrong with this shelf-talker? Here’s a photo of Wine Spectator’s #1 Wine of the Year for 2008:

Do those bottles look the same? Nope. The wine for sale at Fresh Market is the Casa Lapostolle Cabernet Sauvignon Rapel Valley 2007. Wine Spectator liked the wine and gave it rating of 86 (the link may be password protected; sorry). But it wasn’t the 2008 Wine of the Year. That honor went to another wine from the same Chilean winery: Casa Lapostolle Clos Apalta Colchagua Valley 2005 (a blend of Carmenère, Merlot, Cabernet Sauvignon, and Petit Verdot). That wine received a rating of 96 and has a suggested price of $75. While an imperfect analogy, it’s a bit like telling a consumer that the Chevy Cobalt available at the local dealer is the car that won the Daytona 500! A Chevy may have one, but it certainly wasn’t the one on the dealer’s lot.

How many people bought a bottle of that 86-rated Cabernet Sauvignon thinking that they were getting an incredible buy on the 2008 Wine of the Year?

When I saw this shelf-talker I was furious because I worried about how many people would be mislead. (I knew what the 2008 Wine of the Year was because I happen to read Wine Spectator and enjoy reading about the top wines that I’ll most likely never get to try.) I walked over the store’s main wine section to see if the misleading shelf-talker was repeated. It wasn’t. Instead, I saw this shelf-talker:

Note that while this shelf-talker (obviously produced by the winery or its distributor, not Fresh Market) is being displayed on the bottle of Cabernet Sauvignon, it clearly highlights the Clos Apalta. So a customer who was shopping in the main wine section of Fresh Market would have seen this piece of advertising as opposed to the clearly false shelf-talker at the other side of the store. One other thing to be noted: If you look at the first photo above (which, recall, was taken on February 26, not February 13), you’ll see a bottle (at the far right) with the advertising shelf-talker displayed above (along with another advertising shelf-talker). However, when I first encountered the misleading shelf-talker on February 13, it was the only shelf-talker in use for the Casa Lapostolle wine on that display.

Before I finished my shopping that day, I encountered saw a Fresh Market employee that I guessed to be the manager. I asked him if he was the manager and he confirmed that he was. I explained the problem with this particular shelf-talker to the manager. He seemed to understand, but didn’t seem to take it too seriously. I then asked him how many customers might have bought this wine thinking that they were buying something else entirely and whether that was fair. Then he seemed to get it. He said that he’d “look into it” but told me that “these things” are handled by the “wine guy” at the corporate office.

Last weekend (February 20 or 21) my wife was at that Fresh Market. I asked her to look for the misleading display and she confirmed that it was still in place. So twice this week, for no good reason other than the fact that I was angry, I called Fresh Market’s corporate number to complain. Each time, the voicemail system directed me to a mailbox that was full. On February 26, I went back to the Fresh Market. The misleading display was still present (though the display stand had been rotated) and the additional advertising shelf-talkers had been added to a few of the bottles. In addition, back in the main wine area, another large display had been set up:

The misleading shelf-talker is not used on this larger display. What is worth noting (remember the discussion above changing sources) is that the big shelf-talker in this photo refers not to Wine Spectator (which gave the wine a rating of 86), but rather to Wine Enthusiast which gave the wine a rating of 90. Gee, I wonder why Fresh Market used Wine Enthusiast here instead of Wine Spectator?

I’m not sure what more to say (I know, I know; I’ve said enough already). Fresh Market is advertising a product in a highly deceptive, even fraudulent way. The store manager has been told about the problem, but it has not been remedied. I can only wonder whether there are other similar issues at Fresh Market; can I believe anything that they tell me or is a lie an accepted part of the Fresh Market business model? I understand that mistakes happen. Perhaps the shelf-talker was a originally a mistake. But for the deceptive shelf-talker to remain for two weeks after the manager was told about the problem takes this out of the realm of mistake and into the realm of … um … something else, something far worse.

On the whole, I still like shelf-talkers. They give me some ideas and help me compare one wine to another. However, I’m always very, very cautious because of the frequency that they are untrustworthy. I think that retailers should use shelf-talkers judiciously, but they should be careful that the shelf-talkers that they use are accurate. The goal should be to help the consumer, not mislead; to sell, without cheating. On the whole, I think that retailers will, in the long run, make more money by treating consumers fairly and providing helpful information rather than by failing to provide information, providing incorrect or deceptive information, and making the quick buck at the expense of customer trust.

What do you think of shelf-talkers? Do you read them? Do you rely on them? Have you seen deceptive shelf-talkers? Let me know.

Analysis of a (Real) Spy Movie

Let me preface this analysis with two preliminary points.

First, anybody who knows me knows that I read lots and lots of espionage novels (and even some intelligence and espionage-related non-fiction). Just take a look at my LibraryThing catalog and you’ll see that a large proportion of my reading is in the area of espionage fiction (and a favorite series by Daniel Silva involves Israeli assassin Gabriel Allon). And that’s been the case since my early teens. Thus, I think that it’s fair to say that I’ve read a lot of espionage novels (not to mention seen quite a few movies, too) and have, over the years, built up a casual knowledgebase (though no actual experience). For that matter, I’ve also tried my hand at writing espionage fiction (though with the exception of a short story written in college, most of my efforts have bogged down, much to my own disappointment).

Second, I’m a student of the Israeli-Palestinian conflict. In college, I studied extensively in the area (including writing my senior thesis on “Use of Israel as a Policy Surrogate for US Actions”; I got a very good grade from a very pro-Palestinian professor). In addition to the espionage books that I read, I also read a fair number of history or political science books on Israel and the conflict, and a far, far larger set of scholarly (and not-so-scholarly) articles on the subject. I’ve also used this blog to write quite a bit about Israel and the Israel-Palestinian conflict. So, here too, I think that I can legitimately claim to have at least a decent working understanding of the issues, the players, and the objectives.

Anyway, by now you’ve probably seen (or at least heard about) the video posted by police authorities in Dubai that claims to show an 11-member assassination squad stalking and eventually killing Mahmoud al-Mabhouh, a high-ranking member of Hamas, who had traveled to Dubai (on a false passport) allegedly to purchase arms from Iran. As I watched the video I thought back to my understanding of how operations like this are or should probably be carried out. I also thought about what the respective players had to gain from this particular assassination carried out in this particular way.

