Author Archives: weeklysift

Doug Muder is a former mathematician who now writes about politics and religion. He is a frequent contributor to UU World.

Legal Bother

If the moral calculation is simply, “Did the ends justify the means?” it’s hard to see why we even bother with laws in the first place.

Chris Hayes (Wednesday)

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

The United Nations Convention Against Torture (1984)

Should any American soldier be so base and infamous as to injure any [prisoner] … I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require … for by such conduct they bring shame, disgrace and ruin to themselves and their country.

George Washington (1775)

This week’s featured post is “5 Things to Understand About the Torture Report“. A couple of Sift milestones: I moved the Sift to WordPress and started trying to upgrade it in June, 2011. The WordPress stats inform me that the blog is one recent-average-week away from its 1 millionth page view. Also, the 4,000th comment happened last week.

This week everybody was talking about torture

My comments on the Senate’s torture report are in “5 Things to Understand About the Torture Report“.

But the public debate about the report was also illuminating. By coincidence, the report came out in the middle of a cycle of protests against police violence, emphasizing how quickly conservatives can flip-flop on government power. It’s tyranny to do a background check on gun-buyers. It’s tyranny to make people buy health insurance — a step towards the ultimate tyranny of making them eat broccoli. (My Mom was just like Hitler that way.) But when the agents of government power shoot unarmed black men on the street or torture someone in a secret off-shore prison, that’s just dandy.

One of my Facebook friends brought the proper descriptive term to my attention: herrenvolk democracy. Herrenvolk is the German term that usually gets translated “master race”. So herrenvolk democracy is the belief that democratic principles are wonderful as long as you restrict them to the right people. As in: I have the right to carry a gun in public, but it’s fine if police shoot down John Walker. I have habeas corpus and due process rights, but it’s OK to drive Jose Padilla insane by holding him in sensory deprivation for three years without filing charges.

The ultimate American herrenvolk democracy was the Confederacy, whose flag tea partiers love to wave. It zealously defended the democratic rights of white people, including their right to own black people. In today’s vision of herrenvolk democracy, the “right people” aren’t always so clearly defined as white vs. black. But whenever someone starts talking about “real Americans“, that’s what they mean — not everybody who is technically a citizen, but the much smaller group of Americans who ought to have freedom and a voice in government: the Herrenvolk.

and avoiding another government shutdown — for a price

True to their word, Mitch McConnell and John Boehner didn’t shut down the government again. But they did extract some ransom on behalf of their clients on Wall Street.

The budget deal that passed Saturday night contained a number of what are called “policy riders” — changes in the law that have nothing to do with the spending and taxing a budget is supposed to be about. This is a prime way for Congress to give special interests unpopular favors, by attaching them at the last minute to a bill that has to pass.

Maybe the worst special-interest rider repeals Section 716 of the Dodd-Frank financial reform package that was passed to keep the 2008 financial catastrophe from happening again. The blog Next New Deal has the details:

Section 716 of Dodd-Frank says that institutions that receive federal insurance through FDIC and the Federal Reserve can’t be dealers in the specialized derivatives market. Banks must instead “push out” these dealers into separate subsidiaries with their own capital that don’t benefit from the government backstop.

In other words, Dodd-Frank used to say that banks couldn’t make big, risky bets, keep the profits if they win, and stick taxpayers with the bill if they lose. Congress just repealed that.

Who would draft such a law? Citicorp.

and the University of Virginia rape story

I’m sure Rolling Stone and Sabrina Rubin Erdely meant well. Campus rape is a problem in need of a poster girl, so they provided one: “Jackie” from the University of Virginia, a September freshman who is lured into an upstairs bedroom by her date “Drew”, and then gang-raped in some sort of frat initiation ritual. Her friends discourage her from reporting it. (“She’s gonna be the girl who cried ‘rape,’ and we’ll never be allowed into any frat party again.”) And when she does get around to telling her story to UVA officials at the end of the year, they seem more interested in protecting the school’s image than in seeing justice done. (“Nobody wants to send their daughter to the rape school.”)

That story is the horrifying scaffolding on which Erdely hangs many true and important facts and statistics about campus rape — numbers that by themselves are too lifeless to publish in a glossy magazine, and wouldn’t go viral online like Erdely’s article did. That’s what good stories do: pull dry facts together into something that has emotional punch and demands action.

The problem? The writer and editors didn’t do basic fact-checking on Jackie’s story. When The Washington Post did, a bunch of details didn’t hang together. That started a backlash, in which one slimeball released what he says is Jackie’s real name.

Personally, I still believe the core of Jackie’s story. But Erdely should have known that this is exactly the kind of situation where memories drift: Jackie bottled up her traumatic story for an entire academic year, then got involved with a rape-survivor group that caused her to retell it many times. In such settings, people have a tendency to remember previous tellings of their stories rather than the actual experiences. (My childhood memories aren’t all that traumatic, but I can tell they’ve drifted. Occasionally I remember some event with HD clarity, then realize the room I’m picturing it in wasn’t built yet.)

So in the end, Erdely succeeded in making Jackie a poster girl, but for the bitches-be-lying chorus. Years from now, women who go public with a campus rape will be confronted with “that Virginia girl who made the whole thing up”.

Thanks, Rolling Stone. Journalism in the wrong hands can do a lot of damage.

but let’s talk about books

I just finished reading a new book that could be a good basis for discussion about race and prejudice and privilege: There Was and There Was Not by Meline Toumani.

Toumani is an Armenian-American who was born in Iran. Growing up, her identity as an Armenian is shaped around the genocide of 1915, and Turks are villains of near-mythological status. But as a young adult, she begins to wonder whether this focus on Armenians’ historical victimhood is doing them any good. Eventually she hatches a plan: She will go to Turkey, learn Turkish, and see if there isn’t some way everybody can live together in peace. This leads to one of the best opening lines I’ve ever read:

I had never, not for a moment, imagined Turkey as a physical place.

Her two years in Turkey are a lesson in the complexity of ethnic conflict, which is both more and less tractable than she had imagined. The Turks are not monolithic, and she easily relates to the other ethnic minorities: Kurds, Jews, and even the few remaining Armenians. Among the ethnic Turks, some are nationalistic and anti-Armenian, some are open-minded and egalitarian, and most are basically decent people who have never thought very hard about the slanted history they were taught in school (where Armenians are the villains of 1915 and Turks the victims) or the unfair advantages Turkish society gives them over Kurds, Jews, and Armenians.

The countryside is beautiful, Istanbul is exciting, and the culture has many charms. And yet … Toumani is always a second-class resident. Her Armenian-ness hangs in the background of every social interaction as something to be confessed and explained. (She looks more Turkish than American, but speaks with a foreign accent. Where is she from really?) The Turkish attempt at color-blindness (“We are all Turks”) is more obliterating than accepting. And even when the government preserves bits of Armenian history and culture (Armenia was a regional power from antiquity until around 1000 AD) the ethnic adjective Armenian is replaced by the geographical adjective Anatolian, as if some nameless people had occupied this land before the Seljuk conquest.

She sees another side of prejudice when she attends the pan-Armenian games in Yerevan. When the competitive juices get flowing, the anti-Turkish slurs Armenians have repeated since birth are easily brought out and used against the team from Istanbul, even though they belong to the Armenian diaspora as much as the Parisians and Argentinians do.

Toumani realizes it is time to come home to America when she recognizes her own case of Stockholm Syndrome: She has begun to internalize her second-class status. Immersion in Turk-dominated society is making her yearn for the approval of the ethnic Turks and treat them as the masters.

I can’t read this book through Armenian or Turkish eyes, but as a white American I find it worthwhile precisely because I have no dog in this fight. Issues of bias and historic victimhood and systemic privilege are fraught with guilt, anger and other emotional baggage when Americans try to think about them in our own historic context of black and white. Toumani has given us a rare opportunity to watch similar conflicts play out in a context where we can be more objective.


Daniel Sillman interviews Matthew Avery Sutton, author of the new book American Apocalypse. Sutton re-interprets Evangelical Christianity for us outsiders, and claims we’ve grossly underestimated the importance of believing Jesus is coming back any day now. Oversimplifying just a little: Mainstream Christians are liberals because they’re trying to build the Kingdom of God on Earth. Evangelicals are conservatives because they think the Antichrist is about to take over.

