• Before the Vote, What I Saw at the Kavanaugh Confirmation Hearings

    October 2, 2018 // 33 Comments »



    Everyone knew the testimony would not clear anything up. You were expecting a Colonel Jessup moment from A Few Good Men? Instead, the Judiciary Committee vote, likely along party lines, is scheduled for Friday with basically the same information in front of members as they had yesterday.

    Along the way the world’s self-proclaimed greatest deliberative body soiled itself with partisan rancor – slut-shaming a woman not present, calling a sitting judge a drunk without evidence, and then labeling him a gang rapist, all in efforts to provide… advice and consent.

    Christine Blasey Ford is a serious, empathetic, and sincere woman. That does not alter that prior to her testimony today, Ford’s accusation as she repeated it in front of the Judiciary Committee had already been refuted by everyone she said was present at that party in 1982 where Supreme Court nominee Brett Kavanaugh allegedly assaulted her. Her “evidence” was she had told a similar story earlier to her husband (albeit without mentioning Kavanaugh by name), some “beach” friends in California recently, and her therapist (again without mentioning Kavanaugh by name), what most people in or out of a court would consider repetition, not corroboration. When asked about the possibility the assault took place but that she misremembered the assailant as Kavanaugh, Ford just said no and things were left there.

    There never could be any physical evidence nor was any suggested to exist to investigate. Ford admitted not remembering specifics that could have formed the basis of exculpation, including how she got home from the party, that driver being in a key position to assess Ford’s condition after the alleged assault and thus support or weaken her story. By not providing an exact date and location for the alleged assault, Ford did not allow for Kavanaugh to present an alibi, proof he was somewhere else. Ford in fact couldn’t say where they both were supposed to be to begin with, apart from “a suburban Maryland house.”

    The attorney speaking for the Republicans gently pointed out multiple inconsistencies and inaccuracies between Ford’s previous statements and today’s testimony, walking Ford back from assertions to assumptions. The questioning was consistent with what is done in sexual assault prosecutions to help evaluate the credibility of witnesses. Ford in the end presented a dramatic, heartfelt but ultimately general accusation, backed by the hashtag of #BelieveWomen that precluded any serious questioning of her key assertions, and nothing more.


    Brett Kavanaugh made clear from the initial reports right through the hearing Thursday none of what Ford (or his later accusers) said happened, had happened. He was unambiguous. He left no wiggle room. He could add no additional details to describe something that had not taken place. Clever lawyers created the appearance of a he said/she said. These are typically a case of two contradictory versions of a single event, as in date rape cases where sex is acknowledged by both parties who differ over the presence of consent. Kavanaugh’s situation is different; for the past four decades there was no “she said” until a handful of Democratic senators standing behind a victim they may have outed themselves forced Kavanaugh to deliver another round of “he said” denials today.

    Kavanaugh showed real emotion in today’s testimony, calling how he has been treated a political hit, revenge, the expression of left-over anger from the 2016 presidential election, a national disgrace, finally breaking into tears. He called out the media for slut-shaming one of his female friends based on a vague high school yearbook reference. Multiple Democrats returned to the same accusations later anyway.

    The outcome of all this hinges on a philosophy that believes people without discerning inquiry based on emotional responses and political expediency (i.e., a “credible accusation.”) So about the only real question left after today’s testimony was whether 99.99% or 100% of the people watching had already made up their minds in advance. Like any investigation that might have been launched, no clarity was possible under the circumstances. Ford was unable to prove the positive and Kavanaugh could never prove a negative.

    Truth became in the end extraneous to what was really going on. Ford was a prop used against Kavanaugh by Democrats seeking to shift from holding a confirmation hearing they would likely lose to a referendum on mistreatment of victims of sexual assault they might win.