So get yourself some popcorn and watch the video (be aware that the video is 27 minutes; that’s why I suggested the popcorn). If nothing else, it is entertaining. As you watch, see if anything strikes you as odd or if there are any issues that you think are left curiously unresolved. Come back when you’re done and I’ll walk through an analysis of some of the more interesting parts of the video. [Update 2/24/2010: The video link from Gulf News TV that was embedded below and all across the web has, without apparent explanation, been shortened from 27 minutes to 1:46; it now consists just of a few “highlights”. I’m trying to find a new link to the full video. In the meantime, it may be worth asking why the full video has disappeared, especially given the attention that the original video and the assassination have garnered.]

Are you back? Good. Did you “enjoy” the video? Any quick thoughts on whether you agree with the analysis of Dubai’s police authorities? Any problems jump out at you?

One more thing before I jump into the analysis itself. Do I feel bad for al-Mabhouh? Nope. He was a known and wanted terrorist. If you play in that particular sand box, you should pretty much know that those whose wives and kids you try to kill probably don’t think real highly of you and might kick a little sand your way. Do I think that this kind of assassination is wrong? Again, nope. A clinical and clean operation like this is much better than dropping a bomb on al-Mabhouh’s house and risking harm to innocent civilians. Targeted assassinations have their place.

With that all having been said, let’s look at the video:

0:10: It is worth noting right away that the video uses the word “murder” throughout. Later in the video, we are told that there is “proof” that al-Mabhouh was murdered and did not die naturally (as was initially reported). However, that proof is not clearly identified (at least not in the video; other sources have since had more to say). Moreover, to the extent that al-Mabhouh was, in fact, a terrorist (or member of a terrorist organization), then might it not be more accurate to describe his death as a “killing” (in the military sense of the word) rather than ”murder”? If a solider shoots at another soldier and kills him, is that a murder? So if an intelligence organization (and we’ll presume for the moment that the “killers” are from an intelligence organization) kills a terrorist who is trying to buy arms to kill civilians, then why should that death be “worse” than the soldier killed in combat?

0:28: At least the Dubai police acknowledge that al-Mabhouh was a “senior Hamas military commander” and a founder of the al-Qassam Brigades (the charming chaps who launch rockets from Gaza into southern Israel). The claim is also made that there were failed attempts to assassinate al-Mabhouh in the past and the clear inference, without it being said outright, is that Israel was responsible for these failed attempts. Apparently, this information comes from al-Mabhouh himself in an interview with al-Jazeera (and if a terrorist said it, then it must be true, right…), though one wonders how exactly al-Mabhouh knew that it was Israel that had tried to kill him.

0:42: While the film does show quite a few interesting things, it is permeated with conjecture. For example, we are told that the “murder was carried out by a professional team that is highly skilled in these kinds of operations”. The basis for this allegation is the “fact” that “there were no traces left behind that could help uncover their identities”. Um, really? First, didn’t we just watch 27 minutes of video where we can see the faces of the members of this “highly skilled” team? And didn’t the Dubai authorities manage to track down their respective passports quite quickly? You’d think (and I’ll come back to this theme regularly) that if these assassins were so good at their job, that the Dubai police would never have been able to pick them out from the crowd in the first place. Plus, it is worth noting that just because a group is able to successfully accomplish a complicated plan, doesn’t necessarily mean that the group is either professional or highly skilled. All it means is that the plan worked.

0:50: We’re told the team used “special communications devices”. Like, what? Cellphones? Walkie talkies? How do the Dubai police know that the “devices” were in any way special and not just toys from Radio Shack? The fact that this claim is made repeatedly seems designed to lend credence to the “highly skilled” and “professional” allegation at the heart of the analysis of the Dubai police.

1:06: Remember about 20 seconds ago when we were told that the “professional team” that was “highly skilled” left no traces? Then how is it that Dubai’s police were able to “track the killers and identify them within 24 hours” (emphasis added)? That seems to call into question that whole “professional” and “highly skilled” allegation, not to mention the claim that no traces were left. Note too that this is being referred to as a “crime”.

2:00: Have you ever read any kind of espionage novel written in the last 10 years or so? One thing that you will almost always read about is the efforts that the protagonists (or antagonists, as the case may be) go through not to have their faces visible on cameras. They will wear a hat, or turn their head slightly, or raise a hand to cover a “cough” or raise a newspaper in front of their face; anything to avoid having their face clearly seen on camera (but while still managing to look natural). Watch Michael (or is it James?) right at the 2:00 mark. He almost looks right at the camera; he certainly does nothing to avoid the camera. Ah, but maybe he didn’t know the camera was there, you say. Well, if this team was as “professional” and “highly skilled” as Dubai wants us to think they were, then shouldn’t they have known where the cameras were? If they were so professional “in these kinds of operations” don’t you suppose that they would have done a “dry run” to try to learn about the type of security (including cameras) that would need to be avoided? It seems to me that one of the distinctions between highly skilled and … um … amateurish? … is the advanced knowledge and planning put into the operation to be sure that simple mistakes like being seen by a camera are minimized.

2:03: Gail allows her face to be clearly seen by the video camera at the airport not once but twice.

2:12: Michael and James again allow their faces to be seen by the video camera. They make small efforts not to look right at the camera, but it would have been easy for them to simply turn their backs to the camera so as not to be so easily seen. I don’t suppose that some of the members of this team actually want to be identified, do they?

2:33: It would have been hard for Gail to do a better job of looking at the camera without being obvious about it. So, at 2:38, she does it again, just in case.

3:01: What made the phone calls “suspicious”? The mere fact that they went to Austria? Note that Dubai’s police only speculate as to what those numbers were. Given the other detail presented, it seems somewhat strange that no more information about those telephone numbers was readily available. In addition, if the team were so “professional” and “highly skilled” why would they make numerous calls to different numbers in the same country? If it was to some kind of command center, couldn’t the destination of those calls be traced? Wouldn’t it make more sense for the calls to have been placed to vastly different destinations from which they were routed to their actual destinations? Dubai’s police also tell us that it is “probable that highly encrypted systems were used to communicate” but no explanation regarding this statement of probability is provided. I wonder if this statement was designed simply to make us wonder about the ability of Dubai’s police to monitory regular communications in the emirate.

3:19: This is the first time that we’re shown Gail’s passport photo. Does that look like Gail to you?

3:55: When Peter arrives, we’re told he is carrying a “suspicious bag”. What about the bag was suspicious?

4:33: We’re shown Peter returning to the airport and we’re told that he “meets with a team member”. Look closely at what you see on the video. Peter indeed returns to the airport (though it is impossible to read the time stamp to know for sure that this clip of Peter in the airport indeed follows the previous clip). But note that at 4:41 (when we first see Peter again) he appears to be reading a piece of paper in his hand and the other man (identified simply as a “team member”) seems to stop and point at the paper. I suppose that one interpretation of this could be that Peter met with a team member; then again, it is just as likely that Peter was looking at the paper for information about, say maybe, the name of his hotel, and a helpful passerby stopped to aid Peter. Who knows? But it is important not to read operational activities into every single movement of every single person, especially as that can lead to snaring people who may not even be related to the operation. Does is seem likely that two operatives would meet in plain view of a camera, especially a rotating camera that would have missed their meeting had they waited just a few seconds more (unless that is they wanted to be seen together)? It is also worth noting that we’re next told that the suspects left in different directions; wouldn’t that also be consistent with unrelated people leaving the airport?

