• Archive of "Democracy" Category

    School Daze in NYC

    November 20, 2022 // 5 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.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.”

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.

     

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    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.”

    Related Articles:




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

    Posted in Democracy, Other Ideas

    I Can’t Sleep

    September 28, 2022 // 14 Comments »

    When I try to sleep at night, I can’t relax. I blearily turn on the TV. But I can’t change the channel. My TV is telling me I am going to die, maybe by Covid (they say there’s a new variant, you know, called Monkeypox), maybe by climate change because it is likely already too late. Before I drown I’ll be hungry because supply chains don’t work anymore, and inflation is stripping away my purchasing power, and some sort of fascist coup will happen and I’ll probably have to wear all gray clothes all the time like in the dystopian movies. Then there are the TV diseases, bowel disorders and skin problems that medicines I can’t afford might fix except side effects can include blindness, paralysis, saying thingstoofasttounderstandanditallisjustablur of fear. It doesn’t matter I can’t pick out the words, I know what it  means. If only I had that medicine maybe I’d be happy like the people in the commercials, going to farmer’s markets with my racially diverse group of great pals.

    The rhetoric of emergency, crisis, and imminent doom has always been part of American life. We have not been happy for some 75 years. We were happy for a short time after we defeated Hitler, but then we spent three generations certain we would die in a nuclear fireball because behind Hitler were Communists who wanted to invade us, right up the beaches of San Diego, even when for a while we were the apex predator on the planet with the world’s only atomic bomb. We beat the Communists but our happiness was short-lived because of the terrorists and right after we beat them there was Putin, hiding and waiting to ruin the Olympics again.
    I have always been afraid. But I also realized that the ever-increasing speed of fear has never so dominated American life since about 11 p.m. on November 8, 2016, when it became clear Donald Trump would win the presidency. The stakes grew daily; never mind Putin, a Russian agent was in the very Oval Office. There he was giving away secrets, there he was jeopardizing the security of Asia by holding peace talks and hands with Kim Jong Un, then the terrorists were almost back because he was going to pull out of Afghanistan too soon after 20 years. Covid. George Floyd. Elections. Democracy itself was to end on January 6. Barack Obama said at the 2020 Democratic Convention we must vote Democrat out of fear of losing our democracy. Everyday I had new things to be afraid of, Oathkeepers and Boogaloo Bois, not enough beds, and not enough ventilators. The tension of constant crisis defined the years, every day it seemed to reach a breaking point only to be topped again the next morning.
    Then I thought maybe we had a chance. Normalcy, in the person of perhaps the most established and, well, normal politician of the last few generations, seemed to have returned. I felt like I was almost given permission to exhale.
    But no, the crisis had only deepened. The seemingly impossible had happened: the brief occupation of the citadel of American democracy by a mob out of control was not over. It was in fact, I was told, the seminal event of our generation, perhaps the end of the American Experiment itself. The TV says this is mostly the fault of Trump, whom the TV people seem very certain is still in charge of everything. If only a Democrat could get into the White House and start fixing things so I might see my grandchildren again at my show trial after they turn me in for thought crimes. Donald Trump — the ghost of elections past and, perhaps, yet to come — still commands constant and breathless coverage, from cable news to late night. The fraternity of coronavirus variants — alpha, delta, omicron — is like the list of hurricane names: catchy but menacing, perfect for tweets and news scrolls. I am told the upcoming elections, if Republicans do well, will not be fair, and that decades of civil rights work and legislation are meaningless now because the Senate still has the filibuster and Joe Manchin. It seems every story is reported with a flashlight held under the announcer’s chin.
    I tried to figure out if I had gone insane. The arguments are so stupid, it was like arguing a horse is not an orange. I left the room for five minutes and returned to see the U.S. was semi-at war for war over another country’s problems which isn’t America. What, are there Kurds now in Ukraine we have to die for? I couldn’t find any debate, anybody asking why we were starting down the road to another war, only that I should get scared again of the Russian Bear taking over Europe. See, because Neville Chamberlain misread Hitler, forever after any attempts at peace are called appeasement. That’s why I’m told war between China and Taiwan is imminent and the U.S. has to be ready to water the rice paddies of Asia again with American blood. Meanwhile, in the face of lurking Covid, living in daily fear of terrorism seems almost nostalgic.
    Dammit, somebody said if we elected Anybody But Trump things would be OK. Instead it seems worse than ever. Fear as a policy has yielded a nuclear arms race which nearly destroyed the world, the lost decade of freedoms sacrificed to protection from terrorism, and the hundreds of thousands dead in pointless revenge wars. Now comes the wasted spring, summer, autumns, and winters of Covid overreaction, destroying the economy and breaking the spirit of people, followed by inflation and five buck gas. So forgive me when I am not sure I should fear for our democracy as much as I fear for our sanity.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Second Verse, Same as the First: NY’s Civil Suit Against Trump

    September 27, 2022 // 1 Comment »

    New York Attorney General Letitia James filed a lawsuit against former President Donald Trump, three of his adult children, and other senior members of the Trump Organization alleging business and insurance fraud as well as conspiracy for the same, marking the end of a three-year investigation into Trump and his business. The civil suit is basically a version of the criminal indictments the Southern District of New York (SDNY) and the Manhattan and New York State Attorneys General have failed to generate at the federal and state levels. The suit claims in a nut shell what the criminal cases claimed; Trump over-valued the worth of his properties to use them as collateral for new loans, and then undervalued those same properties come tax time to pay lower taxes.

    The criminal cases have fallen flat because of the need to prove actual criminal intent, that Trump lied intending to commit a crime. This proved impossible when the Trump family would not confess (Trump took the Fifth some 440 times during recent questioning) and when no one could be found to Fredo him by turning states’ evidence in return for some lower sentence himself. What’s left in what has clearly become a prosecution driven by the political need to do something ahead of 2024 is this civil suit. Basically same accusations, same weak evidence, but lower standards of proof with lower penalties.

    Enemies of Trump hope this works out better than previous attempts in New York to prosecute him by the Southern District of New York (SDNY) and failing that, the New York State Attorney General Letitia James. The former already failed in 2012 to indict Trump’s children after they were accused of misleading investors, and faced judicial rebukes in the past for sloppy work and political motivations.

    The narrative runs like this: both offices had been compiling nasty stuff against Trump for years, held back only by custom which prevented them from indicting him as long as he was the president. As of January 20, 2021 he became open game. But since then both offices failed to indict Trump. The New York state system is no such kangaroo court, and affords defendants far more protections than federal courts. There are strict rules governing evidence that can be presented to a grand jury, and even minor procedural errors can result in indictments being thrown out. “If you’re a white-collar defendant, you’d rather be in New York State court than in federal court any day of the week,” said SDNY’s former top deputy.

    The current try is kinda of pathetic, just a lawsuit, which carries no potential criminal jeopardy, so no formal indictment, no possibility of jail time. The suit holds Trump misvalued some New York real estate from 2011-2021 to obtain loans and pay lower taxes, a civil offense at worst usually settled with new assessments or a fine.
    Yet even this case against Trump could be difficult to prove. Property valuations are subjective, and most all financial statements include a disclaimer stating that they have not been audited. Now underline this part: Deutsche Bank and Trump’s other lenders were hardly victims; all of his loans are either current or were paid off, some early. Trump does not use email, so any instructions he might have given his employees about the company’s financial statements are unlikely to be in writing. The lack of a damning email, or a witness inside his company willing to testify against him, will complicate efforts to show Trump intentionally used his financial statements to defraud lenders and insurers.
    For people not named Trump (a key giveaway that this is all political) the city of New York assesses a value to each property for tax purposes. Nearly every property owner in NYC believes his or her assessed value is too high and pushes back, to the point where these disputes are not even handled by a court, instead through a tax commission grievance process. Owners want a lower value to pay less tax, except when they approach a bank for the equivalent of a refi loan, when they want their property to seem more expensive to secure a bigger loan at a better rate. It is the bank who then decides what a property is worth to them as collateral, via their own due diligence.
    It is always complicated, as much art as science; beyond the usual valuation factors of location, location, location, some buildings in New York are iconic, or famous for their brand name (cough, cough, “Trump”), what history they represent, etc. Some just have nice views. Sometimes the bank is generous because in return for the loan they’ll secure some other business of value to them. Over-valuing/under-valuing real estate in New York City is sport, but as a crime is so much not ado about nothing it is not going to send anyone to jail. Imagine the yawns as a jury listens to forensic accountants explain Trump’s tiered exemptions, and how their value is subtracted from the DOF assessed value to calculate a taxable value which is then multiplied by the current tax rate for the specific assigned property class. Next session we’ll talk about somewhat sketchy easements Trump obtained going back to when Mayor Koch was in charge.
    The jury will quickly discover the regulations governing how one values a NY property are dense. Built into the law is an automatic fudge allowing the same property to have both a high market value and a lower asset value. Problems are sorted out as civil matters and usually settled with the city sending out a bill, especially if the bank is not claiming fraud, only the DA, as in Trump’s case.
    And in the end, what? The lawsuit seeks to permanently bar the Trump family members named from serving in officer or director positions in any corporation or business licensed in New York State. The attorney general also seeks to bar the former president and the Trump Organization from entering into any New York real estate acquisitions for five years, and to take back all financial benefits obtained through the allegedly fraudulent practices, estimated to total $250 million. None of those things, even if the suit if fully successful, is likely to have an effect on Candidate Trump and none would prevent him from running for president. Business-wise, Trump merely needs to re-incorporate in another state, maybe business-friendly Florida, to re-start operations.
    The Democrats’ plan to find Trump guilty of something, anything, seems to be coming to its own sad ending, the lawsuit beyond a whimper, not a bang. They have tried to turn belief Trump is evil into crime over the last five years — Emoluments Clause, Russiagate, impeachments I and II, Stormy Daniels, obstruction of justice, and incitement. On the sidelines were extra-judicial attempts connected with the 25th Amendment, having doctors who never examined the man declaring Trump mentally ill, and even accusations of incest. The Southern District of New York previously failed to indict Trump’s children and failed to prosecute Paul Manafort. E. Jean Carroll’s rape-cum-defamation case was so egregiously lousy even the Biden DOJ took Trump’s side. The convictions of Trump associates lawyer Michael Cohen and accountant Allen Weisselberg did not touch the principal himself.
    The SDNY brought no charges. Early this year, the Manhattan district attorney, Alvin Bragg, instructed prosecutors to halt their effort to seek an indictment of Trump. It looks like Letitia James is all who is left to  make the last flaccid move and then turn off the lights on her way out.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Klassified Kapers: Hillary v. Trump

    September 23, 2022 // 9 Comments »

    Hillary versus Trump in their Klassified Kapers. Both kept classified information at their homes, both appeared to break the law, only one may be legally punished. But which one wins the battle to have done more damage to national security than your average enemy spy?

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

    The “who” part is clear enough; a document left inadvertently on a desk top in an embassy guarded by Marines might be seen by locally hired cleaning staff at worst. 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.

    The “what” is the real stuff of James Bond and even actual spies. A lot of things are classified, many perhaps overclassified. The Director of the National Security Archive at George Washington University estimates 70 percent of the documents he sees are overclassified. Donald Rumsfeld put it at 50 percent. Just because something is marked Top Secret does not mean the information there really is, but it still might rightly qualify as classified at the Confidential level. It would take a knowledgeable person looking at documents one-by-one to conclude which of the 7 out of 10 were overclassified.

    Other times “what” is classified 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. One of the most deeply-run intel operations against the State Department involved a Euro-ally looking for info on a competitor by listening in to third party U.S. diplomatic sites where the data was treated almost as spam.

    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 from A to B. It matters a whole lot less a month later after the whole affair has come and gone and everybody in town saw the convoy arrive.

    Lastly, we have the unknown factor in judging our contest. Few countries actively harvesting intelligence are in the mood to tell anyone about it. In fact, just the opposite. Even when caught spies deny everything such that one of counter-intelligence’s main tasks after a bad guy is caught is to try and figure out what he likely gained access to, which documents or information he got. Note the “or” there because it is always information, data, which is classified, not pieces of paper. Much damage can be done with a diplomat’s hand written notes of a meeting, unmarked by a classification such as Secret, compared to a document marked Secret but containing nothing really worth keeping quiet. The marking on a document is only the drafter’s best estimate of what the information on paper really is worth. This all makes it hard to judge the relative impact of one exposure to another, but there are other ways.

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

    We start the contest with 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 marked as classified. With the recent search raid, more were found such that the government recovered over 300 documents with classified markings from Trump since he left office. 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. To be fair, our contest is a bit unfair to Trump, as inventories of what was found at Mar-a-Lago are online for all to see.

    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 and completely deleted (bleached) many, many emails. 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. More on that later.

    Nonetheless, according to the FBI, from the group of 30,000 e-mails returned to the State Department, 110 were determined by the owning agency to contain 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.

    So in simple terms based on the albeit thin information available publicly, Trump wins the category for having the most raw material, classified documents, outside an officially secured facility.

    In this race, the “what” is a toss-up. 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 only discussed Top Secret CIA drone info and approved drone strikes via Blackberry.

    But the real money-maker in the classified world is exposure, and here we finally have a clear leader. For all the noise around Mar-a-Lago, there is nothing to suggest the classified Trump held was ever exposed; in fact, information available suggests the stuff left the White House to remain boxed up inside a storage room. 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 Klassified Kaper. Claims he removed 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 months. It suggests if the FBI thought classified material was in imminent danger of being exposed to one of America’s adversaries they might have acted with a bit more alacrity.

    Not so with Hillary. 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. As the actual Secretary of State Hillary Clinton maintained an unsecured private email server which processed classified material on a daily basis. 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? Um, Clinton’s digital security certificate was issued by consumer-level GoDaddy.

    The last bit seals it: we have a winner. Whether anyone unauthorized got a look at Trump’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 full-time 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.

