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.

December 15, 2014 – 10:30 am Categories: Articles | Comments (14)

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The Monday Morning Teaser

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

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

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

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

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

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

December 15, 2014 – 8:38 am Categories: Morning tease | Comments (3)

Insufficient Evidence

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

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

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

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

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

This week everybody was still talking about police killing black people

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

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

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

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

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

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

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

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

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

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

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

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

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

and jobs

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

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

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

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

and Hillary

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

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

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

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

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

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

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

and religious freedom

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

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

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

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

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

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

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

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

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

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

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

and you also might be interested in …

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

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

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

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

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

like a toddler in a snow suit discovering ice.

December 8, 2014 – 11:28 am Categories: Weekly summaries | Post a comment

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.

December 8, 2014 – 10:23 am Categories: Articles | Comments (27)

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The Monday Morning Teaser

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

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

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

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

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

December 8, 2014 – 7:00 am Categories: Morning tease | Post a comment

Odd Processes

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

— Supreme Court Justice Anton Scalia

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

This week everybody was talking about Ferguson

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

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

and oil

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

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

and new smog regulations

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

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

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

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

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

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

As for the media coverage, Roberts comments:

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

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

and you also might be interested in …

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

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

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

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

and let’s close with a new Christmas song

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

December 1, 2014 – 11:38 am Categories: Weekly summaries | Comments (1)

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 case—and, 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.

December 1, 2014 – 10:12 am Categories: Articles | Comments (7)

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The Monday Morning Teaser

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

December 1, 2014 – 8:39 am Categories: Morning tease | Comments (3)

Strangers

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

— Leviticus 19:34

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

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

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

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

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

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

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

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

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

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

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

and Bill Cosby

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

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

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

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

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

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

and snow

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

The photos are ridiculous, like this one:

Don’t go out there.

and you also might be interested in …

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

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

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

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

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

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

and let’s close with something cute

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

November 24, 2014 – 9:29 am Categories: Weekly summaries | Comments (1)

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.

November 24, 2014 – 8:25 am Categories: Articles | Comments (12)

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