(2) The names and addresses of all persons whom the defendant intends to call as witnesses, together with their relevant written or recorded statements;
(3) The names and addresses of experts whom the defendant intends to call at trial, together with the results of the defendant’s physical examinations and of scientific tests, experiments or comparisons that have been completed; and
(4) A list of all papers, documents, photographs and other tangible objects that the defendant intends to use at trial.
Sec. 6. Liability for Actions Which Violate Both the Constitution and State Law. Chapter 13 of part 1 of title 18, United States Code, is amended by adding at the end thereof a new section 250, to read as follows:
A State or its subdivision may bring criminal charges against an employee or agent of the United States for actions which (1) deprive a citizen of his or her rights under the Constitution of the United States and also (2) violate the State’s criminal law.
ENDNOTES
INTRODUCTION
1. William Blackstone, Commentaries on the Laws of England, Book One, ch. 7 (1765).
2. Bernard Bailyn, The Ideological Origins of the American Revolution, p. 125 (1977).
3. United States v. Clarke, 33 U.S. 436, 444 (1834). The United States was commonly treated as a plural until after the Civil War. For example, the Thirteenth Amendment, ratified in 1865, provided that slavery shall not exist within “the United States, or any place subject to their jurisdiction.” “Their,” not “Its.”
4. The Siren, 74 U.S. 152, 154 (1868).
5. 106 U.S. 196 (1882).
6. 106 U.S. at 220.
7. Price v. United States, 174 U.S. 373, 375–76 (1899).
8. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). Since Congress had established the Court of Claims, with the power to award compensation for a governmental taking of property, the Larson ruling meant that United States v. Lee was dead even on its facts; the government could not take property without compensation because the owner could always seek compensation in the Court of Claims. “That’s some catch, that catch-22.”
9. The background to In re Neagle can be found in Walker Lewis, “The Supreme Court and a Six-Gun: The Extraordinary Story of In re Neagle,” American Bar Association Journal, vol. 43, p. 415 (May, 1957).
10. In re Neagle, 135 U.S. 1, 76 (1890).
11. See Karen J. Greenberg & Joshua Dratel, eds., The Torture Papers: The Road to Abu Ghraib, pp. 11, 212, 213, 264, 311–12 (2005). Neagle was primarily cited for two propositions: (1) the Executive Branch has inherent powers, beyond those given by statute (the Supreme Court had confirmed that the Attorney General could deputize Neagle as a marshal, though no statute allowed this), and (2) federal employees had broad powers to kill in defense of other persons, and so presumably could torture in that defense as well.
12. Deborah Blum, “The Chemist’s War: The Little-Told Story of How the U.S. Government Poisoned Alcohol During Prohibition with Deadly Consequences,” Slate, Feb. 19, 2010, online at http://www.slate.com/articles/health_and_science/medical_examiner/2010/02/the_chemists_war.html.
13. Ibid.
14. Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).
15. White v. Pauly, U.S. Supreme Court, No. 16–67, Jan. 9, 2017, slip opinion.
16. 28 U.S. Code §2680(a).
17. 26 U.S. Code §2680(h).
CHAPTER 1
1. House Judiciary Committee, Texas City Disaster, Report No. 1386, 83rd Cong., 2d Sess., p. 1 (1954) [hereinafter “House Judiciary Report”].
2. Mrs. Dalehite’s experiences were recounted in her testimony before the House Judiciary Committee. House Judiciary Committee, Texas City Disaster: Hearings before a Special Subcommittee of the House Judiciary Committee (83rd Cong. 1st Sess.), p. 102–07 (1953) [hereinafter “1953 Hearings”]. They are also recounted in a moving book, City on Fire by Bill Minutaglio (2003). Mrs. Dalehite died in 1988, having outlived her Captain by forty-one years. She is buried by his side in Evergreen Cemetery, Galveston, Texas.
3. 1953 Hearings, p. 14.
4. Hearings on the Texas City Claims Act, before Subcommittee No. 2 of the House Committee on the Judiciary, 84th Cong., 1st Sess., p. 152–53 (1955) [hereinafter “1955 Hearings”].