    Unknown is the actual process Hillary used to move classified material to and from her server from the main State Department and other systems. If she transferred data the most likely and convenient way, via floppy disk or USB drive, then she likely compromised the State Department systems as well. Her SysAdm for the home server was a State Department Civil Service employee she hired and so suggests a link between State computer hardware and the Secretary’s own. We’ll never know, as no search warrant was exercised to seize the server and Hillary’s word was taken when she said there was no chance of compromise. All we can say is some intelligence officer in Moscow or Beijing was probably promoted to Colonel off this one.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    The DNI Two-Step and Trump

    September 17, 2022 // 4 Comments »

    If you play poker with a guy named Doc often enough you learn to watch his hands carefully when it’s his turn to hold the deck. Same when the Director of National Intelligence (DNI), the Intelligence Community (IC), and the FBI sit down at the table with the American people.

    The game right now is will he or won’t he; will Attorney General Merrick Garland indict Donald Trump over something to do with classified information held at Mar-a-Lago? Everyone is holding their cards tight to the vest, but the deal just passed to the DNI and the game is about to get serious. Stakes are high; in the pot is the presidency of the United States.

    DNI Avril Haines said that DNI “will lead an Intelligence Community assessment of the potential risk to national security that would result from the disclosure of the relevant documents” including those seized. She said the DNI was aiming not to interfere with the ongoing criminal investigation, to which everyone at the table had better shout “bull.” A review of potential risk means the DNI can show a pair of twos and claim they are kings. The DNI’s whole point is to interfere with the investigation, same as they did with Hunter’s laptop, Russiagate, and the Clinton server before that. The IC is as much a part of our elections now as it ever was in any other banana republic.

    It works like this: using classified methods in secret to look at classified documents the DNI will come to conclusions about what might happen to the security of the United States if those documents were to fall into “the wrong hands,” i.e., the hands of their choosing and certainly a worst-case scenario.

    Without revealing the documents’ contents or why those contents are so important, the DNI gets to say how bad things would be and your role as the public is to believe them and vote accordingly. Since it is a worst-case scenario game, the DNI will no doubt — without any evidence anyone but Trump saw the docs — proclaim nearly the end of the world, that pair of kings. The goal of course would most certainly be to influence the investigation or, more precisely, influence the public opinion outcome. It’s a remake of the January 2017 intelligence community assessment (another form of make it say what you want it to say document) which claimed, without evidence, that Vladimir Putin wanted to put Trump in the Oval Office. Or the 2020 IC letter claiming the Hunter Biden laptop was Russian disinformation.

    Right now the DOJ has very little to prosecute on, basically that Trump held on to some (maybe) classified documents at Mar-a-Lago. Did anyone see them? Was there any chance a foreign adversary got a peek? DOJ needs more than simple possession (albeit a crime) to go after a once and perhaps future president and may not have it. The docs may never have left lock and key. Mar-a-Lago surveillance tapes may not show Boris Badenov walking in and out of frame; enter the IC.

    The DNI document review itself will of course not be made pubic. In discussing which sources and methods might have been damaged it will need to be more highly classified than the original  documents. We’ll never see the Review. But better than the entire document, we’ll all see the leaks, the little snippets meant to take down Trump that will inevitably leach into the New York Times and Washington Post. The IC will provide the ammunition, in carefully measured amounts, DOJ needs to make the unclassified case to the public the classified stuff they’ll never see is a big, big deal.

    Conspiracy theory? Ask yourself how crime scene-like photos have already leaked from the Mar-a-Lago investigation as compared to say, the Jeffery Epstein case. Imagine a crime scene-like photo of children’s underwear strewn across the floor, stuff investigators allegedly found in Epstein’s desk. DOJ and Trump have been bickering about these documents nearly since he left office; why was the spectacular raid held just weeks ahead of the midterms?

    This is by now a familiar song. Remember the role the IC played in the 2020 election in making sure Hunter Biden’s laptop and its contents would not influence Americans.  As the New York Post broke the story that a laptop full of Hunter Biden’s files contained potential evidence of a pay-for-play scenario involving then-candidate Joe Biden just ahead of the presidential election, almost in real time more than 50 former senior IC officials signed a letter dutifully published by Politico claiming the emails “have all the classic earmarks of a Russian information operation.” The signers said their national security experience made them “deeply suspicious the Russian government played a significant role in this case. If we are right this is Russia trying to influence how Americans vote in this election, and we believe strongly that Americans need to be aware of this.” Small world — the U.S. spy chiefs who signed that infamously misleading letter, including John Brennan, Leon Panetta, Michael Hayden, and James Clapper, directed America’s IC while Biden was vice president.

    The letter was an act of evil brilliance, the weaponization of opinion. It played off cultivated prejudices from 2016 that the Russians manipulated American elections. In fact, most of the signatories — James Clapper and John Brennan among them — had played key roles in misdirecting public opinion around the DNC-server hack and later the whole of Russiagate. Among the establishment, the meme quickly became into “the laptop is fake.”

    The major difference in this case was the establishment’s willingness to actively block information. With the letter as “proof” the laptop was disinformation, the media took the handoff. Twitter locked the New York Post‘s account after the Post refused to obey Twitter’s orders to delete its own truthful reporting. Twitter even banned links to the story in direct messages. Facebook announced it would not allow discussion of the issue pending a “fact check,” which never came. Establishment media outlets labeled the laptop fake, social media blocked the news, and the public basically fell in line and voted for Joe without knowing squat about what he and his son Hunter had been up to. Many still do not.

    More recent information exposes the IC plan in greater detail, to include the FBI specifically approaching Facebook and Twitter to tell them not to allow the story. Claims of not interfering with the election were fully false, with a cover up until when it seems not to matter anymore, to boot. Like the whole of Russiagate, it was all made up, and the IC worked hand-in-glove with the Democratic media to hide information. Hunter Biden’s laptop had the potential to change the outcome of the 2020 election, and everyone knew it.

    So be careful when the inevitable DNI/IC leaks about how serious the whole Mar-a-Lago affair is show up. Now, after all that you wanna play another hand of poker with these guys? Sure, let old Doc here deal you in, sucker…

     

     

     

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Trump and the Special Master

    September 16, 2022 // 2 Comments »

    The appointment of a special master is usually a case of much ado about nothing, except with Donald Trump and his war with the Department of Justice there is never “nothing.”

    A special master is an independent party appointed by the court in this instance to “review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege.” In other words, the master will look at the pile of documents and other items seized by the DOJ under its search warrant and decide which ones they can keep to review and use in their prosecution, and which ones are not allowed based on the limits of the warrants and privilege. Search warrants are written to be as broad as possible in the taking from a property (in this case, anything that was part of Trump’s White House term) and special masters exist to limit under the law what can be used.

    The DOJ has already acknowledged it scooped up too much; Trump’s passports have already been returned as will his tax and medical records, which have nothing to do with the question of whether or not he illegally held classified material, that potential crime being the justification for the search in the first place. While it is easy to assume naughty intentions on the part of DOJ, and there may have been, it is not uncommon for non-material things to be swept up in the physicality of conducting a search. For example, searches tend to grab any and all electronic devices to be scanned later for their contents.

    But passports and tax records aside, the real issue at play with the Trump special master is privilege, those documents which fall under a special protected category and should not be available to DOJ. The first generally non-controversial category is attorney-client privilege. By law, communications between a client and his attorney, to include legal strategies, draft documents, suggested filings, etc., are hands off. The most common use of a special master is to weed out such documents clearly covered by attorney-client privilege.

    In every search cases bar one (you already guessed it) the special master’s work beings and ends with rooting out those attorney-client privileged documents. However, as the first former president ever to have his property searched, Trump introduces a new category: executive privilege. In its most basic form the doctrine of executive privilege defines the authority of the president to withhold documents or information in his possession or in the possession of the executive branch from compulsory processes of the legislative or judicial branch of the government, such as search warrants. The concept evolved out of the recognized need for the president to receive tough, unbiased advice and engage in frank debate inside the Oval Office in the making of policy. Keeping this back-and-forth from Congress, the courts, and the public was seen as essential to ensuring the president always heard the tough medicine he needed to hear, undiluted so as to look good if exposed to public scrutiny. If an advisor had to worry about what he said showing up on the front pages of the New York Times, he might very well hold back or sugar coat very needed advice and consult.

    Trump argues much of what DOJ seized from him falls into the category of executive privilege (he’s no stranger to the concept; Trump repeatedly and successfully asserted the privilege as president in attempts to block records and testimony from Democrats’ congressional investigations, including in the first impeachment.) Joe Biden back in May waived his own executive privilege over what Trump held, suggesting other documents with Trump do not carry executive privilege since Trump is no longer president and Joe is. DOJ seized documents and began working with them based on the assumption that former presidents had no right to executive privilege, that that ended the day they left office. But no one before Trump has ever challenged the doctrine over a search, it has never been looked at in depth by a court, and the special master is being dropped right into the middle of a debate which could ultimately end up at the Supreme Court.

    The Constitution is silent on executive privilege. It evolved, rooted in the separation of powers doctrine that divides the power of the United States government into legislative, executive and judicial. United States v. Nixon, Watergate, is about as close to things came to sorting out Trump’s dilemma legally. That case established even a president has a legal duty to provide evidence of his communications with his aides when the information is relevant to a criminal case. By requiring Nixon to turn over tape recordings of private conversations he had with his aides, the Supreme Court framed how to define executive privilege in a judicial setting.

    Even before the Nixon decision, however, some courts required the executive branch to provide governmental records and documents prepared for the president. In other civil cases the courts have held the applicability of the privilege should be decided on a case-by-case basis by weighing the need for justice against the proper need for confidentiality. The Supreme Court last year side-stepped the question in Trump’s bid to block White House records from the J6 committee, and Biden then waived privilege as keeper of the records, leaving it a grayer area in the law. As with Nixon, the Court held the sitting president (i.e., Nixon and Trump’s successor) is “in the best position” to make privilege determinations.

    Biden’s blanket assertion that he alone can determine executive privilege as the lone executive sharpens the challenge Trump is working toward in this case: does a former president retain executive privilege? Further, does that executive privilege apply to the executive branch itself, in this case the Department of Justice? Trump’s hope is the special master will say yes, and provoke a challenge from DOJ. DOJ hopes to circumvent that challenge by appealing the appointment of the special master in the first place. The current judge has until September 15 to consider the appeal before DOJ bypasses that court for the 11th Circuit in search of a decision.

    What might happen? If DOJ successfully appeals the appointment of the special master later this month, Trump will likely lose control of the records to DOJ. If the courts allow the special master, then to eventually win a court order shielding the records permanently, Trump would first have to establish that he can assert executive privilege even though he is no longer in office. Trump would then have to overcome Biden’s (and the Supreme Court’s) position executive privilege over the materials is held by the sitting president. Lastly, Trump would have to show his harm from privilege violations outweighs the government’s need for the documents in its criminal probe into the possession of classified records.

    Trump’s ploy is a big ask, potentially on the Constitutional level. He has benefited so far from sympathetic judges, a situation unlikely to continue as DOJ moves its case to higher courts. It is anyone’s guess, but the odds seem in favor of Trump losing, the special master not being allowed to rule on executive privilege, and DOJ retaining most or all of the documents seized for use in its prosecution. At best Trump’s legal maneuvers will succeed in slowing down the entire investigation.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    China vs. U.S.: Privacy for Whom?

    September 13, 2022 // 3 Comments »

    The New York Times ran an article on the use of surveillance tech in China. One wishes they would do the same for the U.S.

    The NYT article came to some scary conclusions about autocratic China. Chinese authorities implement facial recognition tech everywhere they can, the police seek to connect electronic activity (making a call) to physical location, biometric information such as fingerprint and DNA is collected on a mass scale, and the government wants to tie together all of this data to build comprehensive profiles on troublesome citizens. The latter is the Holy Grail of surveillance, a single source to know all there is known about a person.

    Should the Times (or China) wish to expand its review of invasive government surveillance technology, particularly those technologies which integrate multiple systems, it need look no further than its hometown police force, the NYPD, and data aggregated into the little-known Consular Consolidated Database (CCD) by the U.S. State Department.

    Prior to 2021, when the New York City Council passed the Public Oversight of Surveillance Technology (POST) Act, citizens were left to piece together the various technologies used to surveil them based on scattered media reports. We know now the NYPD deploys facial recognition surveillance (and can retroactively employ facial recognition against video saved from one of 20,000 cameras), x-ray vansStingraysShotSpotters, and drones, among others, equipment all originally deployed in the Iraq and Afghan wars. But we still don’t know how many of these technologies are used in coordination with each other, and, as in China, that is the key to understanding their real effectiveness.

    POST reporting and other sources offer some clues. The NYPD uses the smartphone-based Domain Awareness System (DAS), “one of the world’s largest networks of cameras, license plate readers, and radiological censors,” all created by Microsoft with video analytics by IBM. DAS also utilizes auto­mated license plate read­er (ALPRs) devices attached to police cars or fixed on poles to capture the license plates of all cars passing by. ALPRs can also capture photo­graphs of cars, along with photos of the driver and passen­gers. This inform­a­tion is uploaded to a data­base where it can be analyzed to study move­ments, asso­ci­ations, and rela­tion­ships. Facial Iden­ti­fic­a­tion can then run photos, includ­ing from data­bases of arrest photos, juven­ile arrest photos of chil­dren as young as 11, and photos connec­ted to handgun permits. The system analyzes an image against those data­bases and gener­ates poten­tial matches in real-time.

    Included in DAS is a translator application which helps officers communicate with community members who do not speak English, while of course also recording and storing their remarks. DAS ties in to ShotSpotter, a technology developed for the Iraq War which pinpoints the sound of gunfire with real-time locations, even when no one calls 911. This technology triangulates where a shooting occurred and alerts police officers to the scene, letting them know relevant information, including the number of shots fired, if the shooter was moving at the time of the incident (e.g., in a vehicle), and the direction of the shooter’s movement. DNA data can also be accessed, so wide-spread collection is a must. One area of activity outlined in Chief of Detect­ives Memo #17 instruc­ts on how to collect “aban­doned” DNA samples from objects such as water bottles, gum, and apple cores. For example, police officers are taught to wait for the suspect to take a drink or smoke, and collect the sample once a suspect throws the cup or butt away.