5:11: Here we see a photo of Peter entering a hotel. One thing jumped out at me in this photo. Notice that sweater tied around his shoulders? I went back and looked at the video of Peter in the airport where he is also wearing the sweater. If an agent was trying to look inconspicuous, would tying a brown sweater around a white shirt in a desert country accomplish that goal? In fact, Peter’s outfit makes it quite easy to spot him. I wonder why? At least he appears to look a little bit away from the camera as he enters the hotel (and at 5:24 he does a good job of looking down as the camera takes his picture).

5:28: Next we see Peter  leaving the hotel and going shopping. Boy that striped shirt is inconspicuous, too. I will say that Peter does a pretty good job of keeping his face away from the cameras.

5:48: “Three suspects” arrive at the shopping center. I do find it interesting that some of the subjects are named (and later 11 passport photos are shown) but several times we’re simply referred to subjects. How do they link these random people to the 11 passports? And note that none of the 3 seems to do anything to avoid the camera, especially the “suspect” on the right in the blue shirt who almost looks right at the camera.

5:53: Next Kevin and Gail arrive at the shopping center. This seems like a good place for another quick aside: Would you have been able to identify that woman as Gail if you hadn’t been told it was her? She seems to be wearing a scarf (as Gail was when she checked into the hotel) but her pants are now white, her hair is now loose, and it appears lighter (maybe). The real issue to take note of is the quality (or lack thereof) of the facial recognition software being used by the Dubai police. Clearly the police could not (certainly not in 24 hours, and probably not even in a month) have looked at every second of every piece of CCTV (closed circuit TV) footage from throughout Dubai. So either the police had information of which camera feeds to look at or relied upon facial recognition software to help identify suspects on different video feeds. Of course the question then becomes how good that software is and how many false positives (or negatives) are generated? Is that really Gail? Who knows?

6:01: Gail leaves the shopping center. Again, is that Gail? How do we know? We don’t see her face. And to me it looks like her hair is slightly different again and the color of her top seems to have shifted slightly (though her purse looks like it might be the same). Maybe it’s just the light; maybe that isn’t Gail at all.

6:10: Kevin leaves with a suspect. But all we really see is two men leaving the shopping center at the same time. Are they together? And is the fact that the guy in the blue shirt leaves at the same time as Kevin the reason he was targeted as a suspect in the first place? If so, doesn’t that call into question whether the two men he walked in with are actually suspects themselves? Note that the video clip stops before we see where Kevin and the other man go. Do they both get in that cab? Do they walk different directions? We’re not shown that piece of information.

6:15: Two suspects leave. I note that when these two leave, we do see their faces, but we didn’t see the faces of Gail, Kevin, or Mr. Blue Shirt. Whys is that? One more question: Why did five alleged suspects go to the mall? Remember, they supposedly have “special communications devices” that are probably “highly encrypted”; so why would they need to meet up in the first place? Unless, of course, the goal was to be seen together.

6:23: When Kevin checks out of the hotel, note the inconspicuous shopping bag that he carries. Yep, if I’m off to do dirty spy stuff, I’d carry around a big white shopping bag with a bright stripe on the side. One other thing to take note of and this is a pretty good time to do so. We see quite a lot of interaction between the “suspects” and hotel staff members. What language did the suspects speak? Did they have accents? Those seem like pretty important bits of information and nothing is said about any of that. Hmm.

6:52: We’re shown “before and after” photos of Kevin. Is the dark-haired man actually Kevin? It’s hard to tell. I mean a light blue shirt and blue blazer are pretty unusual clothing choices, right? How many of you reading this have a blue shirt and a blue blazer? If Kevin really wanted to change his appearance, don’t you think it likely that he’d change shirts? Or lose the jacket (or even have a reversible jacket)? Is this “disguise” really the best these “highly skilled” “professionals” can do?

6:58: At least these guys manage to avoid looking right at the camera.

7:15: “Two of the suspects” … again with the unnamed suspects whose faces we can’t see. But hey, they did walk into a hotel that Kevin walked into, right? I mean, that is suspicious…

7:18: This is one of those little jumps in logic that we’re expected to simply accept: “A suspect from the surveillance team [how do they know he’s a suspect or part of the surveillance team] arrives at another location [um, isn’t this the same guy that just walked into the hotel that Kevin walked into? same blue hat…] anticipating the arrival of the victim [note: not terrorist, but “victim”], as he was known to frequent this hotel [how and why was he known to frequent this hotel; for that matter, why was Dubai allowing a known terrorist to “frequent” anywhere in Dubai?]. He leaves after it is confirmed to him that the victim has checked into another hotel.” OK, wait one minute. How do the Dubai police know that he left “after it is confirmed”? And how do they even know that “it is confirmed” in the first place? This is one of those places where Dubai’s police have made guesses — perhaps educated and perhaps correct — but guesses nevertheless for which no evidence is offered.

7:55: Now this is interesting. Gail checks out of her hotel room. OK. But note that her hair has now been pulled back again and she’s apparently changed from the brown top and white pants she wore to the mall back to the pantsuit that she wore when she arrived. Odd? It also seems like somewhat unusual behavior for people to be checking in and out of hotels so quickly. That seems like the kind of thing that authorities might actually be monitoring (especially for foreigners who have to show their passports).

8:05: Another of those mysterious, unnamed suspects whose face is not seen.

8:08: Peter arrives in a rented car with a driver. First, why hire a driver? Doesn’t that add another person with whom the operative would have come in contact with? Did the Dubai police interview the driver? What did he tell them about Peter?

8:30: Let’s go with the presumption that this is a surveillance team at the airport. But if my job is to surveil, shouldn’t I be inconspicuous instead of wearing a colorful shirt and (at 8:48) kicking my legs in a way bound to draw attention to me? This guy couldn’t possibly be just another bored person waiting at an airport…?

9:15: Gail’s “disguise” is even worse than Kevin’s. All she did was put on a black wig. Same clothing, same bags. Ooh, I’m so confused. Go read an espionage novel. Read about agents doing all sorts of subtle things to change appearance (from cotton in their gums, to slightly different walks, to holding their shoulders differently, and the list goes on). And if the Dubai police were able to figure out these disguises so quickly, one might wonder what the point of the disguise was in the first place. And why is it that only Kevin and Gail use disguises?

