Sunday, February 14, 2016

Scalia's Legacy

It's already started, the conservative drumbeat about how devoted Scalia was to the Constitution.

Nothing could be farther from the truth, of course, but that doesn't stop them from saying it.

Scalia practiced a form of fundamentalism known as textualism or originalism. Like religious fundamentalism, it has never been a consistent intellectual theme in either law or religion, but is a reaction to modernism and the inclusion of new ideas and population groups. The originalism practiced by Scalia, Thomas, Alito, and Roberts is merely an intellectual gloss on their visceral disapproval of the Twenty-First (and much of the Twentieth) Century.

A perfect example of Scalia's legacy, one that has had terrible consequences for the United States and the world, is Bush v. Gore.

We know what Bush v. Gore did: it installed George W. Bush as president. What is significant to understand the thinking of the majority, however, is how they reached that result. The basis of the decision was the Equal Protection Clause, and the claim that differential vote counting methods in different counties in Florida violated equal protection.

The irony, of course, is that the majority was a collection of conservatives who never, ever saw an equal protection claim they agreed with. For them, and for Scalia in particular, the Equal Protection Clause was entirely limited to what Congress intended when it adopted the Fourteenth Amendment, and could legitimately go not an inch beyond. Thus, for example, Scalia consistently refused to apply equal protection to claims of sex discrimination because it never occurred to 19th Century Congressmen that women could make a legitimate claim to political or legal equality.

No, but for some reason, unique in the history of jurisprudence, the one disfavored group entitled in the eyes of these conservatives to make an equal protection claim was the residents of certain counties in Florida.

Going further, the fundamental meaning of Bush v. Gore is set forth in one notorious sentence: Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

If there is any question in your mind, that meaning is that the conservatives were not deciding a case based on a legal principle, which would, of necessity, be limited not just to "present circumstances", but would be applicable to all future cases raising the same legal questions. No, their decision was merely that they preferred to choose the Republican and not the Democratic candidate, and if you didn't like it you could, as Scalia said, "Get over it."

Not a justice or a legal scholar, but a thug.

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Saturday, February 13, 2016

O Frabjous Day! Callooh! Callay!

Good news travels fast, so you already know.

Scalia is dead, and good riddance.

Amidst the celebrations, I thought I'd throw out some initial thoughts about what this means.

First, Obama gets the opportunity to nominate a replacement. The Republicans may not like it, but here's what the Constitution says:

He  . . .  shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

Second, he's going to have a fight to do it. Already we're seeing Republicans saying that he should hold off until the next president takes office. You can understand why they would say that, but bullshit. It's almost a year until a new president takes office, and many cases to be decided. It would be irresponsible to leave the Court with a 4-4 split for the rest of the current term and the first half or more of the next term, especially when the sole reason would be to give a Republican the chance to do it.

I'm hearing people say that there is a tradition not to fill a Supreme Court vacancy in the last year of a president's term, but that's also nonsense. The occasion hasn't come up that often, since there have been only 112 justices, but a quick look tells me that both Anthony Kennedy and Benjamin Cardozo were appointed in the last year of their appointing president's terms.

Speaking of Kennedy, this is a huge demotion for him. If Obama does get a nomination confirmed this moves Kennedy from being the most powerful member of the Court, the perennial swing vote, to the guy who gets to decide whether there are three or four votes in dissent.

Still speaking of Kennedy, there are important cases that have already been argued this term, and important cases yet to be argued. One recent example is Friedrichs v. California Teachers Association, an attack on public employee unions; there are also abortion rights and voting and redistricting cases before the Court.

The way the Supreme Court works is that it takes a majority vote to reverse a lower court decision that comes to the Court. Thus, if the votes are split, 4-4, which is the way things stand now, the lower court's decision is upheld. If you look at the list of the cases already argued and awaiting decision, or even the cases yet to be argued this term, you will see that in some of the cases it is a conservative challenging a liberal decision, in some it is a liberal challenging a conservative decision. As long as there is a 4-4 split on the court we can predict that there will be some lower court decisions that would certainly have been reversed with Scalia voting but that will likely be upheld without him as the fifth vote to reverse.

Finally, a few last points about a replacement. I don't doubt that the Republicans will do what they can to block any nominee, and if they vote as a unit they have the votes. There is one absolutely clear point you can make about the Republican caucus in the Senate:



Looking at the list of Republican senators I have a hard time seeing how he gets 14 votes (counting Sanders and King as Democrats).

