Beating a Dead Tortured Horse

I know, I'm probably beating a dead horse – I love that metaphor, by the way. It so perfectly captures the idea of acting futilely. At the very least, I'm beating a thoroughly tortured hourse. Nonetheless, it is important that we face how utterly corrupted our elites have become regarding the rule of law – and the mental gymnastics they must perform to ignore obvious unpunished criminality.

Again, Andrew Sullivan writes from publicly available sources. His conclusions are unassailable. Many of our military and past political leaders are war criminals - and we (as a citzenry) refuse to hold them accountable.

Sullivan's money quote:

“The US in 1948 prosecuted German soldiers for using hypothermia techniques, and sentenced its practitioners to death. One wonders: why, if the Geneva Conventions mean anything, is Stanley McChrystal, who bears legal and command authority for everything committed under his command, not in jail? And why are not Bush and Cheney on trial at the Hague? And why does Obama hold the Geneva Conventions in such contempt that he too insists on violating their clear and pressing legal obligation to investigate and prosecute all such war criminals, whoever they are?

[Obama] took an oath to enforce the laws of the land. He is violating that oath, thereby subverting both the Constitution and the rule of law.”

All of this is exactly right. If we refuse to face this, we have no honor - which is probably the least of our problems.

Joe H.

The Rule of Law

It is very hard to read this article describing the criminal wrongdoing by the executives of our six major investment banks
and wonder - in amazement and horror - why no one has been indicted and subsequently imprisoned? Try it and see for yourself.

I don't mention this to make you angry - although it should. I mention this because the de facto immunity that Obama's Justice Department extended to Bush Administration officials - for felonious torture and illegal spying - has been extended to greedy banking executives whose crimes nearly destroyed the world's economy.

In short, the political and financial elites of our country are exempting themselves from legal accountability. And they're immunizing themselves with the apparent blessing of the rest of the citzenry.

There are things I like about President Obama - chiefly that he's a far more responsible and thoughtful leader than almost all of his Republican counterparts. There are other things I don't like about him, which I've mentioned at length in previous posts. But Barack Obama is the chief facilitator for the creation of the impunity state. His administration is violating the law by refusing to investigate and prosecute Bush administration officials for their publicly admitted authorization of torture. Whatever good he may accomplish as President will be VASTLY overshadowed by the inevitable effects of immunizing political and financial elites from criminal responsibility.

Happy New Year.

Joe H.

If One Thinks About It

From Glenn Greenwald:

"If one thinks about it, there's something quite surreal about sitting there listening to a CNN anchor and her fellow CNN employee angrily proclaim that Julian Assange [creator of Wikileaks] is a "terrorist" and a "criminal" when the CNN employee doing that is . . . . George W. Bush's Homeland Security and Terrorism adviser. Fran Townsend was a high-level national security official for a President who destroyed another nation with an illegal, lie-fueled military attack that killed well over 100,000 innocent people, created a worldwide torture regime, illegally spied on his own citizens without warrants, disappeared people to CIA "black sites," and erected a due-process-free gulag where scores of knowingly innocent people were put in cages for years. Julian Assange never did any of those things, or anything like them. But it's Assange who is the "terrorist" and the "criminal.""

There's our corporate media culture in a nutshell.

Joe H.

Enlightenment

"Enlightenment is man's emergence from his self-imposed immaturity. Immaturity is the inability to use one's understanding without guidance from another. This immaturity is self-imposed when its cause lies not in lack of understanding, but in lack of resolve and courage to use it without guidance from another. Sapere Aude! [dare to know] "Have courage to use your own understanding!"--that is the motto of enlightenment."

I. Kant
Konigsberg in Prussia, 30 September 1784

Those of you brave enough to tackle the entire essay (it is short) click here.


Joe H.

40% Of Us Are Young Earth Creationsts

Apparently, 120,000,000 of our fellow citizens still believe that our universe, including human beings in their present form, was created by God ex nihlo less than 10,000 years ago. This fact exemplifies the extreme danger of allowing faith to supplant reason as a method for selecting beliefs. If 40% of a modern educated democracy can maintain a belief so manifestly in conflict with the readily available evidence, what belief can’t be maintained by such people?

Faith often supplements judgment to good ends. But American Christians have been trained to allow faith to entirely supplant their judgment. This results in a blind, militant, destructive, and irredeemable "faith" with all of its attendant evils.

Hebrews 11:6 says “without faith, it is impossible to please God, for he who comes to God must believe that he is and that he is a rewarder of those who diligently seek him.” Of course, this statement applies to any relationship we establish. If someone wants a relationship with you, you can’t please them without approaching them with the expectation that your ensuing relationship will itself be a rewarding experience for you. If they suspect you’re merely tolerating them, or humoring them, as a means to some other end, they won’t be pleased.

Fair enough. God wants us to approach him expecting that our relationship with him will be rewarding for us. He will not be pleased if we approach him as a means to some other end. I have no problem with “faith” so defined. It makes perfect sense

But Jesus also said, “Blessed are those who have not seen, and yet believed.” Here Jesus appears to proclaim that believing without evidence is a “blessed” state of affairs. However, those who believed in Jesus’ resurrection prior to seeing him alive had other reasons to believe. They had (allegedly) seen him do miraculous things, including raising the dead, during his lifetime. Jesus also told them that he would rise from the dead after three days. In the context of this story, Jesus appears to be saying, “Blessed are those of you who didn’t lose confidence in me despite your despair.”

Again, fair enough. We say things like that all the time. When we come through on a promise, and subsequently discover that there were doubters among the promisees, we naturally praise those who believed in us during the hard times. Jesus’ statement, in this context, makes perfect sense.

But American Christians have taken faith to an entirely different level. Our mantra appears to be, “blessed are those who believe whatever they find in the Bible, no matter what the evidence indicates, no matter how counter-intuitive the belief seems, and no matter what sound argument seems to prove.”

I honestly can’t see how this pleases God. Why would God be pleased with intellectual zombies? Why would he recommend an epistemological strategy guaranteed to deliver his people to delusion and radicalism?

I can see how this type of "faith" lines the pockets of the unscrupulous and allows others to amass power. But please God? No way!

Joe H.

Necessary and Proper

The hysteria regarding the “individual mandate” portion of the Health Care Reform Act is not surprising. The right becomes hysterical prior to every liberal advance. Don’t believe me, click here.

What interested me today is the following argument articulated by the Attorney General of the Commonwealth of Virginia – If Congress has the power to force individuals to purchase a product from a private vendor, then it can force individuals to do anything it wants and freedom is thereby destroyed.

Let me put this argument, in all its various versions, to bed. Under the Commerce Clause, Congress has the authority to regulate activities “substantially affecting interstate commerce.” The first thing to note about this phrase is that each of its elements limits Congress’ regulatory power. “Substantially,” “affect,” “interstate,” “commerce.” An activity has to fit each of these four criteria for Congress to have Commerce Clause jurisdiction over it.

(“Jurisdiction,” by the way, comes from two latin words – “Juris” which means law, and “Dicta” which means speech. Taken literally, “jurisdiction” is the power to say what the law is).

The “Necessary and Proper” clause expands Congress’ commerce clause jurisdiction to any activity, commercial and noncommercial, interstate and intrastate, even to activity that has no affect on interstate commerce – but only if the activity being regulated is part of a broader regulatory scheme and is necessary to effectuate legitimate commerce clause ends.

In other words, Congress has no power to regulate activities unless these activities substantially affect interstate commerce. The Supreme Court, for example, has struck down congressionally enacted laws banning firearms within 500 feet of schools, and granting federal civil remedies to victims of domestic violence, because these laws were too attenuated from, and had too little affect upon, interstate commerce.

However, if an activity (such as insurance companies denying people coverage, or pricing individuals out of the market, or capping lifetime benefits) substantially affects interstate commerce – and no one denies that these practices substantially affect interstate commerce – the “Necessary and Proper” clause allows Congress to regulate any activity what so ever – including forcing individuals to purchase health insurance - but only if that regulation is necessary to effectuate the desired commercial reforms (which, as I explained yesterday, the individual mandate clearly is).

That’s quite a sentence – but I’m going with it.

Anyway, all this talk about the government forcing you to purchase and eat vegetables or to buy a car from Chevrolet is nonsense. The government mandating our purchase of a private product is novel – but, in this case, it is well within established Constitutional jurisprudence limiting congressional power.

Your freedoms are safe. Enjoy your weekend.

Joe H.

Individual Mandate Unconstitutioinal? I don't think so.

Yesterday, a Federal District Court ruled that the individual mandate provision of the Affordable Health Care Act was unconstitutional because it exceeded Congress’ authority to regulate interstate commerce. The Court held that a decision not to purchase health insurance was not an “activity” and, therefore, not an “economic activity” subject to Congressional authority under the Commerce Clause.

Forget the fact that everyone eventually requires health care, and those who access our health care system without insurance shift the cost of their care onto the rest of us. Although this seems like "economic activity affecting interstate commerce" to me, what do I know. I say "forget that fact" because yesterday’s decision is flawed in a far more fundamental way. A way that might earn you a “D” on a law school exam were you to have written Judge Hudson's opinion.