10:00: This is one of the more interesting segments of the film and one of the few that really does look like surveillance of al-Mabhouh. It is hard to identify any other purpose for what these two tennis players are doing wandering around the second floor elevator lobby. But note that at 10:30 we can only presume that the blue-shirted tennis player walked past al-Mabhouh’s room to try to find the room number. That seems like a good guess, but still. The Dubai police have interestingly not told us that these two tennis players were staying in another hotel or another floor of this hotel. If they were staying at this hotel (especially on the second floor), might the entire sequence here be viewed differently? And note that the video skips when blue-shirt he walks out of sight. How long was he gone? You’re analysis might be different depending on whether he spent 10 seconds or 10 minutes further down that hallway. How long does white-shirt spend in the elevator lobby waiting for blue-shirt to return?

10:36: The surveillance team uses “special communications devices”. OK, first, what makes the device special? To me, presuming white-shirt guy is holding a communications device, it looks like a light-colored cell phone. Or maybe it was an asthma inhaler. It looked like he held it up to his face, not his ear. Maybe. And if he is a “highly skilled” “professional” why would he ever use that “special communications device” in any place where it could be seen on video?

11:15: Wait a minute! Are the tennis courts or athletic facilities on the same floor as al-Mabhouh’s room? Did the Dubai police do an investigation of whether white-shirt and blue-shirt played tennis at the hotel or whether they had even reserved a court? Again, those are the kinds of little facts that a “highly skilled” team would have thought through and which a thorough investigation would have examined.

11:18: “The room number and the one opposite is communicated to the rest of the team.” And we know this how? I thought that it was probable that those special communications devices were highly encrypted.

11:25: OK. So blue-shirt hangs out while white shirt goes outside and back in. Once again, look how inconspicuous that blue shirt is (not to mention the really ugly socks).

11:42: Um. If this is a surveillance team, why are they leaving?

12:39: Peter makes some phone calls from a hotel business center. I’m having a bit of trouble with this one. First, why use a hotel business center? If any phone is likely to be bugged by Dubai’s police, I’d rank that one pretty high on the list. And why use the same phone to make two calls that can then obviously be linked together? And what happened to throw away cellphones or those special communications devices? Furthermore, does anybody else find it odd that with CCTV virtually everywhere, there doesn’t appear to be a camera in the business center? Finally, I note (from the time stamp in the bottom left) that it only took Peter 8 minutes to make a hotel reservation (for a specific room; how did the team know it would be unoccupied?) and airline reservations including a stop. Have you ever tried to make a hotel reservation by phone? How about an airline reservation? How long did it take? 8 minutes for both?

13:04: I can’t think of a more inconspicuous set of outfits for a surveillance team to wear when standing around a luxury hotel lobby. That bright blue shirt and bright red shirt with great big bags would never be noticed by anybody. One of the basic concepts is to blend in, but it’s more than just blending in. The agent has to be so plain looking that if you were to see him (or her) now and again in 15 minutes, you wouldn’t recognize that you’d seen the person before. Now, would you recall seeing two guys hanging out in bright blue and bright red shirts?

13:45: Here is one of the most interesting (though very subtle) moments in the entire video. Kevin gets into a taxi. OK. Fine. But look at the guy who walks out of the hotel behind Kevin (in a black jacket and blue shirt). Why is his face blurred? The face of the doorman isn’t blurred. We’ve seen lots of “man on the street faces” so far, but why is this particular guy’s face blurred? As Arsenio used to say, “Hmm”.

13:48: Gail leaves with the “other suspects”. Are we convinced that these “other suspects” are people that we’ve seen before?

14:29: “The description of the victim’s car is communicated to the rest of the team.” Again, we know this how? First, there is nothing in the video to indicate time so we have no idea how long after al-Mabhouh left the hotel that red-shirt walked out the front door. Yes, red-shirt uses a cellphone (what happened to the special devices?), but in and of itself, I don’t think that tells us much.

14:36: We’re told that red-shirt “returns to his original position”. Again, how do we know? What was his “original position”? How do we know that is where he went? At least he does a decent job of keeping his hat low enough to obscure his face.

15:22: So how did the team make sure that the room opposite al-Mabhouh’s would be vacant? And would anybody really be so bold as to make a request for a particular, apparently non-descript, room? Wouldn’t that set of all sorts of red flags? “Um, gee, Mr. X, why is it that you want room 237”? And what would have happened if that room was occupied?

15:36: We’re told that Peter gives the room key to Kevin. But we don’t actually see this, do we?

15:54: Gail arrives with two big (inconspicuous) shopping bags. But she didn’t appear to have those bags when she got in the cab at 13:48. So are we sure these are the same person?

16:21: A “suspect” walks into the hotel with a blue hat. We’re told that he goes up to the room wearing a wig. On what basis do we know that he’s wearing a wig? Are we even sure it’s the same guy?

16:50: Gail leaves the hotel. OK, I can see that. But we’re told that she leaves to deliver bags to other team members in the parking lot. Again, we know this how? All we see is that she walks down the sidewalk and then returns without the bags. Sure, it’s a good presumption, but without additional video I’m not quite sure that all other possibilities are eliminated.

17:23: Oooh, the first “execution team”. You know the question to ask. By the way, note how casual these guys look but they do seem careful to keep their heads turned away from the camera.

17:45: Here’s team two! Again, watch how they keep their faces away from the camera (one guy even raises his hand to briefly cover his face). They look a lot more professional that the rest of the “highly skilled” team.

18:05: A new surveillance team arrives. One thing interesting about this is the fact that one member of this team appears to be a woman, yet the passports and information released by Dubai keep referring to an eleven member team with one woman. She manages to keep well hidden with that hat, but her “partner” is quite recognizable.

18:26: Those special communications devices are back. Do you see anything special? Go back and look in the woman’s hand when she walks through the revolving door. There’s something right there in her palm. Would she really hold her special communications device that obviously? And when the camera zooms in on her a few moments later, all I see is a woman on a cellphone who then adjusts her shirt or bra while her partner shields her from view. This is Dubai, after all. But anyway, would they really use their special communications device in the middle of the hotel lobby?

20:39: Another person with their face blurred. And this person spends some time talking to Kevin.

21:01: “Kevin signals the team”. Sorry, missed the signal. But what is it that Kevin is holding in his hand? Was this the attempt to change the door lock for al-Mabhouh’s room? In the elevator lobby?

