What Kavanaugh Tells Us about the Midterms
While Democrats refight the 2016 election, Republicans confirmed their second Supreme Court judge.
The soiled Kavanaugh confirmation process put Democratic strategy for the 2018 midterms in plain view. The question is will what hasn’t worked to date do any better for the Dems a month from now?
This week’s FBI investigation was never going to turn up much beyond incomplete recollections. Apart from liberal Twitter, all of whom are apparently trauma memory experts (last week they were scholars of perjury law), most people in Normal America have a hard time conjuring up long ago details. It is even harder to remember things that never happened. The FBI had done background investigations six times on Kavanaugh over a period of decades without uncovering any of what people said this week, so in reality, the investigation lasted 30 years. Democrats knew unless the FBI miraculously turned up a blue dress with semen stains on it, the facts by themselves were never going to be enough.
The investigation, like Trump’s taxes and Russiagate, was really just a way to turn a scar into a scab to pick at, enough of something to propel the story into another week. Then if no new smoking gun-let drops into the media’s lap, the script says claim the process itself was unfair – Putin stole the election, gerrymandering cheated the vote, the FBI wasn’t allowed to interview enough witnesses.
The real plan was always to force the confirmation into the mold Democrats think will win them the House, the same gambit they thought would deliver a landslide in 2016. And so Kavanaugh’s complex judicial record was discarded in favor of Clinton-esque, er, progressive, talking points: the election, um, sorry, the confirmation is all about respect for women, fighting misogyny, defeating privilege, too many White Men, Trump is evil, we can’t have an accused rapist in the White House, sorry, on the Supreme Court! Disqualification via demonization. The Kavanaugh hearings were an updated version of what was supposed to be the 2016 game-changer, the “pussy grabbing tape.” The Dems would give America another shot at having had it with the patriarchy.
It didn’t work. Despite endless bleating the hearings were a “job interview” (imagine the lawsuit after a Microsoft hiring manager pivoted from coding skills to accusing someone of being a drunk) the hashtags were not enough. Judicial temperament problems? The issue never came up in Kavanaugh’s long career. Even so, few courtroom situations turn a judge into a Senators’ punching bag; maybe a little righteous anger was called for? Some may even remember how Democratic voters abandoned presidential candidate Mike Dukakis when he was too dispassionate in his reaction to a question about someone assaulting his wife.
Things devolved too quickly from concern over Roe v. Wade to an attempt to catch Kavanaugh out on yearbook nomenclature. Dems convinced themselves it was conclusive when Maddow labeled Kavanaugh a liar over what “Devil’s Triangle” really meant in a suburban Maryland boy’s school in 1982. They imagined people would believe wrongly stating the drinking age in Maryland decades ago was perjury and not just a mistake. They thought people would care more if the pool of “victims” (i.e., anyone who saw Kavanaugh with a brewski) increased exponentially. Most everything serious was lost in a cloud of stupid.
It is a hard ask to get people concerned about health care as a life-or-death issue to take you seriously as a party when all you seem to care about is high school butt sex. Jester Michael Avenatti pushed things further into farce with an “accuser” whose credibility failed sitcom standards. Susan Collins specifically cited Avenatti’s actions as part of her decision to vote yes on Kavanaugh. Yet Democrats still see Avenatti as a useful idiot, a kamikaze working alongside them, without understanding he demeans the seriousness of everything he touches as a tabloid Midas.
It was little surprise the absurdity of it all was missed by the Dems. One Democratic strategist stated “identity politics has really become the ecology you’re operating in. Economics aren’t as dispositive as they used to be.” That makes sense only to a party banking its midterm strategy on voters not noticing the economy is doing pretty well. It follows pretending constant predictions of trade wars and real wars haven’t all turned out to be crying wolf. It starts to make sense America would go along with the idea a guy claiming he wasn’t a drunk in college means he’s a liar unfit to serve on the Supreme Court.
There were issues in Kavanaugh’s judicial history worth debating. Concern over Roe runs deep. But the Democrats spent little thought on that, failing to grasp while American demographics may be changing, they haven’t yet changed.
The only constituency re-energized over Kavanaugh is suburban liberal white women (accuser Ford could not have been more a Clintonite if Murphy Brown was reanimated out of the 1980s via a horcrux from Hillary herself), a group favoring the Democrats anyway. Apparently this group can also be counted on to ignore the likelihood a Democrat Senator outed Ford when she wanted to remain anonymous, and to overlook attempts to slut-shame high school girl Renate Schroeder on the grounds that if she was a pass-around then Kavanaugh was a non-virgin who screwed tramps like that. Same for the tsunami of criticism directed at Susan Collins, labeled a traitor to her gender to the point where people are donating money to her unknown opponent of the future. No one on CNN praised her as a courageous woman who made a thoughtful decision.
There seems little inside the Kavanaugh fight to specifically drive minorities, already understood as reluctant voters, to the polls. Millennial voters share a low historic turnout rate. If you can’t get a lot more than 1 out of 4 in a demographic to show up things are unlikely to work out (71% of Americans over 65 vote, skewing Republican, and the Kavanaugh saga could easily energize them into an even higher turnout). There seems little-to-no Democratic plan to shift these historical trends other than Trump rage, and the warm feelings of consensual hallucination embodied in social media aside, that failed again this week to affect a #RealWorld event.
“Purple” men moving to the Democrat side? One of the things which damaged the women’s movement in the 1980s and helped the Equal Rights Amendment (ERA; remember that?) to fail was an overemphasis on men as the enemy, a feature of the Kavanaugh process. Many women walked away from the feminist groups supporting the ERA, knowing the mantras “all men are rapists” and “Republicans hate women” just weren’t true.
This is what is happening now, when people who support Trump based on economics end up labeled fascists, people who support Kavanaugh based on his judicial history are rape apologists (or traitors), and people who support free speech are Nazis. Same as post-Parkland, when people who support the 2A were slandered as child killers. It’s deplorable. No one supports rapists or child killers. But few voters are willing to trust Democrats that see them as people who do.
The point of politics is to change people’s minds, not declare them unfit to walk among decent folk. Kavanaugh proved the Democrats (and their partnered media) are still unaware while this may be the year of #MeToo in Washington, New York, and Hollywood, it’s still just 2018 in West Virginia.
The Democrats failed in 2016 when they tried to make the election a referendum on Trump’s behavior. They failed again this week with the same strategy, even after elevating Kavanaugh to a psychopathic POTUS mini-me. With no tailwind from Russiagate, Democrats move toward November with little more than more of the same, throwing in some mumbled threats to impeach Kavanaugh off the Supreme Court (will that be before or after they impeach Trump?) if they take the House.
It’s bad enough to pick the wrong hill to die on. Even worse to do it three times.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Before the Vote, What I Saw at the Kavanaugh Confirmation Hearings
Everyone knew the testimony would not clear anything up. You were expecting a Colonel Jessup moment from A Few Good Men? Instead, the Judiciary Committee vote, likely along party lines, is scheduled for Friday with basically the same information in front of members as they had yesterday.
Along the way the world’s self-proclaimed greatest deliberative body soiled itself with partisan rancor – slut-shaming a woman not present, calling a sitting judge a drunk without evidence, and then labeling him a gang rapist, all in efforts to provide… advice and consent.
Christine Blasey Ford is a serious, empathetic, and sincere woman. That does not alter that prior to her testimony today, Ford’s accusation as she repeated it in front of the Judiciary Committee had already been refuted by everyone she said was present at that party in 1982 where Supreme Court nominee Brett Kavanaugh allegedly assaulted her. Her “evidence” was she had told a similar story earlier to her husband (albeit without mentioning Kavanaugh by name), some “beach” friends in California recently, and her therapist (again without mentioning Kavanaugh by name), what most people in or out of a court would consider repetition, not corroboration. When asked about the possibility the assault took place but that she misremembered the assailant as Kavanaugh, Ford just said no and things were left there.
There never could be any physical evidence nor was any suggested to exist to investigate. Ford admitted not remembering specifics that could have formed the basis of exculpation, including how she got home from the party, that driver being in a key position to assess Ford’s condition after the alleged assault and thus support or weaken her story. By not providing an exact date and location for the alleged assault, Ford did not allow for Kavanaugh to present an alibi, proof he was somewhere else. Ford in fact couldn’t say where they both were supposed to be to begin with, apart from “a suburban Maryland house.”
The attorney speaking for the Republicans gently pointed out multiple inconsistencies and inaccuracies between Ford’s previous statements and today’s testimony, walking Ford back from assertions to assumptions. The questioning was consistent with what is done in sexual assault prosecutions to help evaluate the credibility of witnesses. Ford in the end presented a dramatic, heartfelt but ultimately general accusation, backed by the hashtag of #BelieveWomen that precluded any serious questioning of her key assertions, and nothing more.
Brett Kavanaugh made clear from the initial reports right through the hearing Thursday none of what Ford (or his later accusers) said happened, had happened. He was unambiguous. He left no wiggle room. He could add no additional details to describe something that had not taken place. Clever lawyers created the appearance of a he said/she said. These are typically a case of two contradictory versions of a single event, as in date rape cases where sex is acknowledged by both parties who differ over the presence of consent. Kavanaugh’s situation is different; for the past four decades there was no “she said” until a handful of Democratic senators standing behind a victim they may have outed themselves forced Kavanaugh to deliver another round of “he said” denials today.
Kavanaugh showed real emotion in today’s testimony, calling how he has been treated a political hit, revenge, the expression of left-over anger from the 2016 presidential election, a national disgrace, finally breaking into tears. He called out the media for slut-shaming one of his female friends based on a vague high school yearbook reference. Multiple Democrats returned to the same accusations later anyway.
The outcome of all this hinges on a philosophy that believes people without discerning inquiry based on emotional responses and political expediency (i.e., a “credible accusation.”) So about the only real question left after today’s testimony was whether 99.99% or 100% of the people watching had already made up their minds in advance. Like any investigation that might have been launched, no clarity was possible under the circumstances. Ford was unable to prove the positive and Kavanaugh could never prove a negative.
Truth became in the end extraneous to what was really going on. Ford was a prop used against Kavanaugh by Democrats seeking to shift from holding a confirmation hearing they would likely lose to a referendum on mistreatment of victims of sexual assault they might win.
Democrats used their questioning time to make stump speechlets about the horrors of sexual violence, one going as far to say Ford had “inspired men to listen to women.” Nearly every Democrat ceremoniously entered thousands of letters of support for Ford “into the record.” To make sure everyone really, really got the point, Feinstein invited celebrity #MeToo activist Alyssa Milano to attend Thursday’s hearing (and speak with the media, of course.) Everyone cranked out plenty of campaign B-roll. This was theater.At times things seemed one step away from bringing in Handmaiden’s Tale cosplayers. The once great Senator Patrick Leahy engaged in an argument about the meaning of slang terms used in a 40 year old high school year book with a nominee to the Supreme Court, as if proof of immaturity was proof someone was a gang rapist. Another exchange focused on whether a word meant puke or fart. For every careful courtesy shown Dr. Ford during her testimony, Democrats treated Kavanaugh like a cheap punching bag.
Sensing the confirmation might not go their way and needing someone to blame, Feinstein spent her question time trying to coerce Kavanaugh into requesting an FBI inquiry. Senator Durbin demanded Kavanaugh to turn to the White House Counsel present at that moment and demand an FBI investigation on live TV. When Chairperson Grassley cut that off, Durbin responded by telling Kavanaugh if he had nothing to hide, he had nothing to fear, a line often attributed to Joseph Goebbels. Senator Kobuchar played good cop, trying to persuade Kavanaugh to call for the FBI. Expect the demand for an investigation to be Maddow’s (and Wolf’s, and Twitter’s) talking point tonight, when everyone cries for the confirmation vote to be delayed. To call it all a circus is a disservice to real clowns.
How did the very serious business of #MeToo end up a political tool?Only about ten days ago, without the votes to reject Brett Kavanaugh, Democrats started throwing stuff against the wall hoping something would stick. It started with Cory Booker’s failed Spartacus stunt. Kamala Harris, a fellow 2020 Democratic presidential aspirant, demanded more documents about well, something, we hardly knew then or remember now the issues from two administrations ago, brought forward likely in the hope there might be a perjury trapplet buried in those 100,000 pages for an intern to find.
Kavanaugh was accused of having a gambling problem, and of being an alcoholic (Senators Hirano, Kobuchar, and Booker accused him of having a drinking problem again today, Kobuchar explaining she knew one when she saw one because her grandpa was in AA.) And how had he paid off his debts after buying baseball tickets for friends? A pattern emerged: the goal wasn’t to suggest Kavanaugh was unqualified as a jurist but to insist he was unqualified as a human being. In each instance Kavanaugh denied the accusations. He couldn’t add much more. He couldn’t prove a negative no matter how many times the Democrats and the media demanded he try. Until…
Until a strategy ripe for 2018 finally emerged – he’s a witch! How do we know he’s a witch? Just see how vehemently he denies it! Well, maybe not a witch, that’s so 17th century. But a rapist is 2018, where a Resistance-charged mob can be convinced denial is proof of guilt. One can still credibly deny being a drinker, or a gambler, or stealing money in 2018, but one is no longer allowed to simply say no when accused of sexual assault.Democratic lawmakers went out of their way to gleefully proclaim this was a hearing (or “a job interview,” in Feinstein’s Constitution-contradicting words), not a trial, and so their plan was not going to be sidelined by fussy old stuff like a presumption of innocence. There was no question Ford’s testimony was really just an excuse to prosecute Kavanaugh. Senator Hirano, in basically announcing no holds were barred because this was not a trial, sounded more like she belonged in the Octagon than a Senate chamber. Cory Booker asked questions like a bad first year law student, stopping just short of demanding if Kavanaugh still beat his wife. A woman of lost virtue had been found by the Democrats, was willing to point her finger, and we was gonna have us a lynching. It might as well have all been set in a sweaty Alabama courtroom decorated to look like 1950.
With all the theatrics, much of the context behind today’s main event was missed. Christine Blasey Ford’s path to the hearing has not been given much critical attention. She wrote to her local representative this July with a request for anonymity. The letter was sent to Dianne Feinstein, who sent it to the FBI. Ford as the victim was then outed publicly after all of the above gambits to derail Kavanaugh failed, dramatically just hours before his assured confirmation vote. Ford testified today she never gave anyone permission to release her letter or name to the public.
The media, normally reluctant to splash victims of sexual assault across the front pages, went into spasm. Nobody seemed overly concerned about who, how, or why Ford’s name was leaked. No one seemed to include Feinstein’s sitting on the letter for weeks in their stories claiming Republicans weren’t giving the accusations enough time to be heard, though Chairman Chuck Grassley raised the point today.
Ford was near-perfect for the Democrats’ purposes, the archetype Clinton voter, down to a photo circulating of her in her pink pussy hat. The hearings brought together everything anyone hated about Trump in a mediagenic bundle: mistreatment of women, fears over Roe, white male privilege, every tidbit of identity politics teed up. And when idea emerged really “credible” cases had multiple accusers, the always-reliable Rowan Farrow dug around until he found another. Michael Avenatti, the Fagin-like wrangler of Trump-era accusers, was unleashed. He did not disappoint, phoning The View the afternoon before Ford’s testimony to accept congratulations for finding a victim (again with no evidence or corroboration; 64 people who knew Kavanaugh well in high school say they have no idea who the accuser is) who upped the accusations against Kavanaugh to gang rape.Alongside, Politico called Kavanaugh a liar for claiming he was a virgin in high school (Kavanaugh re-confirmed his virginity as a senior today) and thus questioned his credibility on all things. A new witness appeared then disappeared. Two men claimed they were the ones who assaulted Ford. Third-party hearsay accusations made headlines. Rawstory libeled by association the attorney Republicans hired to question Ford. Mark Judge, a supposed witness to the Ford assault who actually exculpated Kavanaugh, was smeared as a drug and sex fiend. Yale was painted as Sodom.
The counter-narrative that this was a Democratic set-up, with Ford as an unwitting victim of that, too, is all of this emerged organically and righteously, after decades, albeit right on time. The accusers were never compelled to speak up by civic duty during Kavanaugh’s years in the White House. Or when he worked with Special Counsel Ken Starr and was looked into by Bill’s Clinton’s supporters doing opposition research. Or during the confirmation hearings that seated him as a lifetime appointee on the Court of Appeals. Or during his original hearings a week or so ago, including by Dianne Feinstein, who already had the information from Ford literally in hand. And none of the assaults, including ten “gang rape” parties, ever resulted in even one complaint by a parent who noticed her child come home in the condition someone who was drugged and raped by multiple men would be in. And the FBI, which conducted six full background checks on Kavanaugh over his decades of government employment, just plain missed it all.In the end, everyone is going to believe what they want to believe. It is unclear a single mind was changed today, as it is equally likely not a single mind today was open to change. Something terrible happened to Christine Blasey Ford when she was in high school, there seems little doubt, but it is quite unclear that that also involved Brett Kavanaugh.
Ford, despite her doctorate, came off as almost naive, claiming not to know what exculpatory evidence was, saying she didn’t understand why people encouraged her to hire a lawyer before going public, testifying she didn’t know why she took a polygraph test and had no idea who paid for it. She said she did not know how her lawyers, one a Democratic regular recommended to her by Feinstein, were paid. She appeared a bit mystified by the vast forces swirling around her, and seeming to believe, a modern-day Mr. Smith, the system would work and honorable people would empower her, not use her. As the day ends and we move into the nightly news cycle, no one in America will have the conversation they need to about whether the Democrats’ ends justify their means.
The final question goes beyond what happens to Kavanaugh. Will the same strategy the Democrats ran and lost on in 2016 — Trump and his people are pigs, vote for someone else — serve them any better in November than it did this week?
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Requiem for Justice: “Credible Accusation” and Brett Kavanaugh
Without the votes to reject Brett Kavanaugh, and after a failed Spartacus stunt or two, a strategy ripe for 2018 emerged– he’s a witch! How do we know he’s a witch? Just see how vehemently he denies it!Well, maybe not a witch, that’s so 17th century. But a rapist is 2018, where a Resistance-charged #MeToo mob can be convinced denial is proof of guilt and evidence is unnecessary.
(This is published before the testimony of Professor Ford and Judge Kavanaugh on September 27)
Though we will somehow move on from Kavanaugh no matter the ending of his confirmation, those problems do not go away gently. Like those claiming it’s great news the First Amendment doesn’t apply to private companies, allowing non-progressives’ free speech rights to be dumped in the trash, claiming because Kavanaugh’s confirmation wasn’t a trial anything goes – particularly the weaponized use of “credible accusations” — is making us incapable of rational participation in civic life.“Credible accusation” is not a legal standard. But in 2018 politics “credible” has become a pseudo-standard with enormous power handed essentially to a mob buttressed by traditional and social media, especially when coupled with another new hashtag standard, #BelieveWomen (morphing into the more dramatic #BelieveSurvivors.) They are meant in the best of intentions to correct injustices of the past. They are used now under the worst of intentions as political weapons. No past mistakes are resolved by defining credibility as an emotional reaction to an accuser’s story, twisted for partisan political ends.
How partisan this all is is made clear when the new rules are applied only in cases of sexual assault. We are not admonished to believe women are more accurate witnesses in income tax fraud cases, even against white male Republicans. We are not told to believe women face no challenges of politically motivated accusations around shoplifting incidents. We are not admonished to believe women are incapable of lying, misremembering, exaggerating or making a mistake in water rights disputes.
This all allows a unitary actor declared “credible” by default (there seems to be no allowance for a non-credible accusation of sexual assault in 2018) to initiate harm simply by pointing a finger. It really is conceived by progressives as just that easy: “Even if it wouldn’t support a criminal conviction or civil liability, a merely credible allegation is enough to disqualify him,” wrote the New York Times.
And when the public tires of the one accuser, dig around until you find another. Send Michael Avenatti, the Fagin-like wrangler of Trump-era accusers, to round up as many as needed. Without the need for corroboration, they are not hard to find in bulk. Under the Kavanaugh standards, nearly any person can destroy anyone among tens of thousands of people they went to high school or college alongside of, or ever worked with. Not convinced? In the comments below, leave the details of your next scheduled job interview. And then be prepared to prove you were not in a specific room four decades ago if you want the job, because someone might make a call.
