• Archive of "Post-Constitution America" Category

    The War on the First Amendment Didn’t Start Last Week

    May 11, 2017 // 46 Comments »

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    For those who woke a week ago to discover the First Amendment is under attack, I lost my job at the Obama/Clinton State Department in 2012 for writing We Meant Well, a book the government did not like, and needed the help of lawyer Jesselyn Radack and the ACLU to push back the threat of jail.


    My book was critical of actions in Iraq under both the Obama and Bush administrations. One helped protect the other.

    Braver people than me, like Thomas Drake, Morris Davis, and Robert MacLean, risked imprisonment and lost their government jobs for talking to the press about government crimes and malfeasance. John Kiriakou, Chelsea Manning, and Jeff Sterling went to jail for speaking to/informing the press. The Obama administration tried to prosecute reporters from Fox and the New York Times for stories on government wrongdoing.

    Ray Maxwell at the State Department went public with information about Clinton’s email malfeasance before you had even heard of her private server. The media called him a liar, an opportunist, and a political hack and he was pressed into retirement.


    Indeed, Obama prosecuted more federal whistleblowers under the Espionage Act than all previous United States presidents combined, including Richard Nixon, Ronald Reagan and George W. Bush.

    The Obama administration also set a record (77%) for redacting government files or denying access to them in fiscal year 2014 under the Freedom of Information Act.

    More than any previous administration, Obama took longer to turn over files, said more often it could not locate documents, and refused a record number of times to turn over time-sensitive files quickly, requiring years-long legal actions to be brought to force the government’s hand. In the case of Hillary Clinton, files considered “unclassified” in one context were redacted in whole in another.

    Though the backlog of unanswered requests grew by 55%, the administration cut the number of full-time Freedom of Information Act employees by 7.5%. Despite the critical nature of the documents to the election, the State Department was allowed to do its Freedom of Information Act screening of the Clinton emails largely with an ad hoc crew of retirees. The impact on journalists, and the right of the people to know, was immeasurable.


    So spare me. The war on our freedoms was well under way before last week. Where the hell were you and your safety pins then?




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    Posted in Democracy, Post-Constitution America

    John McCain, Human Rights and Our National Mental Illness

    May 9, 2017 // 27 Comments »

    mccain obama bff



    There’s that lay definition of mental illness where you come to believe you’re the only sane person left in the room. I think that’s where I am right now.


    In last week’s address to State Department employees, Secretary of State Rex Tillerson stated out loud what has been America’s foreign policy forever, the idea that basing our policy too heavily on values creates obstacles to advancing our national interests. Tillerson basically restated the Kissinger line of realpolitik, which is what the U.S. had been doing since WWII even without a snooty name to it: offering lip service to rights and human values and democracy as expedients while supporting scum bag dictators as they fit our real needs.

    That’s how you got the CIA overthrowing regimes in Iran and throughout Central and South America, why the U.S. supported terrible autocrats in South Korea, Taiwan, and the Philippines, and where the roots of American backstopping of non-democratic regimes such as in Egypt, Iraq, and Syria lay. The plan was pretty clear: make nice speeches (“Women’s rights are human rights”) in China calling out America’s adversaries while doing nothing to promote those same ideals in America’s allies in places like Saudi Arabia.



    But as with so many traditional American travesties that have long existed but were not spoken of pre-Trump, things are different now. And so in a full-on flag waving Op-Ed, America’s Crusty Old Man McCain uncorked a lengthy rebuttal to Tillerson’s plain speaking. McCain got in every cliche from the oldest John Wayne movies to the latest Chevy truck commercials in standing up for ‘Merica the world’s human rights policer. Here’s a taste of what he wrote:

    Human rights exist above the state and beyond history… They inhabit the human heart, and from there, though they may be abridged, they can never be extinguished. We are a country with a conscience. We have long believed moral concerns must be an essential part of our foreign policy, not a departure from it. We are the chief architect and defender of an international order governed by rules derived from our political and economic values. Our values are our strength and greatest treasure. We are distinguished from other countries because we are not made from a land or tribe or particular race or creed, but from an ideal that liberty is the inalienable right of mankind and in accord with nature and nature’s Creator.

    Depriving the oppressed of a beacon of hope could lose us the world we have built and thrived in. It could cost our reputation in history as the nation distinct from all others in our achievements, our identity and our enduring influence on mankind. Our values are central to all three.


    I can’t be the only one stunned by the irony here.

    McCain’s seminal experience — surviving as a prisoner of war under torture in North Vietnam — was as part of a horrific war the U.S. waged against the agrarian nation in Vietnam for… no clear purpose. Millions of civilians were killed to “free” them, with aerial bombing taking away their rights to life in the crudest fashion. The Vietnamese people voted after WWII to become a single (Communist) nation, and the United States intervened to put a stop to that. Every single prediction of the time that was made to justify that war turned out to be wrong; Vietnam today prospers, and continues to seek ways to join closer to the world system McCain imagines the U.S. created as something akin to an act of God.


    But don’t believe me. Let’s ask the relatives of those killed and maimed by America in Vietnam if they agree with McCain that “We are a country with a conscience.”

    After that, let’s chat up some of the Koreans tortured by the U.S.-supported dictator Chung-hee Park, or Filipinos under U.S.-supported Ferdinand Marcos, or the families of those murdered by American drones across the Mideast. Or maybe those still currently under American torture at Guantanamo. Let’s ask the ghosts of those killed by American weapons in (deep breath) Korea, Vietnam, Laos, Cambodia, Haiti, Dominican Republic, El Salvador, Guatemala, Honduras, Chile, Yemen, Libya, Iraq, Syria, Grenada… oh, you go look up the rest. Or call John McCain’s office and ask his staff for a complete list.

    And of course I’m focusing on foreign policy hypocrisy here. But America the nation of conscience practices hypocrisy at home as well. Despite being among the wealthiest nations globally, America stands alone without a comprehensive health care system. And so suffers 6.1 deaths for every 1,000 live births, higher than Hungary, Poland, the United Kingdom, and Australia. Finland and Japan had less than half the rate of the United States. America has the highest rates of incarceration in the world, and stands by as 1 out of 5 children live short of food. Americans are 10 times more likely to be killed by guns than people in other developed countries. Our elections are undemocratic mish-mashes of gerrymandering, voter fraud, foreign hackers, and the influence of massive amounts of corporate money and payoffs. America clung to slavery as a economic foundational element long after most of the world moved forward.


    The truth? You can’t handle the truth. The truth is the United States maintains a bloody, warist, hypocritical record that would at least find a touch of purity in admitting we conduct our foreign policy with the greatest of self-interest. The only question left is to ask who is crazier at this point: McCain, who may believe the hogwash he is peddling, or the Americans who read it uncritically.




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    ProPublica Attacks First Amendment, Cloudflare Edition

    May 8, 2017 // 12 Comments »



    You’re almost certainly interacting with Cloudflare right now. Feel OK?

    Cloudflare is a web services company that, among other things, protects sites against various malicious attacks and hacks. They don’t “host” data in most cases, but work as a kind of middleman between you and the server out there somewhere on the web that has the actual data. Cloudflare processes more web traffic than Twitter, Amazon, Apple, Instagram, and Wikipedia combined, because it handles data for most of those places at the same time. On average, you have interacted with a Cloudflare service 500 times today. This blog uses Cloudflare, as does the FBI, OKCupid and The Daily Stormer.

    You may not be as familiar with The Daily Stormer, but it is a nasty white supremacist site. They feature all sorts of hate, with a particular focus on anti-Semitism. Real garbage. But garbage fully protected under America’s long tradition of free speech (and yes, I understand the legal side of the First Amendment applies to government and not private businesses, but the broader concept of free speech underlies every democracy and has been the cornerstone of our inalienable rights in America. America at its best has always sought ways to broaden speech and access to ideas, not game ways to block them.)


    Yet in another example of assault on free speech from the left, investigative journalists ProPublica are now “outing” Cloudflare for providing business services to The Daily Stormer.

    ProPublica writes:

    The operations of such extreme sites [The Daily Stormer] are made possible, in part, by an otherwise very mainstream internet company — Cloudflare. The widespread use of Cloudflare’s services by racist groups is not an accident. Cloudflare has said it is not in the business of censoring websites and will not deny its services to even the most offensive purveyors of hate.

    The wording, implying Cloudflare has some special affinity for racist groups, is noted.


    Though it only cites three specific cases, ProPublica also makes much out of claims that Cloudflare, in accordance with its policies, forwarded content-related complaints about The Daily Stormer it received to the site itself. Apparently persons offended by Stormer’s speech wrote to Cloudflare demanding censorship. The complaintants felt their voluntary, public demand, to include their real names and contact information, demanding censorship, should itself be kept top secret from those they wished to censor.

    The idea is that (three) people offended by The Daily Stormer sought to shut the site down by threatening the “printer,” Cloudflare, who conveys information in a content neutral fashion. ProPublica is in favor of this.

    Of course shutting down printing presses to prevent the spread of ideas is old-school fascism. Sad to see a group like ProPublica, which thrives under the broader ideals of unfettered speech, trying to do away with such protections for others.

    I also guess as journalists ProPublica are unfamiliar with the trial of Peter Zenger, where, in pre-revolutionary America the government tried to punish a printer Peter Zenger for printing something offensive someone else wrote. Defended by Alexander Hamilton, Zenger was found not guilty. The trial is seen as the beginnings of what became our mighty First Amendment, and a significant victory for free speech. It established the precedent that you can’t shut down a means of conveyance of speech as a backdoor way to censor speech.



    Now, c’mon, I get it.

    Actually, ProPublica is familiar with the Zenger trial, citing its precedents on libel in a November 2016 article regarding fears that then President-Elect Trump might threaten parts of the First Amendment.

    ProPublica are smart people, and they understand the Zenger case and they understand the root value of free speech in America. But they are trying to be clever, talking fast to the rubes on the left who suddenly “woke” to allow their prejudices to be manipulated. It’s fundraising time, and groups like ProPublica know the money right now is to be made not in content-free defense of free speech, but in being seen as part of The Resistance.

    They know in the Age of Trump no progressive is going to stand up for the rights of unpopular speakers on the right, even though real progressives know that’s the pure thing to do in our democracy and always has been. Nope, the good guys are going to look down at their shoes and mumble mumble when these tough issues arise, say something about “means to an end” and the “greater good” and allow once stalwart defenders of liberty like ProPublica to get away with peddling hate in the guise of opposing it.

    Just know not everyone is fooled, and some of us are making notes. And that every call for censorship risks someone returning the favor.



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    How Berkeley and NYU’s Anti-Free Speech Actions are as Unconstitutional as Hell

    May 6, 2017 // 6 Comments »



    Ann Coulter will not speak at Berkeley this week because the threat of mob violence lead campus authorities to claim they could not protect her. The same threats led New York University (NYU) to cancel Milo Yiannopoulos’ appearance in February. These are shameful actions by two universities, and they are unconstitutional as hell.


    Previous violence at Berkeley directed against Yiannopoulos, as well as the current threats, originated with a coalition of so-called antifa’s, anti-fascists, persons who believe in Trump’s America violence to silence speech they do not agree with is justified. They probably are unaware their tactics were once used to silence civil rights marchers, anti-war protesters, abortion rights advocates and the women’s movement. Because the law that now shames Berkeley and NYU comes from earlier efforts to protect those groups’ right to speak.

    The idea that a university cannot assure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t have to go to the trouble of protecting a controversial speaker, has become the go-to justification for persons on the left restricting speech from the right. Coulter and Yiannopoulos were singled out specifically for the content of their speech, which is indeed offensive to students and faculty who see danger in unpopular ideas. The universities’ actions are not content-neutral, the base requirement to restrict speech.

    But what those offended people think is irrelevant, because the Constitution is clear even when their minds are muddied. 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. The answer is not to ban speech outright simply to maintain order. But don’t believe me; it’s the law.


    landmark case from 2015 involving a group called the Bible Believers, who used crude language (“Turn or Burn”) at an LGBT event, provides the clearest guidance:

    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.”

    That an institution can shut down speech requiring physical protection has failed court tests in cases are diverse as Occupy protests and a Christian group which brought a pig’s head to an Islamic arts festival. Both sides in the abortion debate have slapped down the need to maintain public order argument outside clinics in defense of their right to speak. Any of those situations is at least as volatile as whatever Ann Coulter has been saying publicly since her first book came out in 1998, or Milo Yiannopoulos’ junior high school level homophobic slurs.

    The court have also long held mobs should not be allowed to exercise the so-called Heckler’s Veto, where whomever can literally “speak” the loudest gets to choose 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. Or, in Coulter and Yiannopoulos cases, simply threatens to do so.

    Allowing a de facto Heckler’s Veto to keep unpopular speakers from expressing their views, as Berkeley and NYU have basically done, also does damage long past two conservative speakers in April 2017. Allowing the Veto not only stifles a specific 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 while the administration and law enforcement stand aside?