22:15: I’m certainly willing to acknowledge that Kevin and Gail appear to be up to something as they loiter around the elevator lobby. But is that really the kind of surveillance and monitoring that you’d want? Wouldn’t it have been easier to put a small wireless camera in that plant in the corner? Certainly there have to be better ways to surveil an elevator lobby than having two operatives wander around talking on cellphones right in front of two cameras. And for that matter, shouldn’t they know where those cameras were and take steps to remain out of sight of the cameras?

22:30: “As the execution team acts”. Again, that’s one of those pretty big presumptions.

22:38: The Dubai police suggest that a way to gain access was by reprogramming the lock. But if the lock was reprogrammed, wouldn’t the report say that instead of an “attempt”? Second, if the team could reprogram the lock don’t you think that they’d be able to cover their tracks of having done so? And why just Kevin or Gail posing as hotel staff? Why not one of the other people allegedly in the room across the hall? For that matter, how do we know that the people in the room across the hall (if that' is where they were) didn’t just barge their way into the room as al-Mabhouh was opening his door? This whole thing about how to get into the room seems a bit overly complex, not to mention subject to a whole bunch of things that could go wrong. What if al-Mabhouh wasn’t alone; what if he refused to open the door; what if someone else was in the hallway; what if al-Mabhouh was on the telephone when the door was opened?

22:55: The murder has taken place. OK. And how do we know such an absolutely precise time of death? And it appears that things happened pretty quickly; I find it interesting to note that the alleged execution teams didn’t seem to take any time to interrogate al-Mabhouh before killing him. You know, maybe ask him questions about those arms purchases he was making in Dubai?

23:10: Did you notice that one member of the “execution team” is now wearing a glove or bandage on his hand? Don’t get too worked up over that; he was wearing it when he entered the hotel. I went back and looked.

23:19: Both execution teams wind up riding the same elevator. Sloppy. Very, very sloppy.

24:34: Does Gail look the same here as she did at any other point? Are we sure that Gail isn’t really an amalgam of several women?

24:43: Did you note that when the hotel staff opened the door to al-Mabhouh’s room it "was locked from the inside with the latch and chain in place” (emphasis added)? Interesting, no? What special device was used to accomplish that little trick?

24:51: Also, the initial cause of death was an “increase in blood pressure in the brain”.

25:33: Results “proved that it was a murder and not a natural death”. But all we’re given of that “proof” is a letter from a hospital in Arabic. Moreover, unless it’s just a case of poor wording, it appears that the General Department of State assigned teams to find out “how it was carried out” before they had the proof that anything had been “carried out” and that al-Mabhouh’s hadn’t died of natural causes.

26:00: This is another of the most interesting moments in the entire video (if not the most interesting). Remember how I’ve been talking about the operatives not doing a very good job to keep their faces away from the camera? Right. Watch Gail look directly at the camera and smile! And then, look closely at the face of the woman in the passport photo. Are those the same woman? (For that matter, I’m not sure that the woman in the passport photo isn’t really a man!) And why is this the only time that we see that particular camera angle (presumably of the hotel hallway). Did that camera never see any of the other members of the team? If not, why not?

27:17: A few things to note about all of those passport photos. First, while some of the photos looked like the people in the videos, several did not. Where, for example, are the guys in the “execution teams”? Maybe they’re pictured; maybe not. But where was that third surveillance team, you remember the one with a man and woman? I didn’t see their pictures. And some of those passport pictures were really clear photos. I guess that would be OK if you were wearing a really good disguise when the photo was taken.

Whew. I know. Quite a bit to digest. So what do we make of all this? I suspect that some kind of team of operatives did indeed go to Dubai and kill al-Mabhouh. I’m much less convinced that the entire operation was conducted in the way that Dubai’s police suggest and I’m really not terribly convinced that all of the people shown were involved and/or that others not shown weren’t also involved.

But the bigger question is not whether or how but, obviously, who. Who killed al-Mabhouh? The obvious answer is Israel and certainly that’s where fingers are pointing. But there are other possibilities, starting with the Palestinian Authority and/or Fatah not to mention Hamas itself or maybe even Egypt or Iran. So let’s take a few minutes and examine the possibilities.

First let’s start with the obvious choice: Israel. Clearly Israel has something to be gained by killing al-Mabhouh; after all, he’s wanted by Israeli authorities and he’s a known terrorist who has allegedly been involved in illegal weapons purchases to be smuggled into Gaza. That certainly seems reason enough for Israel to want al-Mabhouh dead. But query whether that is simply too obvious? A Hamas commander is killed, so who else would be the obvious assassin? But why would Israel go through the effort and risk to assassinate al-Mabhouh in Dubai? It would seem a lot easier to get him in, oh, I don’t know, maybe Gaza? Why put 11 or more Israeli operatives at risk, not just in a foreign country, but in an Arab country (and a fairly moderate Arab country friendly to the West), in order to assassinate this one guy? Imagine the problems that Israel would have faced had one of its operatives been captured or killed in Dubai? Imagine if al-Mabhouh had gotten off a lucky shot and killed a member of the team. Al-Jazeera would have loved that one.

We also (on the basis of books and films, not to mention history) have a picture of Mossad as being quite competent. Yet this operation, as I discussed above, was riddled with odd behavior if not outright errors. Is Mossad slipping? Or was this operation intended to look like it was carried out by Israel but actually conducted by operatives without the skill that has given Mossad its reputation?

Here are a few things to think about:

• Why did the Dubai police look into al-Mabhouh’s death in the first place; after all, he was found dead of apparently natural causes in a locked room.
• How were the Dubai police able to focus on the 11 alleged members of the assassination squad so quickly? It’s almost as if they were told where to begin looking (or simply to begin looking). Remember, they didn’t open his door until the next day, yet they claim to have discovered the 11 members of the team within 24 hours!
• Why did so many of the agents (especially Gail in that last scene) seem to make such an effort to look directly at the cameras, rather than trying to keep their faces covered?
• If Israel was behind the plot, why would the Mossad have used false passports bearing the names of real Israelis? After all, Israel goes to quite a lot of effort to keep its own people (not just Mossad agents) safe. Frankly, I find it odd that Mossad would use stolen identities in the first place (rather than well-crafted false identities that would stand up to initial scrutiny), let alone identities stolen from Israelis.
• Why would Israel allow 11 agents to be subject to such scrutiny that they can likely never work outside Israel again? After all, Peter, Kevin, and Gail are probably pretty famous and well known to police around the world by now.
• Was al-Mabhouh really such an important target that Israel would put together this kind of operation, taking these kinds of risks, making these kinds of mistakes, and risking the international condemnation that will no doubt follow?

