Tag Archives: Obama

Farewell, Mr. President

This week he said good-bye to us. It’s time to reflect on what it means to say good-bye to him.

For about a year now, President Obama has been doing “lasts”: last State of the Union, last Democratic Convention as president, last press conference, and so on. It all leads up to Friday, when he will pass the presidency on to someone I don’t trust and feel is simply not up to the job.

Tuesday, he gave his Farewell Address, a presidential tradition that goes back to George Washington [1] and includes such memorable moments as Dwight Eisenhower warning us against “the military-industrial complex”.

The speech. In Obama’s farewell, he focused on the challenges that American democracy faces:

  • lack of economic opportunity for all
  • continuing conflict over race
  • retreat into bubbles of like-minded people
  • weakening democratic values by giving in to fear of each other
  • erosion of democratic institutions.

He presented these not just as political problems to be address by leaders and solved with new laws, but as cultural problems all citizens need to be aware of and work on. In a lot of ways it was typical Obama: He gives inspiring and engaging speeches, but he always assigns homework. He never loses sight of the truth that government can’t really be of the People, by the People, and for the People unless the People are willing to work on it.

Looking back personally. For me, any reflection on the Obama administration has to start with the personal: Over the last eight years I’ve developed a real affection for Barack Obama and his family. During campaigns, pundits sometimes ask whether voters would like to have a beer with a candidate. I’ll put a somewhat different spin on that idea: Of all the First Families of my lifetime, I’d most like to eat dinner with the Obamas.

For eight years, they have endured an unprecedented level of hatred and vindictiveness, some of it due to the increasing partisanship in America, and some due to racism. [2] Through it all, they have maintained a level of dignity and decorum that the entire country ought to take pride in, even if half of it doesn’t. I have memories of all Obama’s predecessors back to LBJ, and each, Republican and Democrat alike, have at one time or another left me embarrassed or ashamed to think of him as my president. I never felt that way about Obama.

Conversely, I always felt respected by him. From his campaign rallies in 2008 to the farewell address Tuesday, he always talked to us as if we were adults. He wasn’t above using a slogan like “yes we can” or “hope and change”, but there was always something behind it. He never turned America’s enemies into cartoon villains, or proposed cartoon solutions for dealing with them. (And yet, he dealt with them.)

When historians look back at the Obama administration, I think they will rate it as the cleanest of modern times. There was no Watergate, no Iran-Contra, no Monica Lewinsky. Republicans kept trying to label things as “Obama’s Katrina” because none of them stuck. Every time they ginned up a new faux outrage, they had to relate it to something from a previous administration, because Obama had left them nothing. That is not just a testiment to his managerial ability and his good judgment in choosing subordinates, but to the example of the man at the top.

What he accomplished. In the farewell address, President Obama summed up his accomplishments like this:

If I had told you eight years ago that America would reverse a great recession, reboot our auto industry, and unleash the longest stretch of job creation in our history; if I had told you that we would open up a new chapter with the Cuban people, shut down Iran’s nuclear weapons program without firing a shot, take out the mastermind of 9/11; if I had told you that we would win marriage equality, and secure the right to health insurance for another 20 million of our fellow citizens — if I had told you all that, you might have said our sights were set a little too high. But that’s what we did.

Republicans by and large refuse to talk about the Bush-Cheney administration, so the eight years before Obama sometimes seem like one big memory hole. But it’s worth remembering that he entered office in the middle of a historic crisis. The economy was hemorrhaging jobs, the banking system was insolvent, and the auto industry was bankrupt. There were questions about whether states would be able to pay their bills.

We were also in the middle of two bloody and expensive wars with no end in sight. So let’s start there: During George W. Bush’s two terms, 5984 American soldiers died in Iraq or Afghanistan. In Obama’s two terms, 921.

Obama turns over to Trump a far better economy than the one he inherited. The Dow was just under 8,000 when Obama was inaugurated. It’s now just under 20,000. Unemployment was at 7.8% and rising fast when Obama took office. It would peak at 10% by October. It’s now at 4.7%. [3]

When Obama took office, federal fiscal year 2009 was already in progress, having started on October 1, 2008. Politifact reports:

On Jan. 7, 2009, two weeks before Obama took office, the Congressional Budget Office reported that the deficit for fiscal year 2009 was projected to be $1.2 trillion.

The FY 2009 deficit eventually came in at $1.4 trillion, with the extra $200 billion attributed mostly to Obama’s stimulus plan. Since then the deficits have come down considerably; the FY 2017 deficit Trump inherits is estimated at just over $500 billion.

ObamaCare, for all the abuse it takes, has succeeded in its major goals: The percentage of the population that is uninsured is the lowest in history. Unless and until it gets repealed, all of us are secure against becoming uninsurable because we get sick. [4]

The Iran deal, assuming Trump doesn’t screw it up somehow, was a great piece of diplomacy. As I described elsewhere, we got the concessions we wanted and gave the Iranians nothing but their own frozen assets. Compare this to the Bush administration’s handling of North Korea: The bluster sounded impressive, but in the end North Korea got nuclear weapons and Bush did nothing about it. He would either have done the same thing with Iran or started a third war bigger than his other two.

The opening to Cuba was long overdue. We’ve kept the embargo in place for half a century mostly because no president was willing to admit it had failed.

Marriage equality did happen on Obama’s watch, but I don’t think he deserves much credit for it. When he changed his mind on the subject, he was following the country rather than leading it. That’s better than holding the country back, but it’s nothing to brag about.

Where he failed: war powers. My substantive disappointment in Obama is best symbolized by the prison at Guantanamo: He signed an order to close it on the second day of his presidency, and it is still open. Guantanamo was the Bush administration’s attempt to find a “law-free zone“, where the treatment of prisoners couldn’t be judged either by U.S. courts or those of some host nation. It was part of a larger vision in which the War on Terror would be unconstrained by the Geneva Conventions, the Convention Against Torture, or any national sovereignty that would prevent us from killing whoever we want wherever we want.

That vision is still functioning, limited in some ways, but in others more secure than ever. Obama hinted as much in the farewell address:

For the past eight years, I’ve worked to put the fight against terrorism on a firmer legal footing.

He limited torture by executive order, which Trump will be free to reverse next week if he’s so inclined. Drone strikes continue in countries where we are not at war and do not have the prior approval of the local government. There is a more rigorous process — also established by and reversible by executive order — to prevent the most egregious abuses of these extraordinary powers. But if President Obama could order the death of an American citizen like Anwar al-Awlaki, a more malevolent future president could kill any of us.

As in so many areas of disappointment, his inability to get Congress to go along with him played a huge role (especially with Guantanamo).

Where he failed: economic justice. The ongoing economic collapse Obama inherited from President Bush created both dangers and opportunities. The banking system was insolvent and government action was necessary to prevent the kind of cascading bankruptcies that characterized the Great Depression. Sweden took advantage of a similar crisis in the 1990s to get control of its banks and re-organize them. Obama missed that opportunity, preferring to leave the existing bank managements in place and simply provide government cash and guarantees. His Justice Department also failed to prosecute bankers, even though it seems clear that a great deal of fraud was involved in the housing bubble.

As a result, bankers got bailed out and homeowners didn’t. The too-big-to-fail banks are still too big to fail, and the whole disaster could happen again.

In an effort to gain Republican support that never came, his stimulus proposal was too small and about 1/3 of it came as tax cuts. So American infrastructure continued to decay, even as large numbers of workers were unemployed and interest rates were near zero.

The bottom line was that when recovery came, its benefits were focused on the wealthy. Inequality continued to grow. Only in the last year or two have wages for the middle class begun to increase.

Where he failed: climate change. There is still no price on carbon, which is the most obvious and most necessary step to battle climate change. He was not able to get any substantive climate-change bill or treaty through Congress, so such advances as he made through the executive branch are vulnerable to the next administration.

The mirages of transformation. Whether you love Obama or hate him, probably you feel a certain amount of disappointment about his administration and his era. Looking back, I blame our unrealistic expectations more than failures on his part.

Obama’s 2008 landslide (and the large Congressional majorities that came with it) created a hope among liberals that he could be not just a good president — which I think he was — but a transformational one on the scale of FDR or Lincoln. The lesson of the Bush economic collapse was that conservative economics does not work: If you lower taxes on the rich, they won’t hire more workers; if you de-regulate banks and businesses, they’ll rob you. Surely now all of America recognized that great liberal truth, and was willing to follow the new president into a fundamentally new vision of how American society and economy should work.

In retrospect, Obama was slow to catch on to the scorched-earth nature of Republican resistance, and tried too hard and too long to find common ground with people who were content to reject their own ideas as soon as Obama adopted them. (John McCain, for example, opposed what was essentially the McCain-Liebermann proposal on climate change, as well as his previous ideas about immigration reform.) He never moved quickly enough because he always thought he had more time than he actually did. His filibuster-proof majority in the Senate, for example, lasted not two years, but only about half a year: from Al Franken’s delayed swearing-in in July, 2009 to Scott Brown’s upset victory in January, 2010.

But I think the idea that 2008 represented a chance to reshape the longterm political landscape of America was always a mirage. The speed with which the Republicans rebranded themselves and pulled their party back together, the quick and unified resistance to such changes as Obama managed to make, the willingness of white Americans to believe any bad thing propagandists could dream up about their black president … it all belies the vision of a transformational moment. It’s very human to fantasize about change and then resist such change as actually appears. We do that every day in our personal lives, and we did it as a country in the Obama era. (I think Trump is discovering a similar truth about now.)

Another mirage projected onto Obama, this one more often by conservatives, was that his presidency would mark the beginning of a “post-racial America”. Now that a black man had been elected president, we could all admit that racism was over and move on. Blacks and other non-white Americans would be satisfied now and stop making demands for any more substantive equality.

On the Right, it’s now widely accepted that Obama was a “divisive” president who made race relations worse: witness Ferguson and Baltimore. Rather than settle down and accept their unequal place in the world, blacks seem more riled up than ever by movements like Black Lives Matter, and Obama encourages them rather than urging them to get back in line.

But racism has never been over in America, or even close to over. Obama’s presidency brought to the surface racial currents that had remained hidden and deniable. He was “divisive” in the same way that Martin Luther King was: He raised black hopes for justice, and became a target for white racial anxiety. [5] The racial divide in America is more visible now than it was in 2008, and that’s probably a good thing, because we can’t solve problems we refuse to see.

Summing up. I’ve had things to complain about these last eight years, but I’ve never missed George W. Bush, or pined for the lost opportunities of a McCain or Romney administration. And as for next administration, the cartoon below rings far too true. For the next four years, I suspect I will miss Barack Obama every day.

