Tsarnaev’s Appeal Possibilities, Part 1: Staying the Proceedings for Abuse of Process
by Mary W Maxwell, LLB
A girl who barely scraped through law school should probably refrain from suggesting to a panel of judges the approach they should take in a federal criminal case. However, I am interested in cataloguing what’s available in the upcoming appeal of United States v Tsarnaev. So in this series I’ll rehearse any approach I can find.
An appeal is not a fresh trial. New evidence cannot be proffered. Since Jahar was convicted by a jury, that jury’s verdict is sacred, so to speak. What is usually brought up in appeal is a claim that the law was wrongfully applied.
On July 18, 2018, Jahar Tsarnaev’s defense team – and I use the word defense in the most cavalier manner – asked for an extension of time until November 18, 2018 so they could study the situation. It has been granted.
Their appeal is based on notions that I cannot “relate” to. For instance, they will challenge the venue, saying that Boston was too hot to handle, thanks to media coverage of the Marathon bombing. I say the Moakley Courthouse, only a few miles from the Finish Line, was the perfect place in which honest attorneys could have sorted out the nonsense stories provided by the media.
They are also going to try to air the wrongness of certain aspects of the jury selection. Personally, I don’t believe in jury selection. A jury of your peers means a jury of 12 people selected at random.
Also, the “D” team plans to object to Jahar’s un-Mirandized confession. [All gasp.] This apparently refers to Jahar talking to the Gitmo team – remember that one? – at Beth Israel Deaconness Hospital. It was based on FBI Form 302, which is a deliberate means of creating a confession that never took place. That whole episode is a fantasy and even to discuss a Miranda aspect shows bad faith, in my opinion.
The Staying of Proceedings Because of Entrapment
Part 1 of this series looks only at one aspect of law, namely the staying of proceedingsby a judge. For a local court, staying is covered in Rule 18 of the (unbelievably boring) Federal Rules of Criminal Procedure, the FRCP. During a trial either party can move for the judge to order a stay. For appeals courts, the guidance is found in the FRAP – Federal Rules of Appellate Procedure.
Naturally, I would like the appeals judges to stay the proceedings based on the fact that the whole case was a travesty, an insult to the Court, and an insult to America, but let’s go for more modest grounds. I am going to refer to the grounds of abuse of process.
The Nuttall/Korody Case
The reason I am using this approach is that a judge in the Supreme Court of British Columbia, Canada, used it effectively in a case where two Muslims, a husband and wife, had been convicted of terrorism. She, Justice Catherine Bruce, saw that the whole thing should never have come before the lower court or her appellate court.
She ordered a stay of proceedings, accusing the Royal Canadian Mounted Police of abusing the legal process by entrapping the accused persons, John Nuttall and Amanda Korody. (In a Gumshoe article in 2016 I wrote about the case, misspelling Amanda’s surname as Kolody. Forgive me.)
This is not to say that I think the Tsarnaevs suffered “entrapment.” No, not at all. I don’t think the FBI entrapped them into committing a crime, as I don’t believe they committed any crime. Heck, I even think Jahar and Tamerlan weren’t present at the 2013 Marathon race in Boston — the photos of them were probably photoshopped.
So, I shan’t be paralleling Justice Bruce’s statement that that “Mr Big” pushed or frightened John and Amanda to do this or that. But I am using her argument that when the RMCP did what they did – namely, they engineered a terrorist crime that almost came to fruition – they did so in disrespect of the law. She specifically says they abused the process of the law.
American Law Invokes “Entrapment” As a Defense
As far as I know, Justice Bruce’s approach, which followed the precedent of the Canadian case of Mack, is not found in the federal law of the United States or of any of the 50 states. Granted, we do have the concept of abuse of process (e.g., I think all SLAPP suits should be thrown out as blatant abuse of process), but it has not been applied in the matter of entrapment.
Rather, if an accused can show that she was entrapped by the police or other person to commit a crime that she otherwise would not have committed, her defense attorney can offer “entrapment” as a defense and presumably get her acquitted thereby.
As I said, I won’t be using the entrapment approach. As I argue in my book Marathon Bombing: Indicting the Players, Tamerlan probably obeyed a directive from his handler (CIA? FBI?) to show up in Watertown in the wee hours of April 19, 2013. Once there, he got captured. They had not involved him in the exploding of a bomb or the making of a bomb or anything else. He was a classic patsy.
Jahar, too, was probably captured by police at the same moment as his brother, and then was drugged and placed into a boat to await his death by firing squad — 228 bullets, by official count. Note: parallels to Martin Bryant’s intended death in the fire at Seascape are glaring, if you know the Port Arthur massacre story.
I Do Not (Yet) Ask the Appellate Judges To Whisk Out a Bench Warrant
As I will now describe, I consider the US Department of Justice to be the party that committed abuse of process. The DoJ includes both the FBI and the US Attorneys who run the prosecution when a federal crime such as terrorism is to be tried. I say both are equally culpable. Both have offended the law. (Ah, law. Remember law? Remember its majesty?)