[T]he apocalyptic theology that developed in the 1880s and 1890s led radical evangelicals to the conclusion that all nations are going to concede their power in the End Times to a totalitarian political leader who is going to be the Antichrist. If you believe you’re living in the last days and you believe you’re moving towards that event, you’re going to be very suspicious and skeptical of anything that seems to undermine individual rights and individual liberties, and anything that is going to give more power to the state.

Well, except giving government the power to control reproduction. Maybe the full book explains that.

and you also might be interested in …

The Democrats’ problems with the white working class may make more sense that What’s the Matter With Kansas? would have us believe. Thomas Edsell lays out a simple narrative, which I’ll summarize: A generation ago, the unspoken social contract of the white working class was that they would acquiesce to class oppression if they at least got the benefit of racial oppression. By fighting for racial equality while letting class inequality get worse, Democrats broke that agreement. Now the white worker has to compete with non-whites at home and abroad, but is also under his boss’ thumb even more than in the past.

That sense of victimization comes out as resentment of non-whites, which on the surface makes no sense, because whites still have unfair advantages. But the real root isn’t “Those people have it better!”, it’s “We had a deal!”. The terms of that deal are indefensible (because racism is indefensible), so it can’t be argued in public or even consciously acknowledged. But the resentment is still there.


While I’ve been working on a big mythic vision for liberalism, Mark Bittman is taking more of a bottom-up approach: Can we link together all the movements that are getting people into to the streets? How do we see raising the minimum wage, unionizing Walmart, controlling the police, taking the country back from Wall Street, and fighting climate change as one big movement?


Think Progress published a list of 21 non-white or mentally ill people who have been killed by police under questionable circumstances in 2014.

It’s worthwhile to remember that police don’t have to shoot down even people who are armed and uncooperative … if they’re white.


Whenever there’s an unusual weather-related event, people start asking whether climate change “caused” it. Slate‘s Eric Holthaus explains why that’s a dumb question, with the California drought an example.

I’m a sports fan, so I make sports analogies. In 2001, when he was turning 37 and should have been just about over the hill, Barry Bonds hit a record 73 home runs, having never hit more than 46 homers in a season during his prime. The common explanation is steroids. But still: It makes no sense to look at any one of those 73 homers and ask whether steroids caused it. Barry was a power hitter before the steroid era. Maybe this particular home run is one he would have hit anyway.

Ditto with droughts, hurricanes, and the like. Climate change juices up bad weather events. Without it we’d still have some, but not as many and not as bad. Is this particular event one of the extra ones? Until we establish communication with parallel universes, there’s no way to know.

I only know one exception to that rule: If climate change raises sea level by a foot, then it makes any storm surge a foot higher. If you live near a coast, that may determine whether you get flooded or not.


Chris Mooney explains why the price of oil is crashing: Not so much an increase in supply as a slow build-up of supply followed by an expected decrease in demand. Kevin Drum thinks this is very good news for the economy.

and let’s close with something silly

5 Things to Understand About the Torture Report

You don’t have to read the full 525-page executive summary of the “torture report” — officially the Senate Select Committee on Intelligence’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program — to get the gist. The 19-page “Findings and Conclusions” section begins right after Senator Feinstein’s six-page introduction and is very readable.

When something this long and detailed comes out and says things a lot of people don’t want to hear, it’s easy to get drawn off into arguments that miss the point. So here are my “findings”, the main things that I think the average American needs to understand:

  1. We tortured people.
  2. A lot of people.
  3. We gained virtually nothing from it.
  4. It was illegal.
  5. No one has been held accountable for it.

1. We tortured people. Past public discussions of torture focused primarily on waterboarding, but this report makes it clear that “enhanced interrogation” also included beatings, sleep deprivation (“up to 180 hours, usually standing or in stress positions”), ice water baths (at least one detainee died of exposure), threats against detainee’s families (“threats to harm the children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to “cut [a detainee’s] mother’s throat”), and “rectal feeding without documented medical necessity”.

In addition, inexperienced and poorly trained interrogators sometimes made up their own unauthorized torture techniques, and were not punished for doing so.

Compare this to the definition in Article 1 of the United Nations Convention Against Torture, which President Reagan signed in 1988 and the Senate ratified in 1994,* making it “the supreme Law of the Land” according to Article VI of the Constitution:

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

If you are having any doubt about whether the acts described in the report are torture, imagine a foreign government doing them to an American. John McCain doesn’t have to imagine this, he can remember it, so he has no trouble calling the CIA’s program torture.

2. A lot of people. The public arguments about waterboarding usually led to the claim that we had only done it to three very bad people. But the report says the CIA applied “enhanced interrogation” to 119 people, many of whom didn’t meet the program’s own standards for inclusion.

These included an “intellectually challenged” man whose CIA detention was used solely as leverage to get a family member to provide information … and two individuals whom the CIA assessed to be connected to al-Qa’ida based solely on information fabricated by a CIA detainee subject to the the CIA’s enhanced interrogation techniques.

And remember: that’s just the CIA. It doesn’t count all the prisoners abused by the Army at Abu Ghraib and elsewhere. For an account of that torture, I recommend Fear Up Harsh by former Army interrogator Tony Lagouranis, who wrote:

Once introduced into war, torture will inevitably spread, because ticking bombs are everywhere. Each and every prisoner, without exception, has the potential to be the one that provides the information that will save American lives. So if you accept the logic that we have to perform torture to prevent deaths, each and every prisoner is deserving of torture.

3. We gained virtually nothing from it. Torture’s effectiveness in getting information out of people has been hotly debated all along. Dick Cheney and others claimed it was invaluable, while the sources Jane Mayer and Phillippe Sands talked to said otherwise. After reviewing the CIA’s records, the Senate Intelligence Committee began its findings by calling BS on torture advocates’ effectiveness claims.

#1: The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.

The shocking thing you learn as you get into the history of the program is that there was never any real reason to think it would be effective. The program was not designed by experienced interrogators, but by a consulting psychologist with no experience, based not on techniques that had gotten information out of prisoners in the past, but on a program we ran to teach our own soldiers how to resist torture. In other word, “enhanced interrogation” was designed to be torture, not to get information.

The repeated claims that torture “saved American lives” were based on several types of deception: giving torture credit for everything a tortured detainee told us, even if he told us before he was tortured; giving torture credit for thwarting “plots” that were never more than a few terrorist wannabees talking big to each other; and picking out rare nuggets of truth from a spew of lies and nonsense after we’d gotten the same information some other way.

People under torture will start saying things to make it stop. If there’s a story you want to hear, they will tell it to you; that’s why torture is so good at forcing false confessions out of people. But it doesn’t seem to be a good way to get them to tell you the truth.

In addition to gaining us nothing, the torture program cost the United States a great deal, not just in money, but in our moral standing around the world, and our international relations. The report describes how U. S. ambassadors to various countries were not cleared to know about the secret prisons the CIA had arranged to build in those countries. We can only imagine how the rulers laughed when their U.S. ambassadors pressed them to be more transparent about human rights.

4. It was illegal. The memos written by the Bush administration’s Office of Legal Counsel were already bizarre distortions of the applicable law, ignoring the clear statements of Article 2.2 of the Convention Against Torture:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

and the Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

These OLC torture memos have been repudiated by President Obama.

But the Senate report now informs us that the CIA was not telling the Bush OLC what their program was really doing, and was lying about its effectiveness.

OLC memoranda signed on May 30, 2005, and July 20, 2007, relied on these representations, determining that the techniques were legal in part because they produced “specific, actionable intelligence” and “substantial quantities of otherwise unavailable intelligence” that saved lives. … The CIA’s representations to the OLC about the techniques were also inconsistent with how the techniques would later be applied.

So the CIA lied to the OLC about what it was doing and whether it was working, and the OLC lied to the President about whether the program (as the CIA had described it) was legal. This was a frequent pattern in the Bush administration, which also turned up in the “evidence” that Saddam had an active WMD program: Some low-level analyst would shade his conclusions to correspond to what his boss wanted to hear; his boss would shade them further for his boss; and so on up the ladder.

What we don’t know for sure is whether Bush, Cheney, or other top officials wanted it this way. Were their underlings out of control and deceiving them about it? Or was this a wink-and-nod arrangement that gave the higher-ups deniability?

