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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.

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.

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.

One-and-a-Half Cheers for Executive Action

When democracy is failing, somebody still has to solve problems.


Imagine that something in your house’s infrastructure is broken: a pipe is leaking, an electric circuit is shorting out — something like that. There’s a guy in town who deals with such problems, but he isn’t coming. Maybe he’s too busy, maybe he doesn’t like you … whatever, he’s just not coming. You know enough to throw together a temporary fix, something that will keep the water damage from spreading or the house from catching fire, but it won’t be the right way to fix the problem and it certainly won’t be up to code.

Worse, given how things have been working around town lately, you don’t know that it will ever be up to code. You could imagine that the professional will be along to fix things the right way next week or in a few weeks, but what’s more likely is that your kludgy fix will lead to another “temporary” kludge the next time something goes wrong, and little by little your whole house will diverge from the standard practices that make houses liveable. Anybody who tries to fix anything in the future will have to know not just plumbing or electrical systems, but the specific lore of your house and the strange things that have been done to it through the years.

Knowing all this, how do you feel about your kludge? Good, sort of. You’re keeping things from falling down or burning up. But you also know you’re taking one more step down a path you don’t really want to follow.

That’s pretty close how I feel about the executive action on immigration that President Obama announced Thursday night. In the short run, I love it. If we can bring four million people out of the shadows, so that they will no longer be exceptions to the systems that keep society working properly, that will be a huge positive for all of us. But it also continues the pattern I described last year in “Countdown to Augustus“, where partisan conflict causes a tit-for-tat series of moves that are all technically legal, but which erode the social and moral norms that the republic is based on. Eventually democracy becomes so dysfunctional that the people cheer when a man on horseback sweeps it all away.

There’s a lot to unpack there, so let’s start by reviewing the immigration problem.

The shadow population. Nobody is really happy about how our immigration system has been working. I can’t think of a single major political figure who will defend it, who will stand up in public and say, “We shouldn’t change anything. Everything is just fine the way it is.”

The government estimates that 11.3 million people live in the United States without proper documentation. Most are Hispanic and more arrive all the time. The total has stayed fairly steady — and maybe even gone down a little — since the Great Recession. But that’s not a stable situation. Eventually there will be some crisis in Mexico at a time when our economy is doing well, and the in-flow will resume.

In the aggregate, these immigrants are probably good for our economy. (You can tell the story in such a way that people working difficult jobs for low wages victimize the rest of us, but that seems like a stretch to me.) It’s possible that native-born unskilled workers are hurt by the competition for jobs. But even here, it’s the shadowy nature of undocumented workers that is the real threat. An employer might prefer an undocumented worker because s/he can’t complain about abuse, unsafe working conditions, or wage theft. Pulling that worker out of the shadows makes the competition with native-born workers more fair.

The biggest problem the undocumented cause is not anything they do as individuals, but that their need to stay in the shadows gums up systems that depend on people coming forward. We have been lucky so far, but imagine if an epidemic of bird flu or drug-resistant tuberculosis got loose in the shadow population, and they not only didn’t show up at hospitals, but kept trying to work (in restaurant kitchens and as janitors and nannies) because no one gives sick days to undocumented workers. The undocumented are also unlikely to report crimes they see, either at the workplace or in their neighborhoods, for fear of being questioned about their status. And the existence of a shadow population provides a natural hiding place for the small number of border-crossers we really should be afraid of, like terrorists or drug-smugglers.

We can’t secure the border. “Secure the border” is a slogan like “end poverty” or “world peace”. It expresses an aspiration that cannot be achieved by any country resembling the current United States.

Ignore the Mexican border for a moment and just consider our Canadian border. Most of it is in remote areas that are not marked by any natural obstruction. (The green areas on the map are the places where there is no water barrier.) In the wilds of Montana or Maine or Alaska, crossing the border is just a walk in the woods; you might have to hop a fence, or you might not even know you’ve crossed. The idea that we’re going to surround our country with five thousand miles of Berlin-Wall-style fortifications is ludicrous.

People can walk into the United States. That’s not going to change anytime soon, no matter who’s president or what laws we pass.

If you don’t want to walk, come as a tourist or student and just stay; that’s how about half the undocumented got here. Are we really going to follow every visitor to Disney World or the Grand Canyon to make sure they go home? The old East German Stasi might have been up to a job like that, but no police system we want to have in America could do it.

Ditto for tracking down and arresting all 11.3 million of our current undocumented residents. A police force capable of that … what else could it do? I don’t think we want to find out, but I would love to hear the conspiracy theories if President Obama proposed a realistic — fully staffed, fully funded — plan to secure the borders and deport the undocumented. Police state! Tyranny!

So we’re not solving this problem by enforcement alone.

The irresponsibility of Congress. In my leaky-pipe metaphor, the professional-who-won’t-come is Congress. President Bush pushed Congress to do something, but it wouldn’t. Under President Obama, the Senate passed a bipartisan immigration reform plan, but the House has done nothing. I mean, literally nothing: It didn’t vote on the Senate’s bill, it didn’t pass an alternative, nothing.

Which would be dandy if the House leadership’s position was that our immigration system is A-OK and nothing needs to be done. If you think nothing is the right solution, then fine, do nothing. (That, for example, is how the global-warming debate is going. Congressional Republicans think no action is needed, so they block any attempt at action. They’re wrong, but at least their position is internally consistent.)

But if you are an official branch of government and you think the country has a serious problem, then you have a moral obligation to work on a solution. The House has totally failed to meet that obligation. House Republicans would rather have the impossible “secure the border” slogan to run on than take responsibility for any constructive action.

So there’s President Obama, watching his pipes leak and knowing that the plumber isn’t coming. So he does something. It’s a kludge. It is meant to be temporary, but might have to hold up for a long time. How should we feel about that?

What the order does and doesn’t do. President Obama’s executive order does not grant anyone legal status under our immigration laws. No one becomes a citizen or permanent legal resident. People who would have been near the bottom of the deportation list anyway — mainly parents of U.S. citizens or permanent residents who have been here four years or more, but also a smaller class of students and other people with economically valuable skills — are invited to come forward and apply for a temporary deferral of deportation. If that request is granted, they will then have legal permission to work in the United States while their deportation is deferred.

The administration estimates that about four million people could qualify.

Is it legal? Last week, before the policy was announced, The Wall Street Journal challenged President Obama to produce “the missing memo“, the opinion from the Justice Department’s Office of Legal Counsel on whether he had the power to do this — implying that he might be so lawless that he had not even asked for a legal analysis. And much has been made of a 2011 townhall meeting President Obama had with Hispanic students, in which he seemed to admit that such an action would be illegal:

With respect to the notion that I can just suspend deportations through executive order, that’s just not the case.

The OLC memo was released before Obama’s speech, and it makes refreshing reading (for those of us who read such things). Moreover, it supports both Obama’s executive order and his townhall statement.

Before I get into the details, I’d like to recall the kinds of memos the OLC was writing during the Bush administration: ones explaining how the President could unilaterally nullify the Convention Against Torture, or why the President had the power to declare American citizens to be “enemy combatants” and lock them up indefinitely without charges or trials. One standard feature of those memos was that they were open-ended: They explained why the President could do what he wanted now, but never described the limitations he might run into if he wanted to do more later. In one, for example, the OLC’s John Yoo wrote:

Article II, Section I makes this clear by stating that the “executive Power shall be vested in a President of the United States of America.” That sweeping grant vests in the President the “executive power” and contrasts with the specific enumeration of the powers — those “herein”– granted to Congress in Article I.

In other words, Bush’s OLC believed the President’s constitutional powers were “sweeping”, while Congress’ powers were limited to the ones specifically enumerated.

By contrast, the Obama OLC’s immigration memo lays out the principles limiting the President’s power, and says that some of what had been suggested is legal and some isn’t. (The part that isn’t — deferring deportation of parents of the “Dreamers” who were the subject of the Deferred Action for Childhood Arrivals order of 2012 — had been rumored to be part of this executive order, but was left out — possibly because the OLC determined it was beyond the President’s power.)