As far as I know, abuse of process is not a crime. It can result in the judge making an order of contempt of court, including writing a warrant for the arrest of the contemner. You may go to prison but you won’t get a criminal record (as South Australian Fredrick Toben discovered when he was held in contempt over a matter related to Holocaust denial).
In any case, I am not going down that road today. Much less am I going down the road – though I have gone down it numerous times – of saying that prosecutor Carmen Ortiz and FBI Chief Richard Deslauriers have committed crimes of obstruction of justice in regard to Jahar’s case.
Federal law is clear that obstructing justice is felonious, whether it consist of suppressing evidence, tampering with a witness, or whatever. Sir William Blackstone in his 1769 Commentaries on the Laws of England was pleased to announce the harsh punishments available for such things. (Having your teeth pulled, or something like that.)
But not today, Folks. I have come to stay Caesar’s proceedings, not to bury him. And of course today is not the day on which I ask for the arrest of FBI personnel, or FEMA, the Transit Police, or any other suspect, for the crime of actually doing the Marathon bombing.
Canadian Judge Lamer’s Ruling in Mack
As noted, Justice Catherine Bruce, in staying the proceedings against Nuttall and Korody, employed the precedent in the Mack case. She quoted from that case at length. The paragraph numbers shown are from her legal opinion:
 Entering a stay of proceedings due to entrapment is not done to punish the police for their misconduct; however, the court is concerned with maintaining confidence in the integrity of the justice system by refusing to condone unacceptable conduct by state authorities. [P]olice… must be given substantial room to develop techniques that are necessary to combat crime in society. Nevertheless, when the police and their agents engage in conduct that offends basic values of the community, the doctrine of entrapment must apply….
 In Canada, the approach to entrapment is different from that adopted by American courts. In Mack, the Supreme Court of Canada articulated a more objective evaluation of the actions of the police or state agents and rejected an entirely subjective analysis of the impact of police conduct on a particular accused. It was the desire to avoid a predisposition analysis of the accused’s actions and motivations that led to … a model that focuses instead on the conduct of the police. Lamer J. said:
 In addition to entrapment, the defence argues that the police conduct in this case warrants a stay of proceedings because it amounts to an abuse of the Court’s process. The abuse of process claim includes allegations of illegal conduct by the police, violations of the defendants’ religious rights and freedoms, and overall abusive and coercive conduct during the undercover operation…. As a consequence, the authorities addressing these issues are relevant to the entrapment inquiry as well as the claim of abuse of process. [Emphasis added]
Justice Catherine Bruce’s Emphatic Words
At the end of her ruling Justice Catherine Bruce wrote the following:
 Based on the evidence before me, I am satisfied that the RCMP knowingly exploited the demonstrated vulnerabilities of the defendants in order to induce them to commit the offences. They adopted a multi-faceted approach that included most of the factors in favour of a finding of entrapment articulated in Mack, including the use of trickery, fraud and reward; the use of persistent direction to become more… focused …in their jihadist ideas; the use of persistent veiled threats to adopt the pressure cooker plan as their own…; the exploitation of the defendants’ social isolation and desperation for friendship with Officer A [posing as a terrorist], as well as their ongoing search for spiritual meaning in their lives; the creation of an elaborate ruse that led the defendants to fear for their lives if they failed to satisfy this sophisticated international terrorist organization….
 In addition, the police involvement … was overwhelming compared to the insignificant part played by the defendants, and … showed that it was the police who were the leaders of this plot. Not only did the police take over the leadership, but they committed illegal acts to enable the defendants to play their small part in the plan. Throughout the undercover operation Mr. Nuttall repeatedly demonstrated that he lacked the focus required to make the arrangements that were necessary…. The investigative team was exasperated with Mr. Nuttall’s failure to follow through with any of the jihadist objectives he talked about. Instead of viewing the project as a success because they had discovered the targets were incapable of taking any concrete steps…, the police decided they had to aggressively engineer a plan for Mr. Nuttall and Ms. Korody and make them think it was their own.
 This is truly a case where the RCMP manufactured the crime; this is not a situation where the police simply “instigated, originated or brought about” the offence. …Mr. Nuttall never brought up pressure cookers after the June 6 scenario. The police seized on this idea and it became their plan.
 The RCMP had to provide the explosive substance; they had to take the defendants shopping for the bomb parts [!!!] and give them continuous instructions and direction until they finally bought most of what they needed; they had to construct the devices and left only the gluing of nails to the pots and the construction of timers, which were never part of the RCMP’s plan, to the defendants. …Each day the police had to “babysit” the defendants to ensure they had their methadone. The police chose the date for the explosion…. The police essentially chose where the devices would be planted.
 I therefore enter a stay of proceedings on Counts 1 and 4 of the Indictment and an unconditional stay on Count 2 based on a finding of entrapment. [Emphasis added]
Who Inspired John Nuttall?
