"I'm for gay rights but ..."

So for the past few years I've been jousting with my family and loved ones around the issue of same sex marriage and repeatedly found my argument falling on deaf ears. In fact what I most often heard was, "I am for gay rights but..." and what would follow would immediately sweep away any indication of actual support for the union of two people from the same sex. As a service to myself and those with whom I will soon have this discussion with, I'll provide some statements and my rebuttals. Instead of taking our 45 minutes on spinning wheels, let's work and see and if we can cover some different ground.

1) "I'm for gay rights but ... you can't compare being Black to being gay."

I feel you, I understand that being Black is different than being gay, but did you realize even in that statement you're implying that we don't have Black gay folk? No really, this is the part of the conversation where you keep on throwing out "they" which you might as well then say "those people." I know you don't like me bringing that up, because for so long and so often within the dominant White culture of America Black folks are referred to as "they", "those people" and even recently "that one." It's really a process of othering, trying to make a distinction of who is "in" and should receive privileges and who is "out" (pun intended).

2) No, you're not getting it, I didn't choose to be Black and I can't hide being Black.

Touche, you're probably don't remember when you chose to be Black, if you ever did. In fact, since we're talking - heterosexual to heterosexual, I don't remember when I choose to be straight, but that's besides the point. The point is that being "Black" and being "gay", as we sociologists say are both "socially constructed". Yeah, fancy academic words but definitely important. By socially constructed I mean that we create the boundaries and meanings for these categories. There is a great film that breaks this down and books, but let's be real, you ain't gonna pick up a book or watch a movie in the middle of this blog post, so let me do what I can to break it down now. While we've come to think of meaning of Blackness as something that can't be changed, avoided, and pretty much is like gravity, we've forgotten that was created. In fact, the dominant images and tropes of "What is Black", weren't even our creation. Think about it, how many people who identify as Black, would say "my skin is actually the color of Black." Very few, in fact, we respond by saying things like "I'm brown, caramel, dark chocolate, etc." all descriptors that side-step an imposed moniker. Also have we forgotten that for so many years, the oppression of being Black and not having access to rights made many of our ancestors pass? Yeah, that's right, not all of us are "definitively Black" and certainly what it means to be Black has carried consequences.

3) That's my point, almost exactly, you can tell when someone is Black usually, but you never know if they're gay! Well unless they're really flamboyant or something.

Ah, I get it, if you are gay you don't have to "look or act gay" and if you don't act gay, you'll be fine in society. Yeah, that's called passing ... well actually more appropriately covering. See, as a Black folks, I really hope we think deeply about oppression and how oppressive it must be to not be able to show your love for someone else. If I walk outside and decide to kiss a strange woman in the middle of the street I won't get many strange glares (other than folks saying "Dumi's a wild cat") but if I love someone of the same gender and walk arm-in-arm with them down the street I'm likely to get screw faces down the block. As a result, we, heterosexual folks often say stuff like, "I don't care what you do behind closed doors but I don't want to see it." Interesting... we live in a society were the physical expression of romantic love between people is common, but almost completely forbidden for certain groups. In order to be one's self we ask people not to express themselves and "pass" or "cover" for straight. That doesn't sound very equal or liberated to me. Can you imagine a community where love was the norm and hate was not what we used to regulate others behaviors? (that's rhetorical)

4) Okay, I get that, but doesn't it piss you off when they use the Civil Rights Movement for their movement?

Once again, what's up with the us and them type of thinking. Gay Black folks have been around for a long time, to act as if they are not us is to deny part of ourselves. In fact, the most prominent voice and architect of the Civil Rights Movement was Martin Luther King Jr. His work centered on non-violence which he derived from Gandhi but he learned from Bayard Rustin who was a queer Black man. Gay, Lesbian, Bi and Queer Black folks have been at the center of our movement for rights as well as our cultural and social uplift, why try to write them out of history now? Or rather why not acknowledge the central role they've played in the collective Black struggle which should include lgbtq brothers and sisters? We can only say gay folks are piggy-backing on the civil rights movement if we don't acknowledge the contribution of gay folks to the movement. Now has the equal rights movement around sexuality taken on some tropes that came along during the Civil Rights movement, absolutely! But all subsequent movements do that, in fact, a marker of a successful social movement is an adoption of some its techniques. But let's not forget what the Civil Rights Movement was about! It was fighting to make the 14th and 15th amendments real!!! Those amendments legally gave Black folks equal civil rights but when we looked at how Black people were treated and what they could do, it is seen that it's unequal. I think we can take a similar look at the Gay Rights movement which is simply fighting for the same rights that heterosexuals have, be it marriage, adequate healthcare, or to live freely in society.

5) I hear what you're saying but God made "Adam and Eve" not "Adam and Steve"! We're a Christian country and marriage is a bond before God between man and woman.

Ah, you got me with that one, I didn't realize a rhyme could break down an entire situation. Oh wait, no it can't. There is an entrenched myth in this country that marriage is exclusively a religious, often insinuated Christian, practice that the government sanctions. Not true at all, anthropologists have long observed and discussed marriage as beyond Christian and beyond the sanctioning of the state. It is true here that many associate the two, but that does not seem logical that it must also be seen as such. First, the mythos of the United States as Chrisitian nation is based on ignoring that colonies were founded out of the fleeing of religious oppression. How ironic is it that religion would then become the basis for oppression in 2009 and 1619 when non-Christian Africans arrived in captivity and quickly were proclaimed subhuman and savage. If you are going to invoke the credo of a nation, then I'd suggest you invoke the ones of equality and diversity, which means you are welcome to have your beliefs but your beliefs should not be the basis for impinging on other's rights.

Now I know by this point you likely still don't agree with me, but I do want you to see there is validity to a discussion about gay rights and the civil rights or more importantly gay rights as civil and human rights! I do want you to see that all to often we neglect and relegate a part of our people to inhumane and unjustified treatments through our active and passive condoning of covering. I do want us all to think about what MLK meant when he said, "Injustice anywhere is a threat to justice everywhere." I do want us to really grapple with the fact that if Huey Newton in the 1970s could see the connection, we should be able to see it in 2009. I wrote this because I worry about a people's ability to turn a blind eye to injustice in a world and nation that often has suggested the unjust is just the way it should be. For a people who have fought for existence and rights, it should only be natural to continue that fight with our brothers and sisters.

***this piece is designed to be a primer and conversation starter. there are many more things to say, but wanted to get the ball rolling and get some basic ideas out there***
Read More...

On America's Moral Barometers...

So, Plaxico Burress just got a 2-year jail sentence for carrying a licensed gun into a nightclub and shooting himself in the leg, but nobody else. Michael Vick just got reinstated to the NFL after serving 2 years in jail for his role in financing a dog-fighting racket. In both cases, lots of people have voiced outrage as to the supposed leniency in their cases. I'm not saying they are necessarily wrong (though I really think Burress' sentence is kind of crazy), nor am I condoning their actions...but do these people follow the news????


I mean, seriously, is Michael Vick the guy we need to go after? I get it, he played a part in something horrible, especially if you are a dog-lover (I'm indifferent, but can sympathize), but understand that the harm he inflicted, while obviously bad, was limited...and he paid his dues by going to jail and losing his money. Same will happen to Plax, whose football career is essentially over - 2 years in jail for a wide receiver at Burress' age means nobody will sign him when he's out. Barry Bonds, the home-run king, has essentially been blacklisted by Major League Baseball, and the players in general have come under fire for their use of steroids, but nobody is talking about the owners who looked the other way in the 1990s when juice-induced homers were filling the seats and their pockets. Michael Phelps, Olympic hero (and University of Michigan grad - go Blue!), attracted so much criticism for his admission that he had smoked marijuana in the past.

I'm not sure what the hell happened to America, but since when were sports athletes our moral barometers? Seriously. I'm not condoning any of the actions mentioned above, but give me a break. I'd say, at the very least, we should hold our leaders more accountable than the guys we watch throw spirals, right? I get the outrage some people felt when Vick was let back into the league, but, again, he actually paid for his crimes. How many of our leaders have done no such thing? How many people in far more important positions involved in far more serious matters have gotten away with murder? Literally? Yet, America directs more of its outrage at NFL stars doing dumb and horrible things than Kellogg Brown and Root (KBR - a former Halliburton subsidiary), who got some sweet contracts from the US government (and who says having friends in high positions, like Dick Cheney, et. al., doesn't pay?) in Iraq, have misused a lot of the money, and most importantly, may have done such a shoddy job on electrical wiring that that this work killed 16 US soldiers due to electrocution this past year. In some of the cases, the Pentagon already announced no criminal charges will be filed. Well, of course not. Paying a company $80 million to wire facilities in Iraq, and then have a number of US soldiers die because they were electrocuted in showers in those facilities, doesn't seem to be a serious matter at all. Totally not linked, you know, wiring and multiple electrocution deaths in showers. Now, if you really want to talk about morality, let me tell you about Michael Vick...

Speculation is that Burress got a pretty harsh sentence because Mayor Bloomberg wanted to make an example out of him. Okay. So, let me see if I got this right. You want to make an example out of somebody for doing something bad. In New York city. Um...do you know Wall Street is in the area? Because, while Plax is a fool for carrying a gun into a club, and he definitely could have potentially done a lot of harm, he actually only shot himself, whereas our "great" business minds on Wall Street ran amuck and broke our economy with their recklessness, causing a hell of a lot of real harm to countless Americans. What some of them did was totally criminal. So...lets throw the book at Plax instead!

How many laws did the Bush administration break? It seems like we're still getting stories every few weeks about something insane and criminal they did to this day. What are the consequences? None, basically, because they were only the leaders of our country. John Yoo teaches at Berkeley. Dick Cheney seems ready for his own prime time television show. Alberto Gonzalez still can't remember a damn thing and will be teaching political science courses (why, god, why?) at Texas Tech. George W. Bush is putting together a think tank (no, that's not a joke). None of them are in jail. None of them went to trial to go to jail. And I doubt any of them will. While this is killing some progressives across the country (and people in general around the world), the general mood in America is, we shouldn't go after these guys. Awesome. We've got bigger fish to fry. Athletes. Rappers. Not guys who lie to Congress in sworn testimony - he totally doesn't deserve to go to jail.

Over time, it seems like the people we should be holding up to higher moral and civic standards in our country are acting in absolutely appalling ways. And, most importantly, they're getting away with it. Rachel Maddow shouldn't be one of the only people reporting on "the Family" at the C St. House, for instance, an institution that includes Congressional leaders who use taxpayer money to learn about coercion from some of the worst dictators around. Why hasn't there been wider coverage of Bobby Jindal using taxpayer dollars to fly to churches all over Louisiana to give communities checks with his name on it that came from the Obama stimulus bill that Jindal so openly deplored? How about really leaning heavily on Governor Sanford for being completely out of touch with everyone while he went down to Argentina to visit his mistress? Forget the affair, a governor of the state can't just leave town (and country) without telling anyone. By the way, he used taxpayer dollars for several of those trips before, and lots of taxpayer dollars in other inappropriate ways. Maybe he will be impeached (there seems to be some movement towards it), but political leaders sure seem to get away with a lot, so I'll believe he's held accountable when I see it. Now, if he was Michael Phelps, different story...

Charles Barkley famously quipped years ago that he wasn't a role model. Well, I think whether they want to be or not, athletes (and lots of other people in the public limelight, like musicians, actors, writers, etc.) have no choice but to be role models. That means acting responsibly, and paying the price when they don't. Oftentimes, they do get away with a lot. But sometimes they don't. On the other hand, there is no doubt our political, civic, and business leaders should be role models, far more than athletes, etc.. They are engaged in far more serious issues than entertaining us. Somewhere along the line, though, we shifted our moral barometers. Guys like Dick Cheney became untouchable, but guys like Barry Bonds became lightning rods for debates about "what was wrong in America." Well, I think the fact that the discussion has moved to that level might begin to tell us what is wrong in America.

Note: I realize I went after a lot of Republicans here...that's just because its easier, given the insane number of ridiculous scandals they've been involved with, but please don't think my point here is a partisan one. It's about the insanity of holding athletes, entertainers, etc., up to be the moral barometers of this country, while giving our actual leaders, in politics, in business, in civic life, a much easier pass.
Read More...

Losing Wars We Already Won (Part I): Torture vs. WWII

Over the past century, our nation has triumphed over two sets of aspiring global tyrants: the axis powers in WWII, and the Soviet Union in the Cold War. Our victories over these foes were, in each case, world-historical in scale and importance. Yet within less than a century, we now flirt with losing the principles those successes established.

First, our recent record on torture, and more recent failure to prosecute all officials involved in enabling it, undermines the legacy of international human rights we established after the Second World War. Second, after vindicating freedom, liberty, and individual privacy in the Cold War, we now dutifully submit to a surveillance state more intrusive than any that has ever existed in human history.

In other words, Bush and Cheney succeeded in doing what neither Nazi Germany nor the Soviet Union could: eviscerate American values and undermine our grandest foreign policy accomplishments since the turn of the 20th century. And while President Obama's aim to “look forward, not backward,” may resemble a thoughtful political compromise, it is an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.

WWII and Human Rights...

The allied powers fought the Second World War largely in the name of human rights, which we enshrined in its wake with a series of international institutions. The United Nations was perhaps the most ambitious example; others include various treaties setting baseline standards for (among many other things) the treatment of detainees during wartime.

International institutions to ensure collective security represented a major leap forward for humankind, akin to the Apollo moon landing 20 years later. Not since the Treaty of Westphalia in 1648 had international relations undergone so fundamental a transformation. A core tenet of the post-WWII era, established by the Nuremberg Trials of former Nazi officials, held that individuals bear criminal liability for violating international human rights regardless of what domestic laws my authorize their conduct. The “following orders” defense was soundly rejected and officials up and down the chain of command faced justice for war crimes.

We Americans have been called upon to apply these principles to our own leaders only 60 years later. But our willingness to preserve our earlier achievements has proven lacking.

...vs. Torture with Impunity

Despite public pressure from voices across the political spectrum, the Obama administration continues to sweep torture under the rug. And while the Holder Justice Department has demonstrated welcome independence by recently announcing a limited investigation led by a special prosecutor, it could be worse than none at all if senior officials enjoy effective immunity.

First, investigating only junior level scapegoats would set a legal precedent that decisionmakers can violate human rights with impunity. Second, overlooking senior officials who set torture policies would confer artificial legitimacy on the range of offenses that were officially approved, despite their international illegality. While the current cover-up threatens the rule of law and real accountability is necessary, scapegoating could be even worse than doing nothing.

Failing to follow the key Nuremberg precedents--that “following orders” cannot justify war crimes and that liability transcends the chain of command--weakens them in the future. Mere omission vindicates lawlessness: sitting on our hands or prosecuting only some individuals involved will undermine the international legal framework we erected after defeating the Axis powers.

Immunity for any officials involved in torture will lead to an unfortunately predictable result: a global race to the bottom in human rights standards. Every two-bit despot the world over will claim a license to torture, maim and perhaps even kill at will.

Rather than stand accountable to the international community, any accused torturer need merely cite the Holder precedents (allowing perceived necessity to justify war crimes and resurrecting the lame “following orders” defense) to escape justice for whatever manner of abuse they might concoct. Even today, torture by U.S. officials reportedly continues at Guantanamo Bay, where Immediate Reaction Forces have killed at least one detainee while administering brutal force feedings lacking even sanitation, let alone anesthesia.

Moreover, by eroding a principle so fundamental as the prohibition on torture, underinclusive prosecution renders more palatable the full range of other international law violations. If even torture doesn't justify prosecuting everyone involved, why would, for instance, poaching endangered species or violating the ban on ozone-producing chlorofluorocarbons (CFCs)?

When attempting to justify their desire to sweep torture under the rug, apologists argue from both sides of their mouths. Accepting the “following orders” defense, they suggest that investigators ignore wrongdoing by interrogators who committed torture, yet conversely demand that senior officials who issued those orders should also escape investigation (despite their even greater culpability). Apologists wish to avoid “chilling current intelligence operations,” but given the dismal performance of our intelligence agencies, a little transparency and accountability is long overdue.

Examining other examples of prosecution offers even more reasons to pursue a robust and thorough--rather than artificially limited--investigation. Unless expanded from its initial contours, prosecutor John Durham's investigation will allow the architects of torture policy to remain free, while only other country's torturers face justice (or for that matter, while non-violent offenders in America receive prison sentences for less severe crimes). The resulting contrast and lack of proportionality could erode the legitimacy of both the international legal regime generally, and our own criminal justice system, in one fell swoop. Few discrete decisions--and even fewer omissions--could do so much damage so quickly to such vital institutions.

Our failure to apply the Nuremberg precedents threatens to sacrifice a civilizational advance as major as the printing press. Perhaps we should be less surprised, however, given that U.S. torture policy boasts a long, unapologetic history across a disappointing number of contexts. The result will ultimately turn on how much (and how sincerely) we honor the sacrifice of veterans who died in WWII--and whether everyday Americans committed to the legacy of human rights they established see fit to raise our voices.

This article was originally posted on Huffington Post.

Read More...

Health Care Reform: Correcting the misinformation

For the past three years I’ve been doing health policy research with the hope of helping to inform our elected officials about both the issues in our health care system and potential solutions. With the all of the news coverage of townhalls, speeches and protests regarding health reform, it has occurred to me that many people are horribly misinformed about many of aspects of our current health care system and the reforms being debated. I am always open to discussing these and other potential policies, so let me know if you want to chat. But before a more in depth conversation, I think there are some key aspects of the debate that need to be addressed.

What is health care reform?

There are many different aspects to health care reform, which include reforming the way we use the doctor, how the doctor diagnoses and treats us, and how it is all paid for. The items being discussed in the Senate and House are less about reforming health care (the way we use the doctor and how he/she diagnoses and treats us) and more about reforming the health insurance industry and market (how is the doctor paid for the visit and how do we pay for insurance).

Why is health care reform even needed?

There are about 50 million Americans who don’t have health insurance and thus don’t have the ability to go to the doctor like you and I do. They are unable to make an appointment with a regular private physician and often either delay care or end up in the emergency room to receive care which could have easily been done by a regular doctor. This is important not just because I believe that everyone should have access to health care, but also because the emergency room costs more than going to visit a doctor in his or her office. These costs, if they are not covered by insurance or the government, are passed on to the rest of us in the form of higher health care costs.

While the costs of health care are high for each of us, they are even higher for the government. Medicare, which is the government run health insurance program for those over 65 years old (and certain other key groups), is a huge cost to our federal government. Medicare is one on the fastest growing costs to the federal government. We need to do something now to lower health care costs to ensure that Medicare is available for all of us when we retire. The longer we wait the higher health care costs will become.

What are the goals of health care reform?

The main goals are to insure those who currently lack health insurance and to reduce overall health care costs.

So what does a public health insurance option do?

The public health insurance option is a way to reign in health care costs by creating competition with the private health insurance companies. This will force the private health insurance companies to have competitive pricing and benefits for all of us, because if they don’t people will choose to purchase health insurance through the government.

This public health insurance option is a government takeover of health care, right? It means that we are going to have a system like the UK or Canada, right?