5. 1953 Hearings, p. 228.
6. Record of Proceedings of Board of Investigation Inquiring into Losses by Fire and Explosion of the French Steamship Grandcamp and U.S. Steamships Highflyer and Wilson B. Keene at Texas City, Texas, p. 351 [hereinafter “Record of Proceedings”]; House Judiciary Committee Report, p. 10.
7. Hugh W. Stephens, The Texas City Disaster, p. 21 (1997).
8. 1955 Hearings, p. 50.
9. 1953 Hearings, p. 229.
10. Ibid.
11. Ibid.
12. Hugh W. Stephens, op. cit., pp. 30–31.
13. Hugh W. Stephens, op. cit., p. 30.
14. Mr. Luna’s recollections are set out in the Record of Proceedings, p. 465 ff.
15. Hugh W. Stephens, op. cit., p. 33.
16. 1955 Hearings, p. 40; Bill Minutaglio, op. cit., p. 119.
17. Record of Proceedings at 542.
18. Bill Minutaglio, op. cit., p. 120.
19. Hugh W. Stephens, op. cit., p. 100.
20. Author’s conversation with Robert Baer, Apr. 22, 2016.
21. Bill Minutaglio, op. cit., pp. 148, 198.
22. Hugh W. Stephens, op. cit., p. 101.
23. Bill Minutaglio, op. cit., p. 187.
24. Hugh W. Stephens, op. cit., pp. 102–105.
25. 1953 Hearings, p. 57.
26. 1953 Hearings, pp. 57, 134–35. The trial court cited and rejected the argument that the government did not own the ammonium nitrate. Ibid. at 255.
27. The judgment is reproduced in the 1953 hearings, at pp. 247 ff. The summary quoted is at p. 248.
28. 346 U.S. 15 (1953).
29. 350 U.S. 61 (1955).
30. 467 U.S. 797 (1984).
31. 486 U.S. 531 (1988).
32. Rosenbush v. United States, 119 F.3d 438 (6th Cir. 1997).
33. “Deepwater Horizon Oil Spill,” Wikipedia, online at http://en.wikipedia.org/wiki/Deepwater_Horizon_oil_spill#Civil_litigation_and_settlements.
34. Riley v. United States, 486 F.3d 1030 (8th Cir. 2007). The Tenth Circuit reached the same result in Lopez v. United States, 376 F.3d 1055 (10th Cir. 2004).
35. The average payment under the September 11th Victim Compensation Fund was $1.8 million. Wikipedia, online at http://en.wikipedia.org/wiki/September_11th_Victim_Compensation_Fund.
36. 1955 Hearings, p. 13.
37. Hearings before a Subcommittee of the Committee on the Judiciary on S.1077 (84th Cong., 1st Sess.), p. 41 (1955).
CHAPTER 2
1. Martha Bardoli Laird, quoted in House Committee on Oversight and Foreign Commerce, Subcommittee on Oversight and Investigations, “The Forgotten Guinea Pigs”: A Report on Health Effects of Low-Level Radiation Sustained as a Result of the Nuclear Weapons Testing Program Conducted by the United States Government, 96th Cong., 2nd Sess., p. 14 (1980) [hereinafter “House Report”].
2. Carole Gallagher, American Ground Zero, p. 300 (1993); Howard Ball, Justice Downwind, p. 45 (1986).
3. Hearings on Radioactive Fallout from Nuclear Testing at Nevada Test Site, before a Special Subcommittee of the Senate Appropriations Committee (105th Cong., 1st Sess.), p. 23 (1998). Online at https://www.gpo.gov/fdsys/pkg/CHRG-105shrg44045/html/CHRG-105shrg44045.htm.