Of course these are confirmation hearings, not a trial, some say, gleeful the written rules of law don’t apply and they are free to create new standards and expedient practices to fit the needs of the moment. But that is a gross misunderstanding of the “rule of law” which will haunt America past Kavanaugh.
Like free speech, fairness, and justice, rule of law is a philosophy that underlies a just society, not merely something partially codified in dusty books. Rule of law is a way of living together under a known set of standards, equally applied, with changes broadly supported. Things like the accuser rightly bears the burden of proof. Jobs, respect, property, and freedoms are not taken away by accusation. Claims of innocence are not treated as proof of guilt.
In Kavanaugh’s case, no evidence has been presented other than the accusations themselves. Whether written to a Congressperson, told to a therapist, or mumbled to a friend, in the end the circle is a circle that points back to a single person, the accuser herself. That’s repetition, not corroboration. Kavanaugh stated the events did not happen. For the past four decades there was no “she said” until a handful of Democratic senators forced Kavanaugh to deliver a “he said.”
With Kavanaugh, his unambiguous denials are by definition not credible, as the inverse of Believe Accusers is to Disbelieve the Accused. Kavanaugh has been repeatedly asked for more details, somehow a more persuasive denial, of something he says never happened. The task set before him was to prove a negative, then do it again when a new accuser was produced with an even vaguer scenario from years ago. Give us more details of the trip to Paris you never took!
We were warned. Franz Kafka, in The Trial, has his main character, known only as K, taken to jail without ever being told what his crime might have been. “I’m not guilty,” said K. “There’s been a mistake.” “That is how the guilty speak,” replied the priest counseling him.
It seemed any defense at all was wrong. “Though Kavanaugh has been careful not to slime Ford, his denial of the incident impugns her anyway,” wrote the Atlantic. When asked if there was anything a truly innocent Kavanaugh could do to prove his innocence, Senator Tim Kaine replied: “That’s kind of very hypothetical.” Jennifer Rubin in the Washington Post claimed it didn’t really matter what Kavanaugh said, it wasn’t even in his hands: “It’s not simply that Kavanaugh must be convincing — Christine Blasey Ford has to seem unconvincing.” Matthew Dowd at ABC took that even further and claimed it didn’t matter what either party testified, simply that “Let’s believe the she… For 250 years we have believed the he in these scenarios. Enough is enough.”
Reason and judgment become subordinate to a social and political agenda. The point is to take advantage of alleged victim-hood before it’s been proven, to use assumed victim-hood to shut down questioning whether there even is a victim. In this mindset Kavanaugh should have been finished months ago when the first accusation appeared anonymously, or maybe it was really all over in 1982 that very night at the high school party, and the rest of this, including his decades on the bench, has been unnecessary epilogue.
It all tracks with a dire situation in our society where people are increasingly unable or unwilling to listen to different viewpoints as forces inside America have succeeded in turning people against the once-sacred ideal of free speech. Now, speech, fairness, and justice are no longer goals or ideals, just tools to be manipulated expediently to serve political ends. “That’s offensive!” (or sexist, or racist) is an accusation, but it is also understood as evidence itself of the truth of the accusation; why would the accuser be motivated to lie? Aren’t all opinions valid, even if the opinion becomes an accusation? How can a self-absorbed individual leave mental space for her own thoughts to be… wrong? The accusation is enough to demand resolution. Take that and expose it to shrewd Democratic politicians and you get the Kavanaugh confirmation process. And likely the next one, too.
This is very dangerous territory for a nation claiming to fear the loss of the rule of law. In the worst days of racial injustice, evidence-free accusations of rape from a white woman sent groups of black men to be lynched, her testimony as unquestionable as virtue itself. During the McCarthy era, mere accusations of communist ties were used to destroy political enemies; questioning that meant you were unpatriotic. Scholars find evidence accusations during the infamous Salem witchcraft trials were used to settle land disputes, with questioning the accusers seen as a direct affront to God. In my time in Iraq, an accusation of al Qaeda affiliation from a tribal leader being courted by the U.S. could bring a Special Forces night raid down on a neighbor of his choosing. There are dark lessons here.
The Democrats have managed in about a week to take the very serious business of #MeToo and turn it into a partisan weapon. In the extreme, they propose no common humanity, simply a society of rapists and their enablers, and victims and their allies. Kavanaugh, the recent process demanded, is more than unqualified for the Court; he is a rapist and liar, unqualified as a human being. Which side will you vote for? It might create a Blue Wave, or it might drive people to vote Republican as a matter of self-defense, more soul-crushing negative partisanship to the body politic.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Flying Over the Purple Midterms
That slack-jawed yokel look on my face is because I just came back from a wedding and some visits in flyover country, turning the last few days into a highly unscientific survey of old friends and new relatives who’d talk politics with me.
It was easy, as the media had already slugged my pickup line into the same category as weather, local sports, and whether the buffet chicken was any good: whattya think, is Trump’s craziness gonna lead to big gains for the Democrats in the November midterms?
I grew up in Ohio, and have written about the flyover voter ahead of the last election, and in a book. Now once again these voters matter. As a bug-eyed Doc Brown preaching from his stool at the open bar would put it, 2020, and the future itself Marty, depends on 2018! If Democrats flip the House by taking 23 seats away from Republican incumbents, they can block appointments, investigate everything in a Benghazi-like loop, and even impeach Trump, paving the way for Elizabeth Warren’s victory dance.
But for that Blue Wave to reach shore, a bunch of Republicans need to vote Democrat and the New Democratic Base, young people and a list of minorities longer than a CVS receipt, must vote in numbers never before seen. That second part of the plan has its own questions. But my recent travels make it pretty clear depending on a wave of Republicans to vote Democrat, primarily because they no longer support Trump, is out to sea.
It’s not that Trump is so popular. I met plenty of people as ideologically committed, albeit 180 degrees to the right, as their East Coast vegan socialist cousins. But most of the people I spoke with would be better described as light purple voters. More than a handful enthusiastically voted for their first-ever Democrat in 2008, then backed away from Obama in 2012, before returning to the Republicans, albeit Trump, in 2016. The idea today is Trump’s boorishness will send them back to Democratic candidates.
Or maybe not. The endless stream of Trump atrocities large and small talked about on Sunday morning TV is not what voters were talking about. Everybody knew Stormy but nobody cared; they had processed Trump’s affairs in 2016 and that makes that old news even if it’s still on Maddow every night. It seems like a new low is declared every day. In response to the daily bombing run of hall monitor gossip, one person said “I get it, I don’t like what he says all the time either, but let the man try and do his job, enough already.” It’s like buying outrage in bulk at Costco; at some point you realize a five pound shaker of nutmeg is too much to deal with and you hide it in the garage.
Out here candidates are not described as fierce or nasty. Social media is for kids and cats, marches for folks who don’t have to work a weekend second job. Racism and pronouns matter, but only after figuring out how to pay for healthcare. Anything else stinks of elite indifference from people whose pensions didn’t disappear in the last merger. There is a sense being black, brown, gay, Muslim or female is not by itself a qualification for office. There is uncertainty over too easily excluding men, old people, straight people, entire regions of the country, until most everyone was, or cared about someone who was, deemed unworthy. Not status anxiety, more a sense of what used to be a difference of political opinion now making someone illegitimate as a person – “deplorable” came up more than once.
So it’s not all about Trumpism. And where it is about him, most support a part of Trumpism that hits them financially.
Democrats campaigning against the economy? It matters, however modest and fragile, that median household income rose 1.8% and poverty declined .4% under Trump. Anything that brings a nose above water is really good for that voter. Economists misunderstand it as a bad thing most middle income families are only now clawing back to 2008 levels, while most middle income families see that as a pretty good thing, finally. I heard the word “results” a lot. “Optimism” is about the future same as voting, and it counts as much as “hope” once did.
Telling people economic progress is a result of the former administration is a punch line. It is hard to overstate how deeply these Americans despise the Obama response to their 2008 financial crisis. Many saw the value of their homes, the largest investment they will ever make, dramatically decrease. They don’t own much stock outside of a flaccid IRA, and so benefited little from a recovery that bailed out Wall Street. Obama’s decisions are still not done with them ten years later, because their retirement is based on home prices rising enough so a downsizing sale will cover late-in-life costs.
When people are excluded from the most important decisions affecting their basic livelihood, they lose faith. That bitter lived experience fueled distrust and an ideological drift that manifested itself in electing Trump. I didn’t hear that distrust has dissipated enough for many who did first voted Democrat in 2008 to do it again in six weeks. Many of the people of color I met felt the same way as their white neighbors. Having started at the same place in the factories, and fallen together into being poor and white, or poor and black, they ended up in the same ironic state of equality. A big difference however is black frustration often shows up as low voter turnout, while whites vote Republican.
These are a practical people, who in one Kansas author’s words “speak a firm sort of poetry, made of things and actions.” It wasn’t racism or Russian Facebook ads; ask and these people will give you the specifics. While darkly certain all politicians will always hand them some version of the dirty end of the stick, the people I spoke with at least felt they understood what the Republican candidates would give them. With an eye on the 2008 bailout, they seemed less sure of the Democratic side.
I didn’t see what the New York Times thinks it sees, “Democrats Embrace Liberal Insurgents.” I didn’t find many people looking for the local version of Alexandria Ocasio-Cortez, though I found a lot of people who asked me “Alexandria who?” People said if someone promises Medicare for all, they need to also hear how she planned to deliver. Because unlike folks who tweet about it from Brooklyn, these are the people who still try, or in some cases, tried and failed, to get healthcare instead of just insurance out of Obamacare. They remember not fixing that system was part of the Democratic platform and question changes of heart that coincide with changes in polling.
You don’t have to always understand it but you have to realize there are ground truths present. Social Security, the Earned Income Tax Credit, and housing assistance are a way of life now. One can accept food stamps but still think handouts are for lazy people. People can feel cheated working for minimum wage at a Walmart full of junk made overseas without being anti-immigrant racists. Trump understands all this viscerally better than many Democrats now speaking for their party, and people in return ignore a lot of other things. People seem likely to vote Republican even if they don’t support Trump in 2018. Democrats used and lost the “better of two evils” argument in 2016.
So polls asking if a midterm voter supports Trump, or approves of his performance, may be asking the wrong question. If Democrats insist on November being Trump vs. Trump, a referendum on the first half of his term to see if he gets to play out the second half, all without themselves bringing something new and real forward, they may not like the answer voters give.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Enough Gossip. Where are the Trump Whistleblowers?
As a federal whistleblower who lost his career to tell the truth about the Iraq war publicly, I am burdened by how the interviewees in Bob Woodward’s new book, Fear, and Anonymous, that New York Times “resistance” Op-Ed author, have been hailed in heroic terms.
Many see them as patriots “resisting Trump” from the inside, holding back his worst impulses through fibs and bureaucratic tricks, being the clandestine adults in the room. Having faced similar choices, I know their approach is neither honorable, nor effective. In the past the more common word applied to such officials would have been insubordinate.
No one should join government to do only things they think are personally right; one serves the United States, and takes an oath to a Constitution which spells out a system of government and a chain of command running from the president. There is no addendum saying “but if you really disagree with the president it’s OK to do what you want.” In many military offices, the chain, from president to the lowest officer present, is literally displayed on the wall via pyramided portraits of those specific men and women; the blank space at the end is “you.”
This is not to support robotic bureaucrats. But ideas, no matter how vigorously debated or opposed, at some point change from being Trump’s or Obama’s policies to those of the United States. Implementing them on a global scale, whether on a battlefield or across a negotiating table, is a team sport. Any other way is to bring on the chaos Anonymous claims to be pushing back against.
I served 24 years in such a system, joining the State Department under Ronald Reagan and leaving during the Obama era. That splay of political ideologies had plenty of things in it to disagree with or even believe dangerous. Same for people in the military and the intelligence agencies, who, for example, were sent to train Afghan mujaheddin under one president and then kill them under another, more significant than wonky disagreement over a trade deal. An amoral president, in Anonymous’ words? How about one who set Americans to torturing prisoners to death?
In the run-up to the invasion of Iraq in 2003, some inside government were privy to information about the non-presence of weapons of mass destruction, and understood the president was exaggerating the case for war if not lying about it. Three senior officials resigned from the State Department and left a clear marker in the history books the policy was wrong. Another State Department official, a former Marine, resigned in protest over the war in Afghanistan. He stated in the New York Times (a signed letter, not an anonymous Op-Ed) “[I] tried and failed to reconcile my conscience with my ability to represent the current administration. I have confidence that our democratic process is ultimately self-correcting, and hope that in a small way I can contribute from outside.” More than a decade earlier, four State Department officials quit over the Bosnian conflict, also via public letters of resignation.
Others who believed a president’s decisions were harmful to the United States blew the whistle, making public information at the cost of their jobs and/or freedom to build an evidence-based case. Chelsea Manning spent years in prison to expose war crimes, Ed Snowden ended up with a lifetime in exile to inform the public of NSA policies threatening Constitutional freedoms. For me, I chose to write a whistleblowing book exposing the failed reconstruction efforts in Iraq I once helped lead, and lost my career in return.
The consistent threads are important: disagreements over policy, many involving millions of lives, are not new or unique to the Trump administration. Nor are questions of competence: Reagan was thought to be senile, Bush a dolt. Challenges to conscience were answered by good people who believed enough in the United States that they placed their lives, fortunes, and honor as collateral toward being listened to. Challenges to conscience were not thwarted by working from deep inside government to surreptitiously ruin policy.
Until now, at least according to Anonymous’ Op-Ed and Woodward’s book, Fear. Anonymous claims they disrupted things without giving any details; we’re to assume whatever they are doing, accountable to no one, must be better than anyhing Trump wants. Woodward claims Jim Mattis put a Resistance-like stop to Trump’s demand to assassinate Syrian President Bashar Assad, though Mattis denies it. Of course the order to kill, if it occurred at all, would have been illegal and thus require anyone in government to refuse it. No resistance there, simply someone following the law.
About the only actual act of “resistance” to examine comes from Woodward’s book. Gary Cohn, Trump’s former economic adviser, supposedly walked into the Oval Office and snatched a letter off Trump’s desk saying the United States was pulling out of a trade agreement with South Korea. Cohn thus stopped Trump from signing the document after he never noticed it missing.
The story is almost certainly untrue; “decision paper” for signature going in and out of the Oval Office is tracked assiduously by White House staffers. Stuff doesn’t just go missing, and if it does, someone looks for it; I know, I held just such a job working for the American Ambassador in London. It’s like tearing up a credit card bill thinking the debt will go away. And that’s before getting into how few people the Secret Service lets drop by the Oval Office and grab stuff off the Resolute desk.
But even accepting Cohn pulled off his heist, is protecting a trade agreement the act of resistance America demands? Reading the actual letter, Trump’s intent was to make a threat of withdrawal, taking advantage of an 180 day delay in implementation to force new negotiations. Trump campaigned on just such promises. There was no madman with his finger on a button. Cohn didn’t agree with his boss (or the results of an election.) That’s not patriotic, it’s a disgruntled employee.
As to the claims Trump is uniquely too stupid to be president, John Kelly, like Mattis, denies he said anything of that to Woodward (in kindergarten did to, did not style, Woodward called Mattis a liar for calling Woodward a liar.) As with Michael Wolff’s nearly-forgotten book which spurred the last round of calls for the 25th Amendment to oust Trump eight months ago, there is no evidence of actionable insanity or stupidity. It’s all circular reinforcement, unnamed voices repeating things heard before, backed by psychiatrists who never met the president claiming he is insane, and enhanced by shock jock pundits reading tweets like a fortune teller reads goat entrails. Almost two years now of the world and democracy not ending have diluted claims this president is a unique danger.
Until now the people working for presidents as different as Reagan was from Obama understood, as I did, the only way for America to function credibly was for us on the inside to work on her behalf until we couldn’t, and that meant following the system created by the Constitution, remembering we weren’t the ones elected, that we ultimately worked for those who did the electing, that there is no “But Reagan/Bush/Clinton/Bush/Obama/Trump is different…” clause in the Constitution. We understood acting as a wrench inside the gears of government to disaffect policy (the Washington Post warned with some apparent glee “sleeper cells have awoken”) is what foreign intelligence officers recruit American officials to do. Instead, we argued inside our offices, we dissented via internal channels, and for some, we resigned or blew the whistle to credibly and effectively force the issue into the public eye.
So let one of the people inside government who believes America is at mortal risk do something more than gossip to their favorite journalist to keep detrimental memes alive for another painful news cycle– resign, testify, and bring out the documents as proof to separate yourself from the partisan operatives. That person of conscience need not be a Cabinet secretary; Chelsea Manning was a private. Snowden a contractor, not even an NSA employee. “We never should have heard of them,” said a 1993 story in the Washington Post about those State Department Bosnia dissenters. “They were mid-level bureaucrats, dots in the State Department matrix. But they’ve gone and done something extraordinary in Washington: They quit their jobs on moral grounds.”
Until any of that happens, we shouldn’t waste another moment on anonymous resisters and unnamed/uncredible sources, whether they write in the Times or show up in books by Woodward or Wolff. America, if she truly is at grave risk, is more important than a job in the West Wing. Stand up if the threat is real, shut up if it’s not.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
I Sorta Know Who Wrote That Anonymous NYT Op-Ed
That anonymous New York Times Op-Ed writer inside government thwarting Trump’s plans does not understand how government works. Amplified by worn accusations in Bob Woodard’s new book, the Op-Ed is nonetheless driving calls for Trump’s removal under the 25th Amendment to save America. But look closer: there are no patriots here, and little new; it’s all nasty politics.
You don’t join government to do whatever partisan thing you think is right; you serve the United States, and take an oath to a Constitution which spells out a system and chain of command. There is no Article 8 saying “but if you really disagree with the president it’s OK to just do what you want.”
I served 24 years in such a system, joining the State Department under Ronald Reagan and leaving during the Obama era. That splay of political ideologies had plenty of things in it my colleagues and I disagreed with or even believed dangerous. Same for people in the military, who were told who to kill on America’s behalf, a more significant moral issue than a wonky disagreement over a trade deal.
But the only way for America to function credibly was for us to work on her behalf, and that meant following the boss, the system created by the Constitution, and remembering you weren’t the one elected, and that you ultimately worked for those who did the electing. There were ways to honorably dissent, such as resigning, or writing a book with your name on the cover (my choice) and taking your lumps.
But acting as a wrench inside the gears of government to disaffect policy (the Washington Post warned “sleeper cells have awoken”) is what foreign intelligence officers recruit American officials to do, and that doesn’t make you a hero acting on conscience, just a traitor. It seems odd someone labeled a senior official by the New York Times would not understand the difference before defining themselves forever by writing such an article.
So don’t be too surprised if the author turns out to be a junior official not in a position to know what they claim to know, a political appointee in a first government job reporting second- or third-hand rumors, maybe an ex-Bushie in over their head. That will raise important questions about the Times’ exaggerating the official’s importance, and thus credibility, and whether anonymity was being used to buff up the narrative by encouraging speculation.
Next up to sort out are the “new” facts forming the underbelly of calls to end the Trump presidency. The Op-Ed’s release was set by the Times to perfectly dovetail with Bob Woodward’s new book, Fear (It would be interesting to know how much was created by the Times — did contact with the author cause the Times to encourage them to write? Did they have to be persuaded? How much editing was done? How far from the role of journalist into political activist did the Times stray?)
Neither the book nor the Op-Ed breaks any new ground. Both are chock full of gossip, rumors, and half-truths present from Trump Day One and already ladled out by Michael Wolff’s own nearly-forgotten book and Omarosa’s unheard recordings: the man is clinically insane, mind of a child, acts impulsively, and is thus dangerous. Same stuff but now 18 months shinier and sexier – Woodward! Watergate! Anonymous! Deep Throat! It’s clever recycling, a way to appear controversial without inviting skepticism by telling people what they already believe because they’ve already heard it. What seems like confirmation is just repitition.