I end with a quote from Bruce’s paragraph #626 that may amuse readers of my recent article about the “Al-Qaeda” magazine Inspire:
“Mr. Nuttall had earlier referred to the Boston bombing and the use of pressure cookers as explosive devices during a shopping trip for a suit on April 26, 2013, but this idea took on significance for the police after June 6, 2013. During this scenario Mr. Nuttall provided Officer A with a hand drawn diagram of a rocket and an explosive device constructed with a pressure cooker container, both of which he had found on the Internet in Al Qaeda’s Inspire Magazine.”
— Mary W Maxwell is a Bostonian by birth and an Australian by marriage, and is determined to stay on the Tsarnaev case until Bostonians start acing like Bostonians.
Tsarnaev’s Appeal Possibilities, Part 2: The State of Massachusetts Kicks In
by Mary W Maxwell, LLB
In 1776, our nation was founded, conceptually, by way of a Declaration of Independence from England. Eleven years later, the nation was structurally set up at the Philadelphia Convention by means of a constitution. Fifty-five delegates from the 13 states met in that year, 1787, and handed over to a new federal government a list of powers that could be exercised by three branches – a legislature, an executive, and a Supreme Court.
Well, that was all very exciting, but those 13 states retained sovereign power for themselves in every area except the 18 areas in which they ceded power to the feds (such as the issuing of currency). All of the states, today numbering 50, have their own legislature, an executive, a supreme court, and a state constitution.
The media treats the federal government as more real than the states — “the White House” being sexier than the governor’s mansion, and US Supreme Court decisions being more titillating than what state judges have to say. But this is an illusion. The states are more real for people’s lives. Watch and I’ll show you what the state of Massachusetts could do.
The state of Massachusetts could knock the world for a loop – and it should do so – by elbowing the feds out of the Marathon trial of Dzhokhar (Jahar) Tsarnaev, a 25-year-old US citizen who was wrongfully convicted of the Marathon bombing and is presently “doing time” in a – pardon the phrase – federal “correctional facility” in Colorado.
I am producing this series of GumshoeNews articles, about what can happen at Jahar’s appeal, in order to make a point. The point has little to do with Jahar Tsarnaev or the Marathon bombing and everything to do with your attitude towards your government. I wish to show that all folks do not have to fall down and worship the federal government. There are ways for various individuals and cultural institutions – and states — to stick their nose into the matter.
Part 1 showed that the appellate judges at the Moakley Courthouse could take the unusual step of ordering a stay in the proceedings, based on the abuse of legal process that characterized the prosecution of Jahar. (Basically, the DoJ knew that Jahar had nothing to do with it.) Justice Catherine Bruce of Canada was wise enough to do it in the Korody case. Some commentators called her “brave” for so doing. In the US I would find it disgusting to hear anyone call a judge “brave” for applying the principles of our law.
Note: Any two of the three appellate judges can, of course, alter Jahar’s fate in a more traditional manner. They can remand the case to the federal district court for a re-trial based on some point of law. Less often, they rule against a conviction. An appeals judge at the Moakley, Justice Mark Wolf, threw out the conviction of Vincent Ferreira a few years ago, on the grounds that the prosecution had withheld exculpatory evidence — specifically evidence showing that someone else had confessed to the crime. Mr Ferreira, also known as “Vinnie the animal” went home that very day.
What Can Massachusetts Do?
This series is cataloguing oddball ways to get around the Powers That Be. Luckily, there’s oodles of spare room within the law itself to do creative things.
In Part 1, all eyes were on the Moakley. (“Moakley” is the name of the courthouse of the First Circuit of the United States Court.) But the action does not have to take place there. The state of Massachusetts could, and should, wrest power away from the feds. All eyes should be on Beacon Hill.
Let me name five ways the state could do the needful without starting a revolution.
First, it could see to it that the state coroner, Mindy Hull, MD does her job properly under state law by investigating the much-lied-about death of Jahar’s brother Tamerlan Tsarnaev. At that point, I’m sure everyone would find out that the FBI killed Tamerlan while it had him in custody in the wee hours of April 19, 2013. See my Open Letter to Mindy Hull about this. The famous shootout, IED, and brother-driving-over-brother scene is false.
Second, Massachusetts could bring a new charge against the prisoner, Jahar, which would require that he be “extradited” from Colorado to Beantown to stand a new trial. I wouldn’t mind if the state wholly made up a charge (after all they do this at the drop of a hat, you know). They could accuse Jahar of anything, for the purpose of habeasing his corpus. How about loitering? In my day there were signs in Park Street T station “Spitting is against the law” but I don’t know if it still is. Anyway, I am on record recommending that the state try Jahar for treason. A man who bombs a public place – and I don’t think it was Jahar – commits treason for sure. He “levies war against the state.” Massachusetts Attorney General Maura Healey can start the prosecution now.
Third, the state of Massachusetts could sue, in civil court, for economic harm done by the FBI’s fake manhunt in the days after the bombing. This led, unbelievably, to a shut-down of businesses and, stunningly, of public transport. A citizen, too, can sue for money that he or she lost that week, but in this article we are talking about initiatives by the state. Remember the pre-1787 heyday of the sovereign state? At Philadelphia, Massachusetts and the others gave up only 18 particular powers. The states reserved all their other powers.