Absolutely not. Think of the public health insurance option as a Medicare type program that the rest of us can buy into, if we want to. So if I am 61 and want to retire, but am too young for Medicare but can’t buy health insurance from the private market, I’ll be able to choose to purchase it from the government. It does not mean that private health insurance companies are going to go away or out of business. Trust me, they are doing just fine. In fact, the CEO of United Health Group made more than $125 million last year. Not to mention a recent report by the nonpartisan Congressional Budget Office found that adding a public option will not force the private insurance companies out of business. For those of us with health insurance that we are happy with, we likely won’t see any changes, expect lower prices in the future.

I heard that the health insurance reforms will allow a bureaucrat decide who gets health care and who doesn’t, is this true?

No, that is exactly what these reforms are trying to stop. There are thousands of us, each day who receive a letter from the insurance company saying that the treatment or health care that was provided will not be covered and we are not required to pay tens of thousands of dollars for the care we received or our loved ones received. Not to mention, our doctors currently will only provide a treatment if they know it will be paid for by the insurance. These are examples of a bureaucrat between you and your doctor making treatment decisions. The government is trying to remove that bureaucrat with these reforms. Currently, health insurance companies can drop coverage when you get sick (after paying premiums for years) because of some undisclosed ailment you had when you signed up. The proposals being debated in the House and Senate are trying to stop this practice and trying to ensure that we all receive the health care that we need.

There have been several rumors about death panels and euthanasia in the recent days. These are completely false. They stem from an inclusion in one of the proposed bills stating that doctors can be reimbursed by Medicare for having discussions with their patients about living wills and other end of life decisions. So if you are enrolled in Medicare and you want to talk to your doctor about those decisions and seek his or her insight into the matters, the doctor will receive payment. This simply creates a financial incentive for doctors to encourage their patients to create living wills and have end of life conversations with our families. The government will not place a value on people’s lives and grant care accordingly.

Are these health care bills going to fix everything?

Unfortunately, no. The health care system in not an efficient system. Ultimately, we need to examine the way we reimburse doctors to ensure we are reimbursing quality and not simply the quantity of services provided. We need to provide financial incentives for doctors that provide high quality care at a lower cost, like the Mayo Clinic in Minnesota does. They provide amazing health care at a fraction of the cost of some doctors and hospitals around the country. In the United States we are paying about twice as much for health care than any other country in the world but receive far worse outcomes than most developed nations. This reform is not going to fix everything, but it is an important step in moving towards lower costs and higher quality care.

As always, feel free to spread the word.

Read More...

Lies, Damn Lies, and the Health Reform Debate: Hello Insanity!

I personally would have preferred a "hello, Cleveland!", but alas, it is not to be. The health care debate has been absolutely absurd, our leaders in Washington have been absolutely moronic at times discussing it, and the media hasn't really done a great job reporting some basic facts about what is going on - though I give some of them some credit, because their showing the ignorance and straight-up gangsta behavior by people at these town hall meetings is illustrating just how looney some of these folks are. Anyway, we here at the "Spoon" decided to do a little PSA of sorts on health care reform. We hope to have a more detailed analysis up soon, but here's a quick read that we hope will be informative. (Note: this was supposed to be a quick-read piece, but damn it all, I couldn't stop writing!)

First of all, I want to address the town hall meetings and "widespread" public dissent about President Obama's health care reform. #1, a lot of these people that are disrupting these meetings are doing so on the bill of the health insurance industry. So, that tells you something. Rachel Maddow did a nice piece detailing the connections and ties behind this nonsense the other night. Straight-up Hessians, to some degree. #2, those who aren't are saying some of the most incredible things I've heard. So, even if they're actually angrily opposed to reform (as opposed to angry because a paycheck from the insurance industry tells them to be so), they have no clue what they're talking about. That's kind of the media's fault - I realize they're sort of helping by playing these incredibly ignorant comments, but maybe they could spend more time providing basic facts about parameters of the debate on a constat basis to help. "The government needs to keep its hands off my Medicare" is priceless (since Medicare is a government-run program), along with the GOP talking point that health care reform will include a provision that will essentially force euthanasia on seniors, another ridiculous statement. Craaaa-zeee. So, yeah, the "widespread" dissent is largely either being paid for, or is informed by ignorance. Oh, and while I am happy to see public discourse and dissent, "paid for by" and ignorant dissent is not good, particularly when it gets dangerous, especially in settings where the public is actually allowed to participate, as opposed to other boisterous protests where the opposition is loud particularly because it is not ever allowed anywhere near the discussion. A fight broke out at one of the town hall meetings in Tampa where cops had to calm things down, a Texas Democrat was shouted down by right-wingers who didn't even live in his district, a Maryland congressman had an effigy of him hung in opposition to reform (following the loud cheers Rep. Todd Akin received when he joked about Democrats getting lynched at these town hall meetings), and Rep. Brad Miller from North Carolina cancelled his town hall meetings after his office received a death threat. These are troubling signs, and very emblematic of where this debate has gone. Former Right-to Lifer Frank Schaeffer offers us some chilling words on what the reform debate has become.

Second, let's talk about the government role in all of this. Look, the "bureaucrat" in the system that is going to make decisions about your care isn't the government! We already have bureaucrats in the system, except they work for the insurance companies, are often called actuaries, are not health care or medical experts, and make decisions about what is and isn't covered. Again, private insurance...bureaucrat. The public option is the government part of the plan that many on the right are angry about, arguing its socialist and will destroy the private insurance industry. I've already written a little about that in an earlier post. Well, okay, so what is the public option? Its still a work in progress, but basically, it will function as a national health exchange of sorts, essentially being a plan organized and facilitated by the government, not necessarily run by them in the classic sense of the word. The various bills on the Hill right now basically put regulations on the public plan that will require the plan to meet the same benefits and cost requirements of private insurance companies. Obviously, there will be some differences, but no government bureaucrat will sit at a desk and decide what is covered.

Plus, this isn't a single payer system AT ALL! The government is not taking over health care IN ANY REAL WAY with this plan. I can't emphasize the fact that this point needs to be made clear every single time someone raises it. Again, like I said before, the public option involves more government involvement, certainly, but its primarily setting up particular regulations on the type and scope of coverage that can be offered, which is to be modeled on regulations for private insurance. There will most likely be some level of sliding scale subsidies for coverage, based on family income. So, yes, the government will be more involved. But this in no way is even remotely equivalent with government-run health care. And, by the way, I'm not sure whether government-run health care isn't better than private insurance. Medicaid, for instance, covers a substantially sicker population at relatively reasonable per-person rates. Yes, overall Medicaid spending certainly has increased over the past handful of years, but that is being driven primarily by more individuals being covered by Medicaid...largely because employer-based care has eroded. That is to say, public programs like Medicaid and SCHIP have come through to help prevent a larger increase in the uninsured than we've actually seen. Research shows that, when adjusting for health conditions and socioeconomic status, Medicaid is actually less expensive than private insurance. That is to say, if Medicaid patients were on private insurance, getting the same care, their care would cost quite a bit more. Conversely, if people on private insurance were on Medicaid getting the same care, their care would cost less. Again, the reform being postulated isn't the government-run socialist medicine "nightmare" that people are saying it is in any way, shape, or form, but if it was, that might actually not be a bad thing.

Third, about rationing...look, there is a finite supply of money and services, so care is going to probably be rationed to some extent. This is a very hard thing to deal with when the person it affects is someone you love, but understand that we already ration care. Of course, our rationing is primarily based on class. If you have money, you usually get a distinctly different type of health care than if you're not rich. So, the 55 year-old high executive at one of the major banks, who totally blew it and should have been fired on the spot, not only keeps his job, gets bailed out by the government, gets a ridiculous bonus, this person also has great health insurance coverage for the ulcers they got when they thought they were going to be fired because they completely screwed up. A hard-working twenty-something employee at said bank, who did everything right, was a model worker, got laid off, lost a lot due to all types of investments gone awry due to the economic problems partly caused by their own executives, and is now uninsured and is now facing some serious financial difficulties due to a few medical bills. So, what we have is a highly immoral type of rationing of care. I want to have a moral rationing of care, where things like medical conditions and projected health outcomes help determine who gets what. Its far more efficient and far more humane. Again, it makes it tough for those whose loved ones are on the losing end, but at least there is a method to the madness, and we're ultimately helping more people with our difficult calls. That is not the case at all right now.

Fourth, our health care system is not the best in the world. It is, in fact, a middle-of-the-pack health care system, at best. The WHO World Health Report had us at #37 in overall system performance, and #72 in overall health. Not exactly numbers to write home about. A more recent study compared us to six other major nations, and we rank last in pretty much every category. We also ranked last among 19 countries in a survey looking at preventable deaths. We do pretty poor on both issues of access to care and quality of care, and are going in the wrong direction. But, we are number 1 in one thing...spending. This tells you one thing...we are doing a terribly inefficient job. Tons of spending, mediocre (at best) results. Any argument that we need to stay away from reform because our system is already the best in the world...is crazy as hell.

Fifth (or fif...damn, do I miss Chappelle's Show), about choice. The proposed plan does not scrap the current system (which I think it should, but that's another story). If people feel their current employer-based insurance or whatever other form of health care coverage they have is good, they can stay on it. Nobody is being mandated to go onto government-facilitated (that is much more accurate than government-run) health care. Also...I'm sorry, choice is nice, but real coverage that is affordable, period, should be the main concern. I hate this line of arguing...I won't be able to see my normal doctor in this plan, blah blah blah. Yes, its valid to argue about that, but when you're looking at comparing that against not having real (i.e. no smoke and mirrors high-deductible plans, or other types of coverage that don't pay for much in the end, which, ultimately lead to patients foregoing necessary care) and affordable health care, I go with the latter as the most important point every time. And...again...if you like your current insurance, you can stay there!

Sixth, about costs and the problem of health care spending....we need to curtail our health care spending, no doubt about it. It will take up a greater and greater portion of our budget, but the problem with the system as it is is that we're not really going to get much for that spending. There are so many inefficiencies present - we need to alter incentives, financing mechanisms, etc., in order to really start seeing a true deceleration of costs, as opposed to just cutting back coverage (which, I'm sure the insurance industry would have no problem doing - I linked to it in my previous post, but please check out Wendell Potter's damning testimony against the insurance industry, which has not gotten nearly as much media play as it should have...Potter was a whistleblower from CIGNA who really spilled some beans on just what our insurance industry has been doing - here is a ton of info about him, his testimony, and a great interview he did with Bill Moyers. Because so many patients are underinsured or uninsured, health care providers often have to game the system to ensure that they don't lose money. This means they might perform a variety of tests that aren't quite necessary, but are expensive, for patients with good health insurance, in order to compensate for the care they provide to patients who don't have insurance, or whose insurance doesn't really cover much of anything. The incentives of the system, in general, are to do as many tests as possible, too. I'm not saying this is what providers necessarily do, but the way they are compensated, as well as how the system is financed overall, often doesn't help this issue. A major step in the right direction would be to alter the mechanisms by trying to lower the number of uninsured and underinsured. This would likely lead to a change in efforts to game the system. The public option, some other type of hybrid system that the Senate Finance Committee is looking at as an alternative to the public option, and expanded public coverage for the poor and low-income, would be ways to address this issue. Additionally, we do need to reconsider how we finance care overall. A real emphasis on prevention, with some money behind it, could help. But, keeping the disjointed system as-is, or simply providing "more choice" through tax credits, etc., will do nothing to lower costs. The tax credit argument has serious flaws in it, which research has clearly illustrated. We need a real change in the system in order to stave off major financial problems down the road. Yes, the bill isn't low - about $100-150 billion/year, or around $1 trillion over 10 years. This, of course, doesn't exclude cost savings that will occur from reform. Yes, it's still going to cost us money, but under 1% of a national income that grows at around 2.5% each year. That's not cheap, but that's not going to destroy the country's economy.

Finally, this is a point I abstractly discussed in my previous post, and intimated above, but here it is more bluntly: is an increased government role in health care a bad thing? Seriously, think about it. Again, the point of clarification (in case I didn't make it obvious enough yet), Obama's plan will NOT create government-run health care in any real sense of the word. According to the CBO report, the public option will NOT drive insurance companies out of business. However...maybe it should. Spend a few minutes going through the info Potter shells out in the link above. This is what private insurance is. Innovation? Hardly. Better prices and better services? No way in hell. I'd argue there is both correlation AND causation between our highly inefficient health care system and the private insurance industry. Look, I have no problem with profits. I'm generally cool with capitalism, in concept (not what we call capitalism, which is borderline socialism for corporations, in America - again, prior post!). But, here's the thing. These private insurance companies have clearly sacrificed the health of Americans to make money. I mean...that's the point, right? Its not exactly easy to regulate a lot of private insurance, due to ERISA preemption. For instance, many state efforts to require Wal-Mart to pay more of the costs of its health insurance for its employees (having done some research on this, I'll say that Wal-Mart health insurance plans were very expensive, which, combined with low pay, resulted in many employees not only not being able to afford insurance coverage, but then enrolling in Medicaid - California had a big fight over this, as did Maryland, and a bunch of other states) were attempted, but defeated due to ERISA preemption - its not easy to mess with employer-sponsored plans.

So, here's the thing...when we are dealing with people's lives, which we literally are with health insurance, is this really an instance where the private sector is appropriate if it is not easily regulated, and has not exactly been doing a good job up to this point? I mean, its one thing when we're talking about televisions, stereos, iPods, etc. It is entirely different when we are talking about lives. I'm not saying the private sector can't have a role in health care. I'm not even saying it can't have the major role. I'm saying that the private sector model of profit maximization is highly problematic in this area, because lives are at stake in a very direct way. Given the track record, I don't quite get why people are so dead-set on ensuring the health care industry survives intact in this debate. We can be a capitalist society (it would help if we actually were one, of course!) without every single thing being pure free market. Health care is an area where I'm not sure a free market is ideal. It could work, if we could get some real regulations in place that required certain conditions, such as ensuring people had access to real insurance at affordable prices that didn't discriminate against pre-existing conditions (or maybe even create a national high risk pool for people with pre-existing conditions). Let private insurance companies bid on big regional or national contracts for insurance, let them run things their way so long as they comply with a reasonable set of federal regulations, let them innovate and compete...they'll almost certainly still do quite well, simply because you're talking about an incredible number of people they get to enroll in their plans. But, if the industry is left as it is, where we don't have any real innovation or competition, but much more of an oligopoly, where it is hard to really regulate plans to ensure they are providing real coverage at reasonable rates and not discriminating, and where they profit more from cutting people off from coverage when they need it the most (this isn't some made-up highly-cynical scenario, this is what continuously happens)...why is this something to defend at all? Look, it is not the idea of private insurance, or the idea of a free market, that is problematic - this can certainly work if implemented correctly. However, what we have right now absolutely isn't working, so I don't understand why critics use terms like capitalism and the free market as abstract ideas that need to be defended against increased government involvement, when it is painfully obvious that the private insurance system we have in place has done a terrible job. We need a real debate about whether a real free market, or increased government involvement, in health care is the better option. This would be healthy and helpful to all. What we don't need is this nonsensical discussion where the government involvement is linked to the Soviet Union and fascism, and the current system we have is tied to Adam Smith. Neither is true.

And in the end, we get the insane debate that has happened thus far on health care reform. We're talking about nonsensical stuff, most of it based on pure lies and deception. We should be discussing far-more important issues, like what kind of delivery system works best, how do we best incentivize the incorporation of health IT and quality of care standards, what are the optimal levels of cost-sharing to ensure appropriate use of care, what are the best pooling options to maximize economies of scale, whether we can we find a way to regulate private insurance companies in a manner to ensure that they stay in check while maximizing their flexibility to capture the benefits of true capitalism in terms of competition...these are all really important discussions to be had by supporters and critics of the type of health care reform being proposed right now. There's plenty of factually-based dissent to be heard from all sides. I don't think Obama is going far enough, whereas some old-school Republicans (do they exist anymore?) might say we need to keep the government out, but stop protecting the insurance industry and make the system truly a free market. These are real and valuable discussions to be had. But, what do we get? Discussions about euthanasia, unfounded fears of a fall into autocratic socialism, and, of course, Senator Grassley talking about dragons and health care like a lunatic. I'd say shoot me now, but I might not be able to afford the co-pay for the hospitalization.

Read More...

Swallowing the Medicine to Cure What Ails Us

Some time ago a friend of mine sent me this ABC News article about a study on men and condom use, or rather the preference to not use condoms. Given that even the most dimwitted of 7th graders knows why guys would prefer not to use condoms, this study sounded exactly like the type of thing that the Bobby Jindals of the world would attack as wasteful spending. How, I wondered, could we keep with the theme proposed by the Kinsey Institute researchers and make it relevant enough to folks on the right that they wouldn’t deem the funding to be of questionable import? The answer was quite simple.

Instead of the National Institutes of Health funding the Kinsey Institute to study condom usage, they could fund a joint project between Kinsey and the National Institute of Mental Health to study the psychopathology inherent in the inability of the religious right/family values crowd, in particular, and the Republican/conservative moment, in general to properly grasp the concept of and actually engage in tea-bagging, maintain marital fidelity, or to find their homosexual tendencies to be just as healthy as their heterosexual urges (except when they're soliciting strange men in airport bathrooms, or paying prostitutes, or acquiring Argentine mistresses those are decidedly unhealthy activities) when the first two are so central to their core beliefs and the third seems to be a regular predilection. Such a study could have wide ranging implications for our political system and even the current health care reform debate. Imagine a Republican Party transformed. Imagine them no longer being the party of “No,” but a party that could say “Yes!” Imagine, this study leading to others that eventually leads to a proper categorization and diagnosis of the illness that is conservatism. Imagine finding the genetic markers that cause this illness and being able to stop it before it fully expresses itself. Imagine, the health insurance industry no longer being able to discriminate against them for having this pre-existing condition and finally being able to get the coverage they deserve. Wouldn’t that make this a better more equitable country? Isn’t that change we can believe in? I guarantee that no less a paragon of the right than John Boehner would stand up and say “Yes, We Can!” if the Democratic caucus added such a provision to the current health reform legislation. At least until it came time to fund a study to cure what ails Democrats.

Read More...

American "Capitalism" (it 'ain't quite capitalism) and the Health Care Debate

The health care debate (more on that soon) got me thinking a little about the whole capitalism/socialism thing. And my conclusion is...I wish I was a full-time comedian (no, I'm not even a part-time comedian, but I should be - you know I got jokes!), because this debate has so much ridiculous material. The central thrust is that Obama and the advocates of health care reform, or I should say, reform of his kind, are threatening to take the U.S. health care system and paint it socialist. In general, the Know-Nothings (what I call the Republicans who pretty openly shun knowledge, which, sadly, is quite a few of them) use the socialist label pretty often anytime there is any sort of discussion about corporate responsibility, progressive tax reform, etc. Well, their argument is full of holes, anyway (not surprising from know-nothings), but they seem to gloss over a major issue - America has had a lot of socialism in it, and I argue, not in a good way, either.

Okay, lets try to keep this simple, and not turn into a long-ranging discussion on political economy, etc. (which I couldn't do, anyway). A basic selling point of capitalism is that a free market pushes innovation at a greater pace than a controlled market. By making firms compete against each other, you not only theoretically get better products, you also get lower prices - everybody wants to win in the marketplace, so they make better products than the next guy, and then sell it for less. On a theoretical level, I'll say that I personally tend to favor the incentives of a free market.