4. Philip Fradkin, Fallout: An American Tragedy, pp. 8–9 (1989).
5. Sally Whipple Mosher Mooney, On the Sunnyside of Life, unpaginated (2012).
6. Ibid., pp. 7–8, 167.
7. Glenn Alan Cheney, They Never Knew: The Victims of Nuclear Testing, p. 40 (1996).
8. Ibid.
9. Bill Curry, “Clouds of Death Haunt the Mesas,” Washington Post, July 2, 1978, online at https://www.washingtonpost.com/archive/politics/1978/07/02/the-clouds-of-death-haunt-the-mesas/904dd6a
8-1725-44b2-a9b6-964f134e8b85/?utm_term=.dc2df32d535c.
10. Carole Gallagher, op. cit., p. 124. It is not clear that Harry was the blast that affected Mrs. Nelson; her husband did not know which test it was, and thought it came in 1955. But the 1955 tests involved bombs set off at three thousand feet or more, rather than Harry’s three hundred feet. The greater altitude would have reduced fallout since the fireball was too high to scoop up and irradiate earth.
11. Glenn Alan Cheney, op. cit., pp. 40, 44–45.
12. J. C. Jones, Atmospheric Pollution, p. 105 (2008), download available at https://books.google.com/books?id=tt64O4JOB3gC&pg=PA105&lpg=PA105&dq=chernobyl+i-.
13. Arthur B. Schneider, “Ionizing Radiation and Thyroid Cancer,” in Thyroid Cancer, pp. 27, 47, edited by James A. Fagin (1998).
14. J. C. Jones, op. cit.
15. Carl J. Johnson, “Cancer Incidence in an Area of Radioactive Fallout Downwind from the Nevada Test Site,” in Journal of the American Medical Ass’n, vol. 251, p. 230 (1984).
16. Carol Gallagher, op. cit., p. 129.
17. J. H. Foley, W. Borges & T. Yamawaki, “Incidence of Leukaemia in Survivors of the Atomic Bomb in Hiroshima and Nagasaki, Japan,” in American Journal of Medicine, vol. 13, p. 311 (1952); R. D. Lange, W. C. Moloney & T. Yamawaki, “Leukaemia in Atomic Bomb Survivors,” Blood, vol. 9, p. 574 (1954).
18. “Atomic Device Firing in 11th Postponement,” The [Provo] Daily Herald, May 26, 1957, p. 1. A similar announcement was made four months later, when a test was postponed for a day “because winds would have carried fallout over populated areas.” “21st Nuclear Shot Delayed,” The [Provo] Daily Herald, Sept. 17, 1957, p. 17.
19. AEC handbill dated Jan. 11, 1951, online at http://en.wikipedia.org/wiki/Nevada_Test_Site#/media/File:NTS_-_Warning_handbill.jpg.
20. “Derides Fear of Radiation,” Ogden Standard-Examiner, Aug. 19, 1957, p. 1.
21. “We Don’t Know Enough,” Salt Lake Tribune, May 9, 1952, p. 10.
22. “Controls Make Atomic Tests Harmless,” Salt Lake Tribune, May 29, 1952, p. 6.
23. “Salt Lake City (UP),” The [Provo] Daily Herald, May 19, 1953, p. 1.
24. “Utah Clear of Harmful Atom Cloud,” Ogden Standard-Examiner, May 20, 1953, p. 1.
25. “Radiation in Atomic Tests Held Negligible,” [Provo] Sunday Herald, May 24, 1953, p. 14.
26. “No Danger in Nevada Nuclear Tests, Utah Residents Assured,” The [Provo] Daily Herald, Jan. 21, 1955, p. 1.
27. House Report, pp. 4–5.
28. Richard Miller, Under the Cloud, p. 183 (1986).
29. Ibid., p. 183.
30. House Report, p. 6.
31. Howard Ball, “Downwind from the Bomb,” New York Times Magazine, Feb. 9, 1986, online at http://www.nytimes.com/1986/02/09/magazine/downwind-from-the-bomb.html.
32. Glenn Alan Cheney, op. cit., pp. 44–45.
33. House Report, p. 7.
34. House Report pp. 7–8; see also Hearing before the Senate Judiciary Committee on S. 2454 (99th Cong., 2nd Sess.), p. 187 (1986) (statement of Stewart Udall).