[1] The writing of Washington’s farewell address is commemorated in the song “One Last Time” from Hamilton.

[2] Elsewhere, I’ve discussed the implicit racism embedded in attacks on the Obamas. For now, let me just say that I don’t believe it would ever have occurred to Joe Wilson to interrupt a white president’s State of the Union address by yelling, “You lie!” One simply didn’t do stuff like that during previous administrations, and probably no one will once again, now that the White House is back in white hands. I predict that Donald Trump’s addresses will be full of lies, as all his speeches are, but no congressman will yell at him.

[3] If you don’t like the way the unemployment rate is defined, we can compare a broader number, which the Bureau of Labor Statistics calls U6: In addition to the people the more widely publicized unemployment rate (U3) counts, it includes those who want jobs but are too discouraged to actively look for them, and those part-time workers who wish they could find full-time work. That rate was 14.2% in January, 2009 and peaked at 17.1%. It’s now at 9.2%.

[4] This is real to me because my wife is a two-time cancer survivor. If you look around at the people close to you, I predict you won’t have to look far to find somebody with a pre-existing condition no profit-minded insurance company would touch.

[5] Another comparison is the antebellum South. Slaveholders had convinced themselves that their slaves were happy — “You’re happy, boy, aren’t you? Don’t I treat you good?” — and believed that the only problem was those meddling abolitionists.

Boehner’s Lawsuit and Palin’s “25 Impeachable Offenses”

I could almost feel sorry for John Boehner, if he hadn’t played such a big role in creating his own problems. As Speaker of the House, he is simultaneously

  • one of the most powerful figures in the United States government, answerable to History and to Peter Parker’s uncle: “With great power comes great responsibility.”
  • leader of a majority caucus that wants the United States to become ungovernable, believing that the American people will blame the ensuing chaos on a president the caucus hates.
  • responsible for keeping that caucus in the majority, while knowing that they are delusional and the American people will blame them if they cause disasters too obviously.

To succeed, he needs his caucus to stay in the majority, continue as leader of that caucus, and not sink the country. It’s an impossible job, and it can’t end well for him. But for some reason he loves it and wants to hang on to it. So he is constantly running out in front of the mob so that he can claim to be leading it, hoping that he can divert it from its most destructive (and self-destructive) goals.

That’s why he has to pretend to believe in hare-brained schemes like the government shutdown, so that he’ll be in a position raise the debt ceiling at the last minute and avoid an international economic disaster. He has to tolerate obstruction of government programs the country wants — the Highway Trust Fund is about to run out of money, a threat that combines job destruction with potholes and unsafe bridges; tens of thousands of refugee kids are piling up at the border unprocessed, the Senate worked out a bipartisan immigration compromise Boehner can’t even bring to a vote; and couldn’t the minimum wage go up just a little? — so that he can maybe save a few of them eventually.

The lawsuit. And now he has to sue the President, because otherwise the lunatics he leads will start an impeachment process that will probably be even less popular and less grounded in reality than their last presidential impeachment. They’ll do it right before an election, focusing the public’s attention on what a bad idea it was to give the Republican Party any role in governing the country.

He has to sue the President, even though Obama is begging him to do it. Obama is going all over the country, cracking jokes at Boehner’s expense. He just went to Texas, and said:

You hear some of them … “Sue him! Impeach him!” Really? Really? For what? You’re going to sue me for doing my job?”

Obama loved it. The crowd loved it. It looked great on TV. Every presidential action the House Republicans want to sue or impeach Obama for points to an issue where the real problem is inaction by the Republican House. And Obama’s not up for re-election; they are. No wonder he loves to talk about it.

Now, I don’t know which things they find most offensive — me helping to create jobs, or me raising wages, or me easing the student loan burdens, or me making sure women can find out whether they’re getting paid the same as men for doing the same job. I don’t know which of these actions really bug them.

But Boehner has to do it, because this is where the rhetoric that bounces around in the right-wing echo chamber leads. For five years, Republicans have been telling their base that Obama is “lawless” and his rule is “tyranny“. He “ignores the Constitution” and “makes up his own laws“.

The importance of vagueness. Like most extreme rhetoric, this talk works best when it’s vague, a lesson Republicans keep learning (and forgetting) when it comes to spending: Railing about “government waste” and promising to cut “trillions” from the budget are great applause lines. But when you have to make those cuts specific, hungry people don’t eat, old people pay more for medical care, construction workers lose their jobs, contaminated food gets past the inspectors … and it all becomes a lot less popular. That’s because the notion that we spend trillions building bridges to nowhere, feeding able-bodied people who could easily get jobs, and dishing out foreign aid to countries that hate us is a delusion. If you take big whacks at the federal budget, you’re going to end up making life considerably harder for people a lot like yourself.

But Boehner can’t stay vague forever. When Republican leaders encourage delusional rhetoric about the horrible things Obama and his government have done, eventually the people who believe them are going to ask what they’re doing about it. And the true answer, “I’m raising a bunch of money from suckers like you” is not going to cut it. Sadly, though, actually doing something will force Obama’s critics to be embarrassingly specific. They can’t just sue or impeach Obama for “Benghazi” or “making a mockery of the Constitution”; they’ll have to point to actual events that break actual laws. And then there will be a public hearing where they’ll be expected to offer evidence that these events happened somewhere other than in their fevered imaginations.

What’s worse, everybody will be watching, not just the Republican base. It has all the makings of an embarrassing disaster.

Boehner, naturally, wants to put that off as long as possible. That’s why he floated the lawsuit idea and let it hang in the air for two weeks before saying what it would be about. It’s like walking into a lawyer’s office and announcing, “I’m going to sue that guy!” and when the lawyer asks “For what?” you answer “Give me two weeks and I’ll think of something.”

Eventually he had to announce something, so Thursday he did (though there’s still no text of the proposed complaint). The draft resolution authorizing the suit says

[T]he Speaker may initiate or intervene in one or more civil actions on behalf of the House of Representatives … with respect to implementation of (including a failure to implement) any provision of the Patient Protection and Affordable Care Act

That’s still pretty vague, but in a statement Boehner fleshed it out a little:

In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it.

So that’s the President’s foremost tyrannical act: He delayed implementation of the employer mandate, one of the provisions of the ACA Republicans hate most. The New Republic‘s Brian Beutler described Boehner’s announcement as “a faceplant”:

Today’s story is that the GOP has spent weeks and weeks accusing Obama of unbridled lawlessness, when they didn’t really have the goods.

MaddowBlog‘s Steve Benen goes into more detail: Almost certainly, a federal judge will rule that the House doesn’t have standing to sue. (They’re not the ones being hurt, if anybody is. And if they’re serious, they have the impeachment power and don’t need the courts.) If the merits of the suit are heard and Boehner would happen to win, “the result might very well be the implementation of a policy Republicans don’t like”, unless the case lasted long enough that it had been implemented by then anyway. And implementation would be good for House Republicans because …

Remember, for GOP lawmakers, effective public policy wasn’t part of the equation. The GOP’s priority was failure – they wanted the system not to work. If the employer mandate would have made life difficult for the private sector, then Republicans desperately wanted it to happen so that it would hurt the economy, anger the public, and make the ACA more unpopular, causing a political nightmare for the president.

It’s part of that break-the-country-so-the-president-gets-blamed strategy, which worked so well during the government shutdown. And it makes such a good talking point: I’m suing to force the President to do something I think is bad for the country, because the way that he did what I think is good for the country was tyrannical. Voters love inside-the-Beltway process arguments like that.

Impeachment. But at least Boehner is heading off talk about impeachment. Or is he? Tuesday, Sarah Palin went to the heart of the echo chamber, Breitbart.com, and wrote “It’s time to impeach President Obama“. Impeach him because “Opening our borders to a flood of illegal immigrants is deliberate.” (Picture turning that conspiracy theory into an Article of Impeachment and offering evidence to support it on national TV.) But that’s not all Palin has:

President Obama’s rewarding of lawlessness, including his own, is the foundational problem here. It’s not going to get better, and in fact irreparable harm can be done in this lame-duck term as he continues to make up his own laws as he goes along, and, mark my words, will next meddle in the U.S. Court System with appointments that will forever change the basic interpretation of our Constitution’s role in protecting our rights.

Unless impeached immediately, Obama will “meddle in the U. S. Court System” by doing his job under Article II, Section 2 of the Constitution to “appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for”. No wonder she concludes:

The many impeachable offenses of Barack Obama can no longer be ignored. If after all this he’s not impeachable, then no one is.

Thursday, she elaborated on Sean Hannity’s show and wrote a second column for Fox.

A little less talk, a lot more action. When we see even GOP lawmakers who are recognizing and proclaiming Obama’s violation of the Constitution and then ignoring that Constitution and the power they have to impeach — it gets kind of frustrating for the American people.

Or at least for the segment of the American people who aren’t in on the scam and take yakkers like Palin seriously. But let’s talk more about impeachable offenses:

He has allowed his subordinates and he himself to fraud the American people on these programs, these policies, that he has promised will work or not impact debt or deficit. These have been lies by our president. Yes, those are impeachable offenses.

Remember, the Constitution defines impeachable offenses as “treason, bribery, or other high crimes and misdemeanors”, not “being too optimistic about your proposals”. But don’t worry, Palin has consulted “experts”.

Experts, attorneys, they have a list of at least 25 impeachable offenses.

Now we’re getting somewhere. Surely, every web site that mentions Palin’s call for impeachment (especially her own web site or her Fox or Breitbart columns) will link to that list so we can examine it. Because nobody would just throw a number out there to make herself sound smart, or to create the vague idea that there are specifics somewhere, even though I don’t have time to go into them right now. Otherwise, the 25 impeachable offenses would be like Senator Joe McCarthy’s famous list of Communists in the State Department, which started out at 205 and at various other times was 57 or 81 or ten names long. As history.com reports: “In fact, McCarthy never produced any solid evidence that there was even one communist in the State Department.”

25 “impeachable” offenses. It wasn’t on SarahPAC.com or Foxsnews.com or any other obvious place, but eventually I found the list. It seems to come from a report by the Committee for Justice, which in turn relies on a memo written by nine Republican state attorneys general in 2010. The CFJ was originally an astroturf organization created to support President Bush’s most conservative judicial nominees, though apparently it has found new justifications for its existence over the last five years.

I can see why nobody links to the list: It’s rhetoric, not law, and many of its points depend on “facts” that only exist in the conservative echo chamber.* Like #1:

Obama Administration uses IRS to target conservative, Christian and pro-Israel organizations, donors, and citizens.