So, you're thinking to yourself, this is kind of what America is based on, right? Isn't this system the basis of our economy? Isn't this one of the main points of contrast between us and the Soviet Union in the Cold War? Well...sort of. See, the problem with all of this is, we're not exactly a capitalistic society. Not for the big boys, at least. And the health care debate reminded me of that.

What am I talking about here? Simple...if America was truly a capitalistic society, it would not protect its large firms, which are among the largest and most powerful in the world, anyway. We do not have infant industries in any stretch of the imagination. The US, if truly adherent to capitalism, would limit tariffs. We would not shield these companies in any way - the whole point is to use global competition to create better products, right? Well, that's where we fall short on a lot of levels. We do indeed protect a lot of our industries. Not all, of course, but there are quite a few corporate tax loopholes, corporate welfare, and other forms of financial protection for some of our biggest firms.

So, when Bill Maher laments that America doesn't make anything anymore, there's a reason for that...we cover our industries collective behinds to a point that they don't have to compete so hard in the global economy. This hurts innovation, competitive prices, etc. Hence, we no longer lead in producing "stuff". And some of this has other real consequences, too. For instance, our protection of the textile industry here really hurts Pakistan, which can't really penetrate US markets because of this fact. Now, if Pakistani textiles could get in, they would do pretty well and generate some wealth for Pakistan, no small thing considering the major economic issues the country is experiencing, which are undoubtedly playing a big role in larger security issues. This would also push our own textile industry to get their act together as well.

Now, on the other hand, when it comes to a massive comparative advantage, we are pure capitalism, baby! Iraq is the most obvious example of this, and we see this type of thing when US aid gets distributed to other countries. Part of the condition is to open their markets to the US/buy US products with the aid money. What happened in Iraq was one of the more disgusting examples of this. Iraq, post-war, was obviously a mess (and it still is). In terms of its economy, what it really needed was a more socialistic approach. There was no way its industries could compete with foreign firms. Of course, this kind of approach didn't fly with US capitalism promotion abroad. Bremer wrote in laws that opened Iraq for foreign business early in the occupation, and not surprisingly, foreign firms came in and wiped the floor with native industries. Hooray capitalism! This kind of thing has happened quite frequently, though maybe not to the degree of the CPA in Iraq. Andrew Bacevich, a noted military and US foreign policy historian, talked about the concept a bit, referring to it as economic imperialism, something a lot of people missed during the Clinton years. We made many across the world "liberalize" their economies, which isn't bad at all, but we often insisted that they open up their markets fully, as opposed to nurturing some of their own native industries, which ended up being a major win for us. I realize this kind of goes in between imperialism and foreign capitalism, but I'm just trying to illustrate the point of open markets here.

This has some similarities to the economics of European colonialism. It's not the same, but there's a lot of overlap. Europe, coming off its Industrial Revolution, needed markets to sell these goods in, as well as markets to buy cheap raw materials. Hello, Middle East and Africa. European powers came in, made deals with rulers to open the markets, and did a killing. But wait...didn't I say earlier that global competition is necessary to improve industries? If so, doesn't that make all this foreign capitalism okay? Well...not exactly. When I talk about keeping open markets, etc., I'm talking about cases where the countries have somewhat similar economies. So, the domestic country has a chance to compete with the foreign one. This is not quite so applicable for countries with true infant industries, which need time to grow to a point where they can compete with global firms. The US, for instance, obviously has a huge economy, and should be able to try and compete with European, Russian, and Gulf companies, whereas a war-torn Iraq, which had been depleted by years of sanctions, had no chance in hell of competing with US firms.

So, yes, we are all about capitalism when we have a massive advantage, but not quite so much when we don't have a massive advantage. That's not really pure capitalism, you know. That's more like capitalism for our companies when its convenient, and kind-of-socialism when it's not. Which is why the cry of socialism by the Know-Nothings cracks me up. It's like, morons, otherwise known as members of Congress, we're not exactly a capitalist society! What we have, I'd argue, is the worst of both worlds. On the one hand, we have an exploitative brand of capitalism abroad that is unlikely to win us many allies, and could come back and bite us pretty bad one day. Nothing says revolutionary overthrow of a regime like massive economic strife caused by domestic industries killed by large foreign multinational corporations! Now that's what I call a bumper sticker! At home, we allow some of our industries to become more and more noncompetitive in the global economy by sheltering them with socialism...this is the place where capitalism is the most important thing, of course. And, where socialism would actually help, like providing a social safety net for the market failures that inevitably occur in capitalism (namely, the poor), we back away from it like it was the plague.

I'm not necessarily advocating either system here - like I intimated earlier, I think the incentives of capitalism are good, but I understand that it will ultimately fail when it comes to the poor and marginalized, so I think we need a more socialistic response there. All I'm trying to point out here is the hypocrisy in the use of these terms, and particularly of socialism by people who support its worst aspects for our own firms in many cases. I understand that great powers have incentives to exploit the economic system, which is in theory what we're doing, but when you shelter your own corporations, not making them earn their keep globally, I think it will come back and bite you in the long-run. And, I mean, look at Britain in the 19th century. The colonial aspect is awful, obviously, but in terms of their economy, unlike other European powers, they did actually keep an open market at home, irrespective of whether other countries did or did not reciprocate. I'd argue this played no small role in their becoming the dominant power of the time - their industries were forced to compete as opposed to being sheltered. Of course, brutal British colonialism abroad helped, too, but at least domestically, I think the British empire got the capitalism/socialism thing better than others.

The health care debate made me think about all of this because some are going after the public option with a cry that it will kill insurance companies - even though a recent report from the Congressional Budget Office (CBO) said it would do no such thing. (For the entire report, click here). Hmmm....health insurance companies have been running inefficiently for years in the US. So providing a public option plan that might run better due to (presumably) lower administrative costs is bad - how? I mean, isn't that the point of capitalism? If you have a company that has been doing a crappy job, you want a company that is doing a better job to come in for a) production purposes; and b) to get the crappy company in line or out of the game. So, lets be very clear. The argument to protect the "poor insurance companies" at the behest of millions of Americans is, in a way, an argument for socialism.

Now, I realize a public option isn't exactly the same as another health insurance company coming in and competing, but the private health system is, in some ways, an oligopoly, and I can't fathom private insurance companies becoming more efficient without competition from a plan that limits administrative costs, return on equity for shareholders, and advertising. I agree with Howard Dean in that I don't really give a damn as to whether private insurance companies get hurt by a public option, because they are doing a terrible job. We spend more on health care than any nation, but rank, depending on what evaluation tool you're looking at, as somewhere between #30 and #60 in terms of how good our health care actually is. A major reason is the private insurance companies. The most efficient private health insurance companies spend over 20% of costs on administration...you can expect that number to be halved by a public option plan, if not more. They keep about half of your premium dollars for themselves, and sometimes deny payment on claims to make more profits. They could do business better, but have no incentive to do so, since they profit from taking additional money from their customers while not paying themselves. I mean, did you pay attention to Wendell Potter's testimony to Congress in late June? Dear god. (Click here for a transcript of the testimony). If you think the insurance companies are reforming without competition, albeit from the government to keep them honest, I have some prime real estate I'd like to sell you. You're not getting a well-functioning health care system with private health companies - we've seen the results, and they've been pretty awful. Hence, the need for some competition, albeit not exactly a private firm.

So, like I said, the argument to protect the insurance companies that have done such a (sarcasm alert) wonderful job up to this point amounts to an argument to protect inefficient and, ultimately, ineffective companies, which is pretty similar to other arguments to protect our "threatened" corporations, which smells more like socialism than capitalism. It's like pulling for King Kong Bundy as the "little guy" in a fight against Al Bundy. And...here's the best part...at the same time, Obama's health care reform itself is also socialism (it's not, but whatever) that must be defeated at all costs before it destroys America. Wow. So, basically, they're trying to win on both fronts. See, I told you, great stand-up material.

We hope to have more on the actual meat of health care reform up soon on the blog

Note: I want to clarify something here - the point of this point is not to debate whether capitalism or socialism are better systems, or what precisely comprises each. Rather, I want to highlight the problematic and hypocritical nature in which these terms are being used. Like I point out, America is not exactly the bastion of the free market, so I find the socialist argument against a greater US government role (even though it isn't remotely as big as many are making it out to be) in health care to be a ridiculous argument. The government is plenty involved in plenty of our big businesses in ways that I posit may not be all that good. In health care, the government needs to be more involved, given the many problems of private health insurance. Paul Krugman and I are clearly thinking on the same wavelength, as he published a pretty good article about this today. He must have read our blog first...ha. Anyway...so that it's clear, this isn't so much a detailed analysis of capitalism versus socialism as it is an exercise to illustrate the insanity of the way the health care debate is regressing thus far.
Read More...

The MJ Coverage: 1) Make it Stop, 2) What It Could and Should Have Been Like

So, we at "the Spoon" (or lack thereof) have been good about not posting anything related to the death of Michael Jackson. Well...we want some more hits on the site, so we're changing our minds! No, I'm just kidding. But seriously, tell your friends!

Well, while the media frenzy has been quite preposterous over the past month (yes, they are still covering this story. Really. Go to a TV and put on one of the "news" [because there really should be quotes there] channels. Odds are, there will be an MJ-related story on within 10 minutes), its not to say there isn't a sort of legitimate reason for it. Not for quite the scale, and certainly not for the angle of the coverage, but it is not surprising, and maybe not even illegitimate, to have so much focus on Jackson. Incidentally, you absolutely should read the best piece about Michael Jackson's death on the internet, which is written by Spoon blogger [naturally] Dumi, on his own blog.

The media had an opportunity to do some really interesting work with this story. They failed. Shocking. Instead of making it a test in US journalistic lunacy, as best exhibited by the scrolling info and breaking news stories ("MJ's body moving in a car at 12 mph", "See the inside of Neverland next", "MJ to be buried", "Exclusive interview with Judge Ito on MJ", "News on North Korea at the end of the hour"), they could have: a) scaled the psychotic types of coverage down significantly, and b) used the time to reflect on a few big topics related to the death that had more meat than, I don't know, showing us the same clip of him holding his son over the balcony 20,000 times. Specifically, there were, in my opinion, three major stories here that we could have seen some thoughtful analysis on: prescription drugs, America's addiction to celebrity, and the ability for a musician to be more than a musician. The last one is what I'm most interested in addressing here, but let me touch on the first two briefly.

There was an opportunity to talk about the issue of prescription drug abuse in America, being that Michael Jackson apparently took more pills than some clinics. Not to not be cruel about some of this - I have sleeping issues myself, though I just write blog posts at 2 am instead of popping tablets, etc. - but its pretty freaking obvious the man was taking way too much stuff. And...was it him, or was he being enabled by doctors, some of whom may have ties to pharmaceutical companies? Could we discuss this issue in general? Not just doctors, but hospitals, clinics, etc. Is this relationship problematic? In some cases, maybe not. But yeah, could have been important to discuss. Also, how about the hypocrisy of drugs in America? So, I guess marijuana is a horrible, harmful, immoral drug, you should go to jail if you're in possession of it, and we should outlaw its medicinal usage, even when that usage could literally save somebody's life (because chemotherapy is not at all problematic for someone's diet or anything). On the other hand, the stuff you get from your pharmacist at CVS, which is totally not harmful if improperly (or properly) used is totally fine. Okay...you're right, there's no chance in hell the US media could have been expected to tackle drugs appropriately. But we should!

The second issue is the about "celebrity" in America. One could argue the massive amount of attention thrust at Michael Jackson for basically his whole life had something to do with some of his odder behavior, right? If we left him alone a little more often, who knows what would have happened? America is addicted to celebrity, though. It's a disgusting problem - look, some of them are, admittedly, slightly better musicians, singers, writers, and actors than me (some), but that isn't a reason to ignore damn near everything else going on. So, instead of having a serious discussion about America's celebrity issue, we got to see the problem first-hand with basically non-stop coverage of MJ. I get it, big story, but I don't need to see a helicopter landing at a hospital which will presumably carry his body repeatedly for about 20 minutes...I was trying to find out what the hell was going on in Tehran!!!

Well, those are two of the main parts of the story they could have covered, but didn't. The third was even more obvious, I think, and the least controversial of all. They sort of did do this part, though it was kind of impossible to miss. That is, the massive level of global outpouring for MJ. It was truly incredible to see so many people grieve for one dude, no? Is celebrity part of the reason? Sure. But there was something else...to grieve for someone like this, you actually had to appreciate them pretty highly. There's a reason people loved this guy, even if many kind of dogged him since 1993 or so. That was...the music. It actually did touch people and have an impact. As did the man's work itself. The sad thing is, this is an anomaly with the music scene today.

I mean...everyone was trying to claim him. You got Jamie Foxx at the BET awards (which, btw, wow...is the Klan working through BET?) saying Michael was one of theirs (African-Americans) who they lent to the world. Muslims claimed MJ had converted, much like his brother, Jermaine (who actually had - Michael might have, but it seems unlikely). They danced in the Gulf in honor of him. Everybody wanted to be associated with him. Why? Well, as Dave Chappelle put it a few years ago, "he made Thriller." Ha...no, seriously, he made some music that did touch people around the globe. Not Thriller the song itself (unless you're really into the occult, etc.), but he did take on serious topics that many people identified with. Beat It, Earth Song, They Don't Really Care About Us, Heal the World, Human Nature, Will You Be There, Man in the Mirror, We Are the World...there are quite a few of these. MJ was, at his height, a pretty powerful dude, and that he tried to make music that, as Dumi puts it, used a humanist approach to inequality. I think it was painfully clear that poverty and social injustice really bothered him, and though he didn't go all M-1 and stic.man on us (which would have been awesome!), he did use his music as a calmer vessel to address some of these problems - though later in his career, when lots of people turned on him, he did cut it loose a little easier. I mean, They Don't Really Care About Us is not a subtle song, and the two versions of the video, which were Spike Lee productions, don't really pull many punches either.

So, the music touched people. And I think that's part of why they came in droves to mourn him. But, he also gave a lot (no pedophile jokes here), especially to children. He started charities and donated a hell of a lot of time and money to causes for the poor, dispossessed, and politically weak. He didn't necessarily take a political stance on many issues, but he stood up for a lot of people. We know less about this here in the US, but around the world, Jackson was known as a legendary musician and a humanitarian, and in some places, the latter more than the former. That those two are even in the same sentence, given his musical success, says something.

Truthfully, I wish they did more a spotlight on people in foreign lands, especially those we might think of as not very modern or open. Why would they mourn this very Western musician? There answers could give us some real insight, and start understanding this thing a little better. We'd probably find that they appreciated his work as a humanitarian, along with his embracing and singing quite openly about vulnerability and difficulties in many of his songs.

Isn't that a far more interesting and powerful story? Its not that music can change the world...but it kind of can in some cases. And it kind of should. And at the mainstream level, it kind of doesn't at all. Instead of 20 minutes on where MJ's body is actually going to be buried, couldn't CNN,MSNBC, Fox, et. al. , talked a bit about this? This is why he was mourned so widely. I'm not comparing him to John Lennon, but its the same idea...massive numbers gathered after Lennon's murder because he was more than just a simple musician. His songs did mean something (okay, maybe not I Am the Walrus, but most of his catalog did), as did his actions. Now, I wouldn't put Jackson at Lennon's level, politically or musically (though people could debate the latter point), but his music and actions carried some serious weight.

There was a time when music did really matter, and did really connect to people, more than just sonically. Music truly did bring people together, did speak to struggles and hardships, did stand up for the marginalized, did compel us to hug one another more, did give us messages of kindness and hope...and musicians gave a damn about a lot of things that didn't have to do with nightclubs in LA, bling, or award show honors. Actually, it still does today, but that is the anomaly, not the norm. And it shouldn't be. I'm not suggesting all musicians need to do the equivalent of the moonwalk at the Motown 25 show, support 39 charities, work tirelessly for the environment or HIV/AIDS, fuse disco, R&B, and rock and roll seamlessly into an entirely new sound...but they've got to do something.

Plenty do, of course. Bruce Springsteen has built his entire career on writing music for and about common people and their times and struggles. He also took on massive issues, such as calling for self-reflection, mourning, and kindness, as opposed to violent nationalism after 9/11 with The Rising. He is also, not surprisingly, quite political - when you write about the marginalized, it's hard not to take corporate and government greed and deception personally. Pearl Jam is another example, an insanely popular band that pulls absolutely no punches in their stands. They certainly use their music as a vehicle to talk about deeper social issues, maybe best exemplified by frontman Eddie Vedder's performance of "Here's to the State". Listen to Game Theory, the Tipping Point, or Phrenology by the Roots and tell me you don't hear those as discussions of social issues. Radiohead takes plenty of swipes at things they see as problematic or insane, as does U2. That first Blackstar album sounded pretty good, but there is no doubt Kweli and Mos were striving to challenge and change the state of hip-hop, period, when they made it - and they did pretty good on that. With newcomer K'naan, we certainly get a sound that is banging (African folk + great hip-hop = incredible), but his albums really hammer into us the extreme poverty and violence of Somalia, which should give us pause about how we disregard the difficulties people have in other lands. Michael Franti's life and music are seemingly one and the same, devoted to causes of social justice and kindness, or as he would put it, just trying to stay human. Dead Prez...well, I don't even need to say anything about them, they're that serious! The Coup, Common, Neil Young....the list is pretty long. It's not that they all make every song Ohio or anything, but they write music for a lot of essentially-voiceless people, speak on serious social ills, and treat their art with the utmost respect. Now, the problem is, most of the music we have out there is mindless crap, as are the "musicians" (since I seriously wonder how many of them are actually musicians) making said music. Honestly, how much of today's popular music is really just an endless array of non-sequiturs, put together with a hook?

Part of this is due to the changing nature of commercial music - quality doesn't necessarily sell or get pushed by record labels, massive radio consolidation post-Telecommunications Act of 1996 has killed the radio (forcing some of us, like myself, to largely abandon that medium entirely)...would the Beatles have even made it today? Artists who take their art seriously and produce really remarkable work that can transcend the airwaves often struggle to get their work distributed to the masses.

Anyway...back to MJ....like I said, I think the particular content of his music, along with his work outside of the studio, tells us a lot about why there was such a widespread level of outpouring for the man. That outpouring could have been used as the framework of much of the coverage. It could have turned into an interesting discussion about the role of art and artists in society. It could have looked at a music industry that keeps giving us crap, and ask questions about why that is. There were a lot of options, most of which would have led America to a much more valuable and interesting discussion and debate than the nonsense we got. All you had to see were the numbers of people all over the world who were affected by Michael Jackson's death. Simply put, you don't get that unless there is something fascinating going on.

So, yeah, I think MJ dying was a story to cover. A big story, at that. Though, you know, we could have done with a bit more news on other topics as well. I just wish we got something more than watching ambulances driving, helicopters flying, close-up photos of EMTs trying to revive an already-dead legend, analysis from Corey Feldman and Randy Jackson...I mean, it was ridiculous. MJ mattered to a lot of people all over the globe, and for reasons that go beyond the moonwalk. His music mostly spoke of kindness, good will, and generosity, and his charity work suggested much of the same. He wasn't a saint by any means, of course (another problem - for the love of god, stop doing that! It's okay to not deify every person that dies...you don't have to throw dirt on their graves, and I think MJ's good outweighed his weird/bad by a bit, but he did not walk on water, people), and there was no reason to make him one, but if focused on what he did that made people connect with him, along with a broader discussion of art and artists in society, we could have actually had some pretty valuable coverage of his death. Maybe next time...

