Archive of "Democracy" Category

The People v. Donald Trump

March 27, 2023 // 1 Comment »

Here are six things to think about ahead of any indictment and arrest of Donald Trump:

1 – What is Trump going to be indicted for? Trump may soon be indicted on a campaign finance law violation. This means Manhattan district attorney Alvin Bragg (Federal prosecutors seem to have long signed out of the cheesy political revenge fantasy business) has convinced a grand jury there is enough evidence to charge Trump with the crime. Since this was a grand jury, Bragg faced no opposition in laying out his case, as the not-quite-a-defendant is not represented. So no cross examination, no motions to suppress evidence, no hammering away at Michael Cohen as perhaps the least credible witness of all time. The old joke is a clever DA can indict a ham sandwich, and if Trump is indicted that motto holds true here.

2- But I thought this was all about Trump having an affair with some porn star? Stormy Daniels allegedly had sex with Trump in 2006, which he denies, and  which she and Michael Cohen once also denied. She then took money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity when the businessman later ran for president, she willfully violated the NDA to revive her career and profit off selling her story to the National Enquirer. Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman’s now disbarred former lawyer, a felon himself, violated attorney-client privilege to claim on his word the NDA payoffs were actually complex technical violations of campaign finance law. If this all sounds complicated, it’s because it is. No wonder even the Washington Post labels this a “zombie case.”

3 – So the problem is the hush money paid in 2016? Not really but sort of. Paying money as part of an NDA is not illegal; lawyers regularly obtain discreet resolutions of issues threatening the interests of their clients. Without admitting guilt, money is paid from Party A to Party B in return for dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you’d like. It happens all the time, and in fact is the dirty little secret which keeps sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs. The what in this case (money for silence) is clear. It is the why that matters most. The why also affects any potential sentence; Trump lying would be a misdemeanor if it is proved that all he did was falsify his business records. But it could be a felony if prosecutors can prove that the falsification was tied to another crime and that’s where campaign finance laws come in.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Fahrenheit 11/9: Rewatching the Michael Moore Movie from 2018

March 16, 2023 // 4 Comments »

I rewatched Michael Moore’s Fahrenheit 11/9. The 2018 film is mainly a screed about all the bad things Trump was going to do as president. Time is a cold mistress: basically nothing Moore said four years ago about what was going to happen actually happened. Moore was wrong about Trump’s ties to Russia, Moore was wrong about Trump being the last elected president because he would seize total power, and Moore was wrong about the lasting impact of the progressive heroes of that year, the Parkland High School survivors.

Sorry to get ahead there. You do remember the mass shooting in a Parkland, Florida high school, right? A handful of “survivors” were insta-made into media sensations. Barack Obama supposedly personally wrote the Time magazine cover story saying they had “the power to insist that America can be better” we’re lead to guess he himself did not have.

In his film Moore portrayed the kids were examples of the anti-Trump force sent by the universe as a balancing mechanism, and that the power of activism was America’s only chance to remain a democracy. I can’t do justice to the hyperbole of Moore’s narration; you would think by listening these kids had the power to raise the dead simply by amassing RTs on Twitter. A good chunk of the movie is just Moore staring at the kids at work changing everything by being online, the filmmaker’s expression somewhere between pedophile on the playground fence and a proud dad.

Back in his heyday, there was a meme among businesspeople “Michael Moore just walked into your office. What do you do?” The answer back when was to lawyer up, call security, etc. Today the proper response would be to tell Mike sorry, you’re not hiring, and offer him a bottle of water if he’ll leave quietly. Moore created a style of documentary journalism where facts don’t matter if the conclusion (in this case, “guns and orange man bad”) is righteous enough. He forgets that in his earlier movies this sort of worked only because his generous abuse of facts and the actual conclusion were often close enough to one another, as in Roger and Me, Bowling for Columbine, and Fahrenheit 911.

But it is almost painful to watch him in this movie, claiming how the Parkland kids organized the massive March for Our Lives in Washington on March 24, 2018 all by themselves without asking them how a few high school kids in Florida secured marching permits from the notoriously persnickety Washington DC bureaucracy and National Parks Service, how they secured the massive security bonds and insurance needed, arranged stage construction, Porta Potties and sound reinforcement, set up security, ran an international media campaign, and so forth, all from study hall. Taking over the National Mall is not something you do by saying “Alexa, tell me how to take over the National Mall.” Moore thinks he’s fooling the rubes in ignoring such things when in fact he’s taking a dump on his subjects, setting them up to be blown over by the lightest of questions.

Moore himself is a thing to be pitied. You see him in this movie, hunchbacked and obese, searching the country for old-school Bernie-style liberals to champion. He doesn’t realize the parade passed him by sometime during the George W. Bush era and he comes off like some 80s hair metal band playing Holiday Inns with only one original member on stage. He gets caught up in his own narratives, in this film an extended side story about how the water is still bad in Flint, Michigan which ends up inadvertently highly critical of Saint Barack. His wandering call for Bernie to re-emerge walks dangerously close to admitting Hillary Clinton engineered that political castration. Moore awakens about half way through the movie aware who he is really criticizing for the most part and quickly pivots to more familiar ground, an extended lip syncing of a Trump speech to some iconic Leni Riefenstahl Nazi propaganda footage of Hitler.

In the case of the Parkland kids, by refusing to let them off the pedestal Moore in the end exposes them as the media-hungry fakes they are, or, to be generous, were made to be. A major scene shows kiddie activist David Hogg using Twitter to cancel a male candidate for some minor state seat in Maine and engineer his replacement with a woman. We don’t know anything about either candidate, only that Hogg did it with Twitter during fourth period (Moore assures him on camera it’s OK to fail his psych class to accomplish global-level change) and this is what the future is going to be.

The problem is the movie was made in 2018 and we can judge Moore’s vision of the future. Nothing really happened. The Parkland kids misunderstood, and Moore celebrates, emotional manipulation, weaponized self-pity, and claims to victimhood are not action. Gun laws are pretty much the same post-Kids, and who can count the number of mass shootings since Parkland? Apart from lip service by the Democrats, there is no effective gun control legislation on the stove. Yes, yes, conversations were started and awareness was raised, but Moore falls into the same naïve hole the Parkland kids live in, mistaking noise and political stunts (like being Michael Moore) for real change.

Moore of course will never make a follow-up film, but here’s what it would contain if someone else ever did.

Emma González is famous for standing in silence at a lectern for a little over six minutes to commemorate how long it took for 17 people to be killed during the shooting. In 2018, Madonna, the Michael Moore of the pop industry, even sampled Emma’s voice for an album. González later advocated for Joe Biden, thoughtfully tweeting “a vote for Donald Trump is a vote for fascism.” Today she has become a hollow woke caricature. She’s changed her first name to “X” because “I don’t want people thinking that they’re my friends just because they know my name.” X is pursuing a degree in activism, with classes such as Manifestos, Alternatives to Capitalism and Socialism, Post-Colonial Literature; and Theory, Black Social and Political Thought, and Global Politics/Radical Comics at the prestigious New College of Florida in Sarasota. How do we know all this? X is back in the media for the first time in almost four years, pimping a movie on the Jimmy Fallon show about the her of almost four years ago.

David Hogg was the skinny white Parkland kid with the Brylcream hair and oddly triangular face. He was raptured out of the swamps of Florida to attend Harvard after the shooting. In addition to promoting the same film as X, Hogg also started a semi-defunct pillow company in 2021 to challenge Donald Trump ally Mike Lindell and his My Pillow company. The Hogg pillow company quickly amassed more than 80,000 Twitter followers but not so many sales. The whole thing was so egregiously awful that Cameron Kasky, a fellow Parkland survivor, attacked Hogg, saying “To those of you who marched, donated, lobbied, and called for change… I’m so sorry this is what it turned into. This is embarrassing. Welcome to America, everything ends up a grift.”

And right, be sure to check out the merch on the March for Ours Lives website. The #MarchForOurLives “Stop Gun Violence” T-shirt is about as likely to help stop gun violence as it is likely to stop a bullet for the wearer. And for the record, Colin Kaepernick, who makes a cameo in Moore’s movie, has seen his own net worth grow to some $20 million via paid endorsements for McDonald’s, Jaguar, Electronic Arts, and MusclePharm. Moore’s film was originally funded by everyone’s favorite carnivore, Harvey Weinstein. Michael Moore himself owns nine homes and is worth $30 million, a helluva way to help redistribute wealth, to himself.

Michael Moore should take his inspiration for his next film from that Parkland Kid statement, “Welcome to America, everything ends up a grift.” It’s the only true statement in this whole mess. It was never about actually doing something about guns, it never is. It’s about getting a free ride into Harvard, pimping a documentary, starting an odd pillow business. It is all always about profiting personally from victimhood, the retirement strategy of most Americans under 40 today, and of Michael Moore.

What was intended by Moore in 2018 as a rallying point, a radical film to drive young people into the streets to defeat National Socialism, looks just a few years later like another contribution to a generation’s cynicism. How many heroes pumped by the media — Robert Mueller, James Comey, Michael Avennati, and Michael Moore come to mind — need to implode before young people figure out the grift and turn away. Now that might be the start of the movement Michael Moore imagines he’d be the guy to lead.

Fahrenheit 11/9 is irregularly available on Netflix. Scroll past the Pride section, Black Stories, and Marginalized Voices down to the part that might be labeled “Stuff You Can At Least Tolerate When Your Friends Come Over and No One is Talking to Each Other.”

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

What is Section 702 and Why Should You Fear It

March 11, 2023 // 6 Comments »

You’ve been warned — a fight over the U.S. government’s ability to spy on its own citizens is coming to Congress. Section 702 is up for renewal again in December.

Section 702 grew out of an illegal post-9/11 program called Stellarwind exposed by NSA whistleblower Tom Drake. It refers to a provision of the United States Foreign Intelligence Surveillance Act (FISA) that was enacted in 2008. It authorizes the U.S. government to collect the communications of non-U.S. persons located outside of the United States for the purpose of obtaining foreign intelligence information. But the program also allows for the incidental collection of information about U.S. persons who may be communicating with the targeted foreigners. Section 702 was renewed by Congress in 2018 with the passing of the FISA Amendments Reauthorization Act. This reauthorization extended the authority for Section 702 for another six years, through December 31, 2023, hence the looming fight.

The reauthorization included some modifications to the program, including new reporting requirements and limitations on the use of information obtained under Section 702 in certain types of legal proceedings. The law also included some new privacy protections, such as the requirement for a warrant to search for and use information related to U.S. persons in certain cases. The latter only applies to the FBI, which is required to obtain a court order to review anything that comes up in response to queries using American identifiers that are purely for a criminal investigation with no link to national security. Oh yes, that’s right: Section 702, which was written to stop another 9/11, is widely used by domestic law enforcement as part of regular police work.

But the most controversial aspect of the law remains the “Three Hops Rule.” If you are speaking with a foreigner outside the U.S. by phone, then that makes everyone else you speak with, American or not, eligible for monitoring. That’s one hop. Everyone they talk to is also eligible, that’s two hops, and so forth. The number of people subject to legal surveillance under Section 702 thus grows geometrically every time someone sends an email, like some sick version of the old game Six Degrees of Kevin Bacon. Suddenly one communication sweeps in many, often unrelated, persons, and the Fourth Amendment’s right to privacy is reduced to dryer lint because no warrants are generally needed and little if any oversight is applied. The scooping up of American communications is now (who says the Feds have no sense of humor) referred to as “incidental collection” even though it is quite purposeful.

The two things, three hops and Section 702, were never intended to be used together but certainly are. Technological advances, primarily the internet and fiber-optic lines, made foreigners’ messages available on domestic U.S. networks — the routing of a communication from Beijing to London passes through America. Since the Reagan years, the NSA, with the help of communications companies, has been able to vacuum up in bulk, without targeting anyone, messages that both originate and terminate abroad as they travel across American networks.

The potential for abuse is underscored by the scale of all this in an age when almost all of our communications are electronic (including phone calls) and when hubs of communication (Google and email providers, most of whom cooperate directly with the government to collect and hand over your data, as exposed by NSA whistleblower Edward Snowden) concentrate more and more of what we say, read, watch, and buy into fewer nodes to tap. In 2021, there were more than 230,000 foreign targets of Section 702 warrantless surveillance (that number multiplied by the three hops rule, of course.)

In contrast, the government obtained FISA court warrants to eavesdrop on about only 300 Americans or noncitizens on domestic soil. Proponents of Section 702 argue obtaining warrants for all those foreigners would sharply curtail the intelligence the government is able to gather. Applying for court orders requires time and resources, and then there are those nasty legal and evidentiary standards to be met. Because everything is highly classified, absent whistleblowers, public oversight is limited. One declassified audit showed the FBI misused the system for routine employment checks and other unauthorized sneak peeks. The FISA court, in an example of what passes as oversight, criticized the FBI for “widespread violations” of rules intended to protect Americans’ privacy but still signed off on the program’s continuance.

“Section 702 allows mass warrantless surveillance of individuals’ communications, including Americans. It embodies a long history of government overreach and abuse, including the most recent oversight report released in December 2022, which found that the FBI conducted numerous unlawful searches for Americans’ information,” Kathleen McClellan of ExposeFacts.org told The Spectator.

One idea being floated is to separate the collection of raw material from the query process, i.e., actually using the material. A revised Section 702 would continue to allow mass monitoring, but before the NSA or FBI, et al, could search that collected date for Americans by identifier (name, Social Security number, etc.) they would need a warrant to show probable cause. Something like this change might be the key to seeing Section 702 reauthorized, as House Judiciary Committee members focus on civil liberties while members of the Intelligence Subcommittee tend to be more supportive of surveillance powers. The fear-mongering ducks are already being lined up. General Paul Nakasone, head of the NSA and Cyber Command, said 702 powers have helped the U.S. government stop planned terrorist plots and cyber espionage campaigns before they happen. “702 provides a critically important capability to the intelligence community as we face rising challenges from China and Russia, as well as threats from terrorism, cyber actors, and others,” Senate Intelligence Chair Mark Warner claims.

Congress is expected to rely heavily on the advice of the U.S. Privacy and Civil Liberties Oversight Board (PCLOB), an independent executive branch agency led by a bipartisan group of five presidentially nominated and Senate-confirmed Board Members. The Board is examining significant changes to the operation of the 702 program since their Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (2014) in order to provide an accurate description of the current program. The Board’s review covers selected focus areas for investigation, including but not necessarily limited to, U.S. person queries of information collected under Section 702, and ‘Upstream’ collection [data handed over from communication providers.] The Oversight Project also includes reviewing the program’s past and projected value and efficacy, as well as the adequacy of existing privacy and civil liberties safeguards. The changes made to Section 702 on the last renewal go-round in 2018 drew heavily from this report, a good indicator the PCLOB may influence the 2023 renewal process as well.

The bad news is most of the Fourth Amendment protections of Americans’ privacy disappeared in the aftermath of September 11, all in the name of fighting terrorism. There seems no question Section 702, one of the Fourth Amendment-busting laws, will be renewed. The hope for civil libertarians and privacy advocates alike in salvaging some rights lies in marginal changes to the law along the line of PCLOB recommendations to limit use of Americans’ identifiers as query terms and to force NSA and others to disclose more of the extent of the program’s use. 

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Jimmy Carter’s Gettysburg Address

March 9, 2023 // 3 Comments »

The word malaise, a general feeling of uneasiness whose exact cause is difficult to identify, should be starting to creep in to discussions. It’s a word, albeit like most everything these days, politically-loaded, after its use by President Jimmy Carter in 1979 to describe the country he could not figure out to how lead.

Carter’s specific use of the term focused on the energy crisis, when OPEC and the Iranian Revolution monkeyed with America’s oil supply and Americans could not simply buy as much cheap gas as they wanted for their huge cars. It can sound trite, but it was a crushing blow to the American spirit, as somebody got the best of us while we stood aside hopeless. But Carter saw something much deeper than lack of cheap gas was wrong. Not just an oil shortage to manage, but a recession of hope, a crisis of confidence that someone would have to lead America out of. He perceived we were tired, worn down, unable to come together in common purpose to fix something. He was right then; how about right now?

It would be interesting to hear what Carter thinks about Joe Biden and 2023, where lots of things don’t work well. Flights don’t fly. Inflation returned. Gas is expensive in ways 1979 never could have imagined. Supply chain problems mean Americans are since WWII rationing getting used to hearing “We don’t have any and aren’t sure when we will.” Under/unemployment plagues us as Covid tore the wool off many Americans’ eyes about how little meaningless jobs for sub-living wages contributed to their piggy banks or their sense of self-worth.

There appears no definitive end to Covid, with little hope the economic devastation caused by mismanaged restrictions will ever be addressed. There is a declining sense Covid is a problem that can be managed as it has been in much of the world (see Europe, especially Scandinavia.) The conclusion is no one is really in charge who cares. Economic inequality has risen to where there are two systems, one for the wealthy and one for most of the rest of us, for everything. Education, healthcare, travel, shopping, how you are treated by the law, and where you can eat or entertain yourself. Diseases of despair, suicide, alcohol, and drug overdoses, drive a drop in our life expectancy. America is the only developing nation with a rising maternal death rate. We suffer on average more than one mass shooting a day. Is there anyone who can claim, in the American tradition, that our lives are getting better?

Looking for leadership, Americans come up short. The best our system could produce last election was two geriatric candidates. Biden has done little to move the nation past Covid, instead choosing to stand there as it petered out in most places. He hid behind our national exhaustion with Afghanistan to not suffer a greater political defeat over the botched Gotterdammerung in Kabul. His open borders policy created a massive humanitarian crisis, and a growing political one as an unknown number of immigrants play a version of the Squid Game to flood America. The Border Patrol reports 200,000 encounters with migrants along the U.S.-Mexico border this summer, with some of the highest monthly totals since Bill Clinton was president.

The president can’t even exercise leadership over his own party, and it appears his signature infrastructure bills and social spending initiatives are more symbolic than transformational. In the background, police reform legislation failed, and most defunded departments have been refunded to face down rising crime. “Disappointed” is likely the term most Biden voters would be apt to use.

America alongside all this has become a deeply cynical place. We once were to the annoyance of most of the world an endlessly optimistic place. We didn’t always know how to solve problems but we were confident we would solve them. Now we take for granted AOC and the media would be at the border for the Trump Kids in Kages spectacular but missing when an even worse situation unfolds on Biden’s watch. We roll our eyes when the media tells us what we’re hearing isn’t what we’re hearing but “Let’s Go, Brandon” instead. MSM will print any Trump gossip but not one actual Hunter Biden email.

All of this bleeds over into how we interact with each other. Never mind the street fights over whether black lives matter, or the hand-to-hand combat on planes, in restaurants, and at Walmart. We don’t discuss things, never mind disagree because we don’t just hate ideas, we hate the people who hold those ideas. When we run out of big issues we discover microaggressions. We enjoy as classist blood sport how businesses care so little about their employees they’ll fire them if a Karen among us makes a scene. We video everything in hopes of settling matters by embarrassing someone virally.

Carter was a decent man, if a poor politician. Seen the latest front-page Carter Center scandal? Hear about the six figure fees former president Jimmy Carter pulls in from shady foreign companies? Maybe not. Many feel Carter has been a better ex-president than he was a president. His Carter Center focuses on impactful but unglamorous issues such as Guinea worm disease. When Carter left office, the disease afflicted 3.5 million people. Now it’s expected to be only the second disease, after smallpox, to ever be eradicated worldwide. Until about yesterday Carter still donated a week of his time yearly to Habitat for Humanity. Not a photo-op, Carter goes out without the media in tow and hammers nails. Carter also tirelessly monitors elections in nascent democracies, lending his stature as a statesman to that work over 100 times. Summing up his own term in office, Carter said “We never dropped a bomb. We never fired a bullet. We never went to war.” That was the last time since 1977 a president could make that claim.

