Despotism or paralysis? Which is the problem?

Donald Trump never was a potential dictator, as so many Democrats and progressives feared. 

Rather he was part of a continuing a rear-guard action by conservatives and Republicans to thwart the will of the majority.

That’s the view of Corey Robin, a political scientist writing in the New Yorker.

Robin noted that Trump accomplished virtually none of his announced goals, not even when Republicans controlled both houses of Congress.

That’s because Republicans and conservatives are a minority, he said. 

The GOP failed to get a popular vote majority in four of the last five elections.  No conservative or right-wing group had the massive support that the Black Lives Matter protests did last year.  Religious conservatives such as Rod Dreher rightly note that they are losing the culture wars.

The problem, according to Robin, is that the U.S. Constitution gives right-wingers the power to thwart the will of the majority because of the undemocratic nature of the Senate, the Electoral College and the Supreme Court.  The result, he wrote, is paralysis.

There’s something to what he says, although our 18th-century Constitution did not prevent Franklin Roosevelt, and Lyndon Johnson, or, for that matter, Richard Nixon and Ronald Reagan, from enacting ambitious political programs. 

The Constitution is not preventing change now.  What’s holding back change is the reluctance of the Biden administration to keep its promises.  Nothing prevents the Democratic majority in the Senate from abolishing the filibuster, as the Republican majority in the House of Representatives did way back in 1888.

Nor does anything prevent the calling of a convention to rewrite the Constitution and ask for ratification by the voters.  But the ones calling for a new Constitutional convention are the Koch brothers and other conservatives.  Liberals and progressives generally fear what a new convention would come up with, and cling to the Constitution as it is.

Then, too, paralysis only in one direction.  Nothing holds back or limits appropriations for the military.  Nothing hold back war-making by the President.  Nothing holds back upper-bracket tax cuts or bailouts for big financial institutions.

Paralysis does not hold off dictatorship.  Rather people come to accept dictatorship as the only possible solution to paralysis.

Authoritarian governments in the 20th century have arisen in three ways.  Revolutionaries take power from weak ineffective governments.  The military takes power to prevent revolutions.  Pseudo-revolutionary movements take power with the silent consent of the military, the landowners and big business.

Trump antagonized the military, and was regarded by Wall Street as a loose cannon, so he never had a chance of becoming an authoritarian ruler.  He did do a lot of damage to the normal functioning of government, but that is a separate issue.

I think there is a strong possibility of some future crisis, in which some right-wing pseudo-populist could succeed where Trump failed.  But for now, there is no reason for the military or big-money donors to be dissatisfied with the Biden administration.

There is also such a thing as creeping authoritarianism, which I think is what we’ve got now.  I think the proposed “domestic war on terrorism” is a greater threat to what’s left of American freedom and democracy than anything proposed during the Trump administration.

Rulers of empires in decline all had broad powers to wage war and crush dissent, but they were paralyzed when it comes to reforming themselves.

LINKS

Trump and the Trapped Country by Corey Robin for The New Yorker.  “For years we debated whether Donald Trump would topple democracy.  But the threat continues to come from the system itself.”  I say it all depends on what you mean by “the system.”

How real is the danger of a Trump coup?

How real is the danger that Republican state governments could set aside the results of the Presidential vote and simply appoint Trump electors?

The President is chosen by members of the Electoral College, and although the Electors are chosen by the voters in all states, this is not a Constitutional requirement.  The Constitution states  that “each state shall appoint, in such manner as the legislature shall direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress……”

Theoretically, any state could change its election law between now and Nov. 3 so as to allow the state legislature to name the electors.  Such a law would have to be passed by both houses of a state legislature and signed by the governor.

Of the states in which the outcome is in doubt, Michigan, Minnesota, North Carolina, Pennsylvania and Wisconsin have Democratic governors and Republican legislatures.  The governor would be sure to veto any bill changing the election law.

Arizona, Florida, Georgia, Iowa, New Hampshire, Ohio and Texas have Republican governors and legislatures both.  But how likely is it that the governor and legislators, who all have to stand for re-election, would openly thwart the expressed will of a majority of the voters?

Anything is possible, I guess.  You never know what people are capable of.

But I’d be more worried about the Postal Service not delivering all the mailed ballots on time, a declaration of a winner before all the ballots are counted, throwing ballots out for arbitrary and trivial reasons, etc., than this particular scenario.

LINKS

Could Republicans ignore the popular vote and choose their own pro-Trump electors? by Sam Levine for The Guardian.

