Vain Repetitions

Sandy Berger Sandy Berger

2005-12-09T09:00:00.000-06:00

Sandy Berger Sandy Berger
July 25, 2004

Every time I try to think about Sandy Berger shoving state secrets into his drawers, the media distract me. How? By talking about Sandy Berger and then--talking about something else later. Yes, the media are CHANGING THE SUBJECT. Just like they always do. The media have long used the tactic of reporting stuff and then not reporting on the stuff they've been reporting on--all in an effort to fill our heads with news, then dilute it with different news.

According to the Media Research Center's 1,768th Cyber Alert (http://www.mrc.org), some reporters who once talked about how Sandy Berger made a pair of Depends Diapers out of National Security Documents--ARE NO LONGER TALKING ABOUT SANDY BERGER. In particular, MRC says that the following reporters are especially guilty of reporting the Berger story--only not to report it the day after they reported it. And apparently, they continued not to report it the day after that:

Time magazine's Joe Klein was talking about Sandy Berger on CNN's Paula Zahn Now. The CBS Evening News was talking about Sandy Berger. ABC's Peter Jennings was talking about Sandy Berger. On NBC Nightly News, Andrea Mitchell was talking about Sandy Berger. Tom Brokaw was talking about Sandy Berger. Today co-host Matt Lauer was talking about Sandy Berger. So was Couric. She even talked to Sandy Berger's attorney. David Gergen was talking about Sandy Berger. George Stephanopoulos was talking about Sandy Berger. ABC?s Linda Douglass was talking about Sandy Berger. Charles Gibson wastalking about Sandy Berger.

But guess what? None if these people kept talking about Sandy Berger. It's as if they want us to believe that the news, once reported, CHANGES,replaced by other so-called "current" events.

And it's working, too. According to Google's Zeitgeist, the Top 10 Gaining Google Queries for the Week Ending July 19, 2004, are:

1. martha stewart

2. chad michael murray

3. british open

4. michael tata

5. sharon stone

6. courtney love

7. bobby fischer

8. bastille day

9. kobe bryant

10. emmy nominations

Where is the Sandy Berger Zeitgeist? It is kaput. Does anyone need further proof of the media's attempt to bury this story?

Help me turn the tide. Defy the corporate liberal media. Let's make this Talk About Sandy Berger Week and discuss nothing but SandyBerger.

I'll start:

Did you hear about Sandy Berger? Well, the Republicans did, about 10 months ago. I'm glad they finally thought to tell us about it. A week before the 9/11 report. Phew! Had they waited a few days longer, we may have REALLY been distracted from the Sandy Berger story. Kudos to the Republicans forkeeping us focused on The Big Important Stuff.

Viva the story of Sandy Berger!

The Heathen

2005-12-09T08:41:00.000-06:00

House Passes 3 Tax Cuts, Plans a 4th

Cost Would Outstrip Recent Action on Deficit

By Jonathan Weisman

Washington Post Staff Writer

Thursday, December 8, 2005; A01

The House passed three separate tax cuts yesterday and plans to approve a fourth today, rimming the federal revenue by $94.5 billion over five years -- nearly double the budget savings that Republicans muscled through the House last month.

GOP leaders portray the tax bills -- for the hurricane-ravaged Gulf Coast, affluent investors, U.S. troops serving in Iraq and taxpayers who otherwise would be hit by the alternative minimum tax -- as vital to keeping the economy rolling.

Really. Who among us doesn't make more than $1 million a year? Oh sure, there may be some housewives slumming it around the $100,000 a year level. They all deserve a tax break. Is that crazy? I think not.

It's insane.

I'll give you more insanity. Revenue to pay for these tax cuts will have to come from someplace. States are someplace. Can you guess which of your taxes will be going up even as the federal taxes of the very wealthy are going down? If you guessed property taxes, sales tax, and state income tax, then you're right!

Unless you meant state taxes paid by corporations, in which case you're wrong!

The House wants to pass a bill (H.R. 1956) that would make it more difficult for states to tax the income of interstate corporations. It's tough enough for a state to tax the income of a corporation. H.R. 1956 would make it tougher by requiring companies to be physically present in a state before the state can tax them.