Jimmy Carter’s “Crisis of Confidence” malaise speech, delivered from the Oval Office on July 15, 1979, has since become to  many a symbol of Democratic defeatism. The speech was controversial at the time because it was seen as overly pessimistic and critical of the American people. However, in retrospect, many people view the speech as a courageous and honest assessment of the problems facing the country. But how prescient was Carter in 1979? The seeds he saw being planted have now grown to sad, desperate fruition. What he said then might well describe where we are now:

“There are two paths to choose. One is a path I’ve warned about tonight, the path that leads to fragmentation and self-interest. Down that road lies a mistaken idea of freedom, the right to grasp for ourselves some advantage over others. That path would be one of constant conflict between narrow interests ending in chaos and immobility. It is a certain route to failure.

“All the traditions of our past, all the lessons of our heritage, all the promises of our future point to another path — the path of common purpose and the restoration of American values. That path leads to true freedom for our nation and ourselves. We can take the first steps down that path as we begin to solve our… problem.”

For all he foresaw in his ferocious tenderness towards America, Carter failed to find a way to lead, and in 1980 suffered complete election defeat at the hands of someone who promised he would. As Carter did not create fully the malaise he spoke about, Biden alone certainly did not create the current malaise in America. But his failures, far too many in too short a time, have not helped fix it. Cheering on Ukraine is not the same as cheering for America. Without Jimmy Carter’s Gettysburg address, telling us where we are and what we have to do, we might forget that.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Ukraine is America’s Afghanistan More Than Russia’s

March 6, 2023 // 5 Comments »

The thinking in Washington goes like this: for the “low cost” of Ukrainian lives and some American dollars, the West can end Putin’s strategic threat to the United States. No Americans are dying. It’s not like Iraq or Afghanistan ’01-’21. This is post-modern, something new, a clean great power war, Jackson Pollack for war. Getting a lot of foreign policy mojo at little cost. It’s almost as if we should have though of this sooner.

Um, we did. It didn’t work out past the short run and there’s the message. Welcome to Afghanistan 1980’s edition with the U.S. playing both the American and the Soviet roles.

At first glance it seems all that familiar. Russia invades a neighboring country who was more or less just minding its own business. Russia’s goals are the same, to push out its borders in the face of what it perceives as Western encroachment on the one hand, and world domination on the other. The early Russian battlefield successes break down, and the U.S. sees an opportunity to bleed the Russians at someone else’s bodily expense. “We’ll fight to the last Afghani” is the slogan of the day.

The CIA, via our snake-like “ally” in Pakistan, floods Afghanistan with money and weapons. The tools are different but the effect is the same: supply just enough firepower to keep the bear tied down and bleeding but not enough to kill him and God forbid, end the war which is so profitable — lots of dead Russkies and zero Americans killed (OK, maybe a few, but they are the use-and-forget types of foreign policy, CIA paramilitary and Special Forces, so no fair counting them.) And ironic historical bonus: in both Afghanistan 1980s and Ukraine, some of the money spent is Saudi. See the bothersome thread yet?

Leaving aside some big differences that enabled initial successes in Afghanistan, chief among which is the long supply lines versus Ukraine’s border situation, let’s look at what followed early days.

Though NATO countries and others sent small numbers of troops and material to Afghanistan, the U.S. has gone out of its way to make Ukraine look like a NATO show when it is not. Washington supposedly declared support for Ukraine to preserve and empower NATO (despite the fact that Ukraine was not a member.) Yet, to keep Germany on sides in the Russian-Ukraine war, Washington (allegedly) conducted a covert attack on Germany’s critical civilian infrastructure that will have lasting, negative consequences for the German economy. Seymour Hersh reported the Nord Stream pipeline connecting cheap Russian natural gas to Europe via Germany was sabotaged by the United States. An act of war. The destruction of an ally’s critical infrastructure, and no doubt a brush back pitch carefully communicated to the Germans alongside a stern warning to stay put on sanctions against energy trade with Russia. It’s a helluva thing, blowing up the pipeline to force Germany to color inside the lines NATO (actually the U.S.) laid out. This, in addition to the U.S. treating NATO countries as convenient supply dumps and little more, shows that NATO will emerge from Ukraine broken. One does also wonder if the future of Europe is at stake why the greatest concern is expressed in Washington and not Bonn or Paris.

As with Afghanistan, there are questions if we Americans will ever be able to leave, about whether Colin Powell’s “Pottery Barn” rules applies — you break it, you bought it. President Zelensky, portrayed in the West as a cross between Churchill and Bono, in actuality was a comedian and TV producer who won the 2019 Ukrainian presidential election. Zelensky’s popularity was due in part to his anti-establishment image and promises to fight corruption and improve the economy. He was also aided by his portrayal of a fictional president in a popular TV show, which helped to increase his name recognition and appeal to young voters.

Zelensky was preceded by the Ukrainian Revolution, also known as the Euromaidan Revolution, which began in late 2013 as a series of protests in response to then-President Viktor Yanukovych’s decision to reject an association agreement with the European Union and instead pursue closer ties with Russia. The protests grew in size and intensity, with demonstrators occupying the central Maidan Nezalezhnosti square in Kiev, demanding Yanukovych’s resignation and new elections. In February 2014, the situation escalated when Yanukovych’s security forces cracked down on protesters, resulting in violent clashes that left dozens dead. This led to Yanukovych fleeing the country and a new government being formed in Ukraine. The revolution also sparked tensions with Russia, which subsequently annexed Crimea and supported separatists in eastern Ukraine. None of those problems goes away even if the Russia army retreats to its pre-invasion borders. The notion that there is nothing going on here except a rough land grab by a power-made Putin is shallow and incomplete.

What’s left are concerns about the level of corruption in Ukraine, and the U.S.’s role in addressing it. Despite the U.S. providing significant financial aid to Ukraine, there have been reports of corruption and mismanagement of funds. Some have argued that the U.S. has not done enough to address these issues, and has instead turned a blind eye in order to maintain its strategic interests in the region. America’s history with pouring nearly unlimited arms and money into a developing nation and corruption is not a good one (see either Afghanistan, 1980s or ’01 onward.) Corruption can only get worse.

A great fear in Afghanistan was arms proliferation, weapons moving off the battlefield into the wrong hands. Whether that be a container of rifles or the latest anti-aircraft systems, an awful lot of weapons are loose in Ukraine. In the case of Afghanistan, the real fear was for Stinger missiles, capable of shooting down modern aircraft, ending up in terrorist hands. The U.S. has been chasing these missiles through the world’s arms bazaars ever since, right into the Consulate in Benghazi. It is worse in Ukraine. America’s top-of-the-line air defense tools are being employed against Russian and Iranian air assets. What would those countries pay for the telemetry data of a shoot down, never mind actual hardware to reverse engineer and program against? There are no doubt Russian, Chinese, Iranian and other intelligence agencies on the ground in Ukraine with suitcases full of money trying to buy up what they can. Another cost of war.

It is also hard to see the end game as the demise of Putin. This would mean the strategy is not fight until the last Afghani/Ukrainian but to fight until the last Russian. The plan is for that final straw to break, that last Russian death, to trigger some sort of overthrow of Putin. But by whom? Trading Putin for a Russian-military lead government seems a small gain. Look what happened the last time Russia went through a radical change of government — we got Putin. In Afghanistan, it was the Taliban x 2.

History suggests the U.S. will lose in a variety of ways in Ukraine, with the added question of who will follow Putin and what might make that guy a more copacetic leader towards the United States. As one pundit put it, it is like watching someone play Risk drunk.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

A 2022 to Remember, Ukraine Edition

January 29, 2023 // 2 Comments »

Looking back at 2022, at what did and did not happen, really tells us what was important, hindsight and all that.

Things that Did Not Happen in 2022

Joe Biden did not explain why the U.S. is at war in Ukraine.

Any nuclear war.

Regime change in Russia.

Ukraine winning the war.

The Russians running out of missiles, men and tires.

No American diplomacy has been tried to conclude the war in Ukraine.

Things That Did Happen in 2022

Among the things causing the greatest pain are the highest gas prices ever recorded in the United States, topping $5 a gallon across the country at one point. Gas purchases on their own may make up only a relatively small portion of most families’ budgets, but the spike in gas, oil and diesel prices has left businesses with higher costs that will force them to raise prices on their customers and pull back on new investments. It risks a slowdown in consumer spending, as households cut back on other expenditures. Energy is so crucial to the functioning of the economy broadly that the price increases bring along higher prices in many other sectors, only adding to inflation. Meanwhile, U.S.-imposed energy sanctions have played to Russia’s favor economically as oil prices rose. Things may come to a head as winter sets in in Germany and that natural gas from Russia is missed. But that is a domestic German problem the U.S. is likely to simply poo-poo away (once economic powerhouse and U.S. competitor Germany showed its first negative foreign trade imbalance since 1991, a nice bonus for America.) Things got so loose that “someone” needed to blow up the Nordstrom 2 pipeline to make the point with Germany that it may have to do without Russian energy to maintain the fiction sanctions will bring an end to war.

There can be no denying the greatest rise in food prices since May 1979, during the Carter administration. The biggest price rises were in the most basic of goods: egg prices soared 39.8 percent, flour 23.3 percent, milk rose 17 percent and the price of bread jumped 16.2 percent. Chicken prices jumped 16.6 percent, while meat rose over six percent. Fruits and vegetables together are up 9.4 percent. Overall, grocery prices jumped 13.5 percent. And don’t look for relief eating out; restaurant menu prices increased 7.7 percent. Eating at home is the answer, even though rent is up over seven percent. Why is everything so expensive? Food prices are affected by global events, such as the war in Ukraine, which affects the costs of wheat and other core commodities. Prices are biting above their weight because of the largest decline in real wages in four decades, since, you guessed it, the Carter days.

Declines across the stock market have affected not only those who invest or passively hold stock in 401(k)s but the parent companies they work for and shop with. This time last year, January 3, the first day of market trading in 2022, looked like just another day in a stock rally that began when Barack Obama was still president. The S&P 500 hit a record high. Tesla rose 13.5 percent and came close to its own all-time peak. That day turned out to be the end of a market that for over a decade had gone mostly in one direction, the S&P 500 rising more than 600 percent since March 2009. The S&P 500 began the year’s final trading session of the year almost 20 percent below where it was at peak. The year overall was the worst annual performance since when the housing crisis in 2008 took down the market. Central banks drove markets this year because of inflation, which was also pushed by energy prices and massive spending in Ukraine.

There’s some good news to add to the economic dullness and dismalness. NPR reports 70 percent of Americans polled support continuing a range of economic and military assistance to Ukraine. Those polled also supported the statement “that they might have to pay higher gas and food prices if we continue to assist Ukraine,” and said “we should stick with Ukraine for as long as it takes rather than urge them to cede some territory to create a cease-fire.” And the Blackrock investment firm has agreed to help rebuild Ukraine after peace breaks out. Blackrock already coordinates Ukrainian investment in the U.S.

Oh, and there’s more that happened in 2022 to remember. Many large cities experienced their worst crime waves since the 1990s. Covid remains a part of life. The southern border is a mess. Diseases of despair, suicide, alcohol, and drug overdoses have driven a drop in our life expectancy. But we’re not gonna blame all that on Biden, too?

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

What is Title 42?

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Title 42 is a clause of a 1944 Public Health Services Law which allows the U.S. government to prevent the entry into the country of individuals during certain public health emergencies, in this case asylum seekers who are sent to wait out their years of processing in Mexico, not in the United States, during Covid.

But to really understand Title 42 you have to understand what is happening at the southern border and what has happened with asylum claims. At play are potentially millions of aliens flooding into the United States. America’s asylum laws, meant to help the most vulnerable, have instead become a clogged backdoor for routine economic migrants. Title 42 was a very small step by the Trump administration toward restoring asylum to its correct role in American immigration policy. Biden seeks to go back to the “everybody in” system with all the consequences.

Asylum recognizes a person persecuted by his own country can be offered residence and protection by another country. The actual conditions vary considerably across the globe (the U.S. considers female genital mutilation grounds for asylum while in many nations it is a desired practice). But in most cases, asylum is offered to people who face a well-founded fear of persecution if sent home on account of their race, religion, nationality, political opinion, or social group. The definition of those five protected grounds have also varied greatly based on shifts in American domestic politics. Since 1994, for example, LGBT status has been, and remained under Trump, a possible claim to asylum. Domestic violence was granted consideration as grounds under the Obama administration, only to be rolled back under Trump.

But the reality of 2022 is the asylum system evolved into a cheater’s backdoor, a pseudo-legal path to immigration not otherwise available to economic migrants. They lack either the skills for working visas or the ties to qualify for legal immigration under America’s family reunification system. So they walk to the border and ask for asylum, taking advantage of previous administrations’ look-the-other-way “solution” to their ever-growing numbers. Affirmative asylum claims, made at ports of entry, jumped 35 percent pre-Covid.

It worked — for them. A Honduran on the border who says he simply came for a job is sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case. Since detaining asylum seekers and their families while the processes play out is expensive and politically distasteful (kids in cages!) until recently most asylum seekers were instead released into American society to wait out their cases. They then became eligible for work authorization when their cases extended past 150 days. The number of pending cases pre-Covid was 325,277, more than 50 times higher than in 2010.

Eventual asylum approval rates for all nationalities over the past decade average only 28 percent. Yet even after they’re denied, applicants can either refile as defensive asylum claims or disappear into the vast underground of illegals. Simply making a claim to asylum is often enough to live and work in America. Trump tried to change that with Title 42. Basically due to the possibility of flooding the country with Covid-positive asylum seekers, the threat of disease was invoked as a reason/excuse to keep the asylum seekers out of the U.S. while their cases drag on and on. Some asylum seekers and their families were detained at the border as a deterrent rather than released into society. But public outcry over caged families and the massive costs in housing and feeding sent the Trump people looking for another way to implement Title 42.

The change was for the Trump administration to negotiate for asylum seekers to wait out their processing times not in American society or an American detention facility, but in Mexico, through a program called the Migrant Protection Protocols. People at the border make their asylum claims, and are then nudged a step backward to wait for an answer in Mexico. The Department of Homeland Security also established an agreement with Mexico to accept all Venezuelan nationals who cross the border seeking U.S. asylum.

Title 42 stopped some 2.4 million would-be immigrants. The Biden administration now seeks to return to the old pre-Trump system, whereas asylum seekers would generally be set free inside the U.S. to go somewhere and wait out their processing. Nascent implementations of this system fell flat; U.S. Immigration and Customs Enforcement (ICE) estimates they already “lost” 150,000 migrants due to Biden admin’s lack of processing. These people are simply at large and likely forever will be within American society. As David Frum wrote approvingly at the time, “if liberals won’t enforce borders, fascists will.”

Biden’s administration tried to end the Title 42 policy this past April in court, but a Louisiana judge ruled proper administrative protocol must be followed to formally lift the program. Lower courts then issued a stay on ending Title 42 until December 21, extended now by the Supreme Court, and traffic backed up at El Paso and other prominent crossing points. Meanwhile, for those who are crossing now, the expulsion of migrants has continued while the protracted legal battle plays out among the government, migrants represented by the ACLU, and now, a group of 19 GOP-led states seeking to intervene in the case.

The states have argued that they will suffer “irreparable harm” if Title 42 ends and migrants stay in the U.S. for longer periods of time. Between 9,000 and 14,000 people are expected to cross the southern border each day after Title 42 ends (border crossings are now at around 7,000 a day.) The coalition of GOP attorneys general requested the court push back the Dec. 21 end date pending deliberations on an appeal. Migrants are waiting in Mexico, hoping Title 42 will be overturned and they can cross and stay in America. The final decision will likely lie with the Supreme Court.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Leadership and Security Standards

January 24, 2023 // 4 Comments »

Leadership, real leadership, requires setting an example. As far as security is concerned, the leader of the Federal government, Joe Biden, earns an F– for security. His setting of a double standard for the handling and secure storage of classified materials drives home once again (Hillary, Trump, you out there?) that one set of rules applies to those on top and another to those underneath.

I am a retired State Department official who held a Top Secret clearance without incident for some 23 years. Not once did I violate my promise in return for access to the classified material I was privileged to see did I break the rules. I never left anything out on my desk, never took home a piece of paper, never brought a classified cable on the train to read on my commute. Even when I wrote my whistleblowing book We Mean Well about Iraq reconstruction I was meticulous in not including anything remotely classified, even insisting the publisher hire an ex-CIA lawyer to vett the manuscript. Most everyone around me over the years of service took the promise as seriously. It was our job to, in the extreme, keep boxes of classified documents out of our garage.

I still remember Day One of my service at State, when some very serious people told us we had two jobs, to protect classified and our regular tasks (economic reporting, passports issuance, run the motor pool, whatever.) Notice the order: a mess-up on the job is usually correctable locally. A failure to protect classified can have global implications.

To understand why this was far from dramatic, understand how intelligence operations work. Intelligence gathering is waiting. It means collecting pieces and waiting, sometimes for years, for the picture to expose itself. No detail is too small if handled properly, and things of no use to the host country service can be horse traded to another intel service elsewhere. So we were taught to push aside the oft-cited excuse that something was over-classified, or would not matter. It mattered.

The other thing is intel services know people are creatures of habit. If they leave classified documents in accessible places once, they are likely to do it again. They and the places their Corvette travels are worthy of additional attention.

Every instance of a security breach, however minor, is followed up on inside agencies who work with the data. At an Embassy, for example, at the end of the day one is responsible for clearing away classified materials and securing them properly. Later in the evening but before the cleaning crews start in, a Marine or someone designated by the Security Officer walks through the entire building desk by desk, looking for stray documents. If one is found, it is seized and secured, replaced with a note saying what happened and requiring the owner to report first thing to the security office.

What happens next depends on a variety of factors. Minor first offenses get off with a warning. More serious missteps — multiple documents, higher level stuff, repeated offenses — are met with a range of possible punishments including a three day suspension. People who still don’t get the message are subject to loss of their security clearance and in the extreme, job termination. It is not so much that people are fired all the time (they’re not) but sitting there getting your butt chewed out by the Security Officer you understand what happens next is on a continuum of punishment. It focuses the mind wonderfully.

The element emphasized in these discussions with the Security Officer is responsibility, one’s personal responsibility to secure all classified. Your desk, your responsibility. Biden’s excuse — that he did not know there was classified material at his old office, in his home library, or in his garage — reeks of a fourth grader trying to claim his dog ate his homework. The “I didn’t know” line is the antithesis of leadership and the opposite of the call to personal responsibility every other Federal employee is supposed to follow.

For those who insist there is a space between a low-level Fed like me worried about securing a piece of paper and the President, literally drowning in the stuff, one must remember that Biden is supposed to be a leader. The correct answer would be “As vice president I had a lot of help packing out of the White House, and it looks like someone inadvertently put classified materials in a box which ended up in my new unsecured office. Nonetheless, I am responsible for what happened and take full responsibility.”

We’ll pause for a moment while you catch your breath from laughing. Of course neither Biden nor any other important person in government would ever say such a thing, actually taking non-wishy washy personal responsibility for some wrongdoing. Biden instead has listened to his lawyers and not the people and won’t even ask what documents were found. That’s not what modern leaders do, and that above all is the double-standard at play here today. This is a not a document scandal, it is a leadership one.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Classified for You, Not Me

January 21, 2023 // 1 Comment »

Without double-standards would we have any standards for classified information left at all?

President Biden said Tuesday he was “surprised” to learn in November his lawyers found classified documents in his former office at a Washington think tank. Biden’s lawyers discovered a cache of classified documents as they packed up his former office at the Penn Biden Center for Diplomacy and Global Engagement. The tone of the MSM seems to be boys will be boys, and since Biden is being so cooperative with classification authorities after being caught red-handed and after being allowed to hide the story until post-midterms, maybe this has nothing in common with Trump’s cache of classified documents at Mar-a-Lago. Or Hillary’s cache on her private e-mail server. Could there be a double-standard?

Biden had  some/several/a bunch of classified documents while Trump had thousands so that’s different. Yes, on Sesame Street four is bigger than three, but with classified documents it is not a meaningful difference. The law is clear each document is a violation, and there are no discounts for having under a certain number. One classified document is enough to seek indictment. But let’s not forget about Hillary, who was allowed not only to carry over 33,000 subpoenaed documents in the form of emails out of secure spaces on her server, but to delete them. Imagine if Biden reported he and his team simply deleted whatever they had found, never mind if Trump had had a bonfire.