Read More...

On Swimming Pools, Harvard Arrests and Flash Point Racism

For the past few weeks, my inbox has been inundated with references to Whites Only swimming pools in Philadelphia, the arrest of Henry Louis Gates and things of the like. With each subsequent email, I've been reminded "this is post-racial America" 1, 2. The type of tongue-in-cheek commentary, I imagine, is meant to elucidate the continued significance of race in America. Unfortunately, I see three issues with this: 1) these emails and posts tend to go to the choir (this is not a new point so I won't go into it), 2) these cases are extreme examples of racism and exclusion in contemporary United States, which makes them easy to dismiss for everyday people and 3) they don't demonstrate the ways that race operates perniciously beneath the surface to include some and exclude many. I do think these cases need to be highlighted so pool owners, police, and everyday people can be aware certain behaviors will not be tolerated, but they're also all to easy to disassociate from for the majority of Americans who identify with the idea of "postraciality." They're rationalized away as the actions of "a few bad apples" rather than be seen as symptoms of the national disease of racism. These incidents become flash points in the media and even talking points in our commentary on race and reality, but the issue with a flash point is that it is the lowest level at which our sensibilities around race will flare brightly, but then they quickly dim. Unfortunately, inequalities of race have not dimmed, nor should our fire to expose and fight them.




Now this is not going to be a "complain and blame" post, instead, I'd like to offer some humble suggestions (or as humble as one can be if they're writing on a blog which is kinda an egotistical thing to start with, but ya'll know what I'm saying). It is critical that we begin to talk about race in ways that expose the subtle fabric of inequality. While it's easy to explain why Skip Gates' harassment and subsequent arrest were wrong and wrongheaded, it's more difficult to explain how policies leave many innocent men and women sitting in jail or on death row due to false accusations and procedural bureaucracy. It's easy to point on the wrongness of exclusion from the Valley Swim club but it's more difficult to explain why suburban schools are almost as and sometimes more unequal than urban schools, in part due to their exclusion of Blacks from equal educational resources. It's easy to suggest that race matters when Sotomayor is berated in her confirmation hearings, but it is more difficult to explain the significance of critical race theory to understanding and interpreting the law. As scholars, as activists, and as citizens we've give up the project of relaying the complex conditions to the masses who need to be reminded not that race still matters, but the various ways that it still matters and what role all can play in racial justice.

I think it is wholly possible to take the flash point moments and deepen dialogue, but its rare that it happens. Instead, we recycle old dialogues on race and its significance when more complex racism(s) exist. The reality is that we've got to get equally complex in our discussions of the intersections of race, class, gender and sexuality (to name a few). If we are serious about "justice for all" we must update our discourse and activism. Because as Brother Malcolm said, "The White power structure is just as much interested in maintaining slavery as it was 100 years ago. Only now they use modern methods of doing so." Let's expose the modern methods as well as the old!

*footnote if you've never seen the dialogue between Malcolm X, Wyatt Tee Walker James Farmer, and Alan Morrison do yourself a favor and watch it!

**Shout out to Native Notes for being on the same page with that quote!

Read More...

Preventive Detention, at What Cost?

A family vacation over Independence Day offered a poignant reminder of why, over 30 years ago, my parents sought refuge in the U.S. Fleeing the racial hostility they encountered in Britain after escaping the brutality of the Indian Subcontinent's Partition, they found in rural Missouri economic opportunity, political freedom, and small town Midwestern hospitality. Today, the specter of preventive detention calls into question whether my parents' grandchildren will enjoy the same freedom.

Warrantless domestic spying, detention without trial, torture, and excessive secrecy raised concerns across the political spectrum and fueled recent change in the White House. These policies, however, remain equally noxious under the new administration, which currently entertains proposals beyond even its predecessors' wildest plans.

We should begin by removing the beltway spin. Whether called "preventive," "indefinite," or simply "prolonged," prevention detention schemes are essentially lawless, unconstitutional, and un-American. And whether established through an executive order or an act of Congress, they would undermine—not enhance—our national security.



At root, detention without trial threatens democracy. According to NYU law professor David Golove, "The struggle for constitutional liberty," wherever people have sought it, includes "a struggle against preventive detention." Our Founders did not champion the rule of law in a vacuum. They confronted threats, including arbitrary detention, and intended the Bill of Rights to end and prevent them.

The rights to Due Process, legal representation, and to examine one's accusers, witnesses and evidence are fundamental. Beyond mere technicalities, these procedural protections are necessary to protect the innocent and lend legitimacy to judicial decisions.

Benjamin Wittes and others propose limiting these rights and detaining individuals accused of being "dangerous," based on hearsay evidence. But they overlook the central problem: accusations are unreliable.

Courts admit evidence of actual events, rather than predictions or hearsay, precisely to exclude irrelevant or unreliable information. Torture, for instance, is notorious for yielding inaccurate intelligence and forcing false confessions. Equally unreliable are individuals who identify suspects in exchange for payment, such as tribesmen who captured many Guantanamo detainees, or ex-convicts hired by the FBI to infiltrate mosques across the country.

Our intelligence agencies, whose hearsay evidence would be admissable under some detention proposals, have proven their unreliability. Time and again, attempts to identify dangerous individuals have instead swept up innocent people, including U.S. citizens of all colors.

Most of Guantanamo Bay's hundreds of detainees have been either released or declared harmless. We have abducted law-abiding people from allied countries and outsourced their torture (Canadian Maher Arar); detained and smeared law-abiding Caucasian and Asian American citizens (attorney Brandon Mayfield and Chaplain James Yee); and tortured a U.S. citizen of Latino descent (Jose Padilla). In addition, government "watch lists" continue to cast unjustified suspicion on over a million law-abiding Americans.

Given the unreliability of intelligence sources, indefinite detention based on evidence inadmissible in federal courts would hardly enhance security. It would, however, undermine freedom and—by removing checks on executive avarice and arbitrariness—leave no one safe: under an administration hostile to dissent, an unpopular bumper sticker or dispute with a neighbor could land you in prison.

Even if hearsay evidence were reliable, the security benefits of preventive detention would be trivial. Individuals can be imprisoned by federal courts under existing laws for even providing humanitarian support to regions governed by militants—let alone actually planning terrorist attacks. The only potential "threats" addressed by preventive detention, then, are individuals accused without reliable evidence.

Whom, exactly, would these individuals be? In both the distant and recent past, America has criminalized law-abiding people for their politics (through the Alien and Sedition Acts, the Palmer raids, COINTELPRO, and the Red Scare, for example) or race, ethnicity or religion (through NSEERS, border interrogations, and Operation Frontline, for example). By expanding this shameful list—and by further eroding our international claims to defend the rule of law—preventive detention would only undermine the security of law-abiding Americans and help our enemies in their efforts to recruit foot soldiers.

Our Founders crafted the Constitution over 200 years ago to balance strong government against individual rights. Their vision has served us well through the World Wars, periods far more dangerous than ours, and is fundamentally incompatible with proposed detention schemes. For the Constitution to survive today's "war on terror," we Americans who value freedom must once again raise our voices to defend it.

Reposted from Huffington Post. Please post comments there.

Read More...

America's Tortuous History with Iran

(Note: I wrote most of this about a month ago, and have tried to update it) I've avoided posting something about all that is going on in Iran for a few reasons. One, I've got to finish up a paper soon! Two, others in the blogosphere have been posting great stuff thus far, and I'm not sure what exactly I'd contribute. Three...I'm a little confused as to what I should even say. I think the opposition party probably won the election (at the very least, the results were fishy), and I certainly don't support the use of violence against protesters, but I think some U.S. leaders are taking advantage of the situation to spew sentiments against the Iranian state, as well as their "pro-freedom" nonsense. Also, I know the history between America and Iran, and minus President Truman's ability to stop a U.S. led overthrow of Prime Minister Mossadegh (which eventually happened, under President Eisenhower), the U.S. seems to have done nothing good in regards to Iran...so, what does that say about American support for Mousavi?

Okay, so here's my contribution to the discussion. I want to focus on the complicated history of American involvement in Iran, why that has had a huge impact on what preceded, and how that should (and is) impacting what the U.S. does now.

So, the basics...Iran's monarchs were hardly stellar rulers. In a key moment in history, the Shah Mozzafar al-din Shah Qajar conceded an incredible amount of control of Iranian oil to the British in 1901 - this helped the Shah pay for his rather lavish lifestyle. The deal gave him 16% of all future oil profits, along with a lump sum payment. While 16% is a lot for a single person, it isn't much for a total nation, which is where the problem grew from. That oil contract ultimately led to the Anglo-Persian Oil Company (APOC), which later became the Anglo-Iranian Oil Company (AIOC), which eventually turned into British Petroleum/Beyond Petroleum (BP), who probably have a gas station somewhere near where you live. Not only did Iran get a very minor share of the money (especially considering the fact that the oil was theirs in the first place), the British also had a bureacracy in place that made it nearly impossible for Iran to even know what APOC/AIOC profits were. Basically, they were getting ripped off.

The British made minor concessions, but ultimately, Iran still got a really short end of the stick. By the late 1940s, AIOC was making after-tax profits of around 40 million pounds...these are profits, mind you. And what was Iran's total share of money? Less than 10 million pounds. Not surprisingly, Iran wanted a fairer deal, using the US deal with Saudi Arabia (a 50-50 split) as the example. Britain refused, Iran nationalized, Britain pushed major sanctions on Iran, which ravaged their economy. The U.S. wanted the British to concede, but ultimately, the Dulles boys suceeded in framing Iranian Prime Minister Mohammed Mossadegh as a potential "communist", the U.S. opted to join British efforts and sponsor a coup in 1953 to overthrow the popular and democratically elected Mossadegh in favor of their client, Shah Mohammad Reza Pahlavi. Britain's role faded, the U.S. became the dominant power in the region, and America backed the Shah, despite his massive repression in Iran. We sold him billions of dollars in weapons, provided him billions of dollars in economic and military aid, used the CIA to train the SAVAK (essentially the Shah's thought police), looked the other way when much of the globe was decrying his obvious human rights abuses...Jimmy Carter did this as well, even though many think Carter's "human rights" agenda actually spelled the fall of the Shah. It didn't - at every key moment when Carter could have pressed the Shah to loosen his iron grip, he didn't.

Not shockingly, the Shah's brutal authoritarian rule finally fell in the Iranian Revolution of 1979. Not surprisingly, the opposition took a strong anti-American slant. There is a lot of research that looks at post-revolution externalizing of threat i.e. in order to quiet trouble on the home front, politicians will focus their ire on the outside foe, and this clearly happened in Iran after the revolution - and, given the US role in keeping the Shah's brutal regime around, there was certainly a reason for Iranians to not be kosher with the U.S. Of course, post-revolution Iran didn't exactly turn out the way it was supposed to, either...Khomeini and the hardline clerics silenced their more liberal allies from the movement against the Shah and turned a secular authoritarian dictatorship to basically a religious authoritarian dictatorship. All the while, America remained a prime enemy.

It is a travesty that the mainstream media has not focused a decent amount of their discussion on what is happening in Iran on this past. This history matters pretty significantly, and explains some of the nuanced posturing by the Obama administration. In contrast to his policies on Pakistan and Afghanistan, I actually think Obama is doing okay on Iran. Unlike the Republicans (I don't mean all Republicans, actually, mostly the neocons, who shouldn't even count as Republicans because they are really descendants of the supposedly liberal Woodrow Wilson school of thought) who are clamoring for Obama to pick a fight with the regime in Iran over the elections, Obama seems to be taking the history into account. The second he takes a position openly supportive of Mousavi and the reformists, they are done. They suddenly become U.S. puppets (like the Shah), the resistance becomes U.S.-manufactured (like the "resistance" against Mossadegh), and Iranians will turn on them.

The reality is, this is an indigenous resistance to the regime that has been building for a long time. It isn't this sudden Twitter revolution that the U.S. media is making it out to be. Iranian scholars like Hamid Dabashi have been writing about it for years. It has absolutely nothing to do with America. Not a damn thing, okay? Obama's speech in Cairo did not inspire it in any way. The Bush administration's rhetoric about "spreading freedom" did not provide it any backbone. This is all Iran. Iranians have not been cool with their post-revolution state. They've had a hard time actually doing something about it because, yeah, its hard to get masses on the streets when you are in an authoritarian state that has few qualms with cracking some heads. This is why it was tough to mount a sustained opposition to the Shah...it was only when he went too far and pissed off too many people that things started happening. If this was an academic paper, I'd insert something about prospect theory here, but I'll leave that one alone for now. Anyway, same thing here...the election results seem very peculiar, and that may have been the straw that broke the camel's back, if you will. Thus, massive numbers in the streets. This was too much for them to take.

So, thinking America somehow has some kind of important role in all that is happening in Iran is absolutely incorrect. Interjecting ourselves into the equation will only cause more problems, because of the particular history of U.S. involvement in Iran. That's not to say we can't do anything, but it does limit (and I would argue, clarify) Obama's options. We can't openly back the opposition, because of 1953 and the Shah years. We can't take credit for what's happening because that is a disservice to Iranians and will show our incredible arrogance yet again (because, you know, America is totally the source of all dissent against enemies of freedom, or something like that...sounds like a Bush speech).

One thought I have is to use Obama's insistence on meeting with Iran without preconditions as proof of our interest in not intervening in order to maybe help the parties negotiate a solution. Obama can say, look, we're going to work with whoever is in charge (and it's going to be Ahmadinejad - I see no way Mousavi gets in power at all at this point), so that doesn't matter. Instead, we simply want a stable Iran, which means no violent crackdowns on protesters, an action that only further delegitimizes the regime. It also means, hey, lets limit the reasons for the massive protests, which is to say, let's work out a deal between the parties. That almost certainly means Ahmadinejad is going to be the President, but maybe Mousavi can be put in some key position and most importantly, some of his platform ideas can be implemented.

Truthfully, there isn't a massive difference between the two sides in terms of their political goals - Ahmadinejad wants to improve relations with the U.S., just like Mousavi. Both want Iran to continue pursuing the nuclear option. Ahmadinejad is obviously down with the current political system more than Mousavi, but again, that is something that can be discussed in negotiations. Many of the clerics are opposing the election results, and are not okay with the political involvement of Ayatollah Khamanei. Iranians are not protesting the entire system (which would be a revolution), but are protesting specific things - the results of the election, and maybe the role of the clerics [the Khamanei ones, though, not the ones in Qom, etc., who don't want the religious scholars to play politics]. Thus, its not that the entire Iranian system needs to be changed (something that would definitely not be a negotiable point if the U.S. tried to help settle things), but maybe it needs to be tinkered, as in, the clerics need to take a less political role.

I don't mean to dictate what needs to be negotiated, of course, and the U.S. should not do so, either. I'm just suggesting some options. What is important, of course, is that the U.S. maybe try to get all the sides together to help resolve the problem, with a commitment to not interfere. Iranians might be able to do this on their own, of course. But I'm just suggesting this as one of the only avenues of involvement Obama can really take in this case. Some U.S. political leaders who are pressing Obama to take a more active role are delusional, ignorant of the past, or both. Some, like Newt Gingrich, are now suggesting we sabotage Iran's oil and gas refineries to bring the nation to an economic crisis in order to bring down the Iranian regime. Seriously. I did not make that up. Um, Newt, so-called historian, do you know anything about what the British did to Iran in response to Mossadegh in the early 1950s? Try to destroy the Iranian economy through sanctions. You honestly think Iranians are somehow going to forget that episode, because the late 1940s and early 1950s aren't really that important in Iranian history or anything, and instead just be cool with your idea? Did you stop to think that it might, I don't know, elicit a massive level of nationalism that includes both reformers and conservatives? In fact, isn't this precisely what progressives Iranians who oppose the regime have been warning about for years? Newt, I am very happy a man with your level of insanity and your complete misreading (or, more likely, no reading) of context and history, isn't running America.

I'm not really sure what else we really can do in this case that would help the situation. It would be nice if, on their interviews, they were pressed more about this point ("Senator, I hear you, we obviously don't like the violence used by the state against the people in the streets, but aren't you aware of America's complicated past with Iran, and doesn't that history make the actions you are advocating more harmful for the Iranian state?"). More importantly, if we discussed the history more, it might show us how short-sighted and problematic interventions (like the 1953 coup, and backing the Shah when we knew he was a ruthless leader who was only inflaming Iranians) really tie our hands in the future. This is the most important lesson, in my view, to take from all this. We can't really do much with Iran right now because of our particular actions in the past. This should open a conversation into backing authoritarian regimes, relying on politicized intelligence, etc., a discussion that we crucially need to have in the open now. Iran today should be a key example of why we need to have that discussion today - but only if we start looking into our history of involvement in the country, something the media has largely ignored so far.

Read More...

Torturing the Rule of Law

Sixty years ago, U.S. Supreme Court Justice Robert Jackson left Washington to pursue what he later called "the most important, enduring, and constructive work of [his] life": prosecuting international war crimes committed during WWII. Justice Jackson helped usher in a new international regime that promised to help deter human rights abuses.

Unfortunately, Jackson's achievements have proven less enduring than he hoped. Our nation continues to undermine international law by sweeping torture under the rug, with serious implications going forward.

The Nuremberg Trials established a timeless principle: individuals are criminally liable for violating fundamental human rights, even if their governments authorized those violations. Some laws, Nuremberg held, transcend those of any nation.

We have fallen a long way in so short a time. Rather than enforce international principles we once pioneered by prosecuting former officials who enabled torture, our nation today violates those principles with impunity.

President Obama's focus on the future aims to transcend the political divisions deepened by his predecessors. But setting aside the past comes at a price.

Most concretely, failing to prosecute taints the debate on other "war on terror" policies. Preventive detention schemes, infiltrations of law-abiding groups based on constitutionally protected speech or religious activities, and secret warrantless surveillance programs each entail severe threats to the Constitution. They demand public debate.

But these debates have been skewed by the inclusion of former officials who, because they remain free from investigation, also remain free to champion their discredited policies in public. Former Vice President Dick Cheney, for example, vigorously defends the Bush administration's detention policy, despite clear evidence that torture hurt America in more ways than one.

Torture harmed our international relations with even allies like Britain, which curtailed cooperation with the CIA because of inhumane detainee treatment. Moreover, as the U.S. Air Force Major whose interrogations found the leader of Al-Qaeda in Iraq has written, "Torture and abuse became Al Qaida's number one recruiting tool and cost us American lives." Criminal prosecution would place the arguments of Bush administration apologists in the context they deserve.

Other costs of avoiding prosecution are less concrete but equally severe. For instance, failing to prosecute, by definition, erodes the rule of law. Law entails the consistent application of neutral principles across differing contexts. Yet our nation tolerates vast inequalities in prosecution. Between 2006 and 2007, over 320,000 Americans received prison sentences for non-violent offenses. In sharp contrast, among the senior officials responsible for authorizing torture, none have faced even a criminal investigation -- let alone charges, prosecution or a sentence.

Hundreds of lawyers across the country recently wrote the Attorney General and Congress to explain how this unequal justice undermines the legitimacy of our legal system. They wrote, "The severity of systemic disadvantages in the criminal process grows more disturbing -- and the system's legitimacy grows less secure -- when violations of our nation's most fundamental commitments carry no consequences for potential criminals who wield political influence."