The stuff is chock-a-block with accusations (“Trump is not smart“) denied by those quoted (Jim Mattis and John Kelly, for example.) But one new item, the claim Gary Cohn, Trump’s former economic adviser, walked into the Oval Office and snatched a letter off Trump’s desk, suggests how sloppy the reporting is. Cohn supposedly stopped Trump from pulling out of a trade agreement with South Korea by stealing an implementing letter, preventing Trump from signing it. Woodard writes Cohn did the same thing on another occassion to stop Trump pulling out of NAFTA.
“Paper” inside government, especially for the president’s signature, does not simply disappear. Any document reaching a senior official’s desk has been tasked out to other people to work on. The process usually begins when questions are asked at higher levels and then sent down to the bureaucracy; no president is expected to know it’s Article 24.5 of an agreement that allows withdrawal. That request creates a paper trail and establishes stakeholders in the decision, for example, people standing by to implement a decision or needing to know ahead of negotiations with Seoul POTUS changed his mind.
So paper isn’t forgotten. I know, I had a job working as the Ambassador’s staff assistant in London where most of my day was spent tracking letters and memos on his behalf. Inside the State Department an entire office known as The Line does little else but keep track of paper flowing in and out of the Secretary of State’s actual In/Out boxes. This isn’t just bureaucratic banality at work; this is how things get done in government, as documents with the president’s signature instantly turn into orders.
So even if, playing to the public image of a dotard-in-chief, Trump didn’t remember calling for that letter on South Korea, and thus never missed it after Cohn allegedly stole it to change history, a lot of other people would have gone looking for it. Stealing a letter off the president’s desk is not the equivalent of hiding the remote to keep grandpa from changing channels. And that’s to call the claim absurd even before noting how few individuals the Secret Service allows into the Oval Office on their own to grab stuff. While the example of the stolen letter is a bit down in the bureaucratic weeds, it is important because what is being widely reported, and accepted, is not always true.
The final part of all this which doesn’t pass a sniff test is according to the Op-Ed, 25th Amendment procedures to remove the president from office were discussed at the Cabinet level. The 25th, passed after the Kennedy assassination, created a set of presidential succession rules, historically used for short handovers of power when a president has gone under anesthesia. Most relevant is the never-used full incapacitation clause.
An 2018 interpretation of that clause made popular by TV pundits is now the driver behind demands that Trump is so stupid, impulsive, and insane he cannot carry out his duties, and so power must be transferred away from him today. While the Op-Ed writer says the idea was shelved only to avoid a Constitutional crisis, in fact it makes no sense. The 25th’s legally specific term “unable” does not mean the same thing as the vernacular “unfit.” An unconscious man is unable (the word used in the Amendment) to drive. A man who forgot his glasses is unfit (not the word used in the Amendment), but still able, to drive, albeit poorly.
The use of the 25th to get Trump out of office is the kind of thing people with too much Google time, not senior officials with access to legal advice, convince themselves is true. The intent of the amendment was to create an administrative procedure, not a political thunderbolt.
But intent aside, the main reason senior officials would know the 25th is not intended to be used adversarially is the Constitution already specifies impeachment as the way to force an unfit president out. The 25th was not written to be a new flavor of impeachment or a do-over for an election. It has to be so; the Constitution at its core grants ultimate power to the people to decide, deliberately, not in panic, every four years, who is president. Anything otherwise would mean the drafters of the 25th wrote a backdoor into the Constitution allowing a group of officials, most of whom were elected by nobody, to overthrow an elected president they simply think turned out to be bad at his job.
The alarmist accusations against Trump, especially when invoking mental illness to claim Americans are in danger, are perfectly timed fodder, dropped right after Labor Day into the election season, to displace the grinding technicalities of a Russiagate investigation. Political opponents of Trump had been counting on Mueller by now to hand them November amid a wash of indictments, and thus tee up impeachment with a Democratic majority in the House.
Since Mueller, alongside economic collapse at home, trade wars everywhere, a nuclear arsenal as yet un-unleashed, war with North Korea and Iran, have all failed to materialize, and lacking much of unified theme themselves, for Democrats it’s making the midterms Trump vs. Trump, with the carefully timed help of the New York Times. The Op-Ed does indeed signal a crisis, but not a Constitutional one. It is a crisis of collusion, among journalists turned to the task of removing a president via what some would call a soft coup.
Because it’s either that, or we’re meant as a nation to believe an election should be overturned two years after the fact based on a vaguely-sourced tell-all book and an anonymous Op-Ed.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Was Bin Laden Right About 9/11?
(A reprint of my 9/11 article from 2016…)
OK, ok, serious now. It’s been 15 years now people, so we can talk about this kind of thing, ‘kay? That’s what anniversaries are for, after all.
Peter Bergen, at CNN, who is often the sanest clown in the CNN circus, tell us that al Qaeda really blew it on 9/11.“Like the attack on Pearl Harbor,” says Bergen, “9/11 was a great tactical victory for America’s enemies. But in both these cases the tactical success of the attacks was not matched by strategic victories. Quite the reverse.” He goes on to remind us the U.S. totally kicked Japan’s butt.
Now it can get a little fuzzy when you try to jam 9/11 and al Qaeda into the Saving Private Ryan narrative framework. So it’s important to understand what Bergen thinks al Qaeda’s goal was with the attacks 15 years ago. I’ll quote him so when I call him an idiot a bit later, you’ll understand my reasoning:
“Bin Laden believed that al Qaeda’s attacks on New York and Washington would result in an American withdrawal from the Middle East. Instead, the United States quickly toppled the Taliban and al Qaeda… The United States not only did not reduce its influence in the Middle East, but it also established or added to massive bases in Bahrain, Kuwait, Qatar and the United Arab Emirates. And, of course, it also occupied both Afghanistan and Iraq. Bin Laden’s tactical victory on 9/11 turned out to be a spectacular strategic flop.”
Um, OK.
Bergen is an idiot. Al Qaeda got much, much more than it ever hoped for out of 9/11, and Bergen’s silly retelling of al Qaeda’s goals is part and parcel of what drives American foreign policy off a cliff on a daily basis in the Middle East.Japan was a nation set on territorial conquest in WWII. It bombed Pearl Harbor to destroy as much of America’s Navy as it could to buy itself as much time as it could to conquer as much as it could across the Pacific before America got back on its naval feet. Standard war as it has been since Caesar.
Terrorists fight a different war, a political one. They don’t have navies. They have guys who hijack planes.
Quite the opposite of what Bergen says, bin Laden did not want America to withdraw from the Middle East, he wanted to pull America into a Middle Eastern quagmire as deep and sticky as possible. This would drive recruits to al Qaeda’s cause, establishing with global certainty the west was at war with Islam.That worked; see Islamic State, and the way war and chaos has spread from edge-to-edge in the region, as well as the presence of so-called lone wolves in the U.S. and Europe. And remember, on 9/11, Iraq, Afghanistan, Syria, Yemen and Libya were all stable countries and there were no lone wolves in California and Florida.
Bin Laden did almost blow it. He expected the west to bog down in the graveyard of Afghanistan very quickly, but that didn’t happen. The early successes that drove the Taliban out of governing and into the mountains were done with very few troops and relatively clean bombing attacks. It was after that the Afghan war grew messy, when reconstruction and democracy and all that became the new goals interlaced with the U.S. having new tolerance for the nasty bastards running Pakistan.
And, of course, the crown jewel of bin Laden’s success, still giving, was the invasion of Iraq.Bush’s invasion of Iraq was so transparently pointless to everyone but most Americans that it made concrete all the things bin Laden was saying: America was at war with Islam, America sought to conquer the Middle East, America wanted the oil, and so forth. But even bin Laden could not have hoped for the free gifts his cause got out of the invasion: the chance for al Qaeda to set up shop in Iraq, the massacre at Fallujah when the Marines reduced the city to medieval rubble, the images of torture from Abu Ghraib, the jihadi training grounds at prison Camp Bucca, and, of course, the overall Sunni-Shia clusterf*ck the invasion ended up as. You know, the one that is driving the current ISIS war today.
And never mind the U.S. destruction of the Libyan state, America’s clumsy hand in crushing the Arab Spring, the growth of Islamic State and the little wars between the Turks and the Kurds, in Yemen, and more to come. Chaos and failed states favor the terrorists.
As Canadian historian Gwynne Dyer, a guy we all should be listening to said, “It is hard enough for Westerners to recognize that their attackers actually have a coherent strategy and are not simply mad fanatics motivated by hatred. To accept that these terrorist attacks are not really about Western countries at all, but merely an attempt to use the overreaction of Western countries to create change in the Middle East, is beyond their understanding.”
What Peter Bergen cannot seem to understand himself is bin Laden was practicing a kind of tough love when he staged the 9/11 attacks, to bring the wrath of the United States down on innocent Muslims to radicalize and politicize them. It is, bin Laden (and now ISIS) believe, for their own long-term good.
We’ll need to wait longer to find out if the U.S. will ever get it. See you next year for the next anniversary of 9/11.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Red Pill, Blue Pill… No, Take the Yellow Pill: I Watch Mainstream Media News
Take the Red Pill some say, see the world as it is. No, the Blue Pill, stay comfortably numb in the Matrix. Well, I had some sweet yellow ones during a week flat on my back in the hospital with little to do but watch TV news. Mainstream media, the stuff I otherwise never watch. I learned as long as you don’t change channels, everything makes sense.
At least until a very nice nurse brought those little yellow pills every four hours, which made me lose track. She usually switched channels for me at the same time, like shifting my bottom around to avoid bed sores. That’s where things got confusing.
I quickly lost track — who are we counting on to save America? Is it the porn star trying to revive her career, the lawyer who lied for years now trying to save himself hinting outside of court he knows something, or the editor of the National Enquirer who literally invented fake news for the late 20th century? Through my pharmacological haze, it was difficult to grasp how quickly the media flipped their opinions when a person told us what we wanted to hear — who would have imagined Omarosa on CNN to “bring down Trump?” She went from being Uncle Tom to the star of BlacKkKlansman before I was allowed to use the toilet without a nurse present. It’s almost as if we all vaguely recall out of a little yellow pill haze we weren’t at war last week with Eurasia when the news has made clear we have always been at war with Eurasia.And did you know Trump’s taxes are locked in the vault at Gringotts? It wasn’t “news” but several channels featured tax return stories anyway. As best I could tell no one on TV seemed to know the IRS has all of Trump’s taxes, has audited him many times, and that his tax records are and always have been available by warrant to law enforcement. They appear unaware Trump’s taxes are in fact an open book, albeit one they personally can’t check out of the hospital library. They are certain a bunch of 27-year-old Park Slope “journalists” who probably file 1040EZs will find what has been missed over decades by all those professionals. A 1099 from Putin? More after this message and yes, doctor, I agree, my pain does seem worse, better up the dose…
TV says with great certainty the Trump presidency will end very soon; I really didn’t expect it to outlast my hospital stay and was briefly excited there’d be a cheaper health care system before I was discharged. Nearly every channel said we’d entered a new round of “it’s over,” or claimed “tick tock,” or the walls were closing in — Mueller time! There was actually mass-scale wishful thinking for a national tragedy of any sort to hasten this. There was even a race among channels to grow the death toll in Puerto Rico from a year ago, so much so they invented a new thing called “excess deaths.” Who knew?I learned apparently all Russians making more than minimum wage are oligarchs. And everyone in Russia over 18 is connected to Russian intelligence, and said to be close to Putin. Drug-addled, my brain tried to convince me Russia was a much smaller place than I remembered it as.
Also Cohen was going to flip, and maybe Don, Jr. or even Ivanka to save themselves, just wait. But the main thing that apparently had flipped was the House. I only found out later this actually did not happen, but you’d forgive me for believing it, because while it may have been the fever thinking for me, it all seemed to get more certain as I drifted from the Afternoon Blonde to the Evening Gray of Wolf to Anderson to Cuomo, a succession of gas station glory hole mouths. There was a primary, or maybe just a show of hands among twenty people somewhere, said Maddow, emphasizing I should listen closely because things are moving fast now, THAT IT COULD HAPPEN, meaning DemsWouldTakeHouseImpeachTrumpAbolishICEHangPenceRenameWashingtonDClinton.
As the nurse with the little yellow pills started dropping by less often as I recovered, I started to understand the news was less about reporting what happened and more about creating the image we are on an inevitable path to Trump’s legal collapse, his mental collapse, or impeachment for… something, we’ll figure the details out later, just accept there is a crisis. That’s when I got it: it’s not about information, but persuasion. I wasn’t an audience, I was raw material.I sort of remembered during the lulls of “ask your doctor about…” prescription medicine commercials that in my non-writing day job I speak with people from the midwest, and the middle west and south, people with AOL addresses and landlines, people to whom New York City is as foreign a place as Tokyo. Though I don’t know if they’ll vote Republican or stay home, they will never vote Democrat, at least not the identity politics “socialist” flavor-of-the-month Democrat emerging in 2018. They aren’t racist or hateful people, but they certainly see those problems falling well below the economy when it comes to what matters. And not one believes the Russiagate story in whole. I didn’t see a lot of TV reflecting those voters; actually most of the news I saw was sculpted to say those people matter less all the time. This is all their fault, anyway. I have to remember to let them know.
People on TV don’t seem to care their doomy predictions have not happened even as they still insist they will. It’s kind of like hoping fireworks shot into the night sky, having once popped and sang — Ohhhh! — will somehow do it again even as the sparks die out. Hours of TV make it is clear Trump — the fact that he exists at all — is so central to how the media view the world now they cannot see past their loathing and even briefly remove that loathing from the analytical equation of what’s happening. The media live forever with 2016’s broken heart; it never healed but instead of getting back out there to date they want you to feel the pain, too. Luckily I fell asleep each evening before the late night shows came on or I’d have been moved to the intensive care unit, if not psych.
Facts and assertions and opinions and reports from sources and we heard and according to reports are all jumbled now into the same thing. The burden of proof is turned around and placed on the unprepared viewer, so believing anything but what you’re told makes you the conspiracy theorist. Even with a volume control I could sometimes reach on the bedside table it was too loud to argue against. It became easier and easier to let the drugs slip to the foreground and mistake what I was made to feel for what I wanted to think.
What was left, in the words of one songwriter, was only seeing the shadow they intentionally left behind for me to find and follow. Thinking was hard. TV explained things slowly, so I could understand it in the way they wanted me to. It was easy and they wanted to make it easy. It was more like sports, with someone slapping down, dismissing, destroying, devastating, dissing, crushing or owning someone on the other side of an opinion.
I’m back home now, on the mend. The outrages from my hospital stay (Brennan’s security clearance, Cohen’s non-flip, trade war with Mexico, McCain’s flag at half-staff, Sessions/Mueller to be fired) are nearly forgotten. Red pill? Blue pill? I wish I had more of those little yellow pills.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The People v. Trump: Is There a Case for the 25th Amendment?
(This post originally ran in January, the last time “Use the 25th!” was trending.)The media is of one mind: Donald Trump is mentally incompetent and must be removed from office before he blows us all to hell. It says so on Vox, New York Review of Books, CNN, The Intercept, CNBC, The Nation, Bill Moyers, Salon, and the NYT. A new book, The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President, concludes “Trump’s mental state presents a clear and present danger to our nation and individual well-being.”
The solution is in the 25th Amendment to the Constitution. The 25A creates a mechanism aside impeachment to remove an “incapacitated” president, and Trump’s mental state, some believe, qualifies him. Is there a case?
Dr. Bandy Lee, one of the editors of The Dangerous Case of Donald Trump, says yes. Her primary evidence is tweets Trump sent threatening Kim Jong Un. She really has no other ammunition: no doctor who says Trump is insane, including Lee, has examined him. No doctor that has examined him says he is insane. Third party anonymous accusations of incompetence are shot through with gossip. A book written by a Hollywood trash reporter is otherwise held up as critical evidence of the inner workings of the president’s mind.
So is there a case without the tweets? Not really. Lee adds while Trump has not committed violent acts against himself or others, his “verbal aggressiveness, history of boasting about sexual assault, history of inciting violence at his rallies, and history of endorsing violence in his key public speeches are the best predictors of future violence” and thus concludes he will destroy the world. Lee also weakly points to Trump “being drawn to violent videos.” Oh my.
We might instead look at the actual decisions Trump has made, and those of his predecessors. One president used nuclear weapons to decimate two cities worth of innocents, and a set of presidents squandered hundreds of thousands of American lives watering Vietnam with blood. Ronald Reagan was famously caught over an open mic saying he was going to start bombing the Soviet Union in the next few minutes. Another president lied about WMDs to launch an invasion of Iraq in part to avenge his dad. The same guy mocked North Korea’s leader as a pygmy. Obama said he “will not hesitate to use our military might” against the North, knowing that meant Armageddon. Historical psychiatrists say half of our past presidents may have suffered some sort of mental illness. If Trump is dangerous as president, he seems to have company.
But how can we know? Trump will never voluntarily undergo a mental competency exam, though courts can order people to submit. But even Lee, who met with Congressional representatives to press the case Trump is insane, admits this is unlikely to happen. “Many lawyer groups have actually volunteered to file for a court paper to ensure that the security staff will cooperate with us,” Lee said. “But we have declined, since this will really look like a coup, and while we are trying to prevent violence, we don’t wish to incite it through, say, an insurrection.”
There doesn’t seem much of a case. Still, people arguing Trump is insane and must be removed from office point to the 25th Amendment to the Constitution as just what the doctor ordered.
The Constitution did not originally lay out (Article II, Section 1, Clause 6) what happens if a president dies or becomes incapacitated. It was just assumed the Vice President would serve as “Acting President.” The 25A, passed after the Kennedy assassination, created the first set of rules for this sort of situation.
The 25A has four short subsections. If the presidency goes vacant (for example, fatal heart attack), the vice president becomes president. If the vice-presidency goes vacant, the president chooses a new VP. If the president knows he’ll be incapacitated (unable to carry out his job, for example, due to scheduled surgery), he can voluntarily and temporarily assign his duties to the vice president. If the president is truly incapacitated (unconscious after an assassination attempt) and can’t voluntarily assign away his duties, the VP and cabinet can do it for him, with a two-thirds majority confirming vote of the House and Senate.
In the minds of the “Trump is Insane” crowd what matters most is that never-used fourth subsection, the incapacitation clause. People claim because Trump is insane he is unable to carry out his duties, and so Mike Pence, et al, must step in and transfer power away from him today. Trump would legally exist in the same status as Grandpa Simpson in the nursing home, and Pence would take over. Among other problems, this thinking imagines the 25A’s legally specific term “unable” means the same thing as the vernacular “unfit.” An unconscious man is unable to drive. A man who forgot his glasses is unfit, but still able, to drive. The 25A only refers to the first case.
The use of the 25A to dethrone Trump is the kind of thing non-experts with too much Google time can convince themselves is true. But unlike much of the Constitution, where understanding original intent requires the Supreme Court and a close reading of the Federalist Papers, the 25A is modern legislation. We know the drafters’ intent was an administrative procedure, not a political thunderbolt. The 25A premises the president will almost always invoke succession himself, either by dying in office, or by anticipating he will be unable to discharge his duties, as in 2007 when George W. Bush went under anesthesia for his annual colonoscopy and signed things over to his vice president for a few hours.
The reason the 25A is not intended to be used adversarially is the Constitution already specifies impeachment as the way to force an unfit president out against his will, his unfitness specifically a result of “high crimes and misdemeanors.” The people who wrote the 25A did not intend it to be an alternate method of impeachment or a do-over for an election.
It has to be so; the Constitution at its core grants ultimate power to the people to decide, deliberately, not in panic, every four years, who is president. Anything otherwise would mean the drafters of the 25A wrote a back door into the Constitution that would allow a group of government officials, many of whom in the Cabinet were elected by nobody, to overthrow an elected president who they simply think has turned out to be bad at his job.