A good explanation of the flaw can be found here
– but the bottom line is pretty simple. Congress not only possesses the power to enact laws regulating interstate commerce, it also possesses the authority to “enact laws necessary and proper for the regulation of interstate commerce.” The Supreme Court has repeatedly interpreted this to mean that Congress has the authority to enact laws that are "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."

Regarding health care, the argument is straight forward. Congress determined that it needed to impose regulations on insurance companies requiring them to insure all comers, regardless of pre-existing conditions, at community pricing – meaning that insurance companies cannot price individuals with pre-existing conditions out of the market by charging a premium commensurate with their true risk.

However, this regulatory scheme cannot work without an individual mandate. People could (and many would) simply wait until they needed insurance and purchase it at that time – leaving inadequate resources to pay for the care of those who paid the premiums. This would force insurers to raise premiums, which would strengthen the incentive for people to forego purchasing insurance until they needed it, and so on. This dynamic would quickly destroy the private insurance system.

Recognizing this, Congress also passed the individual mandate as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."

A more appropriate exercise of Congress’ “Necessary and Proper” authority I cannot imagine. How Judge Hudson failed to address this line of cases is beyond me, but I predict he’s going to be taken to task pretty hard.

Below is the text from Gonzales v. Raich, where the Supreme Court explained all of this. (I removed the Court’s citation to other cases for readibility).

“As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." This statement referred to those cases permitting the regulation of intrastate activities "which in a substantial way interfere with or obstruct the exercise of the granted power." As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective."

Although this power "to make . . . regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce, and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power.

Gonzales v. Raich, 545 U.S. 1, 36-37 (2005)

None of Us is as Irresponsible as All of Us - Obama Lacks Spine

I’m back after a respite.

My thoughts on the Obama tax cut deal? Obama has no spine. My second thought? None of us is as stupid as all of us! Or better yet; none of us is as irresponsible as all of us!

Proof? The estate tax is currently set to automatically revert to pre-Bush era levels. There will be a $1,000,000.00 exemption for individuals ($2,000,000.00 for couples), after which an estate’s assets will be taxed at 55%. This will happen if the lame duck Congress does nothing. Republicans currently have no power to bring bills up for a vote. Democrats are in complete control over what bills are brought to the floor.

Additionally, Congress has already passed a bill retaining the Bush era income tax rates for all wage/salary income below $200,000.00 ($250,000.00 for couples). Obama has said repeatedly, and correctly, that extending the Bush tax cuts for income above these levels does nothing to stimulate our economy, and is harmful to our long-term budget outlook. All that has to happen to retain the tax cuts on lower levels of income, without extending the tax cuts to the higher levels of income, is to get the Senate to pass the House bill.

One would think that if Obama really believed what he’s said repeatedly on these matters, he would go to the Republican Senators, point to the House bill, and say, “take it or leave it. But if you leave it, know now that I will veto any legislation passed by the next Congress that cuts taxes on higher levels of income.”

He could also say, “I understand the problem with the estate tax and small businesses, so I’m willing to accept a deal in which estate tax exemptions are raised to $3,500,000.00 for individuals ($7,000.000.00 couples), with a 45% assessment on assets above those levels. That way, only the super-rich will face estate tax liability.” Obama could even do this in concert with Nancy Pelocy, who could promise not to bring up any other bills during the lame duck session. Harry Reid could even get in on the act by promissing not to hold a vote on the House bill until the Senate allows an up or down (no filibuster) vote on the Dream Act and the repeal of DADT. All of this would encourage and please the millions of liberals who constitute the Democratic base.

Such a strategy would also project strength and conviction from a political party famous for its fecklessness.

Frankly, except for spite, I don’t see how Republicans wouldn’t fold. Republicans would be responsible for allowing tax increases on all levels of income, when they could have lowered taxes on all income below $250,000.00 – which exhausts the income earned by 97 percent of U.S. families. They would also be responsible for allowing the estate tax to revert back to Clinton era levels, when they could have gotten a reduction to protect small businesses. And what would Republicans (and their rich supporters) gain by their obstruction? Nothing!

So what does Obama do? Instead of cooperating with Congressional Democrats in executing this squeeze play, Obama goes to the Republicans and cuts a deal extending the Bush tax cuts for all levels of income. The deal further sets the estate tax exemptions at $5,000,000.00 and $10,000.000.00 for individuals and couples respectively, with a new rate of 35% for assets above those levels. Obama then rebuffs Congressional Democrats for pointing out the obvious - that this was a terrible deal – and that what Obama got in return, mainly an extension of unemployment benefits - would almost certainly have happened anyway.

Negotiate with your adversaries instead of cooperating with your friends, and, in the process, disparage your supporters while abandoning your principles. That’s Obama’s strategy, in a nutshell.

Also, think about the difference between a 35% rate on estate assets above $10,000,000.00, verses a 55% rate. This cuts taxes $200,000,000.00 for estates with assets totaling $1,000,000,000.00. The Walmart family alone stands to gain $32,000,000,000.00 in tax relief from this deal.

What kind of country borrows money from China to finance a $32,000,000,000.00 tax break for its wealthiest family?

As I said – Obama lacks spine. And none of us is as irresponsible as all of us.

Joe H.

People vs. The Bankers

This article, Paul Krugman's column about Ireland's taxpayers and citizens footing the bill for its reckless bankers is highly worthwhile. Its very similar to our own American circumstance.

Why more people don't get mad here is beyond me.

Joe H.

Equivalence

This quote is from Alan Simpson, a former Senator from Wyoming and co-chair of President Obama’s debt reduction commission:

"You don't want to listen to the right and the left -- the extremes," he said. "You don't want to listen to Keith Olbermann and Rush Babe [Limbaugh] and Rachel Madow [sic] or whatever that is, and Glenn Beck. They're entertainers. They couldn't govern their way out of a paper sack -- from the right or the left. But they get paid a lot of money from you and advertisers -- thirty, fifty million a year -- to work you over and get you juiced up with emotion, fear, guilt, and racism.”

Anyone who has watched or listened to these shows knows there is no comparing what Limbaugh and Beck do to what Olberman and Madow do. Limbaugh and Beck explicitly and defiantly exploit fear and racism to juice people up. That is their strategy. Their conspiracy rants are premised on fact free hysterical descriptions of their opponents’ allegedly dark motives. Think about it. They call our President, whose actions regarding our investment banks and auto industry saved millions of American jobs, and probably saved modern capitalism, a socialist! Beck called our first mix raced president, a man who was raised by a white mother and grand mother, a racist. Both men have accused Obama of plotting to destroy America from within.

Olberman and Madow offer searing criticism, to be sure. But their criticisms are based on facts. They point to the actual behaviors and utterances of those they criticize – not to their alleged dark motives or conspiratorial purposes. The only similarity between Limbaugh and Beck and Olberman and Madow is that their criticisms tend to be partisan. But even here, the order of magnitude is remarkably different. Lumping these four together under the label “partisan” would be like lumping me and a 600 lb. man together under the label “overweight.” True, but misleading to the point of duplicity.

Alan Simpson is no dunce. He knows the difference between Limbaugh and Beck and Olberman and Madow. His conflation of these figures is intentional. He wants to discredit substantive criticism by conflating fact based critics with radical partisan ideologues. That should tell you something about his proposals right off the bat.

Joe H.

Jury Trials

Today in federal court, a jury acquitted accused terrorist Ahmed Ghailani of 280 counts related to the 1998 bombings of the U.S. embassies in Kenya and Tanzania. The jury convicted him of one count of conspiracy to blow up a government building, which carries a sentence of 20 years to life imprisonment.

Leave aside the fact that this was a show trial – our government planned to imprison Ghailani indefinitely, even if he was acquitted on all counts. The prosecution was hindered when the judge excluded a witness that our government discovered by torturing Ghailani. That ruling sent our growing cadre of authoritarians into a tizzy. No less than George Pataki, former governor of the state of New York and a potential republican presidential candidate, appeared on MSNBC to denounce the decision to tri Ghailani in federal court, rather than before a military tribunal - where the rules of evidence are more “flexible.”

Of course, Governor Pataki was misinformed. The evidentiary rules for military tribunals exclude evidence obtained by coercion or torture, just as the federal rules of evidence do. Far more disturbing was Governor Pataki’s eagerness to introduce evidence obtained by government torture. “Convictions at all costs” appears to be his motto. As long as government officials say you’re a terrorist, due process be damned. And Pataki is not alone. Scads of rightwing authoritarians joined his chorus.

What’s remarkable about this phenomenon is that those who embrace this motto most sincerely consider themselves to be uber-patriots who worship liberty above all else. They fulminate against the threat of “big government” seizing our “liberties” 24 hours a day (on Fox). Yet these same uber-patriots howl that our Justice Department would tri Ghailani in federal court before a judge that excluded evidence that the government obtained by torture.

Imagine that. Self described “patriots” complaining that our government is not allowed to win by torture. “Lovers of liberty” and “defenders against government tyranny,” complaining about the use of a jury. A jury! Doesn’t anyone remember that the accused’s right to a jury trial is the key limitation on executive power – the key constraint against government tyranny?

Look how far we’ve come in 10 short years. Wonder where we’ll be ten more years down the road.

Joe H.