It's easy to earn money without being physically present in the place where you earn it.

Corporate cash cows, such as trademarks--Geoffrey the Giraffe from Toys R Us, for example--can be sold by Toys R Us to a Delaware holding company and then "rented" back to Toys R Us in West Virginia. Under HR 1956, W.Va. couldn't tax the $50 million a year earned by Toys R Us from the Geoffrey the Giraffe trademarks.

Why? Because the company that owns the trademark is physically in Delaware.

And by "physically in Delaware," I mean the Delaware company has a room in the American National Building at 1105 N. Market Street in Wilmington.

Want to hear something really crazy? There are--I kid you not--more than 700 companies in the United States with an address at 1105 N. Market St. Five hundred of those companies are on the 13th floor. For a building that purports to have only 20 stories and only 150,000 square feet of commercial space, that's about 15 square feet for each of the 500 businesses on the 13th floor.

Who would have thought that Shell, Seagram, Sumitomo, Colgate?Palmolive, Columbia Hospitals, Comcast, British Airways, Ikea, Pepsico, Nabisco, General Electric, and the Hard Rock Cafe would squeeze their massive corporate selves into a 15-square foot closet alongside 488 other corporate closets?

And the kicker is that the Delaware holding company on the 13th floor of 1105 N. Market Street was created by Toys R Us.

Toys R Us pays its Delaware holding company $50 million a year to rent Geoffrey the Giraffe. I mean, using W.Va. dollars, Toys R Us pays the rent it owes itself in Delaware to rent something it already owns in W.Va. just to avoid paying W.Va. income tax on the $50 million.

The moral of the story is: The holding company then "loans" the money back to Toys R Us at Very Favorable Rates, like five years interest free with a renegotiable balloon payment at the end.

And so Toys R Us, with its W.Va. left hand, removes $50 million from its W.Va pocket, puts it into its Delaware right hand, which promptly gives the money back to the left hand in W.Va--except now W.Va. can't tax the $50 million and Toys R Us gets to use it interest and tax free.

Isn't W.Va. a wealthier place for it?

I love toys. I love outrage. If you love outrage, Google "passive investment companies."

And I love state's rights. I thought Republicans loved state's rights, so why is the House majority hell bent on using HR 1956 to make the states the middleman in their Republican tax-cut daisy chain?

I and other fiscal conservatives working for Republicans would like to know.

The Heathen

2003-04-13T09:18:00.000-05:00

Supporting our troops means supporting Iraq

The question isn't whether Americans support U.S. troops in Iraq; they overwhelmingly do. The question is whether Americans support the newly liberated Iraqi people. Remarks by Senator Lugar this past week on the News Hour suggest that he doesn't believe Americans actually know what they're getting into. He seems to think that Americans will be in Iraq for years at a cost of hundreds of billions of dollars--and that Americans are unaware of and unprepared for this.

Senator Lugar may be right. The administration's promise to build a self-governing Afghanistan hasn't been fulfilled. Hamid Karzi is little more than the mayor of Kabul, and his country is still run by warlords. Yet, when's the last time Americans rallied around the flag for Afghanis? Americans haven't concentrated on Afghanistan long enough to hold the administration accountable for its promise to bring democracy to that country. They must not be indifferent to Iraq.

Americans must insist that the long-term American military presence in Iraq be part of a larger, coherent Middle East policy that includes Israel and Palestine. Furthermore, America must craft a non-proliferation policy for weapons of mass destruction based on more than the doctrine of preemption. Preemption has led North Korea to defensively accelerate its WMD program; other countries will learn this lesson too. In spite of the Bush administration's hostility to treaties and international organizations, they can be effective means to halt proliferation. Thus, America must re-legitimize the international system it spent the last fifty years building. Finally, America must mend fences with its European allies. It cannot realistically expect to form opportunistic coalitions of the willing every time a crisis emerges.

For better of for worse, America has tied its fate to the fate of Iraq for at least another generation. If Americans really want to honor the sacrifice of their troops, then they'll stay engaged in Iraq and Middle East policy for as long as it takes to fulfill our promises to the region, not just as long as it makes interesting prime-time viewing.