Nevertheless, let's say he goes forward with an appointment. I don't have any inside information on who might get the nod, but I think we're looking at a youngish--fifty or younger--person who has already been through the judicial or Cabinet-level confirmation process. Wikipedia has a list of people who have been "mentioned" for Obama before that I'll link to here, along with a list of his judicial appointments. Look to judges who were appointed unanimously or nearly so: there may be some Republicans who would be hard put to justify rejecting someone they've already voted to confirm once or twice. Finally, as a long shot, there's always the possibility of nominating a senator. I've heard it said that almost any senator would be confirmed, but that was in earlier, less bitterly partisan times.

And, to imagine one particularly unlikely scenario that might have a certain Machiavelian appeal to it, how about Hillary Clinton? She's a smart lawyer, but she has two things that might make her appeal to the Republicans: she's old, so she won't be in office as long as a different appointee, and she gives the Republicans what they want, the chance to run against Bernie in November. Ya think?

Of course, anyone's guess is as good as mine. I wouldn't be much on his chances of getting someone through, but someone who has a less dark view of the Republicans in the Senate might be more optimistic.


The way the court works

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Thursday, September 24, 2015

The Shkreli and The Donald

It may seem that everything there is to say about that low-life, scum-sucking piece of shit Martin Shkreli has been said, but I'm here to tell you that that is not true.


And in fact, what I think hasn't been said yet is pretty interesting.

You don't need the whole background, but it's enough to remember that he is one of those obscenely wealthy people, the kind the Republicans call "job creators". You know, hedge fund managers, people who don't work for their money and pay no more than a token tax on the millions that sticks to their fingers and lands in their pockets at the end of a long hard day not working. That's where he got the money to buy the drug that was worth $13.50 a dose last week and is now, according to him, worth $750 a dose.

But that's what you know already. I got interested in the story we haven't heard, so I started poking around to see what the Republican presidential candidates have to say about him. He seems to be the most hated guy in the country, and rightly so, so there should be some mileage on ganging up on him, right?

So I started poking around. Marco Rubio, whose parents fled the Castro Batista dictatorship? I can't find any evidence he's made any comment about him.

What about Ted Cruz of the famously modest immigrant upbringing? Again, apparently silent.

What about the two doctors, Ben "evolution was invented by the devil" Carson or Randy Paul, the doctor so special he invented his own accrediting board? Again, they seem to be pretty quiet.

In fact, hard as I looked, I could only find one member of the Republican Party who has anything bad to say about Shkreli.

“He looks like a spoiled brat to me. He’s a hedge fund guy. I thought it was disgusting what he did.”

And:

"That guy is a zero, a nothing...I thought that was a disgrace."

Yes, you guessed it. The Donald seems to be the only Republican candidate who could summon any moral outrage, or any judgment at all, on this reprehensible pipsqueak.

And that's why I mention the hedge fund connection. You see, as far as I can tell, Trump is also the only Republican who thinks hedge funders should pay taxes.

"The hedge fund guys didn't build this country. These are guys that shift paper around and they get lucky," Trump said.

"They are energetic. They are very smart. But a lot of them - they are paper-pushers. They make a fortune. They pay no tax. It's ridiculous, ok?"

Don't get me wrong, Trump is a buffoon, a bloviating windbag, a crapulent, self-satisfied plutocrat with way more money than brains.

So what does that make the rest of them?

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Wednesday, June 17, 2015

Rock Against Republicans!

Candidates of both political parties like to have rock music playing at their rallies for obvious reasons. Rock is the music of millions of Americans, it has energy, it evokes a certain forward-looking vision, it connects with young people, it is culturally inclusive, and it implies that the candidate is not part of the Establishment.

In other words, rock is everything that Republicans are not. Still, they keep trying their own version of cultural appropriation by choosing rousing rock anthems to warm up the crowd, and once again, the musician who recorded that rock anthem told the Republican to get lost.

Today it was Neil Young. Today The Donald and that dead weasel on his head announced his candidacy for president to the tune of Neil Young's Rockin' in the Free World.

And just as fast, Neil Young told The Donald to get bent. “Donald Trump’s use of ‘Rockin’ in the Free World’ was not authorized,” Roberts said, adding for good measure, “Mr. Young is a longtime supporter of Bernie Sanders.”