Biden’s documents were safe inside a locked closet. Classification law is extremely clear how documents must be stored, specifying for example, how many minutes a safe is expected to withstand against an attempt to cut it open. In the case of the Secure Compartmentalized Information (SCI) level docs Biden, Trump, and Hillary held, details are written into law and regulation as to what type of room, with what type of door, they are to be stored in. “Closet” does not find the definition whether it is at Biden’s place, Mar-a-Lago or Hillary’s home housing her email server.

Nobody saw the documents. Maybe it wasn’t to standard, but they were kept under lock and key. No blood, no foul. Sez who? The reason all those laws and regs regarding classified exist are to safeguard the documents absolutely, so instead of arguing whether the cleaning crew would have had access to them or not, one can say “U.S. Marines guard these documents in the equivalent of a bank vault deep inside the White House 24/7, that’s who sez so. With Hillary, the question of illicit access begs for a starting point, because the end point, an unclassified, insecure out-of-the-box email server connected to the internet itself meant any hacker with moderate skills, including those assigned to attack her official trips to China and Russia, presumably had full access.

Biden’s documents were just old briefing notes, nothing so important. If the documents were labeled Top Secret or SCI when created then that was their classification, no matter what we think of the contents today. The law is clear arguing the level of classification after getting caught is not a viable strategy, and retroactive classification is not an option. “The documents were not important even though they were classified” is simply not a defense after getting caught. It sounds a lot like the infamous “nuclear weapons” docs Trump had were briefing documents as well. News reports state the nuclear documents dealt with the capabilities of one specific country, and thus were likely part of Biden’s broader briefing package ahead of meeting that nation’s leader, or ahead of weighing in on what U.S. opinion might be on an issue concerning nuclear weapons proliferation.

Biden cooperated with the Justice Department and National Archives and Trump Didn’t. It is almost always taken into account at sentencing whether the perp cooperated with law enforcement, and sometimes a reduced sentence is in order. But there is nothing in the law (any law) which says if you cooperate after getting caught whatever you did was not a crime. And again look at Hillary — her response to accusations was to electronically shred (Bleachbit) all the documents in her possession and then destroy the hardware they had been stored on. And no brownie points to a MSM who seem to be trying to present Biden’s cooperation as sign of responsibility — after the fact, of course.

Maybe some of the documents were not clearly marked classified. This one is included for historical purposes because Hillary made such a claim; Biden and Trump have not. Documents are given a classification based on their content and the sources of that content. The marking itself (e.g., Secret) just sums up what there is to say about the content itself. If you remove the Secret moniker by retyping things (as appears the case with Hillary) or just tearing off that part of the document, it does not change the classification.

A matter of trust. Apparently the Justice Department is just going to take Biden’s word that all is well, and all the classified has been found. Something along the same lines with Hillary. Trump of course saw his own home raided by the FBI, armed with automatic weapons, in a frantic search for more evidence, and the alleged documents splayed on the floor and photographed like TV drama crime scene evidence. In the Biden and Hillary cases, it appears the lust for evidence is not quite as strong. We’ll note the Biden documents were found the day before the midterm elections, when the story would have been political dynamite, and held until two months later when they were presented as a nothing burger. Why did the Biden Justice Department hold the news so long? Why did they wait until Republicans announced a possible Church-style investigation to show how cleanish everyone’s hands are, cooperating and all?

Fun Fact. Presidents are allowed to declassify any document while in office, and Trump has issued a disputed claim that before leaving office he declassified all the documents the FBI found when it searched Mar-a-Lago in August. The same privilege of broad declassification does not apply universally to Vice Presidents (Biden’s classified documents are from his time as VP) or Secretaries of State.

The next move lies with Attorney General Merrick Garland, who will decide what if anything is to be done about Joe Biden improperly storing highly classified documents at a think tank while holding no public office. Garland’s predecessor filed no charges against Hillary. Garland himself appointed a Special Prosecutor for the Trump case. Arguments the Biden and Trump cases are different ignore that those differences seem to have no meaning in the law itself and are superficial, appearing to be a big deal to those uninformed as to how classification works, a false unequivalency. Transparency? Timeliness? Garland seems oblivious to the concerns of the newly-elected Republican Congress that a full-on witch hunt is in play to defeat Candidate Trump prior to any election, using the criminal justice system to defeat Trump when the electoral system will not.

Given the real, lawfully meaningful similarity among the three cases, where will the standards of justice fall this time? As a nation of laws, need we test so often who is above the law? The point is that if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it is partial and political. Any further action against Trump must address why Hillary was not searched and prosecuted herself, and if so, why not Biden as well. Fair is fair, after all.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Exposure: Why Mishandling Classified Material Matters

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Hillary versus Trump versus Biden. All three kept classified information at their homes. Who wins the battle to have likely done the most damage to national security?

In the end when dealing with the damage done by mishandling classified information it comes down to exposure; who saw it, what was it, when was it seen, and for how long?

The “who” part is clear enough; a document left inadvertently on a desk top in an embassy guarded by Marines might not be seen by anyone. A document left on a park bench and seized by the local police risks direct exposure to the host country intelligence services if not sale to the highest bidder depending on the locale. But never underestimate cleaning staff; spies love ’em. In what other capacity are likely locals allowed to rummage through an embassy at night, picking through the trash, and moving things around on desks to um, dust?

The “what” and how much of it is the real stuff of James Bond. At times “what” is in the eye of the beholder. The Secretary of State’s daily list of telephone calls to make is always highly classified. It might matter very little to a Russian spy that the Secretary is calling the leader of Cyprus on Wednesday but matter an awful lot to the leader of nearby Greece. That is why intelligence services often horsetrade, buying and selling info they pick up along the way about other countries for info they need about theirs.

The “when” aspect is also important as many documents are correctly classified at one point in their history but lose value over time. One classic example is a convoy notification; it matters a lot who knows tomorrow at midnight the convoy will set forth. It matters a whole lot less a month later after everybody in town saw the convoy arrive. “How Long” can matter as well, as the longer a document is exposed the more chances someone unauthorized has to see it.

So those are the ground rules, on to Hillary versus Trump versus Biden!

“Who” between Trump and Biden seems a toss-up, given that as far as we know both kept classified in locked closets (we’ll turn to Hillary and her server below.) An investigator would want to know who had keys to that lock, and if possible, who used them when. What controls if any were in place to prevent duplicates from being made? What kind of lock was used? Was it pickable? Would cleaning staff or painters called in have had time alone to work the lock? Were there any video or access logs that might show the staff spent an inordinate amount of time near the closets? We know nothing about this regarding Trump’s and Biden’s closets. One might also want to get into who packed the boxes containing classified info, on whose orders, and how much exposure did they get en route to those naughty closets. Did the information sit in an unguarded truck stop overnight in 2010? Who would have known? “Who” is more than a name, it is a line of dominoes.

We have a starting on “what” material may have been compromised, and it is not good. Hillary, Trump, and Biden mis-stored information at at least the SCI level (Sensitive Compartmentalized Information, above Top Secret.) SCI means not only is the document classified, even seeing it is restricted to a specific list of people such that merely holding a full Top Secret clearance is not enough. We can say the documents included some real secrets as of their drafting.

Next of concern is the raw number of documents potentially exposed. In Trump’s case we have a decent tally, thanks to the Department of Justice. The initial batch of documents retrieved by the National Archives from Trump in January included more than 150 classified. With the raid, the government recovered over 300 classified documents from Trump. This worked out to over 700 pages of classified material and “special access program materials,” especially clandestine stuff that might include info on the source itself, the gold star of intelligence gathering. If you learn who the spy is inside your own organization you can shoot him, arrest him, find other spies in his ring, or turn him into a double agent to feed bogus information back to your adversary.

Our contest is a bit unfair to Trump, as inventories of what was found at Mar-a-Lago are online for all to see while the Biden media has been very cagey on how many document have been found, using phrases like “several” and “a few dozen.” We’ll have to wait until Biden’s home is raided or the Special Counsel concludes his investigation to know for sure.

In Hillary’s case just coming to a raw number is very hard, as she destroyed her server before it could be placed into evidence. Because her stash was email the secret files were also not all in their original paper cover folders boldly marked Top Secret with bright yellow borders, as in Trump’s case. Hillary also stripped the classification markings off many documents in the process of transferring them from the State Department’s classified network to her own homebrew server setup.

Nonetheless, according to the FBI, from the group of 30,000 e-mails returned to the State Department, 110 contained classified information at the time they were sent or received. Eight of those chains contained information Top Secret at the time they were sent, with some labeled as “special access program materials.” Some 36 chains contained Secret information at the time; and eight contained Confidential information. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the messages were sent, suggesting they were drafts in progress, in the process of being edited before a classification was ultimately assigned.

The “what” is a toss-up for now. Little information exists on specifically what each document trove held, though the WaPo claims one of Trump’s docs detailed a foreign country’s nuclear capability (ironically, the leak from DOJ revealing the document’s contents suggests things were more secure at Mar-a-Lago than after the search) giving him a slight lead in this category. Clinton discussed Top Secret CIA drone info and approved drone strikes via Blackberry.

We do have a winner in the “when” category, albeit via an odd path. Biden’s classified materials date back to his Vice Presidency, and we don’t know when they were moved out of secure storage, so the material goes possibly back to 2009. That’s potentially 14 years of the paper hanging around waiting for someone to discover and make nefarious use of it. In Trump’s case, he left the White House in January 2021 and the classified was pulled out of Mar-a-Lago no later than August 2022, only some 20 months of hiding for no more than four years of material.

Investigations are ongoing in both cases but there is no evidence to date that anyone unauthorized saw the classified documents. We know that after classified was id’ed inside Mar-a-Lago by the National Archives, DOJ asked Trump to provide a better lock, which he did, and later to turn over surveillance tapes of the storage room, which he did. But the clearest evidence of non-exposure is the lack of urgency on the part of all concerned to bust up Trump’s place. Claims he retained classified documents from the White House began circulating even as he moved out in January 2021. The first public evidence of classified in Mar-a-Lago waited until January 2022 when the initial docs were seized, and the recent search warrant tailed that by eight months. If the FBI thought classified material was in imminent danger from one of America’s adversaries they might have acted with a bit more alacrity.

The real money-maker in the classified world is exposure, and here we finally have a clear leader. Hillary wins in that her exposure of classified emails was done consistently over a period of years in real-time. Her server was connected to the internet, meaning for a moderately clever adversary there was literally a wire between her computer with its classified information and the Kremlin. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server may have been “compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” How could anyone have gained access to the credentials? Clinton’s security certificate was issued by GoDaddy.

We have a winner. Whether anyone unauthorized got a look at Trump’s or Biden’s stash remains unclear, but we know for near-certain Hillary’s was compromised. And by compromised we mean every email the Secretary of State sent wide open and read, an intelligence officer’s dream. Hillary had no physical security on her server, her server was enabled for logging in via web browser, smartphone, Blackberry, and tablet, and she communicated with it on 19 trips abroad including to Russia and China. It would have taken the Russians zero seconds to see she was using an unclassified server, and half a tick or two to hack (hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact) into it. Extremely valuable to the adversary were the drafts, documents in progress, a literal chance to look over Clinton’s shoulder as she made policy concerning their country.

No search warrant was exercised to seize the server and Hillary’s word was taken when she said there was no chance of compromise. So enjoy the bread and circuses around two old men with irresponsible staffs and or irresponsible ambitions who got caught with classified information improperly stored. The real damage had already been done years earlier by Hillary, who escaped any penalty, not even the embarrassment of a Special Prosecutor.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Goodbye 2022 (and beyond!)

January 5, 2023 // 1 Comment »

Nobody is going to miss 2022. With the won’t-die pandemic, inflation at home and economic troubles abroad, plus the war in Ukraine, it has not been a happy 12 months. Nevertheless, with the year 2022 behind us, it is time for some housecleaning. Here are four memes we really should bury and not have to hear about again.

The internet changed everything/The internet promotes democracy globally. Nope, it turns out the internet was a big grift and we were allowed to play with its full potential only for a few years until the big guys wanted it back for their own. Though the grift of free speech and a marketplace of idea took place in full view of us all, it was fully bitter and disappointing to see Twitter was never what we thought of it. From early days Twitter was manipulated by a small group of people to favor one set of ideas and either discredit another or simply make them go away. Now it happened that that small group of people had green hair and eyebrow pierces unfavored more liberal ideas, but that is just a technicality, like saying the thugs who monitor the web in North Korea favor North Korean ideas. It means missing the real point, of censorship, of favoring one way of thinking.

The internet available to people in more liberal countries and the internet available to people in more totalitarian places are rapidly converging, not in the specific ideas they display but in the one-sided way they display them. It matters less each day that a powerful group of people in the United States control what we see or that a powerful group of people in China control what folks there see. The point is control itself, not specific content. And double-plus good for those who imagine folks in China yearning to swap their government-controlled media for America’s corporate controlled media. Same chicken but some eggs have brown shells instead of white. Ain’t nobody being empowered or standing up without permission no matter what it looks like in small-scale from the outside to glib commentators.

Countries with a McDonald’s don’t make war on one another. It was ever-so journalistic NYT columnist Tom Friedman who coined the phrase. He wrote the benefits of economic integration reduce the policy choices open to governments, making war—which disrupts that integration—so unattractive as to be practically unthinkable, part of all that end of history stuff that was once the vogue for the hive mind. The concept was built around everyone wanting to be more like us. Well, you can’t get fries with that idea in Kiev or Moscow or in Warsaw today, it is as dead as the broader idea it embodied, that war had become obsolete. In fact, reality suggests it all can work in the opposite as Europe’s dependence (e.g., vulnerability) on Russian energy gave Putin one more weapon to consider as he planned his invasion of the Ukraine.

Same for what Richard Haass of the Council of Foreign Relations calls integration, which has driven decades of Western policy and basically controlled the State Department, with its many offices for education exchange, cultural stuff and women’s issues. This strategy, too, rested on the belief that economic ties – along with cultural, academic, and other exchanges – would drive political developments, rather than vice versa, leading to the emergence of a more open, market-oriented world automatically more moderate in its foreign policy. The idea didn’t win the Cold War with jazz, movie stars, and public speakers, and it did not do much for us in 2022. Educational exchange, the grand savior of U.S.-China relations also near-collapsed in 2022, a victim of lop-sidedness, as well Covid, and misuse by the intelligence agencies.

And we might as well lump in sanctions here as a dead and done policy option. Sanctions do not create meaningful changes in policy behavior. Sanctions in the case of Russia have accomplished less than nothing, as the limited availability of energy out of Russia had actually driven up the prices and resulted in a net gain in income. Most of the world had no interest in isolating Russia diplomatically and economically. Multilateralism, another thing that was supposed to have been dead, remains alive and allows Russia to sell its energy to China and India, much of it for re-export to the countries in Europe (and Japan) where it was originally intended. It is almost embarrassing to have to include a 2022 version of sanctions here as an example, given how decades of sanctions have failed to effect the situation in pre-Ukraine Russia, never mind China, Iran, Cuba, North Korea, and elsewhere.

You have to be at war to be at war. Not unique to 2022 but exemplified by it are the new forms of warfare-but-not-war the United States has pioneered. Is the U.S. at war in Ukraine, for example? Once upon a time that would have meant an act of Congress, a declaration of war, to answer the question in the affirmative. But who among us would say the U.S. is not just a little bit “at war” in Ukraine? The conflict continues to exist solely because of a growing in amount and complexity in the weapons available to Ukraine. American advisors in the form of Special Forces and CIA paramilitaries are on the ground, alongside American combat “volunteers.” No major decisions take place without Washington’s say so, and no form of conflict resolution will take place without Washington’s say so. But it’s not war, right?

Same elsewhere, where U.S. weapons animate the conflicts with Yemen and Syria, and U.S. assistance runs like code in the background of the Israeli-Iran power struggle across the Gulf. Sure sounds like war.

U.S. leadership is near dead. Anybody see any American leadership exercised globally (never mind internally) over Covid? Any international, coordinated responses? Nope. Instead every country made up its own rules, bought its vaccines from its own political partners and allowed/banned travel in line with its national economics. The recent gathering of world leaders in Egypt to address climate change accomplished as little as previous meetings other than to prolong John Kerry’s 15 minutes of fame past their due date with all the grace of milk spoiling. American whining to expand NATO eastward is met with sighs of fatigue. Lastly as far as leadership is concerned there is Ukraine, where each U.S. pronouncement and weapons dump is met with increasing silence out of France and Germany. The U.S. appears resigned to “lead” around little Poland to accomplish its aims. Best to just retire the phrase for now and hope things go better in 2023.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Immigration by the Numbers

December 24, 2022 // 7 Comments »

Numbers can be boring. When discussing immigration blur the lines between sweet old auntie and that bum lapping at the public trough. So let’s look at Mr. Jimenez from Ecuador and Mr. Singh from India, alongside some numbers. Both want to come to the U.S., one for illegal work, one to take his family to New York on a vacation.

Mr. Jimenez will enter across the Southern Border near El Paso. Many people do, and certainly most illegals. In 2022 there were only 330,037 legal immigrants to the U.S. (LPRs, green card holders.) Meanwhile, over 2.75 million “migrant encounters” occurred along the southwest border since Joe Biden took office. In the Rio Grande Valley sector alone, roughly 10,000 encounters with illegal immigrants occur every week. Those number are expected to rise after December 21 as Title 42, a Trump-era legal speedbump to immigration, expires and more people can apply for asylum from inside the U.S. without waiting first in Mexico. Mr. Jimenez will be an illegal, i.e., not have a U.S. immigrant visa or Green Card. He’ll be in that clump of 2.75 million. As a comparison, historically, the peak year for admission of new immigrants was 1907, when approximately 1.3 million people entered the country.

“United States Border Patrol had lost operational control of our southern border. They can’t contain what they have now,” former acting Immigration and Customs Enforcement (ICE) Director Tom Homan said. The Texas Department of Public Safety says of the 371,000 criminal aliens booked into local jails through May 31, 2022, 255,000 were charged with more than 424,000 criminal offenses. These include more than 700 homicide charges, 51,000 assault charges, and 52,000 drug charges.

The crime rates aren’t the only problem; the amount of money taxpayers spend for illegal immigrants to call Texas home averages approximately $850 million a year. Texans pay an average of about $152 million a year to house illegal aliens, between $62 million and $90 million to include illegals in Texas’ emergency Medicaid program, and up to $717 million for hospitals to provide uncompensated medical care. Now to be fair immigrants don’t create such a large cost for taxpayers because they’re lazy. Immigrants, legal or illegal, are just regular people trying to make it through the day. But their relatively low level of education means the kinds of jobs they can get don’t pay much. That in a best case scenario means they pay relatively little in taxes and use more in government services.

These costs are because people in the Biden administration and those who support it believe aliens have a right to enter the U.S. and taking that right away with a wall or a visa regulation is not who we are. Joe Biden called it part of “securing our values as a nation of immigrants.” He’s claimed reducing immigration has been an “unrelenting assault on our values.” Immigration, says Biden, “is essential to who we are as a nation, our core values, and our aspirations for our future.”

The problem is Mr. Singh from India. Mr. Singh does not want to work in America, does not seek uncompensated medical care or Medicaid. He wants to visit New York on a tourist visa, eschewing the wet walk in at El Paso for a First Class ticket landing him at JFK. He wants to do things the legal way.

Indians hoping to head the U.S. for vacations are now faced with huge delays in obtaining the interviews needed to be granted a visa. According to the State Department, the wait time in early December for one of these interviews at the American Embassy in New Delhi was 999 calendar days. In Hyderabad, it was 780. In Mumbai, it’s 999. Nothing is higher than 999 days, so one suspects the real toll is in the thousands, and a note warns “These are estimates only and do not guarantee the availability of an appointment.” A non-sarcastic reminder states “Please schedule a regular visa appointment well in advance.” Ironically if Mr. Singh were to fly into Mexico City and seek a U.S. visa interview there, he’d still face a 702 day wait. And by the way, the fee for that visa, should it eventually be issued, is a cool $160 per person.