35. House Report, p. 7.
36. Lindsay Mattison & Richard Daly, “Nevada Fallout: Past and Present Hazards,” Bulletin of the Atomic Scientists, p. 41 (Apr. 1964).
37. Margaret Jones Patterson & Robert H. Russell, Behind the Lines: Case Studies in Investigative Reporting, p. 164 (1986).
38. See Howard L. Rowsenberg, Atomic Soldiers (1980); Jennifer LaFleur, America’s Atomic Vets, online at https://www.revealnews.org/article/us-veterans-in-secretive-nuclear-tests-still-fighting-for-recognition/; Harvey Wasserman and Norman Solomon, Killing Our Own, online at https://ratical.org/radiation/KillingOurOwn/index.html.
39. “U.S. Expands Care of Atom Veterans,” New York Times, Apr. 6, 1983, online at http://www.nytimes.com/1983/04/07/us/us-expands-care-of-atom-veterans.html.
40. Jeremy Pearce, “Edward Lewis, Nobelist Who Studied Fly DNA, Dies at 86,” New York Times, July 26, 2004, online at http://www.nytimes.com/2004/07/26/us/edward-lewis-nobelist-who-studied-fly-dna-dies-at-86.html.
41. Richard L. Miller, op. cit., pp. 361–62.
42. Ibid., p. 363.
43. Ibid., p. 364.
44. Bill Curry, “A-Test Officials Feared Outcry After Health Study,” Washington Post, Apr. 14, 1979, online at https://www.washingtonpost.com/archive/politics/1979/04/14/a-test-officials-feared-outcry-after-health-study/9c4519f1-e71e-4f6f-83a3-d09de85b06f5/?utm_term=.e38ef554b737.
45. Ibid.
46. “U.S. Ignored Atomic Test Leukemia Link,” Washington Post, Jan. 8, 1979, online at https://www.washingtonpost.com/archive/politics/1979/01/08/us-ignored-atomic-test-leukemia-link-phs-ignored-leukemia-link-in-western-a-tests/545f354a-07f2-404b-bb3b-8cedd885f5a9/.
47. Gordon Eliot White, “U.S. Kept Ignoring Evidence about Fallout’s Deadly Effects,” Deseret News, Oct. 28, 1990, online at http://www.deseretnews.com/article/129362/US-KEPT-IGNORING-EVIDENCE-ABOUT-FALLOUTS-DEADLY-EFFECTS.html.
48. Margaret Jones Patterson & Robert H. Russell, op. cit., pp. 159–60.
49. Joseph L. Lyon, et al., “Childhood Leukemias Associated with Fallout from Nuclear Testing,” New England Journal of Medicine, vol. 300, p. 397 (1979).
50. Philip L. Fradkin, op. cit., p. 74.
51. Susan Stramaham, Downwind Deals, online at http://aliciapatterson.org/stories/downwind-deals.
52. Howard Ball, op. cit., p. 153.
53. Ibid., p. 44.
54. Ibid.
55. Allen v. United States, 588 F. Supp. 247 (D. Utah 1984).
56. 588 F. Supp. at 337-38.
57. 467 U.S. 797 (1984). The facts discussed here are taken from the Supreme Court opinion and also from the ruling of the Ninth Circuit, Varig Airlines v. United States, 692 F.2d 1205 (9th Cir. 1982), which the Court reversed.
58. 467 U.S. at 813.
59. 467 U.S. at 820.
60. Allen v. United States, 816 F.2d 1417 (10th Cir. 1987).
61. The crewman had been given transfusions to remedy anemia caused by the fallout and died of hepatitis contracted from the transfusions.
62. Mark Schreiber, “Lucky Dragon’s Lethal Catch,” Japan Times, Mar. 18, 2012, online at http://www.japantimes.co.jp/life/2012/03/18/general/lucky-dragons-lethal-catch/#.WDsjR2UzP8s.