Sanders issues stark warning on Trump and calls for election commission by David Smith for The Guatdian.

The Election That Could Break America by Jason Kottke for kottke.org. [Added Later]

Poorly Protected Postal Workers Are Catching COVID-19 by the Thousands.  It’s One More Threat to Voting by Mail by Maryam Jameel and Ryan McCarthy for ProPublica. [Added Later]

How to de-partisanize the Supreme Court

Nowadays appointments to the Supreme Court are a continuation of partisan politics by other means.

The major political issues of our time are fought out in lawsuits as much as they are in legislative debates or elections.   Maybe this was always true, but it seems to me that stacking the court is being done with much more awareness nowadays than in recent memory.

Self-described liberals do it.  Self-described conservatives do it.  Partisan judicial appointments have several bad effects.

It often happens that several Supreme Court justices reach retirement age during one Presidential term.  It means that President has a greater power than others to stamp his political ideas on the judicial system.

It gives a President an incentive to appoint relatively younger and less experienced judges to the Supreme Court because they will serve longer.  It gives aging and infirm justices an incentive to keep themselves on the bench until a President of their own political faction is appointed.

I propose the following Constitutional amendment to achieve a better political balance on the court.

Each President would have the power to make one, but no more than one, Supreme Court appointment during each two-year term of Congress, with the consent of the Senate.

The new Justice would be sworn in at the end of that term of Congress.

If there were no vacancies on the court, the sitting Justice who’d served the longest would retire.  

If there were more than one vacancy, the additional vacancies would be filled during the next term or terms of Congress.

What this would mean that each President and each Congress would have equal power to make a Supreme Court appointment once every two years.

This would not mean an end of partisanship, but it would mean a better balance.  It would mean that change in the makeup of the Supreme Court would take place over a long period of time and not all at once.

A Mitch McConnell might be able to stymie Supreme Court appointments during one term, but would not get power to make extra appointments during the next term.

The normal term of office of a Supreme Court justice would be 18 years.  That’s a reasonable length of time, but most Justices would be able to retire while in good mental and physical condition.

The fact that vacancies on the court would not always be filled promptly would be inconvenient. but the court has sat with fewer than nine Justices inn the past.

I don’t think there is any chance of such a proposal being adopted at the present time.  But if and when the two parties decide to call a truce, this would be a way to implement it.

At last, the House stands against undeclared war

The House of Representatives yesterday voted to deny President Trump the power to start an undeclared shooting war with Iran.

The House voted, 226-203, to repeal the Authorization for the Use of Military Force (AUMF) resolution of 2001, which was intended to authorize military action against Al Qaeda, but has since been used to justify military interventions that have nothing to do with Al Qaeda.

The House vote was on an amendment to the $1 trillion military appropriations bill a $1 trillion military appropriations bill that included an amendment repealing the AUMF.  It was a strict party-line vote, with all but seven Democrats all in favor and Republicans all opposed.

It will now go to the Republican-controlled Senate.  It’s likely the Senate will remove the amendment; if so, there would have to be some sort of reconciliation process before the appropriation bill became law.

I don’t think the anti-war cause is hopeless.  A number of Republican Senators have misgivings about undeclared war.  The Senate passed a resolution with bipartisan support to deny U.S. funding for Saudi Arabia’s war against Yemen, but this was vetoed by President Trump.

Repeal of the AUMF wouldn’t be a total solution to the problem.  It wouldn’t prevent covert war and economic war.  There were reports of a big explosion earlier this month at an Iranian oil storage facility, which may have been sabotage.

The Iranian government has said that if Iran is prevented from shipping oil through the Strait of Hormuz, nobody else will be able to ship either.  That’s a credible threat, and would be disastrous to the world economy if carried out.

The House vote is an important first step in Congress reasserting its Constitutional war powers authority and heading off a war with Iran.  It is, however, only a first step.

LINKS

House votes to repeal Authorization for Use of Military Force while Trump reportedly urges representatives to tone down rhetoric on Iran by Tim O’Donnell for The Week.

Iran Tensions: House votes to repeal 9/11 era law used to authorize perpetual war by Tara Golshan for Vox.

Explosions Rock Iran’s Largest Port As Oil Products Catch Fire by Julianne Geiger for OilPrice.com

Declassified: The Sino-Russian Masterplan to End U.S. Dominance in Middle East by Yossef Bodanksy for OilPrice.com.

Why Would Iran Attack Tankers? by Ian Welsh.