Tax Policy and Spine

Last week, President Obama’s senior advisor David Axelrod signaled that the Obama administration might agree to extend all of President Bush’s 2001 and 2003 tax cuts to ensure that taxes will not go up for the middle class. The tax cuts passed during the Bush era were passed using a procedure called “reconciliation.” That gives them a shelf life of ten years – after which taxes automatically revert to their pre-reconciliation levels. Axelrod’s implicit argument was that Senate Republicans will not allow a vote to extend tax cuts for the middle class unless the bill also extended tax cuts for high levels of income – that is, to income in excess of $250,000.00 in one year. Given that reality, the administration might be forced to give in before the cuts expire on December 31, 2010.

First, let me say that all of the Bush era tax cuts should be allowed to expire. They have always been bad policy. We couldn’t afford them when they were passed, and we sure as hell can’t afford them now. I have other objections. They were skewed heavily toward the rich. Their stimulus value to the economy is lower than almost every type of federal spending. But I won’t rely on these arguments. Any sane person can see that our nation cannot afford additional tax cuts. The “temporary” Bush cuts should be allowed expire, as the law always envisioned. Congress should take no action at all.

That said, if President Obama and the Congressional leaders want to preserve the tax cuts for the middle class, there is a pretty easy way to do it. The Democrats control the Senate and the House until January 2011. They can bring up any bill they want – including a bill that extends only those tax cuts that went to people making less than $250,000.00. They can do this and dare Senate Republicans to filibuster the bill. They can force them to filibuster in person, around the clock, while the Democrats point out that under their bill, everyone’s taxes, including taxes on the rich, are being cut. High income earners will get the same break on their first $250,000.00 as everyone else. They just won’t get a break on their additional income.

Would the Republicans deny everyone a tax cut unless we agree to tax cuts on income over $250,000.00 a year? I doubt it. They’d have to be suicidal.

I’m not a political genius, but this is a game of chicken in which Democrats have a decisive advantage. To not see this is political mal-practice. And does Obama really think it’s a good idea to sell out his base on this big an issue?

Apparently he does – either that or he was lying to us all along.

That’s my problem with Obama. He has retreated on so many important issues – not the least of which are civil liberties and executive power – that I’m left with two options. Either Obama is spineless, and lacks the courage of his expressed convictions, or he has been lying to us all along.

Thank God Nancy Peolsi has a spine.

Joe H.

Renewed Calls for Prosecution

Here's the full text of a letter sent to the Justice Department by the ACLU:

Dear Attorney General Holder:

The American Civil Liberties Union respectfully urges you to refer to Assistant U.S. Attorney John Durham the question of whether former president George W. Bush's conduct related to the interrogation of detainees by the United States violated the anti-torture statute. See 18 U.S.C. § 2340A.

In his recently published memoirs, President Bush discusses his authorization of the waterboarding of Khalid Sheik Mohammed and Abu Zubaydah. He states, for example, that he "approved the use of the [enhanced] interrogation techniques," including waterboarding, on Abu Zubaydah, and that he responded to a request to waterboard Khalid Sheik Mohammed by stating: "Damn right." George W. Bush, Decision Points 169-70 (2010).

The Department of Justice has made clear that waterboarding is torture and, as such, a crime under the federal anti-torture statute. 18 U.S.C. § 2340A(c). The United States has historically prosecuted waterboarding as a crime. In light of the admission by the former President, and the legally correct determination by the Department of Justice that waterboarding is a crime, you should ensure that Mr. Durham's current investigation into detainee interrogations encompasses the conduct and decisions of former President Bush.

The ACLU acknowledges the significance of this request, but it bears emphasis that the former President's acknowledgement that he authorized torture is absolutely without parallel in American history. The admission cannot be ignored. In our system, no one is above the law or beyond its reach, not even a former president. That founding principle of our democracy would mean little if it were ignored with respect to those in whom the public most invests its trust. It would also be profoundly unfair for Mr. Durham to focus his inquiry on low-level officials charged with implementing official policy but to ignore the role of those who authorized or ordered the use of torture.

Failure to fully investigate the role of the former President in the use of torture would also severely compromise our ability to advocate for human rights in other countries. The United States has been a champion of that cause for over half a century. Recently, while in Indonesia, President Obama urged that country to acknowledge the human rights abuses of the Suharto regime. He stated unequivocally that "[w]e can't go forward without looking backwards." Without suggesting that our own experience is equivalent, it is clear that the United States's authority to push for such accountability in other countries, and the willingness of those countries to follow our advice, would quickly unravel if we failed even to investigate abuses authorized by our own officials.

The ACLU understands the gravity of this matter and appreciates the difficulty of the Department of Justice's task. A nation committed to the rule of law, however, cannot simply ignore evidence that its most senior leaders authorized torture.

Thank you for your attention to this matter. For your convenience, I am attaching the ACLU's letter of March 17, 2009, in which we asked you to appoint an independent prosecutor to investigate crimes relating to the abuse of detainees.

Sincerely,

Anthony D. Romero

The Psychology of Partisanship

This article, "The Psychology of Partisanship," by Lane Wallace, is well worth your time. Wallace explains, in a convincing fashion, why many people cling to beliefs despite contrary evidence or argument.

By the way, I saw a clip of President Bush being interviewed by Matt Lauer regarding his new memoir "Decision Points." President Bush admitted to authorizing waterborading, and insisted that it was legal because "the lawyers said so." But when Lauer asked Bush if that meant it was legal for other countries to waterboard American citizens - an elementary "consistency" challenge if there ever was one - President Bush responded, "I'm not going to argue this, read the book."

No that's one unreflective son of a bitch!

Joe H.

The Big Lie - UPDATE

This blog post by Andrew Sullivan
illustrates a core corruption in the modern conservative movement. They love power more than truth. They are willing, in a coordinated effort, to sacrifice their integrity to gain power.

In one sense, you have to admire the sheer gall of editing a statement in which Omama unmistakably insists that he believes X to insist that he said he does not believe X - and to then make this argument a talking point.

Lying is corrosive. It may be the most destructive force in the universe. It will catch up to them.

Joe H.

UPDATE: Here is more of the same.

Another Thought - Playing Chicken for the Public Good - and For Their OwnGood

One of the problems Democrats face going forward is a deluge of corporate money whose origins need not be disclosed. Granted, money can't by love (ask Meg Whiman), but it can by a lot of attack ads.

Last year, the House of Representatives passed a bill requiring disclosure of the sources of all that corporate money, but the Senate killed the bill by a Republican filibuster, which requires 60 votes to break. However, the Republicans are also screaming about extending the Bush Tax cuts, which AUTOMATICALLY expire on December 31, 2010.

Here's a thought. Before the lame duck session of Congress begins next week, Harry Reid and/or Nancy Pelosi – preferably both – should simply announce that they are going to take up the disclosure bill first, and they will not take up any other business until the bill receives an up or down vote in both chambers.

This will put the Republicans in a severe bind. The public supports disclosure by wide margins – Republicans and Democrats alike. Republicans know this, but they also know they will be the primary beneficiaries of future non-disclosed corporate political spending. The only way they can stop the bill in the lame duck session is by a Republican filibuster – it will pass and become law otherwise. However, the longer the Republicans filibuster, the less time there will be for the Republicans to attempt save their beloved tax cuts (all of which should be repealed, IMHO). And if Republicans complain, the Democrats can simply say that it is the Republicans who are holding up the vote on extending some or all of the tax cuts by filibustering on this other issue of grave importance to American democracy.

Am I crazy, or is this a damn good idea? It reminds me of that scene in Spiderman where the Green Goblin holds Mary Jane in one hand and a bus full of school children in the other and forces Spiderman to choose who he will save. “Tax cuts for the uber-wealthy or secret corporate electoral aid, What’ll it be Spidy - you chose.”

Joe H.

Election Thoughts

I haven't written anything in a while - the world series, the elections and my clients have taken up a lot of time this month - the latter, of course is good news . I’d much rather discuss philosophy and politics, but no one will pay for my insights - yet.

Anyway, I listened to some of the talking heads analyze the election results, and the most common narrative is that "the voters rejected the Democrats because they are too liberal and they now need to move to the center." That is an absurd analysis. It assumes that huge numbers of voters embraced liberalism in 2006 and 2008, when the Republcans were slaughtered, but then switched back to being conservative in 2010.

We know quite clearly why the Democrats lost. In 2008, 18-28 year old voters constituted 18% of the voting electorate. In 2010 they constituted 9%. In 2008, black voters constituted 13% of the voting electorate. In 2010, black voters constituted 8% of the voting electorate. And I’m sure you can guess that the percentage of the voting electorate over 50 soared?

In other words, old white people (like me), who tend to vote Republican (present company excepted), came out to vote. Young people and black people, who tend to vote Democratic, stayed home. And given that most of the Republican victories were non-landslide victories, that’s the entire ball of wax.

I mean, come on. Should we embrace a simple, fact-based explanation repleat with easy to understand numbers, or an explanation that assumes extreme shifts in political philosophy for millions of people every two years?