And, as usual, the candidate missed the entire point of the song.

Other examples:

Just a couple of months ago it was the Dropkick Murpheys and Scott Walker. New York (AFP) - The Dropkick Murphys, the Boston rockers known for their left-wing politics, have voiced outrage after union-busting Governor Scott Walker of Wisconsin played their music at a conservative forum.

"Please stop using our music in any way. We literally hate you!!! Love, Dropkick Murphys," the band tweeted over the weekend.

It was also Rage Against the Machine when Paul Ryan tried to appropriate their music. As the band's Tom Morello wrote in Rolling Stone: Don't mistake me, I clearly see that Ryan has a whole lotta "rage" in him: A rage against women, a rage against immigrants, a rage against workers, a rage against gays, a rage against the poor, a rage against the environment. Basically the only thing he's not raging against is the privileged elite he's groveling in front of for campaign contributions.

The list goes on and on, but maybe we should confine ourselves to the list of music that Republicans should use for their rallies: Hank Williams, Jr., who said  "We've got a Muslim president who hates farming, hates the military, hates the U.S. and we hate him!"

Ted Nugent, who said of President Obama  "I have obviously failed to galvanize and prod, if not shame enough Americans to be ever vigilant not to let a Chicago communist raised communist educated communist nurtured subhuman mongrel like the ACORN community organizer gangster Barack Hussein Obama to weasel his way into the top office of authority in the United States of America.". 

What about you? If the Republicans must play music at their rallies, what is your ideal Republican playlist?



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Wednesday, June 10, 2015

This is just vile

UPDATE: Diane Rehm has apologized.

You can judge for yourself if it is adequate. Personally, I feel that she's letting herself off pretty easy, given that her question was the equivalent to asking if it's true that Jews use the blood of gentile babies to make matzohs.

Or I should say, incompetent, sloppy journalism repeating a vile lie.



I like the Diane Rehm Show. She has good guests and she is generally a good, well-informed interviewer, but today she went way out of bounds.

I didn't hear the show myself, but Talking Points Memo reports that in the middle of her interview of Bernie Sanders she asked him this:

"Senator, you have dual citizenship with Israel," Rehm said during the interview on her nationally broadcast show based on station WAMU.

. . .

Rehm cited "a list we have gotten" at NPR that said Sanders was "on that list."

Sanders dismissed it as "nonsense that goes on in the Internet."

(Rehm's station WAMU did not immediately return TPM's request for comment on Wednesday.)

"Are there members of Congress who do have dual citizenship or is that part of the fable?" Rehm asked Sanders.

It's true, there is a list on the Internet of members of Congress with dual citizenship. As you might expect, it is a vile, anti-Semitic lie. If you find it, and it's easy to find, it's on an anti-Semitic site. It repeats the canard that American Jews are not really Americans, and their loyalty cannot be trusted because their true allegiance is to Israel. Kind of funny that even though the media love to trace the genealogy that connects any particular president to the English royal family we never heard claims that George Bush or Ronald Reagan had dual citizenship with England, did we? No, it's always Israel and it's pretty much always Democrats.

When Bernie first announced I got on one of the very first Sanders for President Facebook pages and I soon left after I realized that a high percentage, maybe half, of the posts there were claims that he is a dual citizen.

This is just intolerable. As many awards as Diane Rehm has, she has to know better than to regurgitate this kind of anti-Semitic garbage. I haven't seen a retraction on her page yet, so when I'm done with this I'm going over to lodge a complaint. I hope you will, too.

Oh, and in case you're wondering, if you hear someone complaining about how the Rothschilds are running the world, that person's an anti-Semite, too.


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Tuesday, June 09, 2015

The Republican War on Education

Republicans are funny. In their own antisocial way, that is.

When you get them talking about politics, and about the differences between the parties, you can't shut them up about the value of education, and how being all smart and educated makes them better than Democrats. They love to point out the differences in educational attainment between Democratic and Republican voters. Ol' Rushbo loves to attack what he calls the "low-information voters", by which I'm pretty sure he means black people who vote for Democrats. In fact, education is so important to the Republicans, and conservatives in general, that the ur-text of the modern conservative movement is William F. Buckley's God and Man at Yale, where he upholds the sacred values of education against the political perversion of the academy.