Quoting numerous Supreme Court decisions, the memo lays out four principles that limit the kind of executive action that had been proposed:

  1. “enforcement decisions should reflect ‘factors which are peculiarly within [the enforcing agency’s] expertise’.”
  2. “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. … In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.”
  3. “the Executive Branch ordinarily cannot, as the Court put it in Chaney, ‘consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of its statutory responsibilities’.”
  4. “a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion.”

If, for example, the President were to simply stop deporting people — “just suspend deportations through executive order”, as he put it in 2011 — he would violate Principle 3. The law says to deport people, so the President can’t just say no. But Congress has not provided the resources to deport everyone who is in the country illegally.

DHS has informed us that there are approximately 11.3 million undocumented aliens in the country, but that Congress has appropriated sufficient resources for ICE to remove fewer than 400,000 aliens each year, a significant percentage of whom are typically encountered at or near the border rather than in the interior of the country.

As a result, the executive branch has to prioritize which 400,000 undocumented immigrants it wants to go after each year. Its prioritization can’t be arbitrary, and can’t rely “on factors which Congress had not intended it to consider”. Past Congressional action has emphasized deporting terrorists and other violent criminals, so there’s no problem putting them at the top of the deportation list. Deferring deportation for “humanitarian” reasons has also been recognized by Congress, and keeping families together has been recognized as humanitarian. Also, there is a long history (recognized by Congress) of deferring deportation of people who are in the middle of a lengthy process that might eventually grant them legal status.

Unless they are dangerous criminals, parents of U.S. citizens and permanent residents fit all these criteria. And the executive branch will continue deporting people at the rate its resources allow, giving temporary deferrals — revocable on a case-by-case basis — to low-priority enforcement targets.

But OLC doesn’t find that the same humanitarian concerns apply to parents of the beneficiaries of DACA.

Many provisions of the INA reflect Congress’s general concern with not separating individuals who are legally entitled to live in the United States from their immediate family members. … But the immigration laws do not express comparable concern for uniting persons who lack lawful status (or prospective lawful status) in the United States with their families.

The DACA executive order did not (and could not) give the Dreamers legal standing to petition for the admission of their parents, as citizens and legal residents can. So there is no basis for deferring the parents’ deportation while we wait to see what happens to that petition.

Is this a bad precedent? Vox considered the question: “What could a Republican president do with Obama’s executive power theories?” Their answer is: not much that Bush wasn’t already doing.

Various ideas have been floated for what the executive orders of a Republican president might do through selective enforcement: change the tax laws, give polluters carte blanche to violate the Clean Air Act, waive all the requirements of ObamaCare, etc.

The problem in most of the cases is that debts and penalties accumulate rather than evaporate. Maybe President Perry wouldn’t prosecute you for failing to pay more than whatever flat-tax number he had in mind, but your debt to the IRS would keep accumulating until some future president made you pay, plus interest and penalties. So taking advantage of the offer would not be a prudent move.

In general, I’m not afraid of what a Republican administration might do if it sticks to the four limiting principles the OLC laid out. So the problem is more political than legal: To the extent that Republicans convince the country that Obama is doing something illegal, the next president will have rhetorical justification for doing illegal things too.

That is in fact the longer-term pattern: When conservatives falsely accuse liberals of something, they’re usually laying the groundwork for really doing something similar themselves later on. For example, liberal Supreme Courts were accused of “making up rights” for women and minorities; so when conservatives took over the Court, they felt justified in making up rights for corporations.

Now they’re telling us that the Democratic president is writing his own laws. Whether that is true in some literal legal sense or not — and I don’t believe it is — in their own minds the groundwork is being laid for future Republican decrees.

What to do? The frustrating thing about the pattern laid out in “Countdown to Augustus” is that there’s never a good place to make a stand against it. The encroachments are usually in the realm of norms rather than laws. Typically, you see a disaster looming or an injustice happening, but your opponents have taken some legal-but-unprecedented action to block the usual way the Republic would take action against it. You have the legal power to act anyway, but in a way that just isn’t done. If you act, your opponents feel themselves put in a similar situation, and they then look for further norms they can break to regain the upper hand. Eventually, people are finding loopholes in the laws against murder and treason.

But do you let your opponents gain advantage by breaking norms, without responding? Do you let the injustices continue or the disasters strike, just to preserve a norm of political behavior that the other side won’t respect anyway?

President Obama has patched a pipe in a kludgy way. In an ideal world, it would only have to hold until the plumber can get here. But the plumber’s not coming. So I’m glad the patch is there. But I’m not happy.

Republicans have a story to tell. We’re stuck with facts.

In his recent Senate campaign in my state, Scott Brown talked a lot about securing the border. That’s the southern border, the one with Mexico, the one that’s over 2,000 miles away from New Hampshire. He connected the border issue to both terrorism and Ebola, neither of which we have here. And it almost worked. As a carpetbagger from Massachusetts, running against a likeable woman we’ve been electing governor or senator since 1996, in a state Obama won twice, Brown nearly pulled it off, losing 51.6% to 48.3%.

This happens at a point in the economic cycle when things are looking reasonably good: Unemployment, GDP growth, and the federal budget deficit have all escaped from the scary territory they were stuck in for so long after the housing bubble popped, and all are trending in the right direction. The stock market is at an all-time high. American combat troops are almost out of Afghanistan and Iraq, and the country is as close to peace as it has been since 9-11. And while Fox News has managed to create a series of faux scandals to excite its viewers, by the very real measure of indictments and convictions, the Obama administration has been the cleanest one we’ve seen in a long time, comparing very favorably with, say, the Reagan administration.

Compounding the mystery, Brown’s near-miss is a rare failure in the national Republican trend. Their victory doesn’t just bring control of the Senate, but sweeps into office some pretty radical folks, like Joni Ernst in Iowa, another state Obama won twice. Sam Brownback, whose tax-cutting mania has pretty well wrecked the fiscal health of the state of Kansas without providing any of the private-sector economic boost he promised, got re-elected governor.

Meanwhile, voters were making some liberal choices on ballot measures: Oregon, Alaska, and D.C. all legalized marijuana; Arkansas, Alaska, Nebraska, and South Dakota raised the minimum wage; Washington tightened gun control; and Colorado defeated a personhood amendment to limit abortion. And the national brand of the Republican Party, as Rand Paul put it, “sucks”. A pre-election poll by NBC and the Wall Street Journal showed the party’s favorable/unfavorable rating far underwater: 29%/47%, as opposed to the Democrats’ narrower 36%/43% split.

So there’s no real evidence that the public is getting more conservative, or seeing Republicans in a better light, but still they’re electing more and wackier Republicans. What’s up with that?

The City on a Hill. I was home sick on Wednesday, so I spent the day reading a short new book called Narrative Politics by Frederick Mayer. Mayer is a professor at Duke and the book is published by Oxford University Press, so it’s more academic than popular. But it is readable and has a clear point: Political scientists like to talk about voters who rationally weigh their interests, and tug-of-war struggles between institutional powers like unions or the Chamber of Commerce or the NRA. Meanwhile, pundits and campaign consultants like to talk tactics: ad buys and gaffes and moving the conversation away from your opponent’s issues and towards yours. But they all underestimate the power of stories to evoke a public response and channel that response into actions like contributing and campaigning and voting.

Mayer begins and then later concludes with the story-telling in Martin Luther King’s “I Have a Dream” speech. King never comes out and says, “I have a story to tell”, but his speech revolves around an implicit story I might retell like this:

From the beginning, the reality of America has been trying to catch up with the dream of America. From Jefferson, who wrote that “all men are created equal” but continued to own slaves; to Lincoln, who won a war to end slavery, but could not deliver full freedom; to the civil rights movement of King’s own day, which had its victories, but still left much to achieve; to the future that King could see in his dream, and would later see from “the mountaintop“, in which the promise of equality would be fulfilled.

The story of America was the story of progress towards an ideal. That story connected to a great past, was continuing right there in Washington where King was speaking, and would carry forward to a successful conclusion in the future. It was mythic, it was inspiring, it was motivating. And today’s Democrats have nothing like it.

Republicans do. Like King, they don’t say outright, “Once upon a time …” and start telling their story explicitly. But it’s always there in the background. It can be hard to pick up on, because most speakers just allude to the story rather than re-tell it, assuming that their supporters and potential supporters already know it. I’d tell it like this:

American is and always has been the “shining city on a hill” that Ronald Reagan talked about.* Its Constitution gave the world a model of liberty. Its free society gave opportunity to immigrants whose path to success had been blocked by the class system of Europe. Its capitalist economy and the industrious virtue of its citizens gave the world a new model of productivity and prosperity. The heroism of its soldiers and the determination of its statesmen saved civilization from both fascism and communism.