    What is deployed in New York to aggregate sensor and bio data (including social media monitoring and cell phone locator services, which when tied to facial recognition can identify individuals, say who attend a protest, visit an AIDs clinic, etc.) will no doubt be coming soon to your town as the weapons of war all come home. The next step would be to tie together cities into regional and then state-wide networks. The extent to which inform­a­tion obtained from DAS is shared with federal agen­cies, such as immig­ra­tion author­it­ies, remains unknown. What we do know is the phrase “reasonable expectation of privacy” needs some updating.

    Perhaps the largest known data aggregator within the Federal government is the innocent-sounding Consular Consolidated Database (CCD) administered by the U.S. Department of State. Originally a simple database created in the 1990s to track visa and passport issuances, the CCD is now one of the largest global databases of personal information, growing at a rate of some 35,000 records a day. The system collects data from both foreign visa applicants and American citizens to include but not limited to imagery for use with facial recognition, biometric data such as ten-fingerprint samples, home/business addresses, phone numbers, email addresses, financial information, race, gender, social security and alien registration numbers, passport information, certain Federal benefits, medical information, legal information, education information, family information, travel history, arrests and convictions, and social media indicators.

    The CCD is especially valuable in that it is a database of databases, pulling together information collected elsewhere including abroad, as well as from some commercial databases and public records, and making the aggregate available both for individual search by identifiers like name, social security number or facial recognition, but also for very large scale analytic searches to identify patterns and trends. This massive pool of data is then made accessible to the Department of Homeland Security, Department of Commerce, Department of Defense, Department of Justice, Office of Personnel Management, Federal Bureau of Investigation, and “other interagency partners” to include potentially intelligence services. In addition to the State Department, information is regularly input into the CCD by the FBI, the Integrated Automated Fingerprint Identification System, DEA, ICE, IRS, DOD, Treasury, Health and Human Services (HHS), DHS, Interpol, and U.S. Marshal Service (USMS.)

    Numbers of records held by CCD are not available, with the last public tallies documented in 2016 showing 290 million passport records on American citizens, 25 million records pertaining to American citizens living abroad, 184 million visa records of foreigners, and over 75 million photographs. Some 35,000 records are added to the CCD daily, so do the math given the existing tallies are up to 13 years old. As a point of comparison, Google’s database of landmark photos holds only five million records. The Library of Congress database lists 29 million books.

    The New York Times article about surveillance in China is scary, showing what a vast, interconnected system is capable of doing in exposing a person’s life to scrutiny. The Chinese authorities are, however, realistic about their technological limitations. According to one bidding document, the Ministry of Public Security, China’s top police agency, believed one of their biggest problems was data had not been centralized. That Chinese problem appears well on its way to resolution inside the United States, and that is also quite scary.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Overclassification and Mar-a-Lago

    September 2, 2022 // 3 Comments »

    Let’s commit a potential crime by reading this: “Every day the Iraqis turn out military communiques threatening ‘severe punishment’ against Iran.” That line is classified, albeit from 1988. It was put into the public sphere via Wikileaks but never officially declassified. Technically it remains classified even though it is a click away for anybody with internet access.

    It illustrates that if there are three things most everyone in government agrees on a) there are too many classified documents classified too highly, b) no one is going to risk their neck to be the first to start classifying less and c) handling all that classified is a major problem for even those trying to do the right thing.

    As former CIA and NSA Director Michael Hayden said, “Everything’s secret. I mean, I got an email saying ‘Merry Christmas.’ It carried a top secret NSA classification marking.”

    In 2010 Congress passed the Reducing Over-Classification Act, which mandated several steps to improve classification practices.  But in a minor act of legislative malpractice, Congress failed to define the meaning of the term “overclassification.”   So it is not entirely clear what the Act was supposed to reduce.

    Eight blue-ribbon U.S. government commissions have addressed the subject of overclassification, never mind literally hundreds of agency taskforces, each deeming overclassification rampant. As recently as 2017 the Information Security Oversight Office (ISOO) at the National Archives and Records Administration (NARA; the people now seeking possession of the classified documents once held at Mar-a-Lago) concluded “too much classification impedes the proper sharing of information necessary to respond to security threats, while too little declassification undermines the trust of the American people in their government. Reforms will require adopting strategies that increase the precision and decrease the permissiveness of security classification decisions and improve the efficiency and effectiveness of declassification programs.” In addition to better government, less overclassification will save money. ISOO estimates in FY 2017 the government spent $18.39 billion on security classification, while private companies spent another $1.49 billion to work with federal agencies under the National Industrial Security Program. The cost to process a Top Secret clearance is between $3,000 and about $15,000. It adds up.

    The basic way documents end up (over)classified is because it is too easy to classify something, too tempting to over classify something, and nearly impossible absent being the president of the United States to declassify something. It works like this:

    A junior State Department official or young Army Captain (the intelligence agencies follow a similar albeit more complex model given that they deem everything they do basically highly classified) sets out to write a report on Iran. He turns to his classified word processing network because, well, it’s Iran, and selects Confidential, Secret or Top Secret, each heading having pages and pages of definitions in Executive Order 12356 (there are some 2,865 security classification guides out there.) He’s heard his boss’ boss doesn’t have time to read anything but important stuff, so selected Secret to try and get some eye-time.

    He can then select a handling guide, a designator of who among the 1.5 million Americans hold a full security clearance can actually legally read his document. Choice there include EXDIS – Exclusive Distribution Only, LIMDIS – Limited Distribution Only, NODIS – No Distribution (other than to persons indicated), STADIS – State Distribution Only, CHEROKEE – Limited to senior officials, NOFORN – No Foreign Distribution, LOU – Limited Official Use, SENSITIVE BU – Background Use Only, CONDIS – Controlled Distribution and US – US Government Only. Note the “and” as he can select more than one designator, for example, LIMDIS NOFORN SENSITIVE BU. When our drafter steps over the line into Top Secret documents or dealing with intelligence information, he gets a whole new set of handling designators, such as SCI, Secure Compartmentalized Information, that spells out a very small circle of people who may read what he has written. Information that originates with NATO or friendly foreign governments has its own set of designators. The list is not endless, but is pretty close to that in practice. The desire to limit documents to those who “need to know” can have tragic consequences, as discovered after 9/11 when it was found the CIA held data which the FBI might have used to stop the attack. Overclassification is a barrier to information sharing at its most critical junctures.

    Who can make these designations? Any of 1.5 million Americans. Who can delete or downgrade a classification? In practice, the head of the originating agency or his designates (for example, the Secretary of State for State Department documents) and the President. It is easy to see the problem. Add to that that classification is done electronically while declassification is a manual, paper-based process.

    There’s another problem, derivative classification. Derivative classification means the incorporating, paraphrasing, restating, or generating in new form information that is already classified, and marking the newly developed material consistent with the classification markings that apply to the source information. In other words, classified documents give birth to more classified documents when they’re quoted or used as source materials, a kind of classified snowball effect. The numbers are staggering: then-Bradley Manning leaked 251,287 classified documents from the State Department alone, covering a seven year period, an average of roughly 36,000 classified documents just from one agency, and a relatively small one at that compared to the military. It is possible to say no one can really say how many classified documents exist, though one estimate was as high as 49 million.

    With so much classified, the real question is how to securely handle the tsunami. A thought experiment: imagine someone hands you a single document and says protect this at all costs. You might fold it carefully into a pocket, check to see it is there several times and hour, maybe put it in a safe at night. Now someone hands you 36,000 documents and says protect them at all costs and while you are trying to do that they keep producing additional classified documents and demanding you handle them properly. Let’s see how it worked in one personal example.

    As a State Department official I wrote a personal blog, then permitted, on international affairs. I linked to one of the 251,287 documents Manning had released into the wild via Wikileaks, a short piece saying Senator John McCain traveled to Libya several years earlier to sell aircraft parts to Libyan leader Muammar Quaddafi. I had no personal knowledge of the event, building an argument against selling military spare parts to terrorists solely from the Wikileaks-hosted document.

    State’s Office of Diplomatic Security charged me with mishandling classified information (the original Wikileaks doc was marked Confidential.) Arguments that I did not leak the document, did not ever physically possess the document, that media such as the New York Times, Washington Post and in my case USA Today were regularly publishing from documents marked classified by Wikileaks, and that the document I quoted from existed on the web for anyone to view were rejected by State, who referred my case to the Department of Justice for prosecution. In my defense the American Civil Liberties Union wrote “State reveals a penchant for superficially advancing national image at the cost of transparency. At its worst, it is yet another instance of the government making false claims of secrecy to avoid legal and political accountability.” DOJ refused prosecution without comment, and Diplomatic Security moved immediately to punish me internally under existing administrative procedures.

    So what does all this mean for Donald Trump?

    Of the thousands of documents seized from Mar-a-Lago, it is believed about 150 were marked classified. Is Trump going to jail for mishandling this classified material? Almost certainly not.

    Can the classification system be twisted to create some sort of court room drama affecting him? Almost certainly yes. That decision rests with Attorney General Merrick Garland.

    There is of course the elephant in the room, the possibility that during his time in office Trump declassified some of the documents, as he was able to do. Given that there is no set declassification procedures per se created by the various Executive Orders establishing the classification system, it could as easily come down to Trump’s word that he did declassify the documents against… well, no one’s word, simply a lack of evidence saying the documents were declassified. A jury could ultimately decide.

    Trump could also effectively argue along the lines above that at least some of the documents were overclassified, misclassified, or no longer needed to be classified. This would take place in some forum, maybe a courtroom, paragraph-by-paragraph as most classified docs are usually delineated that way. This is very hard to envision. Remember, while there are negative consequences for improper disclosure, there aren’t for overclassification.

    Trump could be prosecuted for some minor offense of mishandling classified material, highly unlikely the stuff a sitting Attorney General from one party brings against a would-be candidate from the opposing party, at least in an American democracy. Classified documents are mishandled all the time; in my own case, the government gave examples to include Agency Case No. 2005-0237, where a diplomatic courier lost 12 diplomatic pouches overseas including four bags containing Top Secret documents. A three-day suspension was mitigated to a letter of reprimand. In a second case, a confidential draft cable was found at a residence abroad. Agency Case No. 2006-002 saw a one-day suspension proposed. In each case, Security determined the classified material had been compromised. In FSGB Case No. 2005-042, an individual inadvertently left one Confidential and two Secret documents in a taxi. That individual was only proposed for a three-day suspension, subsequently mitigated to two days. Small stuff.

    In the Wikileaks case, out of over 251, 287 documents released, the Department of Defense was force to conclude due to overclassification and the passage of time “no real harm” was done to the United States. DOD wrote with  “high confidence that disclosure of the Iraq data set will have no direct personal impact on current and former U.S. leadership in Iraq.”

    Bottom line is there unlikely to be any real smoking gun coming out of the Mar-a-Lago basement. Overclassification and the precedent it has set all but assure Trump’s security transgressions, if any, were minor and likely inconsequential.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    What the Mar-a-Lago Warrant Tells Us

    September 1, 2022 // 3 Comments »

    At first read the newly-released Mar-a-Lago search warrant reveals little, with about half its pages redacted. It does suggest two possible narratives going forward, one with severe political implications: the National Archives sicced the FBI on Candidate Trump.

    The warrant does say the search was based on “a significant number of civilian witnesses” to Trump’s actions and the Twitterverse is already alive speculating who that might have been (Ivanka or a maid?) This will generate a thousand conspiracy theories as to who first told the FBI about the classified documents stored at Mar-a-Lago but in the end adds little to key questions. The warrant also includes a single line saying prosecutors requesting to search Trump’s residence had “probable cause to believe that evidence of obstruction will be found” without explaining what was potentially obstructed and how. The warrant makes clear it does not matter if the documents seized were classified, or had been declassified.

    The real meat of the warrant is redacted, some 14 out of its 32 pages. We get the beginning and end but not the important middle. The warrant reiterates the sections of law of concern are 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information… with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation,” part of the infamous Espionage Act of 1917. Also included is 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record” and 18 U.S.C. §§ 1519, the “anti-shredding provision” which imposes criminal penalties on anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.” This section of law as a possible violation is what the line had “probable cause to believe that evidence of obstruction will be found” likely refers to.

    The warrant gives us the laws in question, and a slightly fuller accounting of what was found at Mar-a-Lago, including previously when Trump cooperatively allowed DOJ to remove items from his home. The warrant tell us 15 boxes taken voluntarily in May contain NDI, National Defense Information. The documents lean toward the higher end of the classified spectrum. Sub-designators include Sensitive Compartmented Information (SCI), classified information derived from intelligence sources, methods, or analytical processes, Special Intelligence (SI) meaning technical and intelligence information derived from the monitoring of foreign communications signals, and HUMINT Control System, or HCS, meaning intelligence information derived from clandestine human sources. 

    Redacted is the in between, the narrative portion of the warrant which links the laws potentially violated with the evidence found/to be looked for. This is especially important for the obstruction charge, which may be as simple as Trump refusing voluntary access to materials stored at Mar-a-Lago, a conclusion which would also explain the need to obtain a warrant.

    Based on the visible portions of the warrant, two possible scenarios exist.

    One scenario is Trump takes documents with him from the White House; the National Archives requests those documents returned; Trump voluntarily returns some of them in May and refuses to give up any more documents; DOJ obtains a search warrant under the above criminal codes to seize the remainder of the documents through the involuntary search in August. Trump is “guilty” of not returning his classified library books and the DOJ used the search warrant to go pick them up. The argument would be whether the documents in question qualify as “presidential records” and thus could have stayed under Trump’s control, or “government records” which should have been under control of the National Archives. Comments by Trump and one of his attorneys suggest this may be the view Trumpworld is taking of all this.