But, as I say, they're funny. Somewhere after William F. Buckley was a lone, foaming-at-the-mouth conservative standing athwart history yelling, "Stop," and the present, where the whole Republican Party is foaming at the mouth, their attitude toward education took a radical turn. To be specific, they used to be for it, now they're against it.

Developments in the last week or two have made this painfully clear, and I'll just mention a couple of them.

Wisconsin. For many years, probably owing to its Progressive history, Wisconsin has been the only state to enshrine the principle of tenure for public university faculties in its statutes. That won't last long, as Governor and likely presidential candidate Scott Walker got a legislative committee to repeal that statutory provision. Because Walker has a right-wing supermajority in the legislature, count on that repeal becoming law very soon.

Wisconsin. Walker again. This time it's not just attacking academic freedom and protections for professors, Walker is also pushing $300 million in cuts from the state's public universities while asking for $500 million to give the Milwaukee Bucks a new stadium.

Wisconsin. Still Walker. This time it's a proposal to gut teacher licensing standards. Anyone with a bachelor's degree could teach core subjects from grades six through twelve, no advance degree or specialized education required. And it gets better: for non-core subjects, no college required!

Is it fair to pick on one state so much? Maybe not, but with Walker's own undistinguished education (dropped out of Marquette with a 2.6--in other words, passing, barely--GPA) maybe we shouldn't be surprised that he places little value on education for others.

Nevada. New rule in Nevada: Who needs public schools? Take your voucher and go wherever you want. Want to send your kids to a fundamentalist school where they'll learn that the universe was created in six days, six thousand years ago? Well, there go your tax dollars right along with it. We'll see how that stands up to a constitutional challenge.

Texas. You know what William Tecumseh Sherman said about Texas, don't you? "If I owned Hell and Texas, I'd rent out Texas and live in Hell." Things haven't gotten any better. Now, when your kids study history in the Texas public schools they will learn that Moses was one of our Founding Fathers. Yes, that Moses. The one with the burning bush. Since it's Texas we're talking about, maybe it was a tumbleweed.

North Carolina. (Motto: Not as bad as South Carolina!) Budget cuts, tuition increases, and attacks on academic centers based explicitly on political ideology. Will there be anything left of higher education in North Carolina once the John William Pope Center, the Tarheel version of the Koch brothers, gets done with it?

Kansas. Last but not least. It's a little older news, but it's breathtaking in the sheer audacity of the program. You know that Sam Brownback has been working for his entire tenure as governor to undermine and abolish any beneficial government activity, hoping to prove that if he cuts enough taxes on enough rich people the economy will perk back up. It hasn't happened yet, but in Brownback's mind that just means that he hasn't cut enough for long enough. The collateral damage? Hardly anything worth mentioning. They just had to shut down public schools in Kansas early because the government doesn't have the money to keep them open! Is that even possible? Forget about the dislocation for the families, who now must make other arrangements for their children while the parents are working, did it even occur to them that what goes on in schools is actually important? Apparently not.

Louisiana. Believe it or not, Bobby Jindal is a Rhodes scholar. Still, in Louisiana public school teachers are being allowed, encouraged, and pressured to teach that creationism is a valid explanation for the millions of species on earth. The parents must be hoping that when their kids graduate from high school they can get accepted to one of those many fine universities that "don't hold with book-larnin'".

I could go on, but it's really too discouraging. For instance, I'm not even going to get into global warming. We are brought to a point where the parties aren't even seeing the same world. How is it possible to have any kind of debate or discussion when one of the parties is so militantly opposed to reality and facts?

The Republican attacks on education are a direct attack on the future. As long as this goes on they won't need Buckley to stand athwart the future. It's a good thing, because they're going to have a hard time finding someone who knows what "athwart" means.

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Sunday, May 03, 2015

A Policy of Murder

This month we're seeing observances of the fortieth anniversary of the end of the American war in Vietnam. Or, to be more accurate, of the defeat of the United States in its war of aggression against Vietnam.

Conservatives have done everything they can to rehabilitate the war and those who perpetrated it, from the phony POW-MIA flags you see all over the place, to Rambo, The Deer Hunter, and other revisionist movies, to the excessive celebration over more recent military veterans, born in part of a guilty national conscience, retroactively valorizing those who fought in a losing and profoundly evil war.