President Trump invokes power of a dictator

President Donald Trump, having failed to persuade Congress to appropriate a full $5.7 billion for his border wall, has said he’ll declare a national emergency and take the money from Department of Defense funds.

The thing is, he doesn’t even pretend there is any emergency involved.

I could do the wall over a longer period of time.  I didn’t need to do this.  But I’d rather do it much faster.  And I don’t have to do it for the election.  I ’ve already done a lot of wall for the election. 2020.  And the only reason we’re up here talking about this is because of the election—because they want to try to win an election, which it looks like they’re not going to be able to do.

If a President can simply declare a national emergency and override the will of Congress, what power does he lack to make himself a dictator?

President Trump did not give himself these emergency powers, and he is not the first one to use them or abuse them, but none before him have been so blatant about the lack of justification for using these powers.

Our Constitution sets up a form of government with three branches of government with separate powers—the legislative, executive and judiciary—with the idea that each would check and balance the power of the others.

The problem with this is that separation of powers means separation of responsibility.  The path of least resistance for Congress is to abdicate responsibility to the President.

It’s true that Congress is not entirely to blame in this case.  The original law that President Trump invoked allowed Congress to veto an emergency declaration by a majority vote of the Senate and the House of Representations.  The Supreme Court ruled that unconstitutional; it said the two-thirds votes are required not only to overturn vetoes of legislation, but to overturn any Presidential action.

Even so, it is Congress that over the years has given Presidents the powers of dictators, and it is the responsibility of Congress to take these powers back.  No member of Congress who declares themselves a part of the “resistance” to President Trump can be taken seriously if they continue to allow him the powers of a dictator.

LINKS

Republic’s End: Trump’s Border Wall by Ian Welsh.

A Fishy Emergency Threatens the Republic by Doug Muder for The Weekly Sift.

Trump’s dictator move is the real emergency—and we handed him the keys by Will Bunch for the Philadelphia Inquirer.

What Is and Isn’t a Big Deal in Trump’s Executive Actions Related to the Border by Jack Goldsmith for Lawfare.

What matters more than Stormy Daniels

Jack Perry wrote in the Ghion Journal about why he doesn’t care about the Mueller investigation in general or the Stormy Daniels affair in particular.

This Mueller shindig is not going to do any of the following:

1. Reverse the executive order from Trump taking food stamps away from the poor and disabled who can’t find a job.
2. Remove the ability to use military force from Trump before it’s too late.
3. Reverse the Trump tax cuts that have just forced the U.S. government to take out a massive loan to pay for them.

The Democrats have beaten this “It’s Mueller Time!” meme into the mud and, excuse me, but Mueller and the FBI do not run the United States. 

Where is this much-vaunted rule of law?!  The FBI is not one of the three branches of government!  No, they’re not the judicial branch, people!  That’s what the Supreme Court is!

And the chuckle merchants in the Congress have abdicated their own Congressional responsibility to stop this man and handed it over to the police!

Source: Ghion Journal.

Reasons why freedom of speech is important

A good friend of mine mailed me clippings about free speech controversies on college campuses, and asked me whether I think freedom of speech is an absolute right.

Nothing is absolute.   Even fundamental freedoms are subject to reasonable and limited restrictions that are consistent with their purpose.   These includes laws about (1) libel and slander, (2) incitement to riot, (3) threats and intimidation, (4) harassment, (5) public obscenity, (6) public nuisances and probably other things I didn’t think of.

But I can’t think of a situation in which I would forbid somebody to peaceably express their opinion based on the nature of that opinion.

And if you could make me admit to an exception, I would define that exception as narrowly as possible and not use it as a precedent.

What is the point of freedom of speech?

Freedom of speech is an important individual right.   Being able to speak your mind without fear is necessary for human flourishing.   Nobody can be happy if they have to conceal their opinions out of fear.

Freedom of speech is a social contract.   It provides a way in which people of radically different opinions can live together without violence.    I may think you not only wrong but wicked, and you may think the same of me.   But it is better for both of us, and for those around us, if we agree to settle our differences with facts and ideas, not guns and clubs.

Freedom of speech is necessary for self-government.   Citizens of a free country have a right to hear all sides of public questions.   Your choice is not completely free if someone has the power to limit what facts and opinions you are allowed to hear.

Freedom of speech is most valuable to the least powerful.   The rich and powerful in any framework will be able to make their views known.   Reformers, dissidents and the poor and marginalized are the ones most in need of the right of free speech, and that is true even if they have less of it than the powerful.

And, under the First Amendment to the U.S. Constitution, free speech is more than just a good idea – it’s the law.