Fourth, relatedly, the state can prosecute all the wrong-doers of April 15, 2013, by which I mean the FBI. (See my dossier on the FBI.) Surely that agency arranged and carried out the whole episode at the Finish Line and at Watertown. It’s well known that shadowy government agencies do this – see the research by Elias Davidsson of Germany on various events in Europe. Since October 23, 2015 I have been urging Governor Baker to arrest the FBI for murder. I spelled out for the Governor, in a Youtube video, the specific provisions in the Massachusetts state constitution by which he is authorized, nay mandated, to do this.
Have you seen the video? I was standing in front of the Sydney Opera House which is one of my hang-outs. I also noted that Baker can call out the state militia, inaccurately named the National Guard, to protect his people from invasion. However, as I said above, this list is a list of things Massachusetts can do without a revolution, and admittedly it would smack of revolution for the Guv to call out the Guards against the feds. Perfectly legal, mind you, but a bit too drastic at the moment.
Fifth, Massachusetts human rights organizations (are there any genuine ones?) can converge on Beacon Hill and demand of either the executive or the legislature that they procure a fundamental protection for a Massachusetts citizen who happens to be stuck in Colorado, namely, Jahar Tsarnaev. They can demand that he be accorded his right to free speech. The human rights group would be asking the Commonwealth of Massachusetts to come down heavily on the feds for allowing the US Attorney General to impose Special Administrative Measures – SAMs –on “terrorists.”
The effect of SAMs in Jahar’s case is that is the prisoner cannot convey his knowledge about the Marathon day to anyone. This is absolutely anathema to due process. Have you ever heard of such a silencing in America? I bet not. The anti-terrorist legislation began in 1996 – all part of the game of getting us ready for 9-11. It does seem reasonable that restrictions be placed on a person convicted of violence against the population if there’s reason to believe he/she would organize more of same from behind bars. Pretty unlikely but possible. However, SAMs cannot be allowed to thwart due process.
The said human rights organizations can file a suit in local court to get a restraining order against the imposition of those unconstitutional “special administrative measures” for which there was apparently no specific enactment by Congress. That’s the sort of thing human rights groups do every day. Why not today?
Do I hear you say the state can’t invoke law against Washington, DC? Boy, do you need to have a peek at the Parchment.
The Floor is now open for anyone who’d care to submit an article about additional appeal possibilities in the Tsarnaev case (or just make a comment below).
I’m reluctant to delve further into the Marathon case myself (beyond my book MarathonBombing, and our amicus curiae brief), as it infuriates me that so many people who should be active about this are sitting on the sidelines. Where do they think this-all will end up? It will be one disaster after another if we don’t get the ol’ grey matter into gear.
Here is the best Tee-shirt message I have seen since entering the US (at Hawaii) on July 17, 2018:
Got an app for that?
— Mary W Maxwell (the W is for Whalen, St Gregory’s High School, Dorchester, Class of 1964) is absolutely shocked at Massachusetts folks’ lack of lust for a good fight. Bring back the Minutemen! Bring back Abigail Adams! Bring back Thoreau! Bring back Sister Corita painting the gas tanks. Bring back Ted Williams. Bring back Max Stackhouse and Public Theology. Bring back Beverly Sils in the Siege of Corinth. Come on, Everybody, we’re under siege right now. Do something!
Penzance Heliport: Could the noise report justify another Judicial Review?
https://www.google.co.uk/search?q=county+hall+cornwall+images&rlz=1C1ARAB_enGB463GB464&tbm=isch&tbo=u&source=univ&sa=X&ved=2ahUKEwj7xcSHzcncAhWoCsAKHQAVCTQQ7Al6BAgCEA0&biw=1280&bih=891#imgrc=HGi6feHHFhZQxM: Objectors to the proposed Penzance Heliport have argued the 'WYG' noise report commissioned by the applicants is partisan and misleading. If Cornwall Council rely on it for their decision making, it risks another Judicial Review! A decision is due to be made at the next Strategic Planning Committee on the 2nd August, 2018 when Planning Officials are recommending approval. This follows a briefing by the applicant (Tresco Estates) and 'WYG' to local Councillors at which objectors were allowed to observe but not speak, and a packed public meeting, both hastily called on the 23rd July 2018 and not previously programmed. The fact that Councillors at the briefing were only presented with the applicant's arguments in favour of the scheme, is further evidence of a biased approach to the issue by Cornwall Council, prepared to ditch all national and local guidelines in order to approve it. The noise report completed in early 2018 but based on noise reading taken in the summer of 2016 from just fifteen sites, with later amendments and additions, claims that the noise from the helicopter operations will have "no significant impact" on environmental noise levels or nuisance to those affected by them. It generally derides any suggestion that the noise generated could have any physical or psychological consequences for the people who live in the vicinity or under its flight path, despite academic studies to the contrary. Nor has anyone quantified the adverse effect on property valuations that are linked to a noisy environment. On the presumption that "whoever pays the piper calls the tune" the 'WYG' is, and always has been, partial, as its own report admits by stating, "this report is submitted in support of the application". Assurances that it is carried out by scientists with high professional standards, is insufficient to provide assurance of impartiality, without independent oversight and verification. Cornwall Council has not commissioned any independent study, despite authoritative reports pointing to the weaknesses and unreliability of the 'WYG' conclusions and methodology. This could render it vulnerable to a further Judicial Review were it pursued by objectors. It would be naive of Cornwall Council, in its eagerness to approve the scheme, to accept the 'WYG' submission without corroborative evidence, that