Crimes Uncovered

We must make atonement for all the terrible crimes we read of in the newspapers. We must make atonement for the still worse ones, which we do not read about in the papers.

— Albert Schweitzer

In this week’s Sift:

Tortured Coverage: Two Problems in 21st Century News

Two recent stories about torture expose different aspects of what’s wrong with American journalism.

In the first, a study by students at Harvard’s Kennedy School of Government demonstrated that major newspapers’ characterization of waterboarding abruptly changed in 2004, when it came out that the U.S. government was doing it. Prior to public knowledge of American involvement, 44 out of 54 New York Times stories that mentioned waterboarding characterized it as torture, but only 2 out of 143 subsequent articles did. The LA Times was also studied and its numbers showed a similar pattern.

The raw numbers are bad enough, but then you get to the NYT’s self-justification:

As the debate over interrogation of terror suspects grew post-9/11, defenders of the practice (including senior officials of the Bush administration) insisted that it did not constitute torture. When using a word amounts to taking sides in a political dispute, our general practice is to supply the readers with the information to decide for themselves.

Translation: The Bush administration told us not to call it torture, so we stopped. Similarly the Washington Post:

After the use of the term ‘torture’ became contentious, we decided that we wouldn’t use it in our voice to describe waterboarding and other harsh interrogation techniques authorized by the Bush administration.

What’s wrong here? Waterboarding-as-torture didn’t become “contentious” because some new information threw previous judgments into doubt. It became contentious because an interested party — the U.S. government — started contending against it in defiance of all previous objective standards.

And the major newspapers buckled. By backing off of a word the government didn’t want them to use, reversing their previous judgments about its meaning and proper use, they did take a side in the political dispute. I’ll let Glenn Greenwald sum up:

We don’t need a state-run media because our media outlets volunteer for the task: once the U.S. Government decrees that a technique is no longer torture, U.S. media outlets dutifully cease using the term. That compliant behavior makes overtly state-controlled media unnecessary.

The second story is also about torture, but on a much smaller scale: A former Chicago police lieutenant was just convicted of torturing sometimes-false confessions out of suspects, some of whom have subsequently been released from death row and won a suit against the city. The case came out of a series of articles investigative reporter John Conroy wrote for the Chicago Reader, starting in 1990.

Chicago public radio station WBEZ lucked out in its coverage of the trial: Conroy was available to blog about it because he’s unemployed. Like most big-city papers, the Reader has been laying off reporters — obviously not just the deadwood.

So who’s going to catch the next torturing cop? And who’s going to look into the stories of the people who are still in jail based on their tortured confessions? Not Conroy — now that the trial’s over, he needs to go find a job.

Immigration Reform: Comprehensive or Cartoon?

The Obama administration did two things to push the immigration issue forward in the past two weeks: President Obama gave a speech outlining what immigration reform ought to look like, and the Justice Department filed suit to keep Arizona from enforcing its papers-please law, S.B. 1070. [text of federal complaint. text of 1070]

The course of the immigration debate boils down to this: The problem is simple to describe, and there’s a simple-minded solution that feels satisfying but is cartoonishly unrealistic. Nobody wants to hear complicated answers this year, so every discussion founders on why we can’t just do the cartoonish thing.


Here’s the simple problem: Millions — nobody’s sure exactly how many millions — of people came to this country illegally and live here either under false identities or off the books entirely. This has both good and bad effects on our economy (which I’ll discuss next week). It creates a big hole in our homeland security (because malevolent foreigners might hide in the crowd of harmless people who sneak into the U.S. and live here illegally). And it undermines our worker-protection and public-health laws (because undocumented workers won’t complain to the authorities, and who knows whether their children get vaccinations).

The simple-minded solution is that you build a wall at the border, then pick up the millions of illegal immigrants and dump them on the other side. Patrol the wall with enough troops to shoot anybody who tries to come back. Done.

As soon as you start adding details to that picture, though, the whole thing falls apart. For instance: If a wall will solve the problem, then why is there an illegal Chinese immigrant problem in Israel? They didn’t walk there.