Can Trump be removed via the 25th Amendment?

The Constitution provides another way besides impeachment to get rid of a sitting President.   This is a determination by the Cabinet and Congress under the 25th Amendment that he is “unable to discharge the powers and duties of his office”.

I wrote a number of times during the election campaign that I do not think Donald Trump is intellectually, temperamentally or morally fit to be President of the United States.

His behavior is growing more erratic by the day.   Could this be this grounds for removing him, as the officers of the Caine removed Captain Queeg in the novel and movie The Caine Mutiny?

The process allows a President to declare himself unable to discharge his office and to delegate his power to his Vice President.   It also allows the Vice President, with the support of the Cabinet, to declare the President unable to serve.

I think the kind of situation they had in mind was President Eisenhower’s heart attack in 1955 and his stroke in 1957.

Normally the President would resume the duties of his office when he declared himself able to do so.

But the Vice President and Cabinet could ask Congress to overrule him.

Congress would have 21 days to bar the President from resuming his powers.

This would require a two-thirds vote in both the Senate and House of Representatives.

Matt Taibbi of Rolling Stone wrote a superb article on the subject—The Madness of Donald Trump.

It covered both how deranged President Trump seems to be now and the legal obstacles to applying the 25th Amendment to overthrow him.

In fact, the procedure specifically can’t be about politics.  John Feerick, a Fordham law professor who helped work on the original bill with senators such as Indiana’s Birch Bayh and authored a book titled The 25th Amendment, goes out of his way to point out the many things that do not qualify as “inability” under this law.  The list reads like Trump’s résumé.

The debates in Congress about the amendment, Feerick writes, make clear that “inability” does not cover “policy and political differences, unpopularity, poor judgment, incompetence, laziness or impeachable conduct.”  When asked about the possibility of invoking the amendment today, Feerick is wary.  “It’s a very high bar that has to be satisfied,” he says. “You’re dealing with a president elected for four years.”


Source: Matt Taibbi  – Rolling Stone

Even if deemed unable to serve, Trump would still be President.   No doubt he would have many choice words about how Vice-President Mike Pence administered the office.

Has Trump committed impeachable offenses?

Impeachable offenses, according to Article II, Section 4 of the Constitution, are “treason, bribery and other high crimes and misdemeanors”.

I happen to believe that President Trump is unpatriotic and dishonest, but I’m not convinced that he has committed an impeachable offense..

What Are Impeachable Offenses? by Noah Feldman and Jacob Weisberg in the current issue of the New York Review of Books, a good review of the law on the topic.

Feldman and Weisberg point out that, back in 1789, a “high” crime did not necessarily mean an extra-serious crime.   A “high” crime was a crime committed by a public official in the performance of their duties.

A crime committed by a President before taking office, even a very serious one, is not an impeachable offense unless it is, in some way, connected with actions while in office.

So even if it could be proved that Russian individuals or intelligence agencies tried to help Trump during the election, that would not necessarily be an impeachable offense.

An impeachable offense would be Trump, once in office, using the power of the Presidency to pay the Russians back for their help.

It also seems to me that a quid pro quo would be almost impossible to prove.

Take Hillary Clinton’s six-figure speaking fees for speaking to Goldman Sachs officers.  Was this bribery?   She challenged anyone to prove that she changed a single vote or made a single decision in return for these fees, and, of course, nobody could.

This was not bribery.   It is simply that the financiers approved of Clinton and her record.

Vladimir Putin made no secret of the fact that he approved of candidate Donald Trump’s hope for better relations between the United States and Russia if Trump were elected.

Maybe he helped Trump by means of leaking hacked e-mails or propagandizing for Trump on social media.   Maybe not.

But even if he did, that is a long way from bribery, treason or other high crimes and misdemeanors.  It is just that he felt good about Trump and his promises.

By the way, treason under Article III of the Constitution is fighting for the enemy or giving aid and comfort to the enemy in time of war.  An act of treason must be an overt act that is witnessed by two people, or is admitted in open court.

The United States has not declared war on Russia, so being friendly to Russia is no more treasonable that being friendly to Saudi Arabia, Israel, China or any other foreign country.

Can intelligence agencies overturn the election?

The following is by Lambert Strether on the Naked Capitalism web log.

Since November 8 we’ve had four crises of legitimacy of escalating intensity, each one pointing to a change in the Constitutional order.