5. No one has been held accountable for it. In the early months of his administration, President Obama pledged that he would not prosecute the torturers at the CIA, justifying his position like this:

It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice, that they will not be subject to prosecution.

That sort of made sense: Maybe you realize what you’re doing is dicey under the law, but you’re not a lawyer and the lawyers say you’re OK. It shouldn’t be a crime to trust them.

But now the Senate report makes it clear that at least some people at the CIA were manipulating the Department of Justice’s Office of Legal Counsel, feeding it false information about the nature and success of their program, and then doing more than the OLC torture memos authorized. Nevertheless, Obama has shown no signs of changing his position.

Subsequent to his boss’ declaration, Obama’s chief of staff elaborated that the policy-makers who OK’d torture and the lawyers who invented bogus justifications for it would also not be prosecuted. He didn’t explain, but simply said, “That’s not the place that we go.” So the Obama administration ratified what law professor Jonathan Turley had dubbed “Mukasey’s Paradox” in honor of Bush attorney general Michael Mukasey:

Under Mukasey’s Paradox, lawyers cannot commit crimes when they act under the orders of a president — and a president cannot commit a crime when he acts under advice of lawyers.

In other words, if a president orders his OLC lawyers to find a way to justify him doing whatever, they all get off scot free.

But then there’s that pesky Convention Against Torture again, and that whole constitutional thing about treaties being the supreme law of the land. Countries that sign the CAT — like the United States — are obligated to investigate and prosecute cases of torture within their jurisdiction. Republicans love to call President Obama “lawless” and accuse him of failing to “faithfully execute the laws” as the Constitution mandates. I’ve argued in the past that those claims are bogus, but in this case — a case where nearly all Republicans agree with him — Obama really is failing to execute the laws.

University of Chicago law professor Eric Posner offers this argument against prosecution:

When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.

In practice, this honor-among-thieves argument comes dangerously close to Nixon’s adage that “when the President does it, that means that it is not illegal.” Nobody is willing to follow it as far as it would go. A president might order genocide out of a sincere belief that the targeted race constitutes a risk to national security, and underlings might carry out those orders for the same reason. (I suspect most of the world’s genocides can be made to fit that pattern.) Should they get off?

I want to stand Posner’s argument on its head: What endangers democratic governance is the tacit agreement that neither party will prosecute its predecessors (except for Blagojevich-style personal corruption) no matter what laws they break. I’m a Democrat who voted for Obama twice, but I would welcome an investigation of the legality of the drone program. If it’s a war crime, then people should stand trial, up to and including President Obama himself.

Posner may be right that no jury would convict a CIA torturer, or someone like Bush or Cheney — or Obama for that matter. But that’s a jury’s decision to make, and not anyone else’s.

So what about ticking bombs? In the ticking-bomb scenario torture defenders love to cite, you are absolutely certain that

  • a hidden nuclear bomb is about to destroy some city like New York, killing millions
  • a guy you are holding knows where it is and how to disarm it
  • he’ll tell you if you torture him, but not otherwise

It’s worth noting that this was not the case for any of the 119 detainees the CIA tortured. So we’re weighing a made-for-TV movie scenario against 119 real people.

In any real situation, you wouldn’t know any of this. You’d have unconfirmed reports about a bomb, which might or might not work, set to go off sometime. You’d suspect this guy was part of the plot. You’d hope he had the information you need. And maybe torture would get it out of him, or maybe it would just solidify his resolve — which otherwise might have melted at the last minute as the enormity of the crime became real to him. So you’d be acting on a hunch, with the possibility that maybe you want torture this guy out of frustration with your own helplessness rather than because it would accomplish anything.

But suppose you’re convinced that torture will make the difference here and save New York. What should happen? I think you save New York, but then you turn yourself in and throw yourself on the mercy of a jury (hopefully a jury of New Yorkers). If you’re not willing to take that risk, then you’re no hero. You’re willing to make somebody else suffer to save lives, but not willing to risk suffering yourself.

There should never be a process that can give prior approval to torture, or hide it after the fact. Everybody who decides to torture in America’s name should have to face his fellow citizens.

Truth and reconciliation. One suggestion to preserve at least some of the integrity of our legal system is that President Obama could offer formal pardons to the Americans involved in torture, from President Bush on down to the guys who poured the water during waterboarding. ACLU Executive Director Anthony Romero explains:

The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

Jonathan Bernstein agrees, hoping that generous pardons would take the partisanship out of torture, and allow Republicans to condemn it. But he adds:

A final step has to be a truth and reconciliation commission to detail what happened and how counterproductive it was. … The only way to get the truth, in other words, is to make it clear that a commission will treat the people involved generously, even if its investigation shows the horrors of what they did.

Truth and reconciliation commissions have been used in many countries — notably South Africa — to move on after a national moral catastrophe. I have my doubts it would work here (and so does Bernstein). But if the alternative is to do nothing …


* The Convention Against Torture was ratified with official reservations. But none of the reservations mention Article 1 or Article 2.2.

The Monday Morning Teaser

It’s another week where there’s one obvious thing to talk about: torture. So this week’s featured post will be “5 Things to Understand about the Torture Report”. It should be out maybe 10ish. I will take the radical position that laws should be enforced and people who break them should stand trial, including people on my side if it comes to that.

The weekly summary begins with one aspect of the public response to the torture report: the people who are zealously against Big Government and its abuses of power — except when it’s abusing people they don’t like, either by torturing suspected terrorists or gunning down young black men. The technical term for this democracy-for-me/tyranny-for-thee position is herrenvolk democracy, which I’ll explain.

In other news, Congress avoided another government shutdown, but Wall Street had to be paid off first.

I almost covered the University of Virginia rape story when it first came out, but I ran out of space. That stroke of luck kept me from needing to correct the embarrassing comments I would have made, now that the story has blown up. But the villain here isn’t the woman whose memory of a traumatic night two years ago has holes in it, it’s Rolling Stone, which has done incalculable damage to rape victims everywhere by making a big splash with a sensational story it never checked out.

I’ll also review a wonderful book by an Armenian-American woman who lived in Turkey for two years, where she learned a lot about the complexity of ethnic conflict. And I’ll link to somebody else’s review of a book I hope to read soon, about the importance of the apocalypse in evangelical thinking.

Plus a bunch of other stuff and a typically silly closing.

Insufficient Evidence

There’s never enough evidence to convict a white man of a crime against a Negro.

– Aaron Henry, a black businessman
interviewed in the CBS News report “The Search in Mississippi” (1964)

We have caused a thorough search to be made by the most competent authority in Richmond; and while many indictments are found against black men for rape of white women, none exist, in the history of our jurisprudence, against white men for rape of black women. And this, not because there would have been any difficulty in making the indictment lie: but because, as the most experienced lawyers testify, the crime is unheard of on the part of white men amongst us.

– R. L. Dabny, A Defense of Virginia and the South (1867)

This week’s featured post is “Can We Share the World?

This week everybody was still talking about police killing black people

because it keeps happening with no one called to account. On the heels of the Michael Brown non-indictment, we have the Eric Garner non-indictment and the killings of Tamir Rice and Rumain Brisbon. Unlike the Brown killing, the choke-hold strangling of Garner and the roll-up-with-guns-blazing shooting of Rice were caught on video.

I’m reminded of the effect of television on the Civil Rights movement in the Sixties. The cops and white mobs in Mississippi and Alabama and Arkansas were just doing what they’d been doing for decades. But now the whole country watching from their living rooms. When you watch those video clips today, it’s clear the abusive whites didn’t understand what the TV cameras meant.

Now we’re in the era of ubiquitous video, and cops don’t seem to understand what that means either. You can look at any one case and imagine that there might be some mitigating explanation, some off-camera circumstances you can’t see. But the sheer number of these cases wears a person down. This isn’t just a Lemony-Snicket-style series of unfortunate events. Something is systemically wrong.


The grand jury in the Garner case hasn’t released voluminous records like the Ferguson grand jury did, but the same kind of rigged process I talked about last week seemed to be at work. Grand juries misfire when the prosecutor wants to defend the suspect rather than prosecute, as often happens when police are involved. The biggest flaw in the Garner grand jury process was that the prosecutor didn’t tell the jury about the lightest charge they could have brought: reckless endangerment. So when they gave Officer Pantaleo the benefit of the doubt on various forms of murder, their only remaining option was to let him walk.