Darrell Issa has been investigating this to death for more than a year and so far has come up with exactly nothing: no conservative groups were harmed, no IRS political motives have been found, and no communication channel with the White House has been identified. #5 is about Obama’s

21 separate Executive Orders that attack and undermine your Second Amendment right to keep and bear arms.

You can contemplate these nefarious orders in all their bureaucratic horror here. In #7:

Obama forced ObamaCare on an unwilling public through bribery and lying about its cost.

and also by passing it through the independently elected Congress, which did its own cost estimates. And apparently no one has ever before added a special provision to a bill to get a key senator’s vote. (The allegedly suspect provision didn’t survive into the final bill.)

#8 goes all the way back to Operation Fast & Furious.

Investigators suspect that Fast & Furious was an effort by the Obama Administration to discredit lawful gun ownership in America by purposefully creating gun crimes, thus inducing public outcry for gun control.

“Investigators” like Rush Limbaugh and the NRA, but nobody remotely knowledgeable or reputable. And notice, they don’t even claim to have evidence, they just “suspect”. Congress should impeach Obama because the NRA suspects he did something wrong.

It goes on like that. These are the “expert” specifics behind Palin’s vague impeachment rhetoric. No wonder the Republican chair of the Judiciary Committee said this Sunday:

The Constitution is very clear as to what constitutes grounds for impeachment of the president of the United States. He has not committed the kind of criminal acts that call for that.

Other lists of offenses. South Dakota’s GOP convention passed an impeachment resolution that listed other things, like Obama trading Guantanamo detainees to get Sergeant Bergdahl back from the Taliban or allowing the EPA regulating carbon emissions as the Supreme Court has ruled that the Clean Air Act instructs it to do.

Ted Cruz has put out his own list. He doesn’t mention impeachment, but simply points to “abuses of power”. Cruz’ list has more than 40 entries of similar quality to other lists. For example, President Obama has

Extended federal marriage benefits by recognizing, under federal law, same-sex marriages created in a state that allows same-sex marriage even if the couple is living in a state that doesn’t recognize same-sex marriage.

In other words, Obama is obeying the Constitution’s requirement to give full faith and credit to the”public acts, records, and judicial proceedings” of the states, even ones that allow same-sex marriage. He

Ordered Boeing to fire 1,000 employees in South Carolina and shut down a new factory because it was non-union.

Actually the NLRB did that — because Boeing was breaking the labor laws the NLRB is supposed to enforce — as Cruz’ own reference says. Obama appoints members to the Board, but doesn’t control it.

There’s a lot of stuff like that. It will stir your blood if you’re a Fox-News-watching conservative. But the two-thirds of the country that doesn’t identify as conservative is going to wonder what the fuss is about and why Congress is doing this rather than raising the minimum wage or creating jobs or passing immigration reform or doing something about those refugee kids on our doorstep.

President Obama would love to see those baseless impeachment hearings happen before the fall election. John Boehner would hate it.

* I sympathize with one point: #21, the “kill list” of American citizens who can be targeted by drones or military raids. It actually exists and violates those citizens’ due process rights. But impeachment is a premature remedy, because Congress has done absolutely nothing to protest — and it probably can’t, given that the kill list is one of those War on Terror programs many Republicans like. Impeachment shouldn’t be Congress’ first option; first they could try a joint resolution denouncing the kill list, or a law specifically making it illegal. If they can’t pass that much, they’ve got no business proceeding to impeachment.



What Should “Racism” Mean?

There’s a type of faux scandal that’s been happening … well, I haven’t exactly kept track, but it seems like there’s a new one every month or two. They all fit this pattern: President Obama does something that symbolically asserts his status as president, and the right-wing press gets outraged by how he’s “disrespecting” something-or-other related to the presidency.

So, for example, in January, 2010 this photo caused FoxNation.com to ask whether Obama was “disrespecting the Oval Office” by putting his feet up on the antique desk.

Of course, it didn’t take long to uncover similar photos of previous presidents, none of which had raised any particular outrage at the time. But everybody forgot again, and so we had an almost identical flap last September. “This just makes me furious,” one woman tweeted. “He was raised so badly.”

Or remember last May when marines held umbrellas over President Obama and visiting Turkish Prime Minister Recep Erdogan. Horrors! He’s treating our revered warriors like servants! How dare he! It was front-page news.

Once again, it wasn’t too hard to find similar photos of previous presidents, which weren’t front-page news — or any kind of outrage at all.
Other such “scandals” involve the First Lady: Did you know that Michelle had the audacity to wear an expensive gown to a recent state dinner, like first ladies have been doing, well, forever? Compare to this 2005 WaPo column in which Laura Bush is said to look “regal” — and that’s a compliment. Until 2009, the First Lady was supposed to look regal. Remember Jackie Kennedy? But when Michelle dresses up, she’s Marie Antoinette.

The Obama’s vacations are another issue, and how much taxpayers spend to protect them outside the White House. But of course when the Bush twins celebrated their 25th birthdays in Buenos Aires, nobody cared what it cost the Secret Service to keep them safe in an exotic locale. They were the president’s daughters, so of course we protected them.

The entire White House lifestyle is an issue: The Obamas are “living large” claimed National Review (and mentioned Marie Antoinette again). The Washington Post fact-checker investigated and concluded: “there appears to be no appreciable difference between Obama’s expenses and Bush’s.” If you read the NR article carefully — and most of the other articles raising this faux issue — you’ll realize they never said there was. It’s just that the Bushes living large never bothered anybody.

Town Hall criticized the extravagance of having Beyonce perform at the Obama White House. But when Frank Sinatra performed for the Reagans, nobody looked at it that way. Why would they?

Even the Obamas’ Christmas cards became an issue. This one, from 2011, disrespects the Christian holiday because it is secular and features the president’s dog:

But this one, from the Bushes in 2005, is fine.

I could go on and on. Whenever President Obama acts like the President of the United States, or the Obamas act like the First Family, it just looks wrong to a lot of people.

So here’s the $64,000 question: Is that racist?

It depends on what you think racist means. Conservatives will not only answer the question “No”, they’ll be insulted that you even raised it (and will probably launch into their canned everybody-who-disagrees-with-Obama-is-a-racist-to-you-people riff). That’s because conservatives have adopted a very restricted definition of racism: Racism is conscious hatred towards people of another race.

So, those white folks who didn’t even notice when Reagan’s or JFK’s feet were on the desk, but who see Obama’s and think “He was raised so badly.” — are they also secretly thinking “Who does that uppity nigger think he is, acting like he’s a real president or something?” Maybe a few here or there, but mostly no. They aren’t consciously hating Obama because he’s black. But they can’t look at a black president the same way they looked at the 43 white presidents. Things just look different when Obama does them.

What do you call that?

I’m asking that question seriously, not rhetorically. I sympathize with people who want to reserve racism for Adolf Hitler ordering the Final Solution to the Jewish problem or George Wallace standing in the door to block black students from enrolling at the University of Alabama. The men who lynched Emmett Till or the grand jury that refused to indict them — those people were racists. I get that it doesn’t seem right to put them in the same category with the people who only just realized in 2009 that life in the White House is pretty sweet.

But all the same, lots of whites look at Obama and can’t think “president” without thinking “black president” — and they go on to judge his actions more harshly than those of white presidents. They go on to treat him with less respect than white presidents have always received — like interrupting the State of the Union to yell “You lie!” or questioning his birth certificate when there was never any reason to do so. (This satire, which applies the same standards to Ronald Reagan’s birth certificate, is hilarious precisely because it would never have been taken seriously.)

Congressmen saying it would be “a dream come true” to impeach the President (while admitting they have no evidence of an impeachable offense), or listening patiently while constituents publicly say the President “should be executed as an enemy combatant” — that would have been unthinkable during the 43 white administrations. But today it’s considered acceptable behavior.

If you don’t want to call it racism, fine. But it’s a real phenomenon; it needs a name. What do you call it?

I’ve narrowed my focus to President Obama, but really the phenomenon is much broader. For example, read Tim Wise’s “What if the Tea Party Were Black?” or just about anything about Trayvon Martin. If Michael Dunn had been a black man shooting up a car full of white boys, I doubt jurors would have bought his I-thought-I-saw-a-gun argument.

For a lot of whites who don’t harbor any conscious racial malice, things just look different when blacks do them. What do you call that?

Teasing out the different stances that might be called “racism” is at least half the value of Ian Haney Lopez’ recent book Dog Whistle Politics. Lopez notes that racism changes from one era to the next, and somebody changes it. “Racism is not disappearing,” he says, “it’s adapting.”

Lopez uses the word “racism” for most of the possible meanings, and differentiates with adjectives. Here are some of the ones he finds:

  • racism-as-hate. The most restrictive definition, and the most comforting for whites. “For the public at large, racism-as-hate provides self-protecting clarity: if racists are like those in the 1950s who screamed at black school children and burned crosses, then most everyone can safely conclude that they, at least, are not racists. … Since conservatives on the Supreme Court adopted a malice conception of racism in 1979, when using this approach the Court has rejected every claim of discrimination against nonwhites brought before it.”
  • structural or institutional racism. This is racial injustice that seems to be the fault of nobody in particular, because it’s embedded in the way society works. Vicious cycles (like poverty leading to dysfunctional behavior which leads back to poverty) may trace back to past sins like slavery or Jim Crow, but now they are self-replicating. “Structural racism is racism without racists. All that said, precisely because institutional racism implies a need to change society, it was rejected long ago by conservatives, including those on the Supreme Court who repudiated this understanding of racism in the early 1970s.”
  • implicit bias. This is the it-just-looks-different response I have been describing, or the kind that shows up in Implicit Association Test you can take online.
  • commonsense racism. “The social world through which we move reflects centuries of racism that extends right up to the present. But this is hard to grasp in its particulars. Instead, we see clearly only the results, and with the underlying causes hidden, we tend to accept the extant world as a testament to the implacable truth of racial stereotypes.” The commonsense racists “are not hate-filled bigots but decent folks who see racial injustice as a normal feature of society. … For many, it simply seems ‘true,’ an unquestioned matter of commonsense, that blacks prefer welfare to work, that undocumented immigrants breed crime, and that Islam spawns violence.”
  • strategic racism. New appeals to racial prejudice and new rationalizations for racial injustice don’t create themselves. When the old racial manipulations stop working, somebody figures out new ones. “Strategic racism refers to purposeful efforts to use racial animus as leverage to gain material wealth, political power, or heightened social standing. … [B]ecause strategic racism is strategic, it is not fundamentally about race. … [S]trategic racists act out of avarice rather than animus.”