effectively a deafeningly loud machine, will not be heard or cause disturbance, in quiet semi-rural and residential locations. It is one thing to approve a scheme in the full knowledge of true impact, quite another to base it upon false or misleading information because the figures and calculations have been 'tweeked' or manipulated in one form or another. This has been achieved in several subtle ways that may not be immediately noticeable to the untrained eye. WYG's whole argument for an absence of impact, is based on the difference between existing noise background and the additional noise created by helicopter operations. Clearly it would not be in the applicant's interests to show low background noise readings, and conversely advantageous to show them as higher. This is what they have achieved. Selective choice of measuring sites Fifteen sites were chosen for long-term (LT) and short-term (ST) readings. These appear not to have chosen randomly but predominantly for their noisy locations near main or local roads. LT1 Adj. to Gulval Nursery (Adjoining Long Lane) LT2 Adj. to Poniou Farm (Adjoining very noisy by-pass) LT3 Adj. to 59 Godolphin Road (150 yds S. of by-pass) LT4 Rear Sainsbury's Supermarket (between 2 arterial routes) LT5 East of Marazion Marsh (Adj. railway line) LT6 Newtown Lane, Marazion. (Adj. busy feeder road) The ST sites were as follows: ST1 Jct Ouay Street/The Quay (Major arterial road) ST2 Jct PenareRd/Castle Rd (busy juction on hill) ST3 Jct Posses Lane/Jelbert Way (very busy juction) ST4 Gulval Churchtown adj. to road on hill ST5 Tolver (relatively quiet location with unexplained peaks) ST 6 Adj. Poniou Farm (replicating LT2 and affected by Long Rock bypass noise) ST7 Chy an Mor (adj. to arterial road and roundabout and close to railway) ST8 Adj. to 48 Darlington Rd. (Again close to Long Rock bypass) ST9 Marazion Marsh (adj. to mainline railway) Despite having drawn this to the attention of the noise experts, no effort has been made to adjust this basic weakness and unrepresentative sampling on which all other projections and calculations were based. As a result WYG conclude that the calculated background noise level is over 55 dBA when the more realistic figure for sites away from busy roads would probably be ten or more decibels less - e.g. <45 dBA . Obviously this is supportive of the hugely distorted picture that the helicopter is not much louder than background. Selective use of noise measuring units The next method employed to give the impression of marginal impact is the choice of noise measuring unit, namely the 'Leq' rather than units such as the L90 which is the standard unit in assessing industrial noise BS4142. The definition of these units is given in the Appendix. The impact of the measuring unit is significant on what is considered to be the 'background' noise measurement. Predictably WYG choose to use the unit most favourable to their argument that the additional noise will not be significant. For example at the Poniou sampling point (LT2) close to the very noisy concrete Long Rock Bypass, the difference tends to be marginal but still significant with L90 figures 2.9 - 7.8dB lower than the Leq. At other sites the difference is even greater. For example at Tolver (ST5) the L90 is lower than the Leq by the far more significant range of 2.3 -18.9 dB with some very dubious peak measurements for a very quiet location. Not once in 258 readings, was this general rule reversed. It can immediately seen how the choice of Leq over L90 has had a beneficial consequence for playing up the background noise environment and playing down the additional noise from the helicopter. This is highly significant in asserting incorrectly that at its worst, the helicopter will only contribute 8.5dBA to background levels. Selective manipulation of the source helicopter noise Leqs are also used in the prediction of the helicopter noise. As we have noted this is an average figure over a specified time period. It is therefore much lower than the actual peak noise generated. This obviously has huge consequence for any conclusions drawn. Put another way, any hearer does not hear an average noise level but an actual one as the helicopter flies over, lands or takes off. The souce noise is in the region of 100 dBA which is literally 'deafening'. The noise observed is dependent on many factors but principally distance where it conforms to the physical inverse square rule, i.e. halves as the distance doubles. The nuisance value of the noise however is largely dependent on the difference the new noise appears above the background or ambient level. Anything over 10dBA is regarded as substantiating nuisance. I am quite confident that for the majority of properties in the vicinity of the heliport or immediately under its flight path, this level will be exceeded. If by using the Leq unit the source noise is played down and the background noise is played up, it is easy to see how the false conclusion can be reached that the noise will not be intrusive. Noise loading not included in calculations It is generally agreed because of its impulsive nature, helicopter noise is intrinsically more annoying. For this reason all academic and technical research recommends that in any theoretical calculation for nuisance, the actual noise should be loaded. This figure is variously 6 to 15dBA. As far as I am aware the WYG report made no attempt to follow this recommendation so again underplays the likely impact.
avoid noise from giving rise to significant adverse impacts4 on health and quality of life as a result of new development
mitigate and reduce to a minimum other adverse impacts on health and quality of life arising from noise from new development, including through the use of conditions
recognise that development will often create some noise and existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established5
identify and protect areas of tranquillity which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason
124. Planning policies should sustain compliance with and contribute towards EU limit values or national objectives for pollutants, taking into account the presence of Air Quality Management Areas and the cumulative impacts on air quality from individual sites in local areas. Planning decisions should ensure that any new development in Air Quality Management Areas is consistent with the local air quality action plan.