President Obama has proposed putting body cameras on police, but clearly that’s only part of the solution. Unlike in Ferguson, we have video in this case, and the cop still doesn’t have to face a trial. In addition to cameras, we also need changes in process: an independent investigation and a special prosecutor when police are suspects. A recent Wisconsin law — passed after police killed the son of a white retired Air Force officer — is a step in the right direction.


Digby underlined a point that unites most of these cases: Police escalated the conflict when they didn’t have to. Michael Brown wasn’t going to flee to Costa Rica. Eric Garner was surrounded by six cops and not endangering any of them. There was no risk in giving Garner a few minutes to grasp that he was going to be arrested one way or the other.

Or check out this video of a traffic stop New Mexico, where luckily no one was killed. The driver obviously handles the situation badly, but at some point the police forget that they’re dealing with a woman and her kids, not Murder Incorporated. By the 12:30 mark the family has barricaded itself inside their van. Two back-up units arrive, guns drawn, and an officer bashes in a passenger window. The panicked Mom then starts driving away — the three police cars having neglected to block that possibility — and the police start shooting.

By contrast, in 2011 German police shot exactly 85 bullets in the line of duty. That’s all year, in the whole country. Seventy years ago, who could have imagined that someday we’d be envying Germany for its police?


Albert Burneko offers the interpretation that “The American Justice System is Not Broken“. Police are supposed to kill young black men from time to time, and they’re supposed to get away with it. That’s how the system functions, not how it malfunctions.


Wonkette wonders tongue-in-cheek why gun-rights advocates aren’t demanding justice for Tamir Rice and John Crawford, both of whom were killed by police who mistook their toy guns for real ones. If merely appearing to carry a gun justifies your summary execution, doesn’t that invalidate our Second Amendment rights? If Randy Weaver and David Koresh can be martyrs for the cause, why not Rice and Crawford?

The obvious implication, the dots whose connection Wonkette leaves to the reader, is that the gun-rights movement is for white people. When have you ever heard the NRA respond to a public tragedy by suggesting that black people arm themselves? I mean, wouldn’t Trayvon still be alive if he’d been packing heat?

Maybe, though, there’s another explanation: Gun-rights people could just be applying the color-blind constitutional doctrine of originalism. When the Second Amendment was ratified in 1791, who could have imagined that someday blacks would be citizens and seek to defend themselves with guns? Only through the liberal notion of an evolving Constitution does the black-people-with-guns conundrum arise at all.


While I was researching that point about coverage of the Civil Rights movement, I ran across “The Search in Mississippi” — an hour-long CBS News Special Report hosted by Walter Cronkite and aired on June 25, 1964 about the then-current Mississippi Burning case and Freedom Summer movement. It’s even more fascinating than the movies and documentaries that have been made since.

and jobs

The November jobs report came out, and it was the best one we’ve seen in a long time, fueling hope that the steady-but-uninspiring recovery from the Great Recession of 2008 might finally be picking up steam. It was hardly a Happy-Days-Are-Here-Again report, but it pointed in that direction.

A jobs report is a mass of numbers justified by a lot of statistic wizardry, so it’s always open to interpretation. (If you need to put a downward spin on it, CNBC has one for you. Almost everybody else was more upbeat.) But basically you look for four things:

  • total number of jobs. In November, that number went up by 321,000, the most in a month since January, 2012. A rule of thumb is that 100K new jobs per month just keeps pace with the increase in population. Beyond that, you’re starting to make some headway in employing the unemployed. This number bounces around a lot from month to month, so you want to look at the longer-term trend. USA Today comments on the chart below: “Labor market gains have been consistently strong this year despite a mixed economy, averaging almost 241,000 additional jobs a month, up from 194,000 in 2013. Employers have added at least 200,000 jobs for 10 straight months, the best stretch since the mid-1990s.”
  • unemployment rate. This held steady at 5.8%, a number well below the 10% we saw in 2009 or 7% early last year, but not nearly as good as the 3% at the end of the Clinton administration. At first glance, this lack of improvement contradicts what I just said about employing the unemployed, but one of the first things an improving job market does is inspire discouraged workers to start looking for work again. The official unemployment rate is always well below the number of workers who wish they had jobs; the “extra” 221K jobs took up some of that slack.
  • hours worked. Up slightly, from an average of 34.5 per week per worker to 34.6. Employers don’t like to hire and fire, so when business is bad they’ll cut back hours before they start letting workers go. On the upside, they’ll work their current staff harder before they start hiring new people. So an increase in hours worked is a good sign in two ways: Directly, it puts more money in workers’ pockets. Indirectly, it points to more hiring in the future.
  • wages. Up slightly, from an average of $24.57 per hour to $24.66. Employers don’t raise wages out of the goodness of their hearts, they do it because finding new workers or hanging on to the ones they have is becoming a problem. So an increase in the average wage isn’t just good in itself, it’s a good sign for the job market.

None of those individual numbers really knock your socks off. But we’ve gotten used to ambiguous job reports, where the four big indicators point in different directions, suggesting that whichever one impressed you was just a statistical blip that will even out next month. Not so this month.

and Hillary

I was traveling this week, and as I sat by the gate in airports, I kept hearing CNN speculate about when Hillary Clinton would announce her candidacy. Now that the midterm elections are over, the pundits figure, what’s the hold up?

The logic here is really simple, even if it doesn’t make for exciting TV discussions: The shorter the campaign, the better for Hillary. Why would she want to get the campaign started if nobody is out there campaigning against her?

Think about it: If we all woke up tomorrow morning to discover that there was a national Democratic presidential primary happening, Hillary would win easily, because at the moment nobody else has the name recognition or the organized support to challenge her. Even if it turned out that most Democrats didn’t want her to be the candidate, she’d get maybe 40% and there’d be a bunch of 5% and 10% people. Elizabeth Warren might get 20-25%, but nobody’s sure she even wants the job.

The longer everybody waits to start the campaign, the closer we get to that surprise-election scenario, and the better for Hillary. In general, if you’re the front-runner, only bad things can happen during a campaign: You can screw up, or somebody else can catch fire. Why would you stretch that process out and run a longer gauntlet than you absolutely had to?

So if another Democrat starts actively campaigning against her, Hillary will announce a week or two later. Or if Republican candidates make her the focus of their rhetoric and start driving up her negatives, she may need to get out there to make her own headlines. (On the other hand, if Republicans are out-doing each other in competing for the right-wing-crazy vote, why take the spotlight off them?) Otherwise, she’d be smart to wait until late summer, then do a coronation tour of the early primary states just to show she’s not taking them for granted.


OTOH, I was talking to my favorite 20-something, who verified what Bonnie Kristian was saying in The Week: Young voters are not excited about a 90s-re-run Clinton presidency. Imagining a 1992-ish Clinton/Bush match-up, Kristian says: “If the kids don’t want broccoli, show ‘em how good it looks compared to Brussels sprouts.”

No, I don’t think Clinton would lose the youth vote to Bush or Cruz or Paul — MF20S would vote for her — but turn-out might be a problem.

and religious freedom

The next time you hear someone claim that Christians are persecuted because a baker has to sell a wedding cake to two men, give them some perspective on what oppression really looks like and who the oppressors are. Here’s Pastor Steven Anderson of the Faithful Word Baptist Church in Tempe, Arizona:

Turn to Leviticus 20:13, because I actually discovered the cure for AIDS: “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death. Their blood shall be upon them.” And that, my friend, is the cure for AIDS. It was right there in the Bible all along — and they’re out spending billions of dollars in research and testing. It’s curable — right there. Because if you executed the homos like God recommends, you wouldn’t have all this AIDS running rampant.

As far as I know, no gay-rights activists are demanding that Christian fundamentalists be put to death. And no, refusing to let Christians carry out Leviticus 20:13 is not a violation of their religious freedom.

With that in mind, though, I read the text of the Michigan Religious Freedom Restoration Act, recently passed by the Michigan House and on its way to the Senate. The purpose of the act is “to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” It defines an “exercise of religion” as “an act or refusal to act, that is substantially motivated by a sincerely held religious belief.”

So refusing to sell a wedding cake to a gay couple is an “expression of religion” rather than an indulgence of bigotry with Biblical cover. But so is stoning gays (or loose women; see Deuteronomy 22:20-21). Fortunately, the law still allows government to restrict such acts if it can prove it has a “compelling interest”. We can only hope judges will decide the Michigan government has a compelling interest in keeping gays and loose women alive.