But now, the City on the Hill is threatened by barbarians at the gates. If the City were focused and united, no horde could stand against it. But the virtue that still exists in many of its citizens is mixed with corruption. Many have lost sight of the golden vision of the Founders and have forgotten the glorious history that followed. Many have lost the virtues of industry and self-reliance, and have no ambition beyond soaking up the productivity of others. Many do not understand the uniqueness of the City and why its values must be defended.

The City needs a renewal within and a crusade without, led by those who understand the world-historic significance of the City and its ideals. Without such a renewal and such a crusade, it will fall, and the light it brought to the world will be extinguished. But with such a renewal, its virtues can be restored, its enemies can be routed, and its golden past can live again.

[* I’ve described before how Reagan altered the city-on-a-hill image that goes back to the Mayflower.]

It’s easy to poke holes in this story, but before we do, let’s take a moment to appreciate its sheer diabolical beauty. For example, the story itself contains no prejudice other than nationalism, but it easily adapts to whatever bigotry a listener brings. Those lazy citizens who expect someone else to support them, do they have a certain complexion? The threatening barbarians, is that Arabic they’re speaking? Spanish? The corrupt citizens, might they be gay? Or atheists? Or Jews?

Maybe. Maybe not. Bigotry is harnessed, but deniable.

Similarly, the story can unite people who disagree, because the renewal it calls for can be anything. Does the lost vision the Founders include a fundamentalist style of Christianity? Or a robber-baron style of capitalism? Or what the League of the South calls “Anglo-Celtic culture“? Maybe some of that lost virtue is sexual: Men are having sex with other men, and women don’t know their place any more. They want to be free to have sex with whomever — barbarians, even — and escape the consequences of their sin through birth control or abortion.

No wonder the City is in danger.

What it explains. It’s only in the context of the City/Barbarians story that you can really understand the intensity rank-and-file conservatives feel about issues that (at first glance) have nothing to do with their lives. Why should straight people care so much about whether gay people get married? Or New Englanders fear Guatemalan children? Why do so many people have an opinion about academic theories like American exceptionalism? Why should well-fed families begrudge a poor family its Food Stamps? Why do people without young children feel such strong hostility towards public schools and their teachers? Why are those ISIS beheadings so much more horrifying than the beheadings that are normal Saudi executions? Why did the Ebola panic get so out of hand?

These things are not issues in the usual political sense. They are signs of the corruption of the City, omens of the barbarians’ arrival, and warnings of the havoc they’ll unleash if they get here.

The story also explains the bizarre animus people feel towards President Obama, and their willingness to believe absolutely anything about him: He’s Kenyan, he’s Muslim, he’s gay, he pals around with terrorists, he’s Marxist, he wants to kill your grandmother, and on and on. Obama’s fundamental sin is that he’s not one of us. He wants to open the gates and invite the barbarians in. Fox News’ “psychologist” Keith Ablow laid it out:

[Obama’s] affinities, his affiliations are with them. Not us. That’s what people seem unwilling to accept. He’s their leader … we don’t have a president. … We don’t have a president who has the American people as his primary interest.

Sure, you can go all academic-historian and explain why the story isn’t true. You can explain that the City was always corrupt, that its prosperity depended as much on slavery and genocide as on virtue and Godliness. You can point to the virtues of the people the City wants to exclude, or the ways they have been exploited, and the debts to them that a just city would want to honor. And it won’t matter. Because a story like this doesn’t have to be true, it just has to feel true.

And if you come from a certain segment of American society  — the one I came from, for example — it does.

The lost age of upward mobility. I grew up in that segment of the white working class that expected to move up. Our expectation rested on a bunch of things that don’t exist any more.

To start with, there was my father’s job. He worked in a locally owned factory that wasn’t unionized, but had to compete for workers with factories that were. So a man who worked there (they were nearly all men in those days) could support a family and have a little money left over. Education wasn’t required; Dad had a high-school diploma, but others didn’t. And yet his job was secure in a way that is hard to imagine now. The factory itself was stable from one decade to the next — no thought of robots or China, or a junk-bond deal to liquidate its assets. So if you were reliable and worked hard you could do what Dad did: keep that job until you were ready to retire.

At every stage in my young life, I knew that if I was successful, the next stage would open up. If I did well in high school, I could go to college. It didn’t require luck or massive family savings or big loans. Community college was practically free, and the state university system was barely more expensive. You could just about work your way through college with a part-time job during the academic year and a full-time job in the summer. At worst, you might have to take a year off to work and save (at a working-class job that paid enough to let you save). So if college was part of your plan, money wasn’t going to stop you.

Once you got to college, if you chose a reasonable major and did well, you’d get a job when you graduated. Not delivering pizzas or telemarketing, but a real white-collar job with a career path. Or maybe you’d go on to graduate school and train for a higher profession. In a lot of fields, you could again work your way through. (I got a math Ph.D. by teaching calculus and getting a fellowship from the NSF. I came out debt free.) Or maybe you’d take on some debt to become a doctor or get an MBA, but that was an investment; it would pay off in no time. Once again, if you did well, there were jobs. The economy moved slowly enough that the job you’d pictured when you started grad school would still exist when you finished. And you could imagine (falsely, as it turned out) that it would still be there when you retired.

Life had what the stock-market analysts call visibility (“the extent to which future projections are probable”). You could make a plan and carry it out.

Undoubtedly, things were less certain if you weren’t white or spoke with a foreign accent. And women were just entering a lot of professions in those days, so they had no idea what to expect. But for a native-born white man, the good life was there for the taking. Nobody was exactly giving it to us — at each stage we had to work and succeed, and some of us fell by the wayside. But if you did succeed, the prize would be there. You could count on it.

None of that is true any more.

Today. As I write this I’m in my late 50s, watching my friends limp towards the end of their careers. A lot of them are one re-organization or one leveraged buyout away from unemployment, with no guarantee anyone would hire them at this age.

And their kids … I have no idea what to tell them. Even the most brilliant and energetic can’t predict where they’ll be in a few years. States have gotten out of the business of providing inexpensive high-quality higher education. There are no “safe” majors any more, no degrees that will guarantee a good first job, or even just one that will cover student loan payments. And the jobs themselves … even if you get one and everything seems fine, it can vanish like smoke. Maybe the office will move to Bangalore, or your whole profession will be replaced by an iPhone app. It doesn’t matter how smart or hard-working or well qualified you are. You could be scrambling for survival by this time next week.

Exactly whose fault this is … that’s a complicated question. Maybe the 1%, or the politicians, or technology, or globalization, or just the faceless forces of History. When the average person tries to figure it out, he just throws up his hands. Why? He doesn’t know why. But he knows this: It just feels wrong. And it didn’t used to be this way.

We used to be safe in a City on a Hill, but now there are barbarians at the gates. …

It feels true. That deep anxiety that never quite goes away. The sense that everything you’ve relied on could go “pop!” at any moment. That’s just how you’d feel in a city that was about to fall.

Nothing in the Democratic message addresses that.

What Democrats lack. Everything the Democrats support is on the wrong scale: We want to raise the minimum wage, and subsidize your health insurance, and pay women the same as men, and cut back the war on minor drugs, and create jobs building infrastructure, and put a little less carbon in the air. All good stuff. If you can get it isolated in a ballot question, it will probably pass. But none of it says, “Those are the people I want running things. I’m going to go out and take action to see that they do.”

George Lakoff summarizes the current Democratic strategy like this:

Use demographic categories to segment the electorate, categories from the census (race, gender, ethnicity, age, marital status, income, zip code), as well as publicly available party registration. … Poll on which issues are “most important,” e.g., for women (or single women), for each minority group, for young people, and so on. This separates the issues from one another and creates “issue silos.” … Assume that people vote on the basis of material self-interest and design different messages to appeal to different demographic groups.