Local planning authorities’ plan-making and decision taking should take account of the acoustic environment and in doing so consider:
whether or not a significant adverse effect is occurring or likely to occur;
whether or not an adverse effect is occurring or likely to occur; and
whether or not a good standard of amenity can be achieved.
In line with the Explanatory note of the noise policy statement for England, this would include identifying whether the overall effect of the noise exposure (including the impact during the construction phase wherever applicable) is, or would be, above or below the significant observed adverse effect level and the lowest observed adverse effect level for the given situation. As noise is a complex technical issue, it may be appropriate to seek experienced specialist assistance when applying this policy.
A Noise need not be considered as a determining factor in granting planning permission, although the noise level at the high end of the category should not be regarded as a desirable level.
B Noise should be taken into account when determining planning applications and, where appropriate, conditions imposed to ensure an adequate level of protection against noise.
C Planning permission should not normally be granted. Where it is considered that permission should be given, for example because there are no alternative quieter sites available, conditions should be imposed to ensure a commensurate level of protection against noise.
D Planning permission should normally be refused.
I would contend that if carried out properly, the noise investigation would show the development should not be permitted.
What value peace? A recent Times article states authoritatively that property situated in a National Park benefits from a premium of 50 - 100% simply because it provides assurance of peace and restricted development. Research has indicated that environmental noise does have a negative impact on property valuation. It depends not only on the noise intensity to which dwellings are exposed but also on the nature of the noise source. The greater and more frequent the noise the greater the adverse consequences. See: https://www.sciencedirect.com/science/article/pii/S038611121400020X Conclusion For all these reasons the 'WYG' report is seriously deficient.
It enhances background level by careful choice of monitoring sites and by ignoring the background L90 figures.
It down-plays the helicopter noise by using only Leq units.
It fails to load the the predicted noise output in accordance with research recommendations.
At the very least it should have supplemented them with actual or linear peak figures set against L90 background noise measured away from other sources of traffic noise for comparative purposes and for a much more accurate reflection of likely impact.
The resultant projections are therefore misleading and should not be relied upon to ensure compliance with National Planning Policy Framework, statutory guidelines.
"Equivalent continuous sound level describes sound levels that vary over time, resulting in a single decibel value which takes into account the total sound energy over the period of time of interest. Sound levels often fluctuate over a wide range with time. For example in the middle of the night the level might go down as low as 30dB(A) with occasional passing vehicles of 70dB(A) or more.
The meter faithfully follows all the fluctuations, stores them in it's memory and at the end of the measurement calculates an 'average energy' or Leq value."
"L90 is taken to be the ambient or background noise level as used, for example, in BS 4142 ‘Rating Industrial Noise Affecting Mixed Residential and Industrial Areas’."
Adverse effect of noise on property valuation summarised here:
M. Getzner, D. ZakHealth Impacts of Noise Pollution Around Airports: Economic Valuation and Transferability. Environmental Health - Emerging Issues and Practice
Prof. Jacques Oosthuizen (Ed.), 978-953-307-854-0 (2012)
PM Netanyahu Meets with Members of Israel Flying Aid and Council of Youth Movements in Israel Representatives Who Have Joined in the Effort to Assist Syrian Refugees
Photo by GPO
Prime Minister Benjamin Netanyahu, today met with members of Israeli Flying Aid and with Council of Youth Movements in Israel representatives who have joined in the effort to assist Syrian refugees.
IFA founder and CEO Gal Lousky updated Prime Minister Netanyahu on the organization, which aids populations in conflict zones in countries that do not have diplomatic relations with Israel and in countries that bar the introduction life-saving assistance, and told him that IFA was the first non-profit association to assist Syrian refugees following the start of events in April 2011. Lousky added that since then IFA has delivered to them thousands of tons dry food, medicines and sanitary products.
CYMI Secretary General Naftali Deri, said that last December, IFA appealed to Israel's youth movements, which responded by joining in the extraordinary effort in which approximately 70 tons of coats, sleeping bags and blankets were collected in two weeks for the refugees. He added that the second part of the operation – focusing on the collection of approximately 450 tons of dry food – is currently getting underway.
Prime Minister Netanyahu said, "There is a line that separates light from darkness and this line is found – in the clearest possible manner – on the Golan Heights. One hundred meters from the border is a field hospital with IDF doctors and nurses in which Jews and non-Jews care for those from the Syrian side who have been wounded and injured. Small children, some of them amputees, who have been injured come with their parents, some of whom have also been injured, and receive treatment in Israel. They all say the same thing, 'We do not understand. We were always told that you are devils and here we see that you are human beings. You are helping us. You, our greatest enemies, are giving us the assistance that we would expect from our own people.' This is the true humanity of the State of Israel, of Israeli youth and the citizens of Israel, and this is the truth. Everything else is propaganda. This is the truth in the great struggle between civilization and barbarism."