So Joe Biden, time to put up or shut up. If unfettered immigration is part of our national fabric, either deploy the resources needed to properly process visas in India and around the world, or plug the holes along the southern border to greatly slow the rate of illegal immigrants. Trying to have it both ways only leaves the United States looking like a hypocrite on immigration, and that’s not who we are, right?.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

The Ministry of Twitter

December 22, 2022 // 3 Comments »

I was shadow banned by Twitter, even after my suspended account was restored. What is it with these people? What are they so afraid of?

Things are changing fast under new owner Elon Musk, but using available free tools a few days ago I found my new account @PeterMVanBuren has been electronically censored. Specifically, using a tool called Shadow Bird, I learned my tweets have been subjected to Reply Deboosting. This means my replies on tweets will be hidden behind a “Show More” button for accounts that don’t follow me. This is particularly frustrating because it essentially silences me except among people who already know and usually agree with me. It makes it nearly impossible to build followers; they have to stumble on to my tweets or come looking for me based on something they have seen online. It is a very effective way of shutting someone up without leaving more than a paranoid’s slime trail behind, until now.

After years of denying such manipulation (“Paranoid much, dude?”) Elon Musk has made public information showing Twitter has been subjecting mostly conservative voices to search suggestion bans, search bans, ghost bans ( blocking content from an online community in such a way that the ban is not readily apparent to the user) and reply deboosting. Though directed at a variety of users, the bans have disfavored voices from the right and in all cases were implemented without notice to the user and without a chance for any form of process or arguing back. Yes, yes, Twitter is a private company and not subject to the 1A, but the moment they became a private company with the ability and now the demonstrated willingness to influence presidential elections their business became everyone’s business. Extensive Twitter threads posted by Matt Taibbi and Bari Weiss revealed that the company was essentially part of a coordinated Democratic suppression operation and actively colluded with the FBI to destroy Donald Trump and assure Joe Biden’s election. Which is why, as Elon Musk observed, “Twitter is both a social media company and a crime scene.”

In his novel 1984, George Orwell suggested a diabolical solution to the problem of censorship. He conjured up a technological device for the world of Big Brother that he called “the memory hole.” In his dark future, armies of bureaucrats, working in what he dubbed the Ministry of Truth, spent their lives erasing or altering documents, newspapers, books, and the like in order to create an acceptable version of history. When a person fell out of favor, the Ministry of Truth sent him and all the documentation relating to him down the memory hole. Every story or report in which his life was in any way noted or recorded would be edited to eradicate all traces of him. Same for ideas. A purity of thought, a world in which negative news such as about Hunter Biden’s laptop simply did not exist, was created.

In Orwell’s pre-digital world, the memory hole was a vacuum tube into which old documents were physically disappeared forever. Alterations to existing documents and the deep-sixing of others ensured that even the sudden switching of global enemies and alliances would never prove a problem for the guardians of Big Brother. In the world he imagined, thanks to those armies of bureaucrats, the present was what had always been — and there were those altered documents to prove it and nothing but faltering memories to say otherwise. Anyone who expressed doubts about the truth of the present would, under the rubric of “thoughtcrime,” be marginalized (shadow banned) or eliminated (search banned.) What is scary is not how Orwell differs from Twitter, but how much the same they are. 1984 was not supposed to be an instruction manual.

Through my Foreign Service career I served in and visited countries that practiced overt government censorship. Critics of the regime would be punished, the least physical of which method was usually the most effective, simply finding ways to stop them from publishing. No newspaper or broadcasting station would take their work, to the point where they found themselves unable to hand out photocopied pamphlets on street corners. What astounded me was not the censorship per se, that was easy to understand no matter how abhorrent, but the degree of detail. As with Iran’s “appearance” morality people who look for any wisp of hair peaking out from beneath a hijab, no subversive thought is too small, no objectionable material too minor to stomp on. It is the pervasiveness of evil, its level of detail, that makes it so wrong. A dictator need not disappear a troublesome person anymore, just his ideas. The need to murder Jamal Khashoggi was a failure of Internet technology.

I hate using Twitter but am expected to post my articles there and try to build a following of readers. Even after restoring me to Twitter after my original account with several thousand followers was shut down, somewhere deep within the Ministry of Twitter someone still thought I must be a threat of some kind, and electronically made sure I would never amass as large a following again, all via reply deboosting. I was a thought threat as far as Twitter was concerned and I had to be dealt with. I had made about 50 Tweets and a few RTs; is there some sort of naughty not nice list?

Of course what Twitter (and no doubt other social media sites) has been doing is small stuff. For the future, look to Google and negative search strategy. Here’s how a negative search strategy works, even if today its focus — largely on pedophiles — is easy enough to accept. Google uses software which makes it harder for users to locate child abuse material. Google Search has been “fine-tuned” to clean up results for more than 100,000 insider terms, many supplied by law enforcement, used by pedophiles to look for child pornography. Now, for instance, when users type in queries that may be related to child sexual abuse, they will find no results that link to illegal content. Instead, Google will redirect them to counseling sites. “We will roll out these changes in more than 150 languages, so the impact will be truly global,” Google claims.

While Google is redirecting searches for kiddie porn to counseling sites, the NSA has developed a similar ability. The agency already controls a set of servers codenamed Quantum that sit on the Internet’s backbone. Their job is to redirect “targets” away from their intended destinations to websites of the NSA’s choice. The idea is you type in the website you want and end up somewhere less disturbing to the agency. While at present this technology may be aimed at sending would-be online jihadis to more moderate Islamic material, in the future it could, for instance, be repurposed to redirect people seeking news to an Al-Jazeera lookalike site with altered content that fits the government’s version of events. Or making sure no one saw an article about Hunter Biden’s laptop. Or hiding the latest revelations from social media.

Back on Twitter, welcome to @MoonmanCartoons, an account featuring the conservative editorial cartoons of Robert Mooney. Mooney has all of 88 followers yet is subject to Twitter’s reply blocking and search suggestion ban, making it impossible for him to build followers. He posts a cartoon and less than 100 people see it; why bother, Twitter?

“Why would they censor us ‘small fish?’ Mooney asked TAC in an interview. “I think there are a couple of reasons, the first of which is simply because they can. If the technology exits, why wouldn’t they use it to achieve their objectives? Also, I think they may see some people at our level as potentially influential if they don’t nip us in the bud. Despite the censorship, I’ve occasionally slipped one by the goalie. For example, when Dinesh D’Souza retweeted one of my cartoons about 2020 election fraud, I got almost 1400 likes and 439 retweets. That sort of thing is rare, but it’s happened a few times, showing that I have a potential receptive audience out there.”

“As for whether this is similar to other nations that censor, I’ve felt for months that where we are in the U.S. right now with regard to censorship and the criminalization of political opposition is the American equivalent of Germany 1933. Obviously it’s not an exact duplication of the dawn of the Third Reich, but if we keep going down this road, we will end up with a country very different from what we’ve known for over two centuries and from what the Founders intended — and not different in a good way.”

As they say, it starts with the small stuff. Like Twitter.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Brittney Griner Smokes Dope for Freedom

December 17, 2022 // 5 Comments »

Was WNBA star Brittney Griner the subject of so much White House attention because she was an important showpiece demographic?

Nobody can claim they are unhappy Griner is home safely in the U.S., free again to use marijuana and remain seated during the national anthem ahead of her WNBA games. No one can sit here and say she should have better been left to suffer in Russia. But at the same time Griner through all fault of her own ended up in the middle of a foreign policy struggle. In the case of Russia, the U.S. specifically warns people like Griner “do not travel to Russia due to the unprovoked and unjustified invasion of Ukraine by Russian military forces, the potential for harassment against U.S. citizens by Russian government security officials, the singling out of U.S. citizens in Russia by Russian government security officials including for detention, the arbitrary enforcement of local law, limited flights into and out of Russia, and the Embassy’s limited ability to assist U.S. citizens in Russia.”

What did we learn from all this? It’s doubtful Griner herself learned much.

Firstly, Americans should not be as stupid as Griner and try to smuggle drugs into foreign countries with stricter laws than here at home, whether we’re at war or not. Griner’s action was a near-Hollywood trope, all the way back to Midnight Express, the “good” kid trapped in a horrible nightmare of foreign detention. Luckily we didn’t have to watch the, um, “romantic scene” pressed against the glass in Griner’s case the way it was highlighted in Express.

We also learned, in WNBA terms, the Biden administration has no game. They signaled their urgent desire to get Griner home so clearly the Russians knew the negotiations were going to be one-sided even before they started. If the Russians would have held out a little longer they might have gotten Alaska back in trade for Brittney. It was another reminder how bad Biden is at foreign affairs, and how transparent he is about domestic political gains however small.

The U.S. State Department estimates Griner was just one of more than 3,000 Americans imprisoned abroad, on grounds ranging from small amounts of dope up to murder. For all but a handful, the U.S. government explicitly states they cannot get them out of jail, tell a foreign court or government they are innocent, provide legal advice or represent them in court. The president certainly is not in the habit of making calls to say the Thai government telling them to please let your boyfriend Corn Pop go, honest, he didn’t mean to have that baggie of Ecstasy stuffed in his underwear at Customs.

Other than to be a “Brittney Griner” type, the key to getting the full force of the U.S. government on your side working for your release is to be “wrongfully detained,” a qualification which applies to fewer than 40 out of those 3,000 some Americans locked up.

There is a formal list of qualifications to turn an arrest into a wrongly detention, but the real answer is politics. Congress passed the “Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act,” named after the American missing in Iran for over 15 years. The 2020 law establishes 11 criteria for a wrongful detention designation, any one of which can be a sufficient basis to secure the detainee’s release, including “credible information indicating innocence of the detained individual,” “credible reports the detention is a pretext for an illegitimate purpose,” “the individual is being detained solely or substantially to influence United States Government policy or to secure economic or political concessions from the United States Government,” or a conclusion that U.S. “diplomatic engagement is likely necessary.” Secretary of State Blinken must personally approve such a designation, and upgrade the case from the State Department’s Bureau of Consular Affairs (disclosure: where I worked for 22 years) to the Office of the Special Envoy for Hostage Affairs.

Take a look at two cases where the U.S. government did not step in to help Griner-style, to better illustrate the demographic politics involved.

Marc Fogel is “the other American” imprisoned in Russia on minor drug charges. He previously taught history at the international Anglo-American School in Moscow, and was well-known and well-thought-of by diplomats not only from the U.S. but also from Great Britain, Canada, and elsewhere (Fogel is a better comparator case to Griner than Paul Whelan, whose espionage case is complicated and shares few details with Griner’s and Fogel’s dope runs.  Whelan was also passed over largely unnoticed by the media just this April in the exchange of Trevor Reed, another former Marine who had been held for more than two years over a bar fight, for Konstantin Yaroshenko, a Russian pilot serving a 20-year federal prison sentence for drug smuggling.)

For the past 11 months, Fogel has been held in Russian detention centers for trying to enter the country with about half an ounce of medical marijuana he’d been prescribed in the United States for chronic pain after numerous injuries. He is facing down a 14-year sentence. His trial included politicized accusations of close connections to the American embassy, was confused by a visa issue and his personal friendship with the ambassador, and false claims he aimed to sell marijuana to his students. All this led to a tougher than usual sentence. But the State Department has denied Fogel “wrongfully detained” status. Why not help Marc Fogel, President Biden?

Or consider the case in Japan of Navy lieutenant and former Mormon missionary Lieutenant Ridge Alkonis, currently locked up on a three-year sentence after two people were killed in a traffic accident doctors said may have been caused by a medical episode. Alkonis and his family hiked Mount Fuji when on the way home Alkonis blacked out at the wheel of his car and crashed, with his own family inside, in a restaurant parking lot, killing two Japanese citizens. Neurologists diagnosed Alkonis with Acute Mountain Sickness, which can cause sudden fainting up to 24 hours after rapid altitude change.

Alkonis’s family offered $1.65 million in compensation to the Japanese family for the loss of their relatives, along with an apology. The Japanese family, however, uncharacteristically refused the settlement and instead demanded jail time for Alkonis. Senator Mike Lee of Utah claims Alkonis is being targeted as a proxy for American forces stationed in Japan, who remain unpopular among many Japanese. On the face, the case certainly looks unfair and politicized in many ways. Why not help Lieutenant Alkonis, President Biden?

If neither of these cases catch your interest, as with Joe Biden, the State Department has thousands more to choose from. The point is not to have seen Brittney Griner suffer more; it’s to ask what makes her case special enough to warrant the designation “wrongfully detained” and the offer of a lopsided prison swap. If your answer is something other than her being a demographic showpiece, try again.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

What is Speech? Expression vs. Art, LGBTQ Edition

December 15, 2022 // 4 Comments »

A friend makes maps, colorful graphic maps of mostly Washington DC neighborhoods. She sells them, often framed, by the bushel at farmer’s markets and through her own shop. She often asks people where they live, but never how they live. Her service — the map — is neutral to whom one is married to, what religion they practice, which party they support. Everyone is welcome to buy a map, and all the maps are the same.

Not so for the hypothetical wedding cake maker in the next stall. While anyone is free (indeed, allowed by law) to buy an off-the-rack cake, she refuses to use her form of speech to support LGBTQ weddings. She’ll sell a gay couple a cake predecorated reading “Have a Great Day” but will not create say a rainbow design with two women holding hands for a couple or otherwise knowingly use her skills to celebrate the marriage. She claims that violates both her 1A right to practice her religion and, the emphasis here, her 1A right to free speech. Anti-discrimination laws (20 states have laws specifically protecting LGBTQ people) cannot compel her to create speech she does not believe in. A lot going on under the surface at the farmer’s market, and that’s why the Supreme Court has had to step in and sort things out.

The instant case is 303 Creative v. Elenis, ostensibly a culture war-religious 1A challenge that only incidentally concerns religion while really asking the question of “what is speech” and when can anti-discrimination laws compel it. Specifically, “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” The Court heard oral arguments in early December, with a decision due in June.

The story starts familiar enough for 2022: Lorie Smith is a Colorado website designer who, according to her Supreme Court brief, intends to design custom wedding websites, and refuses to design websites that advance ideas or causes she opposes, such as same-sex marriage. She says she will work with gay clients on other, non-same-sex-marriage websites.

The existing law is pretty straightforward, saying, if a vendor is providing a service such as, say, running a drug store sandwich counter, then it doesn’t enjoy a constitutional right to refuse service to customers on the basis of status or identity. But though the state can demand that businesses provide goods and services to all customers without regard to race, sex, sexual orientation, and other protected categories, it cannot demand businesses or individuals engage in speech proclaiming messages that they oppose. Smith argues designing websites is a form of speech. The essence of the 1A is that the government cannot compel speech. Compelled speech crushes the speaker’s conscience and is a tool of authoritarianism. In Justice Samuel Alito’s words, a win for the state of Colorado against Smith would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”

The mother of all cannot-compel-speech cases is 1943’s West Virginia Board of Education v. Barnette. At the height of World War II, the Supreme Court held that West Virginia could not make Jehovah’s Witness students salute and pledge allegiance to the American flag. The decision contained arguably the most famous single sentence in American First Amendment jurisprudence: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The key question in 303 Creative is whether Smith is denying a service (websites) on the basis of status (her customers are gay) or refusing to engage in speech because she disagreed with its message.

In this case, the Supreme Court was well aware of a similar one, Masterpiece Cakeshop v. Colorado Civil Rights Commission, that never resolved the underlying core issue of what is speech, floundering instead on the religious angle and even the question of whether certain cake makers held a monopoly for their services. So never mind.

In the oral arguments just heard in 303 Creative, the Supreme Court’s conservative majority seemed prepared to rule a designer has a First Amendment right to refuse to create websites celebrating same-sex weddings based on her Christian faith despite a state law that forbids discrimination based on sexual orientation. But several justices leaning in that direction appeared to be searching for limiting principles so as not to unintendingly upend all sorts of anti-discrimination laws.

The justices seemed to be creating new ground legally separating racists from those who oppose gay marriage. Justice Ketanji Brown Jackson brought up a hypothetical mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie “It’s a Wonderful Life” might be able to exclude Black children. Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit. The difference between a service (a sandwich at a lunch counter) and art (words expressing joy over a same sex union) came up repeatedly. A thread throughout the arguments was whether the refusal to provide wedding-related services for a same-sex couple could be compared to the same treatment of interracial couples. The lawyer for 303 Creative said it could not and pointed out that in its decision finding a constitutional right to marriage for gay couples, the Court noted that respect was due to those who disagreed with same-sex marriage as a matter of religious belief. No such call for respect exists for those who oppose interracial marriage.

What it all means: if the Court acts as it has signaled it will, in favor of 303 Creative, then this will free conservative creative people to work within their fields without having to express beliefs, such as acceptance of same-sex marriage, contrary to their conscience. The Court will preserve anti-discrimination laws, hard won, to ensure we do not slip backwards to a time of segregated lunch counters and the like.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Why Does the NYT Now Support Assange?

December 14, 2022 // 4 Comments »

Why did The New York Times, The Guardian, Le Monde, Der Speigel, and El Pais demand that Department of Justice drop most charges against Julian Assange?

The news organizations recently called on the United States government to drop most of its charges (the charges related to hacking directly with then-Army intel specialist Chelsea Manning are unmentioned) against WikiLeaks founder Julian Assange for publishing classified information. In a letter the media outlets said the prosecution under the Espionage Act “sets a dangerous precedent” that threatened to undermine the First Amendment and global press freedoms broadly. “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. If that work is criminalized, our public discourse and our democracies are made significantly weaker. Holding governments accountable is part of the core mission of a free press in a democracy.”

Demanding leniency for Assange, who has been fighting extradition from Britain to the U.S. since his arrest there in 2019, seems a noble act. But a complex history precedes Assange.

In 1971, Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act. A federal court ordered the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper via prior restraint. In the end, the Supreme Court reversed the lower courts and handed down a victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ever since media published secrets as they found them.

But looking at the Times case through the lens of Wikileaks, law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause. The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”

The Supreme Court left the door open for the prosecution of journalists who publish classified documents by focusing narrowly on prohibiting prior restraint. Politics and public opinion, not law, has kept the feds exercising discretion in not prosecuting the press, a delicate dance around an 800-pound gorilla loose in the halls of democracy. The 2022 Assange letter from the New York Times, et al, is as self-serving (begging for the status quo no matter what happens to Assange the hacker) as it is noble.

Allowing the media to publish is not the same as allowing unfettered access to government secrets. On July 30, 1778, the Continental Congress created the first whistleblower protection law, stating “that it is the duty of all persons in the service of the United States to give the earliest information to Congress or other proper authority of any misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states.” The Executive has since aggressively used the Espionage Act and other laws to prosecute whistleblowers who leak to journalists.

The closest a journalist ever came to being thrown in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. They then accused former CIA officer Jeffrey Sterling of passing classified information to Risen. After a lower court ordered Risen to testify and disclose his source under threat of jail, the Supreme Court turned down his appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether there existed a gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the Free Press Clause.

In the end, the Obama administration, fearful of public opinion, punted on Risen. Waving a patriotic flag over a messy situation, then-attorney general Eric Holder announced that “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and wasn’t punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into prison for three and a half years. To avoid creating a precedent that might have granted some form of reporter’s privilege under the Constitution, the government stepped away from the fight.

Those same issues now hover over Julian Assange. Should the government decide to prosecute him, there are complex legal questions to be answered about who is a journalist and what is publishing in the digital world — is Assange himself a journalist like Risen or a source for journalists like Sterling was alleged to be? There is no debate over whether James Risen is a journalist and whether a book is publishing. Glenn Greenwald has written about and published online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher. The elements of fact checking, confirming, curating, redacting, and providing context around classified information were all present in the New York Times case with the Pentagon Papers; they are also present with American citizens Risen and Greenwald. Definitions and precedents may be forming.

Assange isn’t an American. He is unpopular, drawn now into America’s 21st-century Red Scare for revealing the DNC emails, supposedly hacked by Russia. He has written nothing alongside the documents on Wikileaks, has done little curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied. The government could argue that Assange is not entitled to First Amendment protections simply by claiming that a mouse click isn’t publishing and Assange isn’t a journalist. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to national defense without authorization, would apply. He would be guilty, same as the other canaries in the deep mine shaft of Washington before him, no messy balancing questions to be addressed. And with that, a unique form of online primary source journalism would be made extinct.