    The most insidious use of the Heckler’s Veto, however, is what has happened at Berkeley and NYU, where the administration allowed people to create a situation that compels law enforcement to shut down a speaker in advance for them, abusing their own freedom to assemble to get the government to stymie someone else’s. The Supreme Court concluded the government’s responsibility in such circumstances is to control those who threaten or act out disruption, rather than sacrifice the speaker’s free speech rights. Berkeley and NYU chose not to comply, even though as recipients of public funds they were required to do so.

    The problems of having Ann Coulter speak on a campus are outweighed by the larger obligation to protect free speech. Getting rid of the speaker may be expedient but it is also unconstitutional. The ACLU knows that, because it took Coulter’s side, as did Elizabeth Warren and Bernie Sanders. There are plenty of lawyers working for Berkeley and New York University who know it too, but figure on a liberal campus in front of a sympathetic media they can get away with ignoring it.


    History, and jurisprudence, are not on the universities’ side.

    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 two of America’s prominent universities 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.



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    ProPublica’s Homophobic Witchhunt

    May 5, 2017 // 9 Comments »




    How to run a witch hunt:

    1) Make accusations as dramatic and salacious as possible;
    2) Play to existing fears and prejudices;
    3) Cite the greater good that makes way for necessary evil.

    So, if you’re Joe McCarthy in 1950s America:

    1) The government is full of Communists. Some are gay, subject to Commie blackmail!
    2) America is under threat for its very survival, and traitors are everywhere. Maybe even… you?
    3) We may need to destroy the lives of a few innocents, but isn’t our nation worth that risk?

    Or if you’re ProPublica in 2017:

    1) A Trump political appointee has (been accused of) sexually assaulting boys!
    2) Trump himself is a sexual assaulter, and his administration has shown it does not vet appointees (some work for Moscow!)
    3) Presenting accusations as evidence, headlining an issue resolved years ago, and pretending Googling is investigative journalism are necessary evils if we can pretend it is part of the Resistance.



    ProPublica is a non-profit organization that “produces investigative journalism in the public interest… focusing exclusively on truly important stories, stories with ‘moral force.’”

    Which seems an odd claim in that their latest blockbuster is to revive settled accusations that a minor Trump political appointee sexually assaulted fellow students at a military academy.

    ProPublica writes “Steven Munoz [above] allegedly assaulted five freshmen. His hiring at the State Department raises further questions about the Trump administration’s vetting process.” The story lists accusations of unwanted sexual touching from 2009 that first surfaced in 2012 via a leaked email, when Munoz did some work for the Rick Santorum campaign. Munoz claimed the acts were consensual. All of the information is available via Google searches; no investigative journalism is needed.

    Upshot? A South Carolina prosecutor reviewed the case and its 200 pages of evidence and declined to seek an indictment in 2013.

    Accusations and an investigation that lead to no charges. That’s it.



    But ProPublica went on to write “Munoz’s hiring raises questions about the Trump administration’s vetting of political appointees, which has been both slow and spotty, with multiple incidents of staff being fired only weeks into their jobs, including for disloyalty to Trump.” The implication is that the old, closed, accusations against Munoz should have been grounds to turn him down for an administrative job.



    So, ProPublica, what’s the story?

    If it’s that the military academy did a poor job of investigating the allegations, then write that story. If the local prosecutor failed in her responsibilities, then investigate and write that story. If you have evidence Munoz is sexually assaulting people in his political appointee job today in Washington, let’s hear it. If you can find that the Trump vetting process uncovered evidence of Munoz’ guilt and hired him anyway, let’ see that headlined.

    But if all you are doing is resurfacing old, dismissed allegations of a salacious nature in hopes of embarrassing the administration and making yourself look like The Resistance for a news cycle, then, no, you are just conducting an old-fashioned witch hunt.

    Shame on you, ProPublica, and your organization’s otherwise proud record.




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    Am I… Conservative Alt-Right?

    May 3, 2017 // 12 Comments »



    The New York Times took a piece I wrote strongly defending the right to free speech, the raw concept of unfettered speech from a content-neutral position, and called it Right Partisan Writing You Shouldn’t Miss, intended as a compliment.


    What I wrote was directly in line with the absolutist view of free speech and the First Amendment I have always taken: let them speak. Except for the very narrow and specific restrictions on speech defined over the years by the Supreme Court, let them speak. Let good ideas whoop bad ideas. Look for ways to allow more speech, not loopholes that might let an institution get away with silencing a speaker. It is as much of a philosophical argument as a legal one.

    My ideas are not particularly new. They are the same positions taken by the American Civil Liberties Union, and for that matter, most of the modern Supreme Court. I really didn’t invent anything here, though hopefully my version of the idea was neatly typed and well-presented.

    So how did I end up becoming a conservative for defending free speech?

    Though free speech should be an American position, for the most part it has been traditionally associated with progressive politics. Free speech enabled the civil rights movement, the women’s movement, got extreme acts of protest such as flag burning recognized as protected speech, ended silly and law enforcement resource-wasting campaigns against nude photos and naughty song lyrics, and grew alongside egalitarian tools like the Internet to bring all sorts of voices into the public marketplace of ideas.


    Yet in a few short months since Trump’s election, everything seemed to change.

    Some Progressives morphed into “anti-fascists” who believe it is OK to punch someone they deem a “nazi” in the head to silence their speech. Universities which made their political bones via the Free Speech Movement are trying tricks like de-platforming speakers (“You have a right to free speech but we don’t have an obligation to let you speak here.”) Those same people were only last summer raising their voices against so-called Free Speech Zones that fenced protesters off miles from the Republican and Democratic Party Conventions so they could protest to their heart’s delight without anyone hearing them.

    Students at liberal colleges are proud of themselves for shouting down invited speakers who say “offensive things,” and have even convinced themselves such a Heckler’s Vote is a form of free speech itself, instead of old-fashioned brownshirt mob rule. A key debate now is how much wiggle room private and semi-private schools have to get away with denying someone’s First Amendment rights. Some student groups are pleased when they think they’ve figured out a way around the 1A and can block a speaker, forgetting such tricks were used to silence the civil rights movement and women’s groups.

    My article defending the right of all to speak was pushed into “conservative” categories because the example I built the piece around was Ann Coulter at Berkeley. I have never heard Coulter speak. I’ve never read any of her books and to be honest, could care less what she has to say. From some quick Googling, it seems like my politics and Ann’s generally do not agree. And that’s the whole point of course –support her right to speak while not necessarily supporting what she says.

    That now, apparently, has become a right wing position to take. It is indeed a strange world.



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    Do American Airports Suck? Yes, Yes They Do

    April 26, 2017 // 16 Comments »

    tsa toy

    Traveling by air in America is one of the best ways to see the country, although it is not always the nicest view. I recently took a fresh look, with the goal of advising my foreign friends what to expect when they drop by the United States.



    Our Air Palaces

    You’ll enjoy our older airports’ retro-touches, which evoke the Golden Age of air travel of the 1950s and 1960s. The typical lack of free WiFi, just like when your parents first visited America, the two electrical outlets serving an entire wing of the airport, the toilets which have not been cleaned since when your parents first visited America, and the “Welcome Home Troops” signs reminiscent of those displayed for soldiers coming home from that war where America invaded your country, all quaintly harken back to simpler times.

    Your chances of finding public transportation to and from the airport are slim. Maybe if you look around there’ll be an old city bus for the workers (live like a local!) And stop standing out as a “tourist,” looking for trains that connect to the city center as you’ll find nearly everywhere else in the developed world. As you pay a month’s salary out to the cab driver who is cheating you just like in Cairo, or the Uber guy 23 hours into a shift trying to feed his family, think of it all as a great only-in-the-developing world story to tell if you survive to get back home.

    Keep in mind our newer airports are clean and shiny, and look like shopping malls, our most popular places of worship. You can buy the same stuff made in some other country in the airport as out of the airport, eat at the same fast food places, and sample the daily ration of fat required by all the pre-diabetic locals. The newer airports are also a lesson in economics. America has only three viable industries left: government, our largest employer (generally off limits to foreigners, though those we accuse of being terrorists are often taken in as a kind of adjunct), retail sales, and serving/delivering things to each other. See it all while you’re here!



    Security First

    But the real treat inside our airports is that most American of things, security.

    Prior to 9/11, no one but Nazis in old movies and zoologists mapping out elephant migration routes used the term “Homeland.” But now everyone in America does. You should try it, too. Say it with the right mix of fear and awe, and the locals might not even guess American English is not your first language.

    Speaking of which, one fun thing that distinguishes our international airports from those in many other third world countries is the near-exclusive use of English. Few Americans appreciate the efforts we go to as a nation to provide these gratis tutorial sessions to you.

    A curious fact is that American airport workers seem to believe that anyone can speak English if it is blasted at them loud enough and s-l-o-w enough. Idiomatic phrases, such as “ I SAID, liquids in a baggie, 3:1, c’mon, people are waiting behind you” will be taught to you by our security staff. If you don’t catch it all the first time, don’t worry, the worker will repeat it as many times as necessary. American passengers will often help out by advising you how to manhandle your laptop, tear open wrapped gifts, disassemble iPads, and pour out bottled water purchased earlier in the airport, all so you can speed through the security checkpoint enroute to Disneyworld and not Guantanamo.


    If you are new to our shores, understand removing shoes at the airport wasn’t always some sort of American custom, but we now embrace it with fervor. Even the Japanese, who are shoe-removing fetishists, often seem unsure about wearing only socks to tread upon a filthy public floor, but you jump right in. We also love to take off our belts, jackets, and jewelry at the airport. Play along; I once saw some yokels from Communist China, where the government controls their every action, worried pants might be next. Hah!

    They quickly found out we Americans would never bow to a bully government like they do at home. We instead wait in long, slow lines for our chance to appear before a petty government official with blind power over us, all for safety. Pay attention to our unique style of officials. Unlike in some parts of the world where holding near-life-or-death power over someone is just an excuse to collect bribes, or the bored-as-hell Euro style, our airport workers approach their task with gusto.

    If you get touched by a security agent on your private parts, that’s considered good luck by many.

    You may think this anger is all directed at you, as a foreign visitor. Actually, if you are from a Muslim country, it is all directed at you. But sometimes Americans are also often singled out for some fun.

    For example, on my last trip I was selected for random extra screening, which included removing a Chapstick from my pants pocket, and opening it in front of the security person as proof it was not terrorist balm meant to moisten my lips before shouting “Allah hu Akbar!”

    Just like with the foreigners, the agent spoke English loudly to me, as if to reaffirm we are all equal here in America. He also made me open my wallet in case it included a very, very thin gun. In some countries that might be seen as a request for a bribe, but here I understood it was just bullying by a public servant.

    What happened after I passed through the checkpoint I think as a “fun” freebie for those who comes from cultures that revere elders. After discovering a typo in the name on a boarding pass, security sent an elderly woman back to the airline counter for a new one even though she said that would cause her to miss her flight, after which she would need a new boarding pass once again. You’re not going to see something like that sitting at home!



    Boarding Your Flight

    At your the gate, be sure to see who boards first, as the list includes military in uniform. I know of no other country in the world that does that, so foreign friends, watch for it as a real “thing.”

    Americans will try and rush onto the plane as if they’re not sure that there’ll be a seat for them. But looks can be deceiving, because what those citizens are actually doing is playing one of America’s favorite blood sports, fighting for overhead storage space.

    See, the airlines had this idea that since everyone carries luggage on trips, if they charged a fee for luggage, they’d get rich. Americans responded as revolutionaries do, protesting such unjust laws by dragging enough crap on to the plane as “carry on” luggage that the aisles often look like the barricade scene from Les Miserables. The plane cannot accommodate all that stuff, and so a struggle ensues.

    Watch closely for regional variations, from passive aggression to outright close combat. Have your camera ready, and let the kids take a swing! If you miss that photo while boarding, you’ll see a slimmed down version of the scrum when it is time to exit the plane. Sometimes the exit fights are even more fun; people have been drinking inflight, and there are scores to settle from the boarding process.

    You’ll soon enough arrive at your American destination feeling very much like a local — exhausted and frustrated. And isn’t feeling like you belong somewhere new one of the real goals of travel anyway?



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    An Entire Generation is Likely to See Its Standard of Living Regress

    April 14, 2017 // 24 Comments »

    pigs_trough
    It is modern feudalism, happening in a slow motion crash as we watch, aware of what is coming down, but at first unwilling and likely now unable to stop it.
    Welcome to the Third World

    We are living in so-called first world societies where economic disparity is trending toward developing world levels. Some numbers you can argue about individually if you like (and how does your head feel buried in the sand?), but the aggregate situation is beyond debate:

    — The one percent holds 35.6 percent of all private wealth, more than the bottom 95 percent combined.