Lawyers are not the only ones challenged by this bias. Nearly 500 teachers also raised their voices, noting how lawlessness impacts students: "We teach principles about our nation's history, founding, and governance that appear simply implausible...[T]he preferential treatment of senior officials who commit heinous crimes-relative to the school-to-prison pipeline that ensnares many of their peers for relatively innocuous misbehavior-does not escape [our students'] attention."

Thousands of other concerned Americans from all 50 states, including hundreds of health professionals and interfaith religious leaders, have also observed that our country's future ability to promote human rights elsewhere turns on whether we do so here at home today. We at the Bill of Rights Defense Committee invite other concerned Americans to join their call.

The Bush administration's assault on the rule of law helped propel President Obama into office. Rather than fulfilling his politically daunting campaign promises, however, the administration has chosen expediency over equal enforcement of the law.

The President himself has suggested time and again that it is ultimately up to "We the People" to defend our interests. The struggle to restore rule of law is one we will win, but only with the passionate participation of every concerned American.

---

Reposted from Huffington Post. An earlier version of this article appeared in The August Free Press as an op-ed on June 27.

Read More...

Check the Fresh: New Muslim Cool

"I was raised like a Muslim, praying to the east" -Guru of Gang Starr

My first real introduction to Islam came from Hip-Hop, as is the case for many of my peers. Coming of age on the east coast in the late 80s and 90s meant that Islam became part of the songs you listened to, the names children were given, and was part of "fighting the power." As a teenager, my naive understanding of the deen of Islam was small, but Hip-Hop showed me that being Muslim and a rapper demanded a different set of standards for living, from not eating pork to dropping knowledge in rhymes. In short, I was in love, but from a far. Fast forward and I find myself in my 30s and have seen the influence of Islam come and go in Hip-Hop culture, but was I reminded of the power of spirituality and creativity merged when watching New Muslim Cool which premiers tonight on PBS POV. Check your local listing.




There are a number of reviews of New Muslim Cool already popping up so if you want a more traditional review check these from the Times and the Root. The film traces the protagonist Hamza of the M-Team (Muhajideen Team) as he forms a family, builds a career in community transformation, and rocks as a Puerto Rican Muslim MC. Whether hopping on stage with flaming machetes, making dua in Al-Aqsa Islamic Center in Philadelphia, or speaking to Christians in prison, Hamza shows the power of being grounded in spirituality, yet not encumbered by culture. I was most impressed that the film showed indigenous Islam at its finest. (Indigenous Islam usually refers to people born and raised in the US who have practiced Islam outside of a predominantly Muslim cultural context ... if you really want to learn more, in particular about the role of Black folks laying the foundation for Islam in America, check out Islam and the Blackamerican.) While the recent 15 years have put a face on Islam in America that is predominantly Arab and South Asian, there are large indigenous communities practicing various forms of Islam and continuing to challenge and refine the relationship between the religion and culture.

The film smoothly captures the contours of Hamza's life ranging from the struggles of his newly open Masjid (Mosque) getting raided by the Feds, his own quest to grow as a father, and his entering into a cross-cultural marriage. Unfortunately, a capstone narrative on how Hip-Hop fully fit into his evolved life was missing. Filmed over the span of multiple years, I wanted to know, how did Hamza's view on Hip-Hop as a site for resistance evolve? How had his embracing of Malcolm X evolved as he studied more? How did he see other Muslims in Hip-Hop, particularly non-Sunni Muslims? There is really rich territory to be unearthed on the marriage, divorce, and sometimes estranged relationship between Hip-Hop and Islam. But no film can cover all the bases. I thoroughly enjoyed New Muslim Cool for its careful treatment of Hamza who beautifully embodies two of the most powerful social forces of the past 30 years: Hip-Hop and Islam. As a child of Hip-Hop and an admirer of Islam, I was pleased to see that the "new muslim cool" may just be the maturation of the old muslim cool.

If you like this, you'll love my blog Uptown Notes.
Read More...

Secrecy Sacrificing National Security

Latest piece from Shahid....

Whether defined in terms of a system representing the will of the people, or as one of divided powers exercising checks and balances, our government claims legitimacy based on its accountability. That accountability, in turn, relies on transparency. It is no accident that, in light of its historical function as "the broad light of day" said by Supreme Court Justice Louis Brandeis to be the best disinfectant for "men's actions," the press has long been considered our unofficial fourth branch of government.

As the antithesis of transparency, secrecy presents a deeply insidious threat to our democracy: it excludes the press and public from participation in policy debates, inhibits the operation of inter-branch checks and balances, and ultimately precludes the rule of law. Secrecy must therefore not be taken lightly, as the Obama Administration seemed to acknowledge when declaring a new era of transparency and disclosure on its first day in office. But unfortunately, the administration's welcome rhetoric has yet to find its reflection in reality.


The grave dangers of official secrecy explain concerns with the new administration's approach -- or, more accurately, hesitation -- towards restoring the rule of law. Across several policy areas related to national security, the Obama administration continues to resist disclosure, opting instead to follow its predecessor's disappointing habit of hiding inconvenient facts and dubious policies.

Three Threats to Transparency

The dangers of government secrecy require public skepticism of the national security establishment. Cloaked in mystery and largely unaccountable since their emergence following WWII, our national spy agencies have done more to undermine democracy in America than most threats from which they have claimed to protect us. Communism, black nationalism, revolutions abroad, violent extremism, and animal & environmental rights have all proven less threatening to America and our national values than the Red Scare, the Counter-Intelligence Program (COINTELPRO), the Green Scare, and the surveillance regime erected under the guise of the war on terror.

This pattern of secrecy unfortunately continues, visible today in at least three sets of counter-terror policies: torture, warrantless electronic surveillance, and the recent expansion of the FBI's powers. Secrecy in any one of these areas would justify concern. Its pervasiveness poses a problem for our Republic far more dangerous than any threat to our physical security.

Secret policies, and their secret enforcement, endanger the values that have long defined our society and made it worth securing. While presented as necessary for our nation's physical security, government secrecy itself threatens our national security in a more fundamental sense, calling for an engaged, mobilized grassroots movement to shift the landscape of the debate in Washington and restore the rule of law by demanding transparency.

Torture, Transparency, and the Rule of Law

Torture -- which continues at Guantanamo Bay despite the President's repudiation of enhanced interrogation techniques -- implicates secrecy on two fronts. One involves the memos authorizing torture and reporting on its results. To his credit, President Obama has released several previously classified official documents authorizing the previous administration's lawlessness. But despite widespread outrage toward the individuals responsible for those policies, none have faced justice.

A further set of memos analyzing the torture program remains secret. Vice President Cheney claims that they demonstrate the usefulness of torturing detainees, and has ironically called for their disclosure by the CIA. The mainstream discourse has accepted his premise: that the legitimacy of torture turns on its results (i.e., whether enhanced interrogation inspired detainees to provide incremental information, and whether that information has proven reliable).

But no evidence proving the effectiveness of torture would justify it. Torture is illegal. Period. Our laws are unequivocal, and reiterated in domestic statutes; numerous international treaties to which the U.S. is party; and the Fifth, Sixth, and Eighth Amendments to our Constitution. These laws are not negotiable instruments that can be abrogated for the sake of political convenience.

Until those responsible for torture face prosecution for their crimes, our criminal justice system as a whole will face a mounting legitimacy crisis. How can any criminal penalty -- especially the 323,318 prison sentences imposed from 2006-2007 on Americans convicted of non-violent offenses -- appear legitimate when our nation's most notorious criminals violate our most fundamental laws, yet remain not only free, but actively engaged in influencing our national security policies?

President Obama's suppression of two thousand photos documenting the severity of U.S. torture further illuminates the need for transparency. The photos reportedly depict torture and abuse by U.S. military personnel stationed both in Iraq and in Afghanistan. They are horrific: some are autopsy photos of unarmed detainees killed by U.S. troops while in custody; others, according to Retired Major General Antonio Taguba, depict "every indecency,"including physical brutality, psychological abuse, and sexual assault by U.S. forces.

The President has predicated his refusal to release these photos -- and Senators Joe Lieberman (I-CT) and Lindsey Graham (R-SC) have joined him by demanding a legislative prohibition on the photos' disclosure -- on two grounds. First, they claim the torture photos "would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals." Second, they argue that "releasing these photos would inflame anti-American opinion... thereby endangering [U.S. troops] in theatres of war." Neither argument holds water.

First, the photos in fact expose a great deal. They differ from those already released by exposing a variety of disturbing sexual abuses, from forced exhibition and masturbation to penetration involving brooms. The photographs even show U.S. personnel raping prisoners outright.

The photos also make clear that torture was used not only in extreme circumstances demanding immediate action (i.e., the so-called "ticking time bomb" scenario), but also relatively routinely, pursuant to an official -- though illegal -- policy. Torture committed under the Bush administration was not an aberration committed by a few "bad apples," but a systematic and widespread pattern of abuse condoned by our nation's highest officials and implemented throughout the chain of command.

Second, the argument that releasing these photos would place American soldiers at risk is, quite frankly, preposterous. It is not the pictures that we should fear, but rather the illegal conduct depicted in them.

Torture is a violation not only of the laws of war, the U.S. Constitution, and the oaths of office of everyone responsible, but -- if truly a threat to our troops abroad -- also a crime against them potentially rising to the level of treason. U.S. Air Force Major Matthew Alexander, who led a team of interrogators in Iraq and conducted over 300 interrogations himself, recently wrote that "the No. 1 reason foreign fighters flocked [to Iraq] to fight were the abuses carried out at Abu Ghraib and Guantanamo."

While disclosing torture photos may inspire our enemies to redouble their efforts, that problem suggests that we prosecute U.S. torturers and their commanders, not that we cover up the evidence. Secretary of State Hillary Clinton recently said that "China... should examine openly the darker events of its past and provide a public accounting... both to learn and to heal." Her recommendation is prescient, and applies no less forcefully here at home. According to the editorial board of The Detroit Free Press, "Nothing would command more respect abroad than a demonstration of America's resolve to pursue the truth about itself, wherever the trail leads."

Covering up these abuses helps avoid the prosecution of those responsible. To fully repudiate torture and its legacy, the Obama administration must release the pictures and bring to justice those who authorized and conducted torture. Until then, the rule of law will remain a notion towards which the U.S. -- like China -- will merely aspire.

Secret Surveillance and Secret Policies

Beyond torture, mass electronic surveillance is another arena in which government secrecy continues to impede the transparency necessary to allow a reasoned debate.

As the Obama administration confronts lawsuits over the so-called "Terrorist Surveillance Program" (TSP) crafted in secret by its predecessor (as well as another suit, challenging torture outsourced to other countries), it continues to resist transparency through an unrestrained invocation of the state secrets privilege. The Ninth Circuit's recent rejection of that doctrine's overbroad application is encouraging, as is congressional interest in curtailing it via federal statute. But judicial scrutiny of surveillance is stalled until September and, after appeals, could take years. The surveillance program itself should not escape criticism in the meantime.

The administration's resistance to disclosure suggests the accuracy of fears that the program is essentially an unbounded dragnet. Last year, the FISA amendments supported by then-Senator Obama (despite his earlier promise to filibuster them) conferred on the NSA a vast expansion of its authorities. Its new powers left Americans more vulnerable to warrantless surveillance -- the uses of which could be bent to no end of potentially nefarious ends -- than ever before in our history. Yet the NSA has violated even those expanded powers, and not just in piecemeal fashion: the Department of Justice and FBI have found ongoing abuses so vast and pervasive as to be systemic.

The TSP itself -- whose revelation in 2005 sent a massive shockwave through the policy establishment -- may have been a contrivance, an arbitrarily designated part of a far broader surveillance scheme. Before leaving office, former Attorney General Alberto Gonzales alluded to further operations beyond those previously confirmed. No information about those programs has been released to the public -- or to members of Congress, who have themselves been subjected to illegal monitoring by spy agencies.

Secrecy pervades not only surveillance policies, but also their application. For instance, national security letters (NSLs) authorized under the PATRIOT Act include gag orders that prohibit recipients from disclosing the mere existence of official demands for information, much less their contours. The overuse of NSLs, which routinely demand private information about law-abiding Americans in violation of their Fourth Amendment rights, led the Justice Department to conclude that the FBI had committed "widespread and serious" abuse of its NSL authority.

Without knowing who, in particular, has been subjected to illegal spying, court challenges are untenable: a federal judge found the TSP unconstitutional in August 2006, but her opinion was reversed when a divided panel of three Sixth Circuit judges found no evidence that authorities had actually spied on the particular plaintiff in that case.

Like its predecessor, the Obama Administration has repeatedly asserted the state secrets privilege to impede judicial review, or accountability in the court of public opinion. The Al-Haramain litigation -- in which the Administration faces a hearing in September concerning the program's legality -- involves the only concrete case of electronic warrantless surveillance that civil rights advocates have been able to confirm.

As with the torture photos, then, our government is aiming to stuff genies back into bottles. But where secrecy supporters fear the reaction abroad to the torture photos, policymakers resisting the revelation of domestic surveillance activities instead fear the reaction of the American public. In a democracy, or a representative republic, that particular fear is the most illegitimate ground fathomable for keeping information secret.

Expanding Secret FBI Powers

The recent expansion of the FBI's powers is a third arena reflecting pervasive official secrecy threatening our national values. Last summer, senior DOJ and FBI officials conducted a series of behind-the-scenes "briefings" for aides to some members of Congress and civil rights advocates (including myself) on major revisions to the Attorney General's Guidelines governing the FBI.

First enacted in 1971 to forestall congressional intervention after the COINTELPRO surveillance scandal, the guidelines originally aimed to ensure that the FBI enforces laws, rather than violating them. But the Guidelines' protections have been watered down over time, with each successive revision further unleashing the Bureau's historical habit of harassing and intimidating law-abiding Americans.

Having failed to stop Attorney General Ashcroft from implementing severely problematic revisions in 2003, members of Congress repeatedly objected when Attorney General Mukasey did so again in late 2008. The new Guidelines expand the investigative methods available to agents, reduce supervisory controls and temporal limitations on fishing expeditions, and by eliminating the need for a factual predicate underlying investigations, invite racial and religious profiling apparent in the Bureau's latest investigative successes.

But even the Mukasey Guidelines are the tip of an iceberg. Following last summer's briefings on the Guidelines, members of Congress unsuccessfully demanded an opportunity to conduct oversight and propose amendments. The FBI and DOJ repeated the charade in November, hosting another series of briefings for congressional staffers and advocates (again including myself), this time about the FBI's Domestic Investigative Operational Guidelines (the DIOGs) that implement the Mukasey Guidelines.

Briefings on the DIOGs occurred the week before Thanksgiving, just before they took effect on December 1. At that point, the policy was already substantially complete and agents had begun training on its provisions. There was no meaningful opportunity to suggest changes.

Substantively, the DIOGs included several disturbing new policies that would prove positively incendiary if confirmed, including two separate provisions mandating ethnic profiling. But because they remain completely secret, the DIOGs have received no scrutiny.

In the version discussed with me by the Bureau's Chief Privacy Counsel last November, the DIOGs mandated a "geo-mapping" program modeled on a failed 2007 proposal by the Los Angeles Police Department. In response to concerns about the vulnerability of Muslim American communities to religious profiling, officials claimed that the FBI's version of the policy would raise fewer concerns because it would profile all ethnic & religious minorities, not just Muslims.

The DIOGs also included a section on "ethnic behavior," adopting a discredited analysis released in August 2007 by the New York Police Department. FBI Director Robert Mueller has responded to a recent furor over the FBI's infiltration of groups conducting constitutionally protected activities (like activist groups in Maryland, as well as religious congregations in New York, Los Angeles, and elsewhere) with false claims that the FBI does not "investigate places, we investigate individuals." His assertion is implausible in light of a policy authorizing the Bureau's invasions of mosques, but because that policy remains secret, the FBI has escaped public examination.

This January, I filed a FOIA request on behalf of my former employer, seeking disclosure of the secret DIOGs to enable a public debate. In early March, the FBI conceded that the document represents "a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence," and promised two weeks later to release it after completing a review of its contents. The FBI has yet to fulfill that promise (although my former colleagues did recently file an appeal).

The State of Play

It is one thing for the execution of polices to be shrouded in secrecy. After all, surveillance is ineffective if the target is aware of being monitored. But pursuing secret policies is altogether different.

While Senator Feinstein (D-CA) is leading a congressional inquiry into torture, she has accepted Cheney's premise that torture can be potentially justified by particular circumstances. Meanwhile, congressional and public oversight of the NSA and FBI has been ephemeral, largely because their policies remain thoroughly opaque.

No one knows which groups, or how many, have been infiltrated by undercover FBI or local law enforcement agents. Similarly, the identities of individuals monitored by the NSA remain secret -- perhaps because they include literally every American. Finally, the photos documenting our torture program, and the memos analyzing its results, are also secret.

Without transparency, we can neither assure ourselves that our government's activities are either helpful or legal, nor can we adequately assess the case for prosecuting Bush administration officials for potential crimes and constitutional violations, as we are legally bound to do. If "national security" includes protecting our nation and its values from threats, secrecy should be considered chief among them.

Harmut Beil is an interface designer, photographer, pilot, and pro-democracy activist who lived in the former East Germany before moving to California for eight years (where I met him before recently moving east to lead the Bill of Rights Defense Committee). He says, "While struggling with surveillance behind the iron Curtain, we saw the western countries, lead by the U.S., as an example of the freedoms we tried to achieve. I am deeply concerned now about the developments of recent years in the U.S....I think the United States could learn a great deal from the history of my country."

How You Can Support Transparency

President Obama said throughout his campaign for the White House that "real change comes from the bottom up," and as a grassroots organizer who rose to our nation's highest office on the shoulders of unprecedented millions, he should know. From that perspective, his administration appears to be waiting -- unwilling to take the lead on restoring the rule of law, but perhaps willing to respond to a grassroots movement either justifying or compelling transparency and accountability.

A coalition of human rights groups is calling on supporters of the Constitution to rally and march against torture later this month in DC. In the meantime, you can take action online to promote transparency and accountability by adding your name to one of several letters compiled by the Bill of Rights Defense Committee for Justice Department officials and members of the Senate Intelligence Committee. We've drafted letters from lawyers, educators, faith leaders and other concerned Americans discussing the need for accountability from the perspectives of their respective fields of expertise.

This article originally appeared on the Huffington Post and can be found by clicking here. While we'd love for you to comment here (and you should), please post your comments on the Huffington page as well, as you will be fairly likely to get a direct response from Shahid there.
Read More...

Erasing the Past

Today marks the 20th anniversary of the tragic events in Tiananmen Square in China. I remember watching the chaos on TV. I will never forget the image of "Tank Man" defying all rationality and standing his ground in an act of bravery and defiance I'm not sure we'll ever witness so publicly again. To this day, nobody knows what happened to him. Some suggest he was executed by the Chinese government. Others say he is still alive, hiding somewhere in China. He acted on the 5th, a day after the government cracked down violently against a massive non-violent protest, composed of many students, that had been going on since mid-April 1989. I won't rehash the whole story, but the short version is, people were mourning the death of a somewhat progressive leader and desired both economic and political reforms by the Chinese government. Over a million gathered in Tiananmen. On June 4th, 1989, the Chinese government instructed a violent military response, including firing into the crowds at the unarmed, young, idealistic masses. Nobody knows the final toll, given the control of such info in China (there is also suspicion that the Chinese government burned many of the bodies to destroy evidence), but the estimates range from several hundred dead, all the way up to several thousand.