CHAPTER 3
1. Quoted in Alexander Cockburn & Jeffrey St. Clair, Whiteout: The CIA, Drugs, and the Press, p. 67 (1998).
2. “Selected Letters Between the United States Public Health Service, the Macon County Health Department, and the Tuskegee Institute,” in Tuskegee’s Truths, pp. 84–85, edited by Susan M. Reverby (2000) [hereinafter “Selected Letters”].
3. Jared Diamond, Guns, Germs, and Steel, p. 210 (1997).
4. Thomas Johnson, trans., The Works of that Famous Chirurgion Ambrose Parey, p. 727 (1634, reprinted 1968) (spelling modernized).
5. Ibid., p. 749.
6. Julie M. Fenster, Mavericks, Miracles, and Medicine, p. 136 (2003).
7. Mark S. Rasnake, et al., “History of U.S. Military Contributions to the Study of Sexually Transmitted Diseases,” Military Medicine, vol. 170, pp. 61, 63 (2005).
8. M. Tampa, et al., “Brief History of Syphilis,” Journal of Medicine and Life (Mar. 15, 2014), online at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3956094/.
9. Dr. Richard Arnold, quoted in John Firth, “Syphilis – Its early History and Treatment until Penicillin,” Journal of Military & Veterans’ Health, online at http://jmvh.org/article/syphilis-its-early-history-and-treatment-until-penicillin-and-the-debate-on-its-origins/.
10. K. J. Williams, “The Introduction of ‘chemotherapy’ using arsphenamine – the first magic bullet,” Journal of the Royal Society of Medicine, vol. 102, p. 343 (Aug. 1, 2009), online at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2726818/.
11. Dep’t of Health, Education and Welfare, “Final Report of the Ad Hoc Tuskegee Syphilis Study Panel,” in Tuskegee’s Truths, edited by Susan M. Reverby, p. 168 (2000).
12. Marianna
Karamanou et al., “Hallmarks in History of Syphilis Therapeutics,” La Infezioni in Medicina, vol. 4, p. 317 (2013), online at http://www.infezmed.it/media/journal/Vol_21_4_2013_10.pdf.
13. James H. Jones, op. cit., Selected Letters, p. 75, 77.
14. Ibid., pp. 77, 86–88.
15. Ibid., p. 80.
16. Ibid., p. 75.
17. Ibid., pp. 75–76.
18. Ibid., pp. 78–80.
19. The author’s father, living on the Arizona frontier, was bitten by a rattlesnake in the 1930s. He had to survive without medical care because the nearest doctor was sixty miles away, no small distance at the time, and his grandparents, who were raising him, could not afford the treatment. When his grandfather was dying of cancer, the family smuggled morphine up from Mexico, I assume because they could not afford the domestic product.
20. Again, not a minor consideration to a poor sharecropper at the time. The author’s great-grandparents rest in the cemetery in St. David, Arizona. Many of the tombstones there consist of cast concrete, mixed from a bag, with names and dates scratched into it, or spelled out by inserted pebbles. The author’s great-uncle rests in a cemetery in Buckeye, Arizona; his memorial is a galvanized metal tag with his name stamped on it, fastened to a wooden stake. In much of 1930s rural America, medical care and headstones were not affordable.
21. Fred D. Gray, The Tuskegee Syphilis Study, pp. 58–59 (1998).
22. Selected Letters, p. 81.
23. James H. Jones, Bad Blood: The Tuskegee Syphilis Experiment, p. 117 (1993).
24. Ibid., p. 119.
25. Ibid., p.123.
26. Ibid., p. 124.
27. Ibid., pp. 127–28.
28. Ibid., p. 128.
29. Selected Letters, pp. 82–83.
30. M. P. Vora, “Cardiovascular Syphilis,” The Medical Bulletin, vol. 10, p. 444 (Oct. 3, 1942).
31. Memorandum dated Feb. 18, 1938, through Medical Directors, Bureau of Prisons, to Surgeon General. Files of Attorney General Homer Cummings, University of Virginia, collection no. 9973, Box 85.
I'm from the Government and I'm Here to Kill You Page 24
