Archive of "Democracy" Category

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

October 6, 2022 // 2 Comments »

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

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

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

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

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

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

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

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

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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…

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

Posted in Democracy

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.

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

Posted in Democracy

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 vans, Stingrays, ShotSpotters, 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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

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.

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

Posted in Democracy

Bidin’ His Time

July 18, 2022 // 11 Comments »

The New York Times and Washington Post sent up flares last weekend on behalf of the Deep State: one way or another they said, Biden is on borrowed time. The last man standing who ended up the answer to Anyone But Trump turned out so inadequate for the job Deep State parliamentarians gave him a vote of no confidence and say he should go.

The Times wrote a scathing summary of What Everyone Knows, that Biden at 79 is a wreck; in their words the man “is testing the boundaries of age and the presidency.” He can barely walk unassisted. He has his zombie moments on stage. He is fully dependent on wife Jill to nudge him onward in public events, redirect him, get him back on the TelePrompTer and even then he will read anything there, including stage directions, Ron Burgundy-like. Not a pretty picture. It is also not a new picture, given the pass on campaigning Biden was granted by the MSM which helped hide all this during the campaign. That’s why the MSM articles are so noteworthy, they denote a change. From here on to 2024 it is OK to (finally) talk about how old and 25th Amendment-ready Biden is.

The 25th Amendment got a bad name during the Trump years, being invoked as the handy-dandy alternative to multiple failed impeachments and prosecutions, a kind of last chance to dump a seated president when all else fails politically. In fact the amendment, written after the Kennedy assassination exposed the problems of no clear line of deep succession in the Constitution in the nuclear age, provides precisely the mechanism needed in Joe Biden’s case. Biden’s wacky gaffes have strayed over the line. His clumsy and chaotic policy killed innocents in Afghanistan and embarrassed the U.S. globally. His claim “Putin cannot remain in power” in response to the Ukraine War, and that the U.S. would absolutely defend Taiwan, threatened relations with two superpowers. Aides rushed to blurt out no policy had changed and gently correct the president. Falling off a standing bike is a problem for Joe; falling off nuclear policy is a problem for America.  On the face of it all Biden either needs to resign for “personal reasons” (the timing set so it does not appear tied to the latest Hunter revelations) or face the judgement of the 25th and reality, that he is medically no longer fit to carry out his role as Anyone But Trump.

There’s no need for a specific trigger; the outstanding defeat expected for Democrats in the midterms could readily serve however, or the latest polls which show Joe’s approval ratings at a Nixonian 33 percent, with 64 percent of Democratic voters saying they would prefer a new presidential candidate for the 2024 presidential campaign. Only 13 percent of American voters said the nation was on the right track — the lowest point in NYT polling since the depths of the financial crisis more than a decade ago. The Deep State does not need a reason to invoke the 25th Amendment, Joe is the reason. Biden is a good egg and a loyalist, he’ll go as quietly in 2022 as he did in 2016 when he was likely told by Barack Obama he was going to have to sit out the election to pay off the party’s blood chit and allow Hillary to run unprimaried.

Biden leaving is the easy part. What happens next?

The obvious follow-on is not much better than Biden staying in the White House until 2024 (nobody expects him to run then under any circumstances.) If Biden resigns or is moved from office under the 25th Amendment, Kamala Harris as vice president automatically takes over. Her poll ratings are as dismal as Joe’s and after 18 months in office has nothing, literally nothing, to show for it. Despite being a black woman, Harris brings little to the table; she couldn’t even beat Biden in the Democratic primaries and the identity politics she is a living symbol of have lost some of their luster. She is far too quiet on what could be her signature issue, abortion rights, tagging along with the slow motion efforts to look busy out of the White House.

The tricky thing about Joe leaving power is thus what to do with Kamala. She hasn’t done much to make her a strong candidate going forward, and she hasn’t made enough mistakes to justify nudging her, too, aside. It’s a real conundrum. Her approval rating is 15 points below where Biden stood at this stage in Obama’s first term and 11 below Mike Pence under Trump.

Right behind the Kamala problem is the, um, well, somebody problem. There is no likely Biden successor. The left-overs from the 2020 campaign, guys like Beto and Buttigieg, are just that, leftovers. Buttigieg as Transportation Secretary faces a conundrum of his own. Should he appear too competent in the role he risks being forever labeled the technocrat he is at heart, handy with tools around the office but uninspiring for the big stuff. Stumbling as Transportation Secretary, he’ll lose even the points he has for basic competence and appear more a glory seeker. Guy can’t win.

Spokesmodels like Beto have no chance in a national campaign. They look good on home ground but don’t have the intellectual meat on the bone needed to campaign effectively across 50 states, especially in a primary where they really do need to answer questions on complex farm subsidies in Iowa and drooping Social Security in Wisconsin and failed solar jobs in Ohio and critical race theory in Virginia. You can only stand there and smile so long before someone (such as Democratic primary voters in 2020) notice there’s nothing more behind the smile.

Several of the Democratic governors-in-waiting face tough re-election contests before they even think about 2024. The bottom-feeding criteria of “Anyone But Trump” is now “Anyone a bit better than Biden.”

Somewhere there are Deep State Democrats in a room wondering how they got there, especially after winning the last election. Trump has defied them multiple times, the Dracula candidate they cannot put down and must resign themselves to facing off against in 2024 without the aid of the pandemic. Biden the caretaker president was just re-elected by the MSM as a punchline, and Harris has not risen to the challenge. Their bench is thin, the issues facing the country — it’s the economy again, stupid — mostly of their own fumbling design. There are people in that room rolling their eyes and saying they have little to gain replacing Biden, and arguing that he be allowed to serve out his term. They may be right.

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

Posted in Democracy

Is Stephanie Griner “Wrongfully Detained” in Russia?

July 17, 2022 // 2 Comments »

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

The key to getting the full force of the U.S. government on your side working for your release is to be “wrongfully detained,” a qualification which applies to fewer than 40 out of those 3,000 some Americans locked up. The U.S. recently declared Stephanie Griner wrongly detained. What does all that mean?

Near the start of the Ukraine war American WNBA star Stephanie Griner was arrested trying to enter Russia carrying vape oil which contained some sort of cannabis product illegal in Russia, entangling the U.S. citizen’s fate in the confrontation between Russia and the West. The Russian Federal Customs Service said its officials detained the player after finding vape cartridges in her luggage at Sheremetyevo airport near Moscow, and it released a video of a Griner going through airport security.

Normally Griner would be largely on her own. While the U.S. State Department visits Americans incarcerated abroad when that is possible (good luck to you if you’re popped in a country without U.S. diplomatic presence like Iran or North Korea, though the Swiss often will help out) to see to their welfare and try and maintain communications with home, the U.S. government will generally not get involved with your innocence or guilt, and will not make representations to the host government to free you. Most of us have seen Midnight Express and The Hangover. In the case of Russia, the U.S. specifically warns people like Stephanie Griner “do not travel to Russia due to the unprovoked and unjustified invasion of Ukraine by Russian military forces, the potential for harassment against U.S. citizens by Russian government security officials, the singling out of U.S. citizens in Russia by Russian government security officials including for detention, the arbitrary enforcement of local law, limited flights into and out of Russia, and the Embassy’s limited ability to assist U.S. citizens in Russia.”