    DOJ seems to be taking a different view, given the unreturned documents appear to be highly classified, and that is to criminalize Trump’s actions. The very first line of the warrant states “The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records. The investigation began as a result of a referral the United States National Archives and Records Administration (NARA.)”

    Under this scenario, Trump knowingly takes classified documents with him from the White House; the National Archives requests those documents returned; Trump voluntarily returns some of them in May but refuses to return the remainder; DOJ obtains a search warrant under the above criminal codes to seize the documents through the involuntary search in August both to regain possession to safeguard the material against future misuse by Trump and as evidence of his crime of illegal possession; DOJ indicts Trump, criminalizing his possession of the documents instead of seeing that as a legitimate disagreement over what qualifies as  a presidential record. Obstruction charges come from the lack of cooperation in August as shown in May, necessitating the warrant and full-on field search. None of this scenario requires the documents to be classified, or is affected if Trump declassified any of them. This would be consistent with a footnote on page 21 of the warrant stating “18 U.S.C. 793(e) does not use the term classified information but rather criminalizes the unlawful retention of information relating to the national defense.” (emphasis added) In short, the Archives sicced the FBI on Trump.

    Even if either of the above narratives is substantively true, this is not a slam dunk case that will end any potential Trump candidacy. In the former Trump and NARA will argue, likely via motions in front of some court, over which documents were the president’s to control and which were not, a discussion which will break down into technical chatter.

    The latter scenario will generate smoke as it is a criminal matter and potential source of indictment for Trump, but absent some sort of unlikely proven criminal intent (Trump planned to give the documents to the Russians!) and in the face of claims it is all banana republics-style politicization of the judicial, will generate little fire. It is unlikely the Trump journey ends over a document dispute with the National Archives.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    The Mueller Report, January 6, Mar-a-Lago, and the Abyss

    August 26, 2022 // 12 Comments »

    Dear Merrick Garland:

    One of the problems with the Abyss is you often don’t realize how close you are to falling in until too late in the game. Watching the seemingly endless January 6 hearings and Mar-a-Lago search throw mud against the political wall in hopes something sticks, it is easy to forget how close we came to impeaching or prosecuting a president based on false information, and in that process wrecking our system of rule of law. Remember what was at stake — the President of the United States was accused of being a Russian agent. Then there was a backup plan to get Trump, an indictment for obstruction of justice based on obstructing a case which could only have exonerated him, based on false info as it was. It is all worth revisiting as the January 6 Committee and the FBI contemplate empty but politically juicy criminal referrals.

    As we look at gaps in the January 6 story, older questions remain: why didn’t the Mueller Report say the obvious, that the Steele Dossier and all that flowed from it via Crossfire Hurricane, was based on bogus information created by a politicized FBI, that there was no Russiagate? And why didn’t Trump say the same thing, explicitly (he did deny the allegations) and call the Democrats’ bluff, exposing Russiagate in real time for what it was, a Hillary Clinton paid-for smear exercise that was allowed to get out of control? Imagine the Constitutional issues of an impeachment based on false information, especially if it had been upheld by the Senate or Trump otherwise driven from office?

    Special Counsel Robert Mueller, portrayed as the dogged Javert, presented his report on Trump-Russia ties to the public in April 2019. The report tackled two broad questions: did Trump work with Russia to get elected in 2016, and did Trump obstruct justice as the FBI, the Special Counsel, and Congress sought to investigate the first question? Mueller answered questions upon presenting his report to Congress, and then disappeared from public eye. No Late Night, no memoirs, no high brow interviews.

    As to the first question, Mueller was very clear “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 US Presidential Election… the report does not recommend any further indictments, nor did the Special Counsel obtain any sealed indictments that have yet to be made public.”

    But the second question, obstruction, was left open for many of the hopeful. Mueller wrote in Footnote 1091, “A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment… Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment.” Mueller also mentioned “the conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of the office accords with our constitutional system of checks and balances and the principle that no person is above the law.” Heard that again recently?

    Just about everyone sitting left of political center read that clearly as saying even if Congress could/would not impeach and convict Trump (as the Senate was Republican controlled) they could open a case against him with DOJ that would pend during his term while he had immunity and then whack! come down on Citizen Trump the day he left office. A cardinal rule for prosecutors is to not publicize negative information that does not lead them to indict someone — “the decision does the talking.” James Comey was criticized for doing this with Hillary Clinton during the campaign. Yet most of the Report’s Volume II is just that, descriptions of actions by Trump that allegedly contain elements of obstruction. Some say Mueller wanted to draw a “road map” for a prosecution that would have to take place years separate from his Report.

    Following Mueller was an amazing amount of smoke and noise regarding obstruction, but ultimately Trump was not impeached nor after he left office did anyone (SDNY, DOJ) seek to prosecute him as a private citizen for connections to Russia or obstruction. It all just faded away as impeachment over something-something Ukraine was ginned up in a hurry based on a bogus whistleblower and a non-issue quickly forgotten when the Senate righteously failed to convict Trump. We will never know how close the U.S. got to impeaching Trump for obstruction or a prosecution for the same. We do know the temptation was there.

    What we know now that we did not know then is that there was no Russiagate. All the stuff of the Steele Dossier, the pee tape, the Moscow meetings, Michael Cohen in Prague, was simply made up. Everything investigated by Steele, Mueller, and the FBI never happened. It was all paid for by Clinton operatives for the purpose of smearing Trump during the campaign and after he won, in an attempt to destroy his administration and possibly drive him to resign or be ridded by the 25th Amendment.

    We know know Christopher Steele, paid by the Clinton campaign (after Clinton’s denial, it took a year for congressional investigators to uncover that the dossier was commissioned by the opposition research firm Fusion GPS, working for the Democratic Party and Hillary Clinton’s campaign, paid through the Perkins Coie law firm), seems to have done no investigative work. Instead, his reputation as a former British intelligence officer was purchased to validate a dossier of lies and then traffic them to the FBI and journalists. One of Steele’s key “sources” is the now-arrested Igor Danchenko, a Russian émigré living in the United States whose trial for perjury is scheduled for this autumn (Steele was introduced to the Russian by Fiona Hill, then of the Brookings Institution. Hill would go on to play a key role in the Ukraine impeachment scam.) Danchenko completely made up most of what he told Steele about Trump-Russian collusion.

    When he did not make up stuff himself, Danchenko was spoon-fed lies by Charles Dolan, a Clinton campaign regular (Fiona Hill introduced Dolan to Danchenko). Ironically, Dolan had close ties not only to the Clintons but to the Russians as well; he and the public relations firm where he worked represented the Russian government and were registered as foreign agents for Russia. Dolan is credited with, among other things, making up the pee tape. Dolan also fed bogus info to Olga Galkina, another Russian who passed information to Danchenko for inclusion in the Dossier. Galkina noted in e-mails that she was expecting Dolan to get her a job in the Hillary administration.

    Mueller mentioned the Steele Dossier in his own Report numerous times, and was well aware the Dossier played a major role in the FBI investigation of Trump. Did Mueller also come to know it was bogus, fake, a fraud, campaign fodder paid for by Clinton? If so, Mueller remained silent and so much for the rule of law. Why? The FBI, internally we now know dubious of many of the Dossier and other claims handed to it by various Clintonites working undercover, stood by its justification for the full investigation. And so much for the rule of law.

    “The fact pattern that John Durham is methodically establishing shows what James Comey and Andrew McCabe likely knew from day one the Steele dossier was politically-driven nonsense created at the behest of the Clinton campaign,” said Kevin Brock, the FBI’s former intelligence chief. “And yet they knowingly ran with its false information to obtain legal process against an American citizen. They defrauded not just a federal court, they defrauded the FBI and the American people.” The 2019 Horowitz Report, a look into the FBI’s conduct by the Justice Department Inspector General, also made clear the FBI knew the dossier was bunk and purposefully lied to the FISA court.

    What would have happened had some entity brought charges against Trump for obstructing an investigation itself based entirely on false information and false pretenses? At the very least all hell would have broken loose in Washington. For example, would an FBI whistleblower have emerged, concerned his beloved Bureau was about to throw its reputation away on a political assassination while the Bureau et large remained mum co-conspirators?

    Would Trump have revealed the mountain of information he for some reason still holds close today? For example, Trump, knowing exactly what he ever did or did not do vis-a-vis Russia, knew the Dossier to be bogus but stuck simply with short-form denials. At what point in a Trump trial would it have come out that nearly 100 percent of the information against him came from the Clinton camp as campaign smear material? Is it even legally possible to be found guilty of obstructing an investigation that could have only found you guilty by employing fraud against you? Obstruction requires a showing of intent and how could Trump intend to obstruct an investigation he knew could not lead to anything because all the basic facts are false?

    A prosecutor need also look deeply to ensure he can prove intent as necessary, that an act — perjury, for example, was done with the intent to mislead and was not simply a mistake. That’s the difference between a mistake, error, misstatement and a true lie, what it was intended to accomplish, a crime. The act is easy to prove, the thought pattern, what was in someone’s head, the mental objective behind an action, much less so. Imagine those issues being debated in a divided America during say a presidential election campaign? Rare is the challenge to peoples’ belief in the rule of law. Was the Deep State ready to go that far?

    That’s the Abyss. Perhaps future historians of January 6 and Mar-a-Lago will tell us how close we really got to it.

    Respectfully,

    Peter

     

     

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Baby Jane, Victim Zero of the New Abortion Era, More to Come

    August 22, 2022 // 3 Comments »

    It was sad to see the glee with which pro-choice advocates welcomed the news the ten-year-old rape victim was real. Surprisingly she lacks a nom de guerre yet, something like Victim Zero, Baby Doe or Child Jane. She went from victim to martyr to symbol within a news cycle or two. The story just received new life as Indiana has voted to ban most abortions.

    We know now an illegal alien who should never have been in the United States (his status never to be talked about again of course as outside the narrative) twice raped the ten-year-old. He had been cohabitating with the child’s mother, pregnant with his child, who defended him (never to be talked about again of course as outside the narrative) as innocent even after an alleged confession. The child ended up at a local Columbus, Ohio physician right around the time the Supreme Court overthrew Roe. That’s when the exploitation of the child really began.

    The local doctor never challenged Ohio’s “health of the mother” abortion exception, choosing instead to pass the case to an Indiana colleague whose first duty was not do no harm but report to the media. It is clear alerting the media that the Perfect Case had arrived by stork on her doorstep was a priority. Never mind privacy (the core of Roe v. Wade, ironically) never mind outing the victim would eventually lead to exposing her identity as the press went about their ghoulish work, what was important was to call attention to Ohio’s strict six-weeks-heartbeat-limit on abortions (the initial physician near-magically predicted the victim was six week and three days pregnant) just as Ohio codified its post-Roe laws, and draw attention to the issues of cross-state border procedures.

    The victim became a political football kicked back and forth. No coincidence this case broke into the public eye just as Indiana lawmakers were poised to further restrict or ban abortion. The Indiana General Assembly convened in a special session July 25 to discuss restrictions, voting to ban most abortions.

    Alongside the obvious question of why no one challenged Ohio’s “health of the mother” exception (a ten year old body would never be able to carry a baby to term safely) was the way the victim was used as an almost literary device to conjure up other post-Roe horrors. After Joe Biden mentioned the then-unconfirmed case in a speech, calls rang out for him to declare a public health emergency over abortion, a formal federal designation like a state of disaster than frees up additional funding as well as — more importantly — making headlines.

    Even after Ohio’s Republican Attorney General said the child victim would have been eligible for an abortion to save her health, WaPo argued maybe she would not have been, unwilling to let a good horror story pass and allow Ohio to appear properly concerned about just the type of case its law was written for. Baby Jane would be an example, the progressives said, but not that kind of example. A bad one, you know, one showing evil not compassion. Confirming the theory, the New York Times stated the case was a “predictable result of an abortion ban” and devoted a full article to a victory lap scolding conservative media who initially doubted the veracity of Baby Jane’s case, concluding crudely “surely right-wingers, who love to accuse their enemies of pedophilia, understand that children are raped in America.”

    Not discussed: just one percent of abortions are the result of rape, and less than half a percent of incest. Another survey suggests the actual numbers were 0.3 percent in cases of rape, and 0.03 percent in cases of incest. Even with underreporting, exceptions truly are just that, though you would not know it given the media surrounding the current case. The proof is the 99:1 ratio of stories about the abortion, not the rape, in Baby Jane’s case. And ectopic pregnancies, which account for between one and two percent of pregnancies and are never viable, are legally abortable in all states. Meanwhile, despite the noise about extending abortion limits, nearly half of abortions happen in the first six weeks of pregnancy, and nearly all in the first trimester. How much, really, changes post-Roe?

    But as is required these days tragedy must morph into absurdity, and the most progressive commentators see the 10-year-old as a perfect excuse to warn soon crossing a state border for abortion services was likely to become illegal. Apart from the Constitution’s clear and unambiguous support for interstate commerce and movement, the House recently passing legislation affirming interstate travel for abortion, and no state has any such law on its books. Of course no one from Ohio is arrested for gambling coming home from Vegas, either. Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred.

    There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion pre-Roe. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.” Nonetheless, the fear mongering persists.

    One 2022 commentator wrote “this whole notion of preventing interstate travel for abortions idea is complete lunacy. How about Amtrak? Or airports? Before the train or plane leaves a red state….what? A bunch of state troopers get on board and yell “PAPERS, PLEASE,” and then look for baby bumps?” A Blue Check on Twitter added “Or they could just say women can’t travel at all…” Others chimed in “I drove from Ohio to Illinois alone yesterday. A trip I’ve made 100s of times. But yesterday I thought “I’m afraid I wont always be able to do this. What if the police stop me thinking I’m looking for an abortion since they’re illegal in my state?” and “Belly fat might get you questioned? Detained? Tested? Sniffed?”