The Heathen

2003-03-29T10:01:00.000-06:00

Violence

By Professor Gerald M. Phillips
August 1, 1994

Dear pacifist hearts, you are going to have to read history....

The German government, as a colonizing nation, killed the leadership of the countries they conquered, systematically and completely. The British, on the other hand, tried to implant the principles of the Common Law. The satire in UTOPIA, LTD. makes the British view clear. This Christian noblesse oblige permitted Ghandi to survive.

The other European countries were quite violent when they left their colonies. The Belgian did terrible atrocities in the Congo; the French fought a war in Algeria. The British merely left someone else in charge, set up the semblance of a democratic government and departed. In fact, the Mau Mau revolt led by Jomo Kenyatta was not against the Brits at all, but against the fact that another tribe had been given the prime minister post.

No, indeed, many, many Ghandis were wiped out by the French, Belgians, Germans, and Italians as they departed their colonies. Ghandi's survival is a tribute to the power of the Church of England.

But more important than that, the naive view that all it takes is an attitude change to bring about the "peaceable kingdom" is the peril that has made peacemakers so dangerous. Neville Chamberlin said about the same things in his writing as you say. He was a marvelous man, old Neville. Always thought the best of people.

I'd recommend some reading, but I am not going to fight the "New Age." But, please, dammit, pick up Freud's letter to Einstein and read it and learn something about the human species.

"Laws are the refuge of the weak," said Nietzsche (and I will spare you a deconstruction of Raskolnikov). We need force to protect us from the power of ravenous, ravaging groups.

And I will pre-empt the libertarians, here. Yes, I know the individual is supreme as an arbiter of his/her own ethical judgments. But that is only when he/she is alone, and we never are, are we?

Coming off the streets (I saw my first gangland slaying at age 10), and later working the streets during the riots after Martin Luther King's death, I saw plenty of blood. In my consult with the VA on post-traumatic shock syndrome, I saw the fallout of our wars.

Blood and gore are very costly, especially for the living.

That is why I oppose this latent pacifism and wishful thinking that seems to characterize the "groupthink" that prevails in some parts. I am, once again, it seems, fighting a group, when I declare: Make your life valuable and scare the hell out of anyone that threatens it.

For my part, I have read about the Spanish Inquisition and I do not think it is at all unimaginable that the churches will come around and make me kneel. Well, I will. I will say "dominos and nabiscos" and I will be born again, and then I will sabotage the daylights out of the mealy mouthed hypocrites.

I will stay alive. But the pacifists will be executed. (Unless of course, the Anglicans are in charge.)

2003-03-22T06:58:00.000-06:00

DIALOGUE on Death

An exchange with Professor Gerald M. Phillips

From: "Gerald M. Phillips, Ph.D."
Subject: Re: Access to LTC
Fri, 4 Mar 1994

I am elderly. I suspect I am nearer chronological senility than anyone on this list (I would argue on mental senility).

But I have spent a lot of time visiting dying friends and relatives who are receiving long term care, and I know what they need is tender loving care and a gentle death. I am eternally grateful to an imaginative physician who took my mother out with a Brompton Cocktail.

Some of you folks believe that living a long time is, in itself, virtuous. I argue that it is not. As a Hemlock Society member, I have prepared for my own demise. My Aleut friends, I think, have the right idea of floating off the non-functional senile oldsters on an ice-floe so they do not disrupt the living.

I am prepared to discuss this business of controlled death.




          ______  

|\     | |  G      | WHATEVER IT IS, I'M AGAINST IT. 

|  \   | |  M      | Rufus T. Firefly 

|   \  | |  P      | 

|    \ | |          | Gerald M. Phillips, Ph.D. (Retired) 

|     \| |______| Curmudgeon at Large

From: "Gerald M. Phillips, Ph.D."
Subject: Re: Access to LTC
Sat, 5 Mar 1994

The attitude of the whole Clinton crowd toward death is very Judaeo-Christian. There is too damned much in the bills about "long term care." Long term care means "vegetable tending." Us Hemlock Society folk are making a fuss, but the idea of rationing and triage is very important and one way to draw the line is to decide when enough is enough.