It was a horrible event that many of us will never forget. However, that is not quite the subject of my post, nor is China, per se. What I find most alarming about Tiananmen is the massive level of amnesia about the event in China. China is not the first country to attempt this kind of whitewashing of the past. Others have attempted it as well - and succeeded quite brilliantly. While I refer to Tiananmen the most here, know that you can substitute a number of other cases in its place. For instance, there is the false belief in a historically non-interventionist US foreign policy, back from the early days (see Kagan's Dangerous Nation as a good counter - yes, really, Kagan, damn good book). Americans also frequently forget "idealist" Woodrow Wilson was a staunch racist, and his efforts to keep Japan out of Versailles probably helped encourage their militarism later. We forget the Gulf of Tonkin incident, used to escalate the Vietnam War, was always a manipulation of the facts. We forget the whole 1953 US-backed coup in Iran that deposed a popular democratic leader for a brutal dictator whose harshness helped lead to the 1979 Revolution. We frequently forget about our role in strengthening militant Islam (whatever you want to call it...I'm tired of coming up with/reading different terms!) with our outright backing of the most extremist elements in Afghanistan in the 1980s. Completely forgotten facts, all withheld from the public discourse, all conveniently allowed to be forgotten. This happens elsewhere, too. Let's see...Turkey and the Armenian genocide during World War I. Pakistanis forget the cult of personality set up by national hero Zulfikar Ali Bhutto, along with his role in launching the horrific civil war that led to Bangladesh. Indians forget the completely arbitrary and undemocratic nature of Kashmir "choosing" to be part of India. Israelis forget the many acts of terrorism practiced by the Stern Gang, Irgun, and others, including the bombing of the King David Hotel and the Deir Yassin massacre. Russia today tends to forget the many horrifc acts of violence it perpetrated on Chechnya in the mid-1990s. Point being, this happens a lot, and governments are actually quite successful.

Tiananmen comes to mind because today is the 20th anniversary, of course. I was chatting with a friend in China who gave me some of the run-down on what has been happening (lot of internet sites have been blocked [this blog has apparently been blocked, too - how about that], Tiananmen Square has been shut down). Besides remembering vividly those images from my childhood, I also have walked through the space. I will say it was an incredibly eerie feeling...mostly because I was there during a relatively festive time, Chinese New Year/Spring Festival. People were out, flying kites, smiling and laughing. There were few security guards out. It seemed like a joyful place. Of course, I couldn't help but recall what happened at each spot. When we passed the Monument to the People's Heroes, I recalled that the protests had started there. As we neared the front of the square, I looked back at the massive area and visualized it being full with a million people, wanting reforms. As we crossed towards the Forbidden City/Imperial Palace, I thought to myself, Tank Man stood his ground right here. So much blood had been spilled in the area we had walked around...but nobody seemed to care. Maybe there was a peace about the whole incident?

No, not exactly. Nobody wanted to remember. Few children born after 1989 had any idea about the scale of the event. History books in China mention the the massacre with maybe a line or two, and generally as student unrest stabilized by the government. Current university students have difficulty identifying the iconic Tank Man photo. The state has effectively censored what happened. Google in China does not list results if you do a search for the event. The media is largely forbidden from reporting about what happened in those days in 1989.

Thus, not only do many not even know about the event, the efforts to clamp down have created a climate of fear amongst those who do remember what happened. There is no doubt they are afraid of speaking out. This type of climate almost certainly has played a role in a more apolitical generation of young Chinese. Can we doubt that their parents, remembering June 4th and the aftermath, steered them away from politics in order to protect them?

The Chinese government's violent response against the protesters on June 4th was, of course, a sign of cowardice and weakness. Their efforts to expunge the event from Chinese history makes that point even more clear. They are doing what others have. This is why the Bolsheviks shot Czar Nicholas and his whole family - eliminate evidence of the past. This is why the US government classifies incriminating documents, and why the press sometimes partakes in self-censorship - avoid discussing uncomfortable facts that illustrate your fallibility. And while we're at it, let's not spend too much time discussing either the genocide of the Native Americans or slavery and post-slavery Jim Crow. This is why Stalin was literally taken out of everything in the Soviet Union for many years after his death (films, artwork, you name it - pretty incredible). This is why Japanese textbooks don't give much space to the atrocities they committed from their invasion of China in 1937, up to the end of World War II.

Why should we care? Because this matters. Orwell rings so true today - who controls the past controls the future, who controls the present controls the past. If governments are able to largely erase ugly moments in their history, at least domestically, that is a frightening aspect. Part of a country's strength is its ability to see its flaws and (ideally) learn and progress from them. If countries simply censor out their missteps, they could easily repeat these mistakes, or even regress from them towards worse actions in the future. It is truly a sign of weakness to not only hide from your sins, but to actively attempt to create a climate where those sins are largely not up for discussion at home. This is definitely the case with China and the Tiananmen massacre in 1989, but is true of so many other countries as well. These actions don't increase stability, they merely stunt evolution and forward progress.

So what can we do? Remember...remember and discuss and write and talk and challenge others to not hide from these sore spots. Always keep in mind that its not about just one country (here, China), its about most countries. While some seem to forget June 4th, I sure as hell won't. I hope you won't, either. And while we're at it, I won't forget September 11, 1973; August 19, 1953; April 9, 1948; and a whole lot of other dates and events. History is political...if we don't fight to preserve it, we could lose it. The consequences would be frightening.
Read More...

More than Words

[Note: I wrote this before the speech. I have since included some general thoughts and links post-speech at the end of the post]

Did I just reference an Extreme song from the early 90's? And did you just recognize that I just referenced an Extreme song from the early 90's? Shame on all of us...

Okay...back to seriousness. President Obama has recently headed over to the Middle East, and will be making a much anticipated speech in Cairo on Thursday. There is tons of hype for this speech, which I first remember hearing about shortly after the election in November. I want to offer my thoughts on what Obama should focus on. Whether he'll deliver is an entirely different story.

I'm going to use Madeleine Albright as my jumping-off point. Albright wrote an interesting op-ed in the NY Times earlier this week, and has been pretty active in what I'd call an "engaging the Muslim world" agenda. Personally, I prefer Juan Cole to Albright every day of the week on this type of work. Why? Read Albright's op-ed. It's a PR push, by and large, with some acknowledgement of the difficulties the Muslim world is facing as a result of US foreign policy. So, basically, its Dubya and Karen Hughes, except kinder and gentler. Fantastic. I totally think this will work. Really. Sure. Awesome. This is the same Albright of the "we think the price is worth it" statement regarding the Iraq sanctions and the 500,000+ dead Iraqi children and millions more with stunted development as a result of the sanctions. Yes, she apologized later, but it was years later (sounds like somebody's interested in preserving their legacy), and in her book, she apologized for the comment, but not the policy - so, she had no problem with the policy, just the way she answered Stahl's question on 60 Minutes. I won't go into a long discussion about the Iraq sanctions, but lets just say I think they were brutal, one of the worst forms of political punishment in recent history, and have done irreparable damage to the US in Iraq and the Muslim and Arab world. Read Anthony Arnove's brilliant edited volume on the sanctions for more info.

So, Albright is basically saying Obama needs to make a better sale of our policies to Muslims, that we're fighting people who are attacking them as well. Okay, that's sort of true. But Albright makes the claim that the biggest beef the Muslim world has with the US is the feeling that the US is at war with Islam. Yeah, that's partly true...but why would they think that? Well...because of our policies, which she doesn't advocate changing. This is another attempt to make this about ideology, which it isn't. It does often feed into that, but if you work on the actual political issues, issues that, quite honestly, Muslims have legitimate gripes about, that's the way out of this dangerous cycle.

Unfortunately, Albright isn't up for bringing that point up much. Too bad...because she knows better. Her op-ed actually isn't that bad - it just puts political roots of the problems between the US and the Muslim world (whatever that is...Muslims are not a monolithic group, but whatever, I'll roll with it for the time being) in the back-burner, something I think is fatally flawed. She correctly points out that Obama should speak out against repression, including the kind practiced in Egypt as a form of "moderation". Right on...but she then selects out a democratically-elected Hamas from being part of the solution. Again, by excluding the political gripes from the discussion, we completely whitewash the reasons Hamas was elected by Palestinians in the first place - a corrupt Fatah that was unable to make any progress on peace with Israel, and a continuation (and worsening) of the occupation (especially in Gaza, a place where the depravity has reached an absolutely shameful level, thanks to the neglect of the international community over the past 4 years).

This is a general problem with most US foreign policy types. They are interested in improving America's image, without addressing the reasons that image has slipped with a less-than-acceptable level of honesty. They also are either completely ignorant, or disingenous, about the Muslim world. I've spent time in some of these countries, and let me tell you, they know their politics. I'm not talking about the rich, well-to-do, professional class. I'm talking about the peasants, the street vendors, the cab drivers...the "people", if you will. Unlike mainstream America, which knows less about history and current politics than it does about the previous round of American Idol (something I largely attribute to a poor education system and a press that I at times consider somewhere between Pravda and Hearst's New York Journal), Muslims are much more aware of politics, even if they throw some conspiracies into the picture.

This point is ultimately why what Albright and many others want Obama to do will ultimately fail. Obama needs to do a whole lot more than just sell American policies better. Yes, I do agree with Albright that the US is not at war with Islam. Is this even a real idea among Muslims? I seriously doubt it...if you asked them which statement is more accurate, the US is at war with Muslims versus the US pursues unjust policies towards Muslims, I'd bet the vast majority go with the latter. Now, if they're just blaming the US for everything, that's not really something we can do anything about. However, if you go through the list of issues, you'd have to be a stubborn jingoist (or clinically insane like Glenn Beck) to not see there are some legitimate claims.

As such, Obama's task in Cairo is a bit more complicated than Albright and others propose. Yes, he must reach out to the Muslim world and do a better job at selling American policies, which will be exponentially easier because he's not George W. Bush. However, he must be honest and talk about the real political grievances. He must actually have a conversation with the Muslim world, not just lecture them about "their shortcomings." He must be humble about America's mistakes, and vow to work hard to correct those missteps. But he must know, talk will be cheap without action. Given all that has happened, no matter how good the speech, no matter how honest or humble it is, no matter how much it really is a conversation with the Muslim world, it will be for naught if we don't begin working on the policy issues. PR might work in America (where Karl Rove can swift boat John Kerry, Max Cleland, etc.), but it won't do jack in the Muslim world.

This is really why I hope he and his administration shun the advice offered by Albright and many others. They need to provide real support (i.e. not military aid) to Muslim countries in dire economic crises. They need to push Israel as hard as they have the Palestinians and work as hard as possible on securing a just and real peace between the two. (btw, check out this post on Steve Clemons' site with some good links up on the settlements) They need to look closely at Kashmir, and work hard to get India and Pakistan to the negotiating table. Cutting back the drone attacks in Pakistan wouldn't hurt, either. They also need to find ways to create exits for autocratic dictators in Muslim countries (such as Egypt and Saudi Arabia), leaders who are only in power due to US backing and who are increasingly detested by their own citizens for their repression, and encourage greater political freedom in these countries. They need to continue engaging Iran and Syria instead of rattling the cage as Bush did. Basically, they have to show the Muslim world they are credibly committed to improving the relationship. Only then can they expect the Muslim world to return the favor.

To quote De La Soul, stakes is high. This speech matters a lot, but ony in the context of what follows. If Obama opts primarily for PR work while being more "sensitive" to issues Muslims are angry about, things won't get any better. If he realizes that talk without real action is just singing without melody and a beat, we might actually be getting somewhere. There are indications that the latter is true (particularly his stance on the Israeli settlements - though we should read that with a little caution, as Stephen Walt advises). Let's see what happens.

For some good further reading on pre-speech thoughts, check out some thoughts from Marc Lynch and Juan Cole.

Post-speech thoughts: Okay, that was actually quite good. I'm not going to go into too much depth here, mostly because most of my thoughts have been better articulated elsewhere, but here's my quick 2 cents. He spoke about the suffering of Palestinians more clearly than any US president ever. That means a lot. He didn't push Hamas out of the door...important...instead, trying to encourage political moderation. Not crazy about the Afghanistan and Pakistan policy, but that's a given - the real test is if he's serious about providing human aid versus military aid to Pakistan, and whether he gets a regional coalition together in Afghanistan. He did as good a job as I could expect on the religion aspect...good job with faith versus politics. He came off as generally sincere, trying to have a dialogue with Muslims across the world, unlike his predecessor(s) who have done nothing of the sort. Basically, the speech went about as good as possible - which is pretty good, actually. I think its safe to say he has most Muslims around the globe wanting to roll with him. The next few steps are crucial, of course. Does he keep the pressure on Israel regarding the settlements? Does he use the massive US aid to Israel and Egypt as leverage to bring Israel to the table for a real (i.e. not Camp David, not the Road Map) 2-state solution and to force Egypt to really begin liberalizing politically?

For really good analysis of the speech, I turn you to some of my favorite reads: Juan Cole, (and as a bonus, Cole also has a post with some reaction to the speech in the Middle East), Marc Lynch, Steve Clemons, Robert Dreyfuss, Daniel Levy, and Stephen Walt. Also, Democracy Now had an interview with Juan Cole and Issandr El Amrani about the talk.

Read More...

Could we use waterboarding to inject sanity into the torture/prisoners debate?

Okay, that was sort of/completely a joke. I am not actually advocating we waterboard Congressional leaders, members of the media, or advocates regarding how ridiculous these discussions have become. At least I won't suggest such measures publicly. Sorry...some more torture humor. But there are a few important points that I think these discussions are just flat-out missing overall. Some folks are raising them, but in general, we don't hear enough about them.

1. Let's drop the moral issue for a second. Not to say that's not important/the most important issue at stake here, but I wonder if we even need to get that far. The question that might make all this debate pointless is...is torture useful? Seriously...can we try to really get a handle on this question? I realize we're not going to get a definitive answer, but I do think we can get a consensus view about how reliable torture actually is. Remember, the whole point is for intelligence, not to break somebody. This is why back-engineering SERE for interrogation seems to be useless...it doesn't really seem to serve any intelligence purposes. If torture makes the suspect say anything to make the pain stop, yeah, sometimes that could lead them to give up important information they weren't willing to disclose before they subjected to torture. But, how many times do they actually say anything you want? There is some discussion now (not enough, in my opinion) that the "enhanced interrogation" techniques were used to elicit links between Iraq and al-Qaeda, even if those links didn't exist. It's what the US wanted to hear, and with enough force, they were able to coerce some statements of the sort from Abu Zubaydah and others. This is a massive problem, and does suggest that, under torture, suspects may reveal what you want to hear, even if that information is false. That this can occur should make us question how useful any of the information obtained through torture is, period. Also, does it actually work better than normal interrogation? From what we've all heard about the waterboarding cases, the suspects gave away the important information through normal interrogation techniques, and were then waterboarded. We need to examine this point more than we have...if normal interrogation is more useful than torture, why are we using it at all? Finally, do people actually even talk during torture? Some historical research suggests this is not quite true, either. Now, before you say I'm stacking everything against torture here, that's not the point...I'm simply saying we need to really probe whether these methods are even useful in the first place. Maybe they are, maybe they aren't, but this should be the absolute central part of the discussion. But given the drastic (and potentially illegal) nature of torture, the evidence that it is successful is probably going to need to be pretty clear to justify using it.

2. As for morality/legality stuff, we don't need to have pundits and partisan politicians come on and discuss this stuff. In fact, keep them the hell away. There is a pretty clear trail of information about how this all came about. It's not exactly that debatable, irrespective of what people will say. Bill Moyers showed a pretty extensive amount of the documentary, Torturing Democracy, on his show this week [and has a lot of resources up on his website on the topic], and I'd really recommend everyone check it out. It shows the work of John Yoo, etc., as well as the stories of Moazzam Begg and others. You can watch the entire documentary online as well. Point being, this is ugly, and we need to be much better informed about it than we currently are.

3. Who the hell are these people, anyway? This is a really important point for us to know. Instead of being told by Democrats and Republicans that the people being tortured and held in Gitmo, Bagram, etc., are the worst of the worst (this is part of why we apparently can't let them out of Gitmo), how about remembering that very few of them have had any real trials whatsoever, and that most are being held without any charges? You know what that means? It means we have no idea if they are the worst of the worst. In fact, we know some of them certainly aren't. Plenty of prisoners from Gitmo have been released without any charges because...there was no evidence they had any connections to terrorism at all. Instead of assuming everyone being tortured is a hardened al-Qaeda type, we should actually make an effort to figure out if that is true or not at all. Moazzam Begg, for instance, is almost certainly not a terrorist of any kind. He was in the wrong place at the wrong time. This was the case for other prisoners as well. Isn't that kind of a major issue? I'm not saying everyone being held is innocent, but shouldn't we focus a lot of our attention on figuring this out? And isn't that the whole point of real trials, anyway, to figure out if they are actually linked to terrorism? If we oppose that, what are we saying? That we are allowed to capture somebody, hold them for years, and torture them because we think they might be terrorists, without proving any of it? That we can call them "enemy combatants", a made-up term which we concocted to essentially take away all their rights, with no proof of anything? That is an insane argument, the kind Stalin would look fondly upon.

4. Can we get some hard questions of politicians about the safety of super-max prisons? Seriously, what is wrong with some of these people? No congressional leader should be allowed to act so petrified of having a Gitmo prisoner on trial in their state and possibly placed in one of these prisons, and if they do, they should be committed. Like I raised in the previous point, first off, we don't even know if these are the worst of the worst. And even if they are, they're just humans. Our super-max prisons will hold them just fine. Last I checked, we were not holding any prisoners that are able to manipulate magnetic fields like Magneto, transform into jets like Starscream, or have mastery of the dark side of the force like Darth Vader. Super-max prisons will hold them just fine.

5. What about effects of all this on U.S. troops? Very few people bring this point up. That we openly torture prisoners, even those who may not be guilty of anything whatsoever (since we have fought giving them trials) could have a serious effect on U.S. soldiers captured by adversaries. Why wouldn't they just say, screw the Geneva Conventions, we're going to torture the hell out of this soldier, America does much worse? We have literally no credibility making an argument against this. How can we, who have bypassed the Geneva Conventions and define people we capture in a category that is in in the unknown legal ethos (which allow us to subject their treatment to no rules or laws), say anything to anyone about treating our soldiers properly? This has put U.S. troops in much greater danger if they are captured. Yet, we don't hear much about this at all. It's a pretty important point, considering the fact that we're currently involved in 2 official wars (Iraq and Afghanistan), doing our best to start a third (Pakistan), and have a massive military footprint across the globe.