    Why stop there when it is possible to build whole arguments out of quotes from a work of fiction (or is it…?) Handmaidens Tale. A near decade after Snowden, someone is shocked to just realize “Retailers are already able to identify pregnant women by what they look at on line. Once a woman is flagged as pregnant, her whereabouts can be tracked by Google. If she starts heading for the state line the highway patrol can be notified.” But Team Progressive can fight back. One Hero of the Resistance writes “as a post menopausal woman, I can search for pregnancy related stuff every day and muddy up their data. Men can do it too.”

    Don’t laugh. The Guardian reports “Many American women in recent days have deleted period tracking apps from their cellphones, amid fears the data collected by the apps could be used against them in future criminal cases in states where abortion has become illegal.” Planned Parenthood created a period tracker which only stores data locally, on the phone, where it is easily deleted, as an impediment to law enforcement seeking out persons of the future who can get pregnant.

    The pattern is clear, that fear and paranoia will drive the discussion, not rational thinking. This could not come at a worse time for pro-choice advocates, just as many states are beginning the debate over their post-Roe abortion laws. Rather than base changes on carefully thought-out arguments, the arguments will be crazy all-or-nothing screeds, science fiction fears, and exploitive cases dressed up as the new norm for others to grimace sadly at and dismiss. Fears about period trackers and state lines have no more credibility than demonstrators massing around Justices’ homes in hopes of harassing them into compliance with the mob, or AOC on TV screaming people are going to die, or those collecting a million signatures thinking it will cause Justice Thomas to be impeached.

     

     

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Five Stages of Mar-a-Lago Grief

    August 20, 2022 // 10 Comments »

    Another week, another silver bullet missing Donald Trump. The endless roll of waves of crimes, accusations, near-indictments, and just bad words slandered away which we had all endured for the past four years happened again. We went from Trump has classified material under lock and key at Mar-a-Lago to a group of people paying $1800 to fly a banner reading “ha ha ha ha” over the resort to mock a Trump staying 3000 miles away in New York. On cue the regulars on MSNBC and CNN brought out their running dog former CIA and FBI officers to tell us tick tock, the walls are closing in, this time it will stick, Trump is going down, he’ll be in jail before he runs again for office. If we can’t stop him with the electoral system we’ll use the judicial system. This. Is. The. One.

    Except it isn’t. The offense itself — some variant of mishandling of official materials — is muddled from the git-go by the former president’s former ability to declassify anything, a power he claimed he already used before he left the White House to magically spay the documents. An Espionage Act prosecution is a non-starter, requiring as it does the showing of intent to harm the United States. It seems the documents, however classified and/or sensitive they are, were securely stored at Mar-a-Lago and the risk of exposure was very minimal. The FBI nonetheless threw the kitchen sink at Benedict Donald with a full-on raid, to enforce the Presidential Records Act, a law that actually has no prescribed penalty associated with it. Given the presumed age of some of the documents and non-impact, it was sort of like not returning a semi-important library book.

    The story will drag on a while, buoyed by leaks supposedly telling us politically salacious details about the secret documents (the single handwritten doc stored by Trump will likely take on lore akin to the grassy knoll for Trump conspiracists) but in reality “Mar-a-Lago-gate” is fast on its way to closing, joining Russiagate, Ukrainegate, Stormygate, January6gate, and all the others off to the side of history. It is close enough to being a dead story that it’s worth helping our progressive friends through the five stages of grief — Denial, Anger, Bargaining, Depression, Acceptance — that accompany something once so important passing. RIP.

    Denial:  Are we really doing this all again? There is no way tRump is not guilty of something. There is no way way the Orange Man can finish his term without jail time. Mueller laid out a roadmap to post-term prosecution. Wait until we see his taxes. January 6 had to have been sedition or treason or truancy. It could not have been sort of a violent but potently nothing, amiright? OK, fine, now that he is no longer protected as president and is a regular citizen again the gloves are off and he is going to jail. There is no way Trump is going to run again unless he campaigns from prison. You gonna ignore (checks notes for name) Cassidy Hutchison? Whatta you mean Georgia still hasn’t filed an indictment for election fraud, it’s been how many years? Wasn’t his grabbing the wheel from the Secret Service driver on J6 enough? What about that we call it J6 now? We were so close with the Emoluments Clause, and then the DC hotel business. The walls have to be closing in. Dig up Ivana, her coffin is probably full of purloined documents! Repeat after me: “I know we’ve said it many times before, but this time…”

    Anger: Mueller time should have worked but he wimped out! I paid $29.95 on eBay for a Mueller bobble head doll and you’re telling me the guy had nothing at all, not a pair of twos to play? Sanctimony (“Nobody is above the law, you know”) runs inverse to memory (“But her emails!”) in the poli-grieving process. If you’re gonna take a shot at the king you better not miss. And Garland has been putting in a lot of range time. I Googled “RICO” and per Wikipedia this has to work unless the DOJ is in on it, too.

    Bargaining: So Dotard had top secret documents, probably was going to sell them to the Russkies, so he’s guilty under the Espionage Act which carries the maximum penalty of death, like the Rosenberg’s or someone else, this is it, the silver bullet! What the hell is wrong, there were hundreds of peeResident Brown Shirts at the Capitol, can’t you idiots get one of them to flip and accuse Trump? What about the Alfa Bank and the Yota smartphones, the hotel deal, what about the pee tape for gosh sakes! You made us believe there was a pee tape and this whole Trump thing was going to be over before it ever really began. Where is the pee tape, we were promised a pee tape. And a hero, we want a hero and all you gave us was Robert Mueller, Michael Avenatti, Michael Cohen, Adam Schiff, Dr. Fauci (optional), Liz Cheney, and now Merrick “Milquetoast” Garland. Somebody do something to fix all this and we promise never to use the expressions “Period. Full Stop. End of story” or “Let that sink in” or “I’ll just leave this here” or “methinks” again on Twitter.

    Depression: Yea, that Joe Biden, what a guy, woo hoo. Yes, I guess we all lost our minds again, this time over what is probably “presidential memorabilia,” stuff that would have ended up anyway in Trump’s presidential library on “indefinite loan from the National Archives” if Trump had just gone through channels like Obama and Bush.

    Acceptance: OK, well, Russiagate didn’t work. Trump doing something naughty with the Ukraine didn’t end in an impeachment conviction. Michael Avenatti is in jail. The deal with Stormy Daniels and the other Barbies might have been sleazy but it was not criminal. And his 700 sexual assaults! So, alright, nobody could make a  indictment out of all that fuss over security clearances for Don and Eric. The Southern District of New York could not find something to charge Trumpkins with vis-vis property taxes or valuation stuff no one really understood, and the various walls never closed in. Maybe Trump will be forced to release his taxes if he runs again, there’s a bright side, gotta be something in those taxes, right? I mean, who takes the Fifth except guilty people, the Orange Man himself said that when he was talking about Hillary but it applies to him and the Trump crime family.

    The family, that’s right, that’s his Achilles Heel! Ivanka had some sort of sweetheart deal with China or something even before Hunter Biden to trademark her fashion things, and Jared sold NYC property too cheaply, and Don Jr., had his hand in some golf course thing I think I remember, in Sweden or maybe Scotland. And didn’t Trump flush secret documents down the White House pooper, that was wrong, right? There is still time for Trump’s accountant to flip and tell us all, got to be some indictable stuff in those books, eh? Or maybe Michael Cohen, he has a another book coming out, that will likely cement his role as Fredo and send tRump to the slammer. I hope his cellmate is ironically named Tiny. And Merrick Garland is not really done with the documents, is he? I mean, he hasn’t indicted Trump for anything over them yet — yet — but it could be just nine dimensional chess with Garland waiting for the exact right moment to bring in something from the Articles of Confederation or the Stamp Act showing Trump is guilty. He’s gotta be guilty of something. Right? We still believe.

    Maybe next time.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Classified Right Outta Mar-a-Lago

    August 17, 2022 // 9 Comments »

    What is a classified document? Trump seems to have lots of them, and the FBI sure wants them back.

    In the wake of my first book critical of the State Department’s Iraq Reconstruction program, Diplomatic Security began a deep dive into my life in an attempt to find something over which to prosecute me. A colleague inadvertently passed on a bit of personnel gossip via his official email to my Yahoo! account, and the chase was on.

    Diplomatic Security claimed I was in possession of “classified” material at home and referred my case to the Justice Department. The email in question was simply labeled “For Official Use Only,” (FOUO) a standard tag then automatically applied to all email sent by State in the unclassified system (a wholly separate email system existed for true classified — Confidential, Secret, Top Secret — messages.) FOUO was a non-standard “classification” made up by State and was being used to pin me against the wall and force me to resign under threat of prosecution. Luckily someone familiar with classification law at the Department of Justice prevailed, and I was not charged. The so-called secret in the email, that a mutual friend thought someone’s boss was a jerk, stays safe with me to this day.

    The classification system for national security documents, while designed to identify documents to protect from people without the proper clearances, including foreign intelligence officers, has been often misused over the decades. It is very easy to slap a classified label on a document — persons using the State Department’s classified email system must classify what they write as either Confidential, Secret or Top Secret. If the document does not fit those categories it does not belong on the “class system” to begin with, though this is often misused as well. State workers who use the class system almost exclusively for their work might pass on a lunch invitation via the same system to avoid jumping from computer to computer.

    Many documents correctly classified on creation, such as a military convoy movement time, lose their secretness within a few hours after everyone sees the convoy rumbling down the road. The classified bit was knowing in advance the convoy would depart a certain place at a certain time and after that passed, meh. Lastly, documents are often over classified for ego purposes, the sender feeling more important if his pet project is labeled Secret as opposed to FOUO or simply left unclassified. That all said, some documents deserve their classification and more, particularly those which reveal sources and methods, say the name of our agent deep inside Putin’s inner circle. Stuff like that is rarely ever even put into writing; if the president wants to know he is usually orally briefed.

    Classification can also be misused in other ways, say to “hide” a document from future Freedom of Information Act searches and delay its release. Important people like to think they do important things and rightly or wrongly most of what the president or the Secretary of State touches ends up classified at some level. Over classification thus plagues the government, slowing down the legitimate transfer of information.

    Except for the president, once classified it is very hard to unclassify or downgrade a document not subject to automatic declassification. Anyone can create a classified document by slapping the word Secret on it, but very few people can later take that document and change it to unclassified. The assumption is the original classifier was correct. The biggest exception of them all is the president himself, who holds the authority to change or declassify documents. This is not done willy-nilly; there is a process to follow which leaves a decision trail and usually includes some sort of consultation with the organization (State, CIA, DOD) which originated the document. The president cannot wave his hand over a storage unit of banker’s boxes and declassify the lot. Also, the president can unilaterally authorize officials from a foreign government to receive classified national security information. It is a very broad mandate, stemming from the fact that the entire classification system is based on Executive Orders more than law. Of course there are also the questions of  “legal” and “sensible” that apply to all presidential actions but the latter is up to the voters, not the FBI, to decide.

    Classified documents are supposed to be stored in classified containers (safes) or spaces (up to bank-like vaults.) All these rules about classified documents are supposedly taught to you as part of being issued a security clearance, though in practice people like the president or SecState have staffers who take care of producing, storing, and disposing of classified. If a breach occurs, the first question is not nyah nyah nyah you got caught! but what level of document was exposed and how was it exposed. Did you inadvertently leave it out on your desk instead of putting it into a safe inside the guarded embassy during lunch, or did you intentionally publish it to your Instagram? Was it an out-of-date means-little document or a current list of human assets in Ukraine? How much damage was done and what was the intent? Because there’s classified, and then there’s classified, bubby. Those maximum penalties bandied about by the media would typically require a significant exposure with intent to do harm.

    People inside government and the military commit security violations all the time, almost all minor and inadvertent. Punishments can be as mild as being told not to do it again, up to loss of pay and forced time off to actual loss of job and even prison. But you gotta work at it to go much further than your own boss and the security team.

    We don’t know exactly what documents were found at Mar-a-Lago, and we don’t know what classification they individually held or how they were stored. We do know Trump as president had the authority to declassify any of them, something which will figure into any defense he has to make. We also know the type of document and what it contains matter a lot in any penalty which may follow the FBI raid. We also know what Trump did with the documents is critical. If they never left a dark, locked basement storage area at Mar-a-Lago and were likely not reviewed by anyone since leaving the White House, punishment will be unlikely unless politics interferes.

    Since millions of government employees have at one point handled and mishandled classified, there is plenty of precedent out there on action and punishment. For example, one of the most well-known cases is Sandy Berger, former national security adviser to President Bill Clinton, who stole classified documents from a secure reading room at the National Archives. He pleaded guilty in 2005 to a misdemeanor charge of unauthorized removal and retention of classified material (via the Espionage Act, the same charge the media says Trump may face) and was sentenced to probation, community service, and a fine. General David Petraeus received only probation for intentionally sending highly classified military documents via commercial email to his lover/biographer.

    Former Secretary of State Hillary Clinton maintained an unsecured private email server which processed classified material on a daily basis. 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 “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Yet Clinton was not prosecuted nor penalized. Any prosecution of Trump would need to address that precedent.

    All this needs to be kept in mind when evaluating the FBI raid at Mar-a-Lago. The FBI, its reputation already in tatters post-Russiagate, might also have kept it in mind before deciding to stage another likely losing full-on assault against Trump.

     

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Hiroshima and Ukraine

    August 9, 2022 // 6 Comments »

    If you think the lies spilling out of Ukraine about casualties and atrocities are shocking, on the August 6, 77th anniversary, of the nuclear destruction of Hiroshima and death of some 140,000 non-combatants, meet the greatest lie of modern history. The only nation in history to employ a weapon of mass destruction on an epic scale, against an undefended civilian population, shrugs off the significance of an act of immorality.