On this anniversary Seymour Hersh in The New Yorker revisits his reporting on the massacre at My Lai, making clear that, far from an aberration, mass murders of civilians were the policy of the United States. You might think that after almost fifty years later there is nothing more to learn, but you'd be wrong. Of a return visit to Vietnam, Hersh writes:

The message was clear: what happened at My Lai 4 was not singular, not an aberration; it was replicated, in lesser numbers, by Bravo Company. Bravo was attached to the same unit—Task Force Barker—as Charlie Company. The assaults were by far the most important operation carried out that day by any combat unit in the Americal Division, which Task Force Barker was attached to. The division’s senior leadership, including its commander, Major General Samuel Koster, flew in and out of the area throughout the day to check its progress.

You should read the whole article. We must not forget.

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Saturday, May 02, 2015

Patriotic Betrayal: The Inside Story of the CIA’s Secret Campaign to Enroll American Students in the Crusade Against CommunismPatriotic Betrayal: The Inside Story of the CIA’s Secret Campaign to Enroll American Students in the Crusade Against Communism by Karen M Paget
My rating: 4 of 5 stars

When I was growing up in the 1960's my parents used to tell me stories about their activities in the National Student Association in the late 40's and early 50's. Liberal Democrats, they would tell us about parliamentary tactics deployed by Communist members to try to take control of the organization (late night quorum calls, for instance) and the efforts of anti-Communist liberals to prevent the organization converted to one whose activities would be dictated by the Soviet Union. I haven't seen his letters (one of my brothers has them) I believe my father was at the organization's constitutional convention in Madison in 1947.

What I'm sure they didn't know at the time was that, while the NSA was devoted to spreading democratic values around the world, and especially in nonaligned countries emerging from colonialism, and despite the fact that the NSA followed democratic forms and procedures for the elections of officers, the actual activities of the organization were determined and funded by the CIA, with help from the Catholic Church to promote its own conservative agenda. Each year the elected president would be taken to a mysterious and secret meeting in which they were brought into the fold, told to sign a security oath, and, in the parlance of the organization, made "witting". It was only then that the president and other top officers of the organization would be taught that the CIA was making the decisions, funneling money for travel and other activities through pliable charities, and truly acquainted with the shadowy older men--former students--who seemed to have hung around the NSA far beyond the time that most people would be interested in working with an organization for college students.

The secret was maintained for twenty years, until a few courageous officers and a major investigative effort by Ramparts magazine revealed the extent of CIA domination of this allegedly democratic organization. During that time the NSA was used to provide scholarships for promising foreign student leaders to study in the United States and to disrupt conventions staged by a rival, Soviet-dominated international student organization for propaganda value.

The husband of the author of Patriotic Betrayal was elected vice-president and made witting, and the author followed within months. Consequently, the author has a wealth of personal information about the inner workings of the NSA, which she supplemented by over 150 interviews of other participants in the events recounted here and research documented in the 100+ pages of end notes.

In the pages of Patriotic Betrayal we meet characters familiar and unfamiliar and, in most cases, whether they were in on the CIA factor. For instance, my parents' friend and former liberal Congressman Allard Lowenstein (they called him Al) was considered to be an obstacle to CIA domination when he was president in 1950-51, although it is not known whether he was witting. Tom Hayden, working with the SDS, also tried to push the NSA to the left, while Gloria Steinem was working for the CIA when she directed CIA-funded activities in the late 50's and early 60's. We also see appearances by people who would later become important nationally or internationally, including Fidel Castro,  future Swedish Prime Minister Olof Palme, and notorious right-wingers Howie Phillips and Richard Viguerie.

Patriotic Betrayal goes into exhaustive detail of the inner workings of the NSA from year to year, and often from week to week. While this level of detail establishes the breadth and depth of the author's knowledge, it could be debated whether she has trimmed enough of the details from what the author has told us was earlier even much longer. The author does successfully give us the final conflict as a real-life spy thriller, with insiders trying to wrest control from the CIA and expose the CIA's role in the NSA, the CIA and its agents trying to block the effort and to punish the organization for these efforts, and a ragtag band of journalists and activists literally risking assassination to get the story into print.