BTW, some Sunday Pastor Anderson might have his flock turn to David’s lament after the death of Jonathan, in II Samuel 1:26:

I grieve for you, Jonathan my brother; you were very dear to me. Your love for me was wonderful, more wonderful than that of women.

If we’re going to read the Bible literally, let’s read it literally. The whole thing.


Atheists also face non-imaginary religious discrimination. An article in yesterday’s NYT discusses the effort to get bans on atheists holding office out of state constitutions. Those provisions have been unenforceable since a 1961 Supreme Court decision, but Todd Stiefel of Openly Secular comments:

If it was on the books that Jews couldn’t hold public office, or that African-Americans or women couldn’t vote, that would be a no-brainer. You’d have politicians falling all over themselves to try to get it repealed. Even if it was still unenforceable, it would still be disgraceful and be removed. So why are we different?


And Muslims face real religious freedom issues: The Kennesaw, Georgia city council refused a Muslim congregation’s request to rent worship space in a strip mall, breaking precedents established for Christian groups. An anti-Muslim protester said: “To me [the mosque] is a threat to my freedom, my liberties, and everything I own.”

and you also might be interested in …

It’s time for that annual assault on my self-image as a cultured, well-read person: The New York Times 100 Notable Books of 2014. I’ve read exactly one of the novels (The Magician’s Land) and about a quarter of one of the non-fiction books (The Invisible Bridge). A somewhat less intimidating list is “The 10 Best Books of 2014“, of which I have read none.


Chris Rock has a movie coming out, so he’s been doing interviews, notably in Rolling Stone and with Frank Rich at Vulture. Here’s the money quote from the Rich interview:

When we talk about race relations in America or racial progress, it’s all nonsense. There are no race relations. White people were crazy. Now they’re not as crazy. To say that black people have made progress would be to say they deserve what happened to them before. … If you saw Tina Turner and Ike having a lovely breakfast over there, would you say their relationship’s improved? Some people would. But a smart person would go, “Oh, he stopped punching her in the face.” It’s not up to her. Ike and Tina Turner’s relationship has nothing to do with Tina Turner. Nothing. It just doesn’t.

The question is, you know, my kids are smart, educated, beautiful, polite children. There have been smart, educated, beautiful, polite black children for hundreds of years. The advantage that my children have is that my children are encountering the nicest white people that America has ever produced. Let’s hope America keeps producing nicer white people.

It’s been a heavy week, so let’s close with something cute

like a toddler in a snow suit discovering ice.

Can We Share the World?

a rambling attempt to get to the heart of the progressive vision


After the mid-term elections I lamented that “Republicans have a story to tell. We’re stuck with facts.” While Democrats had a lot of specific issues to sell to segments of the electorate — increase the minimum wage, protect access to health care, pay women the same as men, fix the immigration system, preserve access to abortion and contraception, subsidize renewable energy, and so on — it didn’t add up to a mythic vision on the scale of the conservative vision, which I summed up as: America is a city on a hill with barbarians at the gates.

Conservative zeal comes from a deep, almost mystical, sense of destiny thwarted, purity corrupted, and one last chance to set things right. In that vision, every tiny issue becomes a symbol of the larger struggle. When you hear about a 12-year-old Guatemalan girl fleeing the gang warfare in her country and showing up at our border, you instantly grasp her role in the cosmic threat to everything you hold dear. If somebody somewhere is scamming Food Stamps to avoid working, that’s not a fraction of a cent on your tax bill, to be weighed against all the genuinely needy people the program helps, it’s an invitation to God’s judgment against our nation.

To them, every race for every office is part of one big apocalyptic battle. That’s why their voters show up at mid-term elections and ours don’t.

But I don’t believe conservatism is inherently mythic and liberalism inherently pedestrian. I just think we’ve lost touch with the heart of our own vision and so lost our ability to tell the story of what we’re trying to do. At the end of that post, I pledged to spend my time in the metaphorical wilderness trying to get those things back.

The purpose of this post is to catch you up on what I’ve been thinking. I realize it’s less polished than the usual Weekly Sift post, but rather than wait for everything to come into perfect focus, I thought I’d toss the raw ideas out there in hopes of starting a productive discussion.

Roots of myth. I believe that the truly mythic ideas — the ones that just feel right, independent of current evidence — go way, way back. I’m agnostic about whether they have biological roots, but I think they’re older than civilization and are already present in some form in hunter-gatherer cultures.

In particular, as I meditate on my own deepest political intuitions, I find three hunter-gatherer notions at the root of both my liberal and my conservative impulses. The three don’t fit together cleanly in the modern world, which is why I’m vulnerable to framing: If an issue arises in the context of one of the notions, I might have a liberal response; but if you describe the same issue in terms of a different notion, my snap reaction my be conservative. The three notions are:

  • Nature belongs to everyone.
  • We’re all in this together.
  • The tribe has to defend its territory.

Nature belongs to everyone. In hunter-gatherer society, the forest, the lake, and the field are all there for you. If you’re hungry, go hunt, go fish, go gather. There’s no gatekeeper, no owner whose permission is required. There’s no such thing as an unemployed hunter-gatherer, because nobody has to hire you and nobody can fire you.

In the modern world, this notion cuts in both liberal and conservative directions. When Marx talks about public ownership of the means of production, or Pope John Paul II frames the ideal economy as a “Great Workbench“, or liberals want the government to be the “employer of last resort” they’re trying to preserve or restore this direct relationship to the Earth’s productive potential: If you’re able and willing to work productively, no one should be able to stand in your way.

In today’s economy, though, someone does stand in your way. Not just the forests, lakes, and fields, but also the factories, mines, malls, offices, and laboratories are all owned by someone. If you aren’t one of the owners and you want to work, someone with better access to the means of production has to hire you — and (depending on market conditions) may take a substantial cut of what you produce. If no one does hire you, you’re cut off from the productive economy in a way that no hunter-gatherer ever could be. [I explored these ideas in more depth in “Who Owns the World?“.]

That’s the liberal side of this notion. The conservative side arises when you either ignore the owner/gatekeeper role or assume that the hurdle it constructs is trivial: “You want something? Go work for it.”

We’re all in this together. A conservative take on the first notion might justify you gorging on a deer you’ve killed while less successful hunters look on in hunger. “There’s a forest out there,” you could tell them, “go get your own.”

But actual hunter-gatherers rarely act this way. Generosity gains you friendship and respect — social goods that don’t spoil like deer meat. In a world without money, banks, or privately owned land, honor among your tribesmen is the best kind of wealth you can accumulate. Some day you’ll be the hunter without a catch. Some day you’ll be the one with the bad ankle or the concussion, who needs help to get home. Having tribesmen around who owe you favors is a very valuable asset.

Today, this is the spirit behind social insurance and social goods of all sorts. Maybe today I’m the one with a job and money and health insurance. Maybe today my family is healthy and I’m still in my prime. Maybe I don’t have kids, or my kids are grown. Why should I pay for other people’s unemployment compensation and Social Security and Food Stamps and public schools? Because although there’s a lot of skill and hard work involved in success, there’s a lot of luck too, and nobody’s luck lasts forever. A society where we all look out for each other isn’t just friendlier, it’s also more secure.

Today, you are in a position to be generous. Tomorrow, someone else might be, and you might need generosity.

The tribe has to defend its territory. Hunter-gatherers usually aren’t humanists, they’re tribalists. The “everyone” in the first notion and the “we” in the second isn’t humankind, it’s the tribe. And “Nature” isn’t the whole world, it’s the tribe’s territory. Our forest, our lake, our field, our people. The tribe needs to command the resources necessary to provide its people with a good life.

Outside the tribe’s territory are strangers without number. They come and go, and they think differently. You can’t reach the kind of understandings with them that you can reach with your tribesmen. In some situations you may take pity on them and help them, but in others you may see them as wolves who want to kill our game and leave us with nothing, or as locusts or rats who will multiply to eat up any surplus we might generate.