The 2022 media letter regarding Assange begs the question of why now. On paper, Assange’s situation is unchanged for months. He sits in dank Belmarsh prison in Britain fighting his extradition to the U.S.; nothing new there. On the American side Attorney General Merrick Garland has sought to limit ways the Justice Department can make life harder on journalists. In October, he issued new regulations banning the use of subpoenas, warrants or court orders to seize reporters’ communications records or demand their notes or testimony in an effort to uncover confidential sources in leak investigations. Could it be deal has been made for the U.S. to drop all charges against Assange absent working with Manning on the hack itself? Or is lapdog Britain simply tired of carrying water for the U.S. and demanding, politely, action (hence the Australian government support for media letter?) Has Assange’s health taken a significant turn for the worse?

It may just be that Assange is an easy target for both sides. With him the government is able to mold the legal precedents with such certainty that, where they backed away from other cases in their long-running war of attrition against free speech and the press, this one they may seize. It could be as simple as the self-serving media letter of 2022 is meant to forestall that.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Wrapping Up: What John Durham Learned

December 3, 2022 // 8 Comments »

As he wraps up his investigation with the prosecution of Igor Danchenko, we are left only with questions about what John Durham did not do.

Best to start with what we learned. Durham established what FBI Director James Comey likely knew from near day one, that the Steele dossier was politically-driven nonsense created by the Clinton campaign. The FBI knowingly ran with its false information to obtain legal process against American citizens, to include Donald Trump as a candidate and as president. The FBI knew for sure in early 2017, likely earlier, that Trump was not a Russian spy but allowed the process to run on through the Mueller Report and all the rest. Imagine how different Trump’s term would have been had we all known with the certainty what the FBI did. No Maddow, no walls closing in, no insinuations America’s president was dealing cards to the Russians right out of the Oval Office. What was lost we’ll never know.

The 2019 Horowitz Report, a look into the FBI’s conduct by the Justice Department Inspector General, now backed up by Durham’s work, made clear the FBI knew the dossier was bunk and purposefully lied to the FISA court to keep its lies alive. The FBI knew Steele, who was on their payroll as a paid informant, had created a classic intel officer’s information loop, secretly becoming his own corroborating source, and gleefully looked the other way because it supported their goal of spying on the Trump campaign, hoping to bring Trump down. Make no mistake, this was a failed coup.

How bad was it? At no point in handling info accusing the sitting president of being a Russian agent — what would have been the most significant political event in American history — did the FBI seriously ask themselves, “Exactly where did this information come from, specific sources and methods please, and how could those sources have known it?” The FBI learned Danchenko was Steele’s near-single, primary source in 2017, via the Carter Page tap, and moved ahead anyway. Were all the polygraphs broken?

And that is what we must focus on, what Durham failed to do.

FBI lawyer Kevin Clinesmith plead guilty to Durham’s charge that Clinesmith lied on the FISA application for Carter Page to obtain a court’s permission to electronically surveil Page and, via the two-hop rule, the bulk of Trump’s inner circle. That rule allows those with a direct tap on one person (say, Carter Page) the legal ability to listen in two hops downstream. So if Page called Michael Cohen (one hop) and Cohen later called Trump (two hops) that would have all been legal surveillance.

Page was a patsy, and the FBI knew it but needed a patsy bad enough to lie to get one. What was hidden from the courts was that the FBI knew Page was already a source, an agent, for the CIA and was not working for the Russians. It was with the tap on Carter Page that the whole investigation of Russiagate, Crossfire Hurricane, began. Did Clinesmith act alone in formulating his lies? Was he ordered to lie? Was his lie part of any broader pattern of lies on later FISA applications? Who worked with Clinesmith to create the FISA application and when was the lie incorporated? How many people above Clinesmith (McCabe, Comey, et al) knew about the lie and played along? How far up the FBI chain did they know it was all constructed, that Page was a stooge alright, but one clearly documented as working for the American side? Durham never seemed to ask and we the public will thus never know.

Though Clinton lawyer Michael Sussman, Durham prosecution Number 2, was found not guilty of perjury, his trial revealed all sorts of questions Durham allowed to fade out. Testimony showed Hillary Clinton herself signed off on the plan to push out the information about the link between Trump and Alfa Bank despite concerns that the connection was dubious at best. This was the first confirmation that Clinton was directly involved in the decision to feed the false Trump-Alfa story to the FBI and MSM. It followed Wikileaks releasing information taken from the DNC servers which showed, inter alia, the Clinton campaign’s efforts to disparage Bernie Sanders. The leaks broke during the Democratic Convention and threatened to split the party. It was crisis time for Dems.

Concurrent with the Wikileaks disclosure and the sense of panic inside the campaign at the 2016 Democratic National Convention came Clinton’s sign-off to begin the Russiagate dirty tricks campaign. That is the specific “why” behind the timing of the Russiagate narrative. Durham left Clinton out of his questioning, albeit with the help of the court blocking such “non-relevant” lines of inquiry in Sussman’s trial. Durham appears to be issuing no summary report, so whatever he learned dies with him.

The Sussman trial also revealed the extent of spying on Trump. News worthy in Durham’s indictment of Sussman were allegations tech company Neustar and its executive Rodney Joffe accessed “dedicated servers for the Executive Office of the President of the United States (EOP.)” Joffe then “exploited this arrangement by mining the EOP’s DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump.”

Joffe also “enlisted the assistance of researchers at a U.S.-based university” (likely Georgia Tech) who had access to “large amounts of Internet data.” This would have been how Joffe got access to data from Trump’s private computers. “[Joffe] tasked these researchers to mine Internet data to establish ‘an inference’ and ‘narrative’ tying then-candidate Trump to Russia,” he added. “In doing so, [Joffe] indicated that he was seeking to please certain ‘VIPs,’ referring to individuals at Law Firm-1 and the Clinton campaign.”

Durham never pursued the Joffe line. Who paid him? When did he start monitoring the Oval Office? What did he learn? When did he stop? Was any of the monitoring, likely unconstitutionally, shared with the FBI? Was the FBI aware of the action and what if anything did they do to support it, profit from it, or try and limit it?

Durham’s third and final prosecution was of Igor Danchenko. Danchenko, of the Brookings Institute, was the primary Russian source for Steele’s Dossier. He also served as a cover for Charles Dolan, a Clinton operative who simply made things up (such as the pee tape) and washed his lies through Danchenko to give them additional validity. The FBI lapped up what Steele served them and like Steele himself, never seriously questioned where the information they were acting on originated. Even in 2017 when the FBI learned the primary source was Danchenko, Crossfire Hurricane was allowed to proceed.

Left answered: exactly when did the FBI learn Steele’s source was bogus? When did they learn Dolan was the originator of the pee tape? Why did they not conclude the investigation at that point? How high up the FBI chain of command did knowledge of the lackadaisical sourcing by Steele go? Director Comey? If not, why not? The FBI was actively investigating the President of the United States as a Russian spy and Comey was not aware of the details? Why didn’t Durham walk his indictments up the ladder, ever closer to Hillary? Or instead, why did he not proceed sideways, leaving Hillary but moving deeper into the FBI? Maybe see if Fiona Hill at Brooking’s connects the failed Russiagate coup with the failed Ukrainegate impeachment, both of which she played a pivotal behind-the-scenes role in? Why didn’t Durham use the stage of congressional hearings to bypass Joe Biden’s Justice Department and throw the real decision making back to the voters?

It is easy enough to say “so what?” Most people who did not support Hillary Clinton long ago concluded that she is a liar and untrustworthy. Her supporters know she’ll never run for public office again, hence the sense of anti-climax. But what matters is less the details of Hillary’s lie than that as someone close to being elected as her would lie about such a thing, treason, claiming her opponent was working for Russia. No doubt that for many Clinton’s manipulations are measured against Trump’s transgressions. But Trump’s win did not absolve Hillary of her sins. And those who worry about elections being stolen via vote miscounts are thinking way too small. If you want to really worry, think like a Clinton.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

I Know Why Can’t We Fix Homelessness

November 29, 2022 // 3 Comments »

“What stands out for visitors?” I asked our guide during a Honolulu Chinatown tour with my out-of-town guests. “Always the same, the homeless. Even Mainlanders from big cities like San Francisco and New York are surprised how many we have here. I’m waiting to see how the Japanese and Korean guests respond when they start traveling again.”

You can’t miss his point. During our brief walk through Chinatown’s markets we saw a disturbed man dressed only in his underwear touching himself, several seriously street-worn people begging, and watched the fire department respond to a prone homeless man who was dead or simply drugged into paralysis. When someone in our party needed the toilet, the shopkeeper apologized for having to keep it locked to prevent misuse by vagrants. Many places simply had signs saying “no public toilet.” Despite some great tasting food, it was hard to keep up a holiday spirit. Same for when we passed the tent cities and parks overtaken by homeless along a drive on the Windward side.

The numbers only begin to tell the story. Pre-COVID, there were an estimated 6,458 homeless in Hawaii. The Big Island saw the biggest jump in homelessness from 2019-2020, a 16 percent increase. On Oahu the homeless population is up 12 percent. San Francisco before COVID counted over 8,000 homeless persons, and while COVID-era numbers are hard to pin down, one measure is overdose deaths among the homeless, which have tripled. New York has the highest homeless population of any American metropolis, close to 80,000 and growing. The number of homeless there today is 142 percent higher than it was 10 years ago, and currently at the highest level since the Great Depression. Some 3,000 human beings make their full-time home in the subway.

Estimates for the United States as a whole run well over half a million people living homeless. The number shoots up dramatically if one includes people living in their cars, people on their way to exhausting the good will of friends who offered a couch, and those who slide in and out of motels as money ebbs and flows. Some 21 percent of American children live in poverty, homeless or not. In the end nobody actually knows how many people are living without adequate shelter except that it is a large number and it is a growing number and there is nothing in line to lower it, only to find new ways to tolerate it.

We have in many places already surrendered our public parks and libraries. The hostile architecture of protrusions and spikes which make it impossible to sleep on a park bench are pretty much sculpted into the architecture of the city, markers of the struggle for public space. The idea even has its own Instagram account. A security firm offers tips: restrict access to sidewalk overhangs protected from inclement weather, remove handles from water spigots, and keep trash dumpsters locked. If things get too bad, the company, for a price, will deploy “remote cameras with military-grade algorithms capable of detecting people in areas they shouldn’t be in.”

Keep in mind that all of these homeless people coexist in a United States whose wealthiest citizens have their own spaceships. NYC alone is home to 70 billionaires, more than any other American city. New York is also home to nearly one million millionaires, more than any other city in the world. How is it that the nation’s wealthiest city and poorest city are the same place?

All the solutions seem to fail. There are not enough shelters we are told but even when more shelters are built the homeless are too paranoid to move in,or the shelters become too dirty, too dangerous, chaos compacted, so the transition from an encampment to supportive housing isn’t easy. In ravaged San Francisco, one out of 10 of the city’s already existing supportive housing units are empty, with the director of the Department of Homelessness (!) placing the blame on individuals. So the homeless problem becomes a mental health problem which becomes a drug and alcohol problem which becomes a public health problem. Our society will not force people into care, and it will not deport the homeless against their will to desert camps. Instead we simply do nothing absent throwing a few bucks into food programs as an expedient over stepping around too many bodies in the street. Meanwhile nobody asks why nothing seems to work.

Because the American economic system requires homelessness. That’s why we can’t solve homelessness; no matter how much solving you do the system just makes more.

The Democratic arguments over raising the minimum wage are a smokescreen. As long there is a minimum wage and businesses do not have to compete for workers, there have to be homeless people. Think of the homeless as run-off, the unfortunate but necessary waste product of an economic system designed to exploit workers for the benefit of space-traveling overlords. The homeless — no wagers — are the endpoint of an economic spectrum dominated by the minimum wagers, people whose salary and hours, and thus whose chance at lifetime wealth status, are capped by agreement between the government and industry.

Until slavery ended, human beings were considered capital, just like stock today. Now we’re “human resources” so everything’s better. Bringing up race hides the real story of how long this has been going on and how deep a part of our way of life it is. The line between controlling someone with a whip and controlling someone through ever-lower wages gets finer and finer over time.

This is what “systematic” means: a system of public-private sector agreements codified as laws which push workers into a cesspool as grab-and-go disposable labor. Those who sink end up homeless. Those who tread water are guaranteed a life of maybe just enough, their place in society fixed for others’ goals, never their own. It also assures the sales of drugs, alcohol, and lottery tickets as the working poor try to convince themselves all this can’t be true. Can it?

The next step is clear. The working poor are allowed to exist at survival levels only because they are in jobs too expensive or difficult to automate. You think there are a lot of homeless now? Wait until self-driving vehicles click in and another job category simply disappears, leaving drivers and delivery people nowhere to go (there are more than 3.5 million truck drivers in the U.S., making driving one of the most popular occupations.) Same for fast food and other service jobs. Soon enough AI and/or remote online learning will make live teachers an expensive luxury for the children of the wealthy.

If you wanted a clever term about why we have and ignore and can’t address the homeless problem, you could call it systemic inequality in tune with the times’ nomenclature. A system designed to exploit will always exploit too much at its edges. It is supposed to, in order to keep driving the center downward, from 1950s middle class to 2022’s working poor.

But in the near term the issue isn’t confronting the reality of inequality, it is navigating the society it has created, much as my tour guide directed us around the homeless nests in Chinatown so we could sample the dim sum at leisure. “Don’t make eye contact” was some of his best advice.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Orwell’s Mistakes

November 28, 2022 // 2 Comments »

The world of 1984 is grim in a way 2022 would understand. The people of Orwell’s future want to be controlled. They have come to prefer it. Freedom from choice makes them feel safe. People accept being monitored, and their media being censored. They think of it all with a sense of the inevitable, the only way to stay safe, if they think of it at all. The all-seeing telescreens in their homes, the snitches and spies embedded in their lives, are just the way of it, for the better, really. Language itself is changed not to just stifle dissent but to make it impossible.

In 1984 it is the government which controls and modifies all media, sending events from the past no longer politically correct down the memory hole. Today we have the legacy media which do that for us. We can no longer read a newspaper or watch a documentary with any expectation any part of it is true. Americans relish fake news. In only one example, the truth is there was no collusion between Russia and the Trump campaign. It was all made up, doublethink, embellished with lurid “details” like the pee tape so absurd they wouldn’t make it into a B movie script. Michael Cohen never went to Prague. The FBI had to lie to obtain FISA permission to spy on Trump associates. Yet vast numbers of Americans still believe it all to be true, and seek out media which clings to the edges of the story. Indeed 2+2 can equal 5 if you believe it does.

In another example, Hunter Biden financially benefited trading off his father’s position. He made millions from China and Ukraine selling influence. The media acted collectively with the full support of about half of Americans to disappear the story and influence the 2020 election. Once pushed underwater, the story never came back in time for the 2020 election, maybe not for the 2024 one. When I Google Hunter’s name I find sympathetic replacement stories about his battles with various addictions. Most Americans welcome the sleight of hand. They don’t want another scandalous administration. They want censorship to clean that up. The government doesn’t have to police it; in America, journalists demand the suspension of other journalists’ 1A rights based on ideology if things go off message.

Orwell’s Two Minutes of Hate was when the public was told to express hatred toward enemies of the state whether it made sense or not. The Brett Kavanaugh hearings were a widely welcomed version of this, using the confluence of mediagenic victims, politicians, and MSM whipping up the crowd. Social media, particularly Twitter, serves the same ongoing purpose; we loved Cuomo as the anti-Trump until told to hate him as a sexual harasser. Is Dr. Fauci a good guy or a bad guy this week? Your own family is also a target as white allies are told “Text your relatives and loved ones telling them you will not be visiting them or answering phone calls until they take significant action in supporting black lives.”

In 1984 criticism of The Party was the worst sin, punishable by loss of status, loss of work, loss of self — cancellation. Though America so far does not include the physical torture portion (in Newspeak, enhanced interrogation) of 1984-style cancellation, the rest of the tools are active. Party orthodoxy is replaced by the sin of criticizing diversity and being denounced as a racist. Whole industries — academia, media, entertainment — are controlled by the issuance of double plus good anti-racist badges.  Most all the media we consume, and what our kids learn in school, is filtered, judged, and censored by an ideological mob as convinced of their own rightness as any Nazi ever was.

If you want to keep your job in those fields and more you must embrace Big Diverse Brother, and most are more than happy to do so. Those who fall out of favor with the Party in 1984 become “unpersons,” disappearing with all evidence of their existence destroyed. In 2022 they are deplatformed. Institutions don’t punish dissent per se as much as seek to make enough examples to make dissent impossible.

Orwell envisioned the need for a massive Ministry of Truth to enact societal control when in fact all it took was some silliness about whether calling COVID “Chinese flu” was racism, and a dash of sky-is-falling articles. Make fear the problem and empowering protectors becomes the solution. The message worked: You have to give things up for a safe society. If you don’t, you’re selfish; you’ve committed a crime against your neighbors.

When Orwell wrote 1984 he could not envision any entity more powerful than government, backed up by secret police and the army itself. Orwell could not imagine global media and its running dog companion social media screening what we read, and providing the tools of cancelation. He did not foresee the end point of global capitalism, a handful of people with almost all the money who could buy the laws and societal changes they wanted.

Instead of adapting to this reality and pushing back, progressive Americans cheer it on. They roll like dogs in mud over the idea that while the government can’t censor Dr. Seuss, a corporation can. They enjoy the ignorance of pretending such censorship is not censorship because, for now at least, only things they don’t like are being censored. They enjoy pretending it doesn’t matter if it is done by a private entity. They refuse to imagine the same tools turned against an idea they support. They want to believe Big Brother knows best. They do not want dissenting opinions and call greedily on corporations to scrub them from their lives.

In 2022 America we not only voluntarily accept surveillance, we want more of it because it makes shopping easier. We spend thousands of dollars to buy and maintain 24/7 devices on our person that track our location, record our communications, study and analyze our personal habits from porn preferences to fashion choices, all so Amazon can recommend products to us. Tracking us was sold first as a way to keep us safe from terrorist attacks that never came, then to catalog our associations to keep us safe from a COVID crisis kept on the boil as long as possible. We want Big Brother to know where we’ve been so he can warn us not to associate with the “diseased” people there. Vaccine passports to label and reward the compliant? Yes, please, if it means we can go to ball games.

We love surveillance technology when it helps arrest the “right” people. So with the Capitol riots we fetishize how cell phone data was used to place people on site, coupled with facial recognition run against images pulled off social media, aided by loved ones snitching, to arrest them. There is even a do-it-yourself version of facial recognition progressives used to help law enforcement ID rioters. The goal was to jail people if possible, but most loyalists seemed equally satisfied if they could cause someone to lose their job.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

School Daze in NYC

November 20, 2022 // 6 Comments »

For  most Americans, which high school their children attend is a pretty basic decision. They either go to the school designated by where they live like everyone else (Smallville students from Smallville Middle School move on to Smallville High School) or they attend one of a few private schools in their area, typically religious schools such as Our Lady of Grace of Smallville. Not so in New York City, where a combination of 2022-style fairness and woke politics leaves one wondering how much do we really hate our children.

Up until two years ago, the system in NYC worked like this for high school, with a similar system in place to choose a middle school: at the top, a very few specialty high schools, including Stuyvesant High (STEM), Bronx High School of Science, and LaGuardia High School of Music, Art, and Performing Arts (The FAME! school; grads include Nicki Minaj, Al Pacino, and Timothée Chalamet) allied with the Lincoln Center of the Performing Arts. All had individual and very specific requirements, in the case of the former two an entrance exam that produced a rank order entrance list irrespective of grades and other factors. The schools were hypercompetitive and ended up racially tilted toward white and Asian students (in a recent year only seven black students got into Stuyvesant, out of 895 spots.) There are expensive consultants and prep programs, themselves competitive, available to maybe get the odds in a student’s favor.