Worse yet, it looks like Griner did really have that illegal substance in her possession. She just pleaded guilty in front of a Russian court. In almost every such instance she’d be on her own, but for one exception: the recent declaration by the United States that Griner is somehow “wrongly detained.”

The wrongfully detained category grew out of a realization that a small percentage of Americans arrested abroad were indeed political prisoners, arrested abroad under a country’s (unjust) laws, or were being held beyond the normal sentence or conditions for political reasons. In other words, hostages. If a person is declared “wrongfully detained” by the U.S., the rules do a 180 and the full powers of the U.S. government are used to free you.

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

What is next for Griner now that she has been declared wrongfully detained? Depending on the political goals of the Russians, her guilty plea may suffice. A Russian court will impose a fine or jail sentence to be waived, and Griner can be on her way home. This is most common when the American has harmed a host country national and some public “justice” needs to be seen being done. A similar outcome often arises out of humanitarian needs, where Griner is declared in need of medical care not available in Russia and the country sends her home as an act of good will.

But given the politics of Griner’s arrest, a very likely outcome will be a prisoner exchange. The Russians are interested in the release of Viktor Bout, sentenced to 25 years in an American prison for trying to sell heavy weapons to Colombian terrorists. This would track with diplomacy just this April that lead to the exchange of Trevor Reed, a former Marine who had been held for more than two years over a bar fight, and Konstantin Yaroshenko, a Russian pilot serving a 20-year federal prison sentence for drug smuggling. Reed’s health was cited as the motivator for the swap. One problem stands in the way of Griner’s release: it would be domestically politically difficult for the U.S. to again leave behind Paul Whelan, another former Marine, arrested in 2018 on espionage charges and sentenced to 16 years in prison, for Griner.

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

Posted in Democracy

Feeling Bad for Cassidy Hutchinson

July 12, 2022 // 8 Comments »

I feel bad for Cassidy Hutchinson, the young woman who testified recently in front of the January 6 Committee. She seems unaware she violated the six basic rules of being a staff aide. She doesn’t even know her career is over at a time when she thinks her efforts will be kickstarting her into fame. Someone should put her in touch with Monica Lewinski.

To understand Cassie’s failure requires one understands the Washington DC ecology. There are the top-level predators, like Trump, and Meadows, his chief of staff, and there are those funny little birds that live off the big guys’ droppings. That would be the staff aides like Cassie. Now there is honor in all work, even if it consists of picking seeds out of droppings — somebody has to do it for the system as a whole to thrive. So Rule 1 of being a staff aide is knowing your place, followed quickly by Rule 2, never forget you will not be staff aide forever.

The little bird that sits above the rhino’s tail seems important and in a way, is. She keeps the rhino happy and in good humor. Often times other animals find it easier to approach the bird before the rhino, to check he’s in a good mood, has been eating well, stuff the bird knows not because she is important per se but because she sits near the rhino’s butt. Cultivating a good relationship with the bird means better access. Staff aides are like that; they sit in the front office and respond to important people asking things like “Boss in a good mood today?” or “What did he think of my memo?” The aide is a proxy for the big guy. But the aide is not the big guy. She should not forget that.

A healthy does of “only when spoken to” helps a lot, too. Cassie never “spent time with President Trump.” She attended events as background filler, endless signing ceremonies, celebrations, and presidential announcements, and “frequently watched Marine One depart the South Lawn from my office window.” Just being places is a key staff aide task.

When they are not serving as a benign, approachable proxy for the big guy, staff aides do a lot of “coordinating.” Spend an hour in any office in DC and you’ll hear that word a half dozen times. Big guys are too important for details, and staff aides are too young to know them. So, for example, Mark Meadows as chief of staff talks to the president, who says “I wanna go to Chili’s for lunch.” Meadows knows that means Secret Service and a motorcade, press, maybe rearranging the afternoon’s Boy Scout meet and greet (all together, a movement, we’re back to those birds) but has no interest in making lots of phone calls as the more calls he personally makes the less powerful he seems. So he asks his staff aide to “coordinate” the movement and she, invoking his name like a hacking cough in a four-pack a day smoker, calls the movement people and says the president wants to go to Chili’s. Actually, she says “Our office needs the president at Chili’s pronto.”

If the aide is good at her job, she is composed when the boss is stressed, smooth when he is rough, sugar-coated when he is cursing. This is because of Rules 1 and 2: she is not the boss and soon enough won’t be the staff aide anymore and everyone below her (for now) on the food chain will remember whether she was rude, pushy, and power hungry.

It can be hard to do; I was an ambassador’s staff aide for a year. Many times in a raised voice the ambassador would say “Why hasn’t Jones finished that memo [you told him to write on the ambassador’s behalf]?” followed by me after a deep breath phoning Jones to casually ask how it was going. If I said something like “You know, the ambassador is anxious about that memo” I better have said it nicely because Jones outranked me by three steps and in a few months I might be a wage slave in his shop and he Would Remember. Rule 2.

Poor Cassie’s career to staff aide-date consisted of a couple of government internships out of her small Virginia public college, where she no doubt got ground down by someone’s staff aide. That aide forgot Rule 3, low levels you chew on when you’re staff aide can get promoted past you and they Will Remember you.

I got fooled twice as staff aide. Once was to drop a contrarian memo on the ambassador’s desk without the writer’s boss having seen it, and the second to serve as a conduit of what I thought was staff intel but instead was just backstabbing gossip. In both instances I was on the wrong side of Rule 4, don’t get used by senior people. Always remember (Rules 1 and 2) you are disposable. That brings us to Cassie and January 6.

Trump’s movement away from his January 6 speech venue went bad; Trump wanted to go to the Capitol but this Secret Service detail felt it was unsafe and in a rare gesture, overruled him. Trump was upset and took it out on the two guys in charge, Tony Ornato and Bobby Engel. Back at the office the guys dutifully recounted what happened, with Cassie all ears (Rule 5: as staff aide you’re not well-briefed enough to overhear things and make sense of them.) She heard what may in fact been a bit of macho exaggeration by the guys, Trump grabbing the steering wheel and all, perhaps a bit of bravado as everyone was cooling down. Cassie misunderstood what she heard (Rule 6, it happens), setting the story in The Beast, the massive armored stretch Cadillac limo that is the official presidential ride when whatever happened happened in a Secret Service SUV per video records. A Secret Service agent would never misremember an SUV for The Beast but a former intern would.

When the January 6 Committee came ’round, Cassie thought she had a tale to tell, Trump out of control in the vehicle and later, throwing his lunch during a tantrum, his ketchup dripping down the wallpaper. The thing is Cassie did not see either happen. She was repeating a Secret Service war story in the first instance and imaging the details in the second (she actually saw the ketchup dripping but not the throw.) Any first year law student will know those are examples of hearsay, second hand information, and immediately dismissible as evidence. It makes sense; why rely on someone’s second-hand remembrance when you can get the actual first-hand witness to testify? In this case, the Secret Service is apparently ready to call Cassie a liar; Trump already did.

Cassie thought this was her big break, the intern made staff aide who was going to change history. Never mind that she must have come across the definition of hearsay somewhere in her education, never mind that steering wheel grabbing and plate throwing are neither criminal nor impeachable offenses. She was like the bird claiming from her perch on the rhino’s backside he ate too many berries for lunch, or at least she’d heard that from the insect who lives in the rhino’s mouth. She broke all the rules for her few minutes on TV, allowing herself to be used by a Committee who knew damn well she had not witnessed anything  and swearing “under oath” to the truth of something you don’t know first-hand is impossible.