    — The 400 wealthiest individuals globally have more wealth than the bottom 150 million Americans.

    — Between 1983 and 2009, over 40 percent of all wealth gains flowed to the one percent and 82 percent of wealth gains went to the top five percent. The bottom 60 percent lost wealth over this same period.

    — A significant amount of the redistribution of wealth, redistributed upward, took place following the 2008 market collapses in the United States as bailouts, shorts, repossession of home and land, and new laws helped the top end of the economy at cost to the bottom. More and more of government is controlled directly by corporations.

    — The world’s one percent own $42.7 trillion dollars, more than the bottom three billion residents of earth.

    — A rising tide lifts all yachts, as historian Morris Berman observed. Less than half of Americans do not own any stock at all. The wealthiest of Americans own over 80 percent of all stock, and 40 percent of America’s land.

    It’s Getting Worse

    Now add to that grim tally new information that shows the problem of gross income and wealth inequality is getting worse.

    report from McKinsey finds that in developed economies such as the United States two-thirds of all households experienced “flat or falling” incomes over the past decade, from 2005-2014. In the U.S., the portion was even worse: 81 percent.

    “While the recession and slow recovery after the 2008 global financial crisis were a significant contributor to this lack of income advancement, other long-run factors played a role — and will continue to do so,” McKinsey notes. “They include demographic trends of aging and shrinking household sizes as well as labor-market shifts such as the falling wage share of GDP.”
    Capital Beats Labor Every Time

    As predicted by economists from Karl Marx to Thomas Piketty, this is the natural progression of capital (making money by owning things) over labor (making money by working.) It represents the same basic economic world of the Middle Ages, land-owning kings and serfs who have no option but to work the fields.

    It is statistically likely that you won’t live a better life than your parents did. The economic world of your parents and grandparents was an aberration, a one time exception that was called the American Dream. And even that was largely limited the white people.

    Do enjoy that gig economy youngsters, and hope Uber doesn’t put you out of an income by flooding the market with more drivers.

     

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    Crushing Free Speech (Oh, Let’s Save Democracy That Way!)

    March 15, 2017 // 45 Comments »



    I’m not advocating violence. I’m hoping to stop it.

    So this guy beat the crap out of this Black Lives Matter woman; she was spewing out hate speech, really racist stuff, and the guy acted in 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 1A only applies to the government, not private acts like his. 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.”

    After wiping hippie blood of his knuckles, this patriot took to a mainstream media outlet and wrote this:

    But this moment in American politics and American life proves that the victory of reason cannot always be assured. The purveyors of logic, of facts dutifully checked and delivered to the public, lost big league in November. The cost has been an erosion of our national character that we will be powerless to stop unless we fight prejudice wherever it lies. The critics of political correctness have argued that shutting down certain conversations may bear political costs and alienate potential allies. This is a certainty. Morality is alienating. But the costs of being moral have been borne successfully by innumerable movements for social change. This is, to borrow a phrase, a time for choosing.



    You get it yet?


    The actions above, and the quote above, were written by an author for Slate, in justification for the students of Middlebury College, and “activists” elsewhere, using acts like violence and shouting down speakers to stop speech they personally judged as hate and/or offensive or dangerous.

    The latest specific case involved some guy named Charles Murray. I have no idea who he is, but a lot of people say he is a racist so let’s go with that. But I don’t care.

    I simply cannot believe that it is the left, or progressives, or whatever name is best, that are attacking people’s speech. I’ve written extensively about what I call “Post-Constitution America,” an era that started on 9/11 where the rights enshrined in the Bill of Rights no longer applied. I never imagined it would play out this way.

    And I know that the 1A does not apply to non-government actions, no need to educate me. But I also cannot believe I have to tell people like the author of the article above that stopping people from saying things that offend them is exactly the tool real live fascists and anti-democratic people use. They send brownshirts to break up rallies, accuse activists of inciting riots, take away access to platforms like newspapers and media, by violence or any other means necessary.

    When you advocate for closing off speech, the bad guys have already won. If you’re too stupid to see that, please ask for a refund from wherever you got your reducation, because you learned nothing. In a free and open society you get some good and some bad and you are not allowed to define those words for others. You let the ideas exist so that each person can define them.


    And I sincerely hope when someone punches you, or shouts you down, or takes away your platform by hacking your website, you are equally tolerant of their goals and tactics. Idiots.




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    Free Speech Fascists Like Me

    February 27, 2017 // 52 Comments »



    For espousing the same beliefs about the First Amendment I did on November 8 (everyone speaks always, unfettered), I am no longer a patriot.


    Many of the groups and people who supported me then, and once supported the First Amendment absolutely, now call me a nazi, fascist, enabler, racist and normalizer.

    Because we live in odd times, and because too many people only read a sentence or two before losing their sh*t, I feel the need for a disclaimer. I am not now, nor have I ever been, a nazi, fascist, enabler, racist or a normalizer. I do not like people who are those things. I didn’t vote for Trump and I think he’s a lousy human. ‘Kay?

    But I very much am concerned about people in a nation whose core value should be free speech, people who claim they are resisting nazis, fascists, enablers, racists and normalizers, acting like them. Because anyone who uses violence to stop someone else’s speech is a fascist. Also, a bully. Have a look:




    So there’s the video. A guy is exercising his First Amendment right. He happens to be doing that by flying a Confederate flag, a symbol of hate. But what anyone is saying is irrelevant to how the concept of speech works. Indeed, the concept exists not to chat about the weather, but for the hard stuff, the offensive stuff. Including Confederate flags.

    If you take away the flag guy’s rights by violence you accomplish nothing but setting up the next retaliatory round where someone takes away your rights by violence. And if you can’t see where that leads, then you are far too stupid to be allowed outside on your own. It doesn’t matter if you think you’re on the barricades, or fighting Hitler, or #resisting something. You want your First Amendment rights, you accept others have them, too, and you are not the one to judge instead who is allowed to talk.

    Yet multiple media sources said things like “It is as good and as just to tear down Confederate flags as it is to punch Nazis.” The idea is if someone on the “right side” determines someone else’s speech is wrong, then it is “OK” to silence them with violence.

    You want to worry about authoritarianism? It always includes shutting up people you don’t want to listen to.

    I never, ever, in my life thought the right to free speech would be challenged so harshly from the Left. It makes me very sad, and very worried.


    BONUS: Inevitably some idiot who recently read something online will bring up “hate speech” as not being allowed under the First Amendment. Explained here. That link also covers the idea of speech that might incite a riot, another standard excuse for busting someone’s right to speech.

    Inevitably some idiot who recently read something online will argue the “OK to punch nazis” line. Explained here.

    And speaking of free speech and flag burning, here’s that explained, kids.

    For that guy who will inevitably write in, yes, of course I know the First Amendment applies to government, not officially/legally to some guy in the street who jumps yellow tape. But for America to stay away from fascism, we cannot dismiss the broader concept of unfettered speech and the exchange of ideas. We all know you would not be making the same back-of-the-classroom legal argument if the Confederate flag guy beat up a POC to silence him, admit it.

    The newest catch-phrase to use as an excuse to deny someone the chance to speak is “platform,” as in “The First Amendment doesn’t require us to give him a platform to speak at our school.” Well, sure, but of course if you only allow one line of thought to be spoken out loud, you are indeed denying speech. You just make it seem nicer to yourselves by using the word platform.

    Let them speak, all of them.



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    The Responsibility to Leak, and Leaking Responsibly

    February 23, 2017 // 96 Comments »




    I know you’re out there, and this is for you. What you’re weighing, it’s not as easy as you think. But it can matter more than anything else you do with your professional life.


    Washington is awash with leaks; if they were real water we’d all drown. The American people feel they are seeing the inner most workings of government, and it is not pretty. Powerful people are falling. Our democracy may be at risk. President Trump and his team have no intention of watching from the sidelines. There is a struggle going on, and people are taking sides.

    So if you’re a government employee sitting in a cubicle in Washington DC, what are you thinking? To leak or not to leak? Will you blow the whistle?

    I know more than a little bit about your decision. With 21 years of service at the Department of State, I was assigned to wartime Iraq in 2009. For me, when the waste, fraud, and mismanagement of the reconstruction program under Presidents Bush and Obama reached the limits of what in good conscience I could participate in, and after failing to see any change going through channels, I blew the whistle, via a book, We Meant Well. The State Department in response flirted with sending me to jail, tried to fire me in part for “lack of candor” in refusing to participate in their investigation, and in the end pursued me into an early retirement.

    I learned the decision to contact a reporter, or otherwise to blow the whistle, is a hard one. In the end you have to ask yourself one seemingly simple but actually complex question: is the juice worth the squeeze?

    As for that squeeze, an anonymous leaker must expect people to come looking; you’re taking on the President of the United States after all. If the past (including my case) is any guide, much of the action that follows a disclosure will be aimed at the leaker, not the information leaked. You will be scared going in, but the fear should make you cautious. You will need to learn what intelligence officers call tradecraft; you may end up trying to hide your actions from them. Whatever journey you embark on, fear will travel with you.

    There are real things to be afraid of. Following the example set by the Obama administration, someone exposing classified information may be subjected by the Trump administration to Espionage Act prosecution, with the near-certainty of Federal prison time if convicted.

    Think you’re too unimportant for an investigation? Safe because your leak was, as in my own instance, nothing remotely classified? Maybe. But the most effective way to silence the next person in your position is to have them afraid to even try. Your now-adversaries would love to get the high level leakers, but won’t care too much if the heads on display come from the lower ranks instead. Either way the point to those others out there still considering leaking is made.

    The administration will fight back in other ways, too. You are an anonymous source, an unnamed official, someone “with knowledge of the discussion.” It’s your word against that of a person who can appear on a major news program to offer up information (real or not) that discredits yours. Americans tend to assess truthfulness these days in line with preconceived beliefs, and that’s running about 50-50 on any given day in the Trump Era.

    That’s the squeeze for a leaker. Now the juice.

    You may not have the evidence of a still-smoking gun to “bring down” anyone. But you can contribute to a larger story, supply a missing puzzle piece, or nudge an investigative process forward. A big mosaic is made of little pictures. What you know likely does matter, and the people have a right to know what matters about their government. Who besides someone on the inside – you – can tell them?

    Things can change significantly if you decide to blow the whistle, as opposed to leaking. While there are legal definitions, the key difference is a whistleblower purposely gives up their anonymity; Edward Snowden is the best known example. The risks scale up geometrically after that – you are saying “here I am, come after me.” Legal protections exist, including the Whistleblower Protection Act, but they do not snap into place easily. You will need a good lawyer well before you blow any whistle.

    The returns for blowing the whistle can be significant, and it was this calculus (plus a dollop of ignorance I’m afraid) that lead me away from leaking into a full public disclosure. Standing up by name, you earn credibility against attacks ad hominen, and for the information you supply. Your presence encourages and empowers others. Your motivations are on display; you are more easily seen as a patriot than a partisan. And you aren’t just passing on information. You are bearing witness, at risk to yourself.


    As one who has been there, my counsel is to think practically, not emotionally. Think larger than yourself, and think larger than political gossip. If I had the chance, I would remind every potential leaker or whistleblower their oath of service was to the Constitution, not to any particular leader or party, neither the one in, nor out, of power. So act on principle, not ego or revenge or ambition; the power to disclose carries with it a responsibility to act ethically. Your conscience will then be bulletproof, something very important as you will spend a lot of time in there. No guarantees, but an ethical disclosure may be easier to defend as well.

    People of conscience, leakers and whistleblowers alike, we’re made. We’re made by what the government does and fails to do, and by what we witness. If government acted as the Founders expected it should, we would not be here, like mushrooms that didn’t pop up on a dry lawn.

    It’s what all of us share: a love of country, if not necessarily its politicians. It’s in your hands to be on the right side of this struggle. One courageous act of conscience can make a difference in an America gone astray. That will be your anchor on an unsettling and fearful journey. I made a choice to be a whistleblower. I’d do it again. To me, the juice was worth the squeeze. You?




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    U.S. Customs to Solve Terrorism by Asking Tourists for Their Social Media Accounts

    February 12, 2017 // 23 Comments »

    NSA_User_Activity_Leads


    The United States government seems to have a real thing for social media and terrorism, stoutly believing if only they could “take out” Twitter the global jihadi movement would collapse. Or something like that. Maybe it’s Instagram?



    Social Media vs. Jihad

    But while Trump talks the talk, Obama walked the walk.

    You may not know it, but since December the United States quietly changed the standard online entry form (ESTA) used by U.S. Customs and Border Protection, a part of your neighborhood Department of Homeland Security.

    The question added is “Please enter information associated with your online presence — Provider/Platform — Social media identifier.” The question is for all foreign travelers’ who use the visa waiver (visa-free) system for admission into the U.S. The form is not used for American citizens.