Accusations of mental illness are subjective, unprovable in this case, and alarmist, perfect fodder to displace the grinding technicalities of Russiagate. Denouncing one’s political opponents as crazy was a tried and true Soviet and Maoist tactic, and a movie trope where the youngsters try to get the patriarch shut away to grab his fortune. We fear the mentally ill, and psychiatric name calling against Trump invokes that fear. “The 25th Amendment would require, for mental incapacity, a major psychotic break,” said one former Harvard Law School professor. “This is hope over reality. If we don’t like someone’s politics we rail against him, we campaign against him, we don’t use the psychiatric system against him. That’s just dangerous.”
People saying the president is mentally ill and the 25A is the cure know they have no rational basis for their position. They know the 25A is not a work-around for impeachment proceedings they are unlikely to see. They are aware they are unethically trying to medicalize bad leadership, damning it with the taint of mental illness. They know Mike Pence and Trump’s own cabinet will never sign off on a power transfer, and they don’t want Pence in the Oval Office anyway. They know this is all kabuki, liberal fan fiction, a shadow play. The talk of mental illness and the 25A is simply political sabotage ahead of the 2018 mid-term elections.
Trump’s time in office is finite, but what happens around him will outlast his tenure. It is dangerous to mess with the very fundamentals of our democracy, where the people choose the president, replacing that with a kabal called into session by pop psychologists. This is an attack on the process at its roots; you yokels voted for the wrong guy so somebody smarter has to clean up.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The Offending Tweets That Got Me Banned for Life from Twitter
A leaky little “bird” inside Twitter tells me these are the tweets that got me banned for life.I have no way of verifying this; official Twitter will not respond to my inquiries. I stand accused of dehumanizing several reporters (“targeted abuse”), using words to offend them into silence. It seems now you can judge for yourself, as it should be.
This whole series of threads started when Trump accused the press of being “enemies of the people,” followed by Glenn Greenwald reminding us how the media enables America’s wars.
The tweets about Sulome Anderson’s father, Terry Anderson, were cited as particularly offensive. If you don’t know his story, he was a journalist held hostage in Lebanon in the 1980s by Hezbollah. Sulome was in first grade when he was released.
It’s hard to avoid editorializing here, but I do want to point out how quickly the offended journalists and their friends tried to shift my words into “picking on women” and similar inaccurate accusations of misogyny. I’ll also point out Twitter allowed the journalists to freely dehumanize and insult me. Note also how these journalists react to a whistleblower confronting them with the admission government officials lie, and that they accept the lies. One of the journalists who attacked me, below, once even used me as a truth-telling source during the Iraq War. Oh well.
Click on each tweet to enlarge it.
NOTE: Blah blah, only part of the story, if those tweets are real, whatever. I’ll be happy to publish any official response from Twitter, any evidenced unofficial response, any evidence of altered tweets, and any additional tweets anyone can send me that enhance, enlarge, or refute the story. Your ball, push PLAY and go, or shut up.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
See Ya, John
It’ll always be too soon, won’t it?Glorifying McCain as a war hero allows us to imagine away the sins of Vietnam by making ourselves the victim. He encouraged unjust war in Iran, Iraq, Libya, Syria and more as a cornerstone of his career.
When given the chance, he sold out and took Sarah Palin as his Vice Presidential running mate, enabling a change in the GOP and political discourse we are still paying for and he is responsible.
As a victim himself of torture, McCain stood mostly silent when America tortured, finally mouthing some mild public platitudes while allowing the coverup to hide what we did. The American public knows 10x as much about McCain’s own torture as we do about what was done by American torturers to other human beings. Honor is not allowing torturers to go unpunished. Duty is not helping a coverup. Country deserves better from someone who knows better.
“But I believe he thought it the right action to take” is not something I think you’d be willing to say to the millions of relatives of the millions of war dead victims of McCain’s lust for war. Shall we go to Vietnam and tell them? Libya? Iraq? Easy to overlook all those bodies and all those orphans in dismissing McCain as a man of conviction. Honor? He immediately dumped the wife who waited for him while he was a POW for multiple affairs. McCain voted with Trump 83% of the time, kinda an odd score for a maverick. He wanted to be president bad enough – for his own glory – that he brought an idiot like Sarah Palin on as his VP choice, pure pandering to the trogs of the dark side his party. In his final act of faux bipartisanship, McCain planned for and set up his own multiple funerals as platforms for people to glorify his own image and mock Trump. Classy AF.
McCain allowed himself/profited from becoming a symbol and a myth. He positioned himself as a maverick and independent while towing the imperialist line for decades. I respect the things he endured as a prisoner. But his is a public life such that one can’t separate the individual out from the larger story at this point. I understand it is catechism to say only nice things when someone passes, but as long as people are going to turn McCain into something he wasn’t it seems useful to speak a little full-spectrum truth alongside that.
I’m sorry for his family, but the America he claimed to serve is served better by the truth than another politicized shadow of the truth.
Things that will be clearer someday: McCain voted with Trump. Millions of children and other civilians are dead and dying still today because of his advocacy for war. There is a meaningful difference between courage in surviving for oneself and courage to do brave things for others when the risk is a choice. When you are in a position to stop torture and don’t, and later in a position to expose torture and won’t, you are one of the torturers, too. RIP, Johnny. I’ll see you in a few years in hell.
(The photo is of McCain with Ambassador Chris Stevens, killed in Benghazi. McCain died with that blood on his hands.)
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Free Speech in Peril as #Resistance Hero John Brennan Loses Security Clearance
After leaking for a while, most boils dry up and go away. Not John Brennan.
After President Donald Trump revoked his security clearance last week, John Brennan arose as a Hero of Free Speech. On Twitter he announced in terms designed to stir the corpses of the Founding Fathers “This action is part of a broader effort by Mr. Trump to suppress freedom of speech. My principles are worth far more than clearances. I will not relent.” Twelve former senior intelligence officials agree, calling Trump’s revocation “an attempt to stifle free speech.”No less than Ben Wizner, a director at the ACLU, stated “The First Amendment does not permit the president to revoke security clearances to punish his critics.” Even Republicans like Bob Corker, the retiring Senate Foreign Relations Committee chair said “It just feels like sort of a… banana republic kind of thing.” For emphasis, Corker also said the revocation was the kind of thing that might happen in Venezuela. Referring to a list of other former Obama officials whose clearances Trump may revoke, Senator Mark Warner, the top Democrat on the Intelligence Committee, said “It was almost… a Nixonian enemies list.” Admiral William McRaven, former SEAL and bin Laden killing superhero said of Trump’s revocation “Through your actions, you have embarrassed us in the eyes of our children.” A letter to the New York Times demanded a military coup to end Trump’s reign.
Relax. The only danger here is to John Brennan’s credibility as a #McResistance-Pop Idol.Over five million Americans, more than the population of Costa Rica, Ireland or New Zealand, hold a security clearance. When a cleared person honorably leaves government, they usually retain their status. Ostensibly to allow them to be available to help out their successors, in fact most people depart with clearances as part of a gravy train. High level clearances take time and cost a lot of money to obtain. Retired, cleared, federal employees can instead slide into a range of contractor jobs, often at multiples of their old salaries. Others use their clearances to garner information from old colleagues and put that to vaguely legal use at think tanks, universities, and as media analysts. All about the Benjamins.
Now that’s not to say once out of government a former employee can run around openly sharing secrets. What senior officials can do, and Brennan is pack leader, is become a “source” for journalists, an unpaid position albeit one of extraordinary political power. Next is to become a paid commentator, as Brennan also has, where he can imply, suggest, and allude to classified information to bolster his credibility. If you just could see what I can see, the line goes, as the audience fills in the blanks — he says it’s just his opinion, but this is a guy who knows.
But that is nothing particularly unique to Brennan. To fully understand the real impact of his losing his security clearance, one has to understand the role Brennan plays in the destroy Trump ecosystem.
If Special Counsel Robert Mueller is the guy at the table who chooses his words carefully even while not saying much, Brennan is the Drunk Uncle, the one blurting out crazy stuff that would be embarrassing except you want so desperately to believe him. Mueller has, to the anti-Trump family, been a real disappointment. Already into his second year of an investigation that seems to have no end in sight, Mueller is off somewhere mopping up Paul Manafort’s financial naughtiness from a decade ago, which doesn’t appear to have anything to do with the Big One, “collusion.” Unless he’s planning to drop the Bomb just ahead of the midterms and ignite a full-on war over interference in the American political process, Mueller is pretty much on ice until, maybe, if the Democrats improbably score a lot of new seats in November, the end of the year.
Not Uncle John. Within hours of losing his clearance and ostensibly some of his free speech rights, Brennan appeared in the New York Times announcing “Trump’s claims of no collusion are, in a word, hogwash.” And about that security clearance? Brennan plays with us, stating “While I had deep insight into Russian activities during the 2016 election, I now am aware — thanks to the reporting of an open and free press — of many more of the highly suspicious dalliances of some American citizens with people affiliated with the Russian intelligence services.”
Bang! Brennan mentions his “deep insight” from 2016, implying classified stuff, then he saves himself from an Espionage Act charge by saying it’s really all from just reading the news.
The does-he-or-doesn’t-he game adds shady credibility as Brennan spews up factless “opinions” elsewhere like “I think [Trump] is afraid of the president of Russia. The Russians may have something on him personally.” Brennan, with all his access to tippy top secret stuff, would know, even if he couldn’t tell us just now, right? He might as well be peddling a revised version of 2002’s WMD tall tale.Of course the punch line is if there was anything for Brennan to really know, Mueller and all of the CIA already also know, and just haven’t gotten around to acting on it in the last couple of years. So how do you keep a politically useful story alive in the absence of conclusive evidence? John Brennan. The ever-pliant media has been quick to pick up on Brennan’s value. Writing about the clearance revocation, the Washington Post reminds Brennan absolutely knows the truth — “Trump was frightened — and remains so to this day — about just how much Brennan knows about his secrets. And by that, I don’t just mean his dealings with Russian oligarchs and presidents but the way he moved through a world of fixers, flatterers and money launderers. What does Brennan know? What did he learn from the CIA’s deep assets in Moscow, and from liaison partners such as Britain, Israel, Germany and the Netherlands?”
And that’s why Brennan wants his security clearance, and the media wants him to have it. He wants the flexibility to leak juicy real bits of secrets to the press, while overtly hinting he knows the whole story to the public, sealing the deal with a wink. Mueller is the stern dad who may or may not come through. The rotating cast of rubes — Stormy Daniels, Michael Avenatti, Tom Arnold, Omarosa — are jesters to keep the story alive with cheap entertainment. Brennan is the big voice who coughs up Trump attacks for the media’s Scooby treats these days, driving the narrative. Brennan as a true Deep State actor implies proof without ever producing proof. Spewing capital charges without evidence, hoping the accusations alone do damage is pure McCarthyism and Brennan has learned history’s lesson from that period even if we, and the media, have not.
Brennan needed that security clearance as a hedge against sounding like the old man shouting at Trump to get off his lawn in his stream-of-consciousness rants on Twitter. The media needed him to have it so he appeared credible enough for the front pages. Implied access to the real classified story is the only thing that separated Brennan from every other Russiagate conspiracist cluttering up social media.
Is it all political? Sure. What was the point of Brennan, or other Obama-era officials unlikely to be consulted by the Trump administration, of having clearances that outlived their government tenure anyway? Brennan in particular was using his security clearance to monetize his experience, and to bolster his opinions with the tang of inside knowledge. There is no government interest in any of that, and the government has no place allowing Brennan to hold a clearance for his own profit. Shutting him down preserves the whole point of issuing anyone a clearance, granting them access to America’s secrets so that they can do Uncle Sam’s work. A clearance isn’t a gift, it’s a tool issued by the government to allow employees to get some work done. Brennan is working now only for himself, and deserved to lose his clearance.
BONUS!
“The fact that the president did this himself leaves him open to the criticism that it looks politically motivated,” said Fran Townsend, George W. Bush’s homeland security adviser. “The notion that you’re going pull somebody’s clearance because you don’t like what they did in government service or you don’t like what they say is deeply disturbing and very offensive.”
Twelve former intelligence officials signed a statement criticizing Trump’s decision to revoke the clearance, claiming “We have never before seen the approval or removal of security clearances used as a political tool, as was done in this case… this action is quite clearly a signal to other former and current officials to stay silent.”
I’d be tempted to agree, except that those statements are completely wrong. My clearance was revoked in 2011 for political reasons, and to silence me and others, as part of the Obama war on whistleblowers. And I wasn’t alone. Jesselyn Radack then of The Government Accountability Project wrote “Peter Van Buren is the latest casualty of this punitive trend. The government suspended his top-secret security clearance – which he has held for 23 years – over linking,not leaking to a WikiLeaks document on his blog and publishing a book critical of the government. As a whistleblower attorney, this has happened to numerous clients who have held security clearances for decades, but dare to say something critical of the government. Like with Thomas Drake, Bill Binney, Kirk Wiebe, Franz Gayl, and numerous clients, these life-long public servants have had their security clearances suspended. So these folks who have been in possession of security clearances for decades suddenly ‘raise serious security concerns’ because they criticize the government.”
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Ban Trump, Twitter and Free Speech
In the through-the-mirror world we now live in, people who once unambiguously supported free speech now are finding plenty of things they want censored.
Chief among those opposing ideas they want silenced are Donald Trump’s. His remarks — from the silly, labeled unpresidential, to the more extreme labeled racist/sexist/misogynist/hateful — have attracted a surprising group of otherwise intelligent people demanding he be shut up.
Salon to Les Barricades!An article on Salon made the case, specifically demanding Twitter ban Trump. Here’s one representative paragraph:
Republicans may not be willing to hold him [Trump] accountable for his dreadful behavior, but the rest of us don’t have to fall in line. Trump has repeatedly signaled his enthusiasm for dictators, which gives us serious reason to fear he may be eyeballing such powers for himself. Banning his Twitter account would be an important act of resistance.
(Of course American presidents have supported a long line dictators — pick your faves, from Stalin in WWII to Somoza to the Assads to Saddam –without themselves becoming dictators, but no matter, we’re beyond history here.)
But Twitter Has Terms of Service!
Twitter, Facebook, etc., are private businesses and thus not subject to the First Amendment (which only restricts the government from crushing speech) and can make any usage rules they like. But in reality social media outlets have in our age become the public squares of the day, and must be seen and treated as such. For example, when they actually had the guts, good newspapers would go out of their way to print opposing viewpoints, recognizing their status as a public forum.
So yes, yes, Twitter can ban redheaded users (sorry, gingers!) if they want to, but it would be detrimental to our broader national commitment to hearing each other out, including hearing from people we don’t agree with. No, ESPECIALLY hearing from people we don’t agree with. Of course there are also the problems that come up once you start banning people, given how opinions of what should be “allowed” can change as quickly as overnight election evening.
So the fact that an entity can ban speech doesn’t mean it should.
In a broader context, it is also always helpful to remember there are no laws against “hate speech” that prevent people from making rough political statements, or even stupid ones. There are laws against inciting violence “Kill all the redheads” but not against saying they suck or are monkeys.
“You Can’t Yell Fire in a Crowded Theater”That paraphrase of a paragraph from a 1919 U.S. Supreme Court case, Schenck v. United States, 249 U.S. 47 (1919), written by Justice Oliver Wendell Holmes, is often cited as justification for limiting free speech. Here’s what Holmes wrote:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.
The statement says the First Amendment doesn’t protect false speech that is likely to cause immediate harm to others, three conditions. The speech must be demonstrably false, and it must be likely to cause real harm (not just offense or hurt feelings, a “clear and present danger”), and do so immediately.
The interpretation of the First Amendment has been understood and adjudicated to impose a pretty high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned, the KKK and Nazis to march, artists to make sculptures from their own body waste, and all sorts of political statements, at least a handful of which you would strongly disagree with and be deeply offended by.
And so expression whose ban has been upheld over the long run has been narrow, things the vast majority society agrees are truly dangerous, such as child pornography.
That’s the whole point — with as few limitation as necessary, protect expression people may or may not want to hear. The First Amendment is not there to protect Dancing with the Stars (though it does) but to protect the hard stuff, the hard calls.
Schenck is Actually Evil
And yes, Schenck itself was a crappy case that sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it, and the case was overturned. In fact, Holmes’ statement was a dictum that the First Amendment is not absolute, that restriction is lawful, along with the developing idea that restriction on speech should be narrow and limited.
It was the later case of Brandenburg v. Ohio that refined the modern standard for restricting speech to that “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But we talk about Holmes’ “fire in a crowded theatre” line as a kind of shorthand for all that.
Let Him Speak — LoudlyJustice Holmes, perhaps as an act of contrition, later wrote in another landmark case:
The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
So following the broad values enshrined in the First Amendment’s guarantee of free speech, even though it can, Twitter should not ban Trump. Let him tweet, hell, give him 20 extra characters. And let us know, judge, agree, oppose, and argue about what he says.
PERSONAL BONUS: Writing in a mainstream publication that the president shouldn’t be allowed on Twitter? Jesus Christ, pull your shit together and get a freaking grip on yourselves. If you can’t do that, go hide under your bed and hug your stuffed animal Bobo. You want to worry about authoritarianism? It always includes shutting up people you don’t want to listen to.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Five Bad Arguments to Restrict Speech
Without free speech people stop thinking, losing out on all but a narrowing band of ideas. Open discussion, debate, and argument are the core of democracy. Bad ideas are defeated by good ideas. Fascism seeks to close off all ideas except its own.Yet all of these most basic concepts of free speech in our nation are under threat, and too many of them are under threat from the left. I never thought I would write that last phrase, just as I never thought I’d need to explain five bad arguments the Left is using to restrict speech from the Right.
Despicable People
Despicable people and their ideas have always existed, though it is essentially a quick summary of the whole point of free speech to remind that at different times in our history speaking out against slavery, against war, against one president or another, have all been seen as despicable. Restrictions on free speech have been used to ban great literature, books about women’s reproductive health, and photos once deemed “pornopgraphic” now displayed as art. Someone will always find an idea or word offensive. Allowing that person to judge for all of us has never proven to be on the right side of history.
The arrival in 2017 of neo-nazis, alt-right, white supremacists, racists, and the many flavors of ‘phobes is sadly nothing new. The current poster children for hate, Richard Spencer, Milo Yiannopoulos, Ann Coulter, and Charles Murray, are no one new either (Coulter’s first book came out in 1998; Murray published his loathed book on welfare in 1984 and both have spoken publicly ever since.) What does seem to be new is that their opposition — the antifa, the anti-fascists — is now aggressively embracing many of the same tools once used to try and stop the anti-war movement, feminists, and other progressive groups in the past. The justification is Everything Is Different since November’s election, and the old rules not only don’t apply, but that wishy-washy democratic ideals of free speech are now a threat to democracy.
Punching Nazis
And so an incident at the Trump inaugural set “Is it OK to punch a Nazi for what he said?” bouncing around the media, including in the New York Times and The Nation, two venerable outlets which have otherwise long fought for free speech, and whose writers have long risked jail time in the practice of it.
What happened was that alongside the inauguration Neo-Nazi Richard Spencer was explaining live on camera the meaning of Pepe the Frog, a silly cartoon figure somehow adopted as a mascot by the anti-immigrant, anti-Semitic, and anti-feminist movement Spencer promotes. An anonymous black-clad antifa protester ran into the scene and sucker punched Spencer. His free speech was ended by that act of violence.
There followed tens of thousands of comments on the YouTube videos of the attack. The standard response was “I don’t condone violence BUT…” and then go on to condone violence. Another popular comment was to invoke Hitler, claiming violence is now justified as a leftist response to hateful speech by the right, and that if perhaps more people had punched Hitler in the early days the world would be a better place. More than a few people online also suggested punching someone in the head is in fact a form of protected free speech itself, and others seem to think whatever they label as “hate speech” is a crime. Others used phrases along the lines of “the end justifies the means” and “by any means necessary.”
A popular meme was to put different songs, many calling for more violence, behind the punching video. Jon Favreau, a former speechwriter for Barack Obama, tweeted “I don’t care how many different songs you set Richard Spencer being punched to, I’ll laugh at every one.”