Lopez retells a lot of American history to illustrate how when one avenue for racial injustice was blocked, another was usually found in short order. (His discussion of how in the Reconstruction Era convict leasing developed into a new form of forced black labor to replace slavery, and continued in that form well into the 20th century, was new and eye-opening to me.) He sees this not as blind evolution, but as clever people working out the new arrangements and constructing ways to rationalize them to the masses.

Lopez also describes the usual course of racial conversation these days: If you introduce any of the above ideas into a conversation, conservatives will interpret it as an explicit or veiled accusation of racism-as-hate; you are saying they are like the white supremacists who yelled obscenities at the black little girls trying to integrate public schools. They will experience this as an injustice, and then see themselves as the victims rather than the people whose suffering you were trying to point out.

Strategic racists have turned this into

the rhetorical punch, parry, and kick of dog whistle racial jujitsu. Here are the basic moves: (1) punch racism into the conversation through references to culture, behavior, and class; (2) parry claims of race-baiting by insisting that absent a direct reference to biology or the use of a racial epithet, there can be no racism; (3) kick up the racial attack by calling any critics the real racists for mentioning race and thereby “playing the race card.”

“Most racists,” Lopez recognizes, like the South African whites Lopez met during the apartheid era “are good people. This is not a book about bad people. It is about all of us.” Most whites — even the most conservative whites — are not haters. But so many on the Right have been trained in the recast-yourself-as-the-victim reflex that it has become hard to have any kind of discussion at all about the more subtle and pervasive forms of racism. And until we get to the bottom of that, our democracy will always be vulnerable to the manipulations of the strategic racists.

Subtext in the State of the Union (and its responses)

You can learn a lot about how our leaders (in both parties) view us by observing how they try to manipulate us.

Once upon a time, state of the union addresses contained major policy initiatives, like when President Johnson announced the War on Poverty in 1964. But nobody does that any more, especially not in a gridlocked era where nothing is going to get through Congress anyway. 21st-century state of the union speeches (and opposing-party responses) are about politics rather than policy. They’re about moving public opinion, not moving the country.

So you might ask, “Why watch?” And there’s an answer: You can learn a lot about how our leaders (in both parties) view us by observing how they try to manipulate us. When they try to scare us, they reveal what they think we’re afraid of. When they reassure us, they reveal what they think we’re insecure about. When they try to be likeable, they reveal what they think we like. They emphasize issues where they feel strong and avoid issues they have no answers for.

They have spent months polling and testing in front of focus groups. Each has carefully crafted the message it believes will best appeal to its part of the public. Listen hard, and you can tell what part of the public they see as their own.

President Obama. The best way to watch the SOTU is via the White House’s enhanced video. (Here’s their transcript.) You get the same video everyone else uses, plus elucidating slides.

President Obama focused on two themes: inequality (which I explore in “Occupying the State of the Union“) and the dysfunctionality of Congress. Clearly he thinks Congress’ unpopularity works to his advantage:

For several years now, this town has been consumed by a rancorous argument over the proper size of the federal government. It’s an important debate – one that dates back to our very founding. But when that debate prevents us from carrying out even the most basic functions of our democracy – when our differences shut down government or threaten the full faith and credit of the United States – then we are not doing right by the American people.

I know Ted Cruz comes from an alternate timeline in which Obama and Harry Reid shut down the government and provoked the debt-ceiling crisis, but here’s all you need to know about that: Democrats applauded the President at this point, while Republicans sat on their hands. They all knew who he was calling to account.

The two themes came together in Obama’s executive order to raise the minimum wage for federal contractors, something he can do as federal CEO without congressional action. I hadn’t realized the full political import of this until Rachel Maddow pointed it out: Obama has put every executive in the country on the spot. Are governors going to raise the minimum wage for state contractors? Mayors for city contractors? (Yes in St. Louis.) I’ll bet the sound bite (at the 33-minute mark) tested really well:

No one who works full time should ever have to raise a family in poverty.

Any time the words Obama and executive order appear in the same news story, Republicans start yelling “tyranny”, as if no previous president issued executive orders. (Sunday Paul Ryan described the Obama administration as “increasingly lawless“.)

Clearly, they have identified a set of voters ready to believe this. In reality, though, Obama has been relatively hesitant about executive orders, issuing fewer of them than other recent presidents. He also has put forward no new theories of executive power, such as President Bush’s sweeping notion of the unitary executive.

Republican response. Rep. Cathy McMorris Rodgers of Washington gave the official Republican SOTU response (text & video).

I thought Rodgers’ put forward a likeable image. (The conservative American Spectator protested that her “real message” was “PLEASE LIKE ME”.)  She expressed admirable sympathies, but presented little of substance to back up her good intentions. She talked about working to “empower people … to close the gap between where you are and where you want to be”, but the policies behind those words implement the same old Republican wealth-trickles-down-from-the-rich ideas.

A larger question was: Why her? She’s not a major player in the Republican leadership. She’s not a rising star they’re grooming for bigger things. Nothing about her record in Congress picks her out as the ideal person to speak to these particular issues. But she’s a woman and Republicans want to put a token female face on camera to counter the war-on-women meme.

As Ian Haney Lopez says in Dog Whistle Politics:

The right slams affirmative action for making distinctions on the basis of race, even as it has developed its own perverse form of affirmative action, consciously selecting nonwhite faces to front its agenda.

Rodgers is the female version of Bobby Jindal or Marco Rubio, but without the presidential speculation: Republicans can’t possibly be sexist. Look! They have a woman speaking for them.

But the war on women rages on, no matter who’s in front of the camera. The House Republican majority passed the No Taxpayer Funding for Abortion Act, whose purpose is to get private health insurance plans to drop abortion coverage. Last week I pointed to its draconian limitations on rape exceptions.

Rodgers’ talk was also noteworthy for invoking yet another bogus ObamaCare horror story. As Paul Krugman put it:

So was this the best story Ms. McMorris Rodgers could come up with? The answer, probably, is yes, since just about every tale of health reform horror the G.O.P. has tried to peddle has similarly fallen apart once the details were revealed.

Tea Party response. Mike Lee (text, video) did a good job countering the Tea Party’s image as the dangerous lunatics who almost pushed the United States into default last October. The over-arching metaphor of his talk was the journey from Boston (the Boston Tea Party in 1773) to Philadelphia (the Constitution in 1787).

Now, as in 1773, Americans have had it with our out-of-touch national government. But if all we do is protest, our Boston Tea Party moment will occupy little more than a footnote in our history. Hopefully our leaders, reformers and citizens will join the journey from Boston to Philadelphia – from protest to progress. Together we can march forward and take the road that leads to the kind of government we do want.

He mentioned several positive Tea Party proposals in Congress without detailing what they would do. But the mere possibility of “the kind of government we do want” is a significant shift in Tea Party rhetoric. I’ll be interested to see if it catches on inside the Tea Party, or if it’s just for export.

Rand Paul’s response. Rand Paul’s talk was mostly a collection of offensive stereotypes and right-wing fantasies. He used the story of black conservative columnist Star Parker to smear welfare recipients:

She was 23 when she quit her job at the L.A. Times so she could go on welfare. By collecting $465 a month, plus Food Stamps, and by getting a part-time that paid cash under the table, she could rent a nice apartment and earn far more money than working an honest 40-hour week. Later, she said, she had no trouble dropping her daughter off at a government-funded day-care center, selling some free medical vouchers to buy drugs, and hanging out at the beach all afternoon.

It’s Ronald Reagan’s Cadillac-driving welfare queen all over again, or Fox News’ lobster-loving Food Stamp surfer. Are those stories supposed to be typical of the people helped by government anti-poverty programs? Paul seems to think so. After putting a happy ending on Parker’s story — she could only get a real job and climb out of poverty after she gave up her “dependence” on government assistance — Paul says:

I want Star Parker’s story to be the rule, not the exception.

But how is that even possible unless her original situation is the rule? Unless welfare recipients in general are lying, cheating, drug-using, child-neglecting blacks who can get honest jobs whenever they want? I’m sure that’s exactly what Paul’s target audience wants to believe, but is it true? Like Reagan, Paul presents no evidence beyond the anecdote.

Another taffy-pull stretching of the truth was Paul’s claim that Obama has “spent more than a trillion dollars on make-work government jobs”. Actually, that number is somewhere close to zero. For example, a big chunk of the $800 billion stimulus was tax cuts. Some of the stimulus’ other big-ticket items sent money to the states so that revenue shortfalls wouldn’t force them to lay off teachers, and paid for repairs to roads and bridges.

So the next time you drop your kid off at public school or drive across an old bridge, remember that Rand Paul thinks teaching or keeping bridges from falling down are “make-work government jobs”.

Thuggery. The weirdest story of the night was New York Republican Rep. Michael Grimm threatening to throw a reporter “off this fucking balcony” (i.e., the Capitol balcony) for asking a question he didn’t want to answer. “I’ll break you in half,” Grimm warned.

Rudeness to the President. Well, at least this year nobody yelled “You lie!” during the speech, as Rep. Joe Wilson of South Carolina did in 2009. However, Texas Congressman Randy Webber tweeted:

On floor of house waitin on “Kommandant-In-Chef”… the Socialistic dictator who’s been feeding US a line or is it “A-Lying?”

Another Texas congressman, Steve Stockman (who is Senator Cornyn’s Tea Party challenger in the upcoming primary) walked out of the speech.

Isn’t it an amazing coincidence how Southern Republican Congressmen lost their sense of decorum and their respect for the office of the presidency at the precise moment when a black man was sworn in? Did a memo go out, or did they just know what to do by intuition?

Occupying the State of the Union

The conventional wisdom about Occupy Wall Street is that it failed. It made a splash and generated headlines, but ultimately it elected no candidates, passed no laws, and didn’t even leave behind a memorable lost-cause proposal like the Equal Rights Amendment. So it was all a big waste of the activists’ effort and our attention.

By contrast, the Tea Party did elect candidates and has influenced all kinds of laws, especially at the state level. Without the Tea Party, the government wouldn’t have shut down last October. You may not consider that much of an accomplishment, but it is proof of continuing influence. The Tea Party may eventually even displace the Republican establishment and take over half of the two-party system.

What has Occupy done to rival that?

But all along, Occupy visionaries like David Graeber were defining success differently:

For the last quarter millennium or so, revolutions have consisted above all of planetwide transformations of political common sense. … What they really do is transform basic assumptions about what politics is ultimately about. In the wake of a revolution, ideas that had been considered veritably lunatic fringe quickly become the accepted currency of debate.

The French Revolution, for example, failed to hold power, “but afterward, institutions inspired by the French Revolution … were put in place pretty much everywhere.” Suddenly, it was obvious that monarchy was obsolete. Not only did people around the globe believe that, they believed that they had always believed it.