• First, we had Stein’s recount effort, justified in part by a(n unproven) theory that “Russian hacking” had affected the vote tallies.  (Recall that 50% of Clinton voters believe this, although no evidence has ever been produced for it, it’s technically infeasible at scale, and statistically improbable.)  Since the “Russian hacking” theory was derived from intelligence not shown to the public, the change to the Constitutional order would be that the Intelligence Community (IC) would gain a veto over the legitimacy of a President during a transfer of power; veto power that would be completely unaccountable, since IC sources and methods would not be disclosed.
• Second, we had the (hilariously backfired) campaign to have “faithless electors” appoint somebody other than Trump to be President.  Here again, the change in the Constitutional order was exactly the same, as (Clintonite) electors clamored to be briefed by the IC on material that would not be shown to the public, giving the IC veto power over the appointment of a President after the vote tallies had been certified.
• Third, we had the IC’s JAR report, which in essence accused the President-elect of treason (a capital offense).  Here again the publicly available evidence of that quite sloppy report has been shredded, so in essence we have an argument from IC authority that secret evidence they control disqualifies the President elect, so the change in the Constitutional order is the same.
• Fourth, we have the “Golden Showers” report, which again is an argument from IC authority, and so again gives the IC veto power over a President appointed by the Electoral College. 

Needless to say, once we give the IC veto power over a President before the vote is tallied, and before the electoral college votes, and after the electoral college votes but before the oath of office and the Inaugural, we’re never going to be able to take it back.

This is a crossing the Rubicon moment.  Now, you can say this is unique, not normal, an exceptional case, but “sovereign is he who decides on the exception” (Nazi legal theorist Carl Schmidt).  And who then is the sovereign?  The IC.  Is that what liberals want?

Source: naked capitalism

Why the Electoral College result should stand

The original idea of the Electoral College (Article II, Section 1 of the Constitution) was that Americans would not choose a President ourselves, but instead choose the leading citizens from our communities, and delegate the decision to them.

In that way, we supposedly would avoid self-seeking politicians and only choose individuals devoted to the public good.

This idea lasted through precisely one administration, that of George Washington.  From then on we had political parties and electors pledged to particular candidates—precisely what the Founders hoped to avoid.   This reality was reflected in the Twelfth Amendment.

Now certain opponents of Donald Trump, who claim to be followers of Alexander Hamilton, say that electors should ignore their pledges and exercise independent judgment.  This is a terrible idea.

I would be perfectly happy to delegate decision-making to someone I considered to be wise and good, but that is not what I did when I voted in the recent presidential election.   Most American voters don’t know the names of the electors they voted for.  I don’t.  If you do, you’re a rare exception.

I don’t think most Americans who voted for Donald Trump (or, for that matter, for Hillary Clinton) would be willing to see their decisions over-ridden by people they’d never heard of.   This is very different from the original idea of the Electoral College.  I think that Alexander Hamilton and the other Founders would think so, too.

The need for “faithful” Electors

I got an e-mail the other day asking me to sign a petition to members of the Electoral College pledged to Donald Trump to switch their votes to Hillary Clinton.

This is theoretically possible.  “Faithless” electors have violated their pledges in previous elections.

But trying to overturn Trump’s election in the Electoral College would set a terrible precedent.  It is a bad and dangerous thing even to attempt.

If I were a Trump voter in a red state, I would be furious at the idea of my vote being set aside by somebody I probably hadn’t even heard of.

It would mean that, in the future, voting would not necessarily decide the Presidential election.  The vote would be followed by an attempt to persuade, threaten or bribe the Electors into going against the wishes of the voters.

Democracy is possible only when the results of elections are regarded as legitimate, and a peaceful transfer for power is taken for granted.

When elections are not regarded as legitimate, the basis of power is armed force.  And in general the Trump supporters are better armed and better trained in the use of weapons than the Clinton supporters.

The trouble with corporate personhood

Advice to a peaceful anti-Trump protester

If you’re thinking of protesting Donald Trump at or near one of his rallies, my advice is:

Don’t.

∞∞∞

If you insist on your Constitutional right to peacefully assemble, I’ll absolutely defend your right to do it.  I’ll defend anybody’s right to peacefully protest.

But if you want to exercise your right to protest Donald Trump in the vicinity of a Trump rally, I advise you to think again.  It isn’t always wise to do something just to show you have a right to do it.

You may have every intention in the world of engaging in a peaceful protest.  But you don’t have any control over whether the protest is peaceful.  That decision rests with the most violent member of your group.

The most violent member may be somebody who lacks self-control.  Or it may be somebody who, unlike you, believes in revolutionary violence, like the “black bloc” in the Occupy Wall Street protests or World Trade Organization protests.