This configuration of images and ideas also survives in the modern world, even though it’s not so clear exactly who our “tribe” is. But whoever we identify with — country, race, language group, social class, religion, neighborhood, family — it’s tempting to restrict our vision of the good life to people “like us”. We have to hang on to what we need to have a good life. What happens out there — outside the tribe, over the wall, beyond the oceans — is not our problem unless the outsiders try to take what’s ours. The world outside the tribe is full of greedy predators and teeming masses who carry strange diseases and can’t be reasoned with.

This idea is inherently conservative — it’s the root of the City-on-a-Hill-with-Barbarians-at-the-Gates vision. Under its influence, expansive notions of Nature belonging to everyone and all of us being in this together seem naive. Scarcity is the fundamental fact of economics. There is not enough for everybody, so the good life can only happen within walls, within fences, within borders. The Gospel of Malthus says that the poor will multiply to consume any surplus, so the privileged classes have to control their soft-hearted generosity. If no one is starving, then the good life that we enjoy is not secure.

If you focus on the third notion, the possibility of universal justice — justice outside the tribe — goes away. Some tribe will seize the best resources and live the good life, while pushing all the others into poverty. Will that be our tribe our some other? In the words of Humpty Dumpty: “The question is which is to be master — that’s all.”

In the context of global capitalism, this means that some comparatively small group of people will control the world’s oil, its drinkable water, its productive land. Some group will own the Great Workbench, and anyone who wants a seat there must buy it or inherit it or occupy it as a vassal for some lord. Some group of people will have their hands on the valves that control the flow of the world’s production, and can turn it on or cut it off according to its interests. Will that be our tribe, or somebody else’s?

One of the best expressions of the conservative horror of sharing the world comes from a minor character in Atlas Shrugged, a tramp who survived the fall of the once-great 20th Century Motor Company, which disastrously turned itself into a socialist enterprise. How awful it would be, he thinks, if such socialist ideas took hold on a worldwide scale.

Do you care to imagine what it would be like, if you had to live and to work, when you’re tied to all the disasters and all the malingering of the globe? To work — and whenever any men failed anywhere, it’s you who would have to make up for it. To work — with no chance to rise, with your meals and your clothes and your home and your pleasure depending on any swindle, any famine, any pestilence anywhere on Earth. To work — with no chance for an extra ration, till the Cambodians have been fed and the Patagonians sent through college.

In this vision, the needs of the outside world are infinite and will never be satisfied. What’s more, the benefits of investing in those people will never come back to you. It will never be the well-fed Cambodians who pick up the slack, and no college-educated Patagonian will ever be your doctor or invent a product you need. To see yourself as a tribesman of the World, rather than a defender of a territory sufficient to sustain your small group of people, is to be sentenced to endless labor with no hope of reward.

The small world. Today, we know some things the hunter-gatherers — and previous eras of civilization — didn’t know. We know the world is finite and has a finite number of people in it. We know that Malthus was wrong: As women become more educated and more confident that their children will survive, they have fewer of them, not more. We know that the Earth is one big productive system, and that the garbage we throw over the wall or let the waters and winds carry away isn’t really gone.

The world outside the walls isn’t vast and incalculable any more. In fact, it’s actually kind of a small world. It’s so small that the world inside the walls can’t really be managed without accounting for what’s outside.

Can we share the world? As I’m coming to see it, the liberal challenge — I’m calling it a challenge rather than a vision because I don’t think we have it that worked out yet — is to ask whether we can come to view humanity as one tribe with the Earth as its territory.

It’s tempting to jump forward right away and say, “Why yes, of course we can. In fact we have to.” But it’s a real challenge: Can we square some vision of the Good Life with what the Earth can provide for everyone? Because if not, then the City on a Hill dominating the teeming masses around it is the only good life we can hope for. If the choice is to live in hopeless squalor or to be part of the Master Race, then a sizable chunk of people in every generation are going to choose to be fascists. And who’s to say that they’re wrong?

Just as obviously, we can’t simply declare Universal Justice starting tomorrow. That really is naive. Because the world economy isn’t just a distribution system, it’s a production system, and the two are interdependent. Adding up global GDP and sending everybody a check for the average amount would be like carving a factory into pieces and sending one home with each worker.

And there really are predators in the world, and good people separated by such large and ancient walls of misunderstanding that they can’t possibly trust one another. What happens to them?

But still: One tribe with the world as its territory, offering each person a chance to work for the good life, and providing some kind of safety net for those who fail. Is there a way to make sense of that? Is there a way to get from here to there?

Don’t just say, “Yes. Of course.” If you take it seriously, you’ll see that it’s a real question, and the answer might be No.

The Monday Morning Teaser

After the mid-term elections, I complained that “Republicans have a story to tell. We’re stuck with facts.” They have a mythic narrative I summed up as: “America is a city on a hill with barbarians at the gates.” Democrats answer with a bunch of small-scale policies: a higher minimum wage, increased access to health care, equal pay for women, and so on. It’s all good stuff but it doesn’t stir the blood, with the result that a lot of our voters forget to go out and vote.

I don’t think there’s anything inherently small-scale or non-mythic about liberalism, so I promised to spend some of my time in the wilderness thinking about what I called “the true story of America”.

If you thought that meant that in a few weeks I’d deliver the mythic liberal narrative wrapped up with a pretty bow, you have way too much faith in me. This week I’m posting a first tentative step in that direction, what I’m billing as “a rambling attempt to get to the heart of the progressive vision”. It’s called “Can We Share the World?” because it harks back to some of the ideas in a talk I gave several years ago called “Who Owns the World?” It’s intentionally incomplete and imperfect, and I’m putting it out there to draw comment and start discussion.

It’s also been kind of a busy week in the news, so the weekly summary is a little longer than usual. It discusses police killing black men and getting away with it, the surprisingly good November jobs report, why Hillary won’t announce her candidacy any time soon, and various religious-freedom stories that are out there.

When you’re writing a “rambling attempt” at something, it’s hard to predict exactly when it will be done. Look for “Can We Share the World?” maybe 11ish EST, and the weekly summary an hour or so later.

Odd Processes

Neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Supreme Court Justice Anton Scalia

This week’s featured post is “This Time, Will the Outrage Matter?

This week everybody was talking about Ferguson

The grand jury decided not to indict Officer Darren Wilson for killing Michael Brown, provoking protests in several cities. My comment on the situation is in “This Time, Will the Outrage Matter?

Five St. Louis Rams players staged their own protest before Sunday’s game with the Oakland Raiders, raising their hands in the “don’t shoot” position. A St. Louis police group is demanding the team punish the players and issue and apology, which I suspect will not happen.

and oil

OPEC had a meeting to discuss the falling price of oil, and came up with no effective strategy. That led to a further sharp drop to around $70 a barrel. The price had been consistently over $100 for most of the previous three years.

Consumers should benefit from lower gas prices. A number of troublesome oil-exporting countries — Russia and Iran, for example — will lose influence.

and new smog regulations

The day before Thanksgiving, the EPA announced tighter regulations on smog. The old rules limited ozone to 75 parts per billion; the proposed new limit is between 65 and 70.

The main thing you need to know about this is that it’s long overdue. The Clean Air Act requires the EPA to review this standard every five years. During the Bush administration, EPA scientists determined that the limit should fall from 84 ppb to around 60 or 70. But the Bush political appointees over-ruled the scientists and set the bar at 75, for no obvious reason.

The Obama administration has been balking at change ever since it took office, but the new post-election what-the-hell Obama is finally pulling the trigger.

To understand why it was balking, just look at the news coverage of the announcement, as Dave Roberts does. It focuses almost entirely on industry claims about the cost of implementing the new regulations, and not at all on the benefits, such as lives saved.

But even economically, good regulations don’t cost money, they save money. The EPA estimates that the health effects alone will save in the neighborhood of $10 billion a year for a 70 ppb standard, and $25 billion or so for a 65 ppb standard.

As for the fossil-fuel industry’s claims that the regulations will wreck the economy, they’ve cried wolf before. Roberts provides this graph:

As for the media coverage, Roberts comments:

In the odd world of political media, these two kinds of groups — one advocating for the profits of a particular business sector, one advocating for public health — are considered equivalent, mirror images. If anything, “business groups” are treated as champions of the economy, and thus all Americans, while public health groups are treated as a “special interest.”