6. Waterboarding is not the only form of torture. We hear about it all the time...it is seemingly the central form of torture we're considering. However, there is a lot of actions the U.S. undertook that we need to think about. For instance, we hung prisoners by handcuffs in their cells at heights where their legs gave out and they were left dangling their entire body weight on their two wrists. That was a form of torture practiced in the Middle Ages. We blasted heavy lights and loud music into their cells for days on end, essentially not allowing them to sleep at all. We put some in tiny cages, barely big enough for them to stand up in, and left them in complete solitude, for days on end. We put some in dark rooms with almost no light whatsoever (many in the CIA black sites in Europe) for months. We put some prisoners in cells in which we blasted the air conditioning and took away most of their clothes so they were freezing cold for days. Begg was shown photos of his family, and then forced to hear a woman nearby scream from being tortured and led to believe it was his wife...this persisted for months, and he has said that that was the first time in his life he wanted to kill somebody. These are all potentially torture. It is a lot more than just waterboarding. By focusing so heavily on waterboarding, we risk blowing it, because, as far as we know, waterboarding was only done to very few prisoners (though it was repeated at an insane level to those few prisoners...if you have to waterboard Abu Zubaydah 83 times in a single month, as was reported, is it really working?), and prisoners whose ties to terrorism are fairly clear. However, the many other potential practices of torture were done to prisoners whose ties to terrorist groups are, at best, unclear, and, at worst, non-existent. Don't become transfixed on waterboarding...though conservative supporters who actually have opted to be waterboarded (like Chistopher Hitchens and Erich "Mancow" Muller) have immediately declared it torture does say something. However, we cannot forget the many other potential forms of torture used on prisoners, and as noted above, recall that we don't know if many of these prisoners have any ties to terrorist organizations at all. Oh, and by the way, even calling it "waterboarding" serves a political purpose...it sounds much more tame than what it used to be called, water torture, huh?

7. How about an honest discussion of what this all means and what our options are moving forward? Look, plenty of people (some of whom blog on this very site) think, with good reason, that we have to let this go. We have so many other crises that spending time focusing heavily on torture and our prisoners will ultimately hurt the country. They have a point. If we press hard for a detailed investigation of what exactly happened in all this, and possibly opt for prosecutions if it becomes clear that government officials are guilty, there is no doubt that it will set off partisan bedlam, which will almost certainly hurt our opportunities to fix the economy, address health care, figure out a way to stabilize Afghanistan, pull out of Iraq, etc. On the other hand, if we let this go, that could have major repurcusions on the very foundations of our country. Does this set a precedent for how our government can act? If so, that is very dangerous. We opted out of the Geneva Conventions. That is no small thing. And moving f0rward, who's to say any other country will honor them if they capture our troops...or any other troops/civilians, etc.? If we have this kind of discussion about how to deal with the issue, we might actually be able to come to some reasonable conclusion, whatever that might be. Maybe it is that important that we have to go all-out on it...if these actions are that problematic, and some Republicans are willing to be partisan about it, I say screw them, the country's foundations matter a hell of a lot more than some old rich cranky privileged white GOP members being pissy. Maybe it will be enough to do everything possible to ensure (to the best of our ability) that this never happens again, as opposed to going after Bush, Cheney, Yoo, Gonzalez, etc., if it is clear they are all guilty. Whatever the case is, I do think it is pretty clear that we need an investigation of what exactly happened. This doesn't have to be directed by the White House. In fact, I'd keep Obama far away from this. Let DOJ or the AG handle this. Keep it away from politicians for as long as humanly posible. I also do think that, no matter what, it is vitally important to have all the information out there. If Bush, Cheney, Yoo, Gonzalez, etc., are found to be guilty, if they aren't prosecuted, put in jail, tortured (I'm kidding), etc., it is crucial for the well-being of the nation, and the world, truthfully, that all the beans on the architects of this nightmare are spilled. If they don't go to jail, everybody should know exactly what they did. I want them behind bars, sharing a cell with a 6 foot 3, 265 pound, angry dude named Tiny with biceps as big as their waists, but if doing so kills our chances of getting out of the many crises that the Bush administration left this country, then I'm okay with making sure everybody knows what they did, and let everyone know the only reason they aren't in jail is because our political system is so broken that we can't even do the right thing on the most obvious stuff.
Read More...

Bush v. Gore Rears Its Head (Part IV): A New Check on the Court to Defend the Rule of Law

Shahid's most recent piece on Judge Sotomayor's nomination...

Parts I (The Politicization of Voting Rights) and II (The Triumph of Politics Over Law) of this series demonstrated how the Supreme Court, under the leadership of Chief Justice John Roberts, has usurped what once passed for law in pursuit of a conservative political agenda. As noted by Si Lazarus, the Court's conservative majority has "systematically contravened statutory goals, misconstrued statutory terms, twisted or ignored congressional intent, and shown disrespect for democratic decision making by legislatures at all levels..."


Part III (Souter's Resignation as an Invitation to Balance a Politicized Court) examined President Obama's first nomination in the context of this historical politicization and suggested potential nominees whose vision and assertiveness could help counter the Court's conservative majority.


Rather than select a visionary legal academic willing & able to champion a more fair jurisprudence, the President chose instead this week to replace Justice Souter with a moderate nominee drawn from the ranks of the nation's appellate judiciary. While Judge Sotomayor will be a groundbreaking nominee and a thoughtful Justice, she will be unable to balance the Court. To be fair, no single appointment possibly could suffice, given the magnitude of the Court's slide to the right over the past generation.


This article examines the process of recent appointments to the Court in the context of the Court's politicized jurisprudence. It explores various ethical violations committed by several sitting conservative Justices: Kennedy, Scalia and Thomas contrived the Court's future nine years ago; Roberts and Scalia have decided cases despite direct conflicts of interest; and Roberts and Alito committed structural violations by intentionally misleading the Senate when seeking confirmation. These examples of inter-branch collusion with Executive officials violate not only the separation of powers doctrine, but also antitrust principles routinely applied to economic markets.


Concluding its examination, this article challenges the legitimacy of the Court's current composition and suggests how to restore the institution as a guardian of neutral legal principles, immune from politicization or violations of its process. Even if unwilling to leverage the unique coincidence of Souter's retirement and Senator Specter's defection by appointing an assertive legal visionary to the Court, the Administration and the Senate should introduce a new structural check on the Court to prevent its future politicization. Specifically, Congress should enact legislation to set 18-year terms for service in the Article III Judiciary. This approach would prevent the Court from being co-opted, ensure regularity in appointments, and preserve the Justices' insulation from political pressures.


Path Dependency...


Souter's replacement will be, in fact, the first legitimate appointment to the Court since Bush v. Gore usurped the judicial appointments process nine years ago. Yale Law School Professor Bruce Ackerman observed at the time that "the Court pack[ed] itself" by aggrandizing to its Justices the power essentially to choose their own successors -- through the intermediary of the President five of them selected. As the Bush Administration first took office, Ackerman noted concern that "[t]he Supreme Court cannot be permitted to arrange for its own succession." Bush v. Gore was:

not the first time in history that the Supreme Court... made a decision that called its fundamental legitimacy into question. But on past occasions, the normal operation of the system provided a remedy... [T]his time, the president... [wields the appointment power] in the White House as a result of an unprincipled judicial decision... [H]e will be acting as an agent of the narrow right-wing majority that secured his victory....

President Bush's appointments of Roberts and Alito in 2005 reflect precisely this result: the conservative majority in 2000 effectively contrived the Court's future composition. This path dependency not only represents a severe violation of the separation of powers doctrine, but one that remains ongoing, reiterated with every passing case in which today's Justices wield the legitimacy of their forbears to eviscerate their legacy.


...and Conservative Judicial Aggrandizement


The first article in this series examined the Court's "politicization of voting rights." Unfortunately, its conservative political effort to undermine the right to vote continues: this spring, Northwest Austin Municipal Utility District v. Holder invited the Court to overturn Section 5 of the Voting Rights Act ("VRA"). The VRA was a cornerstone of the civil rights movement, first enacted in 1965 and reauthorized four separate times, mostly recently by a 98-0 Senate vote only three years ago. Section 5 was the provision that "gave the legislation teeth," described by one constitutional historian as "one of the civil rights movement's crowning legislative accomplishments."



Barring a judicial switch of the sort that in 1937 enabled the New Deal, or Souter's surprise vote that in 1992 saved reproductive rights from conservative repeal, the Court most likely will strike down Section 5, denying Congress the power to require particular states to pre-clear changes to their voting rights laws with Justice Department officials.


For the first time since the Johnson Administration, specific jurisdictions known to have historically discriminated against racial minorities could be unconstrained from doing so again. Without a pre-emptive federal check, individual plaintiffs will be able to mount only after-the-fact individual challenges when states violate their voting rights -- without either resources to do so, or incentives, since their litigation will not impact elections already skewed by discriminatory exclusion.


Ultimately, the invalidation of Section 5 would scale back the north's victory in the Civil War by granting to states the power to once again deny their citizens rights ensured by the federal Constitution. We fought a military struggle 150 years ago to establish the principle of federal supremacy. It took us another 100 years to effectively ensure voting rights in the south.


Now, 40 years later, the law that effectively extended voting rights to minorities in the South may be declared unconstitutional, for no reason beyond exceeding limits on congressional power invented by Justice Scalia and his allies on the Court. Smelling the right-wing writing on the proverbial wall, Justice Souter was reportedly "visibly angry" throughout oral argument, "disappointed that he might be leaving the Court with a dissent in this case as being his parting gesture."


The Failure of Traditional Checks on the Court


Traditionally, the only checks on the Court have been the President's power to nominate Justices, and the Senate's equally important power to confirm or reject nominees. However, both sets of checks have failed in recent years.


The appointment power was first usurped in 2000 when the Justices chose the President who, in turn, appointed their chosen successors. As Ackerman predicted, the results of this circularity are apparent: the nation's current Chief Justice was the personal protege of his predecessor, whose vote decided the outcome of the 2000 presidential election. As Linda Greenhouse of The New York Times noted, "A 25-year relationship as mentor and protege ended only with Rehnquist's death days before his former law clerk was named to succeed him."


Meanwhile, the Senate's confirmation power has eroded. First, the Senate itself has repeatedly resigned its independence. Senators of both major parties, including then-Senator Obama, have framed their confirmation votes as obligatory to defer to the President's appointment preferences. This institutional capitulation resembles Congress authorizing previously illegal Executive acts, as it did when passing FISA in 2008 or the Military Commissions Act in 2006.


Nomination Hearings as "Kabuki Theater"


In addition, judicial nominees have learned from the example of Robert Bork, whose 1987 nomination to the Court was rejected after Senate hearings revealed his radical philosophy. Today, nominees actively conceal their judicial philosophies from the Senate and the American public. And they do so with disturbing success. Try as they might to investigate nominees, Senators (for whom personal wealth is a greater qualification than legal acumen) lack the training, skills or experience necessary to engage with judges or scholars inclined to mask their thinking. Ultimately, the failure of the confirmation process undermines democratic transparency.


These concerns are familiar to those who watched the Roberts and Alito confirmation hearings before the Senate Judiciary Committee. The process -- described by Vice President Joe Biden as a "kabuki dance" -- garnered tremendous attention, but ultimately shed little light on the Justices' prospective jurisprudence. Seth Rosenthal observes that while "the Court has begun charting a new course... no one could have confidently offered any such prediction based on what little meaningful information senators obtained during the... confirmation hearings" of Roberts and Alito. Senator Kennedy (D-MA) was more blunt:

When pressed on issues such as civil rights and executive power, Roberts and Alito responded with earnest assurances that they would not bring an ideological agenda to the bench... After confirmation, we saw an entirely different Roberts and Alito -- both partisans ready and willing to tilt the court away from the mainstream. They voted together in 91 percent of all cases and 88 percent of non-unanimous cases -- more than any other two justices.

While claiming to serve as "neutral umpires," Roberts and Alito instead conspired with the executive branch (and quite likely each other) to hide their views from the Senate and the American people. Once on the bench, they pursued a political agenda, while still masking their aims in the "judicial obfuscation" decried even by their ally, Justice Scalia. Two years after Roberts & Alito began their judicial crusade, Senator Schumer (D-NY) suggested simply that Congress had been "duped."


The system of constitutional checks & balances can not function when nominees lie to secure Senate confirmation. Indeed, deliberately impeding the Senate's ability to play its constitutional function is a structural violation of judicial ethics far more insidious than deciding cases presenting judicial conflicts of interest -- a more traditional sort of violation also committed by some Justices.


Judicial Conflicts of Interest


Roberts and Scalia, in particular, have decided cases of enormous significance, in spite of their personal conflicts of interests.


When interviewing with the Bush Administration in 2005 for his current position, Roberts was a judge on the D.C. Circuit, sitting in judgment over the Administration in the most significant detainee rights case to have emerged at that point. The case was Hamdan v. Rumsfeld, which challenged the military tribunals created to provide a veneer of justice for Guantanamo detainees. Roberts joined a poorly reasoned appellate opinion legalizing the Bush tribunals that the Supreme Court reversed the following year.


In fairness, Congress ultimately authorized the Bush Administration's military commissions in 2006, and the Obama Administration has shockingly proposed in 2009 to reinstate them, effectively reversing the Court in Hamdan and ratifying the most ignorant elements of the War on Terror. But the Military Commissions Act and President Obama's frustrating reversals of his campaign promises reveal more about Washington's co-optation by "national security" politics than the legitimacy of the tribunals themselves. And neither excuses the intervention of a lower court judge deciding a case as an agent of the President in order to secure his nomination for higher office.


Even earlier, Scalia cast a vote -- while privately vacationing with Vice President Cheney -- to maintain the secrecy of Cheney's meetings with energy executives. One of the most significant court rulings involving the Bush Administration, the decision ultimately laid the foundation for the Enron meltdown and the disastrous invasion of Iraq. Scalia's attempts to explain his decision not to refuse himself failed even to recognize his obvious ethical lapse, let alone mount a coherent defense of it.


These examples of judicial collaboration with executive officials further violated the constitutional separation of powers doctrine well after Bush v. Gore. The charades of Roberts and Alito before the Senate Judiciary Committee, and the conflicts of interest ignored by Roberts and Scalia, offer only more evidence of the mounting crisis in judicial ethics.


The appointment of two radical Justices in 2005 skewed the Supreme Court, transforming it into a source of conservative political activism. But even overlooking the bias pervading the Court's substantive decisions, the Court's current composition is illegitimate from a strictly process standpoint.


Antitrust Principles...


Antitrust principles explain why executive-judicial collusion threatens society and our constitutional separation of powers among the branches of government.


Section One of the Sherman Antitrust Act prohibits agreements among horizontal competitors, such as businesses that sell to the same market. Whether they fix a certain price or divide sales territory, horizontal agreements undermine the competitive process and ultimately harm consumers.


In much the same way that antitrust law aims to protect markets, one theory of constitutional interpretation views the Constitution, taken as a whole, as a textual mandate to protect political processes from co-optation. And with good reason: while historically applied only in economic markets, principles of competition law are even more necessary in political markets.


First, the potential co-optation of political competition holds far greater and more expansive consequences than the failure of economic markets. When any particular economic market is co-opted by colluding dominant actors, consumers suffer by paying higher prices or receiving sub-par goods or services. But when political markets are co-opted, literally every facet of public life -- from decisions about which economic markets to regulate, to whether minorities get to vote -- is placed at risk.


Moreover, because there we have only one federal government, the political process is more centralized than the numerous markets for goods & services. As a result, it is more vulnerable than economic markets to co-optation and manipulation, whether through agreements among major parties to impede participation by minor parties, or collusion between independent branches of the federal government.


... vs. Executive-Judicial Collusion


The Executive and Judiciary were designed to be institutional competitors within the system of divided powers articulated by Madison in The Federalist No. 10. This founding text is a seminal description of the Republic's constitutional structure, in which Madison writes of pitting factions against one another to prevent any single one from seizing control and imposing a tyranny of the majority.


At its most ambitious, No. 10 represents a forceful call for a multi-party system, requiring the expansion of the political process to include minor parties able to check collusive behavior by the major parties. (The false consensus that national security should trump constitutional protections for liberty and privacy exemplifies such collusion today.)


At a minimum, Madison argued for sharp separation between -- indeed, adversarial contention among -- the Judiciary and the other branches. On the one hand, the executive and legislature coordinate routinely; the President can even propose legislation for Congress to enact. But, as Alexander Hamilton noted in The Federalist No. 78, "The complete independence of the courts of justice is peculiarly essential" to our constitutional fabric.


In our Founders' vision of democracy in America, Congress was the primary branch. It is the subject of the Constitution's first substantive section, largely because it is the only branch intended to represent We the People. Yet Congress is being taken to the cleaners, not only by judicial nominees who have intentionally "duped" it, but also by a self-aggrandizing Court willing to blithely strike down seminal legislative acts on which tens of millions of Americans have relied for generations (like the Voting Rights Act), as well as new 21st century reforms sought by an emerging "progressive majority" in Congress. For the Court to collude with the Executive deeply threatens our Republic.


Yet the Executive and Judiciary did precisely this at several recent points: (1) in Bush v. Gore; (2) when Roberts was nominated to the Court during the Hamdan appeal; (3) when Scalia cavorted with Cheney while blocking efforts to expose his Energy Task Force; and when (4) Roberts and (5) Alito each coordinated with White House officials to hide their judicial philosophies and pro-Executive bias from the Senate and the American people during their 2005 confirmation hearings.


The Switch in Time: A History of Post-Appointment Checks


To restore the Supreme Court as an independent guardian of neutral legal principles, the political branches must impose a new check on the Court. The current checks -- nomination & confirmation -- operate only when new Justices join the Court. As a result, the country has no way to reign in a Court run amok.


FDR faced this problem when the Lochner Court impeded the New Deal by declaring unconstitutional any legislation carrying economic consequences. Frustrated by the conservative Court's self-aggrandizement and invention of laissez faire as a constitutional principle, FDR politically challenged the Court in 1937 with his "infamous" Court packing plan.


His challenge to the Court was the political low-point of FDR's historic Administration. But while unpopular, it proved vitally necessary to create the federal government as we now know it. Without FDR's effort to reign in the Court, its politicized jurisprudence would have prevented federal efforts recover from the Great Depression. Had the Court's conservative activism been allowed to proceed, we today would have no federal agencies: no CDC, USAID, ATF, FAA, FCC, EPA, FEMA, NASA or any of the hundreds of other agencies that comprise Washington's alphabet soup. It is to this entire apparatus, dating from the 1930s, to which the legal right-wing ultimately objects.


The history of post-appointment checks on the Court thus appears mixed: the only President to propose one lost his battle, but won the war.


Can Congress Check the Court?


But in fact, post-appointment checks on the Court are already accepted: Congress' power to enact and construct legislation gives it a de facto veto over those Court decisions that construe statutes. The 1982 re-authorization of the Voting Rights Act offers a timely example: 30 years before this year's challenge to its constitutionality, Congress revised the statute to reverse the Court's decision in City of Boerne v. Flores (which attempted to import a judicially-invented doctrine requiring plaintiffs to prove not only the impact of challenged discriminatory policies, but also their discriminatory intent).


On the other hand, this congressional "check" on the Court is neither effective nor comprehensive. First, Congress can not influence constitutional questions because the Court holds for itself the last word on constitutional interpretation. For instance, Congress was able in 1982 to amend the VRA to remove the Court's intent standard, but that standard continues to limit challenges under the 14th Amendment's Equal Protection Clause.


Moreover, even Congress' check on statutory construction is limited. Constrained by the collective action dilemma inherent in a body of over 500 members, Congress typically takes years to enact a single piece of substantive legislation, whereas the Court evaluates thousands of cases a year and decides roughly 100 each Term.