What that misses is precisely the caring-about-things-that-don’t-directly-affect-you that the Republican story inspires. If you make minimum wage, then vote Democrat, because we’ll give you a raise. If you’re a poor woman who might get pregnant, we’ll defend your access to abortion. If you’re gay, we’ll support your right to fair treatment. If you’re Hispanic, we might not deport your nephew. If you’re young, we’ll help you deal with your student loans. But if you’re none of those things — or if you are, but not identifying strongly with your categories today — why should you care? What binds all those people together with all the other Democrats and offers them a role in the drama of history?

That’s the kernel of truth behind the charge that Democrats want to “divide America“, or that they try to win by offering “free stuff“. In one sense, those charges are laughable; it’s Republicans who have the big Us-against-Them story, and they are no less willing to offer free stuff to their constituencies. But Democratic strategy and messaging atomizes America. We may have a message for you as a unique combination of demographic categories. But we don’t have an identity to offer you as an American.

Even Lakoff’s proposal doesn’t really fix that problem. He offers a more unified set of principles and ways to advocate them, but the narrative element and the connection to our underlying anxiety is still missing. You can’t fight a story with principles, any more than you can fight it with facts or debunking or appeals to demographic interests.

You fight a story by telling a better story, one that does a better job of ringing true both factually and emotionally, one that draws people in and makes them want to tell that story to others. At the moment, we don’t have a better story. We’ve just got facts.

After you lose, you ought to spend some time in the wilderness, rethinking how you got here. During my time in the wilderness, these are the questions I’m going to be thinking about:

  • What is the real story of America? the one that’s based on actual history rather than fantasy?
  • How is that story playing out here and now, in the lives of everybody?
  • How do we want that story to come out?
  • What would it mean to be on the right side of that story, playing a role you’ll be proud to remember in your old age?
  • How can we offer Americans that kind of role?

The Case For Voting Democrat

I live in New Hampshire’s 2nd Congressional district, so most of the political ads I see are negative. Maybe that’s true everywhere, but it’s very obvious here: I’m told not to vote for Senator Shaheen or Rep. Kuster because they support President Obama too much. I’m told not to vote for their opponents because Marilinda Garcia is “too extreme” and Scott Brown is “working for the Big Guys, not New Hampshire“.

And while I recognize that it’s important to lay out the stakes of increasing the power of Republicans in Congress — do you like what they’ve been doing? they’ll do more of it if they have more power — I also think it’s important to close a campaign positively: Forget the other guy (or gal), why should people vote for you?

Allow me to explain by looking at the major issues: the economy, climate change, inequality, immigration, protecting our rights, ObamaCare, and war.

The economy. Under Democratic leadership, the economy has been getting slowly but steadily better in just about every way. Since Inauguration Day, 2009: Unemployment is down.

Screenshot 2014-11-01 08.07.16

GDP is up.

Screenshot 2014-10-31 10.54.28

The budget deficit is moving towards balance.

Screenshot 2014-10-31 10.32.26

The stock market is up.

Screenshot 2014-10-31 10.39.17

And inflation has stayed low.

No one denies that the recovery has been slow. That’s the difference between the old-style inventory-correction recessions and the bubble-popping recessions we’ve seen lately, as I explained in 2011. (Short version: In an inventory correction, the business cycle can return to its previous high as soon as retailers work through their excess inventory. But when a bubble pops, the previous high was based on a fantasy.) The 2008 housing-bubble downturn is the third consecutive bubble-popping recession, after the savings-and-loan bubble in 1990 and the dot-com bubble in 2000. All three led to what were described at the time as “jobless recoveries”. The 2008 bubble was bigger and and the corresponding recession deeper than the other two, so it has taken even longer to come out of.

All through the Obama years, the economic argument has been between Democrats who wanted more stimulus — maybe by doing something about our crumbling infrastructure or upgrading our antiquated electrical grid — and Republicans who wanted to cut spending. The result has been moderate stimulus — not nearly what economists were calling for.

What would have happened if we’d gone the Republican route? History doesn’t allow do-overs, so it’s impossible to say for sure. But one comparison says a lot: Europe and the UK suffered the same recession we did, and implemented the austerity program that Republicans wanted here. It didn’t go well. (The graph below was the best one I could find, but it only goes to 2012. The U.S. advantage only grows after that. In the most recent quarter, the American economy grew 3.5%, compared to 3.2% in the UK, and growth in the European Union has been stuck below 1%.)

Climate change. The environment used to be a bipartisan issue. Republican President Teddy Roosevelt was a proud environmentalist; Richard Nixon established the EPA; and as recently as late in 2007, conservatives like John McCain were campaigning on environmental issues. “Climate change is real,” he said at a New Hampshire rally I attended, and he proudly described the McCain-Lieberman cap-and-trade plan to cut carbon emissions.

But today, climate change is a party-line issue. If you agree with the scientists who study the topic that climate change is happening, is caused by burning fossil fuels, and that something should be done about it — in other words, if you hold the 2007 McCain position or anything stronger — you should be a Democrat. Otherwise, you’re with these guys:

Cap-and-trade passed the House when Nancy Pelosi was speaker, but fell to the threat of a Republican Senate filibuster in 2010. (McCain had turned against his own idea by then.) When Republicans took control of the House in 2011, the possibility of passing anything through Congress ended. Because there is no Republican climate-change plan that Democrats could compromise with or even surrender to. The Republican position is that climate change is just not a problem.

The only Republicans willing to talk about climate change at all are the ones claiming it’s a hoax created by a conspiracy of liberal scientists. Sarah Palin says: “More people are waking up to the global warming con” and goes on to compare concern about climate change (“hysteria”) to eugenics. You might say Palin doesn’t matter, because she isn’t in office. But the Republican chair of the House Committee on Science and Technology recently sounded similar in an op-ed in the Washington Post. Its final paragraph begins:

Instead of pursuing heavy-handed regulations that imperil U.S. jobs and send jobs (and their emissions) overseas, we should take a step back from the unfounded claims of impending catastrophe

That leaves the executive branch to take action on its own, which is always going to be a second-best option. We’re still a nation of laws, so if you can’t change the laws your hands are tied. Nonetheless President Obama and the EPA have taken a few small steps towards mitigating the very real disaster we keep marching towards. (2014 is looking like it will unseat 2010 as the hottest year on record.) Fuel economy standards on cars and carbon-emission standards for power plants have been raised.

But Mitch McConnell is promising to undo Obama’s executive actions if he becomes majority leader of the Senate. So we’ll be back to doing nothing.

Inequality. The old slogan was “A rising tide lifts all boats.” In other words, if the economy became more productive, rich, poor, and middle class would all benefit alike.

That stopped being true right about the time of the Reagan Revolution. Since then, we’ve cut taxes on the rich and on corporations, raised payroll taxes for Social Security and Medicare, made it all but impossible to start a new union, drastically limited the enforcement of antitrust laws, and made students pay for more and more of the cost of a college education. The results have been predictable.

I wish I could say Democrats were fighting to reverse all that, but they’re mostly just trying to keep it from getting worse. ObamaCare was a step in the right direction, and so was the tepid increase in the top tax rate in 2013. Meanwhile, Republicans are full steam ahead: even lower top tax rates, less regulation, less support for education, and more union busting.

Immigration. The Senate immigration reform bill is one of the rare examples of bipartisanship in the Obama era, but Republicans in the House blocked it without passing any alternative, or even bringing one to a vote. The House passed the DREAM Act back in 2010 when the Democrats were in control, but it died in a Republican Senate filibuster.

Like climate change, immigration is another issue where President Obama — recognizing that Congress is stuck — has tried to do what he can without new law. He has moved DREAMers to the bottom of the deportation priority list, and has implied that he will do more after the election. Republicans have threatened to impeach him if he does.

In the 2014 cycle, immigration has been a prime focus of Republican demagoguery. “Secure the border” is the refrain, and it connects to whatever fear-object is currently available: ISIS, Ebola, or unemployment. Meanwhile, they provide few details about what a secure border would look like or how it might be achieved. More and more, “our Mexican border is insecure” looks like one of those permanent ideological fixations that needs no supporting facts — similar to “we need to cut spending” or “voter fraud is rampant”. It will always be true, no matter how many walls we build or border agents we hire. And it will always be a reason to do nothing about immigration.

Protecting our rights. Both parties think the other side is attacking basic American rights. However, they disagree on which rights are in danger.