Now consider President Obama’s 2014 State of the Union and the responses from Cathy McMorris Rodgers (for the Republican Party), Mike Lee (for the Tea Party), and Rand Paul (who seems to be a party unto himself). Maybe it’s not surprising that President Obama would talk about inequality and how difficult it is to stay in the middle class:

Today, after four years of economic growth, corporate profits and stock prices have rarely been higher, and those at the top have never done better. But average wages have  barely budged. Inequality has deepened. Upward mobility has stalled. The cold, hard fact is that even in the midst of recovery, too many Americans are working more than ever just to get by – let alone get ahead.

But here’s the interesting thing: The responders accepted that framing of the problem, they just tried to shift the blame.*

Bear in mind how conservatives used to respond whenever liberals tried to make inequality an issue: Wealth has nothing to do with poverty. Wealth is conjured out of the aether by creative capitalists, not usurped from the common inheritance or distilled from the blood and sweat of the laboring masses. So talk about poverty if you must, but don’t talk about wealth and poverty in the same paragraph, because they’re totally separate phenomena. This was still the conservative conventional wisdom two weeks ago, when David Brooks argued (in his own italics):

to frame the issue as income inequality is to lump together different issues that are not especially related.

More than just conservative dogma, some version of that argument has been the conventional wisdom of Very Serious People for decades. It has been fine for liberal politicians to talk about the plight of the poor or the struggles of the middle class, but if they combined that downward-looking and sideways-looking compassion with an upward-looking head-shake at the explosion of wealth among the few, mainstream pundits would start lobbing phrases like “class warfare” and “redistribution of wealth” — warning shots that come just before “Why don’t you go back to the Soviet Union, comrade?”.

But post-Occupy, everybody knows about the 99% and the 1%. And it’s no longer anti-American to point out that the 1% (and mostly the .01%) have owned all the productivity growth of recent decades.

Mike Lee’s Tea Party response doesn’t deny any of this, but instead tries to pin it on government and President Obama:

This inequality crisis presents itself in three principal forms: immobility among the poor, who are being trapped in poverty by big-government programs; insecurity in the middle class, where families are struggling just to get by and can’t seem to get ahead; and cronyist privilege at the top, where political and economic insiders twist the immense power of the federal government to profit at the expense of everyone else.** … [W]here does this new inequality come from? From government – every time it takes rights and opportunities away from the American people and gives them instead to politicians, bureaucrats, and special interests.

Rodgers points to the same problems, but calls them by a different names and promises that vague, unnamed Republican “plans” will solve them.

our mission – not only as Republicans, but as Americans, is to once again to ensure that we are not bound by where we come from, but empowered by what we can become. That is the gap Republicans are working to close. It’s the gap we all face: between where you are and where you want to be. The President talks a lot about income inequality. But the real gap we face today is one of opportunity inequality… And with this Administration’s policies, that gap has become far too wide. We see this gap growing every single day.

And this is where the spin becomes obvious, because the metaphor changes: The gap “between where you are and where you want to be” would seem to be in front of you, between you and the people whose examples inspire you to be more successful. Republicans are going to help you bridge that gap, so that you can be rich too.

But as Rodgers gets down to cases, it’s clear she’s talking about a chasm opening up behind middle-class voters, threatening to suck them into poverty as it has already claimed so many of their friends and family:

We see it in our neighbors who are struggling to find job, a husband who’s now working just part-time, a child who drops out of college because she can’t afford tuition, or parents who are outliving their life’s savings. Last month, more Americans stopped looking for a job than found one. Too many people are falling further and further behind because, right now, the President’s policies are making people’s lives harder. Republicans have plans to close the gap.

Even Rand Paul has to recognize the hollowing out of the middle class, though (unlike the others) he sticks to the old-time religion that the rich will save us, if only we let them keep getting richer. (It never worked before, but it will if we give it one more shot.)

Parents worry about their children growing up in a country where good jobs are few and far between. More than ever before, Americans wonder how they’ll afford to send their kids to college, and what will happen if they lose their job. … Prosperity comes when more money is left in the private marketplace. … Economic growth will come when we lower taxes for everyone, especially people who own businesses and create jobs.

Another piece of conservative dogma has been to blame the poor for failing; their laziness, crime, drug addiction, and general irresponsibility is dragging down the rest of us. And if people are falling out of the middle class — losing their jobs, getting their homes foreclosed, failing to send their kids to college — well, that’s their own damn fault. We aren’t failing them; they’re failing us.

Recall the opening shot of the Tea Party’s rebellion, Rick Santelli’s famous rant a few weeks after Obama took office. Backed by a cheering mob of traders on the Chicago Mercantile Exchange, Santelli challenged the new president:

How about this, president and administration: Why don’t you put up a web site to have people vote on the internet to see if we really want to subsidize the losers’ mortgages? Or would we like to at least buy cars and buy houses in foreclosure and give them to people that might have a chance to actually prosper down the road, and reward people that could carry the water instead of drink the water? … [Gesturing to include all the traders***] This is America! How many of you people want to pay for your neighbor’s mortgage that has an extra bathroom and can’t pay their bills? Raise their hands! [boos from the crowd]

Tuesday night no one was blaming the “losers” for falling out of the middle class, or fantasizing about picking the bones of their foreclosures. Instead, everyone sympathized with growing middle-class anxiety: how hard it is to find good jobs, how hard it is to pay for college, how insecure you feel even if you currently have a good job. Everyone acknowledged that Americans are losing faith in the old nostrums: work hard, study hard, say no to drugs, get married, buy a house, pay your bills … it just doesn’t seem like enough any more. You might do all that and still lose out, even as billionaires get ever richer.

Everyone but Rand Paul is acknowledging that some kind of gap needs to be bridged, that some people have more of this vaguely defined “opportunity” that you wish you had. Mike Lee is even denouncing “privilege at the top”, though he blames this privilege on government favors rather than the normal workings of capitalism.

It’s important to realize what we’re seeing: an early stage in the “transformation of political common sense”. People who believed and may still believe that OWS was horribly misguided and failed completely — those same people see the world differently now. The problem isn’t that a few “losers” are dragging the rest of us down. The problem is that there’s a 99% and a 1%. We’re arguing about what caused that and how to fix it, but we all see the problem now.

Thank you, Occupy.

* Ultimately they’ll lose that argument, because the facts are clearly against them. Look at the graphs: This problem didn’t start with Obama. It started in the Carter-Reagan years. If your explanation doesn’t account for that, you’re just spinning.

I explain it by Carter and the Democrats in Congress turning to the right: de-regulation, lower capital gains taxes, free trade deals, and turning a blind eye to union-busting. That all started slowly under Carter and then really took off during the Reagan administration. The long version of this story is in Thomas Edsall’s The New Politics of Inequality from 1985, but William Anderson of the conservative Mises Institute noted the same thing in 2000:

Republicans like to point to the failures of the Carter Administration and then claim that Ronald Reagan brought us into the present era. Alas, while I prefer Reagan to Carter, I cannot say that the above statement is true. Granted, much occurred during the Reagan Administration that was good, but if truth be known, many of the important initiatives that enabled those boundaries to expand came from Carter’s presidency.

I agree completely, if you reverse the value judgments and define “the present era” as the Second Gilded Age.

** Perversely, the purest examples of cronyism are due to a trend conservatives champion: privatizing public services like prisons or public schools.

*** I love the assumption that the well-compensated wheeler-dealers on the CME represent “America” and the people who “carry the water”. I think it’s arguable that American productivity would go up if the Earth swallowed the Chicago Mercantile Exchange whole. The people who really “carry the water” are the ones who grow stuff and build stuff and deliver services. The water-carrier is the single mother who cuts your hair (and who may need Food Stamps to feed her son), not the venture capitalist who conjured up millions by franchising Supercuts.

Mandela’s Memorial Was All About Us

How do you pitch a foreign funeral to a nation of Homer Simpsons?
Manufacture America-centered controversy.

Nelson Mandela’s public memorial service was held Tuesday in a vast stadium in Johannesburg. Leaders from all over the globe attended, and several of them spoke about Mandela, his significance in history, and how his life inspired people around the world.

The mood was generally upbeat, more like a New Orleans jazz funeral or an Irish wake than the somber kind of remembrance. But still you can imagine Homer Simpson pointing his remote at the TV and announcing his judgment: “BOR-ing.” A day devoted to some dead guy on the other side of the world and the stuff he did in some other century? Where’s the drama?

Khrushchev and Kennedy

So instead American news networks made the story all about us: The big news out of Johannesburg wasn’t anything about Mandela, it was President Obama shaking hands with Raul Castro.

To me, it looked like one of those awkward running-into-your-ex’s-new-boyfriend moments you might have at a wedding reception, and Obama handled it graciously. He’s shaking hands as he makes his way to the podium and suddenly there’s Castro, so Obama just keeps shaking hands like it’s no big deal.

Nice save, Mr. O.

Except — OMG!!!! — he’s shaking hands with Raul Castro! Rev up the outrage machine. It’s, like, Chamberlain shaking hands with Hitler or something!

Mao and Nixon

For the everything-Obama-does-is-an-outrage crowd, two bizarre ideas are at work: First, that Cuba’s government is something special among dictatorships, and second, that until now American presidents have maintained a hands-that-hold-whips-shall-never-hold-mine purity standard when it comes to tyrants.

The first point is best left to comedians like Jon Stewart:

[singing] Raul Castro is not Adolf Hitler. [/singing] … Raul Castro is not even Fidel. He’s like Cuba’s Jim Belusi. … And by the way, Cuba’s not the only country with a spotty record of imprisoning people in Cuba.

Second, not only is there a long history of American leaders meeting and greeting Communist dictators — Nixon and Mao, Kennedy and Khrushchev, and Nixon even gave Brezhnev a Lincoln Town Car — but we also have a long history of supporting some of the world’s most brutal dictators: Stalin was our ally in World War II, and who can forget such friends-of-America as the Shah of Iran, the Somoza dynasty in Nicaragua, General Pinochet in Chile, Saddam Hussein, or even the current regime in Turkmenistan?

So the only thing outrageous here is the outrage. When it comes to tyrants, America’s hands haven’t been clean for at least a century.

The other Obama-outrage from the funeral was this picture:

So here’s Obama and British Prime Minister Cameron taking a selfie with some red-hot blonde described by The Daily Mail as “flirty” and by the New York Post as a “Danish tart”. Fox News couldn’t stop chortling. The Post decided Obama-and-the-white-chick was a front-page scandal.