For everyone else, absent private schools, the city gave eighth graders the option of applying to 160 public high schools, each with their own criteria and “Applicant-to-Seat” ratio to help divine academically rigorous from easy. Typically entry meant evaluation by a combination of grades, various test scores, essays, portfolios, and other work. Schools made their choices, expressed preferences really, and students made their own preferential list on a scale of one to 12. The whole mash of grades, etc., and preferences was then run through a “deferred acceptance algorithm.” The algorithm matched applicants to schools based on their highest mutual preference, all similar to how medical students are matched with residency programs. NYC high school students received a list of 12 schools they had been accepted to, and made their choice. The thing is everyone “knew” which schools were better and which were to be avoided out of the 160 on offer, and the “good” schools were hypercompetitive and ended up racially tilted toward white and Asian students. There are expensive consultants and prep programs, themselves competitive, available to maybe get the odds in a student’s favor. It was a lot of work to stay semi-woke, but not enough for some.

While never a system without controversary, it was a system that acknowledged certain realities: some kids are smarter and work harder than others. Attendance counted; you can’t learn if you are not present. The testing at the core of the system asked math, science, and history questions, not queries somehow only a white or Asian child would know. A poor kid really good at math stood the same chance as a rich kid really good at math. But the black and Hispanic students who make up nearly 70 percent of the school system were not moving on up. You know what came next.

Under former Democratic Mayor Bill De Blasio the first attack was against the specialty high schools, particularly Stuyvesant and Bronx Science, and their do-or-die entrance exams. The predominance of white and Asian students matriculating into those schools after excelling at those tests could mean only one thing to the mayor’s woke supporters: the tests had to be unfair to black and brown students. Earlier attempts to even the admission rates by providing free after school tutoring (the Discovery Program) to black and brown students (and excluding many poor Asian students) had not succeeded. So the next obvious step was simply to eliminate the entrance exams in favor of grades as assigned by the home school teachers. That way a student from a “bad” school could have a teacher who issued A’s for effort and compete his straight-A’s against a child from a rigorous school where an A represented successful college level work in 8th grade. It was just like Smallville, where Coach Johnson gave all the football players A’s in U.S. history and Health classes!

Under New York state’s system, dropping the STEM schools’ entrance exam actually required an act of the state Congress, who under extraordinary pressure from Asian families and lawmakers shunned the change (AOC studiously avoided a public stance on the matter.) The bill in fact never even made it to a full floor vote, with one opponent accusing the mayor of creating a “nasty narrative” that pitted Asian families against black and Hispanic parents. Another likened De Blasio’s plan to the Chinese Exclusion Act, a 19th century law restricting Asian immigration to cut back on economic competition with whites. The STEM entrance exam remains in place today.

Of course there is more, those 160 other high schools in New York not subject to single entrance exams and which were part of the “algorithm” system. Using the pandemic as an excuse and not requiring state-level approval, De Blasio was able to remove attendance as a criteria for admission. Same excuse to eliminate standardized test scores. Instead, middle schoolers were placed in one of four tiers based on their highest grades over two years — that A for effort from a friendly teacher standing proudly alongside that A for calculus success from a tough one. A lottery was then held for each group, with the highest numbered lottery winners free to chose their preferred high school. This was deemed fair somehow, though an eighth-grader with an academically stellar record but a poor lottery number could easily lose out to a merely good-enough student with a great lottery assignation.

The results were as expected and intended: 90 percent of black students got into one of their top five schools, same as Hispanics. For Asians, the number was only 70 percent.

As can be imagined, there were a lot of unhappy parents, and so the school assignment process is far from over even as it increased the number of black matriculating students at the most wanted schools. Some white parents talk about private schools, others of moving to the suburbs. Manhattan has already lost 9.5 percent of its under-five population over the last two years.

Still others plans rallies and lawsuits under the banner “Merit Matters,” and, with De Blasio out of office, political pressure. The New York Times, still clinging to the idea that random choice is the woke answer, plans on blaming the system for the system, stating “It will take a long time to know whether these tweaks in the system will effect the desired change, something contingent, in part, on the kind of support students who might be new to intensely rigorous curriculums receive in order to succeed.” Nothing much will be said about the larger lessons such a system teaches, specifically that diversity only means measuring the numbers of black kids, and not understanding that “Asian” can mean Chinese, Japanese, Korea, Cambodian, Indian, Thai, etc., never mind rich, poor, immigrant, non-native speaker, etc.

New York’s current mayor, Eric Adams, couldn’t avoid adding to the woke chaos. After one admissions round, he just recently eliminated the lottery for junior high schools in favor of malleable grades. At the city’s competitive high schools, priority for seats will be given to top students whose grades are an A average, or the top 15 percent of students in each school. Criteria for admissions anywhere will not include state test scores, now basically irrelevant. The new plan seems to lessen the impact of the random lottery drawing, and crank up the value of individual grades which can be adjusted on a per-student and per-school basis to achieve the desired racial outcomes. The immediate goal will be for these changes to increase access for “communities who have been historically locked out of screened schools,” while still rewarding students who work hard academically. The broader goal seems to be how to create more racially balanced top schools while trying to prevent middle-class families fed up with the lottery from abandoning the system. NYC is bleeding students; roughly 120,000 families have left traditional public schools over the past five years.

You know what to expect: lower standards at once-rigorous schools as the only practical way of manhandling unprepared students out of the way so the others may learn at top levels, Student A struggling to add round numbers sitting next to Student B nailing advanced trig. After all, fair is fair, they both got A’s from their teachers. Sorry kids.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Texas Law Likely to Go to Supremes: Can Twitter and Facebook Censor Viewpoints?

November 14, 2022 // 5 Comments »

God bless Texas. A case the state recently won at the circuit level is almost certainly headed to the Supreme Court. The Texas law, upheld, makes it illegal for social media giants to censor, delete, or otherwise interfere with viewpoints, what is known as content discrimination. If the Supreme Court stands with the circuit court decision, that means Twitter (Facebook, YouTube, Insta, et al…) would no longer be able to blanket ban “ideas” such as the Hunter Biden laptop story, or ban users simply because of the point of view they support about vaccinations. The challenges are mighty, but the case is potentially a landmark one for free speech in the 21st century.

The story actually begins in Florida, where the state tried to enact a similar law to Texas’ to protect politicians and journalists (sidestepping the complex question of which users fall into those categories) on social media from corporate censorship. The law, as in Texas, is narrowly focused on content/viewpoint censorship, the worst kind according to Supreme Court precedent. Content discrimination seeks to outlaw speech based on the point of view it holds (“some vaccines are bad,” “Biden is a dangerous president.”) It is particularly injurious to the idea of free speech because it seeks to shut down dissent, to stifle debate, and to prevent things from even entering the marketplace of  ideas. The cure for bad speech is more free speech not censorship, the Court has long held, and what social media companies are doing at present is just the opposite. How can an idea be debated if one side is blocked?

The 11th Circuit Court struck down the Florida law, specifically stating tech companies’ moderation decisions are protected by the First Amendment. This is in line with the social media giants’ argument they are best seen as a kind of newspaper, and newspapers of course have editors who decide all the time what articles get printed and which are left in the trash. The 11th Circuit said these decision themselves are protected speech; “we conclude that social media platforms’ content-moderation activities — permitting, removing, prioritizing, and deprioritizing users and posts — constitute ‘speech’ within the meaning of the First Amendment.” Those rights to edit/censor precede any rights owed to the content itself.

And it does not matter if social media qualifies as a common carrier (as Florida claimed) or not. The 11th Circuit in Florida would have nothing of it, saying “Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier.”

As background, the uber-reason the First Amendment does not apply already to social media is of course that it is not run by the government and thus falls outside the 1A; only the government can formally “censor” and only the government is restrained by the 1A from interfering with free speech. Private companies may do what they like, and so when on Facebook you scrolled through and clicked “Accept” to the Terms of Service you circumvented the Constitution.

Common carriers on the other hand are entities in this instance that provide wired and wireless communication services to the general public, like the phone company. Because they are available to anyone to use, the law has long held they are subject to government regulation (something similar separates highly regulated over-the-air broadcast networks from paid cable services, which is why Bill Mahr can cuss on his show and Lester Holt cannot.) Texas law holds Twitter, et al, are akin enough to the phone company that they are subject to government regulation, i.e., a new law that prohibits Twitter from censoring content. No one would stand for a phone company, for example, that kicked users off its platform because they used dirty words in a phone call, or supported one candidate over another (Justice Clarence Thomas has written on the similarities between social media platforms and the phone company.) This side steps the 1A’s limit to government. It is not a new argument and was also made in the Florida law, but…

Texas had its law heard by the more conservative 5th Circuit Court, which among other things reacted more strongly to the concern over viewpoint discrimination, and preserving that marketplace of ideas. “To the extent it [the Texas law] chills anything, it chills censorship,” the court’s opinion reads, emphasis in the original. The section of the Texas law at issue, it continues, “might make censors think twice before removing speech from the Platforms in a viewpoint-discriminatory manner.”

The opinion goes on to say: “We reject the Platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee. The Platforms are not newspapers. Their censorship is not speech. They’re not entitled to preenforcement facial relief. And HB 20 [the Texas law] is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way.” The idea is to compel platforms not to post or delete specific speech per se, but to allow speech.

The 5th Circuit opinion further does away with the argument social media Platforms are like newspapers with their editors. The court explains newspaper editors decide what to include given limited space; Platforms do the opposite, determining only what to not include despite unlimited space. Platforms cannot cite the 1A to grant themselves unqualified license to invalidate laws that hinder them from censoring speech they don’t like, and the censorship of broad ideas (ex. anti-vax) is not the exercise of editorial judgement.

As for the Texas law upheld, it seeks the following: A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on 1) the viewpoint of the user or another person; 2) the viewpoint represented in the user’s expression or another person’s expression; or 3) a user’s geographic location in this state or any part of this state.

The last point grows out of concern Facebook might block opinions within Texas by region to influence election results. It might be expanded nationally to ensure conservative voices from Texas have as much access to the platform as liberal voices from California as polls are still open across America. The main points of the argument drive home the idea that the stifling of speech in any venue has a deleterious effect on democracy, and that the expression of outrageous ideas should be controlled by the understanding of the audience (“other ideas”), not by corporate intermediaries panicked their platform is being abused by lunatics, Russians, or people they just disagree with.

So where do things stand? The Supreme Court in an emergency declaration has stayed the Texas law given how the Florida law was rejected by the 11th Circuit and then approved for Texas by the 5th Circuit. It is almost certain both cases will be appealed to the Supreme Court, which will combine them, for the final word in whether or not social media can practice viewpoint discrimination. Given the role of social media and its reach into American society, and the polarized opinions on how it should work, it is not beyond possible that the Court’s decision in this future case will stand alongside the other giant First Amendment struggles in determining how Americans may speak to one another in the marketplace of ideas.

Even a negative Supreme Court decision may not be the end of the issue. Almost Candidate Donald Trump said at a rally in Ohio in support of GOP midterm congressional candidates “Another one of our highest priorities under Republican Congress will be to stop left-wing censorship and to restore free speech in America, which we do not have.” There are already 100 bills in state legislatures aimed at regulating social media content moderation policies. There is no question instances like the Hunter Biden laptop incident, and purges of conservative commentators (to include Donald Trump) have driven much of the need to control content moderation which spills over into viewpoint discrimination. This is shameful enough.

What is truly shameful, however, is how progressive voices now relishing the power to censor because the most popular platforms follow their wishes cannot see how quickly things could change and the censor’s aim be redirected at them. In a little-known 2018 case, a lawyer for Twitter even told a judge the company had the right to censor black people and other protected groups. “Does Twitter have the right to take somebody off its platform if it does so because it doesn’t like the fact that the person is a woman? Or gay?” a judge asked a lawyer for the company. “The First Amendment would give Twitter the right,” the lawyer replied.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Leticia James’ Desperate Hail Mary Lawsuit Against Trump

November 12, 2022 // 3 Comments »

No one is above the law, but some actions are beneath it. Just ask Leticia James, the New York Attorney General who filed a $250 million civil suit against Donald Trump, what may turn out to be the last gasp of a multi-year effort to criminalize the electoral process in America. As she prepares for trial in early 2023, let’s see what she has to go on.

During her 2018 campaign for attorney general, James declared: “Trump should be charged with obstructing justice (in connection with Russiagate.) I believe that the president of these United States can be indicted for criminal offenses and we would join with law enforcement and other attorneys general across the nation in removing this president from office.”

James tweeted the campaign endorsement from Rep. Maxine Waters when that still mattered that James would be an attorney general who “who will investigate Trump” and promised that “the president of the United States has to worry about three things; Mueller, Cohen, and Tish James.” For the record, Robert Mueller has retired to the dark side of the moon after his investigation proved nothing (though there are still those who believe, as there are people who enjoy circus geeks, and the Venn diagram of the two groups is a circle), Michael Cohen is a convicted felon lucky to be called as a guest once a month on the Howard Stern Show, and of course Tish. In her 2018 election night victory speech, James boasted: “I will be shining a bright light into every dark corner of his real estate dealings….” and before taking office repeated her threat to target Trump world: “We will use every area of the law to investigate President Trump and his business transactions and that of his family as well.”

She even pulled Trump into her victory speech, saying her win “was about that man in the White House who can’t go a day without threatening our fundamental rights.” All of that sounds like she had it in for Trump; had an attorney general ever said such things about a private citizen not named Trump it would be likely grounds all by itself for dismissal for bias. That said, Trump sued James last year seeking to halt her investigation, alleging it was “baseless” and motivated solely by her desire to harass a political opponent. A judge dismissed the suit in May.

Tish does deserve a few points for being the last one standing. In an unprecedented sweep over the last five years, Congress tried to impeach Trump twice. The FBI tried to indict for espionage itself. The Southern District of New York (the Feds, DOJ) could not find anything to indict Trump on after he left office. Same for the Manhattan District Attorney’s office. Only Tish was able to drop paper on Trump’s desk out of all those smart lawyers and cops.

Remember things started with Trump as a literal Russian intelligence officer, the actual Manchurian candidate, what would have been the most noteworthy political story of American history, had it been true. Tish as the last in line cannot be that choosey. Her law suit, a civil case which means there is no threat of jail time, alleges, inter alia, Trump overvalued some of his real estate to obtain loans and then undervalued the same real estate to pay lower property taxes on it. This is so common in the New York real estate world that these disputes are not even typically handled by a court, instead adjudicated through a tax commission grievance process. The result is typically a levy or a fine if the owner is found to have manipulated prices egregiously.

To prove the same as a civil case and then demand significant penalties ($250 million and Trump can no longer do business in New York state) is a big ask. Even The New York Times had to admit James will have a hard time proving the case: “Property valuations are often subjective, and… all his loans are either current or were paid off, some before they were due.” Factors that can legitimately affect properties’ stated value include potential for future income, the view from their upper floors, zoning laws and proposed changes, and the like. If Deutsche thinks they got the deal right and is not suing, who is the attorney general protecting here?

The presumed victims in James’ suit aren’t Mom and Pop customers Trump defrauded, big league contractors he stiffed, or shareholders he lied to. The victims are banks (primarily Deutsche Bank, one of the world’s largest) and insurance companies that supposedly undercharged Trump for loans and insurance policies, all because Trump told them his properties were more valuable than they actually were. Boo hoo.

See the government doesn’t usually sue on behalf of big businesses that have their own well-staffed legal departments; it is a huge tell against James that Deutsche is not suing anyone. Financial firms rely to some extent on customers self-reported data. But they also do their own due diligence on what real estate collateral is worth for the explicit purpose of assuring they don’t commit money based on a deal they’ll lose out on. It works the same way with less zeros when you apply for a home mortgage. The bank does not write a check with no questions asked. Instead, it does a credit check, sends out an appraiser to value the property, gets insurance on everything, and prices the loan according to the risk it believes it is taking. Trump could make whatever claims he wanted to about his properties at Mar-a-Lago and 40 Wall, but no one was really listening. You know, trust but verify.

Oh right, some of the deals were already verified, such as Trump’s sale of rights to the Old Post Office in Washington, DC., whose sale at its Trump-stated value was approved by Joe Biden’s General Services Administration, though Tish includes that sale in her lawsuit. None of Trump’s creditors lost money on any of his loans. Every one is paid off or current in being paid off. There were no allegations of an actual crime by anyone in law enforcement or the private sector. Instead, James started an investigation hoping to find a crime. By making this a civil suit she avoids the higher standards of proof and grand jury proceedings if this was a criminal case.

It is no small surprise that Tish is up for reelection as Attorney General in November, and so that after waiting almost her entire term in office now files this lawsuit against Donald Trump, following through on her earlier campaign promises to “get him.” James is also fund raising off the lawsuit, writing to campaign supporters: “These men think they can rattle me and scare me off my path, but the truth is, they have only reaffirmed why I went into this work in the first place.”

It is extremely likely if James loses in November (polls show she is currently in a dead solid tie with her Republican opponent) that her successor will drop the suit entirely, the way the Manhattan DA’s office gave up on Trump when the top job changed hands. Should she win again, Tish will spend the next few years of taxpayer money fending off motions from Trump to dismiss, to change venue, and most of all over seating an impartial jury. Trump could easily move the case out of liberal Manhattan to bright red upstate New York, where he beat Joe Biden in 2020, stalling until the 2024 election is over and one way or another none of this will ever matter again.

And small world, Tish may even then have one more stop on her legal adventure tour — concerns over past prosecutorial abuse of power led to the creation in 2021 of the New York Commission on Prosecutorial Conduct, designed to hold prosecutors “to the highest ethical standards in the exercise of their duties.”

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Putin’s Nuclear Paradigm

October 28, 2022 // 17 Comments »

Conventional strategic thinking suggest Putin would never use nuclear weapons in Ukraine. But what if he is following a new paradigm?

First, let’s find the most important place on earth. Stick your finger on a world map, now move south, good, little to the right, too much, back a bit. There. Did you end up on Ukraine? Why not? It appears for the first time in almost eight decades the world is ready to go to nuclear war over some place, and that place is the Ukraine.

The signs of escalation are clear. Someone decided to murder one of Putin’s closest advisors’ daughter, or maybe they were after the advisor himself, to send their message. Someone else (?) decided to blow up the Nordstrom 2 pipeline that might supply a frigid winter’s Europe with energy, a major act of war against NATO member Germany who will now be forced to stay within the U.S.-dictated boycott boundaries, and with any energy bought around the edges pay tribute to Poland for use of the pipeline which runs through its territory. It is not hard to figure out who likely perpetuated each act — cui bono, who benefits? provides the most likely answer in both instances.

If it was Shakespeare the big event of Act III is begging for center stage, a nuclear detonation. We’ve seen the set-up, twice, as the world has been told the Russians might allow a Ukrainian nuclear plant to go critical and irradiate a swath of central Europe including NATO ally Poland. This act would be the functional equivalent, we’re told, of a bomb, but maybe allow Putin to wiggle out — just — of the consequences of violating the nuclear weapons taboo. Could that happen? What will happen next?

The problem is in trying to see the future we are now using the wrong paradigm, the Cold War nuclear vision that kept a precarious peace for over 40 years. The Cold War paradigm was based on the MAD doctrine, mutually assured destruction, the idea that if one side released a nuclear weapon the other would match it, followed by an escalation that would need to be matched, until both Moscow and New York glowed in the dark. Whole dramatic (and no doubt real-world SIOP Defcon 1) scenarios like the movie Failsafe were based on such a tit-for-tat. It was the absolute belief by both parties that they would never be able to contain a conventional spat from going nuclear that calmed the Cuban Missile crisis (plus some deft diplomacy.) America’s other too-close-for-comfort nuclear considered scenarios saw something similar. MacArthur’s desire to use nukes against the Chinese in Korea stared down the barrel of the Soviet strategic rocket forces, and the idea of ending the Vietnam War somehow with nuclear weapons saw a similar no-go. Israel practices a version of MAD, making it clear if Tel Aviv and Jerusalem are destroyed by any means its nuclear arsenal will be unleashed against the perpetrators. No one gets out alive. Everyone loses big.