The real question is, why did democratic leaning voters stay home? Well, here is an excellent description of the phenomena by Glen Greenwald:

“People are suffering economically and Democrats have done little about that. Beyond that, they failed to inspire their own voters to go to the polls. Therefore, they lost. By basing their power in Congress on Blue Dog dependence -- rather than advocating for the views of their own supporters and implementing those policies -- they failed, and failed resoundingly. Building their party around a large number of muddled, GOP-replicating corporatists not only creates a tepid and failed political image, but far worse, it prevents actual policies from being implemented that benefit large number of ordinary Americans. Democrats repeatedly refrained from advocating for such policies in deference to their Blue Dogs, failed to do much to alleviate the economic suffering of ordinary Americans, and thus got crushed. Anyone who thinks that Democrats lost because they were "too liberal" -- rather than because Americans are suffering so much economically -- is wildly out of touch, i.e., is a multi-millionaire cable TV personality who has spent decades wallowing in trite D.C. chatter.

. . . .

The Republicans have long lived by what they call "The Buckley Rule": always support the furthest Right candidate who can plausibly win. This year, knowing that it would be a wave election, one that would sweep in huge numbers of Republicans in districts where they ordinarily couldn't get elected, they changed that to: support the furthest Right candidate, period. That's because they believe conservatism will work and want to advocate for it. Democrats don't do that. The DCCC constantly works to prop up the most "centrist" or conservative candidates -- i.e., corporatists -- on the ground that it's always better, more politically astute, to move to the Right. Even in the pro-Democratic wave years of 2006 and 2008, the Democratic Party blocked actual progressives and ensured that Blue Dogs were nominated, even though the anti-GOP sentiment was so strong that any Democrat, including progressives, could have won even in red districts (as Alan Grayson proved).

With that strategy, the Democratic Party now reaps what it has sown. Its message and identity are profoundly muddled, incoherent, unclear, uninspiring, and self-negating. Worse, its policies are mishmashes of inept half-measures that, with a handful of exceptions, produce little good for anyone (other than Wall Street, the Pentagon and other corporate interests). They are perceived as -- and are -- beholden to Wall Street, special interests, and the corporations they vowed to confront. They are without any ability to confront the massive unemployment crisis and financial decline the country faces. And as a result of all of that, they lay in shambles. Anyone who can survey all of that and cheer for the strategy which Democrats have been pursuing -- let's build our majorities by relying on GOP-replicating corporatist Blue Dogs -- or who thinks that this election loss happened because "Democrats are too liberal," resides in a world that has very little to do with reality. And that's true no matter how many times they repeat the simplistic snippets of exit polls to which they've obsessively attached themselves.”

Well said Glen! No in fact, freakin brilliantly said! How Democrats can consistently dismiss the desires of their base (abandon the Public Option/leave the huge Wall Street banks in tact/ ignore civil liberties concerns and seek to enhance monarchical executive powers) and still hope to win elections is beyond me.

Joe H.

Stupid is as Stupid Does

Discussing the theory of evolution, Glen Beck recently told his television audience, "I haven't seen a half-monkey, half-person yet."

Glen Beck also led a successful fundraising drive for the NATIONAL CHAMBER OF COMMERCE.  Beck convinced thousands of middle class folks to contribute their hard earned money to the WEALTHIEST CORPORATE LOBBYING ORGANIZATION IN THE COUNTRY.  And so many people contributed that the Chamber's website crashed.

Astonishing!

Steve Benen is right.  Stupidity really does spread like cancer.

Joe H.

Noah Millman on Resistance to Gay Equality

Noah Millman on Resistance to Gay Equality:

"It gets worse before it gets better – indeed, it gets worse even as it’s getting better. That’s the way the politics of these sorts of issues goes, issues that appear to present very fundamental challenges to an entire worldview. At the outset, the worldview has a variety of sources of support: longstanding traditions and patterns of behavior; a larger societal consensus on the rightness of a position; the support of scientific authorities; etc. But as these supports fall away, as patterns of behavior change, as the question becomes contested rather than settled, as the scientific consensus dissolves or even switches to the other side, the defender of the traditional understanding is left with only one actual argument: if I give this up, I will have surrendered everything. And so I will never give up."

This too shall pass.

Joe H.

Market Failure Anyone?

Exhibit "1" proving that unregulated markets can and do fail
.

The War on Drugs

California is set to vote on a ballot initiative to decriminalize possession of small amounts of marijuana. It is an interesting initiative, given that possession of marijuana would still be illegal under federal law, and federal law trumps state law pursuant to the United States Constitution’s “Supremacy” clause. Moreover, Attorney General Eric Holder just announced the Justice Department’s intention to enforce federal drug laws irrespective of the results of the California initiative.

Exactly how the justice department will pursue its enforcement policy without the aid of local law enforcement – the DEA only has so much manpower and can’t afford to concentrate on individuals possessing small amounts of marijuana for personal use – is unclear. But I suppose the Attorney General has to affirm federal law, so there you go. Homage paid.

I’ve long favored decriminalizing drug use as part of a “harm reduction” policy strategy. If there is a policy that has failed more miserably than our “war on drugs,” I’ve yet to see it. It is inconceivable to me that we have spent hundreds of billions, perhaps trillions, of dollars on this so called war, ruined hundreds of thousands of lives, created a worldwide black market and all the attendant crime that accompanies black markets, in order to accomplish. . . absolutely nothing! It is even more inconceivable that most “responsible” government officials want to continue the war despite strong empirical evidence that there is a better way forward.

And to think that President Obama promised, repeatedly, that “we will not ignore the facts – we will be guided by them.”

Absolutely inconceivable!

Okay. You do not think that word means what I think it means. I get it. Still . . .

I am not advocating drug use. It bothers me that I have to say that. Defenders of the current policy cannot be so stupid as to truly believe the proponents of decriminalization want drug use to increase. Surely they know the debate concerns the most effective policy for decreasing drug use and the problems associated with it. On the other hand, if I had to defend the war on drugs based on its effectivness, I'd probably resort to bad faith arguments just as quickly. So I'll grudgingly repeat myself. I am not advocating drug use.

To the contrary, I think we should treat drug use and users the same way we treated tobacco use and users – we should stigmatize drug use and offer help for those wanting to quit – financed by taxes on the legal sale of the products. In case you haven’t noticed, smoking is down to around 10% of the adult population, even though cigarettes remain legal in every state.

That’s down from 50% in just a few decades. Shouldn’t we at least consider trying a similar strategy regarding drugs?

This is not an original quote, but it sums up the situation regarding the war on drugs perfectly. “The war on drugs is a war against human folly, and all such wars are lost before they even begin.”

Joe H.

Meta Ignarance and a Glimmer of Hope

One of the most difficult things about practicing law as a novice is "meta ignorance.” “Ignorance” is the state of not knowing something. Meta ignorance, to the contrary, is not knowing that there is something that you should know, but don’t.

The American system of law is extremely complicated. Part of the reason is that there are so many sources of law - federal and state constitutional law, federal and state case (court made) law, federal and state statutes, federal and state administrative rules, local ordinances, procedural rules, court rules, and so on. This fact makes it extremely likely that there is some point of law that relates to whatever you’re working on that you don’t know about. However, it is one thing to not know the answer to a particular question – that can be easily remedied by research. It is quite another not to know there is a question you should ask.

Most of my mistakes practicing law have arisen from meta-ignorance. This is extremely stressful. When you present work to a firm partner, they expect it to be legally sound. It is very hard to tell a firm partner, “that may or may not be true, I didn’t think to research that issue.” Only one firm partner has ever responded to this excuse with “how could you have known?” Most of the time, they expect you to figure out everything you need to know and factor it in. This creates a dilemma. You can sit in your office trying to discern additional relevant legal issues when you have no idea what they might be – and waste valuable time that you can’t bill. Or, you can turn your work in and hope you don’t face the dreaded “what about this issue?”

Well, something just happened that gives me hope regarding this problem. I am about to file a complaint for one of my clients. A complaint is the document that begins a lawsuit. Generally speaking, a complaint consists of the complaint itself, a demand for jury trial, and a summons. I completed each of these documents and was about to send them to my client for review, when something happened indicating that, on at least one point, I transcended meta ignorance to ignorance (and now possess knowledge after doing the research).

Here’s the short story. Our court system goes back to the English court system. The English had multiple court systems. The “Common Law” or legal courts were created when William the Conqueror conquered the British Isles in 1066, and subsequently united all of the King’s legal courts into a “common” judicial system. However, a second system of courts known as the Courts of Chancery (or Courts of Equity) developed as a remedy to the harsh rules and limited remedies available in the legal courts.

The main difference between these systems is that common law courts operated by strict rules of law, which often dictated unjust or harsh results. Courts of equity, on the other hand, could consider equitable as well as legal principles in arriving at their decisions. They could also award a wide array of remedies not available in the common law courts. For example, if a party to contract for the purchase of land backed out (because the value of the land had increased), a common law court could only award money damages, which is a legal remedy. Courts of equity, on the other hand, could award the remedy of “specific performance” and force the sale at the agreed upon price.

America adopted this two court system when our nation was founded. The federal courts, and nearly all state courts, combined their two court systems in the early 1900’s. But both common law remedies and equitable remedies are still available in our courts. You can sue for damages, which is a legal remedy. You can also sue for an injunction, which is an equitable remedy.

Why is this important? My client is suing co-obligors on a contract for equitable contribution – which is an equitable remedy. After completing my complaint, it occurred to me that there might not be a right to a jury trial for purely equitable claims. That was my transition from meta-ignorance to ignorance – it occurred to me to ask a relevant question. Within five minutes, I went from ignorance to knowledge, when I discovered that the right to a jury trial only applies to legal claims.