Following the Spencer attack, similar violence landed at Middlebury College, then at a rally where one protester who displayed a Confederate flag was attacked, and at the University of California Berkeley (the university was ironically home to the Vietnam War protest-era Free Speech Movement.) Institutions, including Berkeley and New York University, canceled, postponed, or scheduled into dead zones for attendance speeches by conservative speakers, citing public safety concerns.
What grew out of the Spencer incident and those in Berkeley, Middlebury and elsewhere are a series of inaccurate and/or weak arguments from too many in favor of restricting speech. Let’s look at some, and why they do not hold up.
1. The First Amendment Only Applies to Government?
The first fallacious argument used to shut down free speech is that the First Amendment of the Bill of Rights in our Constitution only applies to government, and so universities or other entities are entitled to censor, restrict or shut down altogether speech willy-nilly.
Short Answer: Not really. Public funding invokes the First Amendment for schools, and free speech runs deeper than the Bill of Rights. It’s as much a philosophical argument as a legal one, not a bad thing for a nation founded on a set of ideas (and ideals.)
Free speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can. Though cited as far back as 1689 in England, the American version of this was laid out most clearly by Thomas Jefferson, in the mighty Declaration of Independence, where he wrote of rights that flowed from his notion of The Creator, not from government, and thus were fixed.
Jefferson’s invocation of the Creator is understood now as less that free speech is heaven-sent and more that it is something that exists before and after our time. Government thus did not give us the right to free speech and therefore cannot take it away. The First Amendment simply codifies that latter part, laying out like much of the Bill of Rights what the government cannot do. So the argument that the First Amendment does not necessarily apply to all public speaking can be both true and irrelevant at the same time, and the latter is more important. Abetting free speech is an obligation in a democracy in general, and to an institution devoted to truth and education in the particular.
And though the fundamental argument is the controlling one, there does also exist a legal one that extends the First Amendment restrictions to institutions that accept Federal funding (which means most of them); in the 1995 case Rosenberger v. University of Virginia, the Supreme Court held that the University could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints.
Bottom Line: Universities are not free to restrict speech simply because they are not the government. They should be ashamed of themselves for trying to find ways to circumvent free speech instead of promoting it.
2. What’s Said May Provoke Violence in the Room (A Clear and Present Danger)
Some claim that certain conservative speakers, such as Milo Yiannopoulos, who purposefully use anti-LGBTQ slurs to provoke their audiences, should be banned or shut down. Their speech is the equivalent of yelling Fire! in a crowded movie theatre when there is no actual danger, provoking a deadly stampede for the exits.
Short Answer: The standards for shutting down speech are very restrictive, and well-codified. Milo comes nowhere close.
The Fire! line from a Supreme Court decision Schenck v. United States by Justice Oliver Wendell Holmes is often cited as justification for limiting free speech. Here’s what Holmes wrote:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.
The full decision says the First Amendment doesn’t protect false speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately. That’s the “clear and present danger.”
This interpretation of the First Amendment has been adjudicated to impose a high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned in front of veterans, Nazis to march among Holocaust survivors, artists to make religious sculptures from their own body waste.
Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it (in other words, the pamphleteer was determined to be a clear and present danger in wartime and rightfully arrested.) The case was eventually overturned, and in truth Holmes’ statement was originally intended to mean the First Amendment is not absolute, that restriction is lawful, along with the developing idea that restriction on speech should be narrow and limited.
It was the later case of Brandenburg v. Ohio that refined the modern standard for restricting speech to that “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But we talk about Holmes’ “fire in a crowded theatre” line as a kind of shorthand for all that.
Justice Holmes, perhaps as an act of contrition, later wrote in another landmark case:
The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
Bottom Line: The Supreme Court has set a very high bar against restricting speech based on the idea that what is being said leading to violence. Concerns, offense or general threats alone are insufficient to justify silencing someone as a solution.
3. What’s Said May Provoke Violence Outside (Public Safety)
The idea that a university or other venue cannot assure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t want to go to the trouble or expense of protecting a controversial speaker has become the go-to justification for canceling or restricting speech. Berkley cited this in canceling and then de-platforming (rescheduling her when most students would not be on campus) Ann Coulter, whose campus sponsors are now suing, and New York University cited the same justification for canceling an appearance by Milo Yiannopoulos.
Short Answer: Canceling a speaker to protect them or public safety is the absolute last resort, and some risk to safety is part of the cost to a free society for unfettered speech.
The most glaring misuse of this argument is when such a justification is applied only toward one strain of speech, say unilaterally against conservative speakers and not against others. The conclusion can only be danger comes from unpopular ideas based solely on their being presented on a left-leaning campus. The argument of restricting a speaker “for their own safety” who is otherwise willing to take on certain risks to make their voice heard can thus be applied in a biased manner. Restricting speech for safety needs to be content neutral.
Public safety has been long (mis)-used to silence otherwise protected speech. Recently the town of Urbana, Illinois arrested someone burning an American flag (an act long-held to be a form of protected speech) claiming he was in danger from bystanders. Such thinking has in the past been used to deny permits for civil rights marches, with law enforcement saying they could not protect the protestors. Both sides in the abortion debate have used this argument as well outside clinics.
While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. Though there exists opinion on the proper balance, the answer is rarely to ban speech outright simply to maintain order.
One landmark case from 2015 provides some of the clearest guidance yet:
When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.
The case involved a group called the Bible Believers who used crude langauge (“Turn or Burn”) at an LGBTQ gathering. The judges continued in their opinion allowing the Bible Believers to speak:
We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival.”
“If none of these measures were feasible or had been deemed unlikely to prevail, the officers could have called for backup… prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.
The understanding that law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed the courts’ tests in cases are diverse as Occupy and where a Christian group brought a pig’s head on a stick to a Muslim Arts festival.
In sum, the court has long recognized that content-based regulation of speech in a public forum (the “health and safety” restrictions) is permissible only “to serve a compelling state interest” and only when the regulation “is narrowly drawn to achieve that end.”
Bottom Line: An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having Ann Coulter speak on campus are outweighed by the obligation to protect free speech. Maintenance of the peace should not be achieved at the expense of the free speech. Getting rid of the speaker is expedient but unconstitutional. There are plenty of laws that legitimately protect against violence on their own.
4. Speech Can or Should Be Restricted Based on Content (Hate Speech)
There are no laws against “hate speech.” A speaker can call people names, and insult them by their race, sexual orientation or religious beliefs. What many people think and say is hateful. It is carefully thought out to inspire hate, to promote hate, to appeal to crude and base instincts. Indeed, that is their point. But there is no law or other prohibition against hate speech. Even restrictions on “hate speech” meant to prevent violence, often cited as the justification to restrict such speech, are by design extremely narrow.
Short Answer: You cannot restrict hate speech. Free speech means just that, with any limited restrictions content-neutral.
The Brandenburg case test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends that their speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of the speech. A hostile reaction of a crowd does not transform protected speech into incitement. Listeners’ reaction to speech is thus not a content-neutral basis for regulation, or for taking an enforcement action against a speaker.
A second type of speech that is categorically excluded from First Amendment protection and often erroneously labeled hate speech are “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” No advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.
The upshot is that apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful, challenging stuff you (or your neighbor, your political party, your government) can imagine.
This is why, in the midst of Berkeley seeking to ban Ann Coulter from campus, Elizabeth Warren said “Let her speak. If you don’t like it, don’t show up.” Same for Bernie Sanders, who said “What are you afraid of, her ideas? Ask her the hard questions. Confront her intellectually. Booing people down or intimidating people or shutting down events — I don’t think that that works in any way.”
More? The ACLU also supports Coulter’s right to speak. And so the ACLU supports the rights of all groups, to include Nazis and the Klu Klux Klan, to speak.
It should make a college age ACLU donor proud to know her $25 contribution helps both Black Lives Matter and the Klan to stand up and say what they think, but it apparently does not.
The president of the Newseum goes as far as arguing some people have developed an “alternate understanding” of free speech, with students in particular believing “offensive” speech is or should not be protected, particularly when the offense is directed at groups defined by race, ethnicity, gender or sexual orientation.
Ulrich Baer, vice provost for faculty, arts, humanities, and diversity, and professor of comparative literature at New York University, wrote plainly “Universities invite speakers not chiefly to present otherwise unavailable discoveries, but to present to the public views they have presented elsewhere. When those views invalidate the humanity of some people, they restrict speech as a public good. In such cases there is no inherent value to be gained from debating them in public.”
Baer is worth quoting at length, because his views capture the view of many progressives toward the now-threatening concept of unfettered speech:
The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.
He ends without irony this way:
Freedom of expression is not an unchanging absolute. When its proponents forget that it requires the vigilant and continuing examination of its parameters, and instead invoke a pure model of free speech that has never existed, the dangers to our democracy are clear and present.
Baer could not be more wrong. There is no legal or other justification for banning speech based on who it may offend or threaten, in fact, quite the opposite. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” Free speech is not an ends, it is a means, in a democracy.
Justice Louis Brandeis held that people must discuss and criticize ideas, that free speech is not only an abstract virtue but also a key element that lies at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents ordinarily to be applied to prevent” violence and disruption “are education and punishment for violations of the law, not abridgment of free speech.”
Bottom Line: There is no justification for restricting speech so that people are not offended. Speech may offend, indeed that may be its point, but bad ideas are then defeated by better ideas.
5. Free Speech Should Not Be Subject to the Heckler’s Veto
Another argument used by some progressives is that the so-called Heckler’s Veto is in itself protected speech. Someone may have a right to speak, but someone else has the same right to shout them down and prevent them from being heard.
Short answer: Free speech is not intended to mean whomever can literally “speak” the loudest gets to control what is said. The natural end of such thinking is mob rule, where Speaker A gets a bigger gang together to shout down the gang Speaker B controls.
While protestors have an obligation not to abuse their rights of free expression by harassing or intimidating speakers in ways that unduly interfere with communication between a speaker and an audience, there does exist a balancing process.
Agreed upon is that numerous legitimate ways exist to challenge speakers, including engaging them or ignoring them entirely. In contrast, using a Heckler’s Veto to keep unpopular speakers from expressing their views not only stifles a particular idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob?
The most insidious use of the Heckler’s Veto is to have audience members create a situation that compels law enforcement to shut down a speaker for them, abusing their own freedom of speech to get the government to shut down someone else’s. The law allows for law enforcement to act this way, but also makes clear it is wrong for “regulations to allow a single, private actor to unilaterally silence a speaker.”
It is also quite sad to note the same tactic used at Middlebury College to silence speaker Charles Murray was employed during the civil rights movement when whites threatened violence if civil rights marches were permitted to take place. The tactic is also used by abortion foes to try and shut down clinics. The Supreme Court concluded the government’s responsibility in these circumstances is to control those who threaten or act out disruption, rather than to sacrifice the speaker’s First Amendment rights. Unfortunately, that was not what happened in Middlebury College, as Murray was run out of town for his own safety and the mob won.
Bottom Line: Balancing the rights of the speaker, those who wish to hear them, and those who wish to protest is complicated. But simply shutting down one party entirely, or allowing one party to block the rights of the others, is wrong.
Flipping the Argument
It is hard today to be seen as defending the nasty words of a guy like Richard Spencer when one is defending his right to speak independent of what he says. It is easy for some in Trump’s America to claim the struggle against fascism overrules the old norms, that freedom must be defended and that defense justifies violence. Flipping an argument makes it easier to see the fallacy. So:
So this guy beat the air out of this Black Lives Matter woman; she was spewing out hate speech, really racist stuff, and the guy acted in what he perceived as self-defense. Then some people who opposed Trump’s travel ban started calmly laying out their views on a street corner, and the same guy, who believes deep into his soul that Muslims are a threat to democracy and allowing them into America is a step toward fascism, got a bunch of his buddies together and by sheer force of numbers shouted down the pro-Muslim people, forcing them to run away for fear for their safety.
Justification? The dude was pretty clear he was just exercising his First Amendment rights, that it was wrong for those protesters to have a platform and hey, he isn’t the government and the First Amendment only applies to the government. Sure violence is bad in isolation, but in defense of freedom, well, by any means necessary. While he was beating on the activists, he shouted he “understands the moral and practical limitations of wholly free discourse.”
You get it.
Free speech protection covers all the things people want to say, from the furthest left to the furthest right. You can burn a flag, display a nude body, fill a fish tank with urine and call it art, put on a KKK uniform and march past a Black church, and say whatever Richard Spencer says. Free speech means a lot of things, including that I can write this article, and you can say what you want about it and me. It is messy as hell, and it is our essential defense against fascism and control, whether from the left or the right.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
1A Victory: SCOTUS Again Confirms ‘Hate Speech’ is Protected
In the world we awoke to on November 8, 2016, a myth took hold among many progressive people that so-called “hate speech” — speech that demeans on the basis of race, ethnicity, gender, religion, age, disability — is not protected by the First Amendment. Even Howard Dean contributed to the falsehood.
The Supreme Court just made it very, very clear that is wrong. Offensive and hateful speech is as protected as any other. It is vital to protect all speech, for the road of prohibiting speech one disagrees with is a slippery one. There is a right to offend; deal with it, snowflakes.
Hate speech is not protected by the first amendment. https://t.co/DOct3xcLoY
— Howard Dean (@GovHowardDean) April 21, 2017
A recent case, Matal v. Tam, focused on an all-Asian band called The Slants, who wanted to trademark their group’s name. “Slant” of course is one of a dictionary full of racist terms used to offend Asians, and the group wanted to push the word into the world’s face to disarm it, as gay men have done with the slur queer.
The United States Patent and Trademark Office said no, the group could not trademark the name The Slants because of the disparagement clause, which denies federal trademark protection to messages that may offend people, living or dead, along with “institutions, beliefs or national symbols.” This same reasoning denied the Washington Redskins’ trademark renewal of their team name in 2014, seen as disparaging toward Native Americans.
No more. The Supreme Court just ruled the government cannot use trademark law to stop people from promoting an (potentially offensive) name. That constitutes the government prohibiting free expression, a clear violation of the First Amendment.
The First Amendment protects offensive speech, Justice Samuel Alito wrote in this unanimous decision. “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,’” he said, quoting the classic 1929 dissent from Justice Oliver Wendell Holmes.
(Trump-era snowflakes usually misapply Holmes’ famous line — not shouting fire in a crowded theatre — to justify banning offensive speech by claiming it incites violence. They’re wrong; it doesn’t work that way at all. The whole thing is laid out here.)
“The danger of viewpoint discrimination,” Justice Anthony Kennedy wrote in The Slants’ case, “is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. To permit viewpoint discrimination in this context is to permit government censorship.”
The ACLU called the decision a “major victory for the First Amendment.”
And… mic drop.The marketplace of ideas needs to be broad and deep, and awful people must be free to spew terrible words, into it, so they can be exposed and bad ideas shoved aside by good ones. That’s how the Founders intended the system to work, that is how it has worked through over 200 years of controversy, and the Supreme Court made it clear this week Trump, Howard Dean, Milo Yiannopoulos or your favorite nazi have no place in trying to change things.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Brennan: “We have never before seen the approval or removal of security clearances used as a political tool”
Last week Trump suspended former CIA head John Brennan’s security clearance.
His defenders immediately rose to declare this shall not stand. Twelve former intelligence officials signed a statement criticizing Trump’s decision, claiming “We have never before seen the approval or removal of security clearances used as a political tool, as was done in this case… this action is quite clearly a signal to other former and current officials to stay silent.”Hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah.
“The notion that you’re going pull somebody’s clearance because you don’t like what they did in government service or you don’t like what they say is deeply disturbing and very offensive,” said Fran Townsend, George W. Bush’s homeland security adviser.Hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah.
The New York Times even asked “Was It Illegal for Trump to Revoke Brennan’s Security Clearance?” and wondered if Trump had violated Brennan’s First Amendment rights.Hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah.
All those statements are completely and idiotically wrong. My clearance was revoked by my then-employer, the State Department, in 2011 for political reasons, to silence me and others, as part of the Obama war on whistleblowers. And I wasn’t alone. Jesselyn Radack then of The Government Accountability Project wrote “Peter Van Buren is the latest casualty of this punitive trend. The government suspended his top-secret security clearance – which he has held for 23 years – over linking, not leaking to a WikiLeaks document on his blog and publishing a book critical of the government.“As a whistleblower attorney, this has happened to numerous clients who have held security clearances for decades, but dare to say something critical of the government. Like with Thomas Drake, Bill Binney, Kirk Wiebe, Franz Gayl, and numerous clients, these life-long public servants have had their security clearances suspended. So these folks who have been in possession of security clearances for decades suddenly ‘raise serious security concerns’ because they criticize the government.”
Hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah.
And to save all those lazy journalists and former officials some time, the courts have long recognized (Thomas Egan v. Department of the Navy) the president has broad authority to establish and oversee the security clearance system and no one has a “right” to a security clearance. Brennan (and I!) may still may exercise First Amendment rights, albeit without access to classified material just like every other American not employed by the government in a sensitive position.In my case it cost me my job. In Brennan’s case, he’s now just another old man ranting on social media demanding Trump get off his lawn.
Hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah hah.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
I’m Alex Jones x Infinity Worse (on Twitter)
Twitter just suspended Alex Jones for a week after he called on millions of people to pick up weapons to attack the press. I am still in the dark about what I said on Twitter that is x Infinity worse, as mine is a permanent suspension.
Anyway, I hope with Alex Jones (and me) gone, your Twitter is better, kinder, more… ideologically pure. @jack seems to be on a campaign ahead of the midterms to make Twitter less politically diverse, so I hope that is good for you, not to have to block all those nasty contrary opinions and all. Soon enough it’ll be just down to what the Party wants you to read and for most people that is a comfortably numb place to be. I wish you well! You will learn, as I have, to love Big Brother. Twitter will help you learn.I’m tempted to create a new account and start over, but it would end up deep-sixed as quickly as Twitter could figure it out. In fact, someone would — as they did this time — go out of their way to snitch to the teacher that I am back vomiting up offensive or hate speech or that as a white male I am by definition not a person with ideas but simply a nazi misogynist racist to purge from the marketplace. The Nazis and the Soviets made excellent use of informers to enforce their ideological purity and the concept seems built into social media’s game plan as well. My kids have social media accounts — perhaps @jack could use them as informants.
I went through this a few years ago, when the State Department tried to censor my book so you did not hear what was then a very contrary opinion, widely said to be wrong, that the U.S. had lost the Iraq war. I had a taste of the same in Iran this spring, when I was blocked by their government from using social media. So I understand where I am now, and maybe why my words seem to be so scary. Fear the silence, not the noise.
Supreme Court Justice Louis Brandeis held people must discuss and criticize unpopular ideas, that free speech is not an abstract virtue but a key element at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents to be applied to prevent violence and disruption are education and punishment for violations of the law, not abridgment of free speech.”
Free speech is not an ends, it is a means, in a democracy. Shame on Twitter, et al, for treading on that mighty concept. Free speech is messy, and it is our essential defense against fascism, whether from the left or the right.
And to quote Marx, even with a new account on Twitter, why would I want to be part of a club that’d have a guy like me as a member?
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Talking Twitter Censorship on FOX
Banned from Twitter, so I found another platform. I was on Tucker Carlson tonight talking about censorship. Can you hear me @jack?
https://youtu.be/lEJLPVPbUlU?t=2198
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Corporate Censorship Brought Us the America I Always Feared
When I was in Iran earlier this year, the government there blocked Twitter, deciding for a whole nation what they can not see. In America, Twitter purges users, deciding for a whole nation what they can not see. It matters little whose hand is on the switch, the end result is the same. This is the America I always feared I’d see.
Speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can. Thomas Jefferson wrote of the right flowing from his notion of a Creator, not from government. Jefferson’s 18th century invocation is understood now as less that free speech is heaven-sent and more that it is something existing above government. And so the argument the First Amendment applies only to government and not to all public speaking (including private platforms like Twitter) is thus both true and irrelevant, and the latter is more important.