    Beyond the destruction lies the myth of the atomic bombings, the post-war creation of a mass memory of things that did not happen. This myth has become the underpinning of American policy ever since, and carries forward the horrors of Hiroshima as generations of August 6’s pass.

    The myth, the one kneaded into public consciousness, is that the bombs were dropped out of grudging military necessity, to hasten the end of the war, to avoid a land invasion of Japan, maybe to give the Soviets a good pre-Cold War scare. Nasty work, but such is war. As a result, the attacks need not provoke anything akin to introspection or national reflection. The possibility, however remote, that the bombs were tools of revenge or malice, immoral acts, was defined away. They were merely necessary and because we won in the end, justified. That is the evolved myth, but it was not the way the atomic bombings were first presented to the American people.

    Harry Truman, in his 1945 announcement of the bomb, focused on vengeance, and on the new power to destroy at a button push – “We are now prepared to obliterate more rapidly and completely every productive enterprise the Japanese have above ground in any city,” said Truman. The plan put into play on August 6 — to force the Japanese government to surrender by making it watch mass casualties of innocents — speaks to a scale of cruelty previously unseen. It was fair; they’d started it after all, and they deserved the pain. Imagine that idea cut loose in Ukraine.

    The need to replace that justification to one of grudging military necessity, a tool for saving lives, grew out of John Hersey’s account of the human suffering in Hiroshima, first published in 1946 in the New Yorker. Owing to wartime censorship, Americans knew little of the ground truth of atomic war, and Hersey’s piece was shocking enough to the public that it required a formal response. Americans’ imagined belief that they’re a decent people needed to be reconciled with the indecency of what had been done. With the Cold War getting underway, and with American leadership fully expecting to obliterate a few Russian cities in the near future, some nuclear philosophical groundwork needed to be laid.

    And so the idea the bombing of Hiroshima was a “necessity” appeared in a 1947 article, signed by former Secretary of War Henry Stimson, though actually drafted by McGeorge Bundy (later an architect of the Vietnam War) and James Conant (a scientist who helped build the original bomb). Dr. Conant described the article’s purpose as countering Hersey’s account at the beginning of the Cold War as “You have to get the past straight before you do much to prepare people for the future.”

    The Stimson article was the moment of formal creation of the Hiroshima myth. A historically challengeable argument was recast as unquestionable — drop the bombs or kill off tens of thousands, or maybe it would be millions (the U.S. regularly revised casualty estimates upwards), of American boys in a land invasion of Japan. It became gospel that the Japanese would never have surrendered, though of course surrender was in fact exactly what happened. Nonetheless, such lies were created to buttress a national belief that no moral wrong was committed, and thus there was no need for introspection by the United States.

    No later opportunity to bypass reflection was missed. American presidents from Truman to Bush chose not to visit Hiroshima. The 50th anniversary of the bombing saw a moderately reflective planned exhibit at the Smithsonian turned into a patriotic orgy that only reinforced the “we had no choice” narrative. When Barack Obama became the first sitting president to visit Hiroshima in 2016, his spokespeople went out of their way to make it clear he would be looking only forward with ally Japan, the mushroom cloud safely out of sight.

    American foreign policy thus proceeded under a grim calculus that parses acts of violence to conclude some are morally justified simply based on who pulls the trigger, with much of the history of the next 77 years a series of immoral acts allegedly servicing, albeit destructively and imperfectly, the moral imperative of saving lives by killing. America’s decisions on war, torture, rendition, and indefinite detention could be explained in character as the distasteful but necessary actions of fundamentally good people against fundamentally evil ones. Hiroshima set in motion a sweeping, national generalization that if we do it, it is right.

    We are, in fact, able to think we are practically doing the people of Afghanistan, Iraq, Syria, Yemen, Libya, Somalia… a favor by killing some of them, as we believe we did for tens of thousands of Japanese that might have been lost in a land invasion of their home islands had Hiroshima not be killed for their prospective sins. There is little discussion because debate is largely unnecessary; the myth of Hiroshima says expediency wipes away concerns over morality. And with that neatly tucked away in our conscience, all that is left is pondering where to righteously strike next. Donbas perhaps?

    America’s deliberate targeting of civilians, and its post-facto justifications, are clearly not unique, either in World War II, or in the wars before or since. Other nations, including Japan itself, added their own horror to the books, without remorse. But history’s only use of nuclear weapons holds a significant place in infamy, especially on this August 6. America’s lack of introspection over one of the single most destructive days in the history of human warfare continues, with 21st century consequences.

     

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Marbury v. Madison v. Joe Biden v. Abortion

    August 6, 2022 // 1 Comment »

    Joe Biden doesn’t have the the guts to do what people are suggesting he do, be the first president to stare down a Supreme Court ruling and refuse to abide by it. It wouldn’t matter anyway.

    Abortion in American should never have been allowed to turn into the judicial and moral circus that it is here and nowhere else on earth. Women even under Roe faced 50 different sets of rules and laws, abortion clinics tried to hide what they did, religious child help centers tried to pretend abortion was an option they offered, and the scene was full of protesters and clinic escorts and dozens of other things which separated a woman from her doctor and possibly her clergy in a regulated environment in which to make a very difficult decision. But that was the world we created out of professed concern for women and for the unborn. It was a system which said the fight would never really end, just change as the Supreme Court changed and saw things differently from 1972 to Roe and Doe in 1973 to Dobbs in 2022 to…

    The clarity of Dobbs is unfair to the mess which followed: the Court was very clear, abortion regulation was to be decided on the state level, not the quasi-federal level of Roe and Doe. You know how that works; New York allows third trimester abortions when necessary and Ohio prohibits any abortion past fetal heartbeat, even in cases of rape or incest, and so forth. Dobbs was not intentioned to set off a round of how can we detour around what the Court really said and give abortions in National Parks.

    The biggest change since Roe is chemical abortions. Already pre-Dobbs over 50 percent of all abortions were done chemically, with the mother taking one or two medicines to provoke a miscarriage. While typically done under professional supervision (miscarriages can result in dangerous bleeding, and incomplete miscarriages can be fatal to the mother) a single pill taken by a woman on her own will in most cases provoke a safe miscarriage. This is what will replace the horrible “coat hanger” abortions of the pre-Roe days according to many advocates.

    If America is good at anything, it is smuggling drugs across state lines, and so certainly “abortion pills” will be readily available to many woman in non-abortion states, albeit illegally the same way other drugs smuggled across borders are illegal and occasionally even prosecuted. In the crudest of practical terms, it is unclear how many women will not have access to an abortion post-Dobbs. However, Biden is being pushed to do something more. He is being pressed to refuse to abide by the Supreme Court.

    Joe Biden’s White House is considering executive action to make abortion pills accessible nationwide despite state laws restricting the drug. The administration may seek to use executive power granted under the Public Readiness and Emergency Preparedness (PREP) Act to declare a public health emergency to allow abortion providers and pharmacists to distribute chemical abortion pills, even in states where abortion is heavily restricted.

    Senators Cory Booker and Elizabeth Warren, along with 16 of their colleagues, urged Biden to take such action in a July 13 letter. “While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back,” the letter said. “We urge you to declare national and public health emergencies over Americans’ access to reproductive care.” Technically, powers available under the PREP Act would shield doctors, pharmacies and others from liability for providing abortion pills to people across the country. The exact same law was just used with broad popular support to shield manufacturers of Covid drugs and treatments from legal liability in order to get vaccines deployed expeditiously. The use of such law to expand presidential power past a decision by the Supreme Court to the exact contrary, however, would be devastatingly controversial.

    If Biden were to take such a decision, it would put him in immediate legal conflict with those states that choose to regulate chemical abortions and more importantly, the Supreme Court itself, which just ruled this was a states’ right to do, not a Federal one. No president has ever previously directly denied the Supreme Court. Nixon resigned rather than follow or resist the Court’s order to hand over incriminating evidence during Watergate. While many worried Trump would refuse to obey the Court in this situation or that, in the end the Cassandras were wrong, again, and the fight never happened.

    The first draft of America circa 1789 or so did not grant the Supreme Court this power of review. Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court challenge to apply the principle of “judicial review” — the power of federal courts to void acts of Congress in conflict with the Constitution and declare other government actions “unconstitutional.” Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.

    The actual facts surrounding Marbury are irrelevant to the abortion discussion. Relevant, however, is even though the instant case found Secretary of State James Madison had acted unconstitutionally, the underlying matter was resolved without a head-to-head conflict between the executive and judicial and the doctrine stood. With Marbury a new tool in governance, there exist only three ways to fight back against a Supreme Court decision: Congress can pass a new law (in this case legalizing abortion across the states), the Constitution itself can be amended or the Court can overturn itself, as it just did with Dobbs.

    That means should Biden try for option four, executive action, his quest will be Quixotic. Sitting in some Texas government official’s outbox is no doubt a completed challenge to any such action ready to file, meaning a lower court would almost immediately stay Biden as things got sorted out (that is what happened to some of Trump’s early immigration legislation, the so-called Muslim Ban, giving the false impression of early victory to progressives angrily hanging around airports in that instance.) The challenge to Biden would quickly find its way back to the Supreme Court, which would correctly uphold itself. The same result is likely should Biden try some sort of clever end-around, such as abortion clinics on Federal land. The use of PREP would also invite a legal challenge over the point of public health emergencies, and post-Covid utterly politicize what’s left of public faith in public health.

    As an aside, despite the noise, there is no likely path toward prohibiting interstate travel for abortions, say a pregnant woman driving from Texas to New Jersey and thus nothing there for Biden to worry over. Crossing a state border for abortion services is not likely to become illegal. Apart from the Constitution’s unambiguous support for interstate commerce, the House recently passed legislation affirming interstate travel for abortion, and no state has any opposing law on its books. And of course no one from Ohio is arrested for gambling coming home from Vegas, either.

    Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred. There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.”

    That a gesture like declaring a PREP emergency accomplishes nothing practical does not mean it would not appear politically attractive to Democrats as they head into what promises to be a very rough midterm election. Biden, however, does not seem like the kind of guy who wants to go down in history as the only president to thumb his nose at the nation’s highest court, and all that for no actual gain. Biden knows any action he could take would simply be struck down by the very court that put him in this place. It is called “checks and balances,” Joe, look it up, and it works well in these cases.

     

     

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Negotiations Continue on Guns and Abortions

    August 1, 2022 // 1 Comment »

    We don’t really negotiate much in the U.S. and so we’re bad at it. Even when we are forced to “haggle,” we employ rituals, like the salesperson at a used car dealership “checking with his manager” on our offers, or the dance between real estate agents that goes along with buying a house. Car offers come back from the mysterious manager as impossible, and offers on a house are just refused, no chance to talk because two layers of agents stand in the way. That’s why we cannot find any common ground on abortion and gun control. We do not know how to be reasonable.

    The American style of negotiating is to demand everything and settle for nothing less. So we’re taught to make our first offer the final offer (it works a little different when the issue is simply money, then we ask for an outrageous amount and “bargain down” after the other side offers an equally outrageous small amount. Starting anywhere near your actual price is considered a sign of weakness.) We don’t like gray areas and we don’t like to feel we’ve lost out on something. So being asked to support something on its face reasonable like allowing two people in love living together in a home they co-own to marry means buying into a whole LGBTQIA2+ agenda that somehow includes forcing kids to listen to drag queens read stories aloud about sexually ambitious caterpillars and their same-sex tadpole pals. Seeking restrictions on abortion ends up cruelly forcing rape and incest victims to carry to term.

    We do the same thing in broader swathes, when reporters who misuse pronouns or support the Harry Potter author are not just sidelined or argued with, but canceled, deleted, defunded, disenfranchised, literally thrown down the memory hole to just take their opinion and go away, leaving only your opinion standing. The presumption is even on the most ideological of arguments there is a clear right and wrong only. We have evolved speech to match this mindset, things like “my way or the highway,” “all or nothing,” and “in or out.”

    Back in the day when I worked for the State Department every summer embassies abroad had to ask for funding for summer hires to help us catch up on clerical work. There was only so much money around and not everyone could get all they wanted. At first I did what was standard, ask for ten people knowing I only needed five, with all sorts of silly justifications I had to eventually walk back. One year I played it different. I wrote in detail what five people would do, what would not get done with only four, and why six would be a waste of personnel. That year and the ones that followed were the easiest ever; Washington and I jumped right to the meat of the problem and nobody was forced to belittle the other on the road to negotiating a compromise.

    That’s what did not happen recently in overturning Roe v. Wade. Though Roe was poor jurisprudence and Constitutionally hilarious, it was the product of negotiation. First trimester abortions were basically allowed, second term were generally allowed, and third was more or less up to the states.  Roe produced a workable solution to a very complex problem, uniquely American as it combined religious, moral, and Red and Blue thought into what was often falsely presented as a binary decision — abortion was legal or not. The compromises in Roe were far from perfect or widely accepted, simply the output of a beleaguered Court willing to talk about something the rest of America would not.

    The problem was Roe’s supporters and opponents almost from day one set about trying to take a compromise solution and make it an absolute. States latched on to their freedom to dictate third semester rules by gleefully promoting gory end term abortions where a viable baby was aborted. There can be good medical reasons to consider this, but the issue was not presented that way, it was “a woman’s right.” Same on the other side. Clever legal tricks were deployed so that, sure, you can get a first trimester abortion, only not where clinic regulations and hospital affiliations were manipulated to make it near impossible to meet the standards. As was intended. No one was going to sit back and allow compromise to stand.

    The Court itself is not immune; in combination with the gutting of Roe (another all or nothing type decision) Judge Clarence Thomas opened the door to ending Federal law allowing for same sex marriage. If you can’t have all the rights you should have none of them he seems to be saying to the Left. Specifically, Thomas was threatening Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry. How again are those directly related to the hyper-complex issue of abortion?

    More importantly, has anything changed in society that requires a new look, something gone amiss? No, the only thing that has changed is a different side now holds a majority on the Court and wants to run with it. They have no more interest in compromise than the demonstrators massing around Justices’ homes in hopes of harassing them into compliance with the mob, or AOC on TV screaming people are going to die.