Democrats are trying to defend these rights: The right to vote without paying a de facto poll tax or jumping through partisan hoops. The right to marry the person you love. The right to decide for yourself whether to carry a pregnancy to term. The right to be treated fairly by police, even if you are poor or non-white. The right to equal pay, regardless of gender. The right of women to have their health problems taken as seriously by insurance as men’s health problems.

Republicans are worried about these rights: The right to carry a loaded rifle through the aisles of Target. The right of businessmen to refuse service to people they don’t like. The right of employers to decide what health coverage their employees can have. The right of Christian pharmacists and health-care workers to put their religious beliefs above your care. The right of corporations and billionaires to spend as much money as they want on political campaigns — and to do it anonymously.

Which set of rights you think are really important and actually in danger should tell you something about which party to vote for.

War. In the last year of the Bush presidency, 314 American troops died in Iraq. So far in 2014, there have been two. In Afghanistan, the total went from 155 in 2008 to a high of 499 in 2010, and this year is down to 49. Meanwhile, President Obama has resisted calls to put troops on the ground in Syria or return combat troops to Iraq, and continues to resist pressure to attack Iran. Like every president since Truman, Obama has failed to resolve the Israel/Palestine problem, if you want to criticize him for that.

ObamaCare and public health. There was a time when Republicans were planning to make this election a referendum on ObamaCare. But they dropped that plan, because more and more obviously all the time, ObamaCare is working: The number of uninsured people is down everywhere, but especially in states that accepted Medicaid expansion. Healthcare inflation is down. None of the sky-is-falling Republican predictions have come true. (They’re still predicting disaster, but more and more they resemble a religious cult predicting the End of the World: It’s coming, but the date keeps sliding for some reason.)

As I explained in more detail last week, public health in general is a Democratic issue. It’s fundamentally a we’re-all-in-this-together issue rather than an every-man-for-himself issue. In a genuine epidemic like the 1918 flu, your neighbor or your nanny or the janitor at your office getting sick is a problem for you; you want them to be diagnosed and treated as efficiently as possible. You don’t want them staying out of the system because they don’t have health insurance, or because they don’t have papers and are afraid of being deported.

The Ebola panic has pointed out something else as well: Public officials should keep their heads in a crisis, and not play on people’s fears for political gain. The Obama administration and Democrats generally have provided the calm, fact-based, science-based leadership this country needs.

 

That’s true across the board. If you want leadership that is based on facts, on science, and on the way reality actually works, you should vote for Democrats.

Vote. It’s not nearly enough, but it’s something.

If you’ve got friends who think they’re “protesting” by not voting, send them this from the Young Turks:

And while we’re on the subject, let’s address the “Both parties are owned by Wall Street” or “neither party represents me” argument: It’s true. There’s lots of stuff I want out of government that neither party is even proposing: single-payer health care, ending the perpetual war, reining in the NSA, enforcing the antitrust laws,  … I could go on.

What that proves isn’t that voting doesn’t matter, but that voting is not enough. In addition to voting, we need to be educating ourselves and our friends, challenging cultural assumptions, mobilizing support around an agenda for more radical change, launching primary challenges to get better Democrats on the ballot, pushing better forms of voting (like instant runoff) and more.

We need to use the political process, and we need a movement like Occupy … plus whatever else you can think of. Not one or the other. Both.

Not voting isn’t a protest, it’s a retreat. Not voting means abandoning the small amount of power the system allots you.

You have a choice tomorrow. There’s one party with a way-too-small response to global warming, and another that that says climate scientists are part of a global conspiracy; one party that keeps the perpetual war simmering reluctantly, and another that would eagerly boil it over; one party that sells out to Wall Street on certain key issues, and another that is 100% owned and operated by Wall Street and the fossil fuel industry; one party with a half-hearted response to economic inequality, and another working to increase inequality; one party that won’t stand up to the theocrats, and another that stands with them. In the near term, one or the other is going to control the government. Which should it be?

Would I like a different choice? Sure I would. But in the meantime I’m going to make the choice I have. Because this one’s simple: Do you want more Ruth Bader Ginsburgs on the Supreme Court or more Anthony Scalias? That decision is going to be made by voters. So don’t you want to be a voter?

Vote. It’s not nearly enough. But it’s something.

7 Liberal Lessons of Ebola

Disease should make us think like a species, not like rugged individualists.

One perverse aspect of the public reaction to Ebola is the way it seems to be playing politically, at least in the short run. Ebola is making people afraid, and pushing them towards the party whose central narrative is about fear and anger: the Republicans.

Republican politicians are certainly playing up this angle: exaggerating the threat, and calling for xenophobic actions to combat it — cut off contact with Africa, seal the border against … well it’s not clear against who. Candidates have been amalgamating all the current fear-objects into one nightmare narrative: ISIS terrorists are going to infect themselves with Ebola, then sneak across our southern border to spread it here.

Senator Ron Johnson and Rep. Joe Wilson have put it most bluntly, but Republican Senate candidates around the country — Scott Brown, Thom Tillis, Cory Gardner — have been highlighting the pieces of this dark fantasy and hoping voters will assemble it for themselves: Ebola, ISIS, southern border.

Like most nightmares, this one evaporates as soon as you look at it by daylight: Ebola sucks as a bio-weapon, because it’s so hard to spread, and by the time the carriers were contagious they’d mostly just want to sleep; they certainly wouldn’t be able to swim the Rio Grande or hike the Arizona desert. Except in fantasy, no one has found any links between ISIS and Mexico. And unlike Texas, Mexico has no Ebola cases so far; if anybody should want to seal the border, it should be them, not us.

But nightmares — even very, very unlikely ones — raise fear, and fear makes people vote Republican. Or at least that’s what Republicans believe.

A rational person, though, ought to become more liberal when they think about Ebola, not more conservative. Here’s why.

1. Ebola points out why we need government. Libertarian rhetoric about sovereign individuals has a lot of superficial charm. But biology knows nothing about that; humanity is a species, and sometimes we have to act as a species. We do this through government.

If you want to get some distance on these issues, I recommend reading John Barry’s The Great Influenza, about the 1918-19 epidemic that killed as many as 100 million people around the world. The cities that did well with that plague were the ones whose governments were most draconian about it. As you read, try to imagine a plague hitting Galt’s Gulch, where each sovereign ubermensch would do his own research and make up his own mind about the disease and how to handle it. I don’t think they’d do very well.

There’s a lot of thankless, profitless work involved in controlling Ebola. For example, tracking down all the people who have been in contact with an infected person, and testing or quarantining them. It’s hard to imagine a free-market system that would do this well. The most obvious libertarian system would make individuals responsible for tracking their own exposure, and if some more complicated system created a profit motive for controlling a small outbreak, waiting until it’s a larger outbreak would be even more profitable.

2. Ebola points out why we need a fully funded government. When there’s no immediate threat of disease, government agencies like the CDC look like bureaucratic waste. When Rand Paul put out a “Tea Party budget” in 2011, it included a big cut in the CDC, and virtually no explanation as to how this would affect its mission. As I explained at the time:

sometimes you don’t get even that much justification, and the cut seems to be based on little more than an ideological assumption that waste must be in there somewhere. Take the CDC again. It’s our front line against plagues and epidemics, the folks we depend on to helicopter down in astronaut suits if SARS or ebola breaks out or drug-resistant tuberculosis gets out of hand. It has a total budget of $6.342 billion in 2011, so $1.165 billion represents a 28% cut for the final 2/3 of the year (assuming Paul’s bill could be passed immediately).

How should the CDC fulfill its mission with 28% less money? Given how disastrous a mistake could be, you might hope for some kind of expert justification, maybe a new strategy based on a medical study or two. Nope. The overview just suggests “focusing on domestic priorities rather than spending billions on overseas initiatives.” So basically, the CDC should stop worrying about plagues in other countries, and wait until they show up here. In Rand Paul’s world, that kind of thinking saves money.

I quote from my 2011 article to make this point: Hindsight wasn’t necessary to grasp how misguided this was.

NIH Director Francis Collins has speculated that we’d have an Ebola vaccine by now if not for the budget cuts that did get made: The $37 million we spent on Ebola vaccine research in 2010 was down to $18 million by 2014. Various other people have pushed back against that speculation. (And then Mike the Mad Biologist pushed forward again.) But the bottom line is simple: If you could reach back in time and reverse those cuts, wouldn’t you?