    The form also asks for info on citizenship, passport data, and contact information in the U.S., along with hilarious questions inquiring if the traveler is coming to the U.S. to commit espionage, sabotage or terrorism (seriously; see here). Not so many people answer Yes.

    The entry process for all foreigners already includes fingerprinting, photographing, an in-person interview, and numerous database checks.


    The U.S. government had 77.5 million foreign visitors in 2015. Collecting social media accounts for all visitors is producing one of the largest government-controlled databases of its kind.

    And even though the social media question is voluntary, apparently most travelers have been filling in the blank out of fear of calling attention to themselves and prompting further attention at the border.

    As a reminder to all those who bark fascism at every turn: this change went into effect by order of the Obama administration, not Trump’s.

    And who is having their social media examined? Citizens from the visa-waiver countries. No, no, not those naughty people from the Seven Banned Muslims nations, but American allies like Japan, the UK, Germany and the like. And guess what? There’s not been a word of protest, not a single court challenge. It’s almost as if people paid no attention to any of this before Trump came long.

    Mohammed Atta on Twitter?

    According to the rules, the new info “will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.”

    So the concept is that Mohammed Atta (for example) rolls up to the Customs checkpoint at the airport, and jots down his Twitter handle as @terrorist911 and then enters the U.S. to resume his flight lessons. Someone from Customs later trolls Atta’s account to discover “Shout out to all the brothers, gonna lay down some whoop ass on Septemb–” Ah poo, only 140 characters, now we’ll never know.

    Image Courtesy of Edward Snowden



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    Dark Threads of Immigration in America

    February 8, 2017 // 90 Comments »



    For those who say “This is not who we are,” well, look again. It all seems to be exactly who we are and have been.

    President Donald Trump’s executive order banning travelers, immigrants and refugees from seven predominantly Muslim countries is only the latest twist of dark threads that have always been present in America and its immigration policy. The executive order is not unprecedented. It is evolutionary, predictable, nearly an inevitable step.



    The Seven Targeted Countries

    Begin with the targeted countries, Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. America has bombed or used drones and special forces in six of them, and attacked the seventh with cyberwar. The Muslims there have suffered far in excess of a travel ban at the hands of America. Indeed, many of the refugees leaving those nations became refugees as a result of American war-making, often under the guise (Libya, Iraq, Syria) of “protecting” those people from an evil dictator, some Sunday morning talk show version of genocide, or a red line few outside the White House could see.

    The countries in Trump’s executive order have long been singled out for special treatment under American immigration law.

    Though Trump in his crude style talks about “extreme vetting,” such a process has been in place since the George W. Bush administration, continued under Obama, and is operating today. It has a nicer, if somewhat Orwellian name, “administrative processing.” On the list of nation affected: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. People from these nations, and a few others, go through an alternate visa processing procedure that delays their travel. The process involves various intelligence agencies vetting the traveler. Some applications are left to pend indefinitely, a de facto travel ban.

    The seven nations also were a part of the Bush-era Muslim registry, known as NSEERS.

    Trump’s seven nations also appear on an Obama-era list. That list, the equally Orwellian-named Visa Waiver Program Improvement and Terrorist Travel Prevention Act, disallows use of America’s visa-free travel program to persons who even once visited the targeted nations. So, for example, a British citizen otherwise eligible to enter the United States without a visa must instead appear for questioning at an American embassy abroad if she, for any reason, even as a journalist, stepped foot in Iran.

    That nations long-held to sponsor terrorism such as Saudi Arabia and Pakistan are not on Trump’s list is not surprising. They haven’t appeared on most of Bush’s or Obama’s lists either.



    Refugees Not Welcome

    Following Trump’s directives aimed at refugees it quickly became almost mandatory for celebrities and pundits to come up with a personal story or two about their family’s immigrant ties, and preach a bit about the Statue of Liberty and freedom.

    Left unsaid was that the number of refugees admitted to the United States is small compared to many other nations.

    The U.S. admitted a record number of Muslim refugees in 2016, some 38,901 of the nearly “>85,000 total refugees allowed into the U.S. Go back to 2006, and the total number of refugees admitted drops to under 50,000. Though there have been refugee “surges” into the United States such as Holocaust survivors following World War II (650,000 people) and the Vietnamese “boat people” (100,000) after the end of that war, Americans historically feared refugees, not welcomed them. Since 1980, the United States has accepted less than two million refugees overall, and 40 percent of those were children accompanying their refugee parent(s). The U.S. sets an annual ceiling on refugees admitted, currently 85,000. Refugee number 85,001, no matter how desperate her case, must wait until the next year.

    In contrast, among Syrians alone, Canada in 2016 took in about twice as many refugees as the United States. Some 25 percent of the entire population of Lebanon are refugees. Germany expects to admit 300,000 refugees from various nations in 2016, following close to one million in 2015.



    Discrimination by Nationality

    Following the 1965 Immigration and Naturalization Act, 8 U.S.C. 1152 Sec. 202(a)(1)(A) makes it unlawful to ban immigrants (i.e., Legal Permanent Residents, Green card holders) because of “nationality, place of birth, or place of residence.” The law however allows banning nonimmigrants such as tourists or students, as well as refugees, for almost any reason. Challenges to this are near-impossible. American courts have consistently upheld that they cannot exercise judicial reviewability over visa decisions made abroad in the specific, and more broadly, generally do not extend the protections of American law to foreigners outside the U.S. The Supreme Court has also long-acknowledged immigration law’s “plenary power” doctrine, which generally immunizes from judicial review the substantive immigration decisions of Congress and the executive branch.

    And even though legal immigrants are not banned by nationality or place of birth per se, restrictions on the number of legal immigrants from certain nations are limited to the point of near-virtual bans. For example, the restrictions are such that some Filipino and Mexican relatives of American citizens face a 24 year wait (another Orwellian term, “priority date”) for a Green card. It is not uncommon for applicants to pass away before their turn comes.



    Fear Itself

    However, the most evolutionary aspect of Trump’s executive action on immigration, and the inevitable hardening and expansion of such positions, is the underlying driver of it all: fear.

    The government of the United States, from September 12, 2001 through the present day, has constantly fanned the flames of fear of terrorism. Despite the well-known statistics of how an American here at home has a greater chance of being struck by lightning than dying in a terror act, that following 9/11 only a handful of Americans have fallen victim to acts of terror inside the United States, and despite the fact that few of any terror attacks inside the Homeland were committed by the poster child of fear, the foreign terrorist who infiltrates the U.S. specifically to do harm, Americans remain terrified.

    For over 15 years, three presidents have used fear (they called it security) as a justification for, well, nearly everything. And Americans bought the line nearly every time. Fear of the smoking gun being a mushroom cloud. Fear of terrorists slipping through the net justifying NSA spying on Americans. Fear of more terrorism justifying torture, drone attacks, leaving Guantanamo open, militarizing Africa, having us take our shoes off at the airport, not being able to bring a bottle of water on a plane, no longer being able to enter a growing range of buildings without some sort of security check and bag search, background checks, showing ID, and the No-Fly list. 30 American governors said they’d refuse to accept Syrian refugees into their states if they could.

    Trump’s use of executive orders to accomplish his immigration goals is also nothing new. Both Bush and Obama did the same. In fact, Franklin Roosevelt used an executive order to establish the World War II Japanese internment camps.



    The Ugly Truth

    Of course nothing Trump has done or has proposed regarding immigration will realistically make America safer. That is true, and it is irrelevant. Like much of the security theatre that has become normalized post-9/11, safety is not the point. Keeping fear alive and maintaining the politically-driven myth that government is on the job protecting the Homeland is what matters. Trump knows this, as did Obama and Bush.

    The ugly truth is despite the airport protests, a large number of Americans remain afraid of foreigners and want what Trump did. The ugly truth is there is unfortunately nothing here unique to the Trump era.



    BONUS: Those who focused last weekend on the two Iraqis who translated for the American military in Iraq at great risk to their lives and were detained at a New York airport may wish to read about the decades-long struggle of translators from Iraq and Afghanistan to escape those nations for fear of their lives, and the poor treatment they have received at the hands of now three administrations.


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    The Emoluments Clause, Impeachment, and Trump: An Explainer

    January 30, 2017 // 42 Comments »


    Many of the Wikipedia-driven insta-experts on the Electoral College are now transforming into insta-experts on the Emoluments Clause, claiming the Clause can be used to impeach President Trump. But it is not that simple. What is the Clause, and in practical terms, how might it affect Trump?


    Save Us Please, Emoluments Clause!

    Deep inside Article I of the Constitution are a handful of lines called the Emoluments Clause, intended to bar office holders from accepting gifts (the full definition of emolument includes a salary, fee or profit from employment or office) from foreign sovereigns, including in the language of the 18th century, kings and princes. The Founders’ intent was to prevent foreign influence buying.

    Insta-experts seem to be circle-logicing themselves into believing Trump will be in violation of the Emoluments Clause literally as he takes the oath of office, and thus impeachment proceedings can follow, all because of his global business interests.

    But unlike most everything else in the Constitution, issues connected to the Clause have never gone before the Supreme Court, there is very little case law, and very little legal study. It has simply not come up in any significant way. Journalists have discovered the Clause, however, and now are promoting it as a way to defeat President Trump.

    The problem is that much of what is being written appears to come from Clinton supporters in denial. The election failed, the recounts failed, the move to sway faithless Electors failed, the sludge of Russian allegations failed, Meryl Streep failed, and Beyonce not pole dancing at the inauguration failed. All that stands between democracy and the abyss is the Emoluments Clause.

    Luckily, there are non-partisan sources out there, including the American Bar Association, and the National Constitution Center. Before wading through your next fake news article, let’s synthesize some of what has been said about the Emoluments Clause.


    The Emoluments Clause

    The Clause is aimed at governments, those kings and princes, seeking to influence the United States. It has nothing to say about 21st century life, such as Trump’s companies doing business with entities controlled in whole or part by foreign governments (state-owned businesses, such as the Bank of China, as is common in many parts of the world.)

    The Clause is also untested in regards to complex corporate ownership. It is common in the media to state matter-of-factly “Donald Trump owns a hotel in Dubai.” Yet most of Trump’s business, like most corporate business in general, is done through a web of companies that are legal entities of their own. Some involve stockholders, some in which Trump holds a minority position. Similar questions would likely have been asked about foreign government donations to the Clinton Foundation had Hillary been elected president. None of this existed when the Clause was written, and all of this requires a 21st century judicial interpretation.

    Emoluments are more complex than simply doing business overseas. The Clause may allow for fair market price transactions, for example. So, if a piece of real estate is legitimately (and yes, we’ll argue over that word) valued at $100,000, it is not a bribe or a representation of influence to sell it for $100k. It would be more questionable to accept $150k. Some have claimed if a foreign diplomat stays at a Trump hotel, the standard room price paid would violate the Clause. That’s a question of legal exchange; if Trump accepts money from Iran to remove sanctions, that’s a bribe. If a Trump hotel collects money for a night in the bridal suite, that’s a simple exchange of goods and services. Does the Emoluments Clause apply?

    Some legal scholars argue the Emoluments Clause doesn’t apply to the president at all. A different clause of the Constitution makes bribery an impeachable offense. That clause specifically mentions the president by title, while the Emoluments Clause does not. In addition, other parts of the Constitution that specifically address the president typically include a separate delineation for “officials,” the wording used in the Emoluments Clause.

    That all suggests emoluments may exclude the president. However, precedent suggests the Clause does apply. George Washington was allowed to accept a foreign gift, Andrew Jackson was not, and Martin Van Buren had to agree to a 50-50 split with the State Department over gifts from the Imam of Muscat. And in 2009 the Office of Legal Counsel said President Obama could accept the Nobel Peace Prize money without violating the Clause. But all four men asked for an OK ahead of time. There was no actual challenge, and none of the cases involved doing business.

    Another issue is standing, who can sue over any of this to get it into the courts for a ruling. One legal professor feels no one seems to have such standing, and so states “if there are concerns about how President Trump handles his various investments, the only remedies will be political.” Meaning vote him out of office in the next election if you don’t like what he’s doing.

    There are also those who skip most of the legal arguments, and focus on the so-called larger picture; clearly the Founders did not want the president beholden to foreigners. So never mind the parsing of words, the Emoluments Clause was written precisely to stop a person like Trump.

    In terms of practical matters, the less Trump makes public about his business dealings, the less chance anyone has of looking into any of this. Congress can’t even think about impeachment unless there is a “high crime or misdemeanor” involved and a Trump business deal per se is far from definitive evidence of that. Impeachment involves a lot of people in Congress agreeing on moving forward, and Congress for at least the next two years is controlled by the Republicans.

    And should anyone find a way to pursue it, it would be easy for Trump’s side to drive the issue through the courts for some time, and, because it ultimately involves interpretation of the Constitution, to the Supreme Court.