And that leaves Cassie in violation of another rule, one most people learn on the playground: nobody likes a snitch. Nobody likes one who thinks she is ratting out her boss’ boss, nobody like one who disgraces the Office of the President. Anyone check in on how Monica Lewinski’s career in Washington went? After a quick round on Late Night, Cassie will disappear from DC-land. You don’t violate the rules of being a staff aide without consequence, after all.

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

Posted in Democracy

Abortion, Propaganda, and Cynicism

July 11, 2022 // 3 Comments »

A doctor in Ohio decided to become an abortion propagandist, assisted by journalists who decided to become abortion propagandists.

You must have seen the horrific story, reported out of Ohio. A ten-year-old child became pregnant through sexual abuse. Under the new post-Roe abortion laws she is ineligible for a termination because she was found to be six weeks and three days pregnant. The unnamed doctor called a named abortionist in next-door Indiana where abortions can currently be performed past six weeks and began the process of arranging the abortion. Someone took the story to the press, where it quickly became a front-page Handmaidens Tale-level news item, the near-perfect example of everything wrong with overturning Roe v. Wade. Almost too good (too evil?) to be true.

The victim was very young, below the average age of menses. She was pregnant via child abuse, the act itself horrific, with suggestions in the press the attacker was a relative. Ohio had just revised its laws following Dobbs (a month earlier and none of this would have been national news) and the kicker, the girl was six weeks and three days pregnant via abuse, just that 72 hours past Ohio’s deadline, all at obviously no fault of her own. Her only hope was an out-of-state abortion in next-door Indiana before it changed its own laws.

No current technology can calculate pregnancy to the day. Instead a standard estimate is used, calculated from the first day of the person‘s last period. The key term here is estimate; only a tiny percentage of babies (about four percent) are born on the exact due date calculated off that last period, assuming a ten-year-old abuse victim would know the first day of her last period precisely. The articles about the child don’t mention it, but the period date is usually adjusted by an ultrasound scan, where another estimate is made, based on the size of the fetus, with practice being if the two “due dates” differ by a week or more, the scan is taken as the more accurate measure.

The critical point is no one in the world could say that child was exactly three days past Ohio’s six week abortion deadline. The original doctor, sympathetic, could have easily consulted an ultrasound and come to the conclusion that she was instead five weeks and four days pregnant, for example, and eligible for an abortion. Ohio allows a complex exception for abortions even now when the mother’s life is in danger, clearly an option given the unlikelihood that a ten-year-old body would be able to successfully mature and birth a baby without injuring severely the child-mother.

The broader point is none of this was discussed in the articles pointing out the horror Ohio was visiting on an abuse victim. None of the media asked the original doctor why he did not see the fetus as less than six weeks old, or why he did not seek to invoke the exception for a mother’s life at stake. Instead, he and the abortionist in Indiana worked hand-in-hand with the media to shape the narrative as ammunition pro-choice advocates would be able to use. It was all too perfect.

Newly-restored to Twitter, I voiced some of these ideas. The story was obvious propaganda, albeit apparently true on its basic facts if not fudged on its presentation and omissions. As propaganda it seemed worth talking about. But in America we can’t talk about abortion it seems.

The first wave of comments from anonymous women (I am unsure enough of  the mechanics of Twitter to not know how non-followers ended up seeing my Tweets) included some personal insults but were more in line with claiming I wanted to make the story about me (for having a questioning opinion as a man) and not about the “woman.” These were followed by many more anonymous women criticizing me as a male for not knowing much about women’s bodies because I asked some pointed questions about how much faith the doctor in question put in judging the pregnancy at six weeks and three days. Could someone really make a life-or-death decision for one of his patients based when a period had occurred? Someone whose bio says she is a doctor and activist seemed to lead the charges against me, calling me a whiner for wondering why this anger was directed at me and not maybe at some people in Ohio. And why was it impossible to find out anything about the attacker, such as if he was in jail?

In the end I was told to “Just tweet, ‘I’m a twatwaffle who doesn’t know anything about women’ and save us all some time” and that seemingly ended the discussion.

The Ohio case has become a test for politicians forced to show they are sensitive to the needs of women and girls in the face of growing restrictions on abortion. Republican governor Kristi Noem of South Dakota, mentioned as a potential running mate for Donald Trump, was pressed on the Ohio case on CNN, though no mention was made that South Dakota, like Ohio, allows abortions when a mother’s life is in danger. Instead the situation was visioned as “child rapist gets away with horror because abortion laws are too restrictive.” Noem replied: “I don’t believe a tragic situation should be perpetuated by another tragedy. There’s more that we have got to do to make sure that we really are living a life that says every life is precious, especially innocent lives that have been shattered, like that 10-year-old girl,” she said.

It is a gross coincidence this playbook has been run before. In May 2019 as Ohio was considering its fetal heartbeat law, the press came up with an 11-year-old girl has been raped and impregnated by a 26-year-old man who had sex with her on multiple occasions as someone who might be forced to carry to term by the new law. The heartbeat law passed anyway.

And by no small accident the Indiana General Assembly will convene in special session later in July to discuss what restrictions to abortion policy it will implement post-Roe as Indiana law did not immediately change when the Supreme Court issued its Dobbs decision. The state currently allows for abortions in the case of rape or incest. One wonder on the effect propaganda will have on all that, with the insertion of an already victimized 10-year-old into that process. Was the timing of the Ohio-referred-to-Indiana case really that cynical?

Thinking to go on Twitter and call me cynical? Remember I’m not the one exploiting an already abused child for political purposes of getting my state to include a rape and incest exception, just writing about it.

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

Posted in Democracy

What If Biden Gave a War and Nobody Came?

// 3 Comments »

What if Joe Biden gave a war and no one came? Such is the case in Ukraine where slogging Russian progress is unmatched by Biden’s and Biden’s alone belief a struggle for global hegemony is at stake, and that he is fighting his war at little cost. Here’s the war at about four months in, as Joe announces a new aid package of $1.2 billion atop his previous $40 billion “lend-lease.”

Given that core NATO raises a quiet glass every night that it does not have to be militarily involved in the fight for the Donbas and Crimea (the latter invoking 19th century memories of the disastrous Charge of the Light Brigade, as the area was last seriously contested between east and west when the British fought the Russians there, the Charge over the disposal of abandoned Turkish cannon) Joe Biden stands nearly alone thinking he is leading the west in some sort of epic struggle. In that the west does not have troops in the field, the western war is being fought with arms supplies and sanctions, both of which are failing and leave Biden exposed, one day to awake to find himself the Emperor of Donbas without any clothes.

Rumors of the death of the Russian military have been greatly exaggerated, literally: Ukraine has claimed kill rates for men and machines in weeks what are produced over months and years (two decades in the case of U.S.-Afghanistan) elsewhere. Despite the sexy time women snipers and Ghost of the Ukraine, it has been massive arms shipments primarily from the U.S. which have limited Russian gains largely to the eastern part of the country.