The government remains a terrifying threat to free speech. An Espionage Act prosecution against Wikileaks’ Julian Assange will create precedent for use against any mainstream journalist. The war on whistleblowers which started under Obama continues under Trump. Media are forced to register as propaganda agents. Universities restrict controversial speakers. The Trump administration no doubt will break the record (77%) for redacting or denying access to government files under the Freedom of Information Act.
But there is another threat to freedom of speech now, corporate censorship. It is often dressed up with NewSpeak terms like deplatforming, restricting hate speech, or simply applying Terms of Service. Corporations always did what they wanted with speech. Our protection against corporate overreach used to rely on an idea Americans once held dear, enshrined as “I disapprove of what you say, but I will defend your right to say it.” The concept was core to a democracy: everyone supports the right of others to throw ideas into the marketplace independent. An informed people would sort through it all, and bad ideas would be pushed away by better ones. That system more or less worked for 240 years.
For lack of a more precise starting point, the election of Donald Trump did away with near-universal agreement on defending the right to speak without defending the content, driven by a belief too much free speech helped Trump get elected. Large numbers of Americans began not just to tolerate, but to demand censorship. They wanted universities to deplatform speakers they did not agree with, giggling over the fact the old-timey 1A didn’t apply and there was nothing “conservatives” could do. They expressed themselves in violence, demanding censorship by “punching Nazis.” Such brownshirt-like violence was endorsed by The Nation, once America’s clearest voice for freedom. The most startling change came within the American Civil Liberties Union, who enshrined the “defend the right, not the speech” concept in the 1970s when it defended the free speech rights of Nazis, and went on to defend the speech rights of white supremacists in Charlottesville.
Not so much anymore. The ACLU now applies a test to the free speech cases it will defend, weighing their impact on other rights (for example, the right to say the N-word versus the rights of POC.) The ACLU in 2018 is siding with those who believe speech can be secondary to other political goals. Censorship has a place, says the ACLU, when it serves what they believe is a greater good.
A growing segment of public opinion isn’t just in favor of this, it demands it. So when years-old tweets clash with 2018 definitions of racism and sexism, companies fire employees. Under public pressure, Amazon removed “Nazi paraphernalia and other far-right junk” from its online store. It was actually just some nasty Halloween gear and Confederate flag merch, but the issue is not the value of the products — that’s part of any free speech debate — it’s corporate censorship being used to stifle debate by literally in this case pulling things out of the marketplace.
Alex Jones’ InfoWars was deplatformed off download sites where it has been available for years, including Apple, YouTube (owned by Google), Spotify, and Amazon, for promoting “hate speech.” Huffington Post wondered why more platforms, such as Instagram, haven’t done away with Jones and his hate speech.
That term, hate speech, clearly not prohibited by the Supreme Court, is an umbrella word now used by censorship advocates for, well, basically anything they don’t want others to be able to listen to or watch. It is very flexible and thus very dangerous. As during the McCarthy-era in the 1950s when one needed only to label something “Communist” to have it banned, so it is today with the new mark of “hate speech.” The parallels are chilling — it was in the McCarthy-era Hollywood created its infamous blacklists, actors and writers who could not work because of their political beliefs.
Twitter is perhaps the most infamous platform to censor its content. The site bans advertising from Russian media outlets RT and Sputnik. Twitter suspends the accounts of those who promote (what it defines as) hate and violence, “shadow bans” others to limit their audience, and tweaks its trending topics to push certain political ideas and downplay others. It regularly purges users and bans “hateful symbols.” There are near-daily demands by increasingly organized groups calling on Twitter to censor specific users, with Trump at the top of that list. The point is always the same: to limit what ideas you can be exposed to and narrow debate.
Part of the 2018 problem is the trust people place in “good companies” like Amazon, Facebook, and Twitter. Anthropomorphizing them as Jeff, and Zuck, and @jack is popular, along with a focus on their “values.” It seems to make sense, especially now when many of the people making decisions on corporate censorship are the same age and hold the same political views as those demanding they do it.
Of course people age, values shift, what seems good to block today might change. But the main problem is companies exist to make money and will do what they need to do to make money. You can’t count on them past that. Handing over free speech rights to an entity whose core purpose has nothing to do with free speech means they will quash ideas when they conflict with what they are really about. People who gleefully celebrate the fact that @jack who runs Twitter is not held back by the 1A and can censor at will seem to believe he will always yield his power in the way they want him to.
Google has a slogan reading “do no evil.” Yet in China Google will soon deploy Dragonfly, a version of its search engine that will meet Beijing’s demands for censorship by blocking websites on command. Of course in China they don’t call it hate speech, they call it anti-societal speech, and the propaganda Google will block isn’t from Russian bots but from respected global media. In the U.S. Google blocks users from their own documents saved in Drive if the service feels the documents are “abusive.” Backin China Apple removes apps from its store on command of the government in return for market access. Amazon, who agreed to remove hateful merch from its store in the U.S., the same week confirmed it is “unwaveringly committed to the U.S. government and the governments we work with around the world” using its AI and facial recognition technology to spy on their own people. Faced with the loss of billions of dollars, as was the case for Google and Apple in China, what will corporations do in America?
Once upon a time an easy solution to corporate censorship was to take one’s business elsewhere. The 2018 problem is with the scale of platforms like Amazon, near global monopolies all. Pretending Amazon, which owns the Washington Post, and with the reach to influence elections, is just another company that sells things is to pretend the role of unfettered debate in a free society is outdated. Yeah, you can for now still go through hoops to download stuff outside the Apple store or Google Play, but those platforms more realistically control access to your device. Censored on Twitter? No problem big guy, go try Myspace, and maybe Bing will notice you. Technology and market dominance changed the nature of censorship so free speech is as much about finding an audience as it is about finding a place to speak. Corporate censorship is at the cutting edge of a reality targeting both speakers (Twitter suspends someone) and listeners (Apple won’t post that person’s videos made off-platform). Ideas need to be discoverable to enter the debate; in 1776 you went to the town square. In 2018 it’s Twitter.
In the run up to the midterm elections, Senator Chris Murphy, ironically in a tweet, demanded social media censor more aggressively for the “survival of our democracy,” implying those companies can act as proxies for those still held back by the First Amendment. We already know the companies involved can censor. The debate is over what happens when they do.
A PERSONAL NOTE: Some readers are aware I have been permanently suspended from Twitter as @wemeantwell. This followed exchanges with several mainstream journalists over their support for America’s wars and unwillingness to challenge government lies. Twitter sent an auto-response saying what I wrote “harasses, intimidates, or uses fear to silence someone else’s voice.” I don’t think I did any of that, and I wish you didn’t have to accept my word on it. I wish instead you could read what I wrote and decide for yourself. But Twitter won’t allow it. Twitter says you cannot read and make up your own mind. They have in fact eliminated all the things I have ever written there over seven years, disappeared me down the Memory Hole. That’s why all censorship is wrong; it takes the power to decide what is right and wrong away from you and gives it to someone else.
I lost my career at the State Department because I spoke out as a whistleblower against the Iraq War. I’ve now been silenced, again, for speaking out, this time by a corporation. I am living in the America I always feared.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Behind The Scenes At The Twitter Purge – With Peter Van Buren and Scott Horton
And more here, from Zerohedge…
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Consortium News Radio — Episode 1: Peter Van Buren, The Twitter Files
In a long-form interview here with veteran journalist Joe Lauria at Consortium News Radio, I try and lay out exactly what happened on Twitter that led to me being banned.
Also, more here.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
What if a #MAGA Guy Ate Twitter’s Face?
More than a few people have cited the exchange above as justification for my forever trip down the Memory Hole, my ban from Twitter. I used to be there as @wemeantwell.My bad zombie joke about #MAGA, or anything else I wrote that was flippant, is not writing I’m proud of. But ask yourself if indeed what I was doing, in the words of Twitter’s auto-response to me, “harasses, intimidates, or uses fear to silence someone else’s voice,” or if I was just being rude and childish. Ask yourself if whatever I did means you can never read anything I’ve written on Twitter over the past seven years, if it means I should never be allowed to write there again.
Does it justify censorship?
Before you say yes, keep in mind that Twitter allows you to block me, mute me, never see me again. That’s your decision, and good for you, and good riddance to me. But censorship takes that decision out of your hands, and allows Twitter to make it on behalf of literally the entire planet.
Though the “he called me human garbage first” excuse is pretty weak, it is useful to show the context of my allegedly game-changing Tweet. I think anyone who has dipped into the sticky waters of Twitter, or lived as an adult on earth, has heard much worse. I think also my line about a MAGA guy eating someone’s face can be seen by reasonable people as a rhetorical slap, not a literal invitation to zombie attack.
Think of it like people saying “Go kiss my ass!,” or “F*ck yourself.” I don’t think in those instances anyone expects you to contort and smooch the buttocks or to perform a unilateral sex act. There’s a difference between saying “Go jump in a lake” to end an argument and an invitation to go swimming.
But corporate censorship needs only the finest of hooks. Twitter is happy to allow calls for white genocide by New York Times editorial board member @SarahJeong, “understanding” they are not literal, while being shocked — Shocked! — to see me invoke a scene from Fear the Walking Dead.
And anyone who thinks I was banned for simply being rude on Twitter does not understand much about the point of censorship.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
VIPS Asks Twitter to Restore Van Buren’s Account
The Veteran Intelligence Professionals for Sanity in a memo to the Twitter board of directors questions its decision to suspend the account of one of its members without due process.
TO: Twitter Board of Directors
FROM: Veteran Intelligence Professionals for Sanity (VIPS)
SUBJECT: Suspension of VIPS Associate Peter Van Buren’s Twitter Account
We at Veteran Intelligence Professionals for Sanity (VIPS) are greatly disturbed by the recent decision of your management to permanently suspend the Twitter account @WeMeantWell of our colleague Peter Van Buren. Peter is a highly respected former Foreign Service Officer possessing impeccable credentials for critiquing current developments that might lead to a new war in Eastern Europe or Asia, something which we Americans presumably all would like to avoid.
In 2011 our colleague Peter published a book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, about the poor decision- making by both civilians and military that led to the disastrous occupation and faux-democracy development in Iraq. It is Peter’s concern that our country may well be proceeding down that same path again — possibly with Iran, Syria and other countries in the Middle East region.
It is our understanding that Peter became involved in an acrimonious Twitter exchange with several mainstream journalists over the theme of government lying. One of the parties to the exchange, reported to be Jonathan Katz of @KatzOnEarth — possibly joined by some of his associates – complained. Subsequently, and without any serious investigation or chance for rebuttal regarding the charges, Peter was suspended by you for “harass[ing], intimidate[ing], or us[ing] fear to silence someone else’s voice.” Peter absolutely denies that anything like that took place.
We have also learned that Daniel McAdams, Executive Director of the Ron Paul Institute for Peace and Prosperity and a highly respected former Congressional staffer, weighed in to defend Peter and was also suspended by you. And Scott Horton, editorial director of Antiwar.com, was suspended for use of “improper language” against Katz. Horton and McAdams cannot add new tweets while under suspension, but Peter’s “permanent” suspension included deletion of all of his seven years’ archive of tweets, so the actual exchanges leading up to his punishment cannot currently be examined.
Your action suggests three possibilities — all of which are quite plausible given that your system for punishing users is far from transparent. First, you may be engaged in systematic manipulation if some of your users are able to complain and have their friends do likewise in order to sully the reputation of a Twitter user who is doing little more than engaging in heated debate over issues that concern all of us.
Second, there is a distinct possibility that you are responding to either deep pocketed or particularly strident advocacy groups that may themselves have agendas to silence opposition voices. We note that Google is currently working with some powerful foundations to censor content they object to which comes up in search engine results.
Finally – third — we also suspect a possible government hand in that companies like yours, to include Facebook, have become very sensitive to alleged “subversive” content, deleting accounts and blocking users. Kowtowing to government suggestions to silence critics of administration policies may well be considered a desirable proactive step by your management as well as by other social media companies, but censorship is censorship, no matter how you dress it up.
We Veteran Intelligence Professionals for Sanity believe that systematic and/or institutionalized censorship of tweets and account users is fundamentally the wrong way to go unless there are very explicit and sustained threats of violence or other criminal behavior. The internet should be free, to include most particularly the ability to post commentary that is not mainstream or acceptable to the Establishment. That is what Peter has been doing and we applaud him for it. We respectfully request that you examine the facts in the case with the objective of reconsidering and possibly restoring the suspension of Peter Van Buren’s twitter account. Thank you.
For the Steering Group, Veteran Intelligence Professionals for Sanity:William Binney, former Technical Director, World Geopolitical & Military Analysis, NSA; co-founder, SIGINT Automation Research Center (ret.)
Richard H. Black, Senator of Virginia, 13th District; Colonel US Army (ret); former chief, Criminal Law Division, Office of the Judge Advocate General, the Pentagon (associate VIPS) (@SenRichardBlack)
Bogdan Dzakovic, former team leader of Federal Air Marshals and Red Team, FAA Security (ret.) (associate VIPS)
Philip Giraldi, CIA, Operations Officer (ret.) (@infangenetheof)
Larry C. Johnson, former CIA and State Department Counterterrorism Officer (ret.)
Michael S. Kearns, Captain, USAF (ret.); Wing Commander, RAAF (ret.); former intelligence officer and master SERE instructor (@msk6793)
John Kiriakou, former CIA Counterterrorism Officer and former senior investigator, Senate Foreign Relations Committee (@johnkiriakou)
Linda Lewis, WMD preparedness policy analyst, USDA (ret.) (associate VIPS) (@usalinda)
Edward Loomis, NSA, cryptologic computer scientist (ret.)
Ray McGovern, former US Army infantry/intelligence officer & CIA analyst (ret.) (@raymcgovern)
Annie Machon, former intelligence officer in the UK’s MI5 domestic security service (affiliate VIPS) (@anniemachon)
Elizabeth Murray, Deputy National Intelligence Officer for the Near East, CIA and National Intelligence Council (ret.) (@elizabethmurra)
Todd E. Pierce, Maj, US Army Judge Advocate (ret.) (@ToddEPierce)
Scott Ritter, former Maj., USMC; former UN weapons inspector, Iraq (@RealScottRitter)
Coleen Rowley, FBI Special Agent and former Minneapolis Division Legal Counsel (ret.) (@coleenrowley)
J. Kirk Wiebe, former Senior Analyst, SIGINT Automation Research Center, NSA (ret.) (@kirkwiebe)
Sarah Wilton, Commander, US Naval Reserve (ret.) and Defense Intelligence Agency (ret.)
Robert Wing, former Foreign Service Officer (associate VIPS)
Veteran Intelligence Professionals for Sanity (VIPS) is made up of former intelligence officers, diplomats, military officers and congressional staffers. The organization, founded in 2002, was among the first critics of Washington’s justifications for launching a war against Iraq. VIPS advocates a US foreign and national security policy based on genuine national interests rather than contrived threats promoted for largely political reasons. An archive of VIPS memoranda is available at Consortiumnews.com.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Twitter Suspends Me Forever
Some readers are aware I have been permanently suspended from Twitter as @wemeantwell.
This followed exchanges with several mainstream journalists over their support for America’s wars and unwillingness to challenge the lies of government. After two days of silence, Twitter sent me an auto-response saying what I wrote “harasses, intimidates, or uses fear to silence someone else’s voice.”
I don’t think I did any of that, and I wish you didn’t have to accept my word on it. I wish instead you could read what I wrote and decide for yourself. But Twitter won’t allow that. Twitter says you cannot read and make up your own mind. They have in fact eliminated all the things I have ever written there over seven years, disappeared me down the Memory Hole. That’s what censorship does; it takes the power to decide what is right and wrong away from you and gives it to someone else.
Hate what I write, hate me, block me, don’t buy my books, but please don’t celebrate handing over those choices to some company.
I lost my career at the State Department because I spoke out as a whistleblower against the Iraq War. I’ve now been silenced, again, for speaking, this time by a corporation. I am living in the America I always feared.
UPDATE: I’ve made a mistake. I was wrong to criticize the government, wrong to criticize journalists, wrong to oppose war. In fact, after much reflection, I have come to understand that I Love Big Brother.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Trump and the New McCarthyism
There was no explanation for what had happened, how certain victory had boiled off. Fear took over. An answer was needed, and one was created: the Russians. 1950s Cold War America? Or 2018 Trump America? Yes.
WWII ended with the U.S. the planet’s predominant power. But instead of recognizing its strength, darker forces saw profit in creating new fears. The Soviet Union morphed from an ally decimated after losing 20 million soldiers fighting fascism to a powerful equal locked in a titanic struggle with America. How did they get so powerful so quickly? Nothing could explain this, except… traitors.
Some realized fear was not a problem, but a tool — one could defeat political enemies simply by accusing them of being Russian sympathizers. There was no need for evidence, Americans were desperate to believe, and so assertions someone was in league with Russia were enough. Joseph McCarthy fired his first shot on February 9, 1950, proclaimed there were 205 card-carrying members of the Communist Party working for the Department of State. The evidence? Nothing but McCarthy’s assertions, but they were enough.
Pretending to be saving America while he tore at its democratic foundations, over the next four years McCarthy made careers for those who cooperated in his accusations, such as a young red-baiting Richard Nixon, the president of the screen actors guild, Ronald Reagan, who supported the blacklisting of many artists simply by pointing a finger at them and saying “Communist”, and Roy Cohn, a vicious young attorney who ironically would later work for Donald Trump. The power of accusation was used by others as well; the Lavender Scare was an off-shoot of McCarthyism that concluded the State Department was overrun with closeted homosexuals who were at risk of being blackmailed by Moscow. By 1951, 600 people were fired based solely on evidence-free “morals” charges. All across America, state legislatures and school boards mimicked McCarthy. Thousands of people lost their jobs. Books and movies were banned or boycotted based on the “hate speech” of the day, accusations they helped promote Communism. Libraries, for example, banned Robin Hood for suggesting stealing from the rich to give to the poor. The FBI embarked on campaigns of political repression, suspecting Martin Luther King was a Communist. Journalists and academics voluntarily narrowed their political thought and tamping down criticism and inquiry in the 1950’s and beyond.
In 2018, watching sincere people succumb to paranoia is not something to relish. But having trained themselves to intellectualize away Hillary Clinton’s flaws, as they had with Obama, about half of America truly could not believe she lost to the antithesis of what she represented to them. She was strong (they called her the most qualified candidate in history.) Every poll (that they read) said she would win. Every article (that they read) said it too, as did every person (that they knew.) Lacking an explanation for the unexplainable, they tried out scenarios that would have failed high school civics, claiming only the popular vote mattered, or the archaic Emoluments Clause prevented Trump from taking office, or that he was clinically insane and had to be carted off under the 25th Amendment.
After a few trial balloons during the primaries where Bernie Sanders’ visits to Russia and Jill Stein’s attendance at a banquet in Moscow were used to imply disloyalty, the fearful cry the Russians meddled in the election morphed into Trump had worked with the Russians and/or (fear is flexible filling in the gaps) the Russians had something on Trump, that new Russian word everyone learned, kompromat. History may not repeat, but it often rhymes, and Donald Trump became the Manchurian Candidate, the name itself taken from a 1959 novel made into a classic Cold War movie positing an American soldier had been brainwashed by communists as part of a plot to place someone under the thumb of the Kremlin in the Oval Office. The New York Times, Vanity Fair, the New York Daily News, Salon, The Hill, the Washington Post,a nd sure, why not, Stormy Daniels’ lawyer Michael Avenatti have all claimed Trump is 2018’s Manchurian Candidate. Cynical, or prescient?
The birth moment of Trump as a Russian asset is traceable back to MI-6 intelligence officer turned Democratic opposition researcher turned FBI mole Christopher Steele, whose “dossier” claimed the existence of the pee tape. Somewhere deep in the Kremlin is supposedly a surveillance video made in 2013 of Trump in Moscow’s Ritz-Carlton Hotel, watching two prostitutes urinate on a bed the Obamas once slept in.