    Bottom Line

    There are mostly questions and very few answers about the Emoluments Clause. There are also legitimate concerns over conflicts of interest during the Trump administration; no president in history has come into office with as vast and complex financial holdings. Modern presidents have bypassed all of this by using blind trusts, something Trump has said he will not do. This is clearly uncharted legal and political territory.

    That said, it appears use of the Emoluments Clause to impeach Trump is another Clinton martyrdom political fantasy. Any clarification will involve extensive travel through the court system, and given the initial question of who even has standing to pursue that, nothing can happen quickly, if at all.

    (Peter Van Buren, a 24 year State Department veteran, is the author of “We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People.” His next book is “Hooper’s War: A Novel of WWII Japan.” @WeMeantWell)



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    Should We Punch Nazis in the Head?

    January 23, 2017 // 76 Comments »



    No, we should not.


    Condoning, applauding or giggling over the idea of punching people in the head whose political positions, however abhorrent, we don’t agree with is so wrong I am not even sure why it is necessary to talk about it. However, given the events of this weekend, it seems we have to talk about it.

    “Is it OK to punch a Nazi for what he said?” is a question bouncing around the media and the Internet after an attack on Richard Spencer following the Trump inauguration. Spencer created the term alt-right. On video, he was explaining the meaning of Pepe the Frog, a silly cartoon figure somehow adopted as a mascot by the racist, far-right fringe movement Spencer promotes as anti-immigrant, anti-Semitic and anti-feminist.


    The punch was captured on video:



    There are over 4,500 comments on YouTube alone, and most condone the punch. The most popular format is to say “I don’t condone violence BUT…” and then go on to condone violence. Another popular comment is to mention Hitler, WWII and the defeat of the Nazis, and somehow see the video as a part of that 70-year-old global struggle fought between nation states.

    The main thrust of commentary is that violence is now justified as a response to speech by the right some do not care for. More than a few people have 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 mouth stuff along the lines of “the end justifies the means.”

    A popular meme is to put different songs, many calling for violence themselves, 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.”


    Where to begin?

    — If violence against those exercising their First Amendment rights (speech, religion, etc.) can ever be condoned, why wouldn’t that also condone tearing off a woman’s hijab, or lynching someone? See how the “violence is justified” argument can work?

    — There are no laws against hate speech. Details here.

    — Punching people is not a form of protected speech. Expressed legally in a number of ways, Supreme Court Judge Oliver Wendell Holmes stated “The right to swing my fist ends where the other man’s nose begins.”

    — 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 was saying. It means I can write this article.

    — The First Amendment and the broader traditions of free speech are there to protect the most challenging awful mean terrible hateful racist sexist anti-American garbage people can spew out. The protections are not there to cover the easy stuff most people agree with (though they do.) That is the whole point.

    — The ACLU has defended the right of both Nazis and the KKK to speak.


    It saddens me greatly to see even one person suggest violence as a proper response to the exercise of our precious right to free speech.

    It saddens me even more when everyone of us cannot see thinking you are opposing fascism by beating up those who ideas you disagree with.

    John Lewis, Barack Obama, hell, any Democratic politician, waiting on you to denounce this. Also, everyone on Twitter and elsewhere saying I personally support genocide, is it possible for you to understand I support the concept of free speech in its purest form, and none of that implies support for any specific position, from naked art photos to Holocaust deniers to the films of Jerry Lewis. I am simply astounded how many people are unable to distinguish between support for speech itself from support for what someone says. I expected this from the right someday, am gobsmacked that it hit me from the left. Sigh.






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    We’re Still Here, 1/20/17, Consumed Most of All by Our Fears

    January 20, 2017 // 188 Comments »



    One of my favorite quotes includes the lines “I awoke this morning to find that it was not judgment day – only morning. Morning: excellent and fair.” I think that sums up a part of my thinking, but certainly not all.


    A nuclear reckoning, war with China, or anything else quite so violently apocalyptic is imminent, or even underway, as far too many of us think. I live in one of those bubbles, the sum of which make up America now. Many of the people I talk to, in person and here online, seem to believe, truly believe, the world is coming to something of an end. These are by and large educated, once-rational people, some of whom have been voices of reason in the past. They are not that way now.

    We are however falling, some important threads of our nation being teased apart, and our best days are behind us. But this did not start on November 8, 2016, or January 20, 2017, thoough historians will note those dates as significant milestones (same as September 11, 2001.) But not because of Donald Trump. Because his name just happened to be attached to what has been growing inside us since the end of WWII.

    The Russians did not elect Trump. They may or may not have tried to get involved in the election, but we did this to ourselves. As the historian you have probably not read but should read Morris Berman predicted years ago, we are eating each other.


    We are consumed most of all by our fears. Fear of what the Soviets, and maybe the Chinese, would do after WWII. We created a nuclear arsenal measured in how many multiples of times it could destroy the world. We dragged our country through disasters like Vietnam, that murdered so many and cracked apart our nation. Our fear of race, our war on drugs, and then of course our fear of a world beyond our control after 9/11. Another quote that seems to fit is “The leader of genius must have the ability to make different opponents appear as if they belonged to one category.”

    The fears were encouraged at every opportunity by those who profited from them, either by rawly making money, or by acquiring power and control, or in most cases, both. We are unconcerned — it’s normal — that politicians routinely leave office wealthy despite modest salaries. We have so much, and share so little. We enthusiastically abandoned so many of the good things about America, such as our Bill of Rights. America’s pre-WWII Constitutional Era was grossly imperfect. Yet for its obvious failings, there was a sense of the possibility of progress; halting, awkward, unfinished, but, well, for lack of a better word and to use a word that has become a symbol of modern irony, hope.

    Of course none of that was close to perfect, but it was good and it is gone in some arenas and going away in most of the rest. We’ll still be allowed to rant on Twitter, a modern day bread and circus, but the real stuff of standing up and speaking back to government will happen only with handfuls of whistleblowers who will sacrifice their lives and freedom to say what they need to say.


    I thought we had a chance at change in 2008 but instead was proven to be a dupe. I thought he might turn it all around, in those first weeks he could have asked the rivers to flow backwards and they just might have. He could have grounded the drones, torn up the Patriot Act, held truth commissions to bring into the light our tortures, re-emancipated America in ways not unlike Lincoln did in the 1860s. Slam shut the gates of Guantanamo, close the secret prisons that even today still ooze pus in Afghanistan, stop the militarization of Africa, bring the troops home, all of it, just have done it. What a change, what a path forward, what a rebirth for an America who had lost her way so perilously. One man could have made a difference and when he did not even try, he helped solidify in America a sense of cynicism and powerlessness that empowers evil people further. If there was no Obama there would be no Trump.

    A new generation, and me again, thought there was another chance with Bernie Sanders. We were stupid. He was a distraction, and showed his true colors throwing away everything he said previously to support a candidate of the same old old school we’ve been voting for since WWII.

    Trump is at best/worst a symbol of all this. How powerful people play us against each other and exploit our differences. How fear (currently fear of Trump filtered through fear of Putin) can be used to manipulate us. How the ideas of democracy can be so easily tossed aside so that our most progressive thinkers are convinced elections are illegitimate, and anything from silly name calling to demands for something akin to a coup are justified when the enemy is as perceived evil as Trump. Echoing the famous lines from Vietnam, it is in their minds necessary to destroy democracy in order to save it.


    I’ve written here before open letters to my daughters, talking about the world they are maturing into. This is in that spirit. Somebody, maybe them, is one day going to stop and wonder how they got to where they ended up, an oligarchy that profits from mouthing the nice words of our Founders while ignoring them. Maybe they will find this essay, dated for convenience only, January 20, 2017.




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    End of the World, Progressive Article Edition

    January 4, 2017 // 30 Comments »

    marlon_brando

    For those who would like to become a progressive columnist in the world of Trump, here’s a guide for your first and every subsequent article:

    — Everything was pretty freaking close to perfect on November 7. Yeah, tough about Bernie, but Clinton was going to be great.

    — Putin, Comey, media, maybe Bernie, everyone you hate and fear, elected Trump because 62 million Americans are white, misogynists, and Nazis. They also are wrong about not having good jobs; don’t people in the Rust Belt read the job statistics?

    — Anyway, Trump is an oaf and/or an evil genius.

    — He is out to destroy America; riff off this for the next forever.



    Your First Essay Example

    And if you’d like a good example on how to do it, turn to Neil Gabler’s essay on the otherwise intelligent blog from Bill Moyers.

    Here’s how that essay starts:

    America died on November 8, 2016, not with a bang or a whimper, but at its own hand via electoral suicide. We the people chose a man who has shredded our values, our morals, our compassion, our tolerance, our decency, our sense of common purpose, our very identity — all the things that, however tenuously, made a nation out of a country.

    Whatever place we now live in is not the same place it was on November 7. No matter how the rest of the world looked at us on November 7, they will now look at us differently. We are likely to be a pariah country.

    First of all, points for the “bang and whimper” cliche, followed by the happy bullsh*t about how wonderful America was last month as described by phony Hamilton the musical lyrics. I bet the show’s cast could make values, morals, compassion, tolerance, decency, common purpose, and identity rhyme.

    Dude, we are a helluva people! Exceptional!

    Because prior to the election results we weren’t a nation founded on a slave economy, which 250 years later still has its cops imprison and murder Blacks, who doesn’t have the highest incarceration rate in the world, mostly for small amounts of weed that has been long legalized in other western nations. Our compassion is set to full, except if you are different than me in your race, religion, or views on guns, gays or abortions. Of course we don’t really do much for women, and unlike say India, Israel, the UK, Burma, and a whole mess of other places, have never had a female chief executive.

    Yeah, whatever, all that.

    And lovely, that bit about American becoming an international pariah. Could happen. Luckily the world has overlooked so far that we are the only nation to have used atomic weapons (twice, on civilians), stayed at war, spied and overthrown governments in their countries pretty steadily for 70 years, set the Middle Easton on fire over fake WMDs, drone kill wherever we like, torture people, and run an offshore penal colony right out of Les Miserables. Man, Trump, amiright?



    No More Democracy for You

    Later in the article, author Gabler throws in a whopper: “Republicans… haven’t believed in democracy for a long time.”

    Yep, one of the two parties in America, in fact the one that’s been out of power for the last eight years and which was voted into office via an election, does not believe in democracy. Makes sense. And to throw us off the trail, the sneaks are conducting a peaceful transition of power!

    Luckily the Democrats over the last eight years have only drone killed American Citizens without trial (Fifth Amendment), spied on all of us (Fourth Amendment) and racked up the worst Freedom of Information Act response rate since the Act was created (First Amendment.)


    This is the End

    Wrapping it all up, Gabler says:

    But the disempowered media may have one more role to fill: They must bear witness. Many years from now, future generations will need to know what happened to us and how it happened. They will need to know how disgruntled white Americans, full of self-righteous indignation, found a way to take back a country they felt they were entitled to and which they believed had been lost. They will need to know about the ugliness and evil that destroyed us as a nation after great men like Lincoln and Roosevelt guided us through previous crises and kept our values intact. They will need to know, and they will need a vigorous, engaged, moral media to tell them. They will also need us. We are not living for ourselves anymore in this country. Now we are living for history.

    So there you go. It’s pretty much the fault of us white guys, except for great white guys like Lincoln and Roosevelt. Other once-famous white guys like Jefferson, maybe Kennedy and Carter, didn’t make the list. Hell, Carter was even a southerner.

    There are going to be troubles ahead. Trump will not be a good president, and he is surrounding himself with inept people. The world is a complex place and even the best of our great white men have struggled with that. But for f*ck’s sake, stop imagining an America that never existed on November 7, and creating a dystopian nightmare that you imagine popped into being a day later.

    A clear view of history is a necessary starting point as we edge into 2017.



    BONUS: Neil Gabler is not otherwise an idiot. His biography says he is the author of five books and the recipient of two LA Times Book Prizes, Time magazine’s non-fiction book of the year, USA Today’s biography of the year and other awards. He is also a senior fellow at The Norman Lear Center at the University of Southern California, and is currently writing a biography of Senator Edward Kennedy.



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    Ban Trump, Twitter and Free Speech

    December 30, 2016 // 55 Comments »

    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 — Loudly

    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.

    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.




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    The Terrifying Executive We Need for the Wrong Reasons

    December 18, 2016 // 65 Comments »

    trump

    I understand why all of the often false, usually bombastic, reporting on Trump is angering me.

    You know the stuff — take a “fact,” real or fully made up, and conflate it with some apocalyptic prediction. Watch: Trump alternates between wearing boxers and briefs. Will his indecisiveness cause him to pull back when America is attacked by the Russians?

    The other story everyone writes now is based on the journalist’s apparent post-November 9 discovery of an element of fascism, racism and/or parts of the Constitution and presidential practice. And so someone is shocked that Trump will be able to choose drone kill targets, or have access to everything the NSA sweeps up about his enemies.