Who’s the mystery vixen? Prime Minister Helle Thorning-Schmidt of Denmark, a country where neither blondes nor powerful women are so rare as to make headlines. The selfie is of three world leaders, not Obama and some blonde.

I’m not sure what’s worse: The racist where-the-white-women-at angle or the sexist who’s-that-slut angle. What’s a girl gotta do to get some respect?

On Michelle’s apparently disapproving expression, Atlantic’s Garance Franke-Ruta offered a more mundane explanation:

[It’s] the look of a person with jetlag who flew halfway around the world overnight, spent four hours at a hotel early in the morning, and then had to go to a memorial service.”

Maybe that explains Laura Bush’s similarly sour expression when her man had a similarly animated conversation with an attractive female world leader, Jordan’s Queen Rania. (Oddly, that triangle drew virtually no international media attention.)

Salon’s Roxane Gay finds a race/gender issue in the media’s focus on and interpretation of that one image of Michelle (as opposed to others where she seems to be having a good time):

More than anything, the response to these latest images of Michelle Obama speaks volumes about the expectations placed on black women in the public eye and how a black women’s default emotional state is perceived as angry. The black woman is ever at the ready to aggressively defend her territory. She is making her disapproval known. She never gets to simply be.

Ted Cruz walked a fine line in Johannesburg. On the one hand, he wanted to appear statesmanlike on the world stage. But earlier in the week he got stung by his supporters when he tried to be gracious to Mandela on his Facebook page. So Cruz made his own Cuba moment Tuesday by walking out during Castro’s speech. Because that’s what the memorial services of great peacemakers are for: expressing your disapproval of the other mourners.

PolicyMic points out how differently the memorial might have been covered, even if you wanted an America-centric angle. The Bushes, Clintons, and Obamas all traveled together on Air Force One. Pictures suggest they got along and were even chummy. But again, where’s the drama in that? BOR-ing.

Countdown to Augustus

Losing the Republic one day at a time

About once a year, I recommend that Sift readers take a look at Colleen McCullough’s Masters of Rome series of novels. It covers the final century of the Roman Republic, from the rise of Gaius Marius to the establishment of the Empire under Caesar Augustus. I recommend the series not just because it’s a good yarn (which it is), but because it’s a cautionary tale about how republics are lost.

Your high school world history class probably gave you a highlight-reel version of the fall of the Roman Republic — crossing the Rubicon and all that — but didn’t really cover the century-long erosion of public trust that made the big rockslides inevitable.

The highlight reel may have left you with the impression that at a few key moments, individuals failed or made bad, self-serving decisions: If Cicero and Cato had carried the day, if Julius Caesar didn’t march on Rome, if Octavian had restored the power of the Senate after Actium rather than becoming Emperor… everything would have worked out. And so people who apply the Roman model to the American Republic usually end up matching personalities: Who is our Caesar, our Cicero, our Brutus? Is there a parallel between FDR’s four terms and Marius’ seven consulships? Between the assassinations of the Kennedies and of the Gracchi brothers? And so on.

That’s a fun party conversation for history geeks, but the closer (and scarier) match is in the steady erosion of political norms.

As Chris Hayes has observed on several occasions (at around the 3:30 mark here, for example), republics don’t work just by rules, the dos and don’t explicitly spelled out in their constitutions. They also need norms, things that are technically within the rules — or at least within the powers that the rules establish — but “just aren’t done” and arouse public anger when anyone gets close to doing them. But for that public anger, you can often get an advantage by skirting the norms. And when it looks like you might get away with it, the other side has a powerful motivation to cut some other corner to keep you in check.

For the last few decades, we’ve been in a Romanesque downward spiral of norm-skirting. One side does something that just isn’t done, but calibrates it to avoid a rush of public anger. And the other side responds by doing something else that isn’t (or didn’t used to be) done.

One example has been growing use of the filibuster in the Senate. Once an arcane device that showed up more often in movies than in the Capitol, the filibuster is now in such constant use that journalists now write as if the Constitution required 60 Senate votes to pass a law. The brand new use of the filibuster not just to block the passage of laws but to nullify laws already passed (by blocking appointments to the agencies that enforce those laws) led the Obama administration to push the boundaries of recess appointments, which then led the courts to push the boundaries of their norms against getting involved in political conflicts between the executive and legislative branches.

Another example is impeachment. When Democrats began an impeachment process against President Nixon  in 1974, both parties proceeded somberly and with utmost caution, because the only precedent, Andrew Johnson’s impeachment in 1868, wasn’t something to take pride in. By contrast, the impeachment and trial of President Clinton in 1998-1999 had a circus atmosphere; Republicans were giddy that one of their endless investigations had turned up something they could exaggerate into an impeachable offense. Today, Tea Party Republicans see the Constitution’s definition of an impeachable offense as a technicality. This August, Rep. Kerry Bentivolio (R-MI) told his constituents that impeaching President Obama would be a “dream come true” except for the annoying little detail that “you’ve got to have evidence” and he doesn’t have any.

That follows a pattern that a Masters of Rome reader easily recognizes: The rules give an explicit power to some office, along with the implicit duty to wield that power to achieve a particular public purpose. But as the erosion of norms proceeds, the power becomes something the officeholder owns, and can use however he likes. So Congress was given the impeachment power to save the Republic from a president who had been suborned by a foreign power or domestic special interest. But the Tea Party believes a Republican Congress just owns that power to use according to its whims; the hurdle to overcome isn’t assembling the evidence, it’s acquiring the votes.

Similarly, the president has the power to enforce the laws and the Supreme Court has the power to interpret the Constitution. More and more, those institutions are coming to own those powers rather than wield them for a public purpose. So the meaning Constitution’s commerce clause changes from one case to the next, according to the whims of the Court’s conservative majority.

An abuse by one branch legitimizes an abuse by another. Congress’ inability to even compose a new immigration law (much less debate it and bring it to a vote) allows President Obama to be the champion of the popular Dreamers by stretching his powers of prosecutorial discretion. The norms of Congress used to allow simple legislative fixes to complex programs during the implementation phase; even if you opposed a program to begin with, you supported improving it once it was already established in law. But the refusal of the Republican House to allow any changes in ObamaCare short of repeal or sabotage has legitimized Obama in pushing the limits of executive orders.

That also is something an MoR reader will recognize: About half of the erosion in Rome was done by the good guys, in order to seek justice for popular causes that the system had stymied.

And that brings us to the present showdown over funding the government and managing the debt ceiling. Until Newt Gingrich, government shutdowns were glitches: Congress thought it could get the laws passed in time, but something went wrong and the government had to shut down for a day or two until Congress could get it fixed. With Gingrich the government shutdown became a tactic, comparable to a labor strike closing a factory: Give us what we want, or we’ll shut the place down.

In 1995-96, the public recognized that the norms had been violated and reacted with appropriate anger. Gingrich had to back down, and his partner-in-crime Bob Dole was soundly thrashed by Bill Clinton in the next presidential election.

President Bush’s clashes with Democrats in Congress were bitter, but impeachment and shutdown were never serious threats. With the anti-Obama backlash and the rise of the Tea Party in 2010, government shutdown has again become just another tool in the congressional toolbox. And for the first time, threatening the debt ceiling has become a tactic. Both parties had repeatedly postured over the debt ceiling in the past, but in 2011 it was a brand new norm-violation to demand concessions in exchange for allowing the government to pay debts lawfully incurred. Obama blundered by not standing on principle then, and so we are where we are.

Later today I’ll have more to say about where that is, but right now I just want to point out where it fits in the larger pattern. The Republicans have President Obama in a Roman-style box: He can surrender to this new minority-rule tactic with the prospect of more surrenders in the future, or he can watch havoc unleashed on the financial markets, with unpredictable effects on the American economy, or he can break the norms himself by invoking the 14th Amendment or minting a trillion-dollar coin or choosing which of Congress’s contradictory laws (the appropriations bills or the debt ceiling) he will enforce.

In the short run, the third choice — find your own norms to violate — does the least damage to the country.  But it keeps the countdown-to-Augustus clock ticking. As Congress becomes increasingly dysfunctional, as it sets up more and more of these holding-the-country-hostage situations, presidents will feel more and more justified in cutting Congress out of the picture.

We know where that goes: Eventually the Great Man on Horseback appears and relieves us of the burden of Congress entirely. He may come from either the Left or the Right, but when he arrives the people will cheer — as the people cheered first Julius Caesar and then Caesar Augustus — because the trust they have placed in the Republic has been so badly abused.

“This War Must End”

The issues on which President Obama has most disappointed liberals (and strayed farthest from his 2008 campaign rhetoric) have centered on the War on Terror. Yes, he got our combat troops out of Iraq (slowly) and is winding down the Afghan War (finally). He did renounce torture as an interrogation technique. But rather than reverse Bush administration’s expansion of presidential power and paint it as a one-time over-reaction to an emergency (like the Japanese internment camps of World War II), Obama has largely ratified Bush’s power-grab, and in some cases even grabbed more. As many of us feared at the time, it is hard for a president to cut back his own power, even if that’s what his principles say he should do.

Thursday, in a major speech at the National Defense University at Fort McNair, President Obama sounded a lot more like Candidate Obama in two ways: He took civil liberties issues more seriously than he has in some while, and he talked to us as if we were adults who can think about complex issues. In that second sense, it was his best speech since his campaign speech about race.

To put a few of my own words in Obama’s mouth: War is bad for democracy. A government at war needs to keep secrets, and it needs to favor security over freedom. The bigger the war, the worse for democracy.

Modeling the threat as a “Global War on Terror” amalgamates every little extremist group and home-grown terrorist into one giant enemy that justifies fighting one giant war. Maybe there was some justification for that framing immediately after 9-11, when Al Qaeda had a unified leadership that seemed to be able to direct multiple efforts all over the world. But:

Today, the core of al Qaeda in Afghanistan and Pakistan is on the path to defeat.  Their remaining operatives spend more time thinking about their own safety than plotting against us.  They did not direct the attacks in Benghazi or Boston.  They’ve not carried out a successful attack on our homeland since 9/11.

Instead, what we’ve seen is the emergence of various al Qaeda affiliates.  From Yemen to Iraq, from Somalia to North Africa, the threat today is more diffuse … Unrest in the Arab world has also allowed extremists to gain a foothold in countries like Libya and Syria.  But here, too, there are differences from 9/11.  In some cases, we continue to confront state-sponsored networks like Hezbollah that engage in acts of terror to achieve political goals.  Other of these groups are simply collections of local militias or extremists interested in seizing territory.  And while we are vigilant for signs that these groups may pose a transnational threat, most are focused on operating in the countries and regions where they are based.  And that means we’ll face more localized threats like what we saw in Benghazi, or the BP oil facility in Algeria

What we face now, in other words, are a lot of little threats, not one big threat like Bin Laden’s Al Qaeda of 2001.

the scale of this threat closely resembles the types of attacks we faced before 9/11. [my italics] … if dealt with smartly and proportionally, these threats need not rise to the level that we saw on the eve of 9/11. … Beyond Afghanistan, we must define our effort not as a boundless “global war on terror,” but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America.