We want foreigners to come here as tourists, students, and on business of various sorts. And we want to be the kind of open society where the government doesn’t keep track of our every move and force us to keep proving that we’re legal. So unless we’re willing to assign Soviet-style minders to every foreign family that goes to Disney World, we’re going to have illegal immigrants.

Now start imagining the Gestapo you’d need to round up millions of people, many of whom have been here for years and have friends and relatives who are legal residents with attics and basements. At a bare minimum, you’d need national ID cards, surprise house-to-house searches, and big penalties for those giving shelter. Where does that go? Years from now, high school students in Germany might be reading the tragic diary of some teen-age Anna Francisco from Indianapolis.

So if you think about the issue for more than a minute or two, you begin to see that we can’t solve this problem unless the vast majority of our undocumented residents cooperate. We can track down some of them, but we’ll need most them to come in voluntarily and register. And that means that our program has to have more carrots than sticks.

Conservatives hate that, because their instinctive reaction to any problem is to punish some non-wealthy person who doesn’t resemble them. But no punishment-based program can solve this problem.

We need what President Obama (and President Bush before him) described: a comprehensive plan that tightens the border, cracks down on employers, and offers undocumented residents legal status if they jump through a series of hoops. Such a program won’t bring the undocumented population down to zero — nothing short of ethnic cleansing will. But it should cut the problem down a few sizes.

Unfortunately, you have to get past the Wile E. Coyote solutions before you can even talk about anything realistic. And even Republican senators who know better aren’t willing to stand up to their radical base.

The federal suit against Arizona has a simple point: Regulating immigration is a federal responsibility, and the federal government needs to have the discretion to handle it. For example, it’s federal policy not to deport refugees who come here fleeing oppression. The Arizona law has no provision for that.

The best place I’ve found for studying the immigration issue is the Immigration Policy Center.

Obama’s immigration enforcement techniques are less showy and more effective than Bush’s.

The NYT has a fascinating article about the long-term unemployed. On the third page we find this:

“I would take a gardening job,” said a 58-year-old woman who had earned $24 an hour as an office manager. “I would clean toilets if I could, but I can’t take that job. Millions of people in California are illegal and they’re taking our jobs.”

A long list of factors went into explaining what had happened to the American economy so that former professionals conversant in spreadsheets and mutual funds were now chagrined to be denied the opportunity to scrub toilets. To a student of macroeconomics, the arrival of illegal immigrants seemed far down the list, somewhere after weak long-term job growth and the near collapse of the financial system.

But to unemployed people trying to divine a cause through the miasmatic haze of their own situations, the presence of illegal immigrants was the explanation they could see most clearly. You could spot them on street corners, waiting for work. You could see them crammed into rental homes, or hear their music blaring from pickup trucks. Joblessness was disorienting. Illegal immigrants formed the only putative cause that lived next door.

DOMA is Unconstitutional

Thursday, a federal judge in Massachusetts ruled that a big chunk of the Defense of Marriage Act (DOMA) is unconstitutional.

The case. It’s easy for the facts of a case like this to get lost in the subsequent debate, so I’ll state them up front: Seven same-sex couples who are legally married in Massachusetts applied for federal benefits that opposite-sex married couples routinely get (like family health insurance for federal employees), but they were denied because of DOMA. Three surviving same-sex spouses applied for federal survivor benefits under Social Security and were also denied.

Judge Joseph Tauro ruled that they should get their benefits (with one exception on a technicality). From here the case will almost certainly go to an appellate court and then to the Supreme Court before it is finally resolved.

DOMA. Congress passed DOMA in 1996, shortly after a case in Hawaii raised the possibility that same-sex marriage might become legal in that state. (It still hasn’t happened. Hawaii’s governor vetoed a same-sex civil-union law Tuesday. Same-sex marriage became legal in Massachusetts in 2004 and is now also legal in Connecticut, Iowa, New Hampshire, Vermont, and the District of Columbia. Maryland, New York, and Rhode Island recognize same-sex marriages performed in other states. Wikipedia has the details.)