Now ask yourself: How many other cuts are like that? How many other agencies not currently in the headlines are we looking at as “wasteful spending” when it’s just that we don’t personally need them right now? And is it possible that events might make us wish we’d spent more before the emergency hit?

3. Ebola points out why we need a fully staffed government. Wouldn’t it be nice to have a surgeon general about now? (Just as it would have been nice to have had an ambassador to Russia when the Ukraine thing broke out or a Turkish ambassador as we were trying to get Turkey’s cooperation in opposing ISIS.) As former Surgeon General Regina Benjamin put it:

The surgeon general is America’s doctor. Delivering information to the American people in a language they can understand. Not having one right now, you don’t have that face and that person that the American people can identify with as their doctor who’s looking out for them on a large scale.

But we don’t have one because of the NRA. President Obama nominated Dr. Vivek Murthy back in March. But it turned out that Murthy views gun violence as a public health problem. (So does the AMA.) That makes him unacceptable to the NRA, so the Senate has been unable to confirm him (and a recent Supreme Court ruling prevents Obama from installing him as a recess appointment).

It wasn’t so long ago that the Senate believed in staffing the government, without making every appointment into a political football. But today’s Republicans have blocked Obama’s appointments on principle, even when they have no issue with the nominee. If they get control of the Senate in the upcoming election, expect the government to remain understaffed at least until the next administration.

If you’ve ever worked in an understaffed department, you know what that means: Stuff falls through the cracks. When that inevitably happens, Republicans will blame “government” rather than the true culprit: understaffed government.

4. Ebola demonstrates why we need to fund foreign aid. Foreign aid is one of the most unpopular parts of the federal budget (possibly because Americans grossly overestimate how much we spend on it). But viruses point out that the world is more interconnected than our political systems account for.

Bush administration officials used to tell us that we had to fight terrorism “over there” or else we’d eventually have to fight it over here. That’s debatable when it comes to terrorism, but it’s absolutely the fact when you talk about contagious diseases.

Ebola is controllable — previous outbreaks have been controlled, and the world has gone entire years without new cases. But ultimately it has to be controlled at the source, in west Africa.

Now widen your view a little: Anyplace in the world where people are living in unhealthy and unhygienic conditions, the next super-bug might be evolving. Any population that is “off the grid” of the global medical establishment might where a pandemic gets rolling before anyone notices.

5. The specter of a deadly infection demonstrates why we need universal health care. Conservative rhetoric revolves around individuals, and in particular how wrong it is to “give” individuals benefits — like health care — that they haven’t “earned”. Such individuals become “dependent on government” and take money away from “job creators”. It’s even worse if some of those benefits reach people who entered the country illegally or stayed past the expiration of their visas.

But when an infection gets loose, you want everybody who might be sick to seek treatment. You don’t want them to stay away from doctors because they can’t pay, or avoid the emergency room for fear of being deported, or not tell anybody about that undocumented cousin they might have infected.

I’m still not terribly worried about the spread of Ebola in the United States. (The number of cases and the likelihood of spreading the infection are both low.) But we might not be so lucky with the next disease. That’s why we should all be tremendously grateful that (so far) ObamaCare has gotten health insurance to ten million more people, and we should be working to plug the holes in that system rather than tear it down.

If a real epidemic got rolling, where would you rather be? In Massachusetts, where the model for ObamaCare, RomneyCare, became law in 2006, and only 1.2% of the population lacks health insurance? Or in a conservative wonderland like Texas, where 24.8% — probably including the Hispanics who clean your office or work in the kitchen at your favorite restaurant — are uninsured?

6. The Ebola panic demonstrates the danger of legitimizing conspiracy theories. During a plague, you need affected people to cooperate with the containment plan — seek treatment, accept quarantine, and report all their contacts truthfully — while unaffected people stay calm rather than doing panicky, stupid things. That’s when it’s important that the country trust its scientific establishment and its government.

Now of course it is important that the media and the political process police the trustworthiness of both those institutions. On those rare occasions when scientists fake data, they should be exposed. When the government lies, the media should investigate and seek the truth.

But what we’ve been seeing inside the conservative news bubble during these last six years goes way beyond that. Political opportunism has been seeking every opportunity to tear down public trust, even when — maybe especially when — the accusations are baseless.

And so, much of the public believes that the scientific community is involved in an elaborate conspiracy to promote a climate change “hoax”, or to destroy the Christian religion via the theory of evolution. So how can we believe what the doctors are telling us about Ebola?

And the Obama administration? If President Obama faked his birth certificate to hide the fact that he’s not really eligible to be president, if he’s been plotting to destroy the U.S. since he was a student, if he has a gun-confiscation plan that’s always just a month or two from implementation, if he is funding “death panels” that will decide whether your life is worth saving, if he has a “Kenyan, anti-colonial” worldview, if he “hates white people” or “has a deep-seated hatred of white people or the white culture” … why would his administration tell us the truth about Ebola? Fox News’ resident psychologist Keith Ablow lays it out:

[Obama’s] affinities, his affiliations are with [Africans]. Not us. That’s what people seem unwilling to accept. He’s their leader … we don’t have a president. We don’t have a president who has the American people as his primary interest.

This is irresponsibility on a grand scale. Every era has a lunatic fringe with paranoid notions. But this kind of stuff comes from governors, members of Congress, a news network, and lots of other folks who seem to be part of a trustworthy establishment. And major national leaders — I’m looking at you, John Boehner and Mitch McConnell — sit at the same table and humor the purveyors of this destructive nonsense.

So it’s no wonder we’re seeing all kinds of weird behavior out there: Like the school in Maine that suspended a teacher for 21 days (the incubation period of Ebola) because she’s been to Dallas. Her hotel was less than ten miles from the hospital where two nurses got infected, so how can we have her in the same room with our children? (The local news report on this mentions a local parent who believes the government has “downplayed risk factors”. I wonder where he gets his news.) Thursday, several entire schools closed in Texas and Ohio because of Ebola contagion fears.

What would happen if we were having a real epidemic? I think mobs would be roaming the streets, burning down the houses of suspected carriers — all because the conservative movement and the Republican Party have prioritized destroying Obama over maintaining public trust in trustworthy institutions.

Pandering to people’s worst instincts may seem like a political freebie. But it isn’t. There’s a big social cost to this kind of stuff. But “social cost” is one of those things that conservatives are trained not to see. And that’s a 7th reason why you should be a liberal.

Is the Battle For Same-Sex Marriage Nearly Over?

I hated last summer’s Windsor decision. That is, I loved the result — the Defense of Marriage Act overturned — but I hated Justice Kennedy’s mushy legal logic. What did the decision mean? How would it apply to anything beyond the specific case in front of the Court? How would it apply to state bans on same-sex marriage?

Lower-court judges wondered too. As he was striking down Oklahoma’s ban in January, Judge Terence Kern placed a subtle barb into his decision:

This Court has gleaned and will apply two principles from Windsor.

I unpacked that statement like this:

Ordinarily, a lower-court judge just “applies” principles from a higher-court ruling, rather than having to “glean” them first.

Nevertheless, judges all over the country were managing to glean something similar out of Windsor. In one federal district after another — Indiana, Utah, Virginia, Wisconsin — state same-sex marriage bans were going down. The states were appealing those decisions to the Supreme Court, but the Court did not necessarily have to make a ruling, because so far the appellate court rulings were unanimously against the state bans. If one district found them constitutional and another unconstitutional, the Supremes would have to step in. But so far that hadn’t happened.

On Monday, the Court announced that it would take advantage of its right to remain silent: It was refusing to hear the appeals. That instantly established marriage equality in the appealing states, and made virtually automatic its extension to other states in the same appellate districts: Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. (The near-automatic ruling in North Carolina happened Friday. Thursday, West Virginia officials dropped their case rather than waste time losing.)

The 9th Circuit Court of Appeals, which comprises much of the Northwest, will hear cases involving Idaho, Nevada, and Hawaii soon. Alaska’s ban went down Sunday, so it might be added to that hearing.

When the dust settles fairly soon, gays and lesbians will be allowed to marry in 30 states — 35 if the 9th Circuit joins the appellate-court consensus. Can anything stop its extension to the whole country before long?