It is the MAD paradigm which allows the U.S. to escalate the Ukrainian War by supplying more, and more sophisticated, weapons, as well as intelligence and logistics. The U.S. admits CIA elements are on the ground in Ukraine, and the number of Special Forces pretending to be “volunteers” is unknowable but just as real. Each step up the weaponry ladder (such as supplying first-line main battle tanks, perhaps via the Poles) raises the real risk of a Ukrainian offensive that crosses a Russian red line in the form of a real or stated border. Russia is likely to brush off the loss of its greater invasion as the cost of doing business (so what for Kiev, who would have thought the buggers would fight so hard for it) but is very much less likely to blithely give back areas in the Donbas and elsewhere taken long ago and considered by Moscow as its own.

Ukrainian president Zelensky is no doubt aware of the Bay of Pigs, the incursion into Cuba by American-trained mercenaries in 1961. The scheme at the Pentagon was to set the mercenaries up, see them slaughtered on the beach, as the excuse to force a reluctant President Kennedy to commit significant U.S. airpower to save them. Once that line was crossed, the U.S. would have to had sent in more and more support doubling-down, until in the end a real live invasion was underway. Zelensky must know if he does the same, crossing into Russian or “Russian” territory he has a very good chance of bringing in the overt battlefield support from America he desperately wants, to, in his mind, assure a win by taking back land once-considered lost. What follows? U.S. airpower turns the tide, with Putin afraid to escalate to nukes as promised for fear of MAD. That’s the old way of thinking, Cold War-style.

But MAD is not Putin’s Paradigm. The free way Putin and his advisors talk about using nukes suggests they may be playing a new, different game than that which played out during the Cold War. Putin is using the threat of nukes not to back the U.S. off completely but to hold back the U.S. from escalating conventionally. In that case the tit-for-tat is not ICBMs targeted on Moscow, but U.S. close air support scared back inside NATO Lines by a tactical nuclear detonation outside Mariupol. Putin feels safe from nuclear retaliation because he is banking on Joe Biden playing by Cold War rules (don’t use nukes in Ukraine for fear of total nuclear war a few steps downstream) while Putin is using nukes to keep the U.S. at conventional bay.

We need a new way of thinking about nuclear weapons, one where an adversary threatens nuclear attack as a deterrent against conventional attack. Imagine this scenario: say around 2006 when the U.S. is starting to realize it was losing in Iraq the Russians began openly assisting al Qaeda on the ground, and threatened to provide air cover for al Qaeda forces. An American nuclear threat might have been enough to scare away the Russians. This idea was not unknown in the Cold War, and was known as the stability-instability paradox. The horror of nuclear war meant it was less likely one superpower would mess with the small-scale wars of the other. It was why as President Barack Obama did nothing when the Russians invaded Crimea.

Not so for Ukraine, where Biden invoked that other old Cold War paradigm, the domino theory. If Biden responds to Putin’s Paradigm with more conventional forces, the classic response, he enhances the likelihood of nuclear exchange. With Putin discarding MAD and the peace it kept during the Cold War, we now have what one pundit calls the first predatory nuclear-weapon state shaking its nuclear stick to scare away a greater conventional response. In essence nuclear threats and/or the use of small nukes enables larger-scale conventional wars. How will Biden respond at fateful nightfall? Does he understand the paradigm? The non-nuclear future of central Europe depends on his wise actions.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

MyPillow and Defamation

October 25, 2022 // 3 Comments »

Donald Trump is suing CNN for $475 million for defamation, claiming the network associated him with Adolf Hitler and portrayed him as a Russian lackey. E. Jean Carroll is in turn suing Trump for defamation in connection with him allegedly raping her. Mike Lindell is being sued for $1.3 billion for defamation in connection with remarks he made about the 2020 presidential election being false. And way outside politics in America, a foreign English Teacher in Thailand faces two years in jail for defamation over a negative online review of a resort he stayed at.

What is defamation? Why is it so hard to prove in the U.S. but relatively easy to demonstrate in most other countries?

Defamation is untruths commonly referred to as libel if in print, and slander if said aloud. Under current law, five standards (we’ll stick with libel but its basically the same for slander) have to be met to succeed: 1) the defamatory words have been published; 2) The person being defamed was identified by the statements; 3) The remarks had a negative impact on the person’s reputation; 4) The named Defendant wrote the defamatory remarks; 5) The published information is demonstrably false or was published with a reckless disregard for the truth. That means it was published without investigating whether it was accurate. We’ll see that last criteria is very hard to prove in most cases in America.

The standard for libel cases between the media and public figures goes back to 1964’s Sullivan v. The New York Times Company, when the Court held the First Amendment protects media even when they publish false statements, as long as they did not act with “actual malice.” What happened was civil rights leaders had run a full-page fund raising ad in the Times, describing in detail what they called “an unprecedented wave of terror” of police actions against peaceful demonstrators in Montgomery, Alabama. Not all the bad things they accused the cops of doing were true, and made the police look worse then they were. So L.B. Sullivan, in charge of the cops in Montgomery, sued the New York Times for libel, claiming they printed something they knew was false to harm his reputation. In an Alabama court, Sullivan won and the New York Times was ordered to pay $500,000 in damages.

The Times appealed to the Supreme Court and won. In greater context, Sullivan freed northern journalists to aggressively cover racial issues in the south, shielded from the threat of libel suits. It represented a significant broadening of the 1A.

The Times argued broadly if a newspaper had to check the accuracy of every criticism of every public official, a free press would be severely limited, and that the 1A required the margin of error to fall on the side of the media in the cases of public officials (things work differently if both parties are private citizens.) The Court responded by creating a new standard for libel of a public figure, “actual malice” defined in short as having the knowledge that something was false or published with “reckless disregard” for truth. Justice William Brennan asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional, factual errors that might damage officials’ reputations. The standards laid out in Sullivan are why the New York Times has not lost a libel case in America ever since. No other country has such high standards for libel, which is why a Thai resort could win its cases over something as weak as an opinion about poor service.

A lot of journalism has flowed downhill since Sullivan in 1964, and attitudes toward trusting the media have changed. The media of 1964 set themselves the goal of objectivity, or at least the appearance thereof. In 2022 places like the NYT wear their partisanship as a badge of honor, and they overtly mock and hate people like Mike “The My Pillow Guy” Lindell. They spend years wallowing in stories of far-reaching importance with reckless disregard for the truth, whether that be fake WMDs in Iraq to kick off a war, or Russiagate to try to bring down a president. The glory days of the Pentagon Papers, or the meticulous reporting on Watergate, are long gone.

The Supreme Court which wrote the liberal standards of Sullivan is also long gone. Last year Justice Neil Gorsuch added his voice to an earlier statement by Justice Clarence Thomas and questioned the standards set in Sullivan. Thomas, in a libel case dissent, specifically scolded the media over conspiracy theories and disinformation. He cited news reports on “the shooting at a pizza shop rumored to be the home of a Satanic child sex abuse ring involving ” and a NYT article involving “online posts falsely labeling someone a thief, a fraudster and a pedophile.” Thomas wrote that “instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”

The new conservative court may have such a revised standard in mind, but not today. Lindell recently had an defamation appeal to the Court rejected by certiorari, when the Court refused to allow review of his decision from a lower court. Michael Lindell, the founder of MyPillow, is fighting a $1.3 billion defamation suit filed in federal court by U.S. Dominion, a company that manufacturers voting machines used in several battleground states. The company claims Lindell defamed them, accusing them of helping rig the election. Lower courts were harsh in their judgment; “As a preliminary matter, a reasonable juror could conclude that the existence of a vast international conspiracy that is ignored by the government but proven by a spreadsheet on an internet blog is so inherently improbable that only a reckless man would believe it,” U.S. District Judge Carl Nichols wrote in his opinion, referring to Lindell and stating his accusation met the standard of reckless disregard for the truth.

Justice Gorsuch reminded in his own recent dissent (not Lindell’s case) that in 1964 media was dominated by a handful of large operations who routinely “employed legions of investigative reporters, editors, and fact checkers… Network news has since lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that monetize anything that garners clicks.” Gorsuch is clear this requires a reassessment of Sullivan, and for the first time in a long time has a conservative majority court seated around him perhaps ready to do so. They seem to be waiting for a stronger case than Lindell’s (a libel case involving Sarah Palin was also not adjudicated to any new standard) and in doing so likely will condemn the MyPillow guy in the interim to bankruptcy for his defamatory statements.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Elon, Time to Kill Twitter

October 19, 2022 // 2 Comments »

Nothing would be better than for Elon Musk to buy Twitter and then kill it. Take it off line. Delete it. Make it go away.

What is the point anymore? Like some aged European monarchy, the service has become too inbred to say anything useful. It consists now as a giant push survey, claiming the appearance of action equals action. Even the poltergeist of Twitter, cancelation of people, is like a magic spell that you have to believe in for it to work. Live outside the Twitter demographic and it does not matter. Listening to people talk, you’d think Twitter had the power to raise the dead, or more often, the opposite. Twitter is the physical embodiment of what Glenn Greenwald describes as Democrats criminalizing opposition to their party and ideology. Dissenting ideas are “disinformation” and must be censored. Trump voters are inherently criminal (“insurrectionists”) and should be imprisoned or at least banished for thought crimes.

Recently rewatching Michael Moore’s Fahrenheit 11/9, it is obvious the 2018 film is mainly a screed about all the bad things Trump was going to do as president. Time is a cold witch of a mistress: basically nothing Moore predicted four years ago about what was going to happen actually happened. Moore was wrong about Trump’s ties to Russia, Moore was wrong about Trump being the last elected president because he would seize total power, and Moore was wrong about the lasting impact of the progressive Twitter heroes of the year, the Parkland High School survivors.

You do remember the mass shooting in a Parkland, Florida high school, right? A handful of “survivors” were insta-made into social media sensations by presenting their views on gun control unopposed and uncommented on. In his film Moore portrayed the kids were examples of an anti-Trump force sent by the universe to Tweet as a balancing mechanism, and that the power of their online activism was America’s only chance to remain a democracy free of daily massacres. You can’t do justice to the hyperbole of Moore’s narration in print; you would think by listening these kids had the power to change something simply by amassing RTs on Twitter. A good chunk of the movie is just Moore staring at the kids changing everything fascistic in the world by being online, the filmmaker’s expression somewhere between pedophile on the playground fence and a proud dad.

One can imagine Moore’s reaction if he was still relevant enough to quote to Musk’s impending takeover of Twitter as a twist on the absurd: Musk will have too much power to make Twitter into anything he wants, even a full-on bastion of unfettered speech. Instead of relaying on the Terms of Service to ensure people like the Parkland Kids face no opposition online, Moore might worry just the opposite, that the opposition, left to its own point making, might overwhelm the dumbass ideas that tend to come from 16-year-olds handed a very big microphone with no supervision. For those new here, that is the point, to allow better ideas to overwhelm poor ideas.

Have a look at what Twitter had done in the name of “free speech” and ending “misinformation,” the rallying cries now of so-called progressives. Twitter took an entire subject of critical interest, Hunter Biden, off the media menu and thus out of public viewing just prior to the last presidential election. Twitter silenced the loudest voices of opposition to the Democrats, people like Donald Trump himself and others like Alex Jones and Marjorie Taylor Greene. Call them what you want to, the idea in a free country is you’d have the opportunity to hear what they had to say if you wished to or maybe encounter speech that made you rethink your own views by accident (protip: that’s a cornerstone of Jeffersonian democracy, oh wait, Jefferson is on the outs now, too, sorry.)

Twitter also found cause to black out the satire site Babylon Bee and Libs of TikTok. The Bee’s violation? Naming transperson Rachel Levine its “Man of the Year.” Libs of TikTok only reposted clips from left-wing users on social media, including from drag queens and gay and transgender activists but that too was too much. Things got so stupid that Trump Derangement Post Child Robert Reich in his role as the Rob Reiner of faux-intellectuals tweeted, “When multi-billionaires take control of our most vital platforms for communication, it’s not a win for free speech. It’s a win for oligarchy.”

“We are calling for careful content moderation that balances the important ideals of democracy, free expression, and public health and safety,” said Jessica González, co-CEO of Free Press, a media advocacy organization. Imagine that,  a group which says its supports a free press demanding censorship. But why pull punches — Politico wonders “If Musk sticks with his word and removes most of the content moderation rules in place, which could include those that ban hate speech, extremism and vaccine and election misinformation — it may turn into a platform that poses a threat to democracy.”

Irony aside, look what they are afraid of: unfettered free speech brought to you by one of the few men rich enough to pay for it for us.

And that’s why Musk should instead kill off Twitter, and any other social media he can acquire. His legacy would not be to be the oligarch who gave us a smatter of free speech but the oligarch that helped break the grip oligarchs, whether progressive or otherwise, now have on our speech. Burn Twitter to the ground to save it, er, us, from any attempts to adjudicate further what we can read and listen to. If a social media outlet can’t present a democratic platform in a democratic way (i.e., without a rich guy paying our way to freedom like an abolitionists buying slaves only to set them loose) then we should not want it. We’ve gone too far in turning “content moderation” into crude censorship and viewpoint discrimination.

Public forums need to just that, public. You do not achieve free speech via censorship no matter who wields the red pencil. Musk can’t change that we’ve reached a point in democracy’s evolution where some half of us fear free speech, but there it is. His contribution is to kill the beast that Twitter has become, and hope something more democratic rises in its place.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

The Failure of Reality

October 15, 2022 // 7 Comments »

Spotify once took a run at Joe Rogan. YouTube banned Dan Bongino. Twitter permanently suspended Marjorie Taylor Greene. Twitter also famously canceled Donald Trump, and me.

As with the suspension of Trump (and on a much, much lesser scale, me) progressives cheered the deplatformings the way public lynchings used to attract a picnicking crowd. Progressives control social media (as well as most MSM) and so day-by-day their unreal world becomes ethically more cleansed, more free of things they do not like, and with all the bad news (Hunter Biden) made to go away. The world online is the way they want it to be, with the real world held at bay behind the screen. Like living in The Villages in Florida, or maybe in the Matrix.

It is very much the same for what we’ll call social media 3-D, things like renaming high schools or tearing down statues. Those acts are the equivalent of tweets. Nothing changes because of them, but everyone feels more righteous. Might as well send the 45 cents a day to one of those TV charities and think you are solving hunger in Africa. Or posting on Facebook something saying everyone should get vaccinated, or when gays were still performing well as victims, changing your photo to a rainbow flag.

You see it also in the blurred lines between fiction and reality. A touchpoint for understanding Trump was the dismal novel Handmaiden’s Tale. Black empowerment? Wakanda. Economic equality is fictionalized by replacing every white person in a TV commercial with a black actor, and every other Hallmark romance with a same-sex couple. Same thing when our society over-celebrates the first transgender Jeopardy! winner, or another children’s book where the cuddly caterpillar who does good deeds is nonbinary. NYC’s Shakespeare in the Park this year featured Richard III with the lead played by a black woman, no doubt as some imagine the Bard secretly intended.

But this detachment from reality, the appearance of action instead of action, is why progressives continue to have to “raise awareness” for the same old things over and over. In the end, nothing that happens online matters. Online is just propaganda of unknown real-world effectiveness. The left celebrates the deplatforming as ending Marjorie Taylor Greene, forgetting she is still a sitting Congresswoman. Votes count, “likes” do not. Joe Rogan talks to 11 million people a week; Neil Young, his one-time media nemesis, not so many.

The danger of all this, as each purple haired undergrad eventually bumps into the real world and realizes they/them have been played, is it creates learned helplessness at a time when America indeed faces real problems. But I tweeted about that! I posted “I stand with ____” memes for a week! I liked Dr. Fauci’s Insta! And yet you still got the Covid, huh, bro? It’s why we regularly end up with “cosmetically diverse” institutions, rather than anything real that leads to broad social progress.

How does learned helplessness manifest itself? We might ask why with all the emphasis on change and democracy hanging by a thread, even the most contested elections are lucky to lure half the electorate away from their screens long enough to vote. Behind the smokescreen of claims Republicans are trying to disenfranchise black voters lies the reality that the Democrats have never found a way to get their favored voters off the couch to do the one thing that might still matter. I have voted in every election I was eligible for over the last 55 years. I even voted from inside an actual war, writing off for an absentee ballot. I show my ID (and until recently, vax card) to enter a restaurant; it’s not a big hurdle at the voting booth. If the whole voting thing is not yet clear, think on the difference between the purposeless extremism of pink pussy hat cosplay versus sending three judges to the Supreme Court.

Disreality and learned helplessness are at the heart of progressivism, an oddly self-defeating stance. If one accepts the teachings of the 1619 Project and its armed wing, BLM, blacks have been the passive victims of white racism for over 400 years, a racism which has successfully resisted the Civil War and the end of slavery, Constitutional amendments, the Civil Rights Acts, and Barack Obama. The message is pretty clear: black people can’t win. That’s supposed to inspire something? What would happen with less virtue signaling inside a closed loop and more helping people who actually need help?

Same for the Democratic election strategy of pre-declaring all upcoming elections unfair if the other side wins. Pick your channel: the Repubs will miscount the votes, or America’s proportional representation system means one man’s vote does not count because Wyoming has two senators, or the electoral college negates the make-believe victory standard of popular vote. The end result is why bother to vote when some outside thing means your vote will not count anyway. It seems an odd way to drive a party.

We’re in a world now where being a survivor of something and telling strangers about your trauma is a way of life. I confess a naughty pleasure in reading Huffington Post Personal stories. Most of these are anecdotal tales of victimhood, the conclusion of which is usually that life is unfair and there is not much you can do about it besides make crap on Etsy to “honor” other victims. One recent story was about how moving to Britain for free medical care turned out to be unfair because the writer’s transpartner could not get testosterone shots simply based on his declared identity. Lousy NHS! Another was about how Dry January was unfair to people in forever recovery. Lousy non-drinkers! One about a progressive woman who infiltrates a right-wing mom’s group manages to cover both personal victimhood (she felt unsafe there with her, ‘natch, self-diagnosed special needs child) and the end of democracy. The scale changes but the endpoint remains the same: all victims of unfair systems and the best we can do is whine about it on our segregated social media. It is like getting stuck in a elevator with Greta Thunberg.

I’m not sure how you fix a country being distorted by learned helplessness, with victimhood as a virtue, and which is steadily ever more convinced the real stuff of democracy, voting, doesn’t matter. If that described a football team the game would be over before the other side even showed up. Oh, hey, sorry about the sports reference; I should have cited progressive Olympic heroes, celebrated for quitting as victims of stress instead of for their athletic accomplishments.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Supreme Court to Hear Case on Affirmative Action in Academia

October 14, 2022 // 5 Comments »

If you thought the Supreme Court threw up some dust overturning Roe v. Wade, wait until this autumn when they look at overturning Grutter v. Bollinger. The Supreme Court will decide whether race-conscious admissions programs at Harvard and the University of North Carolina are lawful.

The two cases which might overturn Grutter, Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina have been consolidated into one entity which asks three questions: can race be a factor for admission, has Harvard violated Title VI of the Civil Rights Act by penalizing Asian American applicants by engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives, and whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.

In short, can race continue to be an admission factor?

Grutter upholds affirmative action in academic admissions, saying race can indeed be a factor in deciding who to admit alongside things like tests and previous grades. In 2003, after being denied admission to University of Michigan Law School, white student Barbara Grutter sued, alleging the school discriminated against her on the basis of race in violation of the Fourteenth Amendment’s right to equal protection, as well as Title VI of the Civil Rights Act of 1964. She claimed despite her high test scores she was rejected because the Law School uses race as a “predominant” factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups like whites and Asians.

Precedent was not on her side. The earlier case of Bakke was seen as binding precedent establishing  diversity as a “compelling state interest,” and that the Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor.” In short, race as a type of bonus for an application was allowed, though race as the predominant criteria for admission was not. The Court found the Law School’s “narrowly tailored use of race” in admissions decisions furthered a compelling interest in the educational benefits that flow from a diverse student body and is not prohibited by the Equal Protection Clause. What some came to call “reverse discrimination” was allowed within certain boundaries because its goal of a more diverse student body and broader access to higher education was a compelling state interest.

The idea behind Grutter (a kind of mission statement for America these days) is disparities between groups in things like admissions are always the result of discrimination, the U.S. is irredeemably racist, racism is everywhere, invisible power structures of structural oppression are equally ubiquitous and need to be dismantled, meritocracy is a myth, color-blindness is misleading concept, and a focus on individual rights (such as Barbara Grutter’s) distracts from the more important struggle against systemic racism.