    Democrats used their questioning time to make stump speechlets about the horrors of sexual violence, one going as far to say Ford had “inspired men to listen to women.” Nearly every Democrat ceremoniously entered thousands of letters of support for Ford “into the record.” To make sure everyone really, really got the point, Feinstein invited celebrity #MeToo activist Alyssa Milano to attend Thursday’s hearing (and speak with the media, of course.) Everyone cranked out plenty of campaign B-roll. This was theater.

    At times things seemed one step away from bringing in Handmaiden’s Tale cosplayers. The once great Senator Patrick Leahy engaged in an argument about the meaning of slang terms used in a 40 year old high school year book with a nominee to the Supreme Court, as if proof of immaturity was proof someone was a gang rapist. Another exchange focused on whether a word meant puke or fart. For every careful courtesy shown Dr. Ford during her testimony, Democrats treated Kavanaugh like a cheap punching bag.

    Sensing the confirmation might not go their way and needing someone to blame, Feinstein spent her question time trying to coerce Kavanaugh into requesting an FBI inquiry. Senator Durbin demanded Kavanaugh to turn to the White House Counsel present at that moment and demand an FBI investigation on live TV. When Chairperson Grassley cut that off, Durbin responded by telling Kavanaugh if he had nothing to hide, he had nothing to fear, a line often attributed to Joseph Goebbels. Senator Kobuchar played good cop, trying to persuade Kavanaugh to call for the FBI. Expect the demand for an investigation to be Maddow’s (and Wolf’s, and Twitter’s) talking point tonight, when everyone cries for the confirmation vote to be delayed. To call it all a circus is a disservice to real clowns.


    How did the very serious business of #MeToo end up a political tool?

    Only about ten days ago, without the votes to reject Brett Kavanaugh, Democrats started throwing stuff against the wall hoping something would stick. It started with Cory Booker’s failed Spartacus stunt. Kamala Harris, a fellow 2020 Democratic presidential aspirant, demanded more documents about well, something, we hardly knew then or remember now the issues from two administrations ago, brought forward likely in the hope there might be a perjury trapplet buried in those 100,000 pages for an intern to find.

    Kavanaugh was accused of having a gambling problem, and of being an alcoholic (Senators Hirano, Kobuchar, and Booker accused him of having a drinking problem again today, Kobuchar explaining she knew one when she saw one because her grandpa was in AA.) And how had he paid off his debts after buying baseball tickets for friends? A pattern emerged: the goal wasn’t to suggest Kavanaugh was unqualified as a jurist but to insist he was unqualified as a human being. In each instance Kavanaugh denied the accusations. He couldn’t add much more. He couldn’t prove a negative no matter how many times the Democrats and the media demanded he try. Until…


    Until a strategy ripe for 2018 finally emerged – he’s a witch! How do we know he’s a witch? Just see how vehemently he denies it! Well, maybe not a witch, that’s so 17th century. But a rapist is 2018, where a Resistance-charged mob can be convinced denial is proof of guilt. One can still credibly deny being a drinker, or a gambler, or stealing money in 2018, but one is no longer allowed to simply say no when accused of sexual assault.

    Democratic lawmakers went out of their way to gleefully proclaim this was a hearing (or “a job interview,” in Feinstein’s Constitution-contradicting words), not a trial, and so their plan was not going to be sidelined by fussy old stuff like a presumption of innocence. There was no question Ford’s testimony was really just an excuse to prosecute Kavanaugh. Senator Hirano, in basically announcing no holds were barred because this was not a trial, sounded more like she belonged in the Octagon than a Senate chamber. Cory Booker asked questions like a bad first year law student, stopping just short of demanding if Kavanaugh still beat his wife. A woman of lost virtue had been found by the Democrats, was willing to point her finger, and we was gonna have us a lynching. It might as well have all been set in a sweaty Alabama courtroom decorated to look like 1950.