Now don't accuse me of insensitivity. I am old and terminal. In fact, me and the missus (as they say), have been checking out facilities that we might use when we got too doddering to survive on our own. Damned if I'd ask the kids to take the heat. But the way folks live in those planned communities is about as humane as a condo style Buechenwald and the nursing home facilities make stock in the company that produces Haldol very attractive to this investor.

But that's why I say the folks that are writing these laws know nothing about being sick. And I don't think Willy Jeff feels my pain at all.

How about a "Kevorkian" proviso? Will the damn law pay for my assisted suicide when I want it?

Now that ought to provoke a moral freakout. And to add fuel to the fire, I think the law ought to pay for abortions and voluntary sterilizations too.

One way to get health care to those who need it is to take it away from those who are going to die anyway and don't need it.

Gerald M. Phillips (Professor Emeritus)
Speech Communication
Trade and Applied Books Editor, Hampton Press
Editor, IPCT: An Electronic Journal for the 21st Century
ISSN 1064-4326
Pennsylvania State University, University Park, PA 16802
Manuscripts are being accepted for the January, 1994 issues.

From: "Gerald M. Phillips, Ph.D."
Subject: Re: Access to LTC
Sat, 5 Mar 1994

I have a "DNR" card in my wallet and specific instructions to my physician.

Now let's talk business. I used to live in the state of Washington and I am very familiar with the migrant laborers situation there. I also worked for the Klinka Tribe and the Nez Perce, and shed a tear every time I drove the Columbia highway as I passed Hanford and thought of the people who lived downwind.

As a "victim" of the Ornish diet, I understand full well how hard it is to live a healthy life style. As a person who had to sacrifice his "precious" Cuban cigars, I know how hard it is to resist temptation. If someone now told me I had to give up NFL football, I would simply say let me die during the overtime of an Eagles-Giants game.

I say that the real issues are not included in Mr. Clinton's bill. To get the migrant workers in Washington to give up their refried beans and lard laden fried food would be like converting the Shi'ite Muslims to Unitarianism. The same holds true for inner city residents, and sadly, a goodly proportion of the middle class who scarf up fast food because it helps them get back on the track of the rat race.

I have had health insurance ever since it was invented. I was, presumably, an intelligent and educated man (I have delusions of adequacy from time to time.) But there was no stopping me from clogging my arteries. I said, "What the hell, it is genetic," and I kept right on eating and smoking until I was whacked by club in the chest and brought up short by a physician who handed me a death sentence.

Now, what are the concrete proposals to "legislate" a healthier life style. It is not out of order. We spend public funds on sewage disposal and clean water, both very health-oriented activities, and many states have seatbelt and motorcycle helmet laws. There is clearly a precedent for preventive medicine via the law. Will food labeling do it? Should we outlaw the Big Mac? We are already doing a major number on the smokers? Do you suppose if we set up healthy food centers, the migrant laborers would take advantage of it.

Today, because I was bored, I examined the meals served at the Senior Centers provided by the Area Agency on Aging (an arm of Pennsylvania State government.) I would estimate conservatively that those old people were being served a 50% fat diet. So I called a former contact in Harrisburg who had served as dietitian consultant for the AAA for a number of years. "Why do they do this?" I asked. "Because they won't eat healthy food," she replied.

Then I thought of my heart healthy diet the hospital served the last time I was in the coronary care unit and how my wife had to bring food in to me, and I understand that there is a great deal that legislation can't solve and great deal that stupidity and lack of consideration (neither of which can be outlawed) cannot be prevented from doing.

What do you suggest, doctor?

Gerald M. Phillips (Professor Emeritus)
Speech Communication
Trade and Applied Books Editor, Hampton Press
Editor, IPCT: An Electronic Journal for the 21st Century
ISSN 1064-4326
Pennsylvania State University, University Park, PA 16802
Manuscripts are being accepted for the January, 1994 issues.

From: John Snethen
Subject: Controlled Death
Date: Sun, 6 Mar 1994 12:34:26 EST

GMP:

I am prepared to discuss this business of controlled death.