It’s that weird inversion that makes it seem perfectly normal to begin a story about a new advance in public health with accusations from the regulated industry (and its congressional champions) about how much it’s going to cost.

and you also might be interested in …

At Thanksgiving dinner, your conservative uncle may have related Rush Limbaugh’s account of the First Thanksgiving: that it celebrated the Pilgrims’ new surplus from abandoning collective farming and embracing free enterprise. If you suspected this story was not really true, you were right.


I’m sure you’ll be happy to know that police in Pontiac, Michigan are on the job: In this video, a policeman confronts a black man who has been frightening local residents by walking with his hands in his pockets — in Michigan in November. To his credit, the policeman is polite while he carries out this ridiculous assignment and meets with considerable exasperation from the chilly walker.


Ray Rice, last seen decking his wife in an elevator, has been re-instated to play in the NFL. It’s still unknown whether any team will sign him, though ESPN reports that four teams are interested.


An exercise intended to teach grade school students about privilege went viral on BuzzFeed, getting 4.5 million hits. But Quartz’ Jeff Yang thinks the lesson may have missed a few things.

and let’s close with a new Christmas song

The a cappella group Straight No Chaser has been a good source of new Christmas music for several years now. Here, they combine with actress Kristen Bell (a.k.a. Veronica Mars) in “Text Me Merry Christmas“.

This Time, Will the Outrage Matter?

Objective people could come to different conclusions about Darren Wilson’s guilt. But no one can argue objectively that the investigation of Michael Brown’s death was impartial and conducted appropriately.


Monday night, after Prosecutor Bob McCulloch announced the grand jury decision not to indict Officer Darren Wilson for the shooting death of Michael Brown — my Facebook news feed exploded with anger: Wilson got away with murder. Police have free rein to keep shooting young black men. Black lives don’t count. And much more.

I had heard similar outrage when Trayvon Martin’s killer walked free. And yet, nothing changed; if it had, we wouldn’t be doing this all over again, would we? Will anything change this time? Or will we be right back here in another few months — another unarmed black youth killed by a cop or vigilante, who faces no substantive consequences?

After Trayvon, we already know how the nothing-changes path looks: Rather than evidence of systemic dysfunction, the case becomes an identity marker in the endless Red/Blue partisan battle: George Zimmerman is a racist murderer, or Trayvon Martin was a thug who got what was coming to him. There seems to be no objective truth; you just pick your side and wave its flag. To one side, the martyrdom of an innocent motivates change. To the other, failure of yet another an attempt to railroad a good man is proof that the system works, but just barely; give an inch, and the next time the grievance industry wins.

It’s already easy to see how that could happen again. If I had a different batch of Facebook friends, no doubt my news feed would have exploded with reactions of a different flavor: I always knew there was nothing to that case. It was obvious a bunch of the witnesses were lying, and when the grand jury had all the evidence in front of it, they agreed. What a shame Officer Wilson decided to resign — all the liars who smeared him should be prosecuted for perjury. The whole thing was all just an excuse to riot.

If we want anything different to happen this time, I think we need to re-establish the notion that there is an objective truth to this matter — the kind that persuades the uncommitted and converts some of the opposition — and that objectively, the system did not work. More than that, we need to argue that the reasons it did not work are not specific to the details of the Brown shooting; the same reasons will continue to endanger innocent people until something changes.

As in every attempt to speak the truth, this means choosing our words carefully, rather than saying whatever it feels good to say. That’s what I’m going to try to do.

Here’s my best statement of what went wrong: The process was rigged to get Darren Wilson off. And the same forces that created this rigged process will still be there for the next case.

Notice what I didn’t say: that Darren Wilson murdered Michael Brown. I didn’t say it because (although I suspect it) I don’t actually know that it’s true. But I have no doubt whatsoever that the process was rigged, and I believe that any person who looks at the situation objectively will have to agree.

In refusing to say that Wilson murdered Brown, I am also refusing to get into the minutia of the evidence — which witnesses were and weren’t believable, what the autopsy or the forensic evidence said, and so on. That’s one prime way that the Red/Blue debate goes nowhere: by producing fractal he-said/she-said arguments that spin off ever-smaller he-said/she-said arguments, until the larger point the case exemplifies is lost.*

You don’t have to go into any of that to see that the process was rigged at two levels:

  • The Ferguson police were more focused on getting Wilson off than finding the truth.
  • The prosecutor subverted the ordinary grand jury process in Wilson’s favor.

The police. The Washington Post outlined the ways that crime-scene protocols were ignored in gathering the initial evidence:

When Ferguson, Mo., police officer Darren Wilson left the scene of the fatal shooting of unarmed teenager Michael Brown, the officer returned to the police station unescorted, washed blood off his hands and placed his recently fired pistol into an evidence bag himself. … the officers who interviewed Wilson immediately after the shooting did not tape the conversations. The [grand jury] transcripts also showed that an investigator from the medical examiner’s office opted not to take measurements at the crime scene and arrived there believing that what happened between Brown and Wilson was “self-explanatory.’’

In addition, the Ferguson police violated their internal protocol by not creating a use-of-force report. As a result, Officer Wilson had the time to concoct an account of the shooting that covered all the points necessary to avoid guilt without directly contradicting the undeniable physical evidence. (Again, we do not know that he did so — perhaps his hard-to-believe story is actually true — we only know that the Ferguson police gave him that opportunity by violating all their usual procedures.)

If I had any temptation to give the Ferguson police the benefit of the doubt — maybe they were just so shocked that one of their own could be a suspect that they forgot how to do their jobs — it vanished when the police started acting as the unofficial Darren Wilson Public Relations Department. As a Justice Department spokesman put it: “There seems to be an inappropriate effort to influence public opinion about this case.” At a time when the police were still withholding the name of the officer and the number of shots fired, they released video of Brown appearing to steal cigars from a convenience store, and leaked that the autopsy had shown THC in his bloodstream. As for the false rumor (with fake photo**, no less) that Wilson had suffered a fractured eye socket — we have no way of knowing whether that came from police or not.

The prosecutor. In the day-to-day course of their jobs, prosecutors work hand-in-glove with police. So if the police have circled the wagons around one of their own, it takes a brave local prosecutor to go against them.

That’s why Governor Nixon was urged to appoint a special prosecutor, one who had no prior relationship with either Michael Brown or the Ferguson police. He refused, saying:

There is a well-established process by which a prosecutor can recuse themselves from a pending investigation, and a special prosecutor be appointed.  Departing from this established process could unnecessarily inject legal uncertainty into this matter and potentially jeopardize the prosecution.

In other words, procedural abnormalities that worked in Officer Wilson’s favor were fine, but any that might counter that bias would “inject legal uncertainty”.

As a result, Prosecutor Bob McCulloch engineered something that bore no resemblance to a typical grand jury.

The ordinary purpose of a grand jury is to determine whether probable cause exists to move on to a trial. In other words: Does the prosecution have a case that would be convincing in the absence of any defense rebuttal? For this reason, a grand jury investigation is entirely the prosecutor’s show; he is under no obligation to present evidence that favors the suspect, or to challenge the testimony of witnesses against the suspect.

As Justice Scalia (of all people) wrote in a different case:

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. … As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

But the ordinary grand jury process assumes the prosecutor is motivated to get an indictment; it completely misfires if his intention is not to get an indictment.

Instead, McCulloch ran the equivalent of a trial, but one that had only a defense attorney, not a prosecutor. Law Professor Marjorie Cohn explained:

[McCulloch] put the grand jury in the role of being a trier of fact, which is not its role. The grand jury was put in the position of basically being a jury, but in a one-sided, closed proceeding.

Witnesses whose testimony indicated that Wilson was not in danger, that Brown was far away and surrendering when Wilson gunned him down, were grilled hard. In McCulloch’s words, they were “confronted with the inconsistencies and conflict between their statements and the physical evidence”.

But one witness was treated with unusual deference: Officer Wilson himself. His unusual story — in which Brown does everything he can to goad Wilson into shooting him — was not challenged in any way. MSNBC legal analyst Lisa Bloom tweeted that the cross-examination “Should have been a grueling session, not the tea party the transcript shows.” She focused on the conflict between Wilson’s statements about Brown’s attack and his incredible strength, and Wilson’s complete lack of injury when examined afterwards.

San Francisco Public Defender Jeff Adachi suggests another opening that a serious cross-examination might have pursued:

Wilson’s description of Brown as a “demon” with superhuman strength and unremitting rage, and his description of the neighborhood as “hostile,” illustrate implicit racial bias that taints use-of-force decisions. These biases surely contribute to the fact that African Americans are 21 times more likely to be shot by police than whites in the U.S., but the statement’s racial implications remained unexamined.