The biggest problem with trying to win simply via outspending the other guy is artillery and anti-tank missiles do not hold ground, infantry does. A brave Ukrainian taking on a T-72 may stop the tank (until another comes along) but he cannot retake a village or hold ground against a combined arms offensive. In short the flow of U.S. defensive-style weapons has done its job, doing exactly what it was intended to, blunt an offensive. The problem is there seems little plan for after that and so in areas like Donbas where Russia enjoys local support, or areas like around Mariupol where is it willing to employ a scorched earth policy, the Ukrainians are predictably losing and will continue to do so.

There are other problems with trying to win simply with arms sales. One is finding a way to train Ukrainians not familiar with modern weaponry in a way that is fast and effective enough to make a difference on the battlefield while not escalating the fighting overall. The usual method, either bringing foreign personnel to the U.S. or using American Special Forces trainers on the ground, both would dramatically escalate the war and give Russia the excuse to begin killing Americans. The American “volunteers” on the ground now are only going to fool some people for some time before it is obvious the U.S. has had to become deeply involved in the actual fight.

A secondary problem with dropping so many arms higgledy-piggledy into a fluid situation like Ukraine is blowback, always a great fear during the CIA-Russian war in Afghanistan. What would terrorists in the Middle East pay for a shoulder fired anti-anticraft missile? How many sophisticated anti-tank weapons (the pop-up capability that allows the missiles to strike down on a tank’s weaker top armor is highly classified) are the Chinese interested in? “While the response to provide more weapons to Ukraine is understandable, it would be prudent to consider the immediate and long-term security implications,” said one think tank. “We’ve seen time and time again how arms aimed at aiding an ally in one conflict have found their way to the frontlines of unforeseen battlefields, often in the hands of groups at odds with U.S. interests or those of civilians.” Ukraine has a very poor record in this regards; in the aftermath of the fall of the Soviet Union the country lost track of $32 billion in weapons and sold China its first aircraft carrier.

Supply is also an issue. America has currently sent about one third of its entire Javelin anti-tank missile inventory to Ukraine along with 50 million rounds of conventional ammunition, extraordinary quantities which strain production capability. Lastly, there remains concern over Russian reaction should American-made artillery rounds begin falling inside the Russian border. The recently shipped 155mm howitzers are seen by many as the first truly offensive weapon the U.S. introduced into the conflict. For Joe Biden what seems like a risk-free no brainer — send more weapons — actually carries with it considerable risk no one seems to be thinking about.

But it was sanctions which were to have won the battle, forcing Russia to withdraw at the risk of her economy collapsing, perhaps along with Putin’s own regime. The problem is that not only has that not happened, U.S. 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 effects. Russia’s export prices have been on average around 60 percent higher than last year. Simple supply and demand.

Demand remains the thing thwarting Biden’s charge into the guns. France and Germany in particular have evolved the ability to talk tough and do little of substance, making quite an event out of the end of Russian energy exports via ship while quietly lapping at the pipelines like drunkards. And what demand does not fix supply steps in for. The EU reduced natural gas imports from Russia 23 percent in the first  days of the invasion. Meanwhile Russia’s Gazprom has seen its income levels double year-over-year, thanks to higher prices. The EU also 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 lead to no net change in Russia’s overall oil export volumes. China, too, has helped make up for the EU shortfall, albeit more for domestic use and not re-export into the global market, as the largest single buyer of Russian energy. Japan holds that title for unsanctioned Russia coal exports. Even the U.S. itself helps out, buying unsanctioned highly refined oil products from the Netherlands and India that most certainly were made at least in part from Russia crude.

Russia has shown it can also play offense, cutting natural gas flow to western Europe by 60 percent blaming technical difficulties. Germany correctly understood the latest curtailment in its gas supply as a political move. “Russia’s reason for reducing gas supplies is just a pretext,” the German Vice-Chancellor said. “Their strategy is obviously to drive up prices.” Poor Joe can’t catch a break it seems. May be it is time to seize another megayacht to show Putin who is boss?

So where are Biden’s allies? The EU and Japan talk a great game but are hamstrung by their own energy needs. Next month Joe Biden travels to Saudi Arabia to bargain away any remaining American self-respect for oil. The UN, such as it is, saw 35 key abstentions, including much of Africa, on a symbolic get-out-of-Ukraine resolution.  The head of the African Union explicitly called for the lifting of sanctions on Russia. India re-exports Russian oil. Brazil and Mexico refuse to condemn Russia. China won’t step in. Biden stands nearly alone claiming the liberal world order is at risk. Or could it be those other nations have seen so little benefit from that order they are not sorry if they see it pass?

Bottom line: Russian energy exports, which make up some 45 percent of the country’s budget, are stronger than ever. Russia has more money than ever to finance its war in Ukraine, and Putin is as secure in his post as ever before. The irony is with gas hitting $5.00 a gallon across the U.S., the sanctions driving that may indeed bring about regime change, albeit in Biden’s next Congress.

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

Posted in Democracy

Mercs on the Run, or, the GWOT Chickens Come Home to Roost

July 5, 2022 // 1 Comment »

Alex Drueke and Andy Huynh are two former American military members now in Russian custody, captured by the Russians in Ukraine, where they were fighting for the Ukrainian government. What is going to happen to them?

The most likely thing is that both men will eventually be released, traded to the U.S. in return for captured Russians. Prisoners are very valuable, and rarely wasted in executions unless those carry much more value than the prisoners held by the other side. The deal may be public or secret, and the U.S. will expect to pay a premium. Israel usually releases 10 or more Palestinian prisoners in exchange for one of its captured troops. The problem for Drueke and Huynh is that the Russians will be in no hurry to make the exchange, knowing under the glare of American media the longer the “crisis” goes on the more desperate Biden will be to make a deal (much of the same can be said for Brittney Griner, the WNBA All-Star who clearly was in the wrong place at the wrong time with the wrong vape.)

A caveat: all bets are off if either Drueke and Huynh have any connection to the U.S. government other than former military, say as members of a CIA paramilitary group. You can assume most of their interrogation is aimed at that question.

Beyond that simple reality, what happens with Drueke and Huynh is extremely complicated. Much will be said about their status, whether they were volunteers (legal combatants) or mercenaries. A lot will be said about the rules of war, international law, the Geneva Conventions (treaties on the treatment of civilians and prisoners of war) and the like, without saying the obvious: there is no such thing as international law per se, a body of agreed upon rules subject to fair enforcement. Instead, much of what passes as “justice” in wartime is very much a victor’s justice, meted out for political purposes after one side wins enough to dictate what is a crime and what is a valid example of warfare.

The wanton murder of civilians is generally a violation of rules of war, yet civilians are killed in every conflict. For example, in Ukraine at present of a 21-year-old Russian soldier Sgt. Vadim Shishimarin was recently sentenced to life in prison after he pleaded guilty to shooting a 62-year-old unarmed civilian four days into the invasion. Yet the issue scales poorly. The United States killed tens of thousands of innocent civilians in Hiroshima in a most horrible way, yet the action was seen as a brilliant strategy not a crime. What in fact constitutes a “crime against humanity” or “attempted genocide” very much depends on who won the war and what they have to say about things. Even when the victor is clear, as in the Vietnam, Iraq, and Afghanistan wars, there are no host country trials if that victor lacks the ability to enforce his will. Fearful its soldiers might be convicted of “political” war crimes during the War on Terror, in 2002 the U.S. withdrew from the treaty establishing the International Criminal Court.