How much money would the system save if we forewent extraordinary, futile measures the last six months of life?

I heard a physician interviewed on NPR. He resented the expectation that physicians should be the ones to perform euthanasia. He was inclined to load up the syringe, hand it to over to a relative, and let *them* shuffle their loved one off the coil. An ancillary study suggested that a significant number of spouses do not know what the wishes of the other would in situations requiring one to discontinue life support for the other.

As for myself, I hesitate to make blanket statements about what should and should not be done in these instances. Illness has its own morality and the healthy should be cautious about enforcing standards that require healthy bodies to realize them.

JS

From: "Gerald M. Phillips, Ph.D."
Subject: Re: Controlled Death
Sun, 6 Mar 1994

Me too, John! I think it is a personal decision and I do not think doctors should do the deed. I think doctors should pay attention to the new pain studies, however. Like I said, it was a smart doctor that put my mother on the "Brompton cocktail" when she was crossing over.

I'd like personal access to heroin when the time comes. Meanwhile, as morbid as it may sound, I've read the Hemlock literature. My spouse knows my wishes and I know hers. I think we need to clue more people on this stuff, but that is a private matter. It does not involve government.

Now, grit your teeth and face the issue. I will probably cork off quick and soon and save you folks a buck or two. But take my brother-in-law (please). He lives down in Sun City. He is 75, doesn't work, sits around watching the girls on the beach, plays golf, and goes to the doctor frequently. How long do you want to keep him alive?

That, America, is your question. If he needs a bypass, what do you get out of paying for it. Is he worth immunization shots for, say, 5000 children.

When I did the PR. for the Hershey mechanical heart, that was the big question raised at grand rounds all the time. We are spending millions on this project, we were told. Do we want to sacrifice the kids that could get immunized with the money? Nice question. right to the point. Anyone want to try an answer?




          ______  

|\     | |  G      | WHATEVER IT IS, I'M AGAINST IT. 

|  \   | |  M      | Rufus T. Firefly 

|   \  | |  P      | 

|    \ | |          | Gerald M. Phillips, Ph.D. (Retired) 

|     \| |______| Curmudgeon at Large

2003-03-22T06:39:00.000-06:00

The Nature of War--Book Reviews

by Gerald M. Phillips
written February 18, 1994

When I asked Pentagon officials about the nature of war in the twenty-first century, the answer I frequently got was "Read Van Creveld." The top brass are enamored of this historian not because his writings justify their existence but, rather, the opposite: Van Creveld warns them that huge state military machines like the Pentagon's are dinosaurs about to go extinct, and that something far more terrible awaits us.

While another military historian, John Keegan, in his new book A History of Warfare, draws a more benign portrait of primitive man, it is important to point out that what Van Creveld really means is re-primitivized man: warrior societies operating at a time of unprecedented resource scarcity and planetary overcrowding.

During the Second World War and the decade following it, the United States reached its apogee as a classic nation-state. During the 1960s, as is now clear, America began a slow but unmistakable process of transformation. The signs hardly need belaboring: racial polarity, educational dysfunction, social fragmentation of many and various kinds. William Irwin Thompson, in Passages About Earth: An Exploration of the New Planetary Culture, writes, "The educational system that had worked on the Jews or the Irish could no longer work on the blacks; and when Jewish teachers in New York tried to take black children away from their parents exactly in the way they had been taken from theirs, they were shocked to encounter a violent affirmation of negritude."

(The Nine Nations of North America, by Joel Garreau, a book about the continent's regionalization, is more relevant now than when it was published, in 1981.)

2003-03-12T18:45:00.000-06:00

Letter to my father-in-law

Feb. 9, 2003

Greetings Abu Ghassan,

We are hearing that Sharon and the PA are in "secret" talks that Arafat has publicly approved. Apparently, they are negotiating Israel's withdrawal from areas it shouldn't be in to begin with.

I am saving a book for you. It is called Cursed is the Peacemaker by John Boykin. It is about Philip Habib's negotiation of the Palestinian retreat from Beirut. The American Academy of Diplomacy gave it an award. You can read a sample chapter at http://www.diplomatbook.com/ . Sharon is portrayed in the book as a man whose genius is to create facts on the ground that can never be undone.