After getting rid of the demand for a jury trial, I thought, there is a glimmer of hope for me in this business.

Joe H.

Conservatives Redefine "Abuse of Power"

This article by Adam Sewer was very insightful. Movement Conservatives have indeed redefined "abuse of Power" in exactly the way Sewer describes - and they should be ashamed of themselves.

Joe H.

Great American Hero

If the rule of law wins in the United States - and that is by no means guaranteed - Glen Greewwald will eventually be seen as a great American hero.  A modern day Thomas Payne.

Joe H.

Runnymede Repealed?

Daniel Laison runs a blog called "Eunomia" at American Conservative Magazine. In the excerpt below he explains why the Obama administration's claimed right to target American Citizens for assassination, in secret, with no judicial review, based on its war powers pursuant to a war that will never end with a battlefield encompassing the entire world, is so dangerous.

"The [] more important argument is over the administration’s refusal to allow review or accountability for the power being claimed. The problem here is obviously that the administration is claiming the authority to order the death of a citizen on the basis of evidence that the public cannot see as part of a process that allows for no legal remedy if this power is abused. If someone tries to sue, the government will shut down the lawsuit by invoking secrecy and national security. This is the very definition of unaccountable, lawless government. Defending the particular instance of targeting al-Awlaki for assassination doesn’t even address the main question, which is the administration’s effective claim to be beyond the law.

In al-Awlaki’s case, there may be ample evidence in the public domain to persuade us that he has committed treason and has sided with the declared enemies of the United States, but the administration is claiming that it would have the authority to order a citizen’s death solely on the basis of evidence not available to the public, and it could theoretically carry out that order anywhere. We have to trust that this does not apply to potential targets in the U.S. because there are more “practical” ways of apprehending them, and because it is formally against the law, but who exactly would hold a future administration accountable if it violated the law?

It is the outrageous nature of the claim and the enormous potential for abuse that provoke outraged complaints against tyrannical government. If this actually were just a narrow claim about the authority to kill a handful of enemy operatives, the debate would be a lot less heated and it would be rather less important. What we’re talking about is the executive’s ability to create unchecked authority for itself to kill citizens it deems guilty as part of an essentially undefined, open-ended, global conflict that has no apparent end."

Precisely! When supporters of the administration's claim point out that al-Awlaki is a terrorist, they miss the point entirely. This case is a trial balloon for a Presidential power grab that would take us all the way back to the year 1214 - if you don't get my drift, do some research on the big event in 1215. It is not that anyone cares about al-Awlaki. It is that he is a U.S. citizen who is not on any legally recognized battlefield. It is not that we don't know that he is a terrorist - we do. It is that the Obama administration is claiming the power to kill U.S. citizens anywhere in the world, based on secret information that it need not reveal to the public.

That is tyranny.
Joe H.

Lying Through His Teeth About the Public Option

So, President Obama was lying through his teeth when he and his officials repeatedly claimed that Obama supported the public option and wanted it in the final healthcare bill.  Turns out they negotiated the public option away early on to obtain the support of the hospital association.

I don't like lying politicians.  Lying is necessary in some circumstances, but not in these types of circumstances.  Lying evidences a manifest disrespect for the citizens.  It is also corrosive - I think the fall of the modern conservative movement was mainly due to the fact that nothing conservatives wanted to accomplish was popular -which forced them to lie, constantly, about their goals and policies.  But here, Obama lied about having jettisoned a core desire of his base early in the negotiations - and later criticized his base for whining about his inability to pass the public option.

If the Democrats have that much disrespect for their base voters, I say its time to show them a little disrespect.

Joe H

The Unaccountable Security State

Here's a long excerpt from a post by Andrew Sullivan that sums up the situation, and my sentiments, perfectly.

"Obama's insistence on protecting every Bush era war criminal and every Bush era war crime from any redress or even scrutiny is a sign both of how cold-blooded he can be, but more, I think, of how powerful the security state now is, how it can protect itself, how it exists independently of any real accountability to anyone, how even the metrics of judging it are beyond the citizen's reach or understanding.

I tried valiantly not to believe this of Holder and Obama for months; I tried to see their legitimate concerns about exposing a war machine when it is still at war; I understand the need for some extraordinary renditions; and the necessity for executive power in emergencies to act swiftly, as the Founders intended. Yes war requires some secrecy. But Obama has gone much further than this now. The cloak of secrecy he is invoking is not protecting national security but protecting war crimes. And this is now inescapably his cloak. He is therefore a clear and knowing accessory to war crimes, and should at some point face prosecution as well, if the Geneva Conventions mean anything any more. This won't happen in my lifetime, barring a miracle. Because Obama was a test case. If an outsider like him, if a constitutional scholar like him, at a pivotal moment for accountability like the last two years, cannot hold American torturers to account, there is simply no accountability for American torture. When the CIA actually rehires as a contractor someone who held a power-drill against the skull of a prisoner, you know that change from within this system is impossible. The system is too powerful. It protects itself. It makes a mockery of the rule of law. It doesn't only allow torture; it rewards it."

If you're not afraid of this reality, then consider the words of Thomas Payne:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Yes, impunity for government officials commitng high crimes will result in more, and more egregious, crimes.  And the terrible powers wielded by unaccountable government officials will eventually find new targets.

Joe H.

Extending Tax Cuts and Balancing the Budget

So, the Republican party "Pledge," issued yesterday by their Congressioinal leadership, calls for (1) extending all of the Bush tax cuts - permanently: and (2) balancing the balancing the Federal Budget.

Our current budget shortfall is $1.3 Trillion per year.  If the plan involves a refusal to raise anyone's taxes, then it must involve a plan to cut spending to the tune of $1.3 trillion dollars (out of a budget of nearly $3.6 trillion in 2010).  Here is how federal spending breaks down (approximate numbers):

Medicare, Medicaid, and Similar Programs - $1.18 Trillion (33%)

Defense - $720 Billion (20%)

Social Security - $756 Billion (21%)

Interest on the National Debt - $288 Billion (8%)

The Rest of the Federal Government - $648 Billion (18%)

Assuming that Republicans have no intention of cutting medicare, defense, or social security (they mentioned no such intention), and acknowledging that they have no ability to discontinue interest payments on the national debt, this sounds like one hell of a plan!

The Republicans are fundamentally unserious.  They seek power for its own sake.

Joe H.

Stupid Statement on Taxes

I just read the following quote from Massachusetts Senator Scott Brown:

“I’m always against raising taxes, especially in a recession.”

For Mr. Brown, there is no conceivable circumstance under which raising taxes is appropriate. I have to assume that Mr. Brown’s position is categorical and exhaustive – it is always and everywhere inappropriate to raise taxes on anyone, or anything, for any purpose.

How a public figure can advocate such a stupid position and remain viable is beyond me? And I'll bet you that a Majority of Congressional Repubilcans would endorse the categorical version - now that's ideology baby!

But, more interestingly, if the first part of the statement were true, why throw in, “but especially during a recession?” It reminds me of John Stuart Mill’s famous argument that pleasure is the only good, but some pleasures are "higher" than others. G.E. Moore thought up the killer refuting analogy [loosely paraphrased from memory], “it is like saying ‘the only thing I value is color, but I prefer green to blue.’”

On second thought . . . maybe not. Perhaps Mr. Brown is saying that it is always a bad idea to raise taxes, but it’s a really bad idea to do so in a recession? . . . Perhaps he’s saying that raising taxes is always harmful, but it is especially harmful during a recession.

Okay, I take it back. The comment is not as stupid as I thought. It is still pretty stupid, however.

Joe H.

The Courage of One's Convictions

I was just thinking about Rand Paul, son of Republican presidential candidate Congressman Ron Paul, and current Republican Candidate for the U.S. Senate. I recall his interview with Rachel Maddow the day after he won the Republican primary. Rachel asked Paul if he supported the civil rights laws that forbid workplace and public accommodation discrimination?

Rand is a libertarian. Principled libertarians oppose nearly all government interference with individual liberty in the private sector. Because these laws interfere with the individual liberty of business owners to run their businesses as they please, Paul opposes them.

But saying so in public makes you sound like an extremist.

Rand was between a rock and a hard place – so he weaseled. He insisted that he did not approve of racism or racists. He further insisted that he supports laws that prevent the government from discriminating. For the record, I believe him. But it was obvious from the interview that he did oppose the civil rights laws in so far as they interfered with the prerogatives of private enterprise. And it was equally obvious that he would not admit this clearly and unequivocally to the electorate.

So he squirmed and squirmed and squirmed.

While the squirming was fun to watch, I think it was the worst move possible. Making it crystal clear that you hold a controversial view that you’re not willing to admit and/or defend in public makes you look like an extremist and a weasel. If Paul had (1) said that he unequivocally opposed the civil rights laws that pertain to private businesses; and then (2) unequivocally denounced racism; and then (3) supplied his libertarian rationale for his opposition to the civil rights laws – he would have come off much better. He could have admitted that the lack of such laws had unfortunate consequences, but argued that the market would have taken care of the problem and further argued that surrendering freedom is rarely the best solution to a social problem.