And he recognizes that he can’t promise a perfect defense against those threats.

Neither I, nor any President, can promise the total defeat of terror.  We will never erase the evil that lies in the hearts of some human beings, nor stamp out every danger to our open society.  But what we can do — what we must do — is dismantle networks that pose a direct danger to us, and make it less likely for new groups to gain a foothold, all the while maintaining the freedoms and ideals that we defend.

I read this as a rebuke of President Bush’s sweeping statement three days after 9-11: “our responsibility to history is already clear: to answer these attacks and rid the world of evil.”

If that’s our goal, then we are never done and we have never gone far enough. But if we have a more manageable goal (say, to reduce the risk of terrorism to below the level of many other risks we live with), then democracy might have a chance to survive.

The rest of the speech is more specific and tactical.

Drones. Obama defends drone strikes as “effective” (“measured against the history of putting American troops in distant lands among hostile populations”) and “legal” (i.e., in accordance with the Authorization for the Use of Military Force passed by Congress after 9-11), but admits the discussion can’t end there.

America’s legitimate claim of self-defense cannot be the end of the discussion.  To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance. For the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power — or risk abusing it.

Obama claims that “clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance that I signed yesterday” embodies that needed discipline.  (I haven’t studied those guidelines — which he partially outlines — but I doubt I’m going to buy their sufficiency, given how easily Obama or some future president could change them or just ignore them. He later mentions options for moving some oversight outside the executive branch, but doesn’t commit himself.)

He specifically defends the targeting of Anwar al-Awlaki, an American citizen:

when a U.S. citizen goes abroad to wage war against America and is actively plotting to kill U.S. citizens, and when neither the United States, nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team.

“Force alone cannot make us safe.” Obama says we need to increase foreign aid, and that we should support transitions to democracy in places like Egypt, Tunisia, and Libya “because the peaceful realization of individual aspirations will serve as a rebuke to violent extremists.”

In this country, we should “work with the Muslim-American community” to “prevent violent extremism inspired by violent jihadists”. Speaking in my own words: The guy who is a committed member of a American Muslim community mosque is not going to blow himself up, any more than a Baptist deacon is going to blow up an abortion clinic. In any religion, the people to worry about are the alienated loners who want to go from loser to hero in one big step.

Civil liberties. Even after the Boston bombings, Obama says, “we do not deport someone or throw somebody in prison in the absence of evidence.” He also says we need “careful constraints on the tools the government uses to protect sensitive information, such as the state secrets doctrine.”

His defense of press freedom, calling for a shield law for journalists and saying “Journalists should not be at legal risk for doing their jobs” in some ways misses the point. The targets of the AP investigations are leakers, not journalists. But a journalist’s ability to investigate the government is compromised if sources suspect their communications are going to be intercepted.

Repeal the AUMF. The  AUMF was a very sweeping grant of power that Congress gave President Bush after 9-11. It didn’t have a time limit, but maybe its mission has been accomplished.

I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.  And I will not sign laws designed to expand this mandate further.  Our systematic effort to dismantle terrorist organizations must continue.  But this war, like all wars, must end.  That’s what history advises.  That’s what our democracy demands.

Close Guantanamo. Finally, he discusses closing Guantanamo, which was one of the first things he pledged to do after taking office. In asking Congress to cooperate with him this time, he invokes the judgment of history.

Imagine a future — 10 years from now or 20 years from now — when the United States of America is still holding people who have been charged with no crime on a piece of land that is not part of our country.  Look at the current situation, where we are force-feeding detainees who are being held on a hunger strike.  … Is this who we are?  Is that something our Founders foresaw?  Is that the America we want to leave our children?  Our sense of justice is stronger than that.

And that  may be the best reason to hope that President Obama is serious this time, and that he might really start to disassemble the wartime presidency that Bush built. As he gets closer to leaving office, the temptation to shore up presidential power should wane, and the judgment of history may start to weigh on his mind.

Blow Smoke, Yell Fire

For a few days, it looked like the Obama administration might actually be in trouble. A week ago Friday, ABC’s Jonathan Karl released excerpts of White House emails that appeared to show the White House engineering a cover-up of the true nature of the Benghazi attack, and at the very least being way more involved in producing the Susan Rice talking points than the administration had claimed.

Across the country, Democrats felt that old sinking feeling. It was Monica Lewinsky’s blue dress all over again. After years of beating back outrageous Republican attempts to manufacture a scandal out of nothing — Bill Ayers, the birth certificate, death panelsObama’s “real” fatherSolyndra, Fast and Furious, and on and on and on (just like Vince Foster, Whitewater, Travelgate, and Clinton’s illegitimate black son the last time a Democrat was president) — the long fishing expedition finally had an actual fish.

And even if the rest of it was a typical fisherman’s exaggeration, there would always be that one fish to point to. The conspiracy-theorist’s eternal “What are they hiding?” had turned into the much more reasonable “What else are they hiding?”

Jonathan Chait wrote:

Karl’s report produced among mainstream and liberal reporters a sense of embarrassment at having dismissed the story as a weird partisan obsession.

Worst of all, Obama’s defenders had to wonder the same thing. What blue dresses were hanging in some closet, waiting to be found? If you spoke up, would you eventually look as foolish as all the people who insisted that Bill Clinton “did not have sex with that woman”?

Then came the announcement of an IRS scandal, and an AP scandal, and the sky seemed to falling. So much smoke! There must be a fire under there somewhere.

Then the counter-scandal broke: ABC had been tricked. The “emails” they released had been doctored by Republicans to make the administration look bad. When you read the actual emails, you saw the State Department and the CIA jockeying for advantage, with the White House playing more-or-less the hands-off role it originally claimed.

So there’s still no fish. It’s still “a weird partisan obsession”. It’s still “What are they hiding?” not “What else are they hiding?”

Likewise, as details of the IRS and AP affairs come out, each is disturbing in its own way, but the IRS story seems contained to one IRS office with no White House involvement, and the “scandal” in the AP story is the legal bipartisan policy the administration was faithfully carrying out.

The white-whale hunt for an impeachable offense will no doubt continue, but this pseudo-scandals are not it.

Let’s review where we are:

Benghazi. The four American deaths are a combination of (i) being a diplomat in an anarchic post-civil-war environment is dangerous; and (ii) some screw-ups from which lessons should be learned.  The report of the Accountability Review Board has 24 recommendations. Maybe Congress should be talking about them rather than faking emails and defrauding reporters.

The only intentional wrong-doing anybody has uncovered so far is the forging of the emails and Jonathan Karl’s lie that he had “obtained” the emails when actually Republican staffers had just told him about them. Karl, BTW, is digging in deeper and deeper, which really ought to end his career. He has expressed “regret” about quoting the emails incorrectly, and that he “should have been clearer about the attribution”. But his main regret is that this has “become a distraction from the story, which still entirely stands.”

No, the story totally does not stand, unless you think the story is that the talking points went through 12 iterations, as talking points probably always do. Karl’s scoop was a smoking gun about White House dishonesty. That scoop was false, and an honest reporter would admit that.

Remember: When Dan Rather failed to properly authenticate documents that made President Bush look bad, people got fired and Rather ultimately had to leave CBS. Smearing a Republican president is a serious matter.

The IRS. The background here is that organizations that educate the public about political issues can receive tax-exempt contributions and don’t have to reveal their donors, while organizations that try to elect specific candidates can’t and do. It’s a fuzzy boundary frequently abused: A group might educate the public about how horrible Policy X is, and then also educate the public about how Yellow Party candidate Smith supports Policy X and the Orange Party candidate Jones opposes it. But as long as they don’t actually say “Vote for Jones”, they might maintain their tax-exempt status.

Citizens United opened floodgates of money for such organizations and a lot of new ones were established. All their applications for tax-exempt status went through one office in Cincinnati. Tuesday, the IRS inspector general issued a report “Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review“. Conservative groups, particularly Tea Party groups, were scrutinized more closely.

Everybody agrees that was wrong. The question is why it happened. If the idea was hatched in the White House as a way to hobble its enemies, then it’s a genuine Watergate-level scandal. But there’s not a shred of evidence for that. The practice apparently started with one guy, and so far nobody has asked him why. Atlantic reports:

The crux of the investigation by Congress and the administration will be why that employee started to flag those applications — and why, as the inspector general notes, it soon became an office-wide practice. Was it an attempt to streamline the workflow? Or was it politically motivated behavior meant to target Tea Party groups? So far, it appears to be the former;

A number of side issues crop up in this story:

The damage done is exaggerated. The typical result was that a flagged group needed to fill out some extra forms and provide some additional information. Approval of tax-exempt status took longer than it otherwise might have. Once an application’s review started, there’s no evidence that politics played a role in the ultimate decision.

Tarring ObamaCare. Republicans have been using this issue as a way to attack ObamaCare, because the IRS has a role in it. The worst of these arguments revive the “death panels” hoax, with the added wrinkle that your surgery might be denied because you’re conservative. But in reality, the IRS deals only with the tax issues that arise in ObamaCare: Are you in the income bracket that allows you to claim a health-insurance subsidy, or do you owe the individual-mandate penalty? There’s no mechanism for the IRS to affect treatment decisions, no matter how politically corrupt it might get.

The laws about political activity and tax-exempt organizations are screwed up. Jeffrey Toobin claims that the real scandal is what’s legal, and the way big-money organizations game the system.

Anecdotal reports of audits prove nothing. Now any conservative who gets audited can claim political persecution, in the same way that any white guy who applies for a job and doesn’t get it can claim to be a victim of affirmative action. The WSJ’s Kimberley Strassel claims victim status for the big Romney donor Frank VanderSloot based on … well, nothing really.

Was the White House involved in the IRS’s targeting of conservatives? No investigation needed to answer that one. Of course it was.

How can you argue with that? Peggy Noonan then picks up the ball and runs further, claiming victimhood for Billy Graham and a couple other people, and then concluding:

It is not even remotely possible the actions were the work of just a few agents. This was more systemic. It was an operation. The word was out: Get the Democratic Party’s foes. It is not remotely possible nobody in the IRS knew what was going on until very recently.