No one, not even Steele’s alleged informants, has actually seen the tape. It exists in a land of assertion-is-fact-enough alongside the elevator tape. Reporters, as well as Z-list celebrity Tom Arnold, are actively seeking a tape of Trump doing something in an elevator so salacious the video has been called “Every Trump Reporter’s White Whale.” No one knows when the elevator video was made, but a dossier-length article in New York magazine posits Trump has been a Russian asset since 1987, controlled through a set of big money deals as carrots, whose disclosure would be the kompromat of a stick.
This is the McCarthy playbook. Trump’s victory seems inexplicable, therefore it could not have happened without outside help. The Russians were certainly sniffing around the edges of the election process, so they must have done it. Trump has done business in Russia, and, a man like him certainly could not have made his money honestly (the tax documents!) The easiest way to bring him down is to offer what his detractors would accept as a plausible explanation — the Russians did it and Trump is in on it — and answer fear with the blind certainty of assertions. As McCarthy did with homosexuality, throw in a few hints of dirty sex to keep the rubes paying attention.
Suddenly no real evidence is necessary, because it is in front of your face. China fell to the Communists in 1949. The State Department was in charge, therefore was responsible, and therefore must be riven with traitors because why else but on purpose would they fail America? McCarthy accussed Presidents Roosevelt, Truman, and Eisenhower of being Communists or Communist stooges. Trump holds a bizarre press conference in Helsinki and the only answer is that he is a traitor. Hillary herself asked which side Trump was on. Nancy Pelosi (“President Trump’s weakness in front of Putin was embarrassing, and proves that the Russians have something on the President, personally, financially or politically”) and Cory Booker (“Trump is acting like he’s guilty of something”) and Lindsey Graham and John Brennan and MSNBC and CNN said Trump is controlled by Russia, even as columnists in the New York Times called him a traitor. As the news did in 1954, when they provided live TV coverage of McCarthy’s dirty assertions against the Army, modern media used each new assertion as “proof” of an earlier one. If they all are saying it, it has to be true. Snowballs get bigger rolling downhill.
When assertion is accepted as evidence it forces the other side to prove a negative to clear their name. So until Trump “proves” he is not a Russian stooge, he remains one in the eyes of his accusers, and his denials are seen as desperate attempts to wiggle out from under the evidence. Joe McCarthy’s victims faced similar challenges; once labeled a communist or a homosexual, the onus shifted to them to somehow prove they weren’t. Their failure to prove their innocence became more evidence of guilt. It all creates a sense of paranoia. The 1950’s version was well-illustrated in movies like Invasion of the Body Snatchers, or a selection of classic Twilight Zone episodes highlighted by “The Monsters Are Due on Maple Street,” which concludes with the chilling line “a thoughtless frightened search for a scapegoat has a fallout all of its own.” As with McCarthy, the reaction to a threat outweighs in damage anything the threat may have ever posed.
And so in 2018 a journalist thinks someone is sending agents disguised as Uber drivers to spy on him. Another on Twitter says she personally has hard info of Trump’s collusion with Russia and faces death threats. They hate Trump and wake up each morning hoping it is Judgment Day. When it is not, they project themselves into the center of global events hoping they personally can bring on Judgment. You could see this in earlier times in parts of the Sy Hersh story, and now so clearly with once sharp minds like Rachel Maddow (“We haven’t ever had to reckon with the possibility that someone had ascended to the presidency of the United States to serve the interests of another country rather than our own,”) and Lawrence Tribe. They struggle to resolve cognitive dissonance by imagining they will defeat Trump where Clinton failed. These same people 10 years later still mock Trump over the silly birth certificate conspiracy, yet find it perfectly normal to claim he is a Russian agent. Meanwhile, we are kept at DefCon levels with an obvious goofball like Carter Page mediaized into a linchpin while an improbable Russian student is arrested to put a sexy, red-haired face on everything.
And yet… and yet there is no evidence of treason, of collusion, of the assertion the president of the United States, almost two years in control of America’s nuclear arsenal, is by choice or coercion acting on the orders, desires, and initiatives of Russia. None.
The IRS and Treasury have had Trump’s tax documents for decades. If Trump has been a Russian asset since 1987, or 2013, he has done it behind the backs of the FBI, CIA, and NSA. Indictments against Russian uniformed military who will never see the inside of an American court are presented as evidence, when in fact they are simply Robert Mueller’s own uncontested assertions to sit alongside those of Anderson Cooper and Chris Matthews. With impeachment itself on the table, Mueller has done little more than issue the equivalent of a series of parking tickets against foreign nationals whom he has no jurisdiction over, that provide no link between Trump and Russia. Intelligence community summaries claim without detail the Russians meddled, but fall far short of accusing Trump of being involved. There is simply the assertion, the belief, that some outside explanation, and we seem to have settled on the Russians, is to blame for Trump.
So we live in a state of constant tension. Fear is powerful. A sound triggers a memory that sets off involuntary, subconscious processes: the heart rate jumps, muscles twitch, higher brain functions switch to fight-or-flight. Live in this state long enough and you lose the ability to control your reaction to certain stimuli. Fear, hatred and venom are expressed through fevered calls for impeachment for not being sufficiently patriotic and for aiding the enemy. Reality is used to prove fantasy — we don’t know how Trump is helping Putin because they met in private! And anyone who questions this must themselves be at best a useful fool, if not an outright Russia collaborator (Wrote one pundit: “They are accessories, before and after the fact, to the hijacking of a democratic election. So, yes, goddamn them all.”) In the McCarthy era, the term was fellow traveler, anyone, witting or unwitting, who helped the Russians. Dissent is muddled with disloyalty.
The burden of proof is always on the party making an accusation, yet the standing narrative in America is the Russia story must be assumed at least valid, if not true, until proven false. Joe Mccarthy was allowed to tear America apart for four years under just such standards, until finally public opinion turned against him, aided by a small handful of journalists, lead by Edward R. Murrow, brave enough to ask real questions about his factless assertions and demand answers McCarthy ultimately did not have. There is no Edward R. Murrow in 2018, simply journalists who see themselves serving as oppo researchers and adjuncts to the accusers.
The process already 200 indictments underway — the Mueller investigation — is in Year Two. America faces a crucial set of midterms in November, and thus the need to know for the American people is established; if anyone has hard evidence, why are they waiting to show it with a Russian asset in the White House? At some point one has to account for why no one has found what they insist is there. They can cry “Just wait for Mueller!” for the same four years it took to shut down McCarthy but at some point we all have to admit no evidence has been found that pigs can fly, and thus conclude they can’t, and the collective purpose of Russiagate has shifted, as with McCarthy, from tamping down hysteria to stoking it.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
John Brennan is 2018’s Poster Boy
It is not a pretty face, but one scarred from an evil past, repackaged by the madness of “resistance.” Accusing Trump recklessly, implying he knows more than he lets on, leading the rubes down the path saying soon — soon! — Mueller’s redemption will be here.
John Brennan is the face of American politics in 2018.
Coming out of a hole as far into the Deep State as one can dwell while still having eyes that work in sunlight, Brennan burst above ground to become a Hero of the Resistance on CNN. But before all that, Brennan was Director of the Central Intelligence Agency. He was Obama’s first-term counter terror advisor, the guy who helped the president decide who to kill each week with drones, including American citizens. He spent 25 years at CIA, and helped shape the violent policies of the post-9/11 Bush era. Brennan was a fan of torture and extrajudicial killing to the point where a 2012 profile was titled “The Seven Deadly Sins of John Brennan.” Another writer called Brennan “the most lethal bureaucrat of all time, or at least since Henry Kissinger.” Today a New York Times puff piece on Brennan just shushes all that away as a “troubling inheritance.”So in a political world overcome with madness, it is John Brennan who helps lead the resistance. On Twitter this past week Brennan cartoonishly declaimed “Donald Trump’s press conference performance in Helsinki rises to and exceeds the threshold of ‘high crimes and misdemeanors.’ It was nothing short of treasonous. Not only were Trump’s comments imbecilic, he is wholly in the pocket of Putin.”
Because it is 2018, Brennan was never asked to explain exactly how a press conference exceeds the gray threshold of high crimes and misdemeanors the Constitution sets for impeachment of a president, nor was he ever asked to lay a few cards worth of evidence on the table showing just what Putin has on Trump. No, Brennan is a man of his times, all bluster and noise, knowing as long as he says what some significant part of the country apparently believes — the president of the United States is either willfully or via blackmail under the control of the Kremlin — he will never be challenged. So it is all maniacal calls for impeachment of a president insufficiently patriotic, wrapped with Brennan’s own unshakable belief in his own perfect righteousness.
In that way Brennan squats alongside Nancy Pelosi and Cory Booker, both of whom said Trump is controlled by Russia, columnists Charles Blow and Tom Friedman in the New York Times who called Trump a traitor, an article in New York Magazine (which is fast headed to becoming the Zapruder film of Russiagate) speculating Trump met Putin as his intelligence handler, former counter-terrorism coordinator Richard A. Clarke speculating Trump was meeting with Putin to receive his next set of orders, and another former intelligence officer warning “we’re on the cusp of losing the American constitutional republic forever.”Brennan’s bleating has the interesting side effect of directing attention away from who was watching the front door as the Russians walked in to cause what one MSNBC analyst called Pearl Harbor and Kristallnacht. During the 2016 election when the Russiagate stuff was taking place, Brennan was head of the CIA. His evil twin, James Clapper, who also coughs up Trump attacks for nickels these days, was Director of National Intelligence. James Comey headed the FBI, following Last Man in the Line of Resistance Robert Mueller into the job. The noise from that crowd is loud enough to drown out any questions about where these guys were when they had the chance, sorry, the duty, to stop the Russians, out Trump as the Manchurian Candidate, and save the Republic.
The de minimis excuse, “everybody believed Hillary would win” is a blatant example of collusion: things that now rise to treason, if not acts of war against the United States, didn’t matter then because Clinton’s victory would sweep it all under the rug. Brennan’s continued public role screams whatever the Russians did only were crimes because they contributed to Clinton’s loss. Thus only after Clinton lost did it become necessary to create a crisis that might yet be inflated big enough (it wasn’t just the Russians as originally thought, it was Trump working with them) to justify impeachment. Absent that, Brennan would have simply disappeared alongside former CIA Directors into academia, or the lucrative consulting business. Brennan is now a public figure with a big mouth because he has to be. That mouth has to cover his ass.
Brennan’s all-impeachment, all-the-time barking is the latest chapter in a straight line of whole-of-government effort to overturn the election. Remember how recounts were called for amid (fake) allegations of vote tampering? Constitutional scholars proposed various Hail Mary Electoral College scenarios to unseat Trump. Lawsuits were filed claiming the hereto-largely unheard of Emoluments Clause made it illegal for Trump to even assume office. The media repurposed itself to the goal of impeaching the president. On cue, leaks begin pouring out implying the Trump campaign worked with the Russian government. It is now a rare day when the top stories are not apocalyptic, all unsourced, rocketed from Rawstory to HuffPo to the New York Times in the morning, the other way around for the scoop-of-the-day in the afternoon. Brennan fans the media’s flames as they do his, with a knowing wink saying “You wait and see. Soon it will be Mueller time.”But despite all the hard evidence of treason only Brennan and his harpy journalists seem to see, everyone is content to have a colluding Russian agent running the United States for a year and half. You’d think it’d be urgent close this case. Instead, Brennan heads an industry created to admonish us to wait out an investigative process underway through two administrations. And yet if Trump has really been a Russian asset since his 1987 trip to Moscow as many insist, why haven’t the FBI, CIA, IRS, Treasury or the NSA cottoned to that in the intervening years and now instead we’re waiting on Mueller in Year Two to prove it? At some point you might think people like Brennan would have to account for why no one has found what they insist is there. The IRS, for example, has watched Trump for decades (they’ve seen the tax docs even if Wolf Blitzer hasn’t), as have Democratic and Republican opposition researchers, the New Jersey Gaming Commission, and various New York City real estate commissions. Multiple KGB/RSS agents and others have defected, or report to us. The whole Soviet Union collapsed since some claim Trump became a Russian asset.
If Trump is under Russian influence, he is most dangerous man in American history. Under such conditions, you’d think Brennan, et al, would show some alacrity outside Twitter and the Sunday talk shows. So why isn’t Washington on fire? Why hasn’t Mueller indicted someone for treason? If this is Pearl Harbor, why is the investigation moving at the pace of a mortgage application? Why is everyone allowing a Russian asset placed in charge of the American nuclear arsenal to stay in power even one more minute?You’d think Brennan would be saying it is now time to set aside chasing indictments of Russian military officers that will never see the inside of a courtroom, to stop wasting months on decades-old financial crimes unconnected to the Trump campaign, and quit delaying the real stuff over a clumsy series of perjury cases. “Patriots: Where are you???” Brennan asked in a recent tweet. If Brennan himself is a patriot, why doesn’t he leak the details, and save America?
Because there is one step darker that some seem ready to consider. Reuters writes “Trump is haunted by the fear that a cabal of national-security officers is conspiring in secret to overthrow him… Trump has made real enemies in the realm of American national security. He has struck blows against their empire. One way or another, the empire will strike back.” James Clapper is confirming New York Times reports Trump was shown evidence of Putin’s election attacks and did nothing, even denying them. In response to Helsinki, Tennessee Congressman Steve Cohen asked “Where are our military folks ? The Commander in Chief is in the hands of our enemy!”
Treason, traitor, coup, the empire striking back. Those are just words, right? The simpler answer is probably the correct one. Maybe that is, the lessons of Whitewater and Benghazi learned, the point is a perpetual investigation, tickled to life when needed politically and then allowed to fall back to sleep between outrage sessions. Because maybe deep inside, Brennan (Clapper, Hayden, Comey, et al) really does know, knows this is all like flying saucers and cell phone cameras. At some point the whole alien conspiracy meme fell apart, because somehow when everyone had a camera with them 24/7/365, there were no more sightings and we all had to sorta admit our fears had gotten the best of us, that the threat was inside us all along.
BONUS: This question on today’s test is an essay worth 100 points: Explain how Christopher Steele paid by the Democrats to knowingly seek a pee tape made by Russian intel as blackmail, differs from someone seeking DNC emails exposing corruption from an anon source who might be Russian intel. For extra credit, list all the ways both American presidential parties appear to have sought blackmail info from the Russians.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
American Credibility Requires a Turning Point on Trump
I remember when as an American diplomat I realized my government was no longer credible. We may be at that same point in the Trump presidency.
My moment was in 2006, in Hong Kong, where I was assigned to the American Consulate. It had been a difficult few years as an American diplomat, as crimes against humanity under the George W. Bush administration were being talked about in government circles, even if they had not yet been acknowledged publicly. America was torturing people. American invaded Iraq under a blanket of lies. And America opened a prison at Guantanamo. It was there the United States held Omar Khadr, and the Canadians wanted him out.
Omar Khadr was a 15-year-old Canadian grabbed off the battlefield in Afghanistan in 2002, believed to have killed an American soldier. After learning the child had been tortured, the Canadians wanted him transferred to their custody for his own safety, and in 2006 ordered their diplomats globally, to every American foreign service post, to make that demand (a demarche in diplomatic language.) I had never heard of Khadr before, but sitting there hearing from the Canadians how he had been treated I realized America had no credibility left when, among other things, it criticized Saddam Hussein for harming his own people as a secondary justification for the Iraq invasion.
At the table in far-away Hong Kong we knew none of us were going to free Omar Khadr, but the Canadians did their job and I did mine, pre-written talking points all around. We knew each other, and our kids went to the same school. So informally I also heard “we may not be able to work with you anymore on a lot of things if this fails.” Canada had sent troops to Afghanistan, withheld them from Iraq under American criticism, but the message was now a step too far had been taken, and while routine business would continue, they were probably going to wait on any big stuff until George W. Bush was out of office (Khadr was released to Canadian custody in 2012, and freed in Canada in 2015.)
I am hearing from former colleagues in diplomacy and intelligence Helsinki may have been a similar moment, requiring now a resolution of some sort in what is known as “Russiagate” to maintain credibility in America’s international interactions. Trump has more than two years left in office, some say six, far too long to wait out given the number of global issues requiring international cooperation.
As a diplomat you represent your own complicated country, and all sides understand that, hence the careful use of pre-written talking points over the fate of Omar Khadr. But from the Secretary of State on down, credibility is a crucial tool in getting things down. Can you be trusted, not just personally, but to accurately convey what Washington wants to say to its allies, friends, and those it negotiates against? If you explain an American policy today, and the other side acts on that only to find the president tweeting out something else, however close your relationship may be personally with your counterparts, across the table you become a non-entity. How’s your daughter doing in school? Fine, just fine, let’s have lunch Tuesday, but please don’t ask me to support your UN resolution.
If I was sitting in an embassy job today and was asked informally by an ally to explain the president’s remarks in Helsinki, I would stumble for coherence. I know those foreign diplomats are reading the same media I am: a columnist in the New York Times calling Trump a traitor, an article in New York Magazine speculating Trump met Putin as his intelligence handler, a call by a former Central Intelligence Director to impeach the president, former counter-terrorism coordinator Richard A. Clarke speculating Trump was meeting with Putin to receive his next set of orders, a former intelligence officer warning “we’re on the cusp of losing the American constitutional republic forever,” or maybe just the parsed criticism of Trump from within his own party.
And alongside of all that, an indictment of Russian military personnel for hacking into the Democratic National Committee servers, the details released at a time that can only be read as as attempt to disrupt whatever initiatives Trump planned to pursue with Russia, followed by an arrest of a Russian agent timed to bookend the Helsinki summit. Some overseas will perceive those acts as a power struggle within the American government.
There is a lot in the air. In the face of all that, after what at best can be called a bizarre performance by Trump in Helsinki, how can American diplomats assure their counterparts they know who is in charge, that what they claim is American policy actually is policy, and that… that… in some way the president of the United States is not more sympathetic to an adversary than to his allies? No American diplomat today can answer to those points. It was thus unsurprising Secretary of State Mike Pompeo had little to say in Helsinki.
America’s global needs cannot wait out a Trump presidency, nor do they appear able to wait out whatever investigative process has been underway through two administrations. American intelligence began looking into Russiagate two years ago, with little substantive action taken by the Obama administration. The process has continued on the intelligence side undisturbed, along with new efforts by various parts of Congress, and by the Special Counsel. The multiple threads do not appear driven by a sense of crisis, and that is wrong.
There have of course been far worse moments in American history: the presidents who watched helplessly as the storm over slavery broke into Civil War, FDR and the Japanese internment camps, Nixon bombing Vietnamese civilians and prolonging the Vietnam war to help get himself reelected, and George W. Bush setting the Middle East aflame.
But we are here now, and Helsinki says either present the best possible evidence after two years of effort Donald Trump or his close associates actively worked with the Russian government, and thus remain beholden to it, or make it clear that is not the case. Getting things done in the world requires credibility, and it is now time to set aside chasing indictments that will never see the inside of a courtroom, those concerning financial crimes unconnected to the campaign, and a clumsy series of perjury cases. Post-Helsinki, we — America’s diplomats, its allies, its people — need to know who is running the United States.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Why I Support Julian Assange (And Why You Should Too)
This weekend I joined a number of people in an online vigil in support of Wikileaks’ Julian Assange.
People ask why I did it; Assange is at best imperfect in who he is and what he does. But supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press will be decided. Even if you think Assange doesn’t matter, those things do.
Assange is challenging to even his staunchest supporters. In 2010 he was a hero to opponents of the wars in Iraq and Afghanistan. Others called him an enemy of the state for working with whistleblower Chelsea Manning. Now most of Assange’s former supporters see him as a enemy of the state and Putin tool for releasing the Democratic National Committee emails. Even in the face of dismissed charges of sexual assault, Assange is a #MeToo villain. He a traitor who hides from justice inside the Ecuadorian embassy in London, or a spy, or some web-made Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions. But none of that really matters.Support is due because Assange ends up being the guy standing at a crossroads in the history of our freedoms – specifically, at what point does the need for the people to know outweigh laws allowing the government to keep information from view? The question isn’t new, but becomes acute in the digital age, where physical documents no longer need to be copied one-by-one, can be acquired by hackers from the other side of the world, and where publishing is far removed from the traditions, obstacles, safeguards, and often-dangerous self-restraint of traditional journalism.