In the case of Drueke and Huynh it may be useful politically for the Russians to hold trials, as a counter to those underway or planned in Ukraine (Attorney General Merrick Garland visited Ukraine on Tuesday to meet with the country’s prosecutor general to discuss ways to “identify, apprehend and prosecute those individuals involved in war crimes and other atrocities in Ukraine.”) Labeling Drueke and Huynh as mercenaries — soldiers of fortune who went into combat on behalf of a third party for the money — is as simple as Russia doing so. The men appear to have been paid something by Ukraine, and they were in fact in the country specifically to kill Russians. The U.S. will argue but is in no position to enforce the idea they are lawful combatants, soldiers, as the rules of war kind of expect soldiers to be there for killing and it is seen as less a crime than a job duty.

We’ve already seen a likely preview of what’s ahead for Drueke and Huynh. Two British men were recently sentenced to death in a Russian proxy court for fighting for Ukraine. Shaun Pinner and Aiden Aslin were charged with “terrorism” in a court in the self-proclaimed Donetsk People’s Republic. The British case suggests the likelihood of some sort of show trial for the two Americans is high. Putin maintains the Ukraine war is really about Russia being threatened by NATO. Western prisoners, especially American former military prisoners, plays into that narrative; Drueke and Huynh in his view are living examples Ukraine is a proxy war against Russia.

But as with the tussle over nomenclature, soldier or merc, the real problem for Drueke and Huynh is essentially there is no law or even established practice governing mercenaries, guns for hire or “volunteers” and recent examples are all unfavorable to their speedy and safe release.

There are few rules when dealing with mercs’ war crimes, as learned during the Nisour Square incident in Baghdad. On September 16, 2007, employees of the Blackwater Security Consulting private security firm opened fire on unarmed Iraqi civilians in Nisour Square in Baghdad under unclear conditions. The Iraqi government eventually found Blackwater killed 17 civilians. At the time, Blackwater had a $1 billion contract with the United States government to provide security services; there were 1,000 Blackwater security guards in Iraq on the day of the massacre. Four Blackwater staff were eventually charged and brought to a civilian trial inside the U.S. seven years after the killings and found guilty of offenses from first degree murder to firearms violations. No matter; in December of 2020, President Donald Trump pardoned the four Blackwater guards in a similar fashion to President Richard Nixon’s pardoning of Lieutenant William Calley, known for his role in the My Lai massacre.

The other thing which bodes ill for Drueke and Huynh is America’s own example set during the years of the War on Terrorism. In one case, a western man caught fighting for the enemy in Afghanistan (John Walker Lindh, “The American Taliban”) was mistreated from his moment of capture, denied basic rights, taken off the battlefield, and eventually sentenced to 20 years in prison.

The other example is America’s willingness to classify captured al Qaeda members as “noncombatants,” i.e., not soldiers in the War but terrorists, and use that made up category to allow everything from kidnappings and unlawful detentions (known then as extraordinary renditions) to the creation of an off-shore penal colony at Guantanamo Bay, Cuba where said noncombatants were to either given show trials or simply tortured into insanity and indefinite detention. It would be bitter, bitter fruit for the Russians to cite either example in their treatment of Drueke and Huynh.

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

Posted in Democracy

Biden at 500 Days

July 1, 2022 // 2 Comments »

The Joe Biden administration at about 500 days in office tests the limits of those who claimed 501 days ago “anybody” would be better than Trump. With the threat of nuclear war now well alive, Biden presides over the highest gas prices, the worst inflation, and the saddest stock market in lifetimes. It is not morning in American as much as late Sunday afternoon and raining.

Start with the record breaking vacation time. It became a meme during the Trump years to criticize him for weekends at Mar-a-Lago, and to point out how much the Secret Service paid him for their accommodations. Yet as he marks Day 500, Biden is preparing for another weekend scram, on track to take more vacation than any other of his predecessors. So far since taking office Biden spent 191 days away from the White House vacationing in either of his two Delaware properties, at Camp David or on Nantucket. Trump spent 381 days on vacay but over four years. Go Joe!

And as for those Secret Service room bills, they pay them for every president, as the Service is prohibited from accepting “gifts,” even the free accommodations necessary to protect the president. At Biden’s home in Delaware he charges the Secret Service $2,200 a month rent for a cottage on his property. He made $66,000 in total off the Service in 2013; contemporary figures are not available but they tally up, just like Trump and the others. Hillary bought a second house in upstate New York just for the Secret Service anticipating her victory in 2016.

But what of the time Joe Biden has spent in the office, how have the 500 days gone so far? Biden succeeded primarily in engineering a new form of war in Ukraine, not quite Cold and not quite Hot. Not Cold as in 1945-1989, because American Special Forces may soon be on the ground in Kiev and American ships in the Black Sea, and Ukrainians have boasted how American intelligence and targeting information have killed Russian ships, tanks, and generals. With no regard to what leakage into the global black arms market might mean, Biden is sending billions of top-notch weapons into the nation with the avowed aim of bleeding out Russia. When something like this was tried in Afghanistan in the 1980s, the U.S. had the common courtesy to do it through the CIA and keep at least some of it secret. No more. Vladimir Putin, in return, has reminded the world several times he has nuclear weapons he is not all that opposed to using. Joe Biden has succeeded where presidents since 1989 have failed — he sends Americans to bed at night worrying about nuclear holocaust. And that is his greatest foreign policy accomplishment absent the clusterfutz evacuation from Afghanistan and a soon-to-really-happen trip to forgive the Saudis for their sins and become the first president since the 1970s to overtly beg for more oil.

(For the record Trump was the only president in some 20 years who did not start a new war during his term, and the only one in that same rough time period who made an effort to seek peace with North Korea, a country Joe Biden continues to ignore as official policy. When asked in Seoul if he had a message for Kim Jong Un, Diplomat-in-Chief Biden said “Hello. Period.”)

In other Leader of the Free World accomplishments, Biden’s actual leadership was shown when Mexico snubbed him, refusing to attend the Summit of the Americas because Biden would not also invite Cuba, Nicaragua, and Venezuela, all Cold War hissy fits Joe is keeping alive for a new millennium. “There cannot be a summit if all countries are not invited,” Mexico’s president said at a press conference. “Or there can be one but that is to continue with all politics of interventionism.” It really is 1980 again! Additional leadership has been shown in Europe, where Germany and France agreed to U.S. demands to stop buying Russian energy but just not for a couple more months, okay? To make it look like something is being leadered around they have stopped buying energy delivered by ship as a face saving gesture, just as they keep lapping up the massive pipeline delivered materials. But Biden did travel twice to Europe and declared “America is back,” so there’s that.

As for domestic achievements, everyone in America knows about Joe’s gas pains, which he disingenuously claims like a hubby caught with lipstick on his collar are not his fault. Biden apparently sees no connection between his sanctions against Russian energy (which seek to remove significant amounts of oil from the world markets) cutting supply at a time when demand is rising, and inflationary prices. The good news is the sanctions on Russia, well, no, it is not good news, Russia is still fighting away in the Ukraine which means the sanctions have so far failed in their primary function. Biden will give them more time apparently, as the U.S. is not seeking negotiations to otherwise curtail or end the fight.