DOMA says two main things:

  • States don’t have to recognize same-sex marriages performed in other states.
  • Every reference to “marriage” in federal law means opposite-sex marriage.

Judge Tauro ruled that the second is unconstitutional. The first provision is also constitutionally suspect (Article IV: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”), but it didn’t come up in this case, so it is unaffected.

The reasoning. Most of the coverage of this decsion has emphasized the 10th Amendment states-rights angle. (In ratifying the Consitutiton, the states never surrendered their right to define marriage.) But that’s not the argument that does the heavy lifting.

If you’ve read any other decision that defended same-sex marriage, this one looks a lot the same. They all start with the 14th amendment, which promises “equal protection under the laws” to every person under the jurisdiction of the United States.

In practice, this means that if the government treats one class of citizens differently from another, it needs to have a good reason. How good a reason depends several factors, but the lowest hurdle a law has to jump is the rational basis test:

A law that touches on a constitutionally protected interest must be rationally related to furthering a legitimate government interest.

In other words, Congress can’t pass a law just to screw with some group it doesn’t like. For example, the laws against burglary were passed in order to protect property (a legitimate government interest), not just to screw with burglars because their lifestyle offends Congress’ sense of morality.

Judge Tauro went through the reasons originally given when DOMA was passed, plus a couple of others put forward by the Justice Department (which defended the case on behalf of the government — more about that later), and found that denying federal benefits to legally married same-sex couples is not rationally related to any of those goals.

[For example, the administration argued that the federal government has an interest in the simplicity of standardizing benefits state-to-state. Judge Tauro found that the federal government had never before worried about the different standards for marriage in the various states, and does not now worry about it with respect to any other issue:

a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire. Though this court knows of no other state in the country that would sanction such a marriage, the federal government recognizes it as valid simply because New Hampshire has declared it to be so.

Worse, this new desire to choose which state-approved marriages it will recognize has actually complicated the federal government’s process rather than simplifying it.]

Putting Tauro’s conclusion very simply: The disadvantages DOMA inflicts on married same-sex couples aren’t unfortunate side-effects of a law with some other good purpose. Disadvantaging same-sex couples is the purpose of the law. And that’s not rationally related to any legitimate government interest.

The Obama Administration’s Role. This case puts the administration in a difficult position. The executive branch has an obligation to defend the laws as written. (Article II, Section 3: The president “shall take care that the laws be faithfully executed.”) So when someone sues to have a law declared unconstitutional, the Justice Department defends.

On the other hand, President Obama is on record saying that DOMA ought to be repealed. One way to get rid of it would be not to defend suits against it. But that’s a bad process, and is exactly the kind of abuse of executive power I complain about in other contexts.

Taken to an extreme, this practice would allow the president and one federal judge to repeal any law they don’t like: You file a test case in the judge’s district, and then the president orders the Justice Department not to appeal when the judge finds the law unconstitutional. Bye-bye law.

Imagine, say, a President Palin or Huckabee refusing to defend a suit against the insurance mandate of the health care reform law. We don’t want to go there. The administration should hold its nose and appeal, and I’m sure they will.

Israel, Palestine, and the New York Times

Without any intention on my part, this week’s whole Sift revolves around the virtues and vices of the New York Times. Maybe I’m just reading articles I used to skim or skip over, but it looks to me like the Times made a conscious decision to deepen its Israel/Palestine coverage after the Gaza flotilla raid.

Usually our news media looks at the world through frogs’ eyes. It only sees motion, so issues can drop out of its sight just by standing still. Israel/Palestine is exactly the kind of topic it covers badly: an ongoing situation where one day looks a lot like the next. These situations may be important, but they’re not “news” in the very literal sense that nothing new happened today.

That was the whole point of the Gaza flotilla. The Israeli government has been very good at pressing the Palestinians without making news, and the flotilla was an attempt to create a newsworthy event that would draw attention to the larger situation.