    The first type of stories are just pathetic, kiddies with pencils seeing what they can get away with, journalists working out in public their disbelief that someone like Trump won, people witnessing their first presidential transition and not dealing with it well. Those stories will fade away, or move to the tabloids where they’ll find a home aside Elvis and Roswell.

    The latter stories, the ones worrying about what Trump will do with the power of _____ are more worrisome. The ascribe fear of executive power and a government run amuck to one man, someone they loathe, Trump. They ignore that these powers, of which we should all be legitimately terrified, are not of a man but of our system.

    Trump, per se, for example, doesn’t control drone killings, the executive does. Bush killed, Obama killed, the president after Trump will kill. Same for the NSA — they all had, and future presidents will have, the ability to spy on anyone.


    By focusing on one man, we imagine any solutions will rest in getting rid of this man (recount! electoral college! impeachment!) That is dangerous.

    Any solutions (I’m not optimistic) must be changes to the system of ever-growing executive power. In that sense, perhaps the election of someone so obvious in his erratic statements, so oafish in his behavior, may be for the best. A bucket of cold well water to the face might be what’s needed for a citizenry that allowed one president to sell all his acquisition of power via a faux-sincere monologue of fear mongering, and another on the strength of his coolness and personal trust.

    The change has to be to the system, not the person. In that sense, perhaps Trump will be the president we need, if not the one we wanted.



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    You Opened the Box…

    December 16, 2016 // 52 Comments »

    Once you let the genie out of the bottle, you can’t stuff him back in.

    Attempts to overturn the results of our election, or to delegitimize a president before he even takes office, are attempts to overturn the system of transfer of power that has served America since its earliest days. There is no measure of exaggeration here; Americans are questioning the results of the election because roughly half don’t like the guy who won.

    Somehow things are… special this year. In most elections, a good-sized group of us see our candidate lose, grumble, and move on to some degree. I don’t think Trump will be a good president, but I also do not think he will burn civil rights to the ground, destroy life on the planet, sell Alaska back to Russia, or invade China with Omarosa some drunk weekend.

    In what in another era would be left for conspiracy theorists to contemplate, for the first time in our nation’s history powerful mainstream forces are trying to change the results of an election. Shocked by Trump’s victory, and fearing his presidency, they want to stop him from entering the White House. The belief seems to be that he is such a threat that it is necessary to destroy a part of democracy in America to save it.

    Some efforts are silly, online petitions demanding, somehow, Clinton become president (here’s one asking the Supreme Court to invalidate the election,) or bleating that her popular vote victory matters somehow within the existing electoral process. Others call for a magic do-over, a new election.

    Political scientists claim they maybe have found untested ways for the Electoral College to vote for Clinton, or to postpone a vote.

    But after that it gets very serious. America’s foreign intelligence service, the CIA, via anonymous leaks to the New York Times, NBC, and the Washington Post, declared Russia actively and purposefully interceded in our election in favor of Donald Trump. Trump was elected, in part, by the work of Russian cyber blackops.

    It is important to unpack what the accusations driving this are: someone working for the Russian government broke into the Democratic National Committee servers and Clinton campaign head John Podesta’s Gmail account, delivered those emails (which the Clinton campaign by and large said were bogus or altered) to places like Wikileaks, and that the emails few voters read influenced the election such that Trump, not Clinton, won the electoral vote. Trump’s strengths as a candidate and Clinton weaknesses were not significant enough on their own to have swayed the electoral count 74 votes in Trump’s favor. At the same time, for these accusations to matter, President Trump will act in favor of Russian interests (choosing hard liner John Bolton as number two at the State Department already seems counter to that) and against those of the United States.

    The accusations against Trump can rise to the level of treason (some are speculating Trump was a willing participant in any Russian ops), a capital crime, the most serious crime an American can commit against his country.

    All is supposed to be revealed in the form of some sort of investigation.

    Leaving how clever use of redactions can present “evidence” in misleading ways, intelligence assessments are rarely black and white, especially when seeking to explain why an action took place, its ultimate political goal. An intelligence service can conclude with reasonable confidence (for example) that Country X executed 12 dissidents last week. It is much harder to say why, or why now, or why those 12, or why not a different group, or what those executions mean in the longer game of local politics. So while technical means may be able to point to a hacker with connections to Russia (though hackers include in their tradecraft leaving false clues), moving from whether any hacks were standard information gathering as engaged in by all sides, or an active part of a campaign to change the course of our election, is a tough job. So those who expect a black and white report on what they Russians did, why they did it, and how it affected the election, are very unlikely to get it.

    So what will be done?

    The current focus is on the Electoral College voting on Monday, December 19 to put Hillary Clinton into the White House. That would require breaking with some 224 years of practice, moving against the will of about half of American voters who acted in good faith under the current system believing their vote would be assessed by the rules and practices in place, and destroying the orderly transfer of power that marks a democracy.

    But if Trump prevails in the Electoral College, what next? There is no Constitutional allowance for a “second election.” Bomb Moscow? Keep Barack Obama in power? Dispatch a lynch mob to Trump Tower?

    Well, of course not. Probably.

    Instead we will enter a new administration with a delegitimized president, under the shadow of multiple conspiracy theories, accusations, hearings, investigations and likely threats to of impeachment proceedings. Every decision President Trump makes, as with his every Cabinet choice now, will be weighed against the accusations. America’s Russia policy (in Europe, the Middle East, Asia) will be held hostage to rumors and leaks. A divided America will become more divided.

    The Bush-Gore election of 2000 was contested right into the Supreme Court. The differences, however, are significant. The post-election fight took place between two men still candidates, to decide a winner. Trump is the President Elect, and the process, whatever it is, seeks to overturn, not decide, that result. In Bush-Gore, once the Court declared a winner, the results were accepted, albeit reluctantly by some, and America moved on. Lastly, the struggle between Bush and Gore took place in open court, not via leaks and classified documents.

    There is also the argument, basically a variation of “if you have nothing to hide you have nothing to fear” that Americans should be willing to submit to post-election recounts and investigations, themselves often inconclusive or subject to another round of questions, to “prove” nothing went amiss. There is danger in confusing a potential body blow to the electoral process, seeking to overturn a completed election, with casting it all as benign verification.

    An additional danger is in the McCarthy-esque conflating of opposition to these efforts with a lack of patriotism, and by invalid extension, support for America’s enemies. To remain skeptical is to stand against the United States. To question the CIA is to disrespect our intelligence professionals. Journalists who do not support the accusations are said to be either active Russian agents of influence or “useful idiots” too dumb to know they are being manipulated.

    The real impact of all this will be felt long past Trump’s tenure.

    Democrats, Republicans, and players such as the CIA will have four years to consider how this process of delegitimizing a President Elect could work more effectively next time. The people who support extra-Constitutional steps now because of Donald Trump will find those same step will be available in later elections, to use against a candidate they favor. Voting can potentially become only a preliminary gesture, with real struggle only starting after the election itself.

    Many are deeply upset Hillary Clinton lost. Many are unsure, even fearful, of a Trump presidency. But once you let the genie of trying to overturn an election loose, you won’t be able to stop it next time.

     

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    Ilhan Omar’s Hate Crime

    December 15, 2016 // 33 Comments »



    The pattern is near-identical: a Muslim woman who has very publicly made defeating Islamophobia part of her political work suffers a hate crime after Trump’s election.

    She reports the crime only through the media, who sends what she says viral without asking any critical questions, despite some issues that might be worth questioning. The story is added to the tally of such crimes, as another example of what people want to believe.

    At issue? If a hate crime is real, it must be prosecuted publicly and aggressively. We live in a vulnerable, volatile time. Anyone who would commit a hate crime needs, within the law, to be made an example of, lest the next one be the spark that starts a larger fire. At the same time, if a hate crime did not occur, that too must be prosecuted fully. Every false or exaggerated report adds to the arsenal of false reports that negate real reports.


    Ilhan Omar

    Minnesota State Representative-elect Ilhan Omar in January will become the country’s first Somali-American state legislator. She was in Washington DC, including a visit to the White House, last week for a conference. In a post on Facebook and Twitter, Omar claimed she and her sister were victims of a hate crime by a D.C. cabdriver who picked the two women up as they exited the White House. The driver called her ISIS and threatened to remove her hijab.

    No Police Report

    In her Facebook posting immediately after the alleged incident, Omar stated she would only file a report with the police after she returned to Minnesota, citing concerns for her safety because the driver knew the location of her hotel.

    Omar did not suffer any further harassment, and had no further contact with the driver. The story went viral.

    Once back in Minnesota, Omar stated she changed her mind and would not file a police report. Instead, saying she “believes criminalizing hate is not a solution and will only strengthen individual malice,” Omar instead only reported the incident in an unspecified format with DC’s Department of For-Hire Vehicles and the DC Office of Human Rights.

    The former has the power to suspend a driver after a hearing. It is unclear what enforcement powers the Human Rights office has. Under the heading of “Reporting Taxicab and Vehicle-For-Hire Discrimination,” the Office focuses on denials of service, if, for example, a taxi refuses to pick up a passenger who is handicapped. Omar’s situation does not seem to be addressed.


    Questions

    — Omar did not address the fact that by posting the incident to Facebook, as well as doing interviews with The Rachel Maddow Show and others, she more than alerted the driver. If he wanted revenge or to attack her, there it was.

    — She also did not address that by choosing not to report the act immediately to the police, the driver would be free to continue to harass other Muslim women. In fact, since there was no arrest, he is driving around DC right now. Perhaps he even seeks out Muslim women passengers as targets? Omar seems to have a responsibility here to other women and the public she is ignoring.

    — Omar has not provided information about the cab she took, nor a fuller description of the driver who in her statement she described only as an “African immigrant.” Since she was picked up outside the White House, a fully surveilled area, it seems likely Omar’s cab and driver would be relatively easy to identify. Unless the driver told her “I am an immigrant,” it is unclear how Omar would know he was not born in the United States.

    — Omar has not explained how the driver might have been able to remove her headcovering given the plexiglass barrier in DC cabs.

    BONUS: Omar is in the midst of a swirl of accusations related to marriage fraud she may have committed for immigration purposes. See here and here.



    BONUS: Here’s an example of a newspaper who actually pulled a story after realizing it could not verify what happened. But oh, the story was about a guy playing Santa Claus at a sick kid’s bedside, not an alleged hate crime…


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    The Electoral College: A Civics Lesson

    December 14, 2016 // 23 Comments »



    We have and have had for 224 years an Electoral College system. The popular vote is not and has never been how we elect a president.

    This is the 6th time in U.S. history the candidate chosen has lost the popular vote, nothing new. The country has muddled on, with some of those presidents being better than others.

    In addition, because of the electoral college system, candidates campaign for electoral votes, not the popular vote. That is the basis for their strategizing how to allot their limited time and resources.

    So, for example, knowing he had little chance to win Democratic strongholds California and New York, Trump did not campaign extensively there even though they are big states. That’s how Clinton won the popular vote, because her campaign aimed at those (big) states where she thought she would win the electoral vote. The size of the popular vote garnered is more a reflection of the way the system works than it is a gauge of popularity.

    You just got woke to the electoral college system after napping through high school civics class? Good for you. You don’t like it? Also cool. Now read up on how the Constitution gets changed. It is a long, slow process, and intended to be that way just to avoid knee jerk reaction such as are underway today. So best to contact your legislators today and get them started doing something abut the Electoral College no one has otherwise done in over two centuries.

    There is no system or method for overturning an election, and people are very wrong to talk about trying to do so based on claimed Russian meddling. For that to have validity someone would have to show conclusively and without doubt (we’re talking about dismantling a 224 year old system here, folks, not simple WMDs):

    The hack took place –> The Russian government did it –> The Clinton campaign lied when they said the hacked emails were frauds and/or altered –> The hack itself was more important than the contents of the emails –> That any of this, if true, truly changed the results of the election in favor of Trump.

    That’s a pretty big bite. If you can’t prove that, you have no case to even think about negating the system, throw away the votes of some 62 million people, and plunging the nation into chaos that it may or may not ever recover from.

    And while there may be untried methods to make it possible for the Electoral College to vote for Clinton, can vote isn’t the same as should vote. An awful lot of people voted themselves in anticipation that their votes would be reflected by their electors. That was the system they entered the game under, not something along the lines of “let’s see how this voting thing plays out on November 8 and if don’t like it let’s try something else.” You think disenfranchising all those voters is just gonna happen without any problems?




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    Credibility Tips for Journalists

    December 13, 2016 // 32 Comments »




    The working journalists of America sh*t the bed with their election coverage this year.

    For the most part, the media as a whole fetishized the Clinton candidacy (first woman ever! most experienced candidate ever! dynasty!) and treated Trump as an oaf when they weren’t calling him Hitler and parading any person who wished to accuse him of something before the cameras. That pattern continues now, though the accusations have changed from sexual harassment to near-treason on behalf of Putin.