Biden further sees no connection between his failure to anticipate a baby formula crisis and hungry children. A smarter Biden would have one of his interns sit down with The Google today and make a list of everything that is affected by supply and demand, and of those things, jot down which are only made in a single factory. That accomplishment alone would eclipse the rest of Biden’s domestic agenda, which consists today entirely of pretending historic inflation is Putin’s fault.

Of course that last line is not fair, as Joe did finally pass a $1.2 trillion infrastructure spending bill which in no way could have helped contribute to inflation by dumping all that money into an economy still chasing goods scarce from those naughty supply chain issues. Then there was that $1.9 trillion Covid relief bill (less than half of American approve of Biden’s Covid handling) now that everyone feels better which in no way could have helped contribute to inflation by dumping all that money into an economy still chasing goods scarce from those naughty supply chain issues. Plus wages are up, pouring more money into an already inflationary economy.

The media actually listed Joe’s Biggest Achievements for us in case they were hard to pick out, to include appointing a boatload of judges, 80 percent of whom are women and 53 percent are people of color (“judges that reflect our nation”) which in no way reflect our nation and in no way is racist because you obviously fight back against racism and gender inequality by promoting people based on race and gender. Biden also strategically secured America by overturning the Trump ban on transgender people in the military. In fact, the White House brags it has the first majority non-white Cabinet in history, with most women in the Cabinet, including first woman Treasury Secretary, first LGBTQ and Native American Cabinet officials, and first woman Director of National Intelligence as if someone was giving out prizes for those things.

But it is always best to go to the source, the White House itself with its own list of “record firsts” in Joe’s presidency. You can read them yourself, but you’ll run into the same problem everyone else does — it is all boasting with no links, sources or details attached. So we hear Joe was “most significant by economic impact of any first-year president” but with nothing more. Um, okay. A lot of the rest of the stuff, unemployment and child poverty, got better by the numbers but there is not a word about how anything Joe did caused those things. It is kinda like taking credit for a comet on your watch, especially given how much “not our fault” garbage is being tossed around when someone brings up inflation or fuel prices.

As for Democratic issues of importance like gun control, abortion rights, and climate change, the home town stuff, Biden rates a zero. The EPA continues to recommend Flint, Michigan residents use filters in their homes to remove lead. Joe has driven home the idea that unless a president has a super majority in both houses and now, the Supreme Court, you better not expect much from him. Indeed in Biden’s case he can’t even wrangle his own party, with two key Democratic senators, Joe Manchin and Kyrsten Sinema, stymieing Joe. Biden for his part predicted Republicans would have an “epiphany” after Trump left office, but that has not yet materialized. The expected Democratic midterm loss currently scheduled for November 2022 will not help. And we haven’t even talked about Biden’s Dead Man Walking lifestyle and walk-it-back gaffes.

So it has only been 500 days, plenty of time left. But to date the Biden administration has strained those statements about how anyone but Trump would be a better president.

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

Posted in Democracy

Was There a Coup Attempt on January 6?

June 25, 2022 // 10 Comments »

Was there a coup attempt on January 6? To answer yes, there had to have been some realistic path by which some action on that day could have resulted in Donald Trump remaining president of the United States.

Watching the show trial on television and the saturation coverage of the same across all media, you could just believe it might have been possible. The TV show is dedicated to convincing a lay audience they came “that close” to tossing away their democracy as some mechanism almost clicked into place to leave Trump in power. It would be easier to take the Dems much more seriously if they would just coolly and in detail outline just how Trump could have stayed in office without the military, who were clearly not taking a partisan stance on January 6. Absent that, you had political theatre and a riot, not a coup attempt. Think back to the 1960s and imagine how occupying the administration building on campus was going to stop the Vietnam War in its tracks. This is politically much ado about not much except Democratic Party 2024 election engineering.

So here it is in a sentence: Democrats, take two minutes from your hate telethon and tell us how it would have worked. How was Trump going to stay in power?

The answer is there is no answer, and that should end the matter. Anything that has zero pathway to success is not a coup attempt. To stage a coup you need tanks on the White House lawn, and America again instead transitioned peacefully from one administration to another. That, that hard reality, is what is wholly missing from the Democratic January 6 Committee hearings and all the frou-frou that accompanies them.

Could Trump have used the Capitol riot to declare martial law and stayed in power? No. The president cannot use the military domestically in a way Congress does not agree with. The “web of laws” Congress enacted to govern the domestic activ­it­ies of the armed forces — includ­ing the Posse Comit­atus Act, which prohib­its the use of federal troops to execute the law without express congres­sional author­iz­a­tion — would stop Trump cold. Accord­ing to well-settled prin­ciples of consti­tu­tional practice, the pres­id­ent cannot act in a way Congress has forbid­den unless the Consti­tu­tion gives the pres­id­ent “conclus­ive and preclus­ive” power over the disputed issue. Martial law has been declared nine times since World War II and, in five instances, was designed to counter resistance to Federal desegregation decrees in the South. Although an uneasy climate of mutual aid has always existed between the military and civilian law enforcement, Department of Defense personnel are limited in what they can do to enforce civil law. They can’t extend a presidential term. So that business about putting tanks on the White House lawn? Somebody has already thought it through.

The Insurrection Act of 1807 is the one stat­utory excep­tion to the Posse Comit­atus Act that does allow the pres­id­ent to deploy the milit­ary domest­ic­ally, but by precedent they can be used to suppress armed insur­rec­tions or to execute the laws when local or state author­it­ies are unable or unwill­ing to do so. Their role is limited and in no way puts the milit­ary “in charge” or suspends the normal func­tions and author­it­ies of Congress, state legis­latures, or the courts. More importantly, troops in the streets have nothing to do with what votes are already in the ballot boxes. Same for seizing voting machines or ballots; they were already counted by January 6. The president has no authority to simply “suspend” the Constitution.

Anything Trump might have tried to do required the military to play along, something there is no evidence to support. Just the opposite. Chairman of the Joint Chiefs of Staff General Mark Milley took a number of steps in the final days to ensure any dramatic orders out of the White House would be confirmed, checked, and likely delayed indefinitely.  While some of Milley’s concerns raise Constitutional issues of their own, particularly his right-to-the-edge-of-the-line actions to interfere with the nuclear chain of command, clearly Milley was in no way priming his forces to participate in any sort of coup.

Lastly, it is critical to point out how deeply the idea of legal civilian control of the military, and the separation of powers, is drummed into America’s officer corps. Unlike many developing world situations, America has a professional officer corps well-removed from politics, and which sits atop an organization built from the ground up to respond to legal, civilian orders. Like a religion. If Trump had ordered the 82nd Airborne into the streets of Pittsburgh their officers would have most likely said no.

With martial options well off the board, Trump’s coup would have needed to rely on some sort of legalistic maneuver exploiting America’s complex electoral system. The biggest issue is the 20th Amend­ment, which states unambiguously the pres­id­ent’s term ends after four years. If Trump some­how succeeded in prevent­ing Joe Biden from being inaug­ur­ated, he would still have ceased to be pres­id­ent at noon on Janu­ary 20, and Nancy Pelosi, as Speaker of the House, would have become pres­id­ent. There is no mechanism to stop that succession, ironic as it would have been.