    With all the theatrics, much of the context behind today’s main event was missed. Christine Blasey Ford’s path to the hearing has not been given much critical attention. She wrote to her local representative this July with a request for anonymity. The letter was sent to Dianne Feinstein, who sent it to the FBI. Ford as the victim was then outed publicly after all of the above gambits to derail Kavanaugh failed, dramatically just hours before his assured confirmation vote. Ford testified today she never gave anyone permission to release her letter or name to the public.

    The media, normally reluctant to splash victims of sexual assault across the front pages, went into spasm. Nobody seemed overly concerned about who, how, or why Ford’s name was leaked. No one seemed to include Feinstein’s sitting on the letter for weeks in their stories claiming Republicans weren’t giving the accusations enough time to be heard, though Chairman Chuck Grassley raised the point today.


    Ford was near-perfect for the Democrats’ purposes, the archetype Clinton voter, down to a photo circulating of her in her pink pussy hat. The hearings brought together everything anyone hated about Trump in a mediagenic bundle: mistreatment of women, fears over Roe, white male privilege, every tidbit of identity politics teed up. And when idea emerged really “credible” cases had multiple accusers, the always-reliable Rowan Farrow dug around until he found another. Michael Avenatti, the Fagin-like wrangler of Trump-era accusers, was unleashed. He did not disappoint, phoning The View the afternoon before Ford’s testimony to accept congratulations for finding a victim (again with no evidence or corroboration; 64 people who knew Kavanaugh well in high school say they have no idea who the accuser is) who upped the accusations against Kavanaugh to gang rape.

    Alongside, Politico called Kavanaugh a liar for claiming he was a virgin in high school (Kavanaugh re-confirmed his virginity as a senior today) and thus questioned his credibility on all things. A new witness appeared then disappeared. Two men claimed they were the ones who assaulted Ford. Third-party hearsay accusations made headlines. Rawstory libeled by association the attorney Republicans hired to question Ford. Mark Judge, a supposed witness to the Ford assault who actually exculpated Kavanaugh, was smeared as a drug and sex fiend. Yale was painted as Sodom.


    The counter-narrative that this was a Democratic set-up, with Ford as an unwitting victim of that, too, is all of this emerged organically and righteously, after decades, albeit right on time. The accusers were never compelled to speak up by civic duty during Kavanaugh’s years in the White House. Or when he worked with Special Counsel Ken Starr and was looked into by Bill’s Clinton’s supporters doing opposition research. Or during the confirmation hearings that seated him as a lifetime appointee on the Court of Appeals. Or during his original hearings a week or so ago, including by Dianne Feinstein, who already had the information from Ford literally in hand. And none of the assaults, including ten “gang rape” parties, ever resulted in even one complaint by a parent who noticed her child come home in the condition someone who was drugged and raped by multiple men would be in. And the FBI, which conducted six full background checks on Kavanaugh over his decades of government employment, just plain missed it all.

    In the end, everyone is going to believe what they want to believe. It is unclear a single mind was changed today, as it is equally likely not a single mind today was open to change. Something terrible happened to Christine Blasey Ford when she was in high school, there seems little doubt, but it is quite unclear that that also involved Brett Kavanaugh.

    Ford, despite her doctorate, came off as almost naive, claiming not to know what exculpatory evidence was, saying she didn’t understand why people encouraged her to hire a lawyer before going public, testifying she didn’t know why she took a polygraph test and had no idea who paid for it. She said she did not know how her lawyers, one a Democratic regular recommended to her by Feinstein, were paid. She appeared a bit mystified by the vast forces swirling around her, and seeming to believe, a modern-day Mr. Smith, the system would work and honorable people would empower her, not use her. As the day ends and we move into the nightly news cycle, no one in America will have the conversation they need to about whether the Democrats’ ends justify their means.


    The final question goes beyond what happens to Kavanaugh. Will the same strategy the Democrats ran and lost on in 2016 — Trump and his people are pigs, vote for someone else — serve them any better in November than it did this week?