So, if not Israel, who else might have something to gain from al-Mabhouh’s assassination? As a starting point, it is worth considering whether al-Mabhouh’s assassination was the goal of any other organization or country or whether he was simply the McGuffin to use to frame Israel as having done a “bad thing”. Nobody’s going to believe Israel bombing a plane or a bus, but people are certainly willing to believe that Israel might assassinate a terrorist.

What about the Palestinian Authority or Fatah? The PA and Fatah are practically in a state of civil war with Hamas. Might this have been a part of that civil war? Might this have been a veiled statement to Hamas that the PA and/or Fatah are willing to take the fight global? Then again, perhaps the assassination was part of a power struggle within Hamas. We know that the Syrian-based wing of Hamas and the Gaza-based wing don’t quite see eye-to-eye (especially after the Syrian leaders had the chance to watch their brothers in Gaza get pummeled by Israeli in January 2009). Egypt is itself struggling with Islamic extremism (the Muslim Brotherhood) and has been making a few half-hearted attempts to stop weapons smuggling through Egypt into Gaza. Might this assassination have been an attempt by Egypt to warn Hamas? Finally, Iran stands to gain from any further incitement to violence in the Middle East, both in terms of actual conflict between Hamas or Hezbollah and Israel and in terms of the focus of world attention on Israel and away from Iran’s nuclear weapons program. Or perhaps Iran and al-Mabhouh had a falling out over the arms sales.

One other point worth noting: It has been reported by several sources (though curiously the report is not repeated anywhere near as often as the claim that Israel is responsible) that “[t]wo Palestinians alleged to have provided logistical support to the operation are in custody in Dubai”. Palestinians providing logistical support to an Israeli assassination team? Interesting.

Right now, it seems that there is a rush to judgment to presume that the operation was carried out by Israel. Perhaps it was, though if so, I must say that I’m less impressed with Mossad’s operational skill and technique than I’d anticipated I would be. On the other hand, there are just enough little questions floating around to make me wonder whether this whole operation was put together either by someone else who wanted al-Mabhouh dead or who wanted Israel to take the fall for an assassination. Of, if we want to get really cynical, the operation could have been undertaken by Israel in a way that would divert suspicion off of Israel and onto someone else (“Gee, if we’re real sloppy, no one will seriously believe that we did it…”). Of course, once you start down that road of reasoning there is no stopping.

I’m not saying that Israel didn’t do it. I don’t know; maybe Israel did. But there are just enough odd things, just enough questions, just enough sloppiness, to make one wonder whether Israel is responsible and sloppy or whether someone else wants us to think that Israel was responsible.

It will be interesting to see how this whole investigation plays out. It will be interesting to see how forthcoming Dubai is with additional facts that “prove” the case. If nothing else, it makes for a pretty interesting spy movie.

[updated February 24, 2010]

Hate and Fear of Homosexuals in Iowa

In April 2009 the Iowa Supreme Court unanimously ruled that same-sex marriages were permissible in Iowa. Apparently this ruling has caused several Iowa legislators to lash out in their hate and fear (not to mention idiocy, but more on that in a minute).

Iowa has a Safe Schools Law to protect students in Iowa schools from harassment and bullying. At present, Iowa’s law apparently provides that it is illegal to harass or bully another student because of that student’s “age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status”. (Note that I have not read the entire statute, but I do wonder why it might be acceptable to bully or harass another student because of the student’s favorite football team, musical preference, style of dress, or any of the host of other non-protected class reasons for which kids are bullied.) However, Iowa Republican state representatives Jason Schultz and Matt Windschitl apparently thinks that harassing or bullying gay students is a good thing. So, they’ve introduced a bill (HF 2291) that would delete the words “sexual orientation, gender identity” from the statute.In other words, it would apparently be OK to harass or bully a student as long as you did so because the student was gay. And just so that you don’t think I’m being creative in my description of the bill’s effects, here is how the bill’s sponsors describe the purpose of the draft legislation (emphasis added):

This bill strikes sexual orientation and gender identity from the definition of the term "trait or characteristic of the student" used for purposes of protecting students in public and nonpublic schools from harassment and bullying.

What a lovely lesson to be taught in our schools: Go ahead and harass and bully those gay kids!

But in case that wasn’t enough, Rep. Schultz has also introduced another bill (HF 2313), that appears designed to prevent Iowa courts from ever issuing another ruling like that which permitted same-sex marriage:

602.1100 Judicial authority.

1. A judicial officer shall not use judicial precedent, case law, penumbras, or international law as a basis for rulings. A judicial officer shall only use the Constitution of the United States, the Constitution of the State of Iowa, and the Code of Iowa as the basis for any ruling issued by such judicial officer. The only source material that may be used for interpreting the Constitution of the United States by a judicial officer in this state shall be the Federalist papers and other writings of the founding fathers to describe the intent of the founding fathers, and if such source material is used, the full context of the source material must be used by the judicial officer.

2. This section is not reviewable by the court.

3. A violation of this section by a judicial officer shall be considered malfeasance in office and subjects the judicial officer to impeachment under chapter 68.

Unfortunately, it is probably difficult to explain how incredibly stupid this bill really is, but I’ll try.

To begin to illustrate the problem, let me relate a story. Shortly after beginning my career as a lawyer, I was downtown with my girlfriend (now wife) and several other friends. For reasons that I don’t remember, one wanted to see where I worked. So we walked over to the building where our office was and rode the elevator up to take a look. For some reason, this girl was fascinated by the firm’s law library (which was actually rather small…). She asked me why we needed so many books. My first few attempts to explain how the “law” works fell on deaf ears (or, perhaps more precisely, went in one ear, flew through the vacuous emptiness, and exited the other ear). So I tried a different route. I pulled out a volume of the Indiana Code and looked up the statute dealing with murder and showed it to her (the key language was “knowingly or intentionally kills another human being”). Then I asked her whether it was a murder if a police officer shot a criminal who was holding a gun to a victim’s head? What if the criminal wasn’t holding a gun to a victim’s head, but rather, was running away from the police officer? What about a doctor, I asked, who had to make an emergency decision of whether to save the life of a near-term fetus or the mother following an terrible traffic accident? What about two kids playing with their father’s gun when it accidentally goes off? What if one of the kids had been pointing it at the other, thinking it wasn’t loaded? What if the person who pulls the trigger was drunk or under the influence of drugs or medication? What if the person who pulls the trigger was acting in self-defense? What if the person who pulls the trigger thought he was acting in self-defense, but no real danger existed?

Now most lawyers can easily see through and address these examples, but they served their purpose with my friend. I explained to her that statutes could only handle so many issues. The legislature could try to think of events that might occur and decide whether they should be crimes or what the law should say about them, but it is impossible to imagine every single possibility. That, I explained, was what case law (common law) was for. Of course murder probably wasn’t a very good example to use, but for someone with no experience with the law it worked very well.