I wouldn’t have agreed with Paul, but I would have respected him. More importantly, he would have respected himself.

Joe H.

The Tax Man Cometh

The current political hot topic is taxes. When Congress passed President Bush's tax cuts in 2001, the then Republican congress used a procedure known as "reconciliation" to get the bills through. Bills passed by way of reconciliation need only simple majorities to pass and are not subject to Senate filibusters. The Democrats recently used the very same reconciliation procedures to pass the final elements of its health care reform bill

The catch is that any change to tax policy passed via reconciliation has a shelf life of ten years, after which the previous policy returns. Because Congressional Republicans could not get a permanent (and larger) tax cut through congress in 2001, they settled for a ten year tax cut. This had its upside – it made the tax cut look a lot less expensive than it really was. This was because official projections were based on existing law, which had the tax cuts expiring in ten years. That the Republicans never intended to let the tax cuts expire reveals their duplicity, or their savvy, depending on your perspective. They believed they were building a permanent majority, so they could afford to wait a few years and make the cuts permanent when their majorities had increased.

But a funny thing happened in 2006 – the Republicans lost their majority. Their drubbing was even worse in 2008.

And now the tax man cometh.

As to the best way forward, a thought that I sometimes enjoy as a daydream is that Obama would ask the Republicans if they agree that – putting aside emergency conditions like a severe recession, in which deficit spending is necessary to fill a large lag in aggregate demand – the citizens of each generation should pay for the government they want. Obama might say, “surely we agree that whatever we decide to do collectively, through the democratic process, we ought to pay for it ourselves rather than push the costs on to our children.”

If the President could get this concession from the Republicans, he could then take the following position: “Given that we all agree that each generation should pay for the government it decides it wants, I will not talk about tax policy in the abstract. Since we all agree that we should pay for whatever level of government we choose, calls for lower taxes are unmistakably arguments that the government is doing something it shouldn’t be doing. And if that’s what’s being asserted, we should discuss that. What is it that the government is doing that you’d like to cut, with the resulting savings used to offset tax rates? And be specific, so our discussion can be focused, productive, and accessible to the American people.”

I know, it’s a utopian illusion. But the tax man cometh.

Joe H.

Responsibility for our Religious Extremists?

William Saleton gets it exactly right. Protestors throughout the Muslim world are holding Christians in general, and U.S. government officials in particular, responsible for one tiny church’s planned burning of the Koran this Saturday to commemorate 9/11. What’s our response? We denounce the Florida church and insist that they represent neither Christianity nor the United States. We refuse to be held responsible for the acts of a small number of extremists.

Fair enough. But when a developer wants to build an Islamic center on a site two blocks away from “Ground Zero,” what do we do? Well, we ignore the fact that the act was committed by a small band of religious extremists. We then judge the entire religion by the acts of those extremists and insist that all the adherents of that religion are somehow responsible for 9/11.

I think the Pastor of that small church has done us a small, albeit unintentional, favor. He’s given us an opportunity to look into the mirror.

Joe

Obama's Moral Cowardice - Well Said.

As the title to this post indicates,
  this was well said. 

Why are Internet Debates so Awful

"I have thought a lot about why people get so hostile online, and I have come to believe it is primarily because we live in a society with a hypertrophied sense of justice and an atrophied sense of humility and charity, to put the matter in terms of the classic virtues. ... In our online debates, we not only fail to cultivate charity and humility, we come to think of them as vices: forms of weakness that compromise our advocacy. And so we go forth to war with one another."

--Alan Jacobs, professor of English at Wheaton College, writing at Big Questions Online. (Via ArtsJournal.)

I think this is correct, but incomplete. I've given a lot of thought to the notion of a "hot button" issue. I initially believed that people got worked up over certain issues because these issues were perceived to be important. But I've noticed a tendency - people tend to get angry at two stages of a debate. They first get angry when they discover that someone they identify with holds a different view.  They also get angry later, when they begin to lose the debate.

As a Christian, I've experienced this phenomenon numerous times. Christians generally oppose evolution and homosexuality, and favor criminalizing abortion in almost all cases. I do not. I haven't adopted my positions on these issues in order to stand out or annoy my fellow believers. I've adopted these positions because I think they are right.  But inevitably, when my views become known among Christians that I have been in fellowship with, people within that fellowship become angry.

Why do they become angry simply because I disagree with them? Part of the reason lies in the comfort that believing within unanimous concenses provides.  "We believe" is very reassuring, particularly when "we" refers to all of us.  The mere existence of dissent breaks the power of "we believe" to  reassure us.  It puts us on notice that we will have to supply reasons for our belief - reasons that we may not have bothered thinking through or checking.  Dissent constitutes a threat to established beliefs - some of which are near and dear to us.  So, naturally, dissent causes anger.

People also get angry when their arguments are exposed as inadequate.  Part of this is not wanting to have to change our beliefs or reject traditional wisdom.  That is a painful process which we all work hard to avoid.  Most of us can tell when an argument we've relied on is weak - if you doubt this, ask yourself why the Proposition 8 Derfendants worked so hard to keep the tape of the trial from the public even after the defense only put on two witnesses?  Getting angry and lashing out is a pretty effective way of dismissing even the most telling argument - or at least muddying the waters so that you don't have to answer the tough questions.

But I think people ultimately become hostile because they are unwilling to entertain the possibility that they might be wrong.   If you're unwilling to consider the possibility that you're worng, you're not looking for the truth - you're certain that you already have it.   It is natural for someone in this situation to get angry with a dissenter who they cannot convince - especially when what the dissent says sounds convincing.

It just so happens that a clear majority of Christians are in this camp.  The idea that they could be wrong about any of the issues I mentioned is unthinkable - and not because they have thought these issues through after giving the opposing side a fair, open-minded hearing.  They believe they have an infallible source of information about the history of the world, morality, and politics, and (I suppose) infallible teachers and/or infallible powers of interpretation.

If I believed any of those things, I'd surely get mad if anyone challenged me.

Joe H.

Star Chamber?

A few days ago I was chatting with a friend who remarked that the ACLU was suing the government to prevent it from killing a terrorist – and she obviously wasn’t very pleased with the ACLU!

This shocked me quite a bit. To me, the fact that a U.S. citizen is being forced to sue in federal court - in abstentia, for fear of being killed - to prevent the executive branch of the U.S. government from summarily killing him without due process is really quite amazing. There are so many radical and un American premises buried in this practice, including:

(1) That the executive should be vested with unreviewable power to summarily execute U.S. citizens - provided that he first determine that they are terrorists;

(2) That the entire world is a battlefield on which the American executive can exercise unreviewable war power against individuals, including U.S. Citizens, who are not actively bearing arms;

(3) That anyone who the executive branch says is a terrorist is, in fact, a terrorist, and there is no need for an independent branch of our government, one with different constitutional responsibilities, to conduct a fact finding proceeding in which the accused is afforded the opportunity to confront witnesses and offer evidence in his defense;

(4) That our government can establish a criterion for putting citizens on a “kill list” and then keep that criterion secret – meaning that U.S. citizens are now subject to summary execution by their own government without having any notice as to what specific conduct will subject them to this punishment;

I hardly knew where to begin. My friend assumed that the real culprit was the ACLU for opposing the kill list policy. Granted, my friend is not a constitutional scholar, and she didn't know all the facts. But she did know that the government had declared the guy a terrorist - and that was good enough for her. She also knew that he was a U.S. citizen. That didn't matter.

Wow!

About a year and a half ago, I developed the following “reductio ad absurdum” argument:

"[] I'm pretty tired of protesting that this kind of stuff is un-American. I'm tired of hearing government officials arguing that we should set up different levels of process, the obvious purpose of which is to insure (in advance) that the government will prevail and that the executive will be allowed to detain and imprison anyone it wants, on its say so alone.

To hell with it. Forget half measures. The Fifth and Fourteenth Amendments to our constitution supposedly protect all persons falling under American jurisdiction from deprivation of "life, liberty, and property" without "due process." If we're going to ignore (or manipulate) the "due process" requirement in so far as it protects liberty, why not ignore the due process requirement in so far as it protects against deprivations of life?

Shoot the bastards and be done with it!"

I meant this argument to be illustrative. Surely no one would even consider implementing an official U.S. policy ignoring the constitutional provisions related to depriving individuals of their lives without due process. I thought that realizing how radical that suggestion was might force people to reexamine the constitutional compromises (indefinite detentions, Court systems rigged to ensure the government always prevails) then being contemplated

Boy did the Authoritarians call my bluff!

In any event, this Piece by Glen Greenwald on the topic is worth while. By the way, doesn't the death list review process Greenwald describes sound an awful lot like the Star Chamber?

Joe H.

Is Obama a Muslim?

Polls show that 30% of the American people believe that Barack Obama is a Muslim - up from a previous 18%.  This belief is growing despite the very public and well covered uproar over Obama's controversial Christian pastor Jeremiah Wright during his presidential campaign, and despite Obama's repeated acknowledgments that he is a Christian.  Amazing!

If I were Obama, I would immediately go on national T.V. and ask the nation the following question.  "What if I were a Muslim?  Would that disqualify me from being president?  . . . (Long 10 second pause) . . .  If I converted to Islam this very afternoon, would that be grounds for opposing my reelection?  . . . (Long 10 second pause) . . . I'm going to ask the people of this nation to think about this question, and discuss it amongst yourselves, for one week.  In exactly one week, I'll return to this podium and give you my answer" (exit immediately).