    Alongside this circus were scum stories on all facets of the campaign attributed to… no one. “Sources close to the campaign said,” or “Officials who could not be identified” and so forth. It almost gave the impression reporters were just making stuff up. Alongside that were many media outlets that simply reprinted others’ stories, so that a piece of journalistic garbage flew around the Internet without anyone asking any questions or verifying the contents.

    It was sad. The result was the media at large has little credibility left with the public. When people have a hard time figuring out whether or not you’re reporting fake news, you have a problem.

    So, as a public service, here are some credibility tips for journalists:

    — Don’t just write apocalyptic stories warning what Trump might do (impose tariffs, restrict abortion) without also telling us what would have to actually happen for the change to take place. Will he simply need to sign an Executive Order? Get Congress to pass a law? Take a case to the Supreme Court? Because screeching about something that might happen without letting us know how realistic that happening is is poor work.

    — Along with the above: go easy on the might happen stuff. Don’t whisk your readers from a phone call with Taiwan’s president to war with China by this weekend. Think twice before publishing any headline that includes “Trump Might…”

    — On a similar note, try to work in some of the following to your pieces: context, named sources, perspective, explanation, less undergrad simple conjecture. So, for example, in a story about the Million Woman March being denied a permit to protest on the grounds of the Lincoln Memorial, mention that (to date) no one has been issued any permits, it’s too early. Tell us it has been since at least the 1980s that a large scale protest permit has been issued for the Memorial. Explain that the decision to issue/refuse is made by the National Park Service, which is under the control of Obama, not Trump. Note that since the 1980 Reagan inauguration protest space at the ceremony has consistently been reduced. That makes a much better article than a headline screaming “Trump Denies Women’s Right to Protest.”

    — In fact, more fact and less bombast in general is a good thing. Separate fact from conjecture from opinion, old journalism school style.

    — Remember the words alleged and accused. Use them not only for criminals, but when an (alleged) victim makes a statement claiming a politician or celebrity assaulted them.

    — Alleged and accused are especially important words when reporting on hate crimes. Reports of hate crimes stir up a lot of explosive motions. Report responsibility. Victim shaming is bad; exercising healthy journalistic inquiry is essential. It is your job.

    — And those anonymous sources. There are important roles for anonymous sources, but not to report smears, gossip, innuendo, political speculation, or to play into political manipulation. If you don’t have on-record sources, and you’re not reporting on the next Edward Snowden, check to see if you have a story you can report responsibility.

    — Question the information, less the source, but stay awake that all sources have an agenda. If you don’t know what it is and how you are playing into it, stop and figure that out before you go to print.

    — Control your partisanship. Journalists, remember a few years ago when Fox became so grossly overtly one-sided, and how little you thought of them? That’s what a lot of people think of you now.



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    Freedom’s Just Another Word

    December 10, 2016 // 96 Comments »



    Here’s what’s left of democracy in America.


    We had an election, and the candidate favored by Washington, media, and many business elites did not win. Here’s what happened next.

    — CIA unambiguously but without documentation or evidence presented says, via anonymous leaks, that Russia interceded in the election to help elect Donald Trump.

    — Democratic Congresspeople, alongside several media outlets, have called for investigations into whether or not Trump colluded with the Russians to influence the election. That would be an impeachable offense, a criminal offense, treason.

    — The underlying message is that the Russians believe Trump as president will so favor them (for some reason) that they risk war, or a cyber version of war, to see him in power. Trump’s legitimacy is now undermined, and his every action toward the Soviet Union Russia will be tainted.

    — Though this “information” was known in Washington since at least the election, it was only released 10 days ahead of the Electoral College vote.


    — Meanwhile, Jill Stein, as proxy for Hillary Clinton, raised $7 million over a long weekend after claiming the vote count in three key states was wrong and/or the counting machines (not connected to the web) were hacked and cannot be trusted. A recount could have sent Clinton to the White House.

    — Clinton supporters continue to try and get the Electoral College to do something it has never done in some 220 years, select a candidate who did not win the most electoral votes.

    — Hillary Clinton has re-emerged, making speeches and public appearances, concurrent with all of the above.

    — Democrats as a group continue to insist winning the popular vote entitles Clinton to… something.

    — Clinton supporters earlier claimed the FBI interceded in the election to defeat Clinton.

    — Candidate Clinton claimed during a debate the now president-elect is a stooge working on behalf of Putin, literal treason.

    This is banana republic crap, people, that looks to negate the votes of some 62 million Americans. We no longer believe in our own system. When the candidate many people did not support wins, the response is to seek to negate the democratic process, via accusations that make McCarthy in the 1950s look like a sad amateur.

    What we have are anonymous voices at an intelligence agency supposedly dedicated to foreign intel saying the Russians helped elect our next president. That says the process is flawed and cannot be trusted, and that Trump will owe a debt to the Russians and can’t be trusted. It will keep alive the idea that Clinton should have won if not for this meddling and undermine for his term the legitimacy of Trump. Via the classification process, the CIA will only need to make public the snippets of info that support its contention.

    This is an attempted coup as sure as it would be if there were tanks on the White House lawn. The CIA might as well have tried to shoot Trump during his next trip to Dallas.

    To date, all of these accusations have been based on anonymous sources and leaks. The president of the United States remains silent.

    And we are so easily manipulated — liberals/progressives who have rightly attacked the CIA for decades for domestic spying, WMD lies, overthrowing foreign governments, torture, drones, renditions, etc., overnight now believe and support every word the Agency says.

    America, our goose is cooked. You worry about an autocracy? It doesn’t have to be in one man. It can be via an Agency.



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    Requiem for the Obama Administration, Trump Edition

    December 7, 2016 // 78 Comments »

    obama_burns_constitution

    The problems many are now predicting under the Trump administration did not start on November 8. The near-unrestrained executive power claimed by the Obama administration will be transferred to the president-elect. Here’s what that means.


    Torture

    Obama did not prosecute, fire or discipline anyone for torturing people on behalf of the people of the United States. He did not hold any truth commissions, and ensured almost all of the government documents on the torture program remain classified. He did not prosecute the CIA official who willfully destroyed video tapes of the torture scenes. He has not specifically disavowed secret prisons and renditions, just suspended their use.

    As with the continued hunting down of Nazis some 70 years after their evil acts, the message that individual responsibility exists must stalk those who would do evil on behalf of a government. “I was only following orders” is not a defense against inhuman acts. The purpose of tracking down the guilty is less to punish and more to discourage the next person from doing evil; the purpose is to morally immunize a nation-state.

    Because of these failures President Trump can, as he has proposed, restart the torture program at any time. Some claim the CIA won’t participate. Some always will of course, and if not at CIA, then a contractor will be found. And if another terror attack or two take place, then people at CIA and elsewhere in government will be lining up to conduct the torture as they did last time. They know they will never be held accountable. Indeed, Trump is apparently considering the CIA official who destroyed the torture tapes, Jose Rodriguez, to head up the agency.


    Assassinations

    Obama legalized, formalized, and normalized drone assassinations on a global scale, including the killing of American citizens without due process in direct violation of the Fifth Amendment, on the president’s order alone. The only real restraint he codified is self-restraint. When you leave a door open, you never know who will walk in.

    Because of this President Trump can do the same thing. Trump is unlikely to blow up the entire world with the nuclear codes, but please do not act surprised when his choice of American citizen targets may not match up with yours.


    Guantanamo

    Obama never closed Guantanamo as he promised. He could have, simply by depopulating it regardless of what Congress might have said. In 2014 when Obama needed to trade five Taliban from Gitmo for U.S. Army soldier Bowe Bergdahl in Afghanistan, Obama simply ordered those Taliban freed. He could do the same with anyone else there. He could have applied the full pressure of the U.S. on various countries to accept freed prisoners. He could have ordered the show trials to be conclude.

    Obama did not do these things. He instead normalized indefinite detention as a policy of the United States, and alongside that, as with torture and drone assassinations, the use of secret, convoluted legal opinions to justify such executive powers.

    So if President Trump choses to start refilling the cells at Guantanamo, and reminding the world of the lengths a frightened America is willing to go to imprison a single man, it should not be a surprise. And with the “legal” opinions, including ones still secret, behind such policies, stopping Trump will require years of counter-litigation never even begun under the Obama administration.


    Espionage Act

    Obama prosecuted more federal whistleblowers as spies under the Espionage Act than all previous U.S. presidents combined. He sent to jail people who exposed torture, and people who allegedly leaked information to journalists showing American complicity in dangerous acts abroad. He had Chelsea Manning prosecuted for exposing war crimes in Iraq. He used the Espionage Act to destroy the lives of others who under any definition except his own would be considered political heroes.

    Obama and his Justice Department created the playbook for how to use the hereto obscure Espionage Act to do these things.

    So if President Trump, perhaps with an attorney general Rudy Giuliani, uses that playbook to lock up whistleblowers, journalists, and people you might call dissidents and political prisoners, remember to again look the other way.


    Freedom of Information Act (FOIA)

    The Obama administration set a record for redacting government files or outright denying access to them in fiscal year 2014 – some 77% of FOIA requests were redacted or denied outright. More than any previous administration, Obama took longer to turn over files, said more often it couldn’t find documents and refused a record number of times to turn over newsworthy files quickly absent lawsuits brought to force the government’s hand. In the case of Hillary Clinton, files considered “unclassified” in one context were redacted in whole in another.

    Though the backlog of unanswered requests grew by 55%, the administration cut the number of full-time FOIA employees by nine percent. Despite the critical nature of the documents, the State Department was allowed to do its FOIA screening of the Clinton emails largely with an ad hoc crew of retirees. The impact on journalists, and the right of the people to know, was immeasurable.

    So don’t be surprised if the Trump administration does not end up as the most transparent one ever.


    NSA

    Obama never realistically reigned in the NSA after the Bush-era Patriot Act allowed the agency to turn its surveillance tools on the Homeland. Absent a few cosmetic changes, NSA continues to gather the full spectrum of Americans’ communications in violation of the Fourth Amendment, abetted by the secret FISA court and vaguely Constitutional tools such as National Security Letters and parallel reconstruction. Information lives forever, and the NSA is building bigger data warehouses to keep storing it.

    President Trump will have that information about you at his disposal. And so all who bleated “they had nothing to hide and thus have nothing to fear” during the Obama (and Bush) administration, out of trust for a president or fear of terror, well, now you can join the rest of us who have been terrified for a very long time.



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    Victim Shaming, Yasmin Seweid, and the Critical Need for Skepticism in a Volatile Time

    December 5, 2016 // 46 Comments »

    yasmin-seweid



    BREAKING: Police now say Yasmin made the whole thing up. Everyone who wrote hate mail to me and posted hateful things on my Twitter and Facebook can apologize now.



    UPDATE: On December 9, Yasmin’s parent’s reported her missing. No additional details of her alleged attackers have been released since the original story, and no details of her missing status have been released.

    UPDATE: Yasmin has been found safe. No details have been released.



    Did you hear? A female Trump supporter was assaulted. They called her a facist b*tch, ripped the strap off her Sarah Palin bag, threatened her — “You saw what we did to the Nazis last war.” Three-on-one against the 18-year-old, they tried but failed to tear the Make America Great Hat off her head. She was on the subway here in New York. She was paralyzed by fear, stating she screamed at her attackers and tried to use her phone, but the battery was dead.


    She stayed on the subway for three full stops worth of this before getting off the train and reporting it. Nobody — not one person — on the train pulled the emergency cord, called 911 or intervened in any way. Even new people who got on the train at each stop did nothing to intervene. The subways cars are long enough that you could easily call 911 or hit the emergency call from one end away from the attack. None of this made it to any surveillance or even cell phone video. Unfortunately, she couldn’t provide a description of her attackers beyond they were Black and drunk. Despite extensive media coverage and anonymous reporting hotlines in NY, not a single witness has come forward to date. The only “witness” was the woman attacked.


    Victim Shamer

    Admit it. You have some reservations. You have some questions. Maybe in some dark place you even think she deserved it, some payback to the racist haters who support Trump.

    You are a victim shamer. Or, if you have no doubt, you have stopped thinking and just accept whatever you read online as the whole truth because it matches your own preconceived notions.

    Yasmin Seweid

    Which brings us to the story of Yasmin Seweid. She has written about her situation on her Facebook page, with her photo and other personal details and left comments open, so I am not “outing” anyone.

    Yasmin claimed while on the subway platform in New York three drunk white men (she provided no other description according to the media) yelled “Donald Trump” and made comments about her being a Muslim terrorist, and then boarded the same subway car. On the car they pulled her bag hard enough to break the strap. They continued the verbal assault, and tried but failed to pull off her headscarf. She did not say how many others were on the train (I use the same 6 line, and at 10pm on weeknight it is typically reasonably peopled with late commuters.)