We are at threat level "Code Orange" now. The Attorney General asks us to continue living normal lives while being mindful of the threat of our unexpected and violent deaths in a surprise terrorist attack. Am I supposed to go have a coffee and a muffin and contemplate being blown to smithereens? This is politics as the theater of the absurd.

I have a vision of this administration as the collective captain of the Titanic, blindly steering an unsinkable ship into danger the size of an iceberg, discovering too late that they haven't prepared enough life boats, then dressing up in their finest clothes on the tilting deck to listen to the band play Christian hymns while we all drown.

Lena is ready to move to Lebanon. She increasingly has grown disenchanted with this country's policies. I have mixed feelings—I am not sure in which country I would feel most powerless. I still think having one small vote in America is better than having no vote at all.

We may need to rethink our model of democratic participation. In a world where democratic sentiment percolates up through media-driven surveys, the press has usurped some measure of our representative government's role. But I think this means we have more responsibility to speak our minds, not less. There is a slim chance that our views will influence the answer some person gives to these polls. It is the politics of opinions here, not of principles or ideals. Thus, thoughtful people have a duty, I think, to express cogent opinions based on sound and valid assumptions or concrete evidence, or both.

And yet, even the most thoughtful opinion published to the broadest audience resonates in the American mind the way words resonate in the ear of a man falling asleep. He hears a voice in the distance. Maybe he hears the words spoken, maybe he does not. And maybe he understands what the voice says, and maybe he does not. And if he does not, he slips into his dreams and when he awakens, his choices are driven by vague fears, discomforts, and appetites that he cannot articulate. I think most men live in a phantom world where they, like the animals, are unable to distinguish true threats or true opportunities from shadows. Most men, like our President, make decisions based on what their "gut" tells them. And there you have it: American foreign and domestic policy is driven by a gnawing in the bellies of men who are asleep or barely awake. Their motives require no reflection nor thoughtful explanation. To listen to their reasons is like listening to a man describe the logic of his nightmares and dreams. It is all reducible to that feeling in their guts, which simply commands them to devour, and they do.

I wonder whether the Bin Ladens of the world have at one time thought what I think. And if they have, I wonder whether the path they have chosen is because of the despair they felt from the conclusions they reached. Violence seems to be the last defense against hopelessness, a tactic used by those who have seen all words reduced to a naked struggle for power and survival. The Bin Ladens feel compelled to put aside all their ideals for one ideal: to kill. And they kill unrelentingly to make the world safe for that selfsame reason. Again, this is madness of the sort that could only make sense in a dream. The only difference between the Bin Ladens and the Bush's of the world is the dreamer.

I hear in the U.S. the anti-logic of "killing as the ideal to preserve all ideals." I read it today in an article I forwarded to you about the moral relativism of IDF soldiers. I doubt very much that we can ever kill our way to a better world; we can only kill our way to a world where we are better at killing.

I think those who have chosen violence have lost the will to believe in ideals. The speak in the language of ideals, but their very acts destroy the human capacity to create the better world to which they pay much lip service.

And the paradox is this: the most idealistic are the first to die at the hands of the least. As Machiavelli said, no king can be a king and a Christian too, for the true Christian would sooner die than kill. I think the answer is to abolish the office of King (and all species of it), and perhaps reserve life imprisonment for any one who seeks an executive position. But I should be careful what I say; the Attorney General (who I assume is monitoring my e-mails, the son-of-a-whore) may well label me an enemy anarchist.

Thinking of all this, I think the Muslims could be right when they say life is jihad. Our only choices are upon which battlefield will we struggle, and what weapon will we use. Will we struggle internally or externally, and will we use reason or will we use fists? I choose reason, but whether it will prevail isn't clear to me. I think I choose it in part because I can, and in part because I am revolted by the alternative, which reduces men to the status of dung-flinging apes.

I could continue to ramble, but I would be no closer to answer after twenty more paragraphs than I was after the first.

Give my love to Im Ghassan and the family. Stay safe and we hope to see you all sooner than later.