Then it would be put up or shut up for the talking heads and their guests.  Is being a Muslim in any way relevant to Obama's qualifications to be president?  If it is, tell us how?  If it is not, why are we talking about it.  Why are we polling the question?

The fomentors of hate are hiding behind the loose connection in people's minds between Islam and Terrorism.  We need to force the haters to own this association publicly.  We need to force them to state their implicit biases explicitly.  If there is something wrong with being a Muslim, tell us what it is?  We're all ears.  If there is nothing wrong with being a Muslim, then admit this publicly and shut up about it.

In other words, someone needs to shame them - publicly - and in so doing appeal to the rest of the nation's better angels.

The modern conservative movement is held together by money, hate, and fear - and hate requires an enemy.   Gays, illegal immigrants, muslim's - any group of "others" will do - as long as they can be characterized in a way that stirs fear - gays will seduce your children, muslims want to murder you, illegal immigrants are drug dealers.  Looks like conservative operatives have pushed all in while holding hate and fear hole cards.  Its a strategy that's destined to lose in the long run, but its capable of doing a lot of damage to our nation in the short run.  So its time to call their bluff.

And to think that these people consider themselves to be uber-patriots.  I guess they missed the discussion of "E Pluribus Unim" during 4th grade civics.

Joe H.

Mosque at Ground Zero - Update

This is an ideas/opinion blog. So, for what its worth, here are my thoughts on the "Mosque at Ground Zero” controversy.

First, the controversy has been very effectively framed by the opponents of the project. From a propaganda perspective, "Mosque at Ground Zero" is about as bad a brand name as a project could possibly be assigned. Those four words conjure and conflate the explosive (“ground zero”) fear, emotional pain, and nativist inclinations of our nation, with the horrors we’ve seen and endured during the last 10 years, in a spectacularly effective way.

That’s the Lawyer in me talking.

Of course, "Mosque at Ground Zero" is an inaccurate and misleading description of the proposed project. A Muslim Cultural Center with a gym, restaurant, classrooms, and a prayer room, located two blocks away from the site of the fallen towers, in an abandoned clothing warehouse, is what we’re actually talking about.

That’s the Philosopher in me talking.

But this just shows how important it is to frame the debate first. Once we’re talking about a “Mosque at Ground Zero,” facts and rationality are not going to make much headway.

That’s the Lawyer in me talking – and he won’t shut up!

All that said, what do I think about the Project, and how we should handle the controversy? First, I am not unsympathetic to those opposing the project because they find the idea offensive. I can see how a building a Mosque near the sight of the largest mass murder in the history of the nation – a murder committed by extremist Muslims in the name of Allah - would anger many people.

But their anger is misplaced. Islam is not Al Qaeda – Al Qaeda murdered our fellow Americans, not Islam. For many people, “Mosque at Ground Zero” connotes “Islam murdered our citizens and now wants to erect a trophy at the site commemorating their victory.” That’s why it is such an effective frame. But it is a lie. Islam did not attack us – a few of its most radical practitioners did. Perpetuating the conflation of Islam and Al Qaeda for political gain is despicable. And even if it weren’t despicable, it is seriously contrary to our national interest to tell a billion Muslims that we see every last one of them as an enemy.

Second, allowing the Muslim Cultural Center to be built near the site of 9/11 is the best way of communicating to the Islamic world that we understand the distinction between Islam and Al Qaeda. Refusing to allow the Cultural Center sends the precise opposite message. And what we communicate in this instance is a zero sum game.

Third, allowing the Center to be built near Ground zero is perhaps the best way of reminding ourselves what it means to be Americans, and what America stands for. It is a way of saying, and demonstrating, that America truly is exceptional – that we refuse to let our anger and fear extinguish our commitment to liberty and justice and freedom for all. What amazes me is that much of the opposition to the Center comes from the Christian elements of the GOP. Don’t these people ever read their bibles? Don’t they recall Jesus’ teaching that if you want to represent God to the world, the best way to do it is to do more than you are required to do – to go further, and to be better, than others expect or have a right to expect?

It angers me to no end that politicians, instead of calling us to be noble and embody American ideals, stoke and inflame our worst instincts. But to see supposed Christians (aka Newt and Sarah, and the Church that is planning a "Burn the Koran bonfire") do this absolutely floors me.

So there’s my view, for what it is worth.

Joe H.

UPDATE: The more I hear about this controversy, the more I agree with the sentiments expressed by Dick Cavat - I'm ashamed of us.

Fallibility

John Stuart Mill once wrote that anyone who would suppress dissent on any subject assumes his own infallibility - at least in so far as the subject in question is concerned. Practically speaking, his posture is, “why entertain further discussion, when I currently have the truth, the whole truth, and nothing but the truth.”

Indeed. Why would anyone?

Of course, no one will admit to thinking himself infallible. All of us concede precisely the opposite. But that doesn’t matter. As Mill pointed out, the vast majority of those who admit their own fallibility take no practical steps to account for it. Practical steps would include remaining open-minded. But they would also include active reflection on the quality of the reasons I have for believing what I believe, buttressed by my active inquiry when I discover those reasons to be suspect (or non-existent).

But how many people do any of this?

Actually, the situation is worse than Mill feared. People admit that they could be wrong, but often take extraordinary steps to avoid acknowledging error in their beliefs – at least in the beliefs that they care about. The issue of Gay marriage is a perfect example. No amount of evidence or force of argument is going to change the Protectmarriage.com crowd’s minds on this issue. They’ll continue to cite the same non-existent studies – which they weren’t willing (or able) to introduce (or defend) in court. They’ll accuse the Judge of bias – when his written opinion is a model of clarity and analytical rigor. They’ll defiantly declare that evidence vindicates their position and that the Judge systematically ignored the evidence – while simultaneously fighting tooth and nail to prevent the trial video from reaching the public.

Support for George W. Bush is another great example.

But I digress. Most of the time, this feature of human psychology doesn’t harm anyone. But the criminal justice system is one place where it does. This Interview with Peter Neufeld, founder of The Innocence Project, illustrates just how tragic this human tendency can be.

His answer to the final question is the best illustration of all.

Joe H.

George W. Bush - the Voice of Reason and Moderation?

With regards to the zenophobic Christianist uproar over a planed "Islamic Center" being built two blocks away from Ground Zero, I too must admit how suprised I am that a thought like "I miss George W. Bush" ever entered my head.

But it has.

Joe

Standing

This is pretty interesting. In the California Proposition 8 case, Judge Walker stayed his order striking down Proposition 8 – and reinstating gay marriage in California – but only until August 18, 2010. That is the deadline by which the Defendants must file an Appeal. His Order then pointed out, as no one but Judge Walker seems to have realized prior to his pointing it out, that the Defendants who wish to appeal probably lack “Standing” to file the appeal.

For all of you non lawyers, “Standing” is a judicial concept limiting a court’s discretion to hear a case. American courts are not allowed to hear a case unless both parties are properly before the court, and Parties are not allowed to bring a case unless they have standing.

Standing means that the party has some specifiable or quantifiable interest in the outcome of the case – that the outcome will affect the party’s rights and/or interests. A simple example is that a citizen cannot sue the U.S. government regarding its “enhanced interrogation policies,” no matter how much he or she disagrees with those policies, because, unless they personally have been subjected to the torture, the outcome of any such suit will not directly affect their individual rights or interests. (Imagine how powerful our courts would be if they were allowed to hear any case they wanted, brought by anyone willing to bring it; imagine how difficult it would be for the other branches of government to function if they could be sued by anyone who disagreed with their actions).

Back to Proposition 8. The Plaintiffs in the case were four private citizens - a male and a female same sex couple - who were denied marriage licenses on the basis of Proposition 8. These individuals clearly had standing to sue, because the outcome of the case directly effected their rights and interests. The original Defendants were the California State officials tasked with managing the issuance of marriage licenses. They, of course, had standing to defend, since the rules governing the issuing of marriage licenses had direct implications for their performance of their official duties.

No problem so far, except that that the named Defendants refused to defend Proposition 8. It was only after California’s Governor and Attorney General expressly declined to defend the suit that the Court allowed an organization called Protectmarriage.com to intervene and supply a defense. They did horrible job, by all accounts, but that’s another issue.

What matters is something that, until now, no one but Judge Walker appeared to realize -the Intervenor Defendants do not have standing to appeal. The outcome of the case does not appear to have any quantifiable affect on their rights and interests – which makes them improper defendants for purposes of an appeal. The fact that Judge Walker allowed them to intervene to Defend Proposition 8 does not give them standing to take the case forward. Only the State of California and the named Defendants have standing to file an appeal.

But they don’t want to appeal.

That Judge Walker is pretty shrewd. Game, set, match. Look’s like California is going to have to allow gays to tie the knot. That doesn’t mean the fight is over. At some point, someone is going to bring a federal challenge to a state ban on gay marriage in a place where the state officials will be eager to defend their state’s ban, and appeal any adverse decision all the way up to the Supreme Court. In fact, if I were an opponent of gay marriage, I’d immediately start looking for a gay couple in another state who wanted to sue and start that ball rolling.