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    Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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    Posted in Democracy, Trump

    Requiem for Justice: “Credible Accusation” and Brett Kavanaugh

    September 26, 2018 // 30 Comments »




    Without the votes to reject Brett Kavanaugh, and after a failed Spartacus stunt or two, a strategy ripe for 2018 emerged– he’s a witch! How do we know he’s a witch? Just see how vehemently he denies it!

    Well, maybe not a witch, that’s so 17th century. But a rapist is 2018, where a Resistance-charged #MeToo mob can be convinced denial is proof of guilt and evidence is unnecessary.


    (This is published before the testimony of Professor Ford and Judge Kavanaugh on September 27)



    Though we will somehow move on from Kavanaugh no matter the ending of his confirmation, those problems do not go away gently. Like those claiming it’s great news the First Amendment doesn’t apply to private companies, allowing non-progressives’ free speech rights to be dumped in the trash, claiming because Kavanaugh’s confirmation wasn’t a trial anything goes – particularly the weaponized use of “credible accusations” — is making us incapable of rational participation in civic life.

    “Credible accusation” is not a legal standard. But in 2018 politics “credible” has become a pseudo-standard with enormous power handed essentially to a mob buttressed by traditional and social media, especially when coupled with another new hashtag standard, #BelieveWomen (morphing into the more dramatic #BelieveSurvivors.) They are meant in the best of intentions to correct injustices of the past. They are used now under the worst of intentions as political weapons. No past mistakes are resolved by defining credibility as an emotional reaction to an accuser’s story, twisted for partisan political ends.

    How partisan this all is is made clear when the new rules are applied only in cases of sexual assault. We are not admonished to believe women are more accurate witnesses in income tax fraud cases, even against white male Republicans. We are not told to believe women face no challenges of politically motivated accusations around shoplifting incidents. We are not admonished to believe women are incapable of lying, misremembering, exaggerating or making a mistake in water rights disputes.

    This all allows a unitary actor declared “credible” by default (there seems to be no allowance for a non-credible accusation of sexual assault in 2018) to initiate harm simply by pointing a finger. It really is conceived by progressives as just that easy: “Even if it wouldn’t support a criminal conviction or civil liability, a merely credible allegation is enough to disqualify him,” wrote the New York Times.

    And when the public tires of the one accuser, dig around until you find another. Send Michael Avenatti, the Fagin-like wrangler of Trump-era accusers, to round up as many as needed. Without the need for corroboration, they are not hard to find in bulk. Under the Kavanaugh standards, nearly any person can destroy anyone among tens of thousands of people they went to high school or college alongside of, or ever worked with. Not convinced? In the comments below, leave the details of your next scheduled job interview. And then be prepared to prove you were not in a specific room four decades ago if you want the job, because someone might make a call.

    Of course these are confirmation hearings, not a trial, some say, gleeful the written rules of law don’t apply and they are free to create new standards and expedient practices to fit the needs of the moment. But that is a gross misunderstanding of the “rule of law” which will haunt America past Kavanaugh.

    Like free speech, fairness, and justice, rule of law is a philosophy that underlies a just society, not merely something partially codified in dusty books. Rule of law is a way of living together under a known set of standards, equally applied, with changes broadly supported. Things like the accuser rightly bears the burden of proof. Jobs, respect, property, and freedoms are not taken away by accusation. Claims of innocence are not treated as proof of guilt.

    In Kavanaugh’s case, no evidence has been presented other than the accusations themselves. Whether written to a Congressperson, told to a therapist, or mumbled to a friend, in the end the circle is a circle that points back to a single person, the accuser herself. That’s repetition, not corroboration. Kavanaugh stated the events did not happen. For the past four decades there was no “she said” until a handful of Democratic senators forced Kavanaugh to deliver a “he said.”

    With Kavanaugh, his unambiguous denials are by definition not credible, as the inverse of Believe Accusers is to Disbelieve the Accused. Kavanaugh has been repeatedly asked for more details, somehow a more persuasive denial, of something he says never happened. The task set before him was to prove a negative, then do it again when a new accuser was produced with an even vaguer scenario from years ago. Give us more details of the trip to Paris you never took!