Or they may well be infiltrators working for police or intelligence organizations or for the Trump campaign.

During the anti-Vietnam protests in the late 1960s and early 1970s, police infiltration was a real thing.  A friend of mine told me of taking part in a peace march, and noticing that the two hippies in the line ahead of him were wearing the same kind of black shoes that state troopers wore.  When they stopped to pick up rocks, my friend had the presence of mind to run into a coffee shop nearby.

Police immediately descended on the marchers, clubbed some of them and took them away.  When my friend came out of the shop a hour later, nobody was left but police standing around smoking cigarettes and drinking coffee, including the two apparent hippies.

Part of the Watergate scandal involved Richard Nixon agents posing as Democrats and trying to manipulate the 1972 nominating process from within.  A typical example is that Donald Segretti, a Nixon operative, send out letters purportedly approved by Edmund Muskie, the leading candidate, accusing Hubert Humphrey and conservative Senator Henry “Scoop” Jackson.

Roger Stone, a famous Republican dirty-tricks specialists, got his start in politics as a college student playing dirty tricks on behalf of Richard Nixon—for example, making a campaign contribution in the name of a Nixon rival in the name of the Young Socialist Alliance, then mailing the receipt to the Manchester Union-Leader.

All that aside, any violent incident that happens in connection with your protest, whether or not it’s your fault, is going to be blamed on you.  Donald Trump thrives on violent confrontations, regardless of who starts them, because they validate what he tells his followers.

A good rule in politics is: Don’t do what your enemy wants you to do.

The basic principle of the rule of law

Magna Carta is the inspiration for the Fifth Amendment to the U.S. Constitution, which states that “no person shall … be deprived of life, liberty or property without due process of law …”

How is this compatible, as Laurie Calhoun asked in the article linked below, with the President of the United States claiming the right to order the killing of anybody anywhere in the world based on his personal judgment that the killing his warranted?

LINK

Remembering the Magna Carta by Laurie Calhoun for We Kill Because We Can.

U.S. Constitutional rights, on-line and off-line

Source: Saturday Morning Breakfast Cereal.

Malik Jalal tries to get off Obama’s Kill List

Malik Jalal has traveled from Pakistan’s Waziristan border region to Britain so as to plead with President Obama to stop trying to kill him.

Malik Jalal

Malik is an honorary title that means “village leader”.  He is a member of the North Waziristan Peace Committee, whose mission is to negotiate with the Pakistan Taliban to reduce violence in the region.  The committee’s work is sanctioned by the government of Pakistan.

He has survived four attacks by Hellfire missiles and now sleeps out in the woods with his six-year-old son.  He wrote in The Independent that he has information that the U.S. military wants to stop the work of the Peace Committee because they think peace would give the Taliban a secure sanctuary.

Jalal wrote that the first attack came in 2010, when his nephew took his vehicle to a service  station  to get an oil change and to have the tires checked.   A Hellfire missile hit Jalal’s vehicle and another vehicle parked just beside it.  The nephew was injured and four innocent bystanders were killed.

The next time he was driving to a peace conference, with another vehicle on the road behind, which happened to be the same shade of red as Jalal’s.  A Hellfire missile destroyed the trailing vehicle and all four occupants, all innocent bystanders, were killed.

Jalal became sure that he was the target after the next attack.  He accepted a dinner invitation by cell phone and, while he was on the way, a Hellfire missile struck, killing three innocent people, including a father of three and a mentally retarded man.

The fourth attack came early in 2011, when the Hellfire missile struck a meeting of community leaders, killing 40 people, none of whom, according to Jalal were engaged in acts of violence.

Since then he has taken to sleeping out of doors on a mountainside far from his house and always parking his vehicle a long distance from any destination.  Recently, he said, his six-year-old son has joined him on the mountainside.  The little boy said it was unrealistic to think that the U.S. military would refrain from killing Jalal’s family just because he wasn’t at home.

Donald Trump and the limits of protest

I admired Dr. Martin Luther King Jr. when he was alive.   I admire the thinking of Gene Sharp.  I think civil disobedience is justified when all else fails.

But I do not agree with the non-violent protests that shut down an Arizona highway near a Donald Trump campaign events, nor with other protests intended to prevent Trump from speaking.

Dr. King’s non-violent protests were strategic attacks on structures of power.  His protests succeeded to the extent that people in power concluded it would cost them less, in terms of damage to profits and reputation, to give in to his demands than to fight them.