A complex history precedes Assange. In 1971 Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act. A federal court ordered the Times to cease publication after an initial flurry of excerpts were printed, the first time in U.S. history a federal judge censored a newspaper. In the end the Supreme Court handed down a victory for the First Amendment in New York Times Company v. United States and the Times won the Pulitzer Prize.But looking at the Times case through the lens of Wikileaks, law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause… The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
The Supreme Court left the door open to prosecute journalists who publish classified documents by focusing narrowly on prohibiting the government from exercising prior restraint. Politics and public opinion, not law, has kept the government exercising discretion in not prosecuting journalists, a delicate dance around this 800 pound gorilla loose in the halls of democracy. The government meanwhile has aggressively used the Espionage Act to prosecute the whistleblowers who leaked to those same journalists.
The closest things came to throwing a journalist in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his book State of War. After a lower court ordered Risen under threat of jail to testify and disclose his source, the Supreme Court turned down Risen’s appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether there existed a gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause.In the end the government, fearful of setting the wrong precedent, punted on Risen. Waving the flag over a messy situation, then-Attorney General Eric Holder announced “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and was not punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into jail. To avoid the chance of a clear precedent that might have granted some form of reporter’s privilege under the Constitution, the government stepped away from the fight. The key issues now wait for Julian Assange.
Should the government prosecute Julian Assange, there are complex legal questions to be answered about who is a journalist and what is publishing in the digital world. There is no debate over whether James Risen is a journalist, and over whether a book is publishing. Glenn Greenwald has written about and placed online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher. Both men enjoy popular support, and work for established media. The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were all present in the New York Times’ case with the Pentagon Papers, and are present with American citizens Risen and Greenwald. Definitions and precedent may be forming.Assange is an easier target. The government has the chance to mold the legal precedents with such certainty that they may seize this case where they have backed away from others in the long-running war of attrition against free speech and the press.
Assange isn’t an American. He is unpopular. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted little information. Publishing in his case consists of simply uploading what has been supplied to him. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment protections simply by claiming clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would apply. Guilty, same as the other canaries in the deep mineshaft of Washington, DC before him, no messy balancing questions to be addressed. And with that, a unique form of online journalism would be squashed.
And that really, really matters. Wikileaks sidesteps the restraints of traditional journalism. Remember in 2004 the New York Times held the story of George W. Bush’s illegal warrantless eavesdropping program until after his reelection. In 2006 the Los Angeles Times suppressed a story on wiretaps of Americans when asked by the NSA. Glenn Greenwald said it plainly: too many journalists work in self-censoring mode, “obsequious journalism.” Meanwhile Assange has made mistakes while broadly showing courage, not restraint, under similar circumstances. The public is better informed because of it.Wikileaks’ version of journalism says here are the cables, the memos, and the emails. Others can write about them (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange a traitor), or you as a citizen can simply read the stuff yourself and make up your own damn mind. That is the root of an informed public, through a set of tools never before available until Assange and Internet created them.
If Assange becomes the first successful prosecution of a third party, as a journalist or not, under the Espionage Act, the government can turn that precedent into a weapon to attack the media’s role in any national security case. On the other hand, if Assange can leave London for asylum in Ecuador, that will empower new journalists to provide evidence when a government serves its people poorly and has no interest in being held accountable.
Freedom is never static. It either advances under our pressure, or recedes under theirs. I support Julian Assange.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Julian Assange and the Future of a Free Press (Long Form)
This weekend I joined a number of people including Dan Ellsberg, John Kiriakou, Scott Horton, and Caitlin Johnstone in a 38 hours online vigil in support of Wikileaks’ Julian Assange. People ask why I did it, because Julian Assange and his Wikileaks organization are at best imperfect in who they are and what they do. But those imperfections are both of interest and do not matter. Supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press in the digital age will be decided. Even if you think Assange doesn’t matter, those things do.
Supporting Julian Assange and Wikileaks is complicated. In 2010 a hero to then-opponents of American imperialism in Iraq and Afghanistan while being labeled by others as an enemy of the state for working with whistleblower Chelsea Manning, today most of Assange’s former supporters from the left see him as a enemy of the state for allegedly working with Vladimir Putin to leak the Democratic National Committee emails. Many who opposed Assange’s work from the right now support him for helping defeat Hillary Clinton. Assange is a traitor who runs from justice, or a journalist, or a hero, or a spy, or some Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions.
Assange’s biography is challenging to even his staunchest supporters. After Wikileaks’ release of a half million highly classified documents in 2010, including evidence of war crimes and thousands of State Department internal cables, Assange was accused of sexual assault in Sweden under ambiguous circumstances. He was questioned there, but never charged or arrested, and left for the UK. The Swedes decided to continue their investigation, but instead of exercising options via Interpol to question Assange in the UK, instead insisted their inquiries could only be made on Swedish soil and requested the UK return Assange against his will. The British arrested Assange, though he was released on bail. Fearing the whole thing was a set-up to extradite him to the U.S. via Sweden, Assange jumped bail. Fearing the same faux process would see Britain send him to the U.S., Assange then obtained asylum, and later citizenship, from the Ecuadorian embassy in London. After claiming for years they could never interview him outside of Sweden, the Swedes reversed themselves and interviewed Assange in London in 2016. They soon dropped the charges. Britain meanwhile still plans to arrest Assange for failing to appear in court for an eight year old case that basically no longer exists, and will not assure him safe passage out of the UK. Assange has been living inside the Ecuadorian embassy for over five years.
Contrary to popular belief, embassies are not the sovereign territory of their owners. However, the 1961 Vienna Convention on Diplomatic Relations codified a custom that has been in place for centuries when it established the “rule of inviolability.” This prohibits local police from entering an embassy for any purpose without the permission of the ambassador. This is why Assange is safe from arrest as long as he stays within the walls of the Ecuadorian embassy, and of course in their good graces.
The idea of a lengthy stay inside an embassy for asylum is not new. The longest such episode was that of Hungarian Cardinal Jozsef Mindszenty, who spent 15 years inside the American Embassy in Budapest, protected from the Soviet Union. In 1978 Russian Pentecostalists broke into the American Embassy in Moscow, demanding protection from religious persecution. They lived in the embassy basement for five years before a deal sent them to Israel. In 1989, Chinese dissident Fang Li-zhi resided in the American Embassy in Beijing for a year before being allowed to travel to the United States. More recently, in 2012, blind Chinese dissident Chen Guang-cheng spent six days in the American Embassy in Beijing, before then-Secretary of State Hillary Clinton negotiated his safe passage to the U.S. The irony is in all those incidents, the United States was the protector. America today instead looks petty and mean standing alongside Soviet Russia and Communist China in pressing hard against one man aside the broader wave of history.
Should some process deliver Assange into American custody, he would be charged under the Espionage Act, a 1917 law used aggressively by the Obama administration to prosecute whistleblowers, including Chelsea Manning, and by the Trump administration to prosecute whistleblower Reality Winner. Under the Act, Assange would be prohibited from offering a “public interest” defense; his unauthorized possession of classified materials alone would ensure a guilty verdict, in that the Act does not distinguish between possession for journalistic purposes to inform the public, and possession say with the intent to hand over secrets to Russian intelligence. Assange, as with the others prosecuted under the Espionage Act (Edward Snowden would face similar circumstances on trial in America), would be found guilty and simultaneously be denied the chance to defend himself based on a free speech/public interest defense. The Espionage Act was created long before anyone coined the phrase Catch-22, but it seemed to have that spirit in mind.
But support for Assange, as for Snowden and other whistleblowers yet unnamed, is due because the stakes go far beyond one person’s rights and freedoms. What happens to Julian Assange will set precedent regarding free speech, freedom of the press, and the publication of classified and suppressed documents in pursuit of an informed public and representative accountability for many years to come.
The Espionage Act has a sordid history, having once been used against the government’s political opponents. Targets included labor leaders and radicals like Eugene V. Debs, Bill Haywood, Philip Randolph, Victor Berger, John Reed, Max Eastman, and Emma Goldman. Debs, a union leader and socialist candidate for the presidency, was, in fact, sentenced to 10 years in jail for a speech attacking the Espionage Act itself. The Nixon administration infamously (and unsuccessfully) invoked the Act to bar the New York Times from continuing to publish the classified Pentagon Papers.
Assange poses a dilemma for the United States in its ongoing push-pull in balancing the power of the government to protect classified information (rightly or wrongly), the clear guarantees to free speech and a free press in the First Amendment, and the broader concept of the need for an informed populace to challenge their government and make a peoples’ democracy work in practice.
At what point does the need for the people to know outweigh any laws allowing the government to keep it from view, such that someone may expose information, despite its classification? If punishment appears necessary, should the thief be punished, should the journalist who publishes it be punished, or should neither, or should both? The questions become acute in the digital age, where physical documents no longer need to be copied one-by-one, and where publishing is far removed from the traditions, obstacles, safeguards, backdoor pressures, self-restraint, and occasional deep subject matter knowledge of traditional journalism.
A complex and at times ambiguous history precedes Assange. In 1971 Daniel Ellsberg leaked the classified Pentagon Papers to the New York Times. The Papers were a 7,000 page classified history of the Vietnam War prepared under the order of then-Secretary of Defense Robert McNamara. We know now McNamara, while publicly supporting the war, was privately consumed by doubt, and ordered the Papers written as his act of contrition.
The risks for journalists were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act. The Nixon administration found a court to order the Times to cease publication after an initial flurry of excerpts were printed in June 1971, the first time in U.S. history a federal judge censored a newspaper. Things got so dicey the Times’ outside counsel actually quit the night before his first appearance in court, claiming the newspaper, his own client, had indeed broken the law.
Despite such pessimism, the Supreme Court handed down a landmark victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ellsberg was charged under the Espionage Act, though his case was dismissed for gross governmental misconduct and illegal evidence gathering without the underlying issues being addressed, most prominently Ellsberg’s defense he was morally compelled to leak the classified information to the Times, claiming “I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public.”
But looking at the Times case through the lens of Wikileaks, University of Texas law professor Steve Vladeck is careful to point out “Although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause… The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
In its simplest form, the Supreme Court left the door open for the government to prosecute both the leaker who takes the documents (by dismissing the case without setting a precedent) and the journalists who publish them (by focusing narrowly on prohibiting the government from exercising prior restraint.)
What has happened since has been little more than a very delicate dance around the 800 pound gorilla in the halls of democracy. The government has aggressively prosecuted whistleblowers under the Espionage Act (The Obama administration prosecuted eight whistleblowers under the Espionage Act, more than all previous presidential administrations combined) while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them.
In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.
The closest things came to throwing a journalist in jail over classified information was in 2014, when Obama administration Attorney General Eric Holder gave federal prosecutors permission to subpoena New York Times reporter James Risen regarding a former employee of the Central Intelligence Agency. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his 2006 book State of War. Holder issued the subpoena in line with his July 2013 Department of Justice guidelines on seeking information from the news media. That guidance sought to circumvent a court precedent being set by providing limited, discretionary protection for the media in some civil and criminal proceedings following scandals involving the DOJ seizing phone records and emails of reporters from the Associated Press and Fox News.
Risen refused to comply with the subpoena, which would have required him to disclose his source. After a lower court ordered Risen under threat of jail time to testify, the Supreme Court in June 2014 turned down Risen’s appeal. That left him facing a choice to reveal his source or go to jail. The Court’s one-line order gave no reasons but effectively sided with the government in a confrontation between securing evidence in a national security prosecution and an intolerable infringement of press freedom. The Supreme Court refused to consider whether there existed a sort of gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause. By not making a new decision, the Court effectively upheld the existing decision by a federal appeals court finding that the Constitution does not give journalists special protection from the law.
That decision was more or less in line with the ambiguous way the Supreme Court has always looked at the unwritten special protections for journalists. The only real ruling on what special rights the media may hold under the free press clause came in 1972, in Branzburg v. Hayes. The Court decided reporters were not shielded from grand jury subpoenas, asserting judges must strike a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.” From time to time lower courts have chosen to interpret that phrase as meaning there is indeed some sort of unwritten balancing test concerning the media, while other courts have read the same words to mean media should be compelled to testify.
In the end of the Risen case, the government, fearful of setting the wrong precedent and confident it otherwise had the evidence to convict Jeffrey Sterling, punted. Waving the flag noblely over a messy situation, Attorney General Holder announced “As long as I am attorney general, no reporter who is doing his job is going to go to jail.” Federal prosecutors asked the U.S. District Court in Alexandria, Virginia to “exclude James Risen as an unavailable witness” and said the jury “should draw no inferences, favorable or unfavorable” based on his absence as a witness.
Risen didn’t testify, and was not punished for publishing classified material by the government’s choice to back away from his case. The alleged leaker, Jeffrey Sterling, was thrown into jail for over two years. In 2015 Google turned over the Gmail account and metadata of a WikiLeaks employee in response to a federal warrant.
No court precedent was set. The door was left open. To avoid a clear precedent that would grant journalists a reporter’s privilege under the Constitution, the government stepped away from the fight. While the balancing question of the “public interest” has been poked at in other contexts, no one has shown where the balancing point is between the government’s need to protect information, a citizen’s right to expose information, and the media’s right to publish it. That all waits for Julian Assange.
Should the government bring Espionage Act charges against Julian Assange, there are complex legal questions to be answered about what if any First Amendment protections if any apply. Assange is not an American citizen and was not under U.S. jurisdiction when his actions regarding classified documents occurred. Is the fact that Wikileaks’ servers reside outside the United States and thus outside the protections of the First Amendment controlling, or does cyberspace lack such boundaries? By the way they chose to bring their case, government attorneys can influence how legal precedent is set on those matters. And if the United States can prosecute someone under those circumstances, any other government could demand foreign reporters anywhere on earth be extradited for violating their laws.
The question also exists of who is a journalist and what is publishing in the digital world where thousands of files can be uploaded to a site instead of waiting for printing presses to run off copies. There is no debate over whether James Risen is a journalist, and over whether producing a book is publishing. Glenn Greenwald, Jeremy Scahill, and The Intercept, who have for years been writing about and placing online highly classified documents given to them by Edward Snowden, have never been challenged by the government as “journalists” or “publishers.” The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were present in the New York Times’ case with the Pentagon Papers, and are present with Risen and Greenwald, et al. All involved are American citizens.
Almost none of that applies to Assange. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted information at times and not at others. Publishing in his case consists of simply uploading what has been supplied to him to a website. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment or reporter’s privilege protections whatever they may be — clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) in the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization would apply. Guilty, same almost all of the leakers, whistleblowers, data thieves, hackers, and other canaries in the deep mineshaft of Washington, DC before him.
And that really, really matters. Wikileaks sidestepped the restraints of traditional journalism to bring the raw material of history to the people. Never mind whether or not a court determined disclosure of secret NSA programs which spied on Americans disclosure was truly in the public interest. Never mind the New York Times got a phone call from the President and decided not to publish something. Never mind how senior government officials are allowed to selectively leak information helpful to themselves. Never mind what parts of an anonymous technical disclosure a reporter understood well enough to write about, here are the cables, the memos, the emails, the archives themselves. Others can write summaries and interpretations if they wish (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange and his sources traitors), or you as an individual can simply read the stuff yourself and make up your own damn mind about what the government is doing. Fact checks? There are the facts themselves in front of you. That is the root of an informed public, through a set of tools and freedoms never before available until the Wikileaks and Internet created them.
Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all of the press. If Assange becomes the first successful prosecution of a third party under the Espionage Act, the government can then turn that precedent into a weapon to aggressively attack the media’s role in say national security leaks. Is a reporter, for example, publishing a Signal number and asking for government employees to leak to her in fact soliciting people to commit national security felonies? Will media employees have to weigh for themselves the potential public interest, hoping to avoid prosecution if they differ from the government’s opinion? The government in the case of Assange may see the chance to mold the legal precedents with such certainty that they will seize this chance where they have backed away from others. The Assange case may prove to be the topper in a long-running war of attrition against free speech.
In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006 the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”
Assange, and those who follow him in this new paradigm of journalism and publishing, have made mistakes while broadly showing courage, not restraint, under similar circumstances and the public is better informed because of it. In the words of one commentator, “WikiLeaks liberates the right to free speech from authorities that restrict access.” Along the way the 2007 release of the Kroll report on official corruption in Kenya affected a national election, while in 2009 Wikileaks exposed the moral bankruptcy of Iceland’s banks. A 2011 Amnesty International report pointed to the role of leaked documents in triggering revolutionary global uprisings. The BBC said Wikileaks revelations were a spark for the Arab spring.
“This is the biggest free speech battle of our lifetimes,” said the Electronic Frontier Foundation. “This is the moment when we will see whether publishers can continue to freely distribute truthful political information online.”
I support Assange because he is someone who fell into a place and time where crucial decisions will be made. Allowing Assange to speak now, and to travel unfettered to Ecuador and permanent asylum will allow others after him to continue to provide evidence when a government serves its people poorly and has no interest in being held accountable. Prosecution of Julian Assange can only come from a nation which fears the noise of democracy and prefers the silence of compliance.
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Thomas Jefferson’s Ghost Visits the White House
(Replaying an old favorite blog post for this July 4th…)
“Who the hell are you?” said a startled Barack Obama, clad only in his Kenyan flag boxers.
“Easy Barack, chill. Wait, sleeping alone? Awkward. Anyway, I’m Thomas Jefferson, or at least his ghost. Every once in awhile I get bored haunting the attic at the White House and come down to visit, see how the wonderful democracy we created is doing. Add any new rights to our Bill of Rights recently?”
“Um, it sort of hasn’t gone that way. Except maybe for the Second Amendment, lots of solid growth there,” said Obama.
“Yes, yes, even upstairs we’ve heard the gunshots. You realize we intended that so Americans would be ready to serve as citizen-soldiers when called up to form militias, right? We never wanted a large standing army, and figured if every stout yeoman farmer retained a musket that would pretty much cover it. I’ll check my notes, but I am pretty sure we never intended the Second to end up arming unhindered homophobic maniacs, or angry white guys who hate abortion in the name of a Christian God, with bazookas.”
“Sure, Tom, we may have made a misstep or two, but we had a couple of Democrats stage a sit in on the House floor to demand gun control,” said Obama.
“Hmmm. Sitting down when they should be standing up for something? And why weren’t you with them, Barack?”
“Um, I had Hamilton tickets, couldn’t make it.”
“Oh, jeez, Hamilton, again. Where the hell’s my musical? Anyway, how are the rest of the Amendments doing?” Jefferson said.
“Well, Tom, we had to make a few… adjustments. Time of war and all.”
“Good God, did a foreign army invade Boston? Damned Canadian troops cross the border? British Men o’ War in New York harbor? What is this war?”
“Well, 15 years ago some guys killed about half as many Americans who have died in the wars we started since then. That’s kinda it, really,” said Obama. “Been basically riffing off that ever since.”
“And?”
“And so we pretty much trashed the Fourth Amendment and now spy on all Americans 24/7. The First Amendment, especially the right to free speech part, that hasn’t held up well, either,” said Obama. “And you have to take your shoes off at the airport but none of us remember why that is anymore.”
“But Barack, a well-informed citizenry, secure in their persons and papers, who can assemble to speak truth to their government is essential,” Jefferson said. “Actually, that’s kinda the whole thing.”
“Sure, we have free speech zones at all the big events now, and CNN holds TV townhalls with pre-selected questions. Got that covered. But don’t ask me about due process. I kinda kill American citizens abroad with drones now. Yeah, so there’s that. You know what a mic drop is, Thomas?”
“OK, OK, I glanced at a newspaper on my way down here, and at least there is some good news. I see that you finally corrected the biggest mistake we made with the Constitution, and got rid of slavery. Indeed, I see now that most Americans are even saying how much Black Lives Matter. That is a very nice sentiment,” Jefferson said.
“Thomas, maybe you better sit down and I’ll explain…”
Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Buy Peter's Books on Amazon!