That said, the most quoted Trump plan ran something like this: “Somehow” even though the Electoral College had met on December 14 and decided Biden was to be president, Republican-friendly legislatures in places such as Arizona, Michigan, Wisconsin, and Pennsylvania would “ignore” the popular vote in their states and appoint their own pro-Trump electors. The law (the 19th century “Electoral Count Act“) does allow legislatures to do this in some never-used extreme situation if states have failed to make a choice by the day the electoral college meets (no matter that date had passed by January 6.) Never mind the details; the idea was to introduce enough chaos into the system to force everyone in the whole of the United States to believe the only solution was to force the election two months after voting into the House where Vice President Pence himself would vote the tie and choose Trump for another term.

In addition to every other problem with that scenario, Pence had no intention of doing any such thing. Trump maintained “The Vice President has the power to reject fraudulently chosen electors” when in fact Pence’s January 6 role was entirely ceremonial, presiding over the House and Senate as they receive and certify the electoral votes conveyed by the states, and then announcing the outcome. Location did not matter; although the riots delayed the final announcement, which still occurred at the Capitol, there is nothing in the Constitution which requires the receipt and certification to take place there. Pence could have met with Congress at a Starbucks in Philadelphia and wrapped up business. Pence, in a 2022 speech, said “I had no right to overturn the election. Frankly, there is almost no idea more un-American than the notion that any one person could choose the American president.”

To imagine a dystopian fiction where one state legislature blows past the vote to chose pro-Trump electors is difficult. To imagine several doing so simultaneously to gin up enough Trump electors, and then to imagine the Electoral College changing its mind, is beyond possibility. There was no indication Republicans in these important states considered going along with this anyway. Pennsylvania’s top state Repub indicated his party would follow the law and award electors to the winner of the popular vote. He stated the state legislature “does not have and will not have a hand in choosing the state’s presidential electors or in deciding the outcome of the presidential election.” Besides, the borderline states all had Democratic governors who would have refused to approve after-the-fact Trump electors.

To be fair, such goofy schemes were also in the wind in 2016, when Trump was elected and many progressives were looking to little-known Electoral law for some sort of fail-safe. They failed, too. Despite the many claims about how close we came to democracy failing, in reality the complex system proved at least twice in recent years to be made of stiffer stuff.

There were a few left-overs that were far-removed from January 6, specifically a very unclear plan to weaponize the Department of Justice to declare something, nearly anything, about the election invalid enough to provoke a Supreme Court fight. The details matter and did not really exist, plus the Constitution is very clear the election of the president is primarily a state matter and absent a good reason (as in 2000 where  the problem was one state and urgency begged) needs to be decided at that level. There was also the matter of Attorney General Bill Barr refusing to cooperate with Trump and resigning, followed by his successor refusing to cooperate, followed by threats by a whole raft of senior Justice Department officials threatening to resign. And for the record, there was no incitement by Trump. For all the talk of sedition and coup no charges will ever be filed.

What is missing most of all from the Great January 6 Democratic Telethon is a statement the system worked. The Constitution held. Officials from Vice President Pence on down did their jobs and stood up for the democratic system. All the fear mongering, all the what-ifs Dems now hope will distract Americans from their own party’s failings at governing — war, inflation, gas prices, gun and crime violence, a growing despair — miss the most important point of all. In the end, no legal mech­an­ism was ever going to allow Trump to continue being pres­id­ent. There was no attempted coup.

The real problem is the Dems can’t win in 2024 on what they have to offer. Most of their domestic agenda is shot. They have no clear plan for the economy. With all the efforts to prosecute Donald Trump for something (including January 6) having failed, their sole strategy is to make people believe Trump tried to overturn the last election, and having not succeeded, chose the odd path of re-embracing the electoral process. There is room to judge Trump’s actions. But that judgment must not come from a kangaroo court, if you want to talk about preserving the rule of law. We were never even close to losing our democracy. The system worked is the real message echoing from January 6.

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

Posted in Democracy

Justice, Albeit Late, at Oberlin College and Gibson’s Bakery

June 19, 2022 // 2 Comments »

An African-American college student was arrested for shoplifting and a culture war erupted at Oberlin College, Ohio. He’s black now, the term African-American itself becoming offensive to some in the interim, and the war is mostly over. Ultra-liberal Oberlin lost after six years of legal wrangling. Oh, and the college owes $33 million in defamation damages to the surviving white people (two of the plaintiffs died of old age while the trial dragged on) who own a bakery it defamed over racial issues.

It was 2016 and Donald Trump had just been elected president, defeating candidate Clinton. Everyone was certain Trump’s victory was the End of Democracy and was anxious to claim their victimhood in the New Order.

Enter Oberlin College, arguably the most socially liberal school in America. Students protested the inauthenticity of food at the school’s Afrikan (sic) Heritage House and complained the cafeteria sushi and bánh mì were prepared with the wrong ingredients, making a mockery of cultures. There was scrutiny of the curriculum, and a student wanted trigger warnings on Antigone. African-American students wrote a letter to the school’s president with 50 non-negotiable demands for change in Oberlin’s admissions and personnel policies. And all that was seen — in 2016 — as a good thing. Such were the times.

Then on November 9, 2016 (just the day after Donald Trump was elected), three black students from Oberlin College were arrested for attempting to steal wine from nearby Gibson’s Bakery. The shop was as much a part of the traditional Oberlin scene as the statues and college green. The white owner confronted one student, who ran from the store. Outside, the owner detained him, and while waiting for the police was attacked by two other black students. The students eventually entered guilty pleas, and were convicted. They read statements recanting allegations of racism against Gibson’s. Nothing connected the theft with Trump or racism except… racism.

Upon hearing of the arrest Oberlin’s Student Senate immediately declared the incident a case of racial profiling, and without investigating passed a resolution calling for a boycott of the bakery. The college’s administration sent an email to students implying Gibson’s discriminated on the basis of race. Then-Oberlin Dean of Students Meredith Raimondo (she’s now vice president for student affairs at Oglethorpe University) handed out flyers supporting the boycott. As protests kicked into higher gear, Oberlin College provided a break room stocked with coffee and pizza in a nearby school building. Dean Raimondo also agreed to reimburse a student for money spent on gloves given to protesters to combat the cold weather. Raimondo had the college’s food distributer cut off food from the bakery. Gibson’s business suffered.

The problem was the bakery did not racially profile anyone. The students had been shoplifting. The college acted against the bakery (“tortious interference with the business relationship” said the court) based on nothing but its underlying anger at Trump’s election. After some weak efforts to claim protection under the First Amendment (the legality of the protests was not in question), demand a mistrial, and blame everything on the students alone, the College dragged the case out for so long two of the Gibson’s owners died while waiting for the verdict.

The case eventually ended up at the Ohio Court of Appeals, who knew a textbook defamation case when it saw one, and quickly fined Oberlin College $33 million in damages. Oberlin can but has not yet appealed the decision further. It was left to Ohio Attorney General Dave Yost to tweet the ruling represented “The cost of woke.” He was mocked on Twitter, of course.

As knee-jerk reactions driven by an anti-Trump political agenda were a mark of the Trump Administration years themselves, so will defamation lawsuits, like the one with Oberlin, be a symbol of the post-Trump era. Defamation is a statement that injures a third party’s reputation, either as libel (written statements) or slander (spoken statements). Proving defamation requires showing four things: 1) a false statement purporting to be fact (Gibson Bakery is racist); 2) publication or communication of that statement to a third person (the flyers and protests); 3) fault (e.g., intent) amounting to at least negligence (Oberlin ignored the shoplifters’ guilty pleas and other facts regarding the underlying crime); and 4) damages (Gibson lost business.)