    We were warned. Franz Kafka, in The Trial, has his main character, known only as K, taken to jail without ever being told what his crime might have been. “I’m not guilty,” said K. “There’s been a mistake.” “That is how the guilty speak,” replied the priest counseling him.

    It seemed any defense at all was wrong. “Though Kavanaugh has been careful not to slime Ford, his denial of the incident impugns her anyway,” wrote the Atlantic. When asked if there was anything a truly innocent Kavanaugh could do to prove his innocence, Senator Tim Kaine replied: “That’s kind of very hypothetical.” Jennifer Rubin in the Washington Post claimed it didn’t really matter what Kavanaugh said, it wasn’t even in his hands: “It’s not simply that Kavanaugh must be convincing — Christine Blasey Ford has to seem unconvincing.” Matthew Dowd at ABC took that even further and claimed it didn’t matter what either party testified, simply that “Let’s believe the she… For 250 years we have believed the he in these scenarios. Enough is enough.”

    Reason and judgment become subordinate to a social and political agenda. The point is to take advantage of alleged victim-hood before it’s been proven, to use assumed victim-hood to shut down questioning whether there even is a victim. In this mindset Kavanaugh should have been finished months ago when the first accusation appeared anonymously, or maybe it was really all over in 1982 that very night at the high school party, and the rest of this, including his decades on the bench, has been unnecessary epilogue.

    It all tracks with a dire situation in our society where people are increasingly unable or unwilling to listen to different viewpoints as forces inside America have succeeded in turning people against the once-sacred ideal of free speech. Now, speech, fairness, and justice are no longer goals or ideals, just tools to be manipulated expediently to serve political ends. “That’s offensive!” (or sexist, or racist) is an accusation, but it is also understood as evidence itself of the truth of the accusation; why would the accuser be motivated to lie? Aren’t all opinions valid, even if the opinion becomes an accusation? How can a self-absorbed individual leave mental space for her own thoughts to be… wrong? The accusation is enough to demand resolution. Take that and expose it to shrewd Democratic politicians and you get the Kavanaugh confirmation process. And likely the next one, too.

    This is very dangerous territory for a nation claiming to fear the loss of the rule of law. In the worst days of racial injustice, evidence-free accusations of rape from a white woman sent groups of black men to be lynched, her testimony as unquestionable as virtue itself. During the McCarthy era, mere accusations of communist ties were used to destroy political enemies; questioning that meant you were unpatriotic. Scholars find evidence accusations during the infamous Salem witchcraft trials were used to settle land disputes, with questioning the accusers seen as a direct affront to God. In my time in Iraq, an accusation of al Qaeda affiliation from a tribal leader being courted by the U.S. could bring a Special Forces night raid down on a neighbor of his choosing. There are dark lessons here.

    The Democrats have managed in about a week to take the very serious business of #MeToo and turn it into a partisan weapon. In the extreme, they propose no common humanity, simply a society of rapists and their enablers, and victims and their allies. Kavanaugh, the recent process demanded, is more than unqualified for the Court; he is a rapist and liar, unqualified as a human being. Which side will you vote for? It might create a Blue Wave, or it might drive people to vote Republican as a matter of self-defense, more soul-crushing negative partisanship to the body politic.

     

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    Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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    Posted in Democracy, Trump

    Love, Visas and Marriage in Post-Constitutional America

    May 12, 2015 // 4 Comments »

    visa

    The government can block your foreign husband or wife from living with you in America, based on secret information you can’t see or contest. Like with the No-Fly list, in post-Constitutional America the walls are built of secret databases.