MK Yoel Hasson, who has been observing the activities of the IFA, said, "I think that there is no message like this in any other country in the world. We have fought with Syria more than once and the message here is that we can rise above this. We are not changing anything. Rather, we are creating a new thing that is almost unprecedented. There is nothing like it. The young people can be proud that they are part of this message. Gal can be very proud of IFA's continuing activity and of its members, and you, Mr. Prime Minister can go home satisfied that you have such a splendid people to lead. Thank you for the spirit, the substance and the hope."
Mike Robinson and Patrick Henningsen with today's news update from the UK Column.
START – Syria: white helmets being evacuated as heroes…?
White helmets only operate in terrorist-held areas...
UN managed the evacuation pending international resettlement
Peter Ford: white helmets are not ‘volunteers’ - a misleading term
They are paid by western governments…no verification of lives saved
Might the British government have been afraid of the group being caught:
Interrogation might reveal truth about ‘chemical weapon incidents’
Four lies from Penny Mordaunt…
As we all know, the first casualty of war is truth. This applies to the Middle East, as with everywhere else. Geopolitical forces are at work there probably like nowhere else and the stories that emege are coloured by the respective positions.
There can be no doubt that since at least 2012 there has been a concerted effort to destabilize Syria and displace Assad in concert with Israel, so it comes as bit rich for Israel now to be playing the humanitarian card in Syria.
Both Shatilla and the abortive '82 Lebanon invasion proved there wasn't an once of humanitarianism in the Israeli position as does the recent shooting in cold blood of dozens of Gaza civilians.
It has been well known for some years that Israel has actively supported the Al Nusra Front (effectively anti-Assad terrorists) in the border area including treating injured members in Israeli hospitals.
This could and would not have happened if they were not in league with them.
The whole Western operation through pricipally Jordan and Turkey effectively supported the ISIS radicals although of course this has never been admitted. In fact the very opposite story has been propagated which must be one of the most agregious lies in history.
Now Netanyahu is singing the praises of the IFA as a shining humanitarian light. That's enough for me to be highly suspicious of it and probably just another ploy to distract from a major operation to extract 800 westen/israel backed fighters disguised as 'White Helmets'.
Can you see for one moment Israel facilitating this unless the people so protected, were not previously agents or assets of destabling project, only frustrated by Russian action and involvement?
Despite grave risks, Israeli Gal Lusky has been going undercover into Syria to aid victims of the civil war. Now, she has revealed her identity. ISRAEL21c goes up to the border with Syria to investigate.
Gal Lusky, founder of Israeli Flying Aid, talks to students at Ein Zivan overlooking the Syria border. Photo by Nicky Blackburn
We’re standing on a small Israeli hilltop on the Golan Heights looking into Syria. The hill slopes down to Israel’s well-fortified border fence. Just a few hundred meters further on there are scores of makeshift white and orange tents – a new tent village that has suddenly appeared in the last few weeks as tens of thousands of Syrian civilians flee their homes before Bashar Assad’s advancing armies.
It’s hot, too hot, that scorching heavy heat of a Middle Eastern July. Up on our hillside we pass bottles of water constantly, but the people below don’t have the same luxury. Drinking water is scarce, as are most other necessities. In the last week, 15 children died of scorpion bites here, because the floors of the tents are open to the ground.
It’s one thing to read about the Syrian refugees online, or to hear about them in the news; it’s quite another to see them for yourself.
Dozens of children are running through the camp, shrouded women following behind, picking their way carefully through the stones. On a road winding through the tents, motorbikes cruise by. This is just one small camp. Larger ones dot the Israeli and Jordanian borders.
In the distance, a constant reminder of what these people are running from, smoke from an artillery shell rises into the air. The sound of shelling is frequent, and it’s growing closer – a disturbing soundtrack of war interrupting the normal tranquility of these border hills.
We’re here to interview Gal Lusky, the founder of Israeli Flying Aid. She’s a petite woman with dark hair, whose work I have admired and followed for years. She goes undercover into conflict zones, even into enemy countries, to bring victims vital aid. Often hers is the only NGO to come into these areas.
Lusky is the bravest woman I have ever met. Her work is dangerous. Really dangerous. The stuff of thrillers. Both she and some of her volunteers have been injured on missions.
For seven and a half years she has been finding her way into Syria, in the midst of a bloody and brutal civil war, to bring in aid, knowing that if she is discovered, as an Israeli Jew, she would most likely be executed immediately.
Despite these dangers, in February 2016, Gal trusted ISRAEL21cto tell her story. Using a fake name to hide her identity we were one of the first media outlets to describe her astonishing work in Syria.
Her decision to speak to us then, came not long after she finally came clean that she was Israeli to two of the Syrian leaders she worked with. Their initial reaction was horror and anger. “They said that first they would deal with Assad, and then they would deal with Israel,” Lusky tells us.