But I think that this story illustrates the point of the importance of common law as a supplement to statutes and constitutions: There is only so much that the legislature can address in advance. Filling in the gaps and applying the law to particular situations is the job of judges and, under our system, has been for hundreds of years (predating the founding of the United States). People complain about lawsuits, but most of the issues that make it to the Courts of Appeals or Supreme Court deal not with issues that are clearly set forth in statutes (or constitutions), but rather with the trickier issues that aren’t subject to such readily obvious answers. That is one of the main reasons that we have an independent judiciary.

But think what else this proposed Iowa bill would do. First, how well do either the US Constitution or the Iowa Constitution address the advances in modern society or the changes in public attitudes. For example, what does either Constitution say about the right to privacy on Facebook? What does either Constitution say about ownership of a frozen embryo following a divorce? Does either specifically address whether the police need a search warrant to train heat detecting equipment on a house to see if the house might have heat lamps commonly found in marijuana operations or whether the police can track a GPS unit in a cellphone? With this proposed bill, Iowa courts and the law of Iowa could never adapt and grow. The law would always be stuck in 1789 (and whatever year the Iowa Constitution was adopted) plus whatever statutes the legislature adopted. And just think of the inconsistencies that could cause. One Iowa court might say that Iowa’s Constitution allowed something while another court might disagree. Without resort to case law and precedent, there would be no way for anybody, courts or citizens, to anticipate what the law would be. This law might actually lead to more litigation; after all, if there is no case law to look to for guidance, each and every issue not clearly set forth in statute will need to be relitigated over and over and over. If judge’s are bound by precedent (as they are now), then we have a pretty good idea of what the law should say about any given subject, though with the understanding that as society and our world change, the law can change and grow with it.

One other thing about this bill is worth noting: Why the reliance upon the Federalist papers and other documents about the intent of the Founding Fathers? (And who, precisely, are the founding fathers?) Why do we need to look to their intent if the Constitution is supposed to be able to stand up on its own? We don’t look outside of a contract unless there is an ambiguity (of course that rule is from common law…), so is the Iowa legislator suggesting that the Constitution is ambiguous? But if it is ambiguous, isn’t it then appropriate to look to common law? And how, I wonder, do we decide which documents of the Founding Fathers may be used? Is Jefferson’s letter setting forth his opinion that the First Amendment erected a wall of separation between church and state one of those documents? I suspect advocates of prayer in school would disagree; after all, they’ve contended for years that what Jefferson may have said in a private letter has nothing to do with the Constitution.

I could probably go on at length (as if this hasn’t been long enough already…). In the end, these two bills simply provide ample evidence of the fear (and hatred) of some on the right toward gays and toward the possibility that court’s might view gays as being a protected class subject to equal rights, just as African-Americans were in the Civil Rights era. Plus, the second bill demonstrates just how profoundly stupid some legislators really are and how little they understand about how American jurisprudence really works.

Caribou Barbie and the Cult of Stoopid

I’d hoped that when John McCain conceded the 2008 election, his running mate would fade back into the wilds of Alaska and spend her time looking out upon Russia and pardoning turkeys. And then I hoped that when she quit as Alaska’s Governor, she would fade off into the lecture circuit and people would grow tired of her. Unfortunately, while she has gone on tour, she’s hasn’t faded away. Instead, she’s continued to bring her populist form of stupid to the right wing and they seem ever more willing descend to her level. Her following has begun to exhibit a cult-like fascination with her where she can or say no wrong. The past few days have provided ample examples of Palin’s “appeal”.

First, let’s take a brief look at her speech to the first Tea Party convention (note that, unlike a traditional political convention, the Tea Party convention was a for profit endeavor with a very high ticket price [not quite as much as a Super Bowl ticket, but close] and Palin was paid $100,000 to speak). Now, if she wanted to be a real leader, and a responsible leader at that, she would spoken out against some of the racist, xenophobic, and homophobic rhetoric that preceded her at the convention (not to mention the “birther” rants from some of the featured speakers). For example, former Colorado Congressman Tom Tancredo opened the convention and his speech included the following:

Every year, the liberal Dems and the RINO Republicans turned up the temperature ever so slightly. It seemed after awhile that we'd all be boiled to death in a cauldron of the nanny state.

And then something really odd happened -- mostly because we do not have a civics literacy test before people can vote in this country.

People who cannot even spell the word "vote," or say it in English put a committed socialist ideologue in the White House. Name is Barack Hussein Obama.

These comments were punctuated with applause from the teabaggers. I guess these folks either don’t remember Jim Crow laws (um, what about that civics literacy test) or they want to return to the days of Jim Crow laws.

Sarah Palin could have shown real leadership by taking on these sorts of comments directly and trying to drive the right wing away from what Sen. McCain’s daughter Meghan referred to (on ABC’s The View) as “innate racism”.

What did Sarah Palin do? Besides repeating the very broad themes that lost the 2008 election, she criticized President Obama for being a good orator that uses a teleprompter (and it’s worth noting that when giving her speech to the 2008 Republican convention — the speech that brought her to prominence and made her into a conservative hero — Palin used a teleprompter, too). Now I think that particular criticism of President Obama is simply silly. Most speeches these days are given from a teleprompter so that the speaker can look out at the crowd and not down at notes. It may be fair to compare use of a teleprompter to a politician’s ability to speak extemporaneously, but the use of a teleprompter isn’t any different than resorting to written notes. Nevertheless, for some reason, this criticism from Palin has gotten some positive attention (at least on the right), so I want to note two additional things: First, during her speech to the Tea Party convention, Palin read her speech from paper on a lectern (she also criticized President Obama for lecturing from a lectern); second, when President Obama met with House Republicans and spent over an hour responding to their questions (and taking them to task if not eviscerating them), he didn’t use a teleprompter. But he was very, very conversant on the issues. (For that matter, it’s worth comparing President Obama’s interview with Katie Couric before the Super Bowl to those infamous interviews that Couric did with Palin.) But to the Cult of Palin, President Obama is “bad” because of his use of a teleprompter and Palin is the “common American” standing up against President Obama’s socialist/elitist ability to string a bunch of words together coherently.

Anyway, the idiocy of the teleprompter criticism leads directly into the next example of Palin’s stupidity. After giving her speech, Palin sat on the stage for a brief Q&A. Watch:

So what exactly was written on Palin’s hand?

Energy

Budget cuts

Tax

Lift American Spirits

Wow! Those are some pretty tough things to remember, aren’t they.