At fifty years' remove from most of these events it's hard to imagine so much effort and money invested in an organization of student governments to make sure the Commies' student organization didn't gain the upper hand. It's almost Spy v. Spy stuff. It's also ironic, of course, that the CIA's idea of promoting democracy in even this voluntary group was to install its own men into positions of power, fund them, and tell them what to do. Ultimately this is the most important lesson: the dangers of secret government setting up secret activities to subvert democratic institutions. When Ramparts broke the story the secret government and its allies in Congress cooperated to squelch or neutralize the revelations. Patriotic Betrayal is an important revelation of these Cold War events.


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Wednesday, April 22, 2015

Free John Hinckley, Jr.

There's a new report today that St. Elizabeth's Hospital, where John Hinckley, Jr., has lived for more than twenty years, is seeking to release him from inpatient treatment to live with his mother. Naturally, this is leading to the inevitable wails that he should never be released after what he did, and on and on.

The people who want to keep him locked up are wrong. Hinckley, his lawyers, and the hospital that wants to discharge him are right. There are a number of reasons for this.

First off: he was acquitted. Like other people charged with a crime in the United States, the government presented its case before a jury of his peers. To convict him the government needed to prove his guilt beyond a reasonable doubt, and it didn't. No matter what you think of the insanity defense, it's not a technicality. If someone makes the incredibly rare accomplishment of prevailing on an insanity defense that person is not criminally liable.

Not guilty. Period. That means that no matter how much you don't like what he did, you don't get to keep punishing him. A defendant found not guilty by reason of insanity is not sent to prison, but is sent to an institution for treatment until he or she can be safely discharged to the community. The Supreme Court has held that it is unconstitutional to continue to hospitalize someone involuntarily unless it is shown that the person is both mentally ill and a danger to himself or others. Once the defendant's innocence has been established, the question is not what the person did in the past, but on what will happen if the person is released. "A finding of "mental illness" alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the "mentally ill" can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom."

Second, Hinckley is a danger to nobody. His track record over the last twenty years, time when he has been confined to the hospital but has had chances to go out on unsupervised visits to family and friends, shows that. He has had no violent incidents, he returns when he's supposed to return, and he cooperates with treatment. There is no reason to believe that keeping him locked up will reduce any danger he poses to himself or others, mainly because it has been decades since he has done anything dangerous.

I have represented clients who have killed people when suffering from untreated mental illness, and I have argued successfully for their release from hospitalization. I know that cases like this are emotionally upsetting to members of the public and to prosecutors. As reported in the Washington Post, "Prosecutors pointed out that unlike other aging patients with disabilities who have supportive families, Hinckley is an attempted assassin who shot the president and three others." I'm used to hearing this kind of argument because I've heard it myself in cases that I have handled, but the argument misses the point. These cases always involve violent, sometimes deadly acts, but that is not the end of the story. As a matter of law, as a matter of common sense, and as a matter of basic morality, we do not have the right to lock up a person who has been acquitted of a crime and who poses no danger to others if he or she is released.

In the Hinckley case the court will undoubtedly examine the treatment he has received since the last time his restrictions were loosened. It will examine whether he complies with treatment, and whether his behavior, which includes one or two minor slips in the last few years, demonstrates that he is dangerous or safe. When all these factors are examined, the likely outcome is that he will be discharged to live with his mother, with the support of other family members if that becomes necessary.

That will be the right outcome.

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Monday, March 09, 2015

Republican Senators Channel Nixon

Just when you thought they couldn't sink any lower, the members of the Republican  majority go and prove you wrong.

Last week it was Boehner having Netanyahu speak to a joint session of Congress to undermine President Obama's negotiations with Iran, but now the Republicans in the Senate have topped him.

Monday 47 Republican senators sent an open letter to the president of Iran again seeking to undermine the nuclear weapon negotiations by means of a veiled threat to refuse to ratify any treaty reached by the parties, and to rescind any executive action Obama may take to implement an agreement.

Their letter says, in part:

First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them.  In the case of a treaty, the Senate must ratify it by a two-thirds vote.  . . .
 Anything not approved by Congress is a mere executive agreement.

What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

Sadly, this repeats a pattern the Republican Party has been guilty of before. In 1968, when he feared that Hubert Humphrey might seize victory from the jaws of electoral defeat, Richard Nixon dispatched Anna Chennault to South Vietnam to encourage them to block any possible negotiation in the Paris peace talks, promising a better deal if he was elected. Nixon's sabotaging of the peace talks may have extended the war for another five years, at a cost of untold tens of thousands of lives.