To balance the Court, then, a new check is required.


What Changed?


The risk of politicizing the Court has historically undermined any suggestion along these lines. But a neutral process to prevent judicial politicization would satisfy these objections. Moreover, the particular circumstances of our age render these concerns less apt than in the past.


First, today's public seems unfazed by executive aggrandizement. The "imperial presidency" crafted by Bush & Cheney represented the zenith of executive fiat, yet executive power remains undiminished even after their electoral repudiation. Even abuses as fundamental as disregarding habeas corpus, a bedrock principle dating to the 13th century, have been tolerated. Challenging the Court is hardly daring in comparison.


More fundamentally, the Court is already politicized: an article recently published in Britain lambasted the Supreme Court for "providing immunity to... corporate law breakers," excoriating "the zealots... led principally by Justice Scalia."


Rather than threaten its independence, efforts to balance the Court could thus help restore it -- especially if carefully structured to ensure substantive neutrality. Efforts to balance the Court need not replicate FDR's ham-handed institutional intimidation.


Comparing the Alternatives


Several proposed solutions would supplement nomination & confirmation with a formal post-appointment check on the Court. The most crude -- FDR's -- entails a legislative statute expanding the number of seats on the Court. A more sophisticated approach requires mandatory retirement for Justices, perhaps at the age of 70. Finer still is a regular schedule of retirements among Justices with staggered terms of service, so that each President appoints a new Justice every two years.


While forcing Justices off the bench may seem alien, there is no positive basis for lifetime judicial service. Nor, for that matter, is it constitutionally required. The Founders appropriately wanted judges to be free from political influence, but they could not possibly have contemplated Justices remaining on the bench for several decades, if only because life expectancies have expanded so dramatically since then. In any event, the goal of insulting judges from political influence can be achieved through means less extreme than life tenure.


Either a mandatory retirement age or fixed judicial terms would be immune to politicization. Both measures are substantively neutral: neither could be abused in order to subvert the Court's independence or politicize its jurisprudence.


Between a mandatory retirement age and fixed terms, the latter is the better option. Mandatory retirement seems to ensure capable deliberation by preventing Justices from serving beyond their intellectual prime or past the time when they lose touch with the country's changes. However, the incentives of a mandatory retirement regime would encourage Presidents to appoint younger and younger Justices in order to maximize the nominees' time and their (as well as the Presidents' own) influence on the bench.


In contrast, staggered terms would achieve the same goals (adding a post-appointment check without risking political co-optation), while avoiding the discouraging incentives of a mandatory retirement age. In addition, 18-year terms for Supreme Court Justices would ensure that Justices enjoy an opportunity build institutional memory and expertise, yet -- unlike the Justice who in 1986 claimed to have never met a homosexual while deciding to demean LGBT rights even as he relied on the labor of a gay clerk -- still remain attuned to the social realities of the society they often control.


A Moderate Path Forward


The opportunity to appoint a new Justice is one the nation welcomes with the eagerness of an ape in the desert approaching a mirage. But the relief offered by a single appointment is equally ephemeral.


Unless the President and Congress balance the Court, it will continue to impose the conservative will of five unelected judicial activists on the rest of the country. No result could make a greater mockery of democracy -- with the possible exception of decisions denying voting rights (which today's Court has also turned into a cottage industry).


While most efforts to balance the Court could suffer from accusations of partisan bias, a legislative statute requiring fixed judicial terms would be substantively neutral, ensuring the independence of the institution and protecting it from being politicized yet again in the future.

(Originally published at HuffingtonPost, May 29, 2009, http://www.huffingtonpost.com/shahid-buttar/bush-v-gore-rears-its-hea_b_208439.html)

Read More...

Bush v. Gore Rears Its Head (Part III): Souter's Resignation as an Invitation to Balance a Politicized Court

Folks, we're glad to cross-post pieces from Spoon friend and colleague Shahid Buttar. Shahid posts over at The Huffington Post...you could say he's our Huffington Post correspondent! Anyway, Shahid, a civil rights lawyer, has written fantastic articles on seemingly every topic, from domestic politics, to foreign policy, to social movements, to legal analysis...and he even kicks rhymes in his spare time. From time to time, we'll drop his latest pieces on the blog. Here's the first installment, looking at the resignation of Justice Souter. Enjoy!

Bush v. Gore Rears Its Head (Part III): Souter's Resignation as an Invitation to Balance a Politicized Court (originally appeared on The Huffington Post, May 12, 2009, http://www.huffingtonpost.com/shahid-buttar/bush-v-gore-rears-its-hea_b_201947.html)
by Shahid Buttar


Any vacancy on the Supreme Court, regardless of the historical context, presents questions of monumental significance. With life tenure and the power to interpret the Constitution as requiring whatever they collectively see fit, the Court's Justices are among our nation's most powerful figures.

But as observers examine potential nominees to replace the retiring Justice Souter, most have overlooked the extraordinary importance of this particular nomination. As President Obama's first opportunity to help shape the Court, his choice will determine whether the nation's jurisprudence will follow -- or instead be freed from -- the politicized grip of conservative judicial insurgents.

Parts I (The Politicization of Voting Rights) and II (The Triumph of Politics Over Law) of this series reviewed the Roberts Court's recent cases affecting reproductive rights, the right to equal education, workplace discrimination, environmental protection, punitive damages, fraud liability, access to justice, and more. Across all of these judicial doctrines, what once passed for law has been usurped by an institutionally aggressive Supreme Court wielding a political agenda.

In this context, the timing of Souter's resignation appears to reflect not only a brilliant man's pursuit of a simpler life, but also an invitation to the Obama Administration to boldly reshape the Court and restore its eroded legitimacy as a guardian of neutral legal principles. At a minimum, the Administration should choose a nominee who brings vision, depth, and assertiveness to the Court, "one who sets agendas, forges consensus and has a long-term vision about how to shape the law."

This article examines the timing and context of Souter's retirement, suggests criteria for his replacement, and identifies Stanford law professor Pamela Karlan and Michigan Governor Jennifer Granholm as the potential nominees most suited to this historical moment.

The Court's Politicized Decisions...

Numerous observers have noted that among President "Bush's lasting legacies will be the politici[z]ation of democratic institutions," including the Justice Department and the Supreme Court. Shortly before the 2008 election, The New York Times agreed that President "Bush...had a profound impact on the judiciary, reshaping it with a conservative tilt that could long outlast his administration."

Some who overlook conservative policy-making from the bench have characterized the Court as "balanced" under the leadership of Chief Judge Roberts. For instance, former Rehnquist clerk R. Ted Cruz suggests that "this is very much an almost exquisitely balanced court, with Justice Kennedy remaining at the fulcrum of most -- if not practically all -- close decisions."

But a split between competing blocks of nearly equal voting strength does not establish the Court's "balance," especially since those blocks are skewed to the right. Reacting to the mid-20th century jurisprudence that expanded individual rights & liberties, Presidents Nixon and Reagan each shifted the Court sharply, transforming the institution over the past 50 years.

Today, four Justices practice a moderate jurisprudence lacking overarching principles, such as the fairness or opportunity norms that animated decisions like Brown v. Board, Miranda v. Arizona, and Roe v. Wade. The five Justices in today's majority actively promote a conservative political agenda, and casually discard long established precedents.

Meanwhile, the constitutional tradition that proudly defined the Court in the mid-20th century has been entirely extinguished. Justice Stevens noted as much in the Parents Involved decision that in 2007 gutted Brown by striking down voluntary busing programs that school districts initiated to prevent racial isolation in schools. As he wrote then in dissent, "no Member of the Court that I joined in 1975 would have agreed with today's decision." Similarly, as Stanford law professor Pamela Karlan recently noted, Justice Souter "was not a true liberal, and he would not have been a liberal on the court of the 1960s or 1970s. But he believed in privacy and civil rights and precedents. That made him a liberal on the court today."

...Raising Tensions on the Bench

As the Court slid to the right over the past generation, the depth of the Court's division also deepened and may now be unprecedented. After Roberts and Alito were appointed in 2006, the right-wing majority undermined individual rights & liberties and defended corporations even more aggressively than it had under Rehnquist. More experienced Justices reacted with concern, indicated through the frequency, assertiveness and tone of their dissenting opinions, as well as the previously rare practice of reading them from the bench.

In the 2008 Heller case, conservatives conjured a novel reading of the 2nd Amendment never before accepted in our nation's 230-year history. Justices Stevens and Scalia traded sharp barbs in their competing opinions: Scalia likened Stevens to "a mad hatter" and accused him of "flatly misread[ing] the historical record," while Stevens argued that Scalia's approach was "feeble," as well as "strained and unpersuasive," and "fundamentally failed to grasp the point" of rudimentary analytical principles.


Roberts & Alito sparked the most recent escalation when they joined the bench in 2006. Linda Greenhouse of The New York Times wrote at the end of their first Term that "members of the court...gave voice to their frustration and pique with colleagues who did not see things their way." Their full year on the bench found moderate Justices voicing extraordinary dissent in several cases.


Justice Breyer read his dissent in Parents Involved from the bench for nearly half an hour, presenting the functional effect of the majority's 2007 decision as betraying the "promise of Brown." The same year, Justice Ginsburg followed suit in two cases that restricted women's rights: Carhart, which "circumruled" Roe by forcing women to carry pregnancies to term even when doing so could threaten their health; and Ledbetter, which limited relief for women subjected to pay discrimination in the workplace. Challenging the biased and pejorative language pervading Justice Kennedy's controversial analysis in Carhart, Justice Ginsburg observed that "[t]he Court's hostility to the right Roe...secured is not concealed."


Justice Ginsburg's forcefulness, according to Marcia Greenberger, was "a signal of how alarming she found the majority decision....[H]ow unusual it was for her to [read a dissent from the bench], let alone twice in such a short period of time....She sounded the alarm, but all in America need to hear it."


Justice Souter's resignation may represent a second source now sounding the same alarm. He was reportedly disillusioned after Bush v. Gore, and "visibly angry" during an oral argument last month in a case that could potentially witness the most significant portions of the Voting Rights Act being struck down as unconstitutional. The departing Justice may have resigned for the sake of institutional fidelity, to make space for the kind of jurist able to resist the Court's conservative majority.


Aspiring Towards an Assertive Appointment


The resignation of David Souter will do little to reduce tensions between the Court's judicial moderates and its conservative majority. But Souter's replacement could have an enormous impact on the Court in other ways -- if the nominee holds a strong vision of the law and the tools to express it in compelling terms.


A nominee in Souter's moderate mold would disappear quickly into the footnotes of history. Casting the same votes as would Souter, without mounting a meaningful challenge to the conservative majority's jurisprudence, he or she also would fail to capture the interest of civil society or inspire lay observers to care about the legal system.


In contrast, an assertive progressive visionary could transform the Court over time. First, a Justice able to articulate a compelling overarching vision of the law -- which the moderates lack -- could lay a foundation in dissenting and concurring opinions for future rulings to cite. Moreover, someone able to translate the arcane world of legal theory into accessible, memorable, and ideally even entertaining opinions could engage civil society and lay observers in the Court's otherwise inaccessible work.


Translating the law in this way has transformed the Court before: Justice Scalia has done so adeptly and is an apt model to emulate. When he first joined the Court in 1986, his arguments were often viewed as extreme, untenable expressions of conservative judicial fancy. But Scalia's strident and often witty opinions achieved several ends.


First, Scalia built a textual trail in his dissenting opinions, which later Justices who shared his vision were able to cite in support of their own arguments. Second, as a leading light of the conservative movement, he captured the attention of lay conservative activists who, in various ways, helped promote his vision of the law.


Some called their Senators demanding support for conservative circuit court nominees, who in turn either issued rulings that Scalia could uphold on appeal or, in some cases, ultimately joined him on the bench. Other activists reinforced Scalia's legal theories in the academy, slowly shifting the legal culture through scholarship and lectures. Some promoted legislation in their towns and states to force contested social questions into the courts, leveraging the presence of their judicial allies on the bench. And the direct actionistas of the political right took to the streets, for instance, by parading at public gatherings with gruesome images of abortions to build opposition to fundamental reproductive rights.


President Obama's nominee will either stride onto the Supreme Court and begin laying a foundation for the recovery of law as a neutral institution, or capitulate to the right-wing judicial revolution of the last generation.


Judges vs. Justices


The ideal nominee to replace Souter would, like Scalia (before his 1982 appointment to the D.C. Circuit), come from the legal academy. Roberts has noted with praise that, "for the first time in its history, every member of the Court was a federal court of appeals judge before joining the Court...." But the lack of experiential diversity on the bench is not worthy of praise.


Judges today are hardly known for the "empathy" of which President Obama has spoken highly. Observers have noted the President's "disdain for formalism, the idea...that law can be decided independent of the political and social context in which it is applied." A competing functionalist legal paradigm, focused on the impact of rulings on the parties and interests before the Court, has a long and proud history in the law but has fallen out of favor over the past generation. A Justice whose philosophy remains untainted by years of applying laws based on an outmoded formalist model would be best positioned to articulate a new alternative, even one building on well-established historical roots.


In addition, many of our nation's brightest legal lights evaded lower courts on their path to the Court. Justices Earl Warren and Sandra Day O'Connor both joined the bench only after successful political careers. While politicians are not necessarily known for empathy, either, they at least hear regularly from real people about their concerns. Legal academics -- especially those who actively champion social causes -- share many of those same concerns themselves, and also interact constantly with young people.


The President, of course, was an engaged legal academic before embarking on his career in politics, and as a hands-on participant in the selection process for Souter's replacement, can presumably relate to potential nominees from either arena. In contrast, appellate judges are removed from society, unfamiliar with daily life on the ground, and therefore especially unqualified to resolve our nation's most pressing disputes.


The Ideal Nominee


At this point, the President's preferences among Souter's potential replacements are inscrutable. Without statements indicating his perspective of the nomination, few indicators are more relevant than President Obama's own assertiveness on other issues. Unfortunately, that measure offers cause for concern.


As an example, whether the President remains committed to restoring the Rule of Law has grown unclear. His Administration continues to maintain the secrecy of FBI policies that mandate racial & religious profiling. And the President remains reluctant to hold his predecessors accountable for torture and war crimes. Each decision suggests a hesitance to wield the President's formidable political capital.


If the Administration proceeds with equal caution when choosing a nominee, it will decide upon a moderate, allowing conservatives to continue to dominate the Court. But despite the Administration's cautiousness in other contexts, some hope remains that President Obama cares more deeply about the Court he studied for years as a student and scholar.


If judicial independence and impartiality matter to the President, he should defend the institution's integrity by nominating an assertive visionary from outside the federal judiciary to replace Justice Souter. Presuming that the nominee will be a woman -- which is necessary but still quite insufficient to render the Court representative of either the population or the legal profession -- two particular candidates stand out from the rest.


Pamela Karlan is a legal academic at Stanford Law School, the nation's leading authority on voting rights (an area of legal doctrine in which the Court's jurisprudence has grown especially indefensible), a respected advocate before the Court, and a bona fide lion of the legal left. Karlan's writing is extraordinary, her wit is unparalleled, and having just authored a book exploring "constitutional fidelity" as an interpretive model, she is among the nation's few legal experts wielding the vision to assertively challenge the Court's conservative majority.


Should the President prefer a nominee with political experience, Governor Jennifer Granholm of Michigan is a less ambitious alternative. She served as a federal prosecutor; chief legal officer for a major county; and Michigan's first female Attorney General. As Governor since 2002, Granholm has led the state in exemplary fashion: the Pew Center on the States' Government Performance Project recognized that her leadership "demonstrate[s] that it is possible to manage well even in the most difficult of times." Whether she shares Karlan's legal brilliance, however, is unknown.


With Democrats holding a filibuster-proof majority in the Senate, few Presidents will hold as strong a hand to reshape the Court's future course as does Obama today. The choice among nominees will thus carry a lasting impact in constructing Obama's legacy -- which could either boldly reverse the painful and sad course of the Bush years, or merely chart a thoughtful alternative while preserving its predecessor's worst elements.


Karlan and, to a lesser extent, Granholm would be bold nominees, worthy of the first Supreme Court nomination by a President who himself has broken so much new ground already.

Read More...

Honor Malcolm: Support Troy Davis and Fight Police Brutality

This post will not be a lofty tribute to Brother Malcolm, if you would like to see one like that, check it out here. This will be a call to action, because that is one of the things El Hajj Malik El Shabazz was about. Today is a National Day of Action to Stop the Execution of Troy Davis and today I saw a heinous video of a young teenager brutalized by the Police of Toledo. I do not doubt that Malcolm would have been disturbed to action by both. Let's honor him by doing the work!

Today is global day of action for Troy Davis who is set to be executed if we, that includes you, do not demand a retrial. You have probably seen Davis' name and maybe even read up on the case. Well there is plenty of material online but I'll summarize. Davis was convicted of shooting an off-duty police officer in 1989 in Savannah, Georgia at Burger King (there was also a shooting at a party earlier that evening). The scene of the shooting was a Burger King where Sylvester Coles got in an altercation with a homeless man. Coles and Davis are physically similar in size and the overlap in Davis and Coles' night is eerie. The State of Georgia put its resources into investigating Davis and little into properly investigating Coles. As a result they arrested Davis and convicted him on 9 eye-witness testimonies. Since conviction, Davis has maintained innocence. In 2001, 7 out of 9 "witnesses" re-canted their statements saying they were coerced into saying Davis was the shooter via improper police and legal procedures. Through a railroading and denial of a re-trial Troy Davis is scheduled to be executed in the near future. If you're in NYC, join us at Union Square from 6-8 for a National Day of Action for Troy Davis or find a local event or activity here



Davis' stays of execution and case have only gotten this far because everyday people are putting pressure on the State of Georgia, to be "fair" and not "final". Let's keep up the pressure and stop the loss of another innocent Black man's life.

As I was typing this post, I came across a video of police brutalizing a 14 year old boy, Trevor Casey, in Toledo, Ohio. The video footage (which is graphic) is here. While I do not know the circumstances leading up to his arrest, choke and bloodying, I do know that the young man's life would likely have been in even greater danger if this was not caught on tape. Police brutality is common in our communities, but seldom gets taken seriously, let's not let this be the case.



The reality is that our young Black youth everyday come in contact with a police force that fears them more than protects and serves them. It's all too often that I walk down the street in Harlem and see "undercovers" jump out, harrass youth, and then continue on with their patrol. Even more disturbing then these "stop and frisks" is the way that many of the young brothas and sistahs I see harrassed respond. They get searched, often illegally, and continue on with their day as if it has been or should be a routine occurence.

If we truly want to honor Malcolm, then we cannot let the State (of Georgia and Toledo) in these cases go unchecked. Troy Davis, like many on death row and those killed on death row, was railroaded and we cannot let his case go quietly. While we celebrate the arrival of a Black Attornery General, the real power to respond to judicial injustice must come from the people. Stand up, speak out! Trevor Casey was brutalized in front of his home and the community is crying out for help. The disease of racism and fear of young Black men runs deep, don't let his case be "investigated" (the Oscar Grant trial from Oakland is now happening) and dismissed as so many cases of brutality are. Stand up, speak out! Don't read about this stories and get sad, in fact, get angry. Because if Brother Malcolm taught us, "Usually when people are sad, they don't do anything. They just cry over their condition. But when they get angry, they bring about a change."
Read More...