Here’s Keith Olbermann’s view (offered here for the humor):

But Faux News saw it differently:

Note what Gretchen Carlson says:

I think she did it on purpose. I think she did it on purpose, yeah. Because it’s an exact opposite of reading off the teleprompter with a script written for you with every word in a sentence and here’s she’s just taking crib notes on her hand. It makes her look like she can just talk off the cuff and that she just she jotted down a few couple notes before she went out to give a big long speech.

She must have been really impressed then, when President Obama talked to Republicans for over an hour without a teleprompter or crib notes, right? Or how about Brian Kilmeade:

I think that is — like you said before Gretchen — folksy, absolutely, down-to-earth, I can identify.

Leave it to Faux News to be quick to jump to Palin’s defense; she’s not dumber than a box of Alaskan rocks; she’s folksy and did it on purpose to make that big bad Obama guy look too smart! And we know that smart is just a synonym for “socialist”!

Of course John Stewart couldn’t let this go without comment, either:

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
AmeriGasm
www.thedailyshow.com

But the idiocy doesn’t end here. Nope.

The next day in an interview with Chris Wallace on (you guessed it) Faux News, Palin said in response to a question regarding how difficult it would be to defeat President Obama in 2012:

Say [Obama] played, and I got this from [Pat] Buchanan, reading one of his columns the other day. Say he played the war card. Say he decided to declare war on Iran, or decided to really come out and do whatever he could to support Israel, which I would like him to do.

Now remember that Palin famously told Katie Couric, in response to the question of what newspapers she reads, “all of them”. Well, it appears that she only reads headlines. You see Pat Buchanan’s column doesn’t seem to suggest playing the “war card” at all. Had Palin read to the end of the article (hey, can we blame her; I mean it is 800 words long and they won’t all fit on her palm) she would have seen that Buchanan was actually rebutting a proposition set forth by neocon Daniel Pipes in an article in the National Review (and Pipes is now touting the fact that Palin endorsed his strategy). The point of all this seems to be twofold: First, Sarah Palin can’t see Iran from Alaska, so she has no knowledge or expertise on the issues; second, she can’t quite manage to take the basic concepts away from articles on the subject without getting things, at least somewhat, backward. And besides all that, do we really want someone who may aspire to be President to take her foreign policy advice from Pat Buchanan (or Daniel Pipes, for that matter)?

But we’re still not quite done with the “week in stupid”. Nope.

It seems that last year, White House Chief of Staff Rahm Emanuel scolded a group of liberal activists for alienating lawmakers from whom they needed help. On February 1, 2010, Palin weighed in via Facebook.

I would ask the president to show decency in this process by eliminating one member of that inner circle, Mr. Rahm Emanuel, and not allow Rahm’s continued indecent tactics to cloud efforts. Yes, Rahm is known for his caustic, crude references about those with whom he disagrees, but his recent tirade against participants in a strategy session was such a strong slap in many American faces that our president is doing himself a disservice by seeming to condone Rahm’s recent sick and offensive tactic.

The Obama Administration’s Chief of Staff scolded participants, calling them, “F---ing retarded,” according to several participants, as reported in the Wall Street Journal.

Just as we’d be appalled if any public figure of Rahm’s stature ever used the “N-word” or other such inappropriate language, Rahm’s slur on all God’s children with cognitive and developmental disabilities – and the people who love them – is unacceptable, and it’s heartbreaking.

A patriot in North Andover, Massachusetts, notified me of Rahm’s “retarded” slam. I join this gentleman, who is the father of a beautiful child born with Down Syndrome, in asking why the Special Olympics, National Down Syndrome Society and other groups condemning Rahm’s degrading scolding have been completely ignored by the White House. No comment from his boss, the president?

As my friend in North Andover says, “This isn’t about politics; it’s about decency. I am not speaking as a political figure but as a parent and as an everyday American wanting my child to grow up in a country free from mindless prejudice and discrimination, free from gratuitous insults of people who are ostensibly smart enough to know better... Have you no sense of decency, sir?”

Mr. President, you can do better, and our country deserves better.

As a general matter, I actually agree with Palin’s criticism of Emanuel. I think his use of the word “retarded” was inappropriate and offensive. However, it is worth noting that Emanuel had issued at least one apology before Palin made her remarks and has agreed to host a delegation of advocates for people with disabilities. But I don’t begrudge Palin her outrage at Emanuel for his offensive comment, especially given that she is the mother of a special needs child. But… (You knew there’d be a “but”, didn’t you?)

In response to this whole issue, Rush Limbaugh (leader of the Republican Party) chimed in:

Our political correct society is acting like some giant insult’s taken place by calling a bunch of people who are retards, retards. I mean these people, these liberal activists are kooks. They are looney tunes. And I’m not going to apologize for it, I’m just quoting Emanuel. It’s in the news. I think their big news is he’s out there calling Obama’s number one supporters f’ing retards. So now there’s going to be a meeting. There’s going to be a retard summit at the White House. Much like the beer summit between Obama and Gates and that cop in Cambridge.

Now keeping in mind Palin’s criticism of Rahm Emanuel, you can probably imagine her outrage at Limbaugh, right? Here is what Palin’s spokesperson had to say:

Governor Palin believes crude and demeaning name calling at the expense of others is disrespectful.

Wow, what a smackdown that was. But, it turns out, that wasn’t what Palin really thought about Limbaugh’s comments. Nope. In that same interview with Chris Wallace, Palin discussed Limbaugh’s comments:

Here’s the key quotation:

I didn’t hear Rush Limbaugh calling a group of people whom he did not agree with ‘f-ing retards’ and we did know that Rahm Emanuel has been reported, did say that. there is a big difference there.

Now go back and read Limbaugh’s statement again: “[B]y calling a bunch of people who are retards, retards”. The only difference is that Limbaugh didn’t punctuate his statement with profanity. So not only is Palin stupid, she’s also an unrepentant hypocrite.

Here’s Stephen Colbert’s thought on the subject (with a bonus discussion of palm-gate), starting at about 3:00 (stick around for the penultimate punch line … it makes my point):

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Sarah Palin Uses a Hand-O-Prompter
www.colbertnation.com

At the end of the day, we really have to wonder about people who believe not only that Palin is qualified to do much of anything, but that she is qualified to be a prime spokesperson for an ideology, let alone, to be President of the United States (and remember the survey that I wrote about a few days ago: only 14% of self-identified Republicans believe that Barack Obama is more qualified to be President than Sarah Palin).

Palin may have some kind of mass appeal and “street smarts” but, in fact, she and those who slavishly fawn upon her and follow her every word (almost like a cult), are stoopid. The time has come for Caribou Barbie to go back to Wasilla, look after her kids, and leave politics and governance for those who can remember their core principles without cheating.