It’s been working, at least at the NYT, which lately has been sending people out to cover Palestine-related situations that lack any eye-catching event. On July 5 it published a long article about American charities aiding West Bank settlements that the Israeli government considers illegal. Israelis would not be able to get tax deductions for making such contributions, but Americans do.

The money goes mostly to schools, synagogues, recreation centers and the like, legitimate expenditures under the tax law. But it has also paid for more legally questionable commodities: housing as well as guard dogs, bulletproof vests, rifle scopes and vehicles to secure outposts deep in occupied areas.

Interestingly, some of the most radical of the American groups are evangelical Christians, known as Christian Zionists.

This article was followed up on July 7 by a “Room for Debate” segment where eight writers answered the question: “Do U.S. donors drive Israeli politics?

NYT columnist Nicholas Kristof has been spending time in the region. Thursday’s column drew attention to dissident opinion within Israel, like Rabbi Arik Ascherman of Rabbis For Human Rights.

Rabbis for Human Rights has helped Palestinians recover some land through lawsuits in Israeli courts. And Rabbi Ascherman and other Jewish activists escort such farmers to protect them. The settlers still attack, but soldiers are more likely to intervene when it is rabbis being clubbed.

Kristof draws attention to something that I also have been struck by as I’ve dug deeper into these issues:

The most cogent critiques of Israel’s treatment of Palestinians invariably come from Israel’s own human rights organizations. The most lucid unraveling of Israel’s founding mythology comes from Israeli historians. The deepest critiques of Israel’s historical claims come from Israeli archeologists (one archeological organization, Emek Shaveh, offers alternative historical tours so that visitors can get a fuller picture). This more noble Israel, refusing to retreat from its values even in times of fear and stress, is a model for the world.

In Kristof’s previous column he visited a smuggler’s tunnel on the Egyptian side of Gaza. He reports that there are many such tunnels running 24/7 — enough that “shops are filled and daily life is considerably easier than when I last visited here two years ago.”

Far from hurting Hamas, Kristof claims, the blockade has created a tunnel economy that Hamas can more easily tax and control, while ruining the Gazan business community that otherwise might be a moderating force.

Short Notes

The Sift has a new look online. That’s partly because I decided to redesign, and partly because changes in Google Docs broke the way I used to do things. Comments are welcome both on the overall look and on things that don’t work they way you expect them to.

More and more people — the NYT, for example — are starting to notice that judicial activism is a conservative vice, not a liberal one.

It’s dangerous to heckle a comic.

Bonddad gives a primer on the lagging employment picture. And here’s another link to that NYT article about long-term unemployment.

Sharon Angle is working hard to blow what should be an easy job: beating Harry Reid in Nevada in an anti-incumbent year. Salon lists her latest blunders.

This one’s my favorite: After winning the Republican primary, she scrubbed her web site of a lot of the wacky right-wing positions that would hurt her in the general election. OK, everybody does stuff like that to a certain extent. But Harry Reid had saved the old Angle web-site material, and when he reposted it, Angle threatened to sue. How dare Reid make Angle’s previous positions available to the voters in her own words!

You know who’s most likely to walk away from a bad mortgage? Rich people.

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  • Ruth Bruns  On July 12, 2010 at 7:57 pm

    Re-design is fine, but this needs some work. It's hard to read, mostly because of the white background and thin, almost-broken-appearing font.
    In any case, I'd recommend a heavier font at least, and a background with some color if possible.
    The setup you had before was lovely, no conscious thought required to read it with ease and comfort.


  • […] A year and a half ago I told you about a Kennedy School study documenting that the claim “waterboarding is torture” abruptly moved from the Sphere of Consensus to the Sphere of Controversy in 2004. In 2003, a reporter could have blithely written “Waterboarding is torture.” But a 2004 reporter could only say “Critics claim waterboarding is torture.” […]

  • By Evolving Traditions « The Weekly Sift on February 9, 2012 at 1:25 pm

    […] I explained last month after the Defense of Marriage Act was declared unconstitutional, just about all same-sex-marriage […]

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