When they finally changed their minds a few months later, and decided to work with IFA again, Lusky came on her own to finalize the details, even though it could have been a trap.
She believes that their initial anger has now been replaced by gratitude.
“No one would have been allowed to stand here in Assad’s day,” Lusky points out, as we stand on the hilltop. “We are in sniper’s distance. But these people are grateful for what we’ve done for them. They wouldn’t hurt us.”
Does she have friends in the refugee camp below us?
“Yes,” says Lusky, turning to look at the tents – many of which were provided by the IFA alongside food and medicines, and delivered by the Israel Defense Forces through its wide-ranging program, Operation Good Neighbor. “Sometimes we have dates here, waving opportunities.”
Lusky, who was born on Kibbutz Hokok, decided to devote her life to aid work when her brother was wounded serving in the army in Lebanon in 1992. She quit university and sat by his bedside.
“That year in the hospital made me understand how blessed I was to be born in Israel with its amazing medical infrastructure, and I wanted to bring this to others in the world,” she told ISRAEL21c in a 2015 interview.
She founded IFA in 2005, and has been working in countries like Haiti, Iraq, Pakistan, Darfur, Sri Lanka, Myanmar and Chechnya.
Gal Lusky in Haiti, 2010. Photo courtesy IFA
IFA was one of the first international NGOs to begin working in Syria in the early days of the conflict, when it was still an uprising, rather than an entrenched and bitter war. It is one of only a handful of international NGOs working there.
Until three weeks ago, no one internationally knew that the organization had Israeli roots, but a few days before our meeting, the IDF, which also provides significant aid to the Syrians, decided to announce that they were working together. Finally, Lusky stepped out of the shadows.
She and her team of 200 volunteers, most of whom speak Arabic fluently, bring in tents, food, medical supplies, hygienic products, baby formula, clothes and even chemical suits. The organization has sent millions of dollars’ worth of medical equipment and supplies to support 14 hospitals and clinics in Syria, and has equipped and trained Syrians in search-and-rescue and firefighting.
In one of IFA’s first missions in Syria, the supplies were brought across the mountains on donkeys. Lusky sends me a video of dozens of donkeys trekking through the snow. There’s the sound of gunfire and shouting. It looks and sounds like a Hollywood spy movie.
Funding for the missions comes through donations. Lusky tells us about a 13-year-old American boy who donated the gift money from his bar mitzvah. “It provided aid for three months through the winter.”
Relief is coordinated with the locals to make sure they receive the things they really need. Only necessities are sent in. At the new refugee camps, the IDF brings the aid in at night through gates in the fence. “I wouldn’t want to put the IDF soldiers in danger if it’s not an absolute necessity,” says Lusky.
“What do the people do here all day?” I ask, staring out at the endless dry, barren landscape ahead of us. Lusky shrugs. “Survive,” she says.
“Are they safe here?” I ask.
The truth is, nobody really knows. This is the demilitarized zone, and shelling here would risk an all-out confrontation with Israel. This is why these people are here. It’s the only place left in Syria where they feel some measure of safety. But shells have gone astray in the past, and Assad’s army is drawing closer all the time, hitting rebel holdouts in the nearby Daraa region.
Just a week ago, around 200 Syrian refugees approached the Israeli border waving white flags after a Russian airstrike on a nearby school used as a shelter killed 10 civilians.
On Saturday night, the IDF rescued 800 Syrian search and rescue volunteers and their families from the border. The lives of the White Helmets, who saved thousands of lives during the conflict and who were trained in search and rescue by Lusky’s IFA, were in serious danger from Assad’s forces.
“How long will the refugees still on the border stay?”
It’s another question with no answer. “I wouldn’t be surprised if in years to come this became a proper village,” says Maya Zuckerman, IFA’s chief operating officer, looking out at the camp behind her.
We were supposed to go on to another location, but the army has closed the gate. They are worried about possible spillover in the fighting, and don’t want to risk anyone’s life.
It’s a legitimate concern. As we prepare to leave, we hear a large explosion. A few seconds later a huge pillar of smoke and dust rises on the horizon. A news flash later reveals that Israel has just bombed a Syrian artillery post after a shell was fired into the demilitarized zone.
It’s a two-and-a-half-hour drive back to our nice air-conditioned homes in the center of Israel, and on the way we talk about what we’ve seen and heard. My producer is upset about the children. We are all upset about the children, those tiny figures running across the stony, barren valley.
“Couldn’t they send in some coloring books and pencils and games for them?” he asks. “Another few boxes, alongside the other aid.”
But when you don’t have essentials like anti-venom for scorpion bites and children are dying because of it, paper and pencil are luxuries.
About a week later, we hear that the IDF does indeed deliver tons of donated goods from Israel including clothes, food, blankets, shoes, sunshades, games and messages of blessing and support from families all over the Golan Heights and the rest of Israel.
It’s a small comfort in a terrible situation, but one can’t help but wonder – as Lusky herself has been wondering for years – where is the rest of the world in all of this?