The politics of the Supreme Court. One of the intriguing facts about the Court’s non-decision is that hearing an appeal only requires the approval of four justices, not the five it would take for the appeal to succeed. The Court’s four most conservative members — Roberts, Scalia, Alito, and Thomas — all dissented in Windsor and presumably believe in the constitutionality of state same-sex marriage bans. If they had stuck together, they could have agreed to hear the appeals. That would have stopped the spread of marriage equality at least until the Court ruled, maybe as late as June.

The only reason not to take that course is the fear that they would lose, and that Justice Kennedy would join the Court’s liberal justices — Ginsburg, Sotomayor, Breyer, and Kagan — in establishing a constitutional right to same-sex marriage in all 50 states. Similarly, the four liberal justices could have accepted the appeal and gone for the win rather than for the sizable advance the non-decision represents.

All the justices — especially Kennedy — might want the battle for marriage to play out in a more gradual, more organic way, rather than ending it in a quick thrust with the Court’s fingerprints on the knife.

And both sides can keep their victory scenarios alive, though the conservative victory scenario is shakier: If they can’t convince Kennedy to join them, the conservative justices have to hope a Republican wins the White House in 2016 and has a chance to replace Kennedy or a liberal judge with a conservative.

Nationally, marriage equality has substantial momentum, so a decision upholding it becomes less controversial by the day. And if the Court never decides, in the long run the political process will.

The legal debate. Reading the post-Windsor lower-court decisions, one conclusion is inescapable: The anti-gay side has run out of ammunition. In case after case, they have had no better strategy than to trot out the same arguments all the previous courts rejected, and hope that this judge will be more sympathetic to their cause.

Way back in Lawrence, the Supreme Court rejected the notion that mere moral disapproval (without any substantive injury to those disapproving or to society in general) was an acceptable basis for making a law (against sodomy, in that case). So “I think two men kissing is yucky” is not a rational basis for banning same-sex marriage. Similarly, “The Bible says it’s wrong” doesn’t cut it, because the Bible has no legal standing.

Since those are the actual reasons people oppose marriage equality, the legal arguments against it have always been facades. More and more, they have looked like facades, and judges have routinely knocked them down: There is zero legitimate evidence that letting same-sex couples marry harms heterosexual couples, or the children being raised by either same-sex or opposite-sex couples, or anyone else.

Looking back at the Goodridge decision (that legalized same-sex marriage in Massachusetts in 2003), it’s striking how little has changed on the anti-gay side. The arguments that were unconvincing a decade ago are still the only ones they have.

The political debate. My prediction after Goodridge has been borne out:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

Focus on the Family’s James Dobson’s predictions, on the other hand, have not fared nearly so well:

Barring a miracle, the family as it has been known for more than five millennia will crumble, presaging the fall of Western civilization itself.

Same-sex marriage has been legal in my state (New Hampshire) for almost five years. And I live just across the border from Massachusetts, where it’s been legal for a decade. If the family or Western civilization is any closer to crumbling here than in heterosexual-marriage-only states like Texas or Alabama, the signs are escaping me.

Scare tactics like Dobson’s are an all-or-nothing gamble. If you can frighten people out of trying something, they’ll never find out that your visions of doom are baseless. But as soon as somebody does try it, then the sky either falls or it doesn’t.

The sky isn’t falling. The more states that implement marriage equality and the more same-sex couples that are visibly pursuing their chance at marital happiness, the more obvious it becomes that the sky is not falling. Little Bobby’s friend Susie has two Dads or two Moms, and it’s just not a problem. You’ll never be able to explain to Bobby why you want the government to break up Susie’s family.

That’s why the poll results are so age-determined. The main people against marriage equality these days are the grandparents, who don’t have to explain stuff to Bobby.

So here’s what I expect to happen as a result of this latest expansion of marriage equality: The opposition will harden in the states affected, but it will also shrink. More and more people will have a chance to observe first-hand the absurdity of the “pro-family” scare tactics.

Here’s what I don’t expect to happen: The Republican Party will not launch a crusade to get this reversed, or play up the Republican-president-appoints-an-anti-gay-judge scenario in 2016. Because nationally, that’s a losing issue. The public has turned.

The last-ditch resistance. In “Not a Tea Party, a Confederate Party“, I defined the Confederate worldview like this:

The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries.

On the national level, conservatives can’t win this battle either legally or democratically any more, and the number of states where they could win democratically is shrinking every year. More and more, the national Republican leadership wants to talk about anything else — Ebola-infected ISIS terrorists crossing our Mexican border, maybe.

Republican strategist Alex Castellanos put it like this:

Increasingly, there is less room in the GOP for ‘big-government’ social conservatives, i.e., social conservatives who believe in using the power of the state to tell people whom they can love or marry. Instead, there is growing agreement, in an ever younger and increasingly libertarian Republican party, that the role of the state in prohibiting relationships should be minimized.

And northern Republican governors like Scott Walker and Chris Christie are happy to leave the issue behind.

But that pragmatic approach to politics doesn’t sit well with the older Confederate types. Mike Huckabee is threatening to leave the party if it doesn’t fight this. Other voices are calling for civil disobedience, though it’s not clear what form that would take.

The most outrageous response came from Pat Buchanan, who recalled resistance to an earlier act of “judicial dictatorship”:

In 1954, the Supreme Court ordered the desegregation of all public schools. But when the court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose.

Only when resistance became national and a violent reaction began did our black-robed radicals back down.

Again, it’s not clear what specific acts of violence he’s calling for.

I also cited the reaction to school desegregation as an example of Confederate tactics in the modern era. And Buchanan apparently sees that relationship too (though he views it positively). He ends his article with a quote from Robert Lewis Dabny’s 1867 book A Defense of Virginia.

American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. … Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom.

Buchanan is arguing against conservatives who believe that the debate about same-sex marriage is over. Dabny was arguing — after the end of the Civil War — with those who thought that the debate about slavery was over. Dabny was a prophet of the insurgency that ultimately won Reconstruction for the South and established Jim Crow.

And he’s an example that Buchanan wants to emulate.

Sam Harris and the Orientalization of Islam

The argument about Islam between Ben Affleck and Sam Harris on Bill Maher’s HBO show Real Time brought to mainstream attention a phenomenon that’s been simmering for a long time: Islam brings out something ugly in many of the most vocal atheists like Harris and Maher.

Part of the problem is obvious in the staging: Maher has arranged the show in such a way that the onus of defending non-jihadi Muslims falls not on some prominent Islamic leader, or even on a rank-and-file Muslim, but on Ben Affleck, an actor who (as far as I know) has no connection to Islam. Affleck occupies a position that I occasionally find myself in (usually with regard to political issues like Birtherism) and thoroughly hate: He recognizes that the conversation is taking an ugly turn, and he’s completely unprepared to respond to it, but everyone else is just letting it go. He boils over not because he thinks he is the right person to have this argument, but because he’s the one who’s here.

Probably this post has already gotten three comments from people who have read no further and are shocked that I’m taking Affleck’s (and Islam’s) side over Harris and Maher. The Weekly Sift has a substantial atheist/agnostic readership, and for good reason: I’m a consistent defender of the wall of separation between Church and State, and I fight back against the attempts by right-wing American Christians to subvert concepts like religious freedom. Whether or not I am an atheist myself depends on your definitions, but a major theme of my explicitly religious writing and public speaking (like this recent example) is how someone with a secular worldview can get the benefits claimed for traditional religion (serenity in the face of death, for example) without accepting its doctrines.

Plus, I’m usually a Bill Maher fan. (Though don’t expect me to defend him segueing out of a Sarah Palin joke with “speaking of dumb twats“.) I’ve linked to a number of his New Rule rants, and used a Maher quote to lead off the Sift as recently as September 29.

So, Harris and Maher might ask, what’s up with me? Why do I have what Joseph Farah has called the “liberal blind spot on Islam“? Here’s how Harris made that case on Real Time:

We have been sold this meme of Islamophobia, where every criticism of the doctrine of Islam gets conflated with bigotry towards Muslims as people.

Maher had introduced the segment like this:

Liberals need to stand up for liberal principles. … Like freedom of speech, freedom to practice any religion you want without fear of violence, freedom to leave a religion, equality for women, equality for minorities (including homosexuals). These are liberal principles that liberals applaud for, but then when you say “In the Muslim world, this is what’s lacking” — then they get upset.