    Same for gun control, the other recent Supreme Court decision. In New York State Rifle v. Bruen, the Supreme Court again swung widely. The existing law, basically saying the right to bear arms in the 2A did not automatically mean a right to openly carry arms in public, had been misused by anti-gun states. In Hawaii, for example, every single open carry permit had to be approved personally by the chief of police. Multiple chiefs over a period of recent years found no reason to approve even a single permit and in the past 22 years there have been four open carry permits issued in Hawaii; all or nothing, as if somehow not one applicant in recent memory was capable of safely openly carrying a weapon. So the response from the now-conservative Supreme Court was to do away with provisions governing carrying a weapon. The counter-response from those states who are anti-gun, such as Hawaii, is to promise to jerry-rig their laws with outrageous training requirements or exorbitant fees to somehow get around the Court’s perceived free-for-all, and to cite recent mass shootings (which had nothing to do with handguns or open carry laws) as fear-inducing excuses. Nobody sees any of the middle ground of reality.

    And that is why the Supreme Court’s rulings on abortion and gun carry law resolve nothing. In the extreme progressives will simply wait it out until it is 1973 again, and the Court will have turned over to a more liberal group of jurists who will reinstate black to replace white or vice-versa. The real answer on abortion, a rough and robust debate in Congress followed by a set of compromises, or an equally rough and robust debate at the state level, will never come. Americans are not very good at negotiating and so usually pay more at the car dealer than they should. The same problems plagues us on much more serious issues regarding abortion and the Second Amendment and that ends up costing us a lot more.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    America is Full of Snot

    July 31, 2022 // 3 Comments »

    I’m angry. I want to write that parts of American life are increasingly full of s**t, but I can’t write that word here so I’ll have to describe it. You’ll figure it out.

    Dr. Jill Biden is full of s**t because she thinks she can make Hispanic people think she cares about them, you know, diversity stuff For ‘da Votes. At a Latinx IncluXion (if she can use the X, I can use the **) luncheon in San Antonio, she began by mispronouncing bodega as “bogida” (don’t check the altered White House transcript because transcripts now are full of s**t, better to see the video) and then compared members of the Hispanic community to the breakfast tacos only white people eat at Taco Bell. She even giggled a bit when laughed at, thinking she was hitting it with an audience of dumb mules.

    Speaking of bodegas, in New York City a Hispanic bodega worker was charged with murder and spent six days on Riker’s Island for defending himself against an attack. A black guy and his girlfriend refused to pay for their purchase and the guy attacked the worker. The worker had a knife hidden because this wasn’t his first rodeo (emphasis on the “e” because that’s Spanish I guess) and he’d been robbed before. The video starts with the bodega clerk, Jose Alba, selling two patrons loosies, individual cigarettes’ from a pack because the patron cannot afford to buy a whole pack at once, a sign of a classy joint. The girlfriend at the window says she can’t pay after her EBT card is declined, and when Alba says something like “You have to pay” the boyfriend comes around the counter and shoves Alba, age 61, to the ground. The boyfriend knows about fighting; he’s an ex-con out on parole for assault on a cop. The boyfriend has a gang symbol, a white do-rag, hanging out of his back left pocket, something Alba being of the neighborhood, would recognize as bad news. A fight ensues and Alba stabs his assailant. Oh yeah, the girlfriend also had a knife of her own and joined in, two-on-one.

    The full of s**t outcome? Manhattan’s recently-installed District Attorney Alvin Bragg helped usher in more cases being continued without bail, stating that bail was unfair to people of color which usually includes Hispanic people like Alba. Instead, Alba was charged with murder for defending himself and pounded with a $250,000 bond because the DA is full of s**t. Alba couldn’t pay it, so went to Riker’s until the district attorney’s office lowered the racist bail to $50,000 amid the growing outrage.

    While NYC’s mayor vaguely stood behind his DA, one Republican gubernatorial nominee slammed Bragg’s decision to charge Alba, tweeting: “My first Day 1 action as Governor next January will be to fire Manhattan DA Alvin Bragg” because not everyone is full of s**t all the time.

    But DA Alvin Bragg is. He got his job in part as part of the Black Lives Matter aftermath, pledging to cut back on cops harming young black men like the guy who assaulted Jose Alba. The problem is violence toward blacks has not decreased. Bragg’s boss, Mayor Eric Adams, slammed Black Lives Matter and anti-police activists after a recent night of bloodshed across the city that left more than a dozen people shot. “Where are all those who stated ‘black lives matter’?” Adams asked. “The victims were all black.” Three people killed and 13 others wounded in a series of shootings. Zero were shot by police officers. “The lives of these black children that are dying every night matter,” Adams said. “We can’t be hypocrites” he intoned while hypocritically full of s**t.

    While Alba appears to be Hispanic, most of New York’s bodegas are operated by Yemeni’s, most recent immigrants and/or refugees from the Saudi-Yemen-U.S.-Iran war because American foreign policy is often full of s**t. Joe Biden, who as a candidate promised to make Saudi Arabia an “international pariah” over the murder of WaPo journalist Jamal Khashoggi, just finished begging the Saudis to produce more oil and thus perhaps lower gas prices in America, which Biden claims are high because of Vladimir Putin, a statement completely full of s**t like Bruce Springsteen in the “Dancing in the Dark” video level full of s**t.

    Biden is by no means the first American president to struggle with the fact that American Saudi policy is full of s**t. George W. Bush enlisted Saudi Arabia as an ally in the War on Terror even though 15 of the 19 9/11 hijackers came from Saudi Arabia, ground zero for the Wahhabism which also helped create the conditions for the attacks. Barack Obama gleefully supported the Saudi-led war in Yemen to avoid a rupture in the relationship, a decision no one publicly regretted even as the war devolved into a humanitarian catastrophe. Donald Trump also embraced the kingdom in ways Biden would recognize. They’re all full of s**t.

    Of course Biden’s policy of making war by proxy in Ukraine is based in large part on sanctions on Russia which are full of s**t. Sanctions were going to win the battle, forcing Russia to withdraw at the risk of her economy’s collapse, perhaps along with Putin’s own regime. The problem is that not only has that not happened, but sanctions have actually aided Russia. Though Russia’s energy exports fell by volume in reaction to American sanctions, surging prices driven by supply shortages have more than canceled out the sanctions’ effects. Russia’s export prices have been on average around 60 percent higher than last year, driven by simple supply and demand. The E.U. reduced its direct imports of Russian crude oil by 18 percent, but thanks to Russian re-exporters India and the United Arab Emirates, that has led to no net change in Russia’s overall oil-export volumes.

    China, too, has helped make up for the E.U. shortfall as the largest single buyer of Russian energy. Japan holds that title for unsanctioned Russian coal imports. Even the U.S. has helped out, buying unsanctioned, highly refined oil products from the Netherlands and India that were at least in part made from Russia crude. Maybe it’s time to seize another mega yacht to show Putin who is boss, because that gambit isn’t full of s**t is it? And it is not a sign the policy is full of s**t when Biden bargains away any remaining American self-respect in exchange for oil from the MidEast.

    A lot of Biden’s gas problems would go away if he allowed the U.S. to extract domestically the oil it needs, but Biden is steadfastly committed to going green. Except in Alaska, where he has shown his policy statements on energy to be full of s**t. Biden signaled in early July his new support for a controversial Alaska oil drill, issuing an environmental review that represents a key step toward starting the Willow project. Opponents say drilling would violate Biden’s pledge to rein in fossil fuels but that promise was always full of s**t anyway.

    Like I said, it would be easy to explain all this if I could just write America is full of s**t but bad words are off limits. Like anyone gives a damn about the potential harm coming from using words like snot when it is seemingly OK the world is full of it. And people who give birth are known as w*men.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    The Solution to Racism is… Separate But Equal?!?

    July 29, 2022 // 5 Comments »

    Schools now have affinity groups, quasi-social/political gatherings which are separated by among other things, race. You have to be black to walk in to some of them. Seems like there’s a history to this.

    “Separate but equal” refers to the Supreme Court 1896 decision in Plessy v. Ferguson claiming separate rail cars for whites and blacks were equal as required by the 14th Amendment. The upshot was constitutional sanction to laws known as Jim Crow (the name comes from a popular blackface stage character of the time) designed to achieve racial segregation by means of separate public facilities and services. This led to the era of the Green Book, which told blacks which hotels would allow them, as well as The Jewish Vacation Guide, which offered the same kind of advice but which we do not like to talk about much anymore. “Victims of Racism” is a pretty segregated category of its own it seems. The Court in Brown v. Board of Education ended separate but equal in that 1954 landmark civil rights case.

    But a new version of separate but equal seems to be back. The goal of many progressives now appears to be more segregated spaces and more segrated paths into academia and jobs. Progressives do not oppose segregation any more, they demand it.

    Jim Crow is being resurrected in schools, this time through euphemisms such as black spaces, affinity circles, affinity dialogue, and community building groups. One of my own kids was confronted as an undergrad with the problem of choosing which affinity group to join, as she fell into several different categories. Should she go with the Asians, or more broadly the POC group? Or female POC? Centennial Elementary School in Denver advertised a “Families of Color Playground Night.” The Wheeler School in Providence, Rhode Island, hosted a “meet and talk” with an actress from The Fresh Prince of Bel-Air  exclusively for its Students of Color affinity group. There are events that squeeze the rules tighter, such as black women feminists only. Of course February is Black History Month in America, though people of all hues are allowed to feel bad for all of February equally. We track obsessively the “First black…” to the point where the NYT felt compelled to single out such accomplishments last year as the first black to be recognized as a pro triathlete, the first black woman to win a gold medal in wrestling, and the first black to be interred at the Panthéon in Paris.

    In explaining the rationale for exclusionary events, one college newspaper wrote “Black students need events in which there are other black men and women as a means to help them feel comfortable…  a safe place for black students to be black without consequence,” which with a few words replaced would be exactly the garbage coming out of the worst cracker’s mouth in 1963 Birmingham, you know, something about how it ain’t right for the races to mix. The KKK are as in favor of more color-designated spaces as BLM.

    And famously we have been taught of all the people wrongly killed or injured by law enforcement, only one color of life matters. When Black Lives Matter as a slogan first began to populate social media, for about a week it was cool to say “All Lives Matter” to show you were an ally, that the cops could not get away with killing anyone yellow or white, either. “All lives” quickly morphed into a racist slogan, segregation mattering even in undeserved deaths.

    The return of separate but equal is most visible today in school admissions (and Supreme Court nominations.) Separate but equal has been reimagined as offering two tracks into select schools — one of merit, usually some sort of exam, and another that tests nothing but skin color, with standards rigged to matriculate the required percentage of blacks. That the latter often results in Asians (the on-again, off-again POC) being red lined out seems to be another thing we don’t like to talk about. The rules may be changing; the Supreme Court agreed to decide whether race-based admissions programs at Harvard and the University of North Carolina are lawful.

    The problems with separate but equal are many. A real danger is positioning unprepared students to fail. If you cannot show you know the subject material well enough to engage with it on a high level day one, and if you cannot show you have been willing to forego fun activities to put in the study hours, granting you a seat at some elite school via the back door will not solve anything. Imagine if the SEALS did away with their famous physical and mental tests and just picked commandos by lottery. That is what is happening through separate but equal employment programs, such as one at Morgan Stanley limited to blacks, browns, reds, and gays, or another at my own alma mater of sorts, the U.S. State Department, where I worked for 24 years

    State has had a diversity problem going back to the earliest days of the Republic, when it was said to qualify as a diplomat you needed to be Male, Pale, and Yale. To fix this two centuries later, the Department created two fellowships that have been used as vehicles to recruit people of “diverse backgrounds,” who worked out to be overwhelming black people. In place are the Thomas Pickering Fellowship (run by HBCU Howard University) and the Charles B. Rangel Fellowship. Both claim entrants take the same entrance exams as anyone else, but omit that they do so after two summer internships with the State Department, including time abroad, plus assigned mentors. Fellows are also identified as such to those administering the oral exam required of all prospective diplomats. Having administered the oral exam myself, I knew I would have to justify to my boss’ boss any move to fail a Fellow before being overruled by her anyway. The programs increased the number of unwhite diplomats, as they were intended to do as a separate but equal pathway.

    The problems came down the road, when black diplomats encountered the same promotion and evaluation system their white, green, and blue colleagues did (along with Hispanics and Asians, etc.) Diversity in the senior ranks of the State Department actually regressed over time. In 2008, black diplomats made up about 8.6 percent of the top ranks of the diplomatic corps. By 2020 only 2.8 percent of the same top ranks are black. The answer? It must be more racism (characterized diplomatically as “institutional barriers.”) Suggestions focused on offering blacks more fellowships to create a bigger pool, and creating special opportunities for blacks to snag better assignments (described as “promote diverse officers’ career development.”) That of course simply repeats the original sin of pushing less-prepared people upward to their point of failure. FYI: the State Department classifies most of its gender and race promotion results and does not generally release them to the public. However, data leaked to the NYT shows that only 80 black diplomats and specialists were promoted in the 2019 fiscal year, about one percent.

    Then there’s this: a former diplomat described her Rangel fellowship in 2010 as “more of a stigma than an honor” as white diplomats routinely assumed Fellows qualified for the real job only because of the fellowship. Some minorities at State feel compelled to share that they are not Pickering or Rangel Fellows to avoid the fall out over separate but equal. Can it be it is all just more racism all the way down?

    When I did not get into the State Department my first try, it never occurred to me the written test, which was mostly history, geography, and economics, was set up to block me because of how I looked instead of whether I knew enough about history, geography, and economics. After more education I passed essentially the same test. It never occurred to me some special channel should have been set up to advance me. It becomes kind of a mindset, almost a philosophy, that anything that doesn’t work out percentage wise must by definition be racism and can only be rectified by some kind of separate but equal track.