The icing on this misshapen cake was identified by Lawrence O’Donnell: The grand jury was misled about the law. Vox summaries:

Before Wilson testified to the grand jury on September 16, prosecutors gave grand jurors an outdated statute that said police officers can shoot a suspect that’s simply fleeing. This statute was deemed unconstitutional by the US Supreme Court in 1985; the court ruled that a fleeing suspect must, at least in a police officer’s reasonable view, pose a dangerous threat to someone or have committed a violent felony to justify a shooting.

Like the Ferguson police, McCulloch also joined the Wilson public-relations effort. Repeated leaks from the grand jury were all favorable to Wilson. His public statement announcing the non-indictment — itself a nearly unprecedented event — “read like a closing argument for the defense” according to a University of Missouri law professor.

His release of the grand jury transcripts — also highly unusual — merely reinforced the need for a trial. As The New Republic‘s Noam Scheiber put it:

The problem with this is that we already have a forum for establishing the underlying facts of a caseand, no less important, for convincing the public that justice is being served in a particular case. It’s called a trial. It, rather than the post-grand jury press conference, is where lawyers typically introduce mounds of evidence to the public, litigate arguments extensively, and generally establish whether or not someone is guilty of a crime.

Objective people could come to different conclusions about Wilson’s guilt. They might disagree about which witnesses were credible, and envision the scene differently. But no one can argue objectively the investigation of Brown’s death was impartial and conducted appropriately.

So what if the process was rigged? If you believe Wilson was justified, you may not care that Michael Brown’s killing was never impartially investigated. The reason you should is that police killings and other police violence against unarmed victims in questionable circumstances is not rare in America.

No one keeps track of the exact number, but at least 400 Americans are killed by police each year, compared to (for example) six in Germany in 2011. No one knows how many of these shootings were of unarmed and otherwise unthreatening people, but now that the world is filling up with cameras, we’re seeing more and more videos of such cases. (Conor Friedersdorf collects several.)

You and I weren’t the only ones watching the rigged process that protected Darren Wilson. Police all over the country were watching with great interest. And they learned that if they over-react and kill someone — perhaps particularly if they kill a young black man, but more generally as well — they are very unlikely to be held accountable. Their colleagues will protect them, and prosecutors will not want to take a stand against them.

Several reforms are needed, which Friedersdorf lists: lapel cameras for police, dashboard cameras for police cars, independent prosecutors in cases where police are suspects, and more.

Wisconsin has such an independent-prosecutor law, probably because that state had the perfect poster case: Michael Bell, a white retired Air Force colonel whose son was shot in the head by police in 2004 after his hands had been cuffed behind his back. With the Bell case in front of them, even white citizens understood that unjustified police violence could happen to them.

Black citizens had always known.


* It’s worth pointing out that endless argument is not a draw; it’s a victory for the side that believes nothing should change.

** The fake photo trick was also used in the Trayvon Martin case.

The Monday Morning Teaser

What else is there to write about this week: the grand jury decision not to indict Darren Wilson in the killing of Michael Brown. The lead article will be “This Time, Will the Outrage Matter?” I’m not sure when it will come out.

Strangers

You shall treat the stranger who sojourns with you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt.

Leviticus 19:34

This week’s featured post is “One-and-a-Half Cheers for Executive Action”.

This week everybody was talking about President Obama’s immigration move

The weirdest immigration conversation you’re going to hear was on Kris Kobach’s radio show. A caller suggested that when Hispanics become the majority in parts of America, they might do an ethnic cleansing on the whites. And Kobach took it seriously:

What protects us in America from any kind of ethnic cleansing is the rule of law, of course. And the rule of law used to be unassailable, used to be taken for granted in America. And now, of course, we have a president who disregards the law when it suits his interests. So, while I normally would answer that by saying, ‘Steve, of course we have the rule of law, that could never happen in America,’ I wonder what could happen. I still don’t think it’s going to happen in America, but I have to admit, things are strange and they are happening.

I wonder when Kobach thought the rule of law in America was “unassailable”. For non-whites, the rule of law has always been shaky and still is, as the families of Michael Brown and John Crawford can tell you.

Rupert Murdoch’s New York Post for some reason thinks that portraying Obama as the Statue of Liberty is an attack.

Senator Tom Coburn warned, “you could see instances of anarchy. … You could see violence.” It’s funny: When right-wingers don’t get what they want, any subsequent violence is the fault of the people who didn’t give them what they want. The same principle does not apply in, say, Ferguson.

Here’s what’s most dangerous about the Republicans’ over-the-top wolf-crying about “disregarding the law” and so forth: What if the next president actually does disregard the law and start making decrees? If rhetoric has already been turned up to 11 over something like this, any objections then will just sound like more rhetoric.


TPM elaborates on a point I’ve been making here: “No, Your Ancestors Didn’t Come Here Legally“.

Prior to 1875’s Page Act and 1882’s Chinese Exclusion Act, there were no national immigration laws. None.

My ancestors came to America anarchically, or pre-legally. But no, they didn’t follow the law, because there was no law.

and Bill Cosby

I’ve mostly ignored the Bill Cosby controversy, because fundamentally it’s a celebrity story. Rape is wrong; rapists should be punished; and the fact that the accusations are about Bill Cosby doesn’t interest me that much. AlterNet’s Amanda Marcotte, though, raised a question that does interest me: Similar accusations from a number of women have been out there for years, so why is the story only getting traction now?

Her theory, which I would like to believe, is that society is losing its acceptance of the kind of rape Cosby is accused of: acquaintance rape via drugs rather than violence.

A major obstacle in changing attitudes about rape is there are literally decades of cultural endorsement of the idea that sex is a matter of a man getting one over on a woman, and therefore it’s okay to have sex with unwilling women using trickery, bullying or intoxicants. … But now another conversation is happening: People are beginning to key into the fact that it’s not normal to want sex with someone who is laying there like a dead fish, crying, or otherwise giving in because she fears she isn’t getting out of this situation safely otherwise. In fact, that behavior is not funny or cool, but sad at best, and usually downright violent and predatory. A man who bullies an unwilling woman into bed isn’t “scoring” but a real creep.

There’s more to her argument, and it’s well worth your time.

Another Cosby story I found worthwhile was Ta-Nehisi Coates’ account of why he, as a journalist, wrote a story about Cosby years ago without mentioning the rape accusations, even though he believed them.

I don’t have many writing regrets. But this is one of them. I regret not saying what I thought of the accusations, and then pursuing those thoughts. I regret it because the lack of pursuit puts me in league with people who either looked away, or did not look hard enough. I take it as a personal admonition to always go there, to never flinch, to never look away.

and snow

The southern edge of Buffalo got an incredible six feet of snow in one storm. This time-lapse video taken from a downtown office building shows the amazing quality of lake-effect snow: There is a wall of snow on one side of an apparently arbitrary line, and little-to-no snow on the other side.

The photos are ridiculous, like this one:

Don’t go out there.

and you also might be interested in …

Another Benghazi report clears the administration of wrong-doing. This one comes from the House Intelligence Committee, which has a Republican majority. Will this finally be the end of it? Lindsey Graham says no.


A meaty article from 2012 that a friend pointed out to me this week. Thinking of social class in America as a ladder creates some illusions, because not everybody is climbing the same ladder. Michael O. Church describes three separate social ladders, and the relationships between them.


Australian TV-morning-news anchor Karl Stefanovic got sick of all the criticism his female co-anchor got for her appearance, so he ran an experiment: Every day for a year, he did the show wearing the same suit, changing only his shirt and tie. No viewers complained or even appeared to notice. He says:

I’m judged on my interviews, my appalling sense of humor — on how I do my job, basically. Whereas women are quite often judged on what they’re wearing or how their hair is.


I’ll bet a Kindle wouldn’t do this: After Thursday’s shooting incident at Florida State, a student found a bullet in his backpack, in the middle of some books he’d just checked out of the library.


Sunday Cleveland police shot dead a 12-year-old who had an air gun. Needless to say, the kid was black.

and let’s close with something cute

As video cameras got smaller, at some point a squirrel was bound to steal one and run up a tree with it.

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