They also succeeded to the extent that Dr. King was able to convince the larger American public that his cause was just, and his protests were disciplined and organized as to give his followers the moral high ground.

Dr. King had specific lists of demands.  His opponents always knew what they had to do in order to shut off the protests.

Protestors who try to shut down Donald Trump rallies do not hurt either Trump’s reputation nor his profits.  Instead they solidify Trump’s support, while inconveniencing and alienating the general public.

Those protestors are not defending their Constitutional rights.  Instead they are denying Trump his right of free speech and his followers their right to peaceably assemble.

Yes, I know the Constitutional rights of Occupy Wall Street, Black Lives Matter and other groups have not been respected, and that Donald Trump himself is not a friend of civil liberties.  That does not mean that he and his followers are not entitled to hold meetings or that there is anything to be gained in trying to deny them that right.

Why do reporters accept being penned up?

Reporters covering Hillary Clinton’s participation in a Fourth of July parade in Gotham, New Hampshire

For decades, reporters who travel with Presidential candidates have been denied the right of ordinary spectators to move about freely at campaign events.

The Secret Service and the candidates’ own security people deny them the right to mingle with crowds.  Instead they restrict them to observing campaign events from special roped-off or fenced-off areas.

Such restrictions apply only to members of the national press corps traveling with the President.  The local press is usually free to sit in the audience and take notes.

This has no logical relation to protecting the candidates from threats, except to the degree a candidate regards free reporting is a threat.  Any restrictions that were necessary to the personal safety of a candidate would logically apply to everyone, not just members of the national press corps.

What is the legal basis for this?  Why don’t newspapers and broadcasters protest on Constitutional grounds?

The basis for it is that broadcast and print journalists depend on the candidates to provide them with transportation and the communications facilities they need to do their jobs.  Without that help, they or their employers would have to buy their own airline tickets, find places to recharge their computers and cameras and set up their own communications for writings and pictures.

More importantly, the candidates control access.  Reporters need to be able to talk to the candidates and the candidates’ staffs, and they won’t get this access unless the candidates see some benefit in giving it.  If you’re a reporter, you don’t just need access.  You need as much access as your main competitor.

So candidates have many means of punishing reporters they consider hostile or even out of line.   Some keep the press on a tight rein, some on a loose rein, but the reins are always there.

Why nihilism is worse than hypocrisy

Donald Trump (Reuters)

Donald Trump’s assertions that he would require American military officers to practice torture and other war crimes stirred up a strong backlash, and he backed down.

Others point out that the U.S. government has long been doing things that Trump is only talking about.

That’s true, but I still think indignation is justified.  Advocating crimes against humanity is just as bad, and in some ways worse, than practicing crimes against humanity.

It is better to be a hypocrite than a nihilist.  The hypocrite, even if lying to others or to self, has a road back to human decency.  The frankly sociopathic nihilist has burned his bridges.

Should Apple decrypt the i-Phone for the FBI?

The FBI demands Apple Computer to figure out a way to read encrypted files on an i-Phone owned by an alleged terrorist.  Apple Computer’s management says there is no way to do this without opening up all i-Phone files to the FBI.  The case is likely to go all the way to the Supreme Court.

Suppose the FBI wins its case.  Suppose a year later the national police in Russia, China or Iran, arrest an elleged terrrorist and demand that Appple create a similar tool for them?  Do the Russian, Chinese or Iranian security services automatically get access to all i-Phones?

A whole new meaning for ‘trigger warning’

A new Texas law gives college students the right to carry guns.  College administrations are allowed to establish “safe zones”, but these cannot include classrooms or dormitories.

Below is an advisory by the University of Houston faculty senate to its members.

Peter Van Buren wrote on his web log that it might also be advisable for Texas faculty to wear Kevlar vests and put bullet-proof transparent screens in front of their lecturns.

I don’t think the warning is far-fetched.  There is such a thing as road rage, and there is such a thing as people flying into a rage at hearing ideas they think are reprehensible, or even not being called on when it is their turn.

It is a statistical certainty that someday some armed student will fly into a blind rage about something.

The Second Amendment to the Constitution affirms the right of citizens to keep and bear arms, but, as the late Justice Antonin Scalia once remarked, that right is subject to reasonable limitations that are consistent with its purpose.

As Van Buren pointed out, even the U.S. military, whose members have all received weapons training, keep firearms locked up except when necessary for training or combat.

LINKS

Texas Academics Told to Avoid ‘Sensitive Topics’ to Prevent Angering Armed Students by Peter Van Burn on We Meant Well.