The problems are many, even if you accept most of America’s Racial Mission Statement. Primarily, space at all academic institutions, and especially at the top tier ones, is limited and to disproportionally allow in one group  usually means excluding another. That is why Students for Fair Admissions Inc. v. President & Fellows of Harvard College has amici groups which believe Harvard is violating the Civil Rights Act by penalizing Asian American applicants in favor of blacks. These include Chinese American Citizens Alliance, the Jewish Coalition for Religious Liberty, The Asian American Coalition For Education, and The Asian American Legal Foundation. Also included is the Coalition for TJ, a group representing Northern Virginia’s super magnet-school Thomas Jefferson High, which just won a suit recently declaring the school’s race-based admissions policy illegal.

The tide may be turning even ahead of the Supreme Court. In addition to the win for a return to merit-based admissions at Thomas Jefferson High, the San Francisco School Board recently returned the admissions policy at Lowell, the city’s most prestigious public high school, to the merit-based system that it had used for more than a century. New York City’s most sought-after high schools, including  Stuyvesant, held on to their merit-based system even as the mass of high schools otherwise switched to a lottery.

If Grutter is overturned and loses hold of stare decisis, that would end 45 years of precedent saying race could be used as one factor among many in evaluating applicants. The universities argue race-based decisions are lawful, and serve an important national interest.

College admission has a long, sordid history chock-a-block with discrimination. Kenneth Marcus, assistant secretary for civil rights at the Education Department in the Trump administration, said Harvard’s treatment of Asian students was reminiscent of its efforts to limit Jewish enrollment. “Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men,” he said, “so today they often view Asian students as lacking the appropriate character.” One defender for affirmative action in admissions almost seems to confirm his opposition’s point, saying “Race-conscious admissions policies are a critical tool that ensures students of color are not overlooked in a process that does not typically value their determination, accomplishments and immense talents.”

Like Roe, Grutter, and earlier, Bakke, represent efforts by the Supreme Court to remake society through judicial opinion. With Grutter, the Court took it upon itself to again endorse the use of race as an admissions criteria by claiming the nation had a compelling interest in racially diverse higher education even at the risk of failing to provide access equally to groups like Asians and Jews. The irony of displacing one group to favor another is not lost, that the solution to discrimination is more discrimination, that all blacks are helpless and foreclosed; such is the thinking of racists, that one skin color carries with it some merit that is worth rewarding even at the expense of other colors.

Apart from the socio-political impact, the issue is not a small one. According to documents filed with the Supreme Court, a significant reversal of current racial-forward standard could shrink the percentage of black students admitted to Harvard by more than two-thirds. Some 7.58 percent of  blacks who applied to Harvard were admitted. For whites only 4.89 percent of applicants were admitted. Asians trailed Hispanics 5.13 to 6.16 percent. Despite the higher enrollment percentages, SAT scores for blacks were significantly lower than whites. Harvard’s policies roughly quadrupled the likelihood an African American applicant would be accepted relative to a white student with similar academic qualifications, while multiplying the likelihood of admissions 2.4 times for Hispanics. Most African Americans fell into the bottom 20 percent of all applicants to both Harvard and UNC, but they were admitted at the highest rate for almost every performance decile.

In the upcoming decision the Court has a chance to realign itself and college admissions with American thought; a 2019 survey found 73 percent of Americans said colleges and universities should not consider race or ethnicity when making decisions about student admissions. Justice Kentaji Brown Jackson will not recuse herself from these cases, despite having been involved with them in the lower courts. She will join liberals Kagan and Sotomayor largely unsupported by both the public and their Court colleagues in standing up for continued affirmative admissions. The next class at Harvard and other sought-after schools may look very different from the one which starts this fall ahead of the Supreme Court’s decision.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Nike, Wokeness, and Thomas Jefferson

October 8, 2022 // 9 Comments »

They want to take down Thomas Jefferson’s statue at the university he founded.

Why not? A thought experiment, one where in the near-enough future of say 2030 the word Nike comes to mean the same as today’s N-word, a new N-word. Calling someone a nike (maybe the derogatory grew out of the popular shoes, or some hip-hop song about them) is a fighting word if you’re white, possibly a sign of brotherhood is you’re, well, the right kind of nike.

With the word nike firmly established as the most hateful term in the language, imagine the problem of all those people who for many years in the pre-woke era worn Nike T-shirts and showed off their Nike shoes. What about the sports stars who endorsed Nike products? Are they all racists? Do we in 2030 expect them to have known years earlier what was perfectly acceptable in 2021 would be a hate crime in 2030? Under the rules of wokeness, yes we do. We judge people from years in the past by the standards (or the standards of a minority liberal group) of today. If that makes no sense, my nike, then you may be close to seeing how thin the intellectual ice is under wokeness.

So we would then have to cancel basketball great Michael Jordan, a traitor to his fellow nikes, whose sneaker brand was sold by Nike, a company founded by a white capitalist who profited well off the nikes. Maybe it would be time to take Jordan out of the Hall of Fame, his presence a daily insult to all nikes in the room who didn’t sell out. The old Space Jam would never see Netflix again. Schools would need to protect students by removing texts about the Greek gods from libraries, as in mythology Nike was the goddess of victory. It is unlikely she is mentioned in the Tom Sawyer stories, but someone should definitely check. There’s even a Nike Elementary School in Missouri which would have to be renamed (and wouldn’t you know it, that actual school has 114 white students and only one nike kid.)

As to the argument that every kid who wore a Nike t-shirt in his high school yearbook photo or the people in Missouri who misnamed that school did not — could not — have known in 2022 the word nike would come to be a terrible racial slur, well, they should have. Certain words are evil, no matter when or where they take are spoken and “everybody did it” and “it was acceptable then” are just the kind of thing a racist would say.

Which is why the “statue wars” make no sense. In the immediate aftermath of the George Floyd killing and BLM protests, tearing down statues became America’s signature sport. While in one glance it appears to have tapered off (San Francisco seems to have grown weary of the more radical elements of the new racial-justice movement and given up on efforts to destroy a mural of Slave Owner George Washington in one of its schools) Cornell University more recently removed a statue of Slave Freer Lincoln and a copy of the Gettysburg Address from its library. Things don’t make sense.

In particular it makes no sense the statue of Thomas Jefferson was removed from City Hall in New York City, where it stood for 187 years. The unanimous vote to dump Jefferson was the work of the city’s Public Design Commission, which deemed the Founder (who lived a street or two away from City Hall for a time) unfit because over 250 years ago he owned slaves. “It makes me deeply uncomfortable knowing that we sit in the presence of a statue that pays homage to a slaveholder who fundamentally believed that people who look like me were inherently inferior, lacked intelligence, and were not worthy of freedom or right,” declared city council member Adrienne Adams, co-chair of the Black, Latino, and Asian Caucus. Jefferson was indeed unaware blacks were people, and likely thought much the same of anyone who was not an educated, white, land owning, man. He was born that way and little in his intellectual world would have challenged that. Of his time, Jefferson would have also been unaware of the principles of flight, electricity, evolution, penicillin, germ theory, and many other things modern men understand as birth right. From the perspective of a high school science student today, Jefferson was downright stupid.

So should Jefferson have known about nike? In 1776 slavery was legal not only across the American colonies, but in England, the source of most American legal precedence and common law (England only abolished slavery in 1833 even as the American Civil War was brewing. It, along with other Europeans, kept its hand in the lucrative Atlantic slave trade for many more years.) Slavery was endemic across the classical world, woven deeply into the economies of the Romans and Greeks (Jefferson read both Latin and Greek), never mind those of the Middle East. Slavery in Brazil, at the hands of the Portuguese, existed until 1888, long after Jefferson’s death and the Civil War. Neither America nor Thomas Jefferson invented slavery, racism, or discrimination.

In addition to Jefferson the slaveholder (alongside most of the Founders; even Hamilton, reborn as the “good founder” at the hands of woke historical sugar coater Lin Manuel Mirada, traded in slaves) it is all too convenient to forget Jefferson the political founder. He was the principal author of the Declaration of Independence, the preamble to which, as Christopher Hitchens put it in his biography of Jefferson, “established the concept of human rights, for the first time in history, as the basis for a republic.” It was Jefferson himself who created the first nation built on human rights and while not prescient enough to include blacks from the beginning, did include in the founding documents the means to later amend blacks into the already existing framework. To demand Jefferson should have done this from the get-go in the 18th century (alongside using neutral pronouns!) is about as realistic as demanding Michael Jordan have realized when he made Space Jam nike was going to be a no-go word down the line.

In modern parlance Jefferson wrote the code running underneath the United States matrix. In stating “We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable rights” he got it almost all right, missing only the broader inclusion of blacks (and women) into the category. If you want to expand the computer analogy, Jefferson wrote the code right, he simply defined his variable wrong. Doing that despite the world of slavery around him in the 18th century is beyond prescient, it is an achievement that changed the world. Dr. Martin Luther King got it, calling Jefferson’s work  a “promissory note” to all Americans. The extraordinariness of Jefferson being able to see beyond his own world was summed up by President Franklin Roosevelt in dedicating the Jefferson Memorial in Washington, when he said Jefferson “lived in a world in which freedom of conscience and freedom of mind were battles still to be fought through—not principles already accepted of all men.”

The people running the city council in New York have no understanding of who Jefferson was or what he did. In their childish game of racism gotcha, they claimed another statue, their own one of Jefferson. Did they in any way advance the cause of freedom? No, but Jefferson did. Is there any expectation someone will erect a monument to their taking away the statue in 250 years’ time? No, because insignificant changes do not add up to anything. Changing the name of a school, or tearing down a statue, does not change history. That is why everyone is still “raising awareness” about the same problems after decades.

What we see in wokeness is the difference between a small mind and a great mind, between people who ignore their own flaws to pick at others’ out of time and out of context. We see the difference between people who whine to tear things down and people who can see beyond their own world to a better one. Wokeness cannot see enduring, magnificent, world changing ideas separate from the personal flaws of their creators. It is unable to see what Jefferson saw, the possibility of men greater than him building on his work to create that more perfect union. Leonardo had sex with men and for a while we didn’t care for that in our society but we never stopped understanding, speaking of statues, David was a miracle. Same for the Founders.

To sit in 2022 and demand Jefferson could have written a document declaring blacks equal is about as realistic as expecting him to have sprouted wings. He was the prime mover, the thing that lead to the next thing. That is worthy of a statue.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

The Ashley Biden Problem

October 7, 2022 // 1 Comment »

It used to be called the “New York Times Problem.” It asks at what point does the First Amendment stop protecting journalists against the receipt of stolen property, particularly classified documents. It stems originally from the Pentagon Papers, a classified history of the Vietnam War stolen by Daniel Ellsberg and handed over to the Times and later others. The government sought prison time for reporters and editors but failed. What once threatened the New York Times has now been turned directly against Project Veritas, Ashley Biden’s diary, and perhaps Julian Assange.

The goal out of the tangled case outlined below is to create two standards for applying the 1A, one for journalists and one for “journalists” ostensibly based on skill and reputation but in reality based on politics. It is a direct challenge to freedom of the press by Biden’s DOJ.

In June 2020, a woman and a man moved into a Delray Beach, Florida house where Ashley Biden, President Joe Biden’s daughter, previously resided and where she’d left several items, including a diary. The diary mentioned, among other things, “inappropriate” showers taken together by daughter Ashley and Joe (whom Hunter Biden at one point appeared elsewhere to refer to as “Pedo Pete.”) Potentially important stuff, though the woman who found them failed to interest the Trump campaign. She then tried Project Veritas. Veritas paid for the diary holder to meet with their staffers in New York, inspected the diary and paid for it, only to ultimately decide not to publish it. Veritas turned the diary over to law enforcement as unverified (the diary was eventually published by a less-well known site.)

Though Veritas never published the diary, the New York Times Problem came into play — does the 1A protect media outlets who receive or even pay for stolen property, i.e., the Pentagon Papers and Ashley Biden’s diary? Obviously taking in stolen goods, say a diamond watch or purloined car, is a crime. But with snatched or stolen documents of public interest, in steps the First Amendment, which has been held to protect journalists in these cases. This is also why the New York Times Problem has more recently been called the Julian Assange Problem in that Assange never stole any documents himself — that was Chelsea Manning — and only published what he was handed. Any prosecution of Assange would be as a publisher, a clear rub against the 1A and the key issue in any trial that someday may be held.

That’s where the Veritas case should have ended, with the feds doing nothing. Plenty of stolen documents (there is also the open question about whether finding Biden’s diary left behind in an rental house constitutes theft at all) are published all the time by American media outlets, including Trump’s tax returns in the Times and Edward Snowden’s bombastic NSA source materials in the Washington Post. It is an essential part of a free press and protected by the 1A.

But DOJ did not stop with Veritas, who after all did not even publish any of the allegedly stolen documents. The FBI instead conducted a predawn search in November 2021 against Project Veritas founder James O’Keefe’s home and similar raids on two associates to take possession of their cell phones and journalistic notes. The raid warrants cited concerns over the stolen Biden diary. In response, University of Minnesota law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, said “I’m not a big fan of Project Veritas, but this is just over the top. I hope they [the FBI] get a serious reprimand from the court because I think this is just wrong.”

O’Keefe’s lawyers complained the raid unfairly denied him the legal protections afforded to journalists. “The Department of Justice’s use of a search warrant to seize a reporter’s notes and work product violates decades of established Supreme Court precedent,” O’Keefe’s lawyer wrote. The search also appears to violate the Privacy Protection Act, prohibiting searches and seizures of “any work product materials possessed by a person [person is undefined which gets around the issue of who is a “journalist”] reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

Court papers provided to the Project Veritas founder when his phones were seized indicate that his devices were taken as part of an investigation that prosecutors are conducting into potential conspiracy to traffic stolen goods across state lines — the Biden diary. This should send chills through First Amendment advocates because the Supreme Court ruled in 2001 that media outlets cannot be held liable for publishing information that may have been obtained illegally, as long as they themselves obtained the material legally.

The Supreme Court case in question is 2001’s Bartnicki v. Vopper. A person intercepted and recorded a cell phone conversation between a union negotiator and the union president. Vopper, a radio commentator, played a tape of the intercepted conversation on his public affairs talk show. Petitioners filed a damages suit under wiretapping laws, alleging their conversation had been surreptitiously intercepted by an unknown person and the radio station repeatedly published the conversation even though they had reason to know that it had been illegally intercepted. The court ultimately held the First Amendment protected the disclosures and the radio station did not violate the law. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” concluded Justice John Paul Stevens in Bartnicki v. Vopper. So why not the same with Project Veritas?

Loose in the Veritas case is a charging Department of Justice, who said the two people who tried to sell Veritas the diary were guilty of moving stolen property across state lines. More importantly the DOJ a) got the two to plead guilty to moving stolen property and b) contended Veritas paid them $40,000 and told them to go back into the house and look for more Ashley Biden materials (Veritas says they did not do this.) The latter point is key, because the protections of Bartnicki v. Vopper require the media to be passive. It cannot help “steal” things to later publish. FYI, the latter could form the bulk of any prosecution against Julian Assange, i.e., the claim he assisted Chelsea Manning by providing technical advice in stealing (“procurement”) all the classified documents she did. Such assistance, as alleged in the Veritas case, could eliminate the 1A protections (see Peavy v. WFAA-TV.)

What does it all mean? Project Veritas is being punished for practicing journalism and its 1A rights are being violated. Veritas met with sources who had obtained Ashley Biden’s diary. It was irrelevant whether they did so legally. Veritas’ journalists’ homes were searched, its sources charged with an interstate federal crime, and Veritas itself is being set up for procuring “stolen” material. If DOJ is successful in its efforts, this would see a double-standard emerge for the New York Times Problem, one liberal standard that allows major new outlets like the Times and Post the freedom to publish stolen documents and one more conservative which restricts that type of publishing when the outlet is more amateur and less well know, like Veritas.

As James O’Keefe’s lawyer stated a“ journalist’s lawful receipt of material later alleged to be stolen is routine, commonplace, and protected by the First Amendment.” This all has the makings of a clear First Amendment violation by the Biden Administration and in light of the pending case against Julian Assange, also has long-reaching consequences.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump

Yeshiva University v. The LGBT Club, Victory for the 1A

October 6, 2022 // 2 Comments »

The Supreme Court is poised to grant a victory to religious conservatives via the First Amendment in blocking recognition of an LGBT club at Yeshiva University. Yeshiva is a Jewish law school which objects to the club on religious grounds. This is important news for other religious schools across America facing similar legal challenges.

Though the Court as an intermittent step referred the case back to the lower courts as Yeshiva University v. YU Pride Alliance, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett made no bones in their dissent that they would stand with the 1A when the full case comes before the Supreme Court, as it is expected the lower courts will demand Yeshiva recognize and fund the club. The Court refused to hear the case on an expedited basis, ordering instead that it first exhaust options in other, lower courts. Alito, et al, objected to that 5-4 procedural decision and telegraphed their ultimate response via dissent once they get the full case.

The issue is simple: Yeshiva University wants to deny recognition of an LGBT club (YU Pride Alliance), claiming their foundational values as written in the Torah do not support that. The club claims it is being discriminated against, as other non-religious groups can form clubs. At issue is the 1A versus Title IX and other “human rights” laws.

Alito argues the courts have no right to use the power of the state to compel Yeshiva to host the club. “Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of the Torah that the school has concluded is incorrect? Surely ‘no.’” He rejects the idea religion is being used to support bigotry, and sticks with a conservative view of the 1A saying government should not impose itself on religion in this case. The court’s duty, wrote Alito, “is to stand up for the Constitution even when doing so is controversial.” Alito went further, stating “At least four of us are likely to vote to grant” review if the university loses on its First Amendment arguments on appeal, and Yeshiva will likely win if its case came before us. A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.” One progressive outlet called what many conservatives would consider a promise of future justice an “implicit threat.”

The balance between the 1A and Title IX (i.e., human rights, in this case New York law) has always been tricky. To protect religious freedom, the federal Department of Education has granted exemptions to 120 religious colleges and universities to practice their religious tenets, even when they conflict with protected LGBT and other “human rights.” The New York courts have held for schools like Yeshiva (a law school, not purely a religious training school or seminary) the 1A should cover only those parts of the school’s business which directly constitute religious acts, and allow secular law to cover the secular part of the school. Specifically, New York said Yeshiva violated New York City’s human rights law. That law prohibits “public accommodations” – places that are open to the public – from discriminating based on sexual orientation and gender identity. Despite its Jewish orientation, Yeshiva admits students of any religion, the “public” part. Yeshiva came to the Supreme Court, calling the ruling an “unprecedented intrusion into church autonomy.”

In siding with Yeshiva, Alito is also going after bigger fish, looking to weaken or overturn Employment Division v. Smith. In that case the Supreme Court held that religious objectors typically must follow all “neutral laws of general applicability” (though racial discrimination is still prohibited.)  Alito claims that New York’s human rights law is not neutral or generally applicable because it does not apply to “benevolent orders,” i.e., “any club which proves that it is in its nature distinctly private.”

Carveouts from civil rights laws for private clubs are common. The federal law banning businesses that offer their services to the public from engaging in many forms of discrimination (bakers who refuse to make cakes for gay couples, for example) exempts “a private club or other establishment not in fact open to the public.” It is likely the First Amendment, which grants rights of free association to membership organizations that do not apply to public businesses, forbids states from enacting anti-discrimination laws that require genuinely private clubs to accept members they do not want to accept.

Alito, in other words, is saying in his dissent if a state enacts an anti-discrimination law that exempts private clubs, then it must also exempt religious objectors from that law. In practice, that means Alito would give all religious objectors fairly sweeping exemptions from huge swaths of anti-discrimination law, including those at Yeshiva University who object to an LGBT club on campus. Weakening Employment Division v. Smith would open the door wider for private religious schools to decide which organizations they wished to recognize without having to apply to the federal Department of Education for an exemption. It would be a victory for the First Amendment, and a victory for religious rights over “human rights.”

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Trump