Joe H.

"I Believe that Marriage is the Union of One Man and One Woman"

I've noticed that opponents of same sex marriage, when asked to state a reason for their opposition, frequently respond, "I believe that marriage is the union between one man and one woman." That belief, of course, is not a reason for opposing same sex marriage. For one thing, it is no longer even true, legally speaking, that marriage is a union between one man and one woman. There are eighteen thousand same sex marriages in California alone. Nor does that statement supply any grounds for opposing same sex marriage. It is, at best, a restatement of one's position on the issue - a statement about what one believes (or wishes for), rather than a reason supporting that position or preference.

However, the statement has the look and feel of a reason. It was, after all, true, and obviously so, until very recently - at least in the modern Western world. Repeating that fact sounds like one is giving a reason. This allows opponents of same sex marriage to convince themselves, and others, that they are principled and reasoned opponents.

Well, let me put an end to that right now.

Suppose you asked me why I support including same sex couples within the institution of marriage, and I replied, "I believe that marriage is the union between two spouses." This answer, you will notice, is not only true in the way the first response was true, it remains true. However, I doubt that any opponent of same sex marriage will be persuaded by this statement, or think that it provides grounds for my position. Nor should they be persuaded. My response doesn't provide any grounds for my position - it simply describes marriage in a way that accommodates my position (or preference) that same sex couples be allowed to marry.

Of course, opponents of same sex marriage will say that my description of marriage is incomplete. They'll say that a complete description of marriage precludes marriage by same sex couples. But that response simply restates the view that marriage is a union between one man and one woman. My response would be that the opponents' description of marriage is wrong because it excludes people who can be married (same sex couples). But that response merely repeats my initial view that marriage is a union of spouses, be they of the same or opposite sex variety.

Do you see how neither of us is arguing?

So enough with the "I believe that marriage is the union of. . . " responses. They’re not reasons.

Joe H.

Free Speach and Knowledge

About 20 years ago, author/thinker Jonathan Rauch wrote a book titled "Kindly Inquisitors." The Book's illustrative examples are a bit dated, but its core defense of freedom of speech as the key to knowledge generation is still spot on.

If you've never read the book, I highly recommend it. But in case you just want to understand the basic argument, this 30 minute talk by Mr. Rauch provides an excellent outline of his argument.

Jonathan Rauch - FIRE's CFN 2010 from The FIRE on Vimeo.

Joe H.

Proposition 8 is Declared Unconstitutional

I just finished reading Judge Vaughn's decision striking down California's Proposition 8.  Proposition 8, you will recall, was a 2008 State wide referendum amending California's constitution so as to define marriage as a relationship between one man and woman. Proposition 8, which passed by a 52 to 48 margin, overturned a recent California Supreme Court Decision striking down the State's ban on same sex marriage.

One of the things I am thankful for is the tradition of Courts providing written opinions explaining the facts that came before them and the legal basis/rationale for their ruling. You can read the decision here, but before you do, let me offer a bit of guidance.

Judge Vaughn is the judge of a Federal District Court - which is a "trial" court. That's an entry level court. Trial courts are the courts in which witnesses appear and testimony is given under oath. Appelate courts do not hear testimony or admit new evidence. They review the decisions of trial courts for legal soundness. They confine themselves to arguments about the case, based on the testimony and evidence already introduced.

In this opinion, Judge Vaughn began by providing: (1) an initial description of the case and the purpose of the law suit - i.e. what kind of relief the plaintiffs were seeking; (2) the identities of the parties to the lawsuit, (3) the identity of the witnesses and the substance of the witnesses' testimony; (4) an identification of those witnesses that the Court found credible (and not credible) and an explanation as to why the Court found specific witnesses credible (or not credible).

After this initial discussion, trial courts typically provide what are known as: (5) findings of fact; and (6) conclusions of law. In this opinion, which is over 130 pages long, the vast bulk of the opinion is devoted to quoting and citing to the trial transcript and evidentiary exhibits to support the Court's findings of fact. I recommend that you read (1), (2), (3), (4) carefully, and then, when you get to (5), read the actual findings of fact (they are the numbered paragraphs) and just skim the citations to the record. That will save you a lot of time and energy. Then read (6) very carefully - that is the meat and potatoes of the legal argument.

As you probably have guessed, I think the ruling is spot on. But not because I favor allowing gays to marry. The equal protection and due process rationales Judge Vaughn offered against the ban on same sex marriage, grounded as they were in the evidence presented, are very compelling. It is remarkable how little evidence the Proponents of Proposition 8 introduced in defense of their position, And Judge Walker systematically demolished the arguments they did offer in support of Proposition 8. (The Proponents themselves had to intervene in the suit after California’s highest officials refused to defend Proposition 8).

It is also telling that the Proponents initially fought so hard to keep the trial from being broadcast while it was ongoing, and then fought equally hard to keep the video recordings hidden from public view during the ensuing appeal.

But I'll leave those of you hardy enough to read through the opinion to form your own opinion on the quality of the legal reasoning.

Enjoy yourselves.

By the way, if you refuse to read because you don't want to change your mind, ask yourself how you can expect others to read arguments in favor of your views if you refuse to read arguments in support of theirs?

Joe H.

Time for Newt to go Away or for God to Retire - Something's Got to Give

This from Roger Fallihee over at the World According to Roger:

"Newt Gingrich was asked last week if he would seek the presidency in 2012 and he smugly replied, "That will be up to God, and the American people."

The American people have a proven ability to make poor presidential choices, but if God is willing to help Newt Gingrich become President of the United States, he either has a very twisted sense of humor or he's completely lost his omnipotent mind.

Either way, he's got to go."

Well said Roger!

Joe H.

The New Normal

If you read this report by the ACLU summarizing the Obama administration's stance on a variety of civil liberties issues during their first 18 month's in office - and I hope you will - pay attention to how far we've drifted as a nation in 10 short years. It is quite remarkable how the effects of an "endless war" paradigm can utterly destroy a popluation's alligence to the most basic pillars of liberal democracy. Impunity for government officials for even the most egregious law breaking, including torture and murder, illegal spying, the abandonment of due process (for some - at least for now). As the report suggests, all of this is the "New Normal."

Even more remarkable (to me) is that scores of people who (rightly) denounced President Bush for his lawless conduct gleefully accept and defend equally lawless conduct from President Obama. The Obama administration claims it has the legal authority to kill American citizens who are not fighting on any recognized battlefield. It claims that the exexecutive branch of our government has the legal authority to kill American citizens without any due process, based on its sole and unreviewable determination that the target is involved in terrorism.

I'm guessing that this authority, in their minds, is limited to American citizens living abroad - perhaps in the Middle East. I wonder, in the words of Thomas Payne, how soon that authority will migrate to other places.

Is there is any moral line we won't ultimately cross to "keep America safe?"

Tell me that terrorism doesn't work. Land of the free and home of the brave? Yeah right.

Joe H.

Department of Justice Follies

I've said it before but I'll say it again;  The Obama administration is doing serious additional damage to the Justice Department (by refusing to prosecute Bush administration crime). This article analyzes another manifestation of this troubling phenomenon.

Wikileaks and Democracy

Many of you have opinions about "Wikileaks" and its publication of government and corporate secrets. As you know by now, Wikileaks released over 92,000 documents constituting the record of the war in Afganistan from the perspective of the people fighting that war.

We all agree (I hope) that revelations of classified information that would endanger troops in the field, or endanger a military mission, would be treasonous. We also agree that publishing legitimate proprietary corporate information should be criminal.

Put another way, we all understand that secrecy has its legitimate uses. In my profession, secrecy increases honesty, candor, and full disclosure between attorneys and their clients, which is vital to obtaining sound legal advice - the surest way to screw yourself legally is to lie or to withhold information from your attorney. Absolute confidentiality regarding AIDS testing saved innumerable lives by allowing those who thought they might be infected to get tested.

But most of the time, secrecy hides and/or facilitates three things: corruption, incompetence, and manipulation. I don't need to tell anybody about the first two - you know from your own experience that your first instinct is to conceal your screw ups - at least until they can be fixed or mitigated. And the Obama administration has gone to great lengths to invoke "state secrets" to keep information about the previous administration’s torture of its detainees hidden from public and judicial scrutiny - and it has done so even when the relevant facts of the case were already public knowledge.

In this latest disclosure, we find secrecy hiding (and thus sustaining) the entire trilogy - but it appears that the biggest use of government secrecy regarding the war in Afghanistan was manipulation - our government was using its powers of secrecy to sustain public support for its war policy. It was concealing the fact that we were (and still are) largely failing in Afghanistan.

In case that doesn't strike you as sufficiently problematic, the practice has another name. Our government was undermining democracy by withholding information about the failure of a particular policy. It used its powers of secrecy to undermine the legitimacy of our social compact, which requires, at its core, that elected officials exercise their powers according to the consent of the governed. Our government obtained our consent by hiding (or distorting) the truth, and in so doing flipped our social compact on its head.

So don't be so quick to condemn Wikileaks.  Julian Assange, in the spirit of Daniel Ellsberg before him - if you don't know who Ellsberg is, look him up on Wikipedia - has done us a huge favor. If there is anyone deserving of our ire regarding these disclosures, it is our esteemed "public servants."

Joe H.