    Yasmin stated not a single person on the train intervened, pulled the emergency alarm, videoed the incident, tried 911 or otherwise assisted her. “It breaks my heart that so many individuals chose to be bystanders while watching me get harassed verbally and physically by these disgusting pigs,” wrote Yasmin on Facebook.

    Yasmin stayed on the train for three more stops. Those stops were in midtown stations in “safe” areas and generally have a reasonable number of people on the platforms. All stations have employees present and live video monitors. At the third stop she got off the train and reported the incident to the police. They had her review surveillance video of people entering her departure station and she did not identify her attackers. Platforms and some trains in NYC have surveillance cameras. No information on any of those recordings.

    Wrote a commenter on Facebook: “Everyone of you who claims this is fake news is in denial of the hate that has been incited. It is clear that you’re probably a Trump supporter. Perhaps someone will come forward with a video or at least verify her story.”

    So far, no one has.


    You See Where I’m Going

    The Internet and media reacted as you would expect them to react. A hate crime. Society is breaking down. The worst of us are now cut loose to do terrible things. Anyone questioning what happens is either a hate criminal too, or blaming the victim. Claiming this is a hoax is deplorable. Only a man, a white man, would question a victim.

    I was not there and neither were any of the others commenting. So the questions raised are just that, questions, but they are questions currently without answers. I think they need to be answered, because there are hate crimes, and there are hoaxes and exaggerated acts, and in volatile times those need to be sorted out.

    By putting her story on Facebook, and using potentially explosive language herself there about what she calls “Trump’s America,” Yasmin made this a national political statement, and that opens the door to talking about it as a national political issue. The media is certainly treating it as such.

    If everything Yasmin said is 100% accurate, we are in very deep sh*t — no one helped during an egregious assault in plain view in America’s most diverse city, a city that voted 58% Clinton, on a “safe” subway line? The line, as in NYC itself, would have very likely had people riding of color, men and women, perhaps including LGBTQ and Muslim people. Yasmin is 18, barely an adult, a woman riding alone. On the whole, New Yorkers are not shy people. And nobody did anything?

    If her story is not 100% accurate, people will scream hoax (here’s a list of post-election hoaxes) and use it as a dangerous example for every other hate crime that happens. That is very, very bad and can cause direct harm to other women.

    In a world of fake news and exaggerations, believing what we want to believe because it matches our politics, means the media drives the agenda. Skepticism expressed places a burden on them to source, to verify their stories, and perhaps ask themselves how to handle a story responsibly. The media many of us depend on, from the New York Times to progressive blogs, failed us. For the next four years, they must do us better. If they fear hard questions, what they write will often be crap.


    A Different Story

    It is not “evidence,” but an example. I have not been able to find any reports related to hate crimes where random, unconnected, New Yorkers as a group have stood by watching it happen and did nothing.

    I did find a story where NYC subway riders stood up for a pair of Muslim women after they were harassed by a man who called them “terrorist foreigners.”

    The news stated “Everyone on the train ‘erupted in anger.’ …Several people, including a man who said he was a Romanian immigrant, a black man and a gay man, challenged the man’s stances. Eventually, another straphanger got the man to stop his rant by saying, ‘This is New York City. The most diverse place in the world. And in New York, we protect our own and we don’t give a f*ck what anyone looks like or who they love, or any of those things. It’s time for you to leave these women alone, Sir.'”

    The one felony-level crime I have seen on the subway in the last three years was a fight among a handful of young men who, by the things they were shouting at each other, appeared to know each other. Someone pushed the emergency call button and several people had their cameras out to record what happened. Cops were waiting at the next station.

    There are always explanation, plausible and outside the box for why things happen/not happen. But for all of this story about Yasmin to be true it seems like we need a lot of answers to a lot of questions to all add up about the same way. So let’s hear some answers. The media who are blasting the original story around the world should follow-up.


    So What Happened?

    I know and am sympathetic about victim shaming/blaming, but it does us no good to assume the opposite, either, that every accusation must be true. That option faded when this morphed into a political event, by the victim’s choosing. She asked to be viewed as an example of what is happening in America. Asking tough questions are necessary because these are very important issues that sadly extend beyond what happened to an individual.

    As I write this, the story as stated by Yasmin is proliferating across the web. I have not been able to find any follow-up reporting other than a boilerplate NYPD statement that no arrests have been made and an investigation is ongoing.

    So what happened to Yasmin? What is happening in America?



    UPDATE: Since all of the above, as of December 6, two other violent anti-Muslim incidents occurred. A quick arrest was made in one case, a passerby intervened in the other. There have been no updates and no physical descriptions of the alleged attackers in Yasmin’s case, though the media continue to bundle her story into the other two.







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    A Media Blacklist, Courtesy of WaPo: Now I’m Afraid for Our Democracy

    November 26, 2016 // 51 Comments »

    firstamendment_0


    In most third world societies, when people don’t like the results of an election, they take to the streets. In America, we take to the Internet.


    But the end result is the same. The system is undermined because we do not like the results it yielded. Accusations of something unfair having happened are slung around, usually either unsupported by facts, based on faux “statistical anomalies,” or via a small data set that is blown up into something general to prove “the system is unfair/corrupt/wrong/inaccurate” to people who already believe that to be true but need talking points for their Facebook pages.

    This is the thought process that is driving the wishful thinking behind the recount efforts, and campaigns to push the Electoral College into voting Hillary Clinton into the White House.

    Of course a nice tag-along is if this can all be blamed on an outside third party. Dissatisfied people have little interest in blaming themselves, their flawed candidate, or acknowledging the strengths of the opponent among a large segment of voters. Nope, easier to blame someone else. For that, a person who has been molded into a one-word symbol of, well, everything and anything Americans fear, Putin.


    And so a recent article in the Washington Post terrifies me. It is at a level of journalism that previously was reserved for conspiracy theories on Geocities’ style web sites. Here’s a selection from the article:

    The flood of “fake news” this election season got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy.

    Russia’s increasingly sophisticated propaganda machinery — including thousands of botnets, teams of paid human “trolls,” and networks of websites and social-media accounts — echoed and amplified right-wing sites across the Internet as they portrayed Clinton as a criminal hiding potentially fatal health problems and preparing to hand control of the nation to a shadowy cabal of global financiers.

    So: Clinton lost because Russia wanted Trump to win because Trump will favor Russia so Russia created fake news which influenced over 62 million Americans to overlook Trump’s flaws and vote for him. Got it.


    Proof? Stuff on Facebook. Main source of that proof? A group of unknown origin, financing, and makeup (“an independent team of concerned American citizens”) called PropOrNot, i.e., propaganda or not. The group also “strongly suspects that some of the individuals involved have violated the Espionage Act, the Foreign Agent Registration Act, and other related laws.”

    A second source quoted by the Washington Post is Clint Watts, a fellow at the Foreign Policy Research Institute (which has been around in one form or another since the 1950s, dedicated to the Cold War), who says of the Russians “They want to essentially erode faith in the U.S. government or U.S. government interests.” Watts’s report on his work appeared on a blog this month as Trolling for Trump: How Russia Is Trying to Destroy Our Democracy. That piece claims without any real evidence at all that “Russia is actively trying to put Donald Trump in the White House… And the evidence is compelling.”

    I encourage everyone to read some of the linked articles. This is seriously scary Cold War paranoia stuff.


    And guess what? The ProporNot group has created a (black)list of websites that it claims are controlled/influenced by the Russians. While — dammit — this website in not included, I take some solace in noting that I have written for or been reprinted by 11 of them.

    “They use our technologies and values against us to sow doubt,” said Robert Orttung, a George Washington University professor who studies Russia, quoted in the article.

    And that sounds dangerously close to saying our First Amendment’s freedom of speech provisions seem to be the root of this threat to American democracy.



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    Acts of Quiet Desperation: Wisconsin Recount Edition

    November 23, 2016 // 21 Comments »

    trump-clinton

    It is quite sad to see so many well-meaning and otherwise intelligent Americans embarrassing and deluding themselves that Hillary Clinton didn’t lose the election held over two weeks ago.

    I hear many using words like mourning, markers of the kind of feelings that follow an actual death. If that is the case, then it is time to move on into some form of acceptance.

    In addition to the clueless bleating about the electoral vote not matching the popular vote (you win at baseball with more runs, not more hits), Hillary Clinton is now being urged by a group of prominent computer scientists and election lawyers to call for a recount in three swing states won by Donald Trump. The story, somehow, despite the scientists not speaking on record and only to the Clinton team in private, has gone viral across the same media (HuffPo, Vox, you know them) that never saw the flaws in Candidate Clinton and still doesn’t.

    The group believes they’ve found “persuasive evidence” results in Wisconsin, Michigan, and Pennsylvania may have been manipulated or hacked. Let’s take a look at that.


    The sole evidence presented so far, according to New York magazine, which broke the story is (emphasis added):

    In Wisconsin, Clinton received seven percent fewer votes in counties that relied on electronic-voting machines compared with counties that used optical scanners and paper ballots.

    Based on this statistical analysis [NOTE: this is not a statistical analysis, just counting], Clinton may have been denied as many as 30,000 votes; she lost Wisconsin by 27,000. While it’s important to note the group has not found proof of hacking or manipulation, they are arguing to the campaign that the suspicious pattern merits an independent review — especially in light of the fact that the Obama White House has accused the Russian government of hacking the Democratic National Committee.



    So let’s unpack that:

    — Assuming the counting is accurate, there is no known connection between the vote tally and anything else. At best this is a correlation, in likelihood it is just a tally. There is no evidence of any suspicious pattern. Ballots are not “patterns.” They’re just ballots.

    — There is no evidence of any hacking or manipulation. Even if it is true (a big if given the lack of evidence) that someone connected with Russia hacked the DNC, that does not in any way connect to a handful of voting machines in Wisconsin reviewed as a very small sample.

    — Though pitched as a “Save Hillary” effort, there is no evidence to suggest any recount would favor Clinton.

    — The reporting on this says the scientists have shared the information only with the Clinton campaign. Why not the Justice Department? If they really have something, it is evidence of a grave felony. Why not share it with the people who can really do something about that? Put up or shut up time.

    — Are these otherwise intelligent scientists really, truly, claiming that Russian hackers reached into individual voting machines in Wisconsin somewhere to throw a small number of votes Trump’s way?



    Bottom Line: Some people didn’t like the election results so they are throwing themselves on the ground like a soccer player trying to claim a faux foul.

    Disclaimer: I hate Trump. I hate racism and sexism and nazis. I am not now, nor have I ever been, a racist, or sexist, or nazi. This is not a pro-Trump article just because it criticizes Clinton in part. Stop acting like *ssholes. Please.




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    Posted in Democracy, Post-Constitution America

    Apocalypse Then, and Now, Cracker Revolution Edition

    November 16, 2016 // 26 Comments »

    hillbilly
    Chris Hedges just wrote this about the Trump Era:

    “The repression of dissents will soon resemble the repression under past totalitarian regimes. State security will become an invasive and palpable presence. The most benign forms of opposition will be treated as if they are a threat to national security. Many, hoping to avoid the wrath of the state, will become compliant and passive… exonerating militarized police forces for the indiscriminate murder of unarmed citizens, while he unleashes the fossil fuel industry and the war industry to degrade and most probably extinguish life on earth.”

    Um, Chris, your verb tenses are all wrong.

    These things have been ongoing for the past 15 years. Obama prosecuted more dissidents, er, “whistleblowers,” than all previous presidents combined, and he did by calling them spies under the 1917 Espionage Act. The NSA as state security has been monitoring you under two administrations.

    Militarized police forces received their tanks and other weapons from two presidents. All of the terrible events that lead to Black Lives Matter took place before the election, and the killers were for the most part left unpunished by both the judiciary for criminal murders, and by the Federal-level Department of Justice for violation of civil rights. Unlike during the 1960s when the Feds stepped in and filed civil rights charges to bust up racism among local and state governments, the last two administration have not.

    When people do bad things and know they’ll get away with them, that is “normalization,” not just some hate words we have sadly all heard before.

    As for war and fracking, um, the U.S. has been engaged in global wars for 15 years, and set the Middle East on fire. Fracking has been destroying our nation for years, and oil dumped into the Gulf back in 2010.

    Fascism did not start on November 8. We have been living in a police state of sorts for some time before you all discovered it will start next year.

    BONUS: As for the idea that Trump was elected by dumb white men, here are some statistics from the New York Times on the vote count. Yes, yes, most are above 50%, but really not that much above half that the claim that this is some sort of cracker revolution holds up.

    For Trump, 58% of all whites, 53% of males, 50% of suburbans of all flavors and, yes, 67% of whites without college.

    As for this election being a vote for misogyny, can you at least allow for the possibility — just that, the possibility — that people were not opposed to a woman president, they were opposed to one specific person who happened to be a woman, and that opposition was not based on gender but on a range of issues? Just maybe?

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    Posted in Democracy, Post-Constitution America

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