Once again, the Republicans have chosen to put their partisan interests ahead of the national security of the United States. If they are successful, the product of their betrayal will be the defeat of the nuclear weapons talks, the immediate resumption of nuclear weapons development by the Iranian government, and the acquisition of nuclear weapons by Iran within a few years.

Boehner, McCain, Orrin Hatch, and most of the Republican extremists in the Senate (along with so-called moderates like Kelly Ayotte) seem intent on a 2015 version of the October Surprise plot of 1968.

Have you ever seen anything more contemptible?

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Wednesday, January 28, 2015

Flash Boys: A Wall Street RevoltFlash Boys: A Wall Street Revolt by Michael Lewis
My rating: 4 of 5 stars

Michael Lewis’s latest book, Flash Boys, talks about high frequency trading and the creation of a new stock exchange to create fairness in stock sales. I started hearing him on Terri Gross and 60 Minutes when the book came out, but now I understand more about the issues.

Lewis has established himself as one of our leading authors in explaining economico-cultural phenomena, like baseball or the 2008 housing collapse, and Flash Boys continues in this familiar vein.

Lewis describes a number of characteristics of the current stock market system that have the potential to work to the detriment of investors. They include:

1.       While we tend to think of the stock market as a unitary system, trades take place not on one or two exchanges, like the New York Stock Exchange, NASDAQ, and the AMEX, but on a dozen or fifty public and private exchanges.

2.       High frequency traders (firms running computer algorithms) invest millions of dollars in getting closer to the exchanges--actually placing thir computers physically closer to the computers where the stock trades take place--so that they have access to market information microseconds before ordinary traders, which enables them to make trades ahead of trades that were ordered first, and use that information to buy lower or sell higher than the investor first seeking to make the trade. (How this happens is complicated, but the way it works is that they see an investor looking to make a big purchase or sale on one exchange and then, using their faster electronic connections, they can run ahead of that investor to the other exchanges, cut to the head of the line, and get a better price.)

3.       The advantage that high frequency traders and big banks have is not limited to speed: these multiple exchanges also make financial arrangements—kickbacks or payments--that pay investment banks and brokers to make transactions in a way that makes them money even though their investors, whom they are supposed to be serving, worse off.

The book talks about the establishment of a new exchange called IEX (from their original name, Investors Exchange, which had unfortunate connotations when reduced to a URL) designed to eliminate these distortions in the market (i.e. stop traders from screwing investors).

As with Lewis's other books, Flash Boys brings the subject matter to life through the stories of well-drawn protagonists who must move beyond what they--and we--think they know in order to understand and respond to changing circumstances. Also, as with The Big Short, once you understand how the market and money manipulators are making things very profitable for themselves at your expense you may have a hard time keeping your temper in check.


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Wednesday, January 14, 2015

More Muslim--and Christian--terrorism

Since the terrorist attack on Charlie Hebdo last week there have been plenty of discussions of what is really terrorism, and whether there is such a thing as explicitly Muslim terrorism.

Let's take a look at the definition. Federal law defines terrorism as follows:

"International terrorism" means activities with the following three characteristics:

Involve violent acts or acts dangerous to human life that violate federal or state law;
Appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
Occur primarily outside the territorial jurisdiction of the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.*

"Domestic terrorism" means activities with the following three characteristics:

Involve acts dangerous to human life that violate federal or state law;
Appear intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination. or kidnapping; and
Occur primarily within the territorial jurisdiction of the U.S.

There are some differences, but the key concepts include violent or dangerous acts intended to intimidate or coerce a civilian population. Let's keep those concepts in mind.

Last Friday, a blogger in Saudi Arabia received the first fifty lashes of the sentence he received of ten years in prison and one thousand lashes for "insulting Islam". According to the Washington Post, In 2011 prosecutors alleged that his Web site “infringes on religious values.” He was arrested in 2012, when a well-known cleric issued a religious ruling that Mr. Badawi was an apostate who must be tried. 

In the Philippines, local cultural activist Carlos Celdran is appealing a sentence of imprisonment imposed for violating the law against “offending religious feelings.”

In both cases, the state seeks to carry out violent acts to prevent public criticism of the dominant religion.

There are differences. For instance, critics of Celdran might be quick to point out that the crime he was convicted of involved his going into a church service with a protest sign, but look more closely: he wasn't charged with unlawful trespass, or disrupting the church service. The gravamen of his crime was that he offended religious feelings.