    Taking Visas to the Supreme Court

    On February 23, the Supreme Court heard oral arguments in Kerry v. Din. The U.S. government is seeking a writ of certiorari agreement by the Justices to review a lower court decision granting Ms. Din and her Afghan husband judicial review of his immigrant visa—green card—application. The state department permanently denied permission for the husband to live in the U.S. because he is supposedly a “terrorist,” based on secret information that will not be shared with Ms. Din or her spouse to allow rebuttal. Under present law, the state department’s decision to refuse the green card is subject to no outside review.

    Consular officers working overseas for the department of state process visas. In nearly every non-drug-related denial, the foreign spouse can get a waiver and go on to live in the U.S. Throughout the process, the American and her spouse speak directly with the primary decision-maker and be able to rebut the information used against them.

    Things change significantly in security cases. The information used to refuse a visa to a “terrorist” comes from the CIA, FBI, or NSA (information is also provided by intelligence agencies in Canada and Australia) and is highly classified.

    Secret Lists and Secret Decisions

    How all this works is almost a mini-history of post-Constitutional America.

    The State Department’s consular officers issued legal visas to all of the 9/11 terrorists, in part because the CIA failed to pass information on via the computerized Consular Lookout and Support System (CLASS). The number of records have grown 400 percent since 2001 in response, and CLASS is now one of the largest known databases in the world.

    A problem with all those records is that many contain only a subject’s name, nationality, and limited identifying information. State department officers regularly wallow through screen after screen of “Muhammad, No Last Name, No Date of Birth, Born in Egypt.” The potential for misidentifying a subject is significant, but the post-9/11 mantra of better safe than sorry leans heavily toward refusal.



    Mistakes Were Made

    Mistakes entering people in secret databases, and mistakes of identity, are so common that online forms for making airline reservations all include a field for a redress number, a link to a Department of Homeland Security (DHS) file that shows a subject has proven he is not the targeted person. One infamous case involving a database mistake is that of Malaysian doctoral candidate Rahinah Ibrahim, who was placed on the secret No-Fly list and denied the chance to finish her degree at Stanford University. The reason? An FBI agent accidentally checked the wrong box on a paper form.

    As in the Ibrahim case, the actual consular officer/decision-maker overseas in the embassy never sees the underlying reporting that led to the data entry. She simply gets an electronic indication that the info exists, and then denies the visa. State Department policies state that she should not “look behind” the computer notice. The denial is based on the assumption that someone at CIA validated the information, that the person applying for the visa is indeed the person in the secret record, and that the information represents a violation of visa law. Once fiercely independent consular officers have become deferential subordinates to anonymous intelligence agency officials.

    Such blind use of secret databases is at the heart of Kerry v. Din. Ms. Din seeks judicial review of her husband’s visa denial because, without explanation, he was deemed a “terrorist.” The U.S. Court of Appeals for the Ninth Circuit said she should be entitled to that review; the government’s admonition that everyone should simply trust them to have done the right thing was rejected.



    Non-Reviewability of Government Decisions

    The government now wants that court decision squashed. It steadfastly defends what is known as the doctrine of consular nonreviewability. This early-20th century doctrine maintains no one has a right to a visa, and that Americans do not enjoy a right to live with their spouses. It maintains that any review necessary of a decision should be done internally by the state department itself, under criteria it establishes for itself, becoming a government decision not subject to judicial oversight.

    The issue of consular nonreviewability acquired new meaning after 9/11. Key in Kerry v. Din is that the consular officer herself is not actually making any decision per se. She cannot see any of the underlying information on the watch list, and simply defers to the CIA and refuses the visa. CIA claims it did not deny any visa, and points to state.

    The Questions

    At issue in Kerry v. Din is the narrow question of whether or not an American citizen can know, and contest, the reason why her spouse cannot live in the United States.

    The broader question is more significant: in post-Constitutional America, when more and more of our lives are controlled by secret lists built of secret information of often suspect quality, such as with No-Fly, is the courtroom door open to citizens to challenge our government?


    Disclosure: I am a retired consular officer, with 24 years of visa experience, and an amici to the above case.




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    Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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    Posted in Democracy, Trump

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