It’s true: If you imagine a systemic set of violations, then you need a systemic conspiracy to account for it. But again, it would be nice to have just a shred of evidence before going there.

Nate Silver brings some sanity to the topic.

The fact that Ms. Noonan has identified four conservatives from that group of thousands provides no evidence at all toward her hypothesis. Nor would it tell us very much if dozens or even hundreds of conservative activists disclosed that they had been audited. This is exactly what you would expect in a country where there are 1.5 million audits every year.

AP. I’ll let AP itself make the charge:

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news. …

The government would not say why it sought the records. Officials have previously said in public testimony that the U.S. attorney in Washington is conducting a criminal investigation into who may have provided information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al-Qaida plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.

Like the IRS story, this is bad. But once again the badness is what is legal: During the Bush administration, Congress changed the law to give the government the power to do this kind of stuff. It ought to be unconstitutional, but the Supreme Court has managed to either excuse it or dodge cases where it might come up — and the worst justices on this issue are the conservative ones like Thomas and Scalia.

Just like the overall policy, the AP case has a bipartisan origin:

The two leak inquiries were started after Republicans in Congress accused the Obama administration of orchestrating news stories intended to demonstrate the president’s toughness on terrorism and improve his chance for reelection. The Republicans sought a special prosecutor, but Holder instead named two veteran prosecutors to handle the inquiries.

Jonathan Chait sums up:

The AP story is a more audacious step in a long government campaign, spanning two administrations, to ruthlessly prosecute leaks about the fight against Jihadi terrorism. In every single step of this fight before this one, Republicans occupied the far-right flank. They voted down shield laws; they demanded more vigorous prosecution of leakers than Obama was carrying out.

So absolutely, let’s have a new shield law and let’s get some people on the Supreme Court who take the First Amendment seriously. Let’s reverse the get-the-whistleblower policy that has stood since 9-11. But this is not a political scandal, it’s Obama carrying out a bipartisan policy.

Why? Finally, we need to examine why the Republicans are doing this. Why is everything that goes wrong force-fit into a now-we-can-impeach-Obama frame?

Heritage Action, a PAC associated with the conservative Heritage Foundation, explained in a letter to John Boehner and Eric Cantor:

it would be imprudent to do anything that shifts the focus from the Obama administration to the ideological differences within the House Republican Conference. To that end, we urge you to avoid bringing any legislation to the House floor that could expose or highlight major schisms within the conference.

In other words: Don’t try to legislate, because Republicans can’t agree on any legislative agenda. The only thing they can agree on is that they hate Obama. So stick with that. Investigate everything. Make mountains out of molehills if you have to. Just don’t try to do anything constructive, because that will divide the party.

Secret Laws II: It’s just as bad when Obama does it

Perversely, I wish that the War on Terror would give us a poster child, some cute and innocent victim of government over-reach whose picture we could put on placards and wave as we march through the streets. But for nearly 12 years, under both Bush and Obama, the government has been either too smart or too lucky to provide us with one.

Bad posters. Jose Padilla was an American citizen arrested at O’Hare Airport. Before he was charged with any crime, he spent more than three years in solitary confinement, including sensory deprivation and sleep deprivation. Quite likely he had been driven insane by the time he faced trial. But he was a brown-skinned Chicago street thug who, even if he never actually did any acts of terror (and may never have done anything), was a big talker. And they did eventually manage to convict him on a vague conspiracy charge (after he was mentally unable to either defend himself or trust any lawyer), so he doesn’t generate a lot of public sympathy.

Maher Arar was a Canadian/Syrian dual citizen who didn’t officially enter the U.S. at all. We arrested him during a layover at JFK Airport, held him for two weeks, and then shipped him off to be tortured in Syria for nearly a year. Both Syria and Canada say he was innocent, and he was eventually released. Canada awarded him millions in damages, but the U.S. government so far has avoided avoided any legal repercussions by claiming that it can’t defend against Arar’s lawsuit without revealing state secrets. (The torture happened during the Bush years, but the Obama administration is continuing the state-secrets claim.) But Arar isn’t a good poster child either, because he looks foreign, isn’t an American citizen, and wants to forget his whole ordeal.

Anwar al-Awlaki was an American citizen who was targeted and killed by an American drone attack in 2011 in Yemen, a country where we are not officially at war. What label to put on his death — casualty, assassination, execution — is debatable. But it is not debatable that he was charged with nothing and never had a trial. He’s also a bad poster child, though, because he supported Al Qaeda and counseled people like the Fort Hood shooter. The government claims he planned terrorist attacks, but no evidence supporting that claim has ever been made public.

These cases show that something is deeply screwed up. But without a sympathetic face to put on a procedural abuse, it’s hard to get anybody excited. If the government could torture Jose Padilla or kill Anwar al-Awlaki without any legal process, it could do same to you or me. Since we refuse to identify with people like Padilla and Awlaki, though, we don’t feel personally threatened.

Martin Niemöller’s “First they came for …” is one of the most widely abused quotes in current American political discourse, but this is the setting where it makes sense: When you let the government violate the rights of people you don’t like or don’t care about, you lose the principle. Someday you may be unpopular too, and then how will you defend yourself?

Secret laws under Bush. One of the worst abuses of the Bush administration didn’t even produce bad poster children, because it was abstract: They used secret legal opinions to justify their other power grabs.

When it took office, the Obama administration seemed to be rejecting that course by releasing nine secret memos from the Office of Legal Counsel. The memos explained why it was legal for the President to violate treaties, wiretap without warrants, and do just about anything he thought national security required. Jack Balkin summed it up like this:

The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief.

To understand the power of these memos, you need understand the role of the OLC: It’s essentially the executive branch’s version of the Supreme Court. If you work for any department or agency of the federal government and you wonder whether something you’re doing is legal, you ask your office’s lawyers. If they kick the question upstairs, and then the upstairs lawyers kick it further upstairs, eventually it winds up at the Office of Legal Counsel in the Justice Department. Somebody at the OLC writes a memo, and that memo is then the official interpretation of the law for the whole federal government — at least until somebody sues and the judicial branch starts weighing in.

So if you as a government official believe that the policy you’re implementing is unconstitutional, that’s not for you to say. If the OLC has blessed it, they’re the experts.

That’s a fine system as long as the OLC does its job in good faith and is accountable for its mistakes. But the Bush OLC wrote opinions to justify whatever the administration wanted to do, regardless of the law or the Constitution; and it avoided accountability by keeping its most egregious memos secret, so that non-administration legal experts could not tell the public (or Congress) how absurd they were. I commented at the time:

You never need to classify the fact that 2+2=4. But if you want the government to operate under the assumption that 2+2=5, then you do have to classify it

There is a role for secrecy at the OLC, but only in so far as the facts of the situation are classified. So, for example, if the Pentagon wanted to know whether a proposed weapons system would violate a treaty, a memo answering that specific question might necessarily include classified facts about the system. But a purely abstract memo explaining how the OLC interprets the language of the treaty — there’s no excuse for classifying stuff like that.

In fact, this kind of secrecy violates the oldest, most basic principle of the rule of law: The law must be public. If, behind the scenes, you can interpret the law away or even reverse it completely, then we don’t have the rule of law.

Targeted killing. The hard questions of law happen when two constitutional principles conflict. For example: I have freedom of the press, but my right to publish can be limited by Congress’ power to establish copyrights. I have freedom of speech, but some speech is libel or treason or fraud or pornography. Questions about where the boundaries fall are why we need people on the Supreme Court rather than machines.

The Constitution gives lots of rights to American citizens accused of crimes. The Sixth Amendment says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

And the Fourteenth says that this is not a narrow right:

nor shall any State deprive any person of life, liberty, or property, without due process of law

This clause has been interpreted as applying to the federal government as well as the states.

On the other hand, the Constitution also gives the government the power to make war. It doesn’t define war, but it’s hard to imagine any definition that wouldn’t include the power to kill people without trials. When an American citizen enters a battlefield wearing enemy colors — as many did during the Civil War — the government’s power to make war trumps the citizen’s right to a trial or any other kind of due process. That’s never been controversial.

But the War on Terror has fuzzed everything up. The enemy isn’t a country or government. Its soldiers don’t wear uniforms. The conflict often does not take the form of “battles” fought on “battlefields”. No one knows when the war might be over or what conditions could end it.

So the boundary between war-making powers and Sixth-Amendment rights is not so clear any more. If the government thinks you might be a terrorist in league with Al Qaeda, when can it kill you as if you were an enemy soldier on a battlefield, and when does it have to prove its case to a jury?

This ties in with a bunch of your other constitutional rights. Are you free to hang around with people the government thinks are terrorists or to communicate with them frequently? Can you work with them on projects that you believe are unrelated to terrorism? Can you put forward ideas that are not themselves treason, but are congenial to people who might be enemies?

And finally: What’s your protection against being killed by a rogue government official who just doesn’t like you? Can he invent a charge of terrorism against you, or exaggerate your real-but-harmless connections to terrorists?

As unsympathetic as he was in many ways, Anwar al-Awlaki exemplified all those issues. He wasn’t on a traditional battlefield when we blew up his car, and while he undoubtedly had some relationship to Al Qaeda, the government never had to back up its claims that he had an operational role in terrorism. Here’s what I wrote at the time of his death:

Al-Awlaki is dead because the President signed a piece of paper saying that he was a bad man. I suspect he probably was a bad man, so it’s hard to be all that broken up about his death. But in theory, the President (or some future president) could sign a piece of paper saying that I’m a bad man too. Wouldn’t it be nice to have some due process about that?

Secret laws under Obama. You know what the answer to that question is? It’s a secret. There’s an OLC memo describing when the president can order a hit on an American citizen, but it hasn’t been released to the public, or even to Congress. The House and Senate Intelligence Committees just got it, after asking for years. 

So that’s the state of transparency on this issue: The boundary between the government’s war-making power and the citizen’s right to trial is secret.

In a letter to CIA-Director nominee John Brennan, Senator Ron Wyden (D-Oregon) says:

I believe that every American has the right to know when the government believes it has the right to kill them. 

The Obama administration disagrees. Wyden has raised another question I hadn’t even considered: Does the government owe a citizen the right to surrender?

Think about it. The process that puts names onto the kill list is secret, so you might not know you’re on it until you se the drones circling. What if you want to turn yourself in? What if you think this is all a big mistake and you want to clear your name? If you’re not actually pointing a weapon at someone at the moment, aren’t you due that much process?

These are not questions about weapons systems or the identities of secret agents. They are abstract questions of law, that could and should be debated in public. If the administration has any reason for dodging that discussion — beyond simple embarrassment at the flimsiness of its justifications — it isn’t telling anybody.