The State Department publishes a list of state sponsors of terrorism, countries that have been "determined to have repeatedly provided support for acts of international terrorism". The listing has always been political. Nevertheless, given the actions of these two United States "allies", one of them, Saudi Arabia, being one of the most repressive regimes in the world, can we justify not targeting these states for terrorism against their own people?

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Monday, January 12, 2015

Prosecutorial discretion


I'm sure you don't recognize this guy, because, after all, you don't live in Idaho.

If you did you might recognize him as Barry McHugh, the prosecuting attorney for Kootenai County, Idaho.

Old Barry's hit the news, and maybe not for something he'd want to be in the news for. You see, Barry has issued a warrant for the arrest of a nine-year-old boy for stealing gum.

I don't know, maybe the kid's a repeat offender. Maybe he stole a cookie when he was six and got away with it, so now he's headed down the road to a life of crime. A cookie here, gum there, and there's no telling where it will end.

I'm sure Barry has his reasons, because, you see, he has prosecutorial discretion. He gets to decide who he will prosecute and who he won't prosecute, and there's pretty much nothing that anybody else can do about it. So the nine-year-old gets sent off the the Little Big House to learn the error of his ways.

But you know, practicing law can be hard work, especially with all that exercising prosecutorial discretion. You mouth sure can get dry from all that discretioning, especially up in Idaho.

So wouldn't it be a kind gesture, a way to let him know how much we appreciate his efforts to keep Kootenai safe, to send him a piece of gum?

I know that's what I'm going to do, and if you're inclined to do the same, here's the address:

Barry McHugh, Prosecuting Atty
P: (208) 446-1800

Physical Address:
501 Government Way
Coeur d'Alene, Idaho 83814

Oh, one other thing: I went and got some legal advice and I'm told that if you are inclined to send ol' Barry some gum you should make sure not to send him anything with a liquid center or a powdery residue. There are people who send dangerous stuff through the mail, but a little gum never hurt anybody.

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Sunday, January 11, 2015

Just say no, Boston edition

Lord knows there's no shortage of issues to get organized about, but I know what my number one advocacy issue would be for the coming year if I were living in Boston right now.

It's the Olympics.

Sure, it's supposedly a point of national pride when your country is selected to hold the Olympics, and within the country it's supposedly a point of pride, of preeminence, a sign that you've made it if your city is selected, but what's the benefit of being selected for the equivalent of a flood, an earthquake, or a major hurricane? Yet that's exactly what the U.S. Olympic Committee wants the people of Boston to do.

Friday Nate Scott posted a column in USA Today laying out some of the practical problems with trying to shoehorn an extra half million people into a medium-sized, already congested city with already inadequate transportation and housing infrastructure. Boston's already been through one massive, disastrous public works program in recent years, and the congestion, delays, and cost overruns of the Big Dig will be dwarfed by the spending and construction needed to build the Olympics.

In addition to the problems with this plan that Scott enunciates, anyone in Boston or anywhere in Massachusetts who thinks that there are already misguided priorities in the city and state budgets will be shocked by what can only be a massive diversion of funding from human needs to this plaything for the international rich.

But it's not just the money. Just last year Norway decided to pass on a bid for the Winter Olympics because of the arrogant demands of the International Olympic Committee to be treated like royalty throughout their say at the competition. Here are some of their demands:

*A meeting and cocktail party with King Harald before and after the opening ceremony, with the royal family or Norwegian Olympic committee picking up the tab.

*A full bar for IOC pooh-bahs at the stadium during the opening and closing ceremonies.

*IOC members must be greeted with a smile upon arriving at their hotels.

*Hotels for IOC members must be pre-cleaned “particularly well,” and hotel management should be prepared to correct the slightest problem posthaste.

*All meeting rooms must be kept at 68 degrees.

*The usual car and driver at the beck and call of IOC members.

When I was growing up I always enjoyed watching the Olympics, and the exploits of athletes like Michael Johnson and Usain Bolt remind us all that we can count on greatness from the competitors. Nevertheless, as time goes on, the excess of the ceremonies, the celebrity and personality focus of the coverage, and the sheer bloat of the entire event has led me to conclude that I don't really care if they have another Olympics ever.

At a minimum, I would expect the people of Boston to be saying "Not here".

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