    Separate but equal in academia and employment, as well as in black spaces and all the rest, produces nothing more than cosmetic diversity. You want XX percent of students or diplomats to be black? Fine, we’ll gerrymander the system to produce that. But given the broader lack of societal progress from affirmative admissions and actions over some decades, it just might be easier to hire actors so the group photos look “right” and let decisions be less separate and more equal. Otherwise, what message are we sending to people of one color that their accomplishments have to be set aside so a person of another color can have their place, and what message are we sending to people of all colors the only way one group can succeed is with some special track? In the end aren’t those messages just a twisted version of what separate but equal originally meant, judgment based on race?

    At some point if we are committed to ending discrimination by race we need to end discrimination by race.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Wanna Be an American Idiot?

    July 25, 2022 // 3 Comments »

    American idiot and Green Day lead singer Billie Joe Armstrong said he is going to renounce his U.S. citizenship and move to England because he is so upset over the Supreme Court overturning landmark abortion case Roe v. Wade. The singer made the comments to a crowd at the band’s show in London, specifically “F*ck America, I’m f*cking renouncing my citizenship. I’m f*cking coming here.” He called the justices pr*cks and said “f*ck the Supreme Court of America.” Can he do that? Does it make any sense?

    As for making any sense, Armstrong should first check on what abortion laws look like in Great Britain. Assuming he understands the difference, Great Britain is composed of Scotland, Wales, England, and Northern Ireland. If the singer is headed toward the England, Scotland or Wales part, he’ll find most abortions limited to the second trimester, less than in seven U.S. states. In Northern Ireland, abortion is generally limited to first trimester, same as in 18 U.S. states. The case through which the Supreme Court overturned Roe, Dobbs v. Jackson, set the limit to 15 weeks, longer than Northern Ireland. So it is unclear how much moral ground Billie Joe will gain moving to the UK. He’ll need to watch out in Scotland, where clinics in Glasgow that offer reproductive health services are the focus of regular and long-running protests by anti-abortion activists, partly funded and supported by U.S. groups. You can run, Billie Joe, but you can’t hide.

    But can Billie Joe simply renounce his American citizenship and move to the U.K.? You can’t just renounce your citizenship, on stage or elsewhere. You can’t tear up your passport, burn the flag or write a manifesto. It’s done by appointment only. The American government must approve your renunciation of citizenship and can say no, no matter how loudly you say yes. Of course, there are forms to be filled out.

    To begin Billie Joe would need to make an appointment at the nearest American embassy or consulate. You can’t begin the renunciation process in America (sorry, purple haired radicals) but Billie Joe is already apparently in London. At the embassy Armstrong will fill out some forms. He can Google and complete, but not sign them, ahead of time if he wants one of his roadies to help: DS-4079, DS-4080, DS-4081, and DS-4082. Most of the requested information is pretty vanilla stuff, and is largely to make sure the singer understands what he is doing and the consequences of doing it.

    The reason for making sure of all that making sure stuff is two-fold. One, the State Department, who handles all this, has been sued by people in the past who claim they were tricked or mislead and did not know what they were doing, and want their citizenship back. The other reason is that barring certain highly-specific situations, renouncing citizenship is a one-way street. The U.S. government considers it a permanent, unrecoverable, irrevocable, decision. Billie Joe can’t come home should some future iteration of the Supremes restore Roe.

    At the embassy, one or more staff will fawn over Armstrong, then he’ll swear to and sign everything. At larger embassies, as in London, renunciations (for tax purposes) are frequent, regular parts of a day’s business, and are handled in most cases almost mechanically. The overall feeling most renunciants encounter is that of a bureaucrat more concerned with getting his paperwork in order than really caring about your life-altering decision. It is rare that the embassy official will actively try to dissuade you. There’s also a bunch of IRS stuff to do. Until it is over, you’re still an American, chappie.

    After your brief appointment at the embassy all the paperwork goes off to Washington, where your renunciation is approved or denied. The embassy can but is not required to write a memo regarding your case. Those memos, when written, usually argue against approval. In an extreme version, such a memo might say “Mr. Roberts appeared unorganized in thought, and was unable at times to focus on the documents in front of him. He referred often to a Swedish dog who was guiding his actions, and stated his goal in renunciation was to assume the Swedish throne.” It happens.

    No one at the embassy can approve or deny your application to renounce. That is done by someone you will never meet, located in Washington, DC. Without that approval, you remain an American citizen. Approval is formally made by issuing a DS-4083, called the CLN, Certificate of Loss of Nationality. Think of this document as an “un-birth certificate.” CLNs are processed slowly; it can several months or more for yours to be approved or denied. They are usually mailed to you. Oh, yes, one more thing. Billie Joe will have to pay a processing fee. As the world’s exceptional nation, the U.S. also has the highest fees in the world to renounce citizenship, a cool $2,350 per case, with no family discounts. By comparison, Canada charges it’s soon-to-be-former citizens only $76; for the Japanese and Irish it is free.

    If Billie Joe is denied his renunciation and forced to remain an American, it would typically be for his own good, to avoid him becoming stateless and thus deportable (to where?) from the U.K. Renunciation only means as of a certain moment Armstrong stops being an American citizen. It does not automatically make him a citizen of anywhere else (that’s naturalization, done country-by-country and Britain has its own complex set of laws on becoming one of them.) With his American passport gone, Armstrong has no passport. He is thus at that moment illegally in Britain and subject to deportation. Since he is not an American (or a Greek, or a Lithuanian, or a…) he has nowhere to go, a literal man without a country. In many cases the U.S. will deny renunciation to someone who does not already possess another country’s passport and citizenship. Billie Joe, sadly, could be forced to remain an American.

    This article is not legal advice for Billie Joe Armstrong or anyone else. Persons angry about Roe or otherwise considering renunciation should consult an attorney. Opinions expressed here are the author’s personal beliefs and do not represent those of any former employer.

    Related Articles:




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

    Posted in Democracy, Other Ideas

    Democracy is Doing OK

    // 1 Comment »

    It was the July 4 holiday which brought out the worst of it, those claiming our democracy is in danger, failing, or in some cases, failed. But the holiday was just an excuse for our daily dose of doom. The blight of articles followed a familiar path, starting with some event (January 6 was the clear leader) and explaining how it was the start of fascism, comparing it one of the few historical examples allowed quotable by progressives, usually something to do with the Reichstag, and then growing that image to say, Trump standing over Lady Liberty, that kinda grin on his face.

    Actually, our democracy is doing just fine. Things are working more or less exactly as they are supposed to.

    The runner up to January 6 as the last gasp of democracy is the recent set of Supreme Court decisions. Centerpiece is the overturning of Roe v. Wade, a sign of democratic failing because it fully strips women of their rights and shows the Court has no respect of precedent and could overturn anything. Usually this means the end of same-sex marriage as another Democratic emote-o-point, but in some screeds reaches as far as banning inter-racial marriages and contraception. Any day now!

    Slow down, kids. If you go too fast you’ll miss the scenery, in this case things working about normal. Perhaps it is necessary to remind our “democracy” is sort of like sharing crayons in kindergarten, sometimes you have to use the yucky brown one and let the other kids use the preferred red and orange. Progressives, with a lock hold on the Supreme Court for many decades, never mind the media, advertising, entertainment, and academia, grew too used to getting their way, too used to defining democracy as “expansion of rights that I favor and shrinking of those you favor.” So expanding the Bill of Rights automatically meant ignoring the Second Amendment and dilating the 14th to loop in abortions. It was easy to see it all as progress when for the most part it was just you always getting more of what you wanted.

    But a real democracy shares nicely, and as voting patterns (remember when Ohio used to be a well-contested purple state? Florida always up for grabs? John King zooming the CNN Magic Map practically into voters’ backyards?) and national moods change so does the makeup and decisions of the Court. Remember back in 1896 when the Court decided in Plessy v. Ferguson separate rail cars for whites and blacks were equal enough as required by the 14th Amendment, that race was constitutionally a way to judge people? The upshot was constitutional sanction to laws known as Jim Crow (the name comes from a popular minstrel character of the time) designed to maintain racial segregation by means of separate public facilities and services.

    Then in 1954’s Brown v. Board of Education the Court ignored a whopper of stare decisis and ended separate but equal as an unjust albeit long-held societal standard. Race was not constitutionally a way to judge people. Nobody is keeping score but it was 59 years of separate but equal, and 49 of Roe. People said a lot of things in 1954 when the Brown decision was handed down, but it is hard to find a genre of “end of democracy.” Indeed, enforcing Brown, even to the point of deploying Federal troops to do so under the Insurrection Act everyone was afraid of on January 6, is often cited as a high point of democracy. WHen tested, the system worked.

    January 6 should be a semi-holiday, like 9/11, something worth noting every year as an example of democracy working exactly as intended. Let’s look for the undemocratic element: 1) American holds an election and not everyone agrees who won (nothing new, where do you think all those complex presidential election rules came from but past instances of disagreement?) 2) Lawful protests take place at the Capitol; 3) When a minority of protestors start trespassing, law enforcement steps in and after one terrible fatality on the ground in Ashli Babbitt, the crowd disassembles. 4) Delayed a bit, the Vice President ignores any background noise and simply carries out his Constitutional duty in the ceremonial certification of electors selected earlier. With the possible exception of the cops gunning down the unarmed Babbit, everyone did their duty, and another peaceful transfer of power took place. No tanks on the White House lawn.

    To create the same climate of fear progressives more or less successful maintained during the four years of the Trump administration without blaming Joe Biden for some of the highest inflation and gas prices, and lowest stock vitality in years takes some clever word play. It exists in abundance. The Supreme Court judges (the bad ones!) become right wing extremists, not jurists. Their decision on Dobbs is based somehow on only rights that existed in 1868, and so forth. Taking away the EPA’s unilateral power to make climate change rules without full and open debate and returning that authority to Congress is somehow twisted to be both undemocratic and a sign of the apocalypse. Even Left Wing Extremist Sotomayor (exaggeration is fun!) wrote of Dobbs that the majority decision “undermines the court’s legitimacy” as if such a thing happening in a democracy — the majority carrying the day — was something extraordinary and particularly rare in its evil. But just saying things are true does not make them so.

    Of course George Soros had to weigh in since we’re talking about the threat to our democracy. “There is only one way to rein in the Supreme Court: throw the Republican Party out of office in a landslide. That would allow Congress to protect through legislation the rights that had been entrusted to the protection of the Supreme Court. It is now clear that doing so was a big mistake. Congress must act.”

    Now we’ll leave aside the part about Congress not acting on abortion, same sex marriage, inter-racial marriage, contraception, the EPA, and a lot of other supposed threats to democracy for decades, including when Democrats held majority power in both houses, the Court, and the Executive.

    But Soros still sees a problem: “When it comes to organizing a landslide victory against the radicalized Republicans, opponents face almost insuperable obstacles. Republicans have not only stacked the Supreme Court and many lower courts with extremist judges. In states such as Florida, Georgia, and Texas, they have enacted a raft of laws that make voting very difficult.”

    We’ll take Texas as an example. You can register to vote there online, which does not seem too hard given anyone who can borrow a cell phone and do it from a parking lot. You do have to present one of seven forms of ID to register and to vote, including a drivers license, a handgun permit, military ID, or others. You can’t have a decent adult night out without one of those, and several are issued by the Federal government well outside the hands of racist old Texas. In certain circumstances a utility bill or a cashed check can suffice. Not clear what’s so hard; 17 million people in Texas are registered so far, which sounds like alotta democracy is working just fine. Now, showing the same photo ID (and a vax card) just to sit down and eat a burger, that has some undemocratic overtones to it…

    Soros aside, no one clings to the “democracy is dying” meme like a convert named Max Boot. Covering the gloom beat for WaPo, Boot warns “we’re in danger of losing our democracy.” He is stirred by Americans coming together to support Ukraine’s “fight for freedom” (better there then on the beaches of Santa Monica, eh Max?) “But it is dismaying,” he writes, “to see that there is no similar consensus on defending democracy at home.” The solution is simple, vote for Democratic candidates only, even if you don’t agree with them, because what could be more democratic then being told who to vote for and asked to not think about your choice. “Panic,” Max writes, “…is sometimes warranted.”

    Boot supports one of the most undemocratic things possible, to demand the end of democratic institutions when their call has not gone your way. Don’t like Dobbs? Support packing the Supreme Court (what happens when Republicans regain power and re-pack it?) Don’t care for the electoral system? Demand the Constitution be damned and the popular vote given precedence. Max Boot, again, declares with the straight face of someone who must have failed eight grade civics class “There is no justice in a political system that gives Republicans six of nine Supreme Court seats even though a Republican has won the popular vote for president only once in the past 30 years. So, too, there is something deeply amiss with a Senate that gives California (population 39.3 million) the same number of seats as Wyoming (population 581,348).” “The Founders never envisioned such an imbalance between power and population,” wrote Boot in a multi-Pulitzer-winning newspaper.

    Um, they actually did. It was the Founders who created our proportional representation system precisely to balance the power of big states and small ones.

    Keep in mind there is a reason progressives are trying to keep people in a state of fear. Fearful people are easy to manipulate; you need only scare them to the point where they demand relief, and then provide them the way out as the final solution. A standard trick of any demagogue. “Democrats need to lean into the politics of fear,” says the NYT. So it is a natural extension of “Trump is Putin’s boy” to “let’s have a war against Putin.” Or from “some states ban abortion” to “next is a national abortion ban enacted by a Republican Congress.” Historically fear has driven any number of crusades and Crusades. The solution of course is not to be drawn in, to stop and ask yourself if something is true (“it’s hard to vote in Texas”) and react out of intellect and not emotion. Heck, if half of Germany would have thought through the Reichstag fire and not bought into fear mongering, George Soros, et al, would need a whole new go-to bad guy as they try and pre-defeat Trump in 2024.

     

    Related Articles:




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

    Posted in Democracy, Other Ideas