The discussion that follows largely misses what I think is the main point, and in that sense it resembles those why-don’t-you-care-about-black-on-black-crime discussions that followed the shootings of Michael Brown and Trayvon Martin. Statistics are quoted (“78% of British Muslims think that the Danish cartoonist should have been prosecuted”, much like “[blacks make up] 50% of homicide victims in this country, and 90 percent of those victims are killed by other black people.”), and many true facts are stated — but stated within a frame that already embodies the offensive content. “This is based on reality, Ben,” Maher insists. “We’re not making this up.”

Nicholas Kristof does push back in the right direction:

This does have the tinge, a little bit, of the way white racists talk about African Americans.

But, like Affleck, he isn’t prepared well enough to unpack that idea.

Let me give it a shot. The problem here is the one that Edward Said wrote the entire book Orientalism about: The privileged outsider encloses some large group of diverse “others” inside a conceptual fence, gives the enclosure a name like “the Orient” or “the Muslim world”, and then takes it on himself to pronounce what the defining essence of that fenced-off region is.

Remember when Cliven Bundy said, “I want to tell you one thing I know about the Negro”? It doesn’t really matter where Bundy goes from there. The racism is already built into the idea that there is such a being as “the Negro”, and that a white man like Bundy is qualified to make pronouncements about the defining characteristics of “the Negro”.

Now look at what Harris snuck into the Islamophobia quote above: “the doctrine of Islam”. To Harris, Islam is not a cacophony of people who have been arguing with each other since the 7th century. It’s one thing. It has a unified body of doctrine, and Harris can tell you what that doctrine is. And if there are people who consider themselves Muslims but disagree with whatever Harris defines from the outside as the essence of Islam, well, too bad for them.

Harris’ rhetoric is shot through with this orientalist framing. Elsewhere in the conversation he maps it out:

Just imagine some concentric circles here. You have at the center, you have jihadists. These are people who wake up in the morning wanting to kill apostates, wanting to die trying. They believe in Paradise. They believe in martyrdom. Outside of them we have Islamists. These are people who are just as convinced of martyrdom, and Paradise, and wanting to foist their religion on the rest of humanity, but they want to work within the system. They’re not going to blow themselves up on a bus. They want to change governments. They want to use democracy against itself. Those two circles are arguably 20% of the Muslim world. … But outside of that circle you have conservative Muslims, who can honestly look at ISIS and say: “That does not represent us. We’re horrified by that.” But they hold views about human rights, about women, about homosexuals that are deeply troubling.

Look what he’s done there: Jihadists are the real Muslims. They’re at the center. The further you are from being a jihadist, the fringier your Islam is.

So the question of who is a real Muslim, and what makes someone a real Muslim — that’s not something for Muslims to wrangle out among themselves, it’s for a hostile outsider to pronounce. That’s where the bigotry is. Statistics about how many people fall into Harris’ concentric circles are irrelevant. The bigotry has already been baked into the circle-drawing itself.

In case that point went past you, Harris underlines it later on:

There are hundreds of millions of Muslims who are nominal Muslims, who don’t take the faith seriously, who don’t want to kill apostates, who are horrified by ISIS, and we need to defend these people, prop them up, and let them reform their faith.

So if you think you’re a Muslim, but you don’t support ISIS or want to kill apostates, your Islam is just “nominal” and you “don’t take the faith seriously”. It doesn’t matter if you’re an imam and have devoted your life to your vision of Islam and your relationship with Allah; you’re not “serious”. Because it’s up to Sam Harris to decide what “serious” Islam is. And, like a colonial governor of hostile natives, he’s going to “prop up” the people he has identified as not “serious” about the native culture.

Harris ought to be old enough to remember the final decade or so of the Cold War — the era when “under God” was added to the Pledge of Allegiance — when similarly vicious framing was used against atheists: Soviet Communists were the real atheists. Secular humanists might nominally be atheists, but they were just fellow-traveling dupes of the Soviet Communists.

If you lived through that, you shouldn’t want to do it to anybody else.

Such manipulation of categories and essences is a fundamental flaw in all of Harris’ writing, as I pointed out when I reviewed The End of Faith for UU World magazine in 2006. He implicitly assumes from the outset that fundamentalism is the essence of religion. This isn’t a conclusion he draws from facts, it’s the a priori conceptual framework into which facts are placed.

The End of Faith presents contemporary religious debate as an argument between fundamentalists like Osama bin Laden or Pat Robertson and atheists like Harris. Everyone else is a “moderate” — wishy-washy people who don’t have the intellectual integrity to choose between fundamentalism and atheism. The message of The End of Faith is that “moderates” need to get off the fence; by continuing to support theistic religion in any form at all, they’re empowering the fundamentalists.

When Harris argues that “moderates” do not represent the essence of their faith, he quotes scripture — just as a fundamentalist would. He accepts without question or examination the fundamentalist assertion that a faith is defined by a literal interpretation of its scripture.

A more mature view of religion is contained in another book I reviewed for UU World: James Carse’ The Religious Case Against Belief. To Carse, Christianity is the conversation that Jesus began, not a belief system laid down by Jesus and recorded once-and-for-all in the New Testament. Likewise, Islam is not the Quran, it is the sum total of conversations the Quran has inspired. The Bible and the Quran are central cyclones of mystery that over the centuries have spun off any number of belief systems, each of which has its day in the sun and then eventually crashes, as all human belief systems must.

This is not some bizarre notion unique to Carse. In Isaac Bashevis Singer’s novel The Penitent, the novel’s ultra-orthodox narrator announces a similar opinion: that the highest form of Judaism was not the one Moses brought down from Sinai with the Torah, but the Judaism that developed after millennia of discussion about the Torah.

Harris’ failing isn’t that he has gotten the essence of Islam (or of religion in general) wrong. (This is another key point of Orientalism.) It’s that religion is a complex human phenomenon that can’t be reduced to a single essence. There is nothing to know about “the Negro” or about the Orient or Islam or Judaism or religious people in general. These are all conceptual fences that enclose diverse populations, not natural categories that each have a unique Platonic essence. So you can quote all the statistics you want about, say, the size of Jewish noses. But that caricature of the big-nosed Jew is still anti-Semitic.

So finally, what should we make of the claim that “you can’t criticism Islam” or “you can’t criticize religion”? First, note it’s resemblance to the common claim by white conservatives that they can’t criticize President Obama without being called racists. If you look at the specific instances they point to, it’s usually not that hard to see something racist going on. And the airwaves seem to be full of criticism of President Obama; lots of people manage it without sounding racist. Conservatives should learn to see what separates racist criticism of Obama from non-racist criticism of Obama, not squawk because somebody thinks they’re racists.

The reason to pause before you criticize Islam or religion isn’t that these topics are or should be surrounded by some special aura of protection. It’s that there’s really no such thing as Islam or religion, at least not in the sense that most critics would like to assume.

Want to criticize something that people do, like when families murder their own girls in “honor killings“? By all means criticize that. Want to point out that many such murderers justify themselves by pointing their Muslim faith? That’s fine. (Of course, you might also point out that the problem appears in other religions too, and that many other Muslims disagree with the killings.) What you shouldn’t do, though, is set yourself up as the Pope of Islam and pronounce that the killers are the “real” Muslims and their critics are just “nominal” Muslims.

Vlad Chituc, who writes for a very good secularist blog called NonProphet Status, has an excellent set of suggestions for criticizing religion effectively and without orientalizing it. One of them resembles what I’ve been saying here:

You also have to be appropriately specific: if you say that Christianity is sexist, and your friend practices a form of Christianity that isn’t, then there is a discrepancy you need to address. Is it the Bible that is sexist? Or just certain passages? Are they being interpreted in the same ways? Suddenly the conversation gets more productive and detached from a facet of their core identity.

… I occasionally hear various sorts of essentialist arguments where it’s claimed that religions just are their holy books. That seems obviously wrong to me: no one would say that Christianity is anti-fig because Jesus cursed a fig-tree in Mark, and no one would say that a pro-fig Christian isn’t even really Christian because of their position on figs. I don’t see why we ought to treat passages about homosexuality any different.

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