The Gibson case aside, the most likely source of defamation today is the media, given their reach via “publication.” So why aren’t there more defamation suits? First, the courts in the U.S. traditionally set the bar high to preserve the 1A’s duty to constitutionally-protected opinion. Historically the courts have also granted leeway to anyone, journalist or not, who appears to defame public figures. The idea is that if you put yourself out there, you’re expected to take a few slings and arrows. This is what allows tabloids like the National Enquirer to get away with making up stories about celebrities as their mission statement. But defamation as a business practice was once upon a time what bottom feeders did, not regular practice for the media of record and college deans.

Things may be changing given the free-for-all media environment which relies on defamation to generate clicks. In addition to the big money Oberlin case, two years ago Covington Kid Nick Sandmann successfully sued CNN for defamation to the alleged tune of $25 million. The media falsely accused Sandmann of racism on the National Mall when he and some fellow high school students were confronted by actual racists. Sandmann’s suit charged CNN journalists “maintained a well-known and easily documented biased agenda against President Donald Trump and established a history of impugning individuals perceived to be supporters of the president.” They asserted CNN and the others would have “known the statements to be untrue had they undertaken any reasonable efforts to verify their accuracy before publication.” In other words, they should have committed journalism, the finding of facts, in lieu of packaging what was actually nothing at all into a steamy piece that fit an existing agenda.

In another example, John Paul Mac Isaac came to own Biden’s laptop after the president’s son abandoned it in his repair shop, the Mac Shop, in April 2019. The repair shop owner recently filed a defamation suit against the Daily Beast, CNN, and Politico seeking at least one million dollars in compensatory and an unspecified amount in punitive damages. Those media outlets claimed that Isaac was a liar who stole Biden’s laptop.

The mind set of 2016 seems so long ago. People like AOC and her Squad, Michael Avenatti, and Andrew Cuomo were thought of as likely presidential candidates. Yet justice grinds on. Just check with the people who have to pay for it at Oberlin College.

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

Posted in Democracy

Five Unanswered Questions for the January 6 Hearings

June 18, 2022 // 9 Comments »

Imagine a BLM member’s trial in which the prosecution simply played videos of acts of violence over and over, even acts not related to the defendant in question. Sound fair, a quest for truth, a process to establish facts? No? Well, welcome to the Third Trump Impeachment, aka the January 6 televised hearings.

Having watched a lot of PBS back in the day, I kept waiting for hearing chair Bennie Thompson to appear on my screen asking for a donation to “stop the violence” and promising me a Democratic tote bag if I phoned in my pledge of $50 or more. That was the tone from, as they say, gavel to gavel. But there are so many important things being left out in the Dems desire to showcase violence. Here are just five of the hearings’ unanswered issues.

1) Dems and groupie Liz Cheney constantly use words like coup, insurrection, incitement, sedition, and treason. Most of them are lawyers and are well aware those words have specific legal definitions. They’re real fighting words, not to be thrown around like casual slurs against a man who once was president and has a very good chance of being president again. So let’s add one more: indict. It is easy to be the bully, ganging up unopposed on TV to say nasty words. But they only count if the Department of Justice indicts Trump for one of them and seeks to bring him to trial. That’s why we have a judicial system, to prevent organs of government from simply making accusations against citizens without due process. Indict him or drop it. If there are not grounds to indict, drop it. Democrats, put up or shut up.

Like the members of the Warren Commission before them, the people claiming the accepted narrative about January 6 is beyond reproach are the same ones blocking any court challenge that might challenge it. Potential game-changers are wish-washed away as conspiracy theories, not to be spoken of. You will not hear the word indictment raised this week in the hearings.

2) Are we finally going to hear who Ray Epps is and what the role of the FBI was on January 6? It would take a simple series of questions from the committee: Mr. Attorney General, how many undercover people did you have on the ground on January 6? How many of them traveled to D.C. with groups they had elsewhere previously infiltrated? What was their purpose on January 6? What were their rules of engagement—in other words, what were they allowed to say or do? Could they scream, “Yeah, let’s go!” and lead people forward? Could they give statements to the media misrepresenting the aims and mood of the crowd without revealing their identity? Did any of the agents stray from being after-the-fact accessories and instead become provocateurs?

You would think, at least, that the raw number of undercover officers on the ground on January 6 would be an easy question to answer. Yet when Representative Thomas Massie asked Attorney General Merrick Garland at an earlier hearing in October 2021 if any federal agents or assets entered the Capitol or incited others to riot, Garland refused to answer. Massie played a video of a man on January 5 saying “we have to go into the Capitol,” and asked Garland if that man was a fed. No comment, said Garland. That man was Ray Epps, president of the Arizona Oath Keepers, who is also seen on video organizing the first group to breach the Capitol. That is just one minute after a pipe bomb had been found, as if the acts were themselves a conspiracy. This all appears to have happened even before Trump finished his “incitement” speech.

Epps refuses to answer journalists’ questions about whether or not he is a federal agent and is still a free man. Why? Under oath and before the January 6 committee, someone should ask FBI Director Wray, Attorney General Garland, and Ray Epps to give a yes or no answer to this question: Did Ray Epps work for or with the federal government? Why won’t they ask that question? You will not hear Epps’ name on the televised hearings this week.

3) While the Justice Department has called the inquiry into January 6 one of the largest in its history, why has no information come to light on the pipe bomber? Two bombs were planted near the Capitol. Official Washington is one of the most heavily surveilled spots on earth. Why haven’t the Capitol Police allowed the release of more than a few minutes of the 14,000 hours of the pre-riot security-camera footage? Social media only shows the riot in process. The surveillance video would show what happened before. Who planted the pipe bombs?

4) Why, and on whose order, did Capitol police allow 300 people to simply walk into the building without resistance on the afternoon of January 6? And who was the man in a bicycle helmet whom video shows initiating the window-smashing that ended in the shooting of Ashli Babbitt? Why was he welcomed behind police lines once things got out of hand?

5) We’ve heard over and over people died on January 6, and indeed they did. At what point will Ashli Babbit’s killer, who was never punished and never faced a trial (simply an inquiry; because Congress exempts the Capitol Police from the Freedom of Information Act, the family is forced to sue “for notes and summaries of what the officer said regarding the shooting and the reasons he discharged his weapon.”) testify? When will the Committee start showing the video of her being shot by Capitol Police? Babbitt, wearing a Trump flag like a cape, was one of the rioters who smashed the glass on the door leading to the Speaker’s Lobby of the Capitol. A plain clothes Capitol Police officer, without warning, fired a shot and Babbitt fell into the crowd and died. It was the only shot fired in the riot. A SWAT team just behind Babbitt saw the situation differently and never fired on her or those with her. Babbitt was unarmed and was not resisting arrest because the cop never got that far. He just shot her.

Though these issues will be missing from the hearings, what is missing most of all from the Great January 6 Democratic Telethon is a statement the system worked. The Constitution held. Officials from Vice President Pence on down did their jobs and stood up for the democratic system. Trump was never going to retain office. The whole thing is flim-flam, the truth another victim to Democratic desperateness to frame Trump for something, anything, ahead of 2024.

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Posted in Democracy