University of Texas President Hates Guns on Campus, But Will Have to Allow Them by Jeff Herskovitz for Reuters (via Huffington Post)

 

Could the Supreme Court be un-packed?

The death of Justice Antonin Scalia has left the U.S. Supreme Court with an even number of justices.  If they divide four-four on any case, the decision of the lower court stands, but it does not become settled law.

As things stand now, a divided court would not be the worst thing from the standpoint of liberals.  They mostly like existing precedents and mostly oppose have them overturned.

My friend Bill Elwell wonders what would happen if President Obama or President Hillary Clinton simply refused to nominate someone to fill a Supreme Court vacancy.

Franklin D. Roosevelt failed to pack the Supreme Court with nominees of his liking.  Bill asks: Would this be un-packing the Court?.

I don’t see how this would be any different, or any more obstructive, than Senate Majority Leader Mitch McConnell saying that Republicans will automatically reject any Obama nominee, no matter who the person is.

Article II, Section 2 of the Constitution grants the President the power to appoint Supreme Court justices, with the advice and consent of the Senate, but I find no wording requiring him to do so in a timely manner.

President Obama has already said that he intends to nominate someone to fill Scalia’s vacancy, but does he have a responsibility to nominate a second person or a third if the Senate rejects his first nominee?  Of course this is a moot question if the Republicans are going to reject any nominee.

What a President could do without Congress

American Presidents are not helpless in the face of opposition from Congress.

A sitting President has the power to do many good things on his own authority.

For example:

• Enforce the laws against financial fraud.
• Enforce the anti-trust laws.
• Enforce current labor, environmental and consumer protection law.
• Refrain from signing trade agreements that hurt American workers and infringe on American national sovereignty.
• Start renegotiating existing trade treaties.
• Refrain from acts of war, including bombing, drone strikes and funding of foreign warlords, against countries on which Congress has not declared war.
• Classify only information that is vital to national security.
• Refrain from prosecuting whistle-blowers for exposing wrongdoing.

Simply carrying out the Constitutional duties of the President, and refraining from going beyond those duties, would be an improvement over what we have now.

How the Deep State can resist democracy

The Deep State is author Mike Lofgren’s term for power centers in Washington, Wall Street and, to an extent, Silicon Valley that determine government policy, yet operate in secret, without accountability to the law or democratic control.

He wrote in The Deep State that the USA is condemned to unending war and economic decline unless the power of the Deep State can be overthrown.

But can it be overthrown?

∞∞∞

Let’s look at the means the Deep State has to protect itself.

The power of money.  Wall Street banks and military contractors have more money available to influence elections than any of their critics do.  The Supreme Court has ruled the corporate entities have the same rights as individual human beings, and that spending money can be an exercise of the right of free speech, so there is no practical limit on how much money can be spent on a campaign.

The power of subversion.  The FBI has a long history of infiltrating civil rights and peace organizations with informers and undermining them from within.  Ditto for the CIA in foreign elections.  If the FBI and CIA felt threatened, is there any doubt they would use whatever tools they had to protect themselves?

The power of information.  The NSA has the means of learning the personal habits and behavior of every American.  Who is there who doesn’t have something in their background that looks bad, or can be made to look bad?  The precedent for this is the FBI’s spying on Dr. Martin Luther King Jr., and its dissemination of information about his sex life.

The power of repression.  The police crackdown on the Occupy Wall Street movement, which was coordinated by the Department of Homeland Security, shows how the government treats peaceful protest movements as national security threats.

Suppressing the vote.  Many techniques exist for suppressing the vote or making votes meaningless.  New laws intentionally make it more difficult for members of targeted groups to vote or easier to disqualify them from voting.  The Dieboldt electronic voting machines allow vote tampering. and there is some evidence this is happening.

Financial power.  When President Bill Clinton took office in 1993, he intended to propose an ambitious program of public works.  He never did, because he was told this would cause the “bond markets” to lose confidence in him, and interest rates to rise, choking off the economic recovery and increasing the national debt.  If a future President attempted to curb the power of Wall Street, is there any doubt that the financial markets would “lose confidence” in him or her?

Economic dependence.   The Department of Defense and other parts of the Deep State employ millions of people, almost all of them honest, patriotic people who believe they are serving their country.  Reducing the size of these institutions to what’s needed to defend the country would throw many of them out of work.  Without some alternative, this would not only damage the lives of these individuals, but possibly throw the country into recession.

Learned helplessness.  Many Americans have come to think of economic oligarchy and perpetual war as facts of life, about which nothing can be done.