John

2003-03-11T18:27:00.000-06:00

A Review of the Pundits

written September 15, 2002

Nicholas Lemann, in his New Yorker article "The War On What?", details the fight between the old Cold War realists from Bush I's administration and the hawks in Bush II's administration.

I wouldn't have looked for much difference between them, but there is a difference. The realists, as cynical as they may be, still understand the value of multilateralism and the international order. Theirs is a world based on national interests, deal making, and pragmatism. In the opinion of the realists, the hawks are naive in their belief that military superiority in particular means superiority in general. The hawks will simply use American military might until we all discover—to our downfall and detriment—the limits of military power to control world events.

The hard copy of the New Yorker also has a bio of Ayman al Zawahriri, the Egyptian physician who's the brains behind al Qaeda. It reads like an Arabic Heart of Darkness, with Zawahriri in the role of Kurtz. Worth reading, if for no other reason than it begins to reveal how complex are the forces driving fundamentalist Muslims mad. One interesting point made in the article: Although we hear much talk about the Saudi citizenship of the 9-11 terrorists, out of the nearly forty or so strong men running al Qaeda, all but about three are Egyptians.

Now for a review of a review.

The final Worth a Read (and if you have to pick one of the three, pick this one) is a books (yes, plural) review by Louis Menand. Menand has surveyed the outpouring of post-9-11 prose from the left and the right, both from the states and from Europe, and has cast a jaundiced eye on it all. Menand, who is refreshingly world-weary about the events of a year past, notes, "If Germany invaded France without warning tomorrow, it is unlikely that the world would take it as the occasion for a referendum on the question Is France good or bad? Or, even more imponderable, La France, qu'est-ce que c'est?"

On Noam Chomsky's "wake-up" call to America, 9-11, Menand wonders, "Wake up to what? The fact that the United States is involved in the affairs of other nations? If that is a problem, we are left with only two alternatives: isolationism or conquest."

On the other hand, Chomsky's book "was practically the only counter-narrative out there at a time when questions tended to be drowned out by a chorus, led by the entire United States Congress, of 'God Bless America.'"

Menand then moves on to casually skewer Alice Walker with her own tepid schmaltz on dealing with 9-11, which boils down to wearing a red thread on the right wrist for All Things Feminine, and wearing a brown one on the left wrist for All Things That Endanger All Things Feminine." Menand is so impressed with Walker that he spends nearly five sentences reviewing her.

Speaking of schmaltz, Menand goes after Denish D'Souza and Bill Bennett. He decides that D'Souza's notion that America "turn Muslim fundamentalists into classical liberals" is nothning more than a tactful version of Ann Coulter's idea that "We should invade their countries, kill their leaders, and convert them to Christianity." He adds that whereas it was the right-wing D'Souza who expressed begrudging admiration for the terrorists because they nevertheless were willing to die for their cause, it was the left-wing Bill Maher who, while D'Souza was his guest on Politically Incorrect, got pilloried by the right for suggesting that lobbing cruise missiles at terrorists was cowardly. So put a lid on that sissy talk. It gets the back of the Republicans up.

As for William Bennett, Menand describes his quest for national moral purity as a form of "hypochondria." In his Why We Fight: Moral Clarity and the War on Terrorism, Bennett actually expresses gratitude for the terrorist attacks because they will lead the nation to purge itself of relativism and multiculturalism. According to Bennett, we've grown soft and weak from years of peace and prosperity.

"Thank God that's over!" says Menand.

Also on Menand's hit list is Roger Rosenblatt's 30 Reasons to Love Our Country, a book of "essayettes" that Menand says "is of a mushiness to make 'Goodnight Moon' seem possibly a shade too contentious."

There is a bright spot in all this post-9-11 dreck. John Gray, the English historian (whose essays on Isaiah Berlin's political philosophy I can recommend), is the only author who seems to grasp that whatever America is, it can't be grasped--at least not the way the aforementioned authors have tried. Says Gray: "For every attitude that is supposed to be distinctively American one can find an opposite stance that is no less so. . . . There is no such thing as an essentially American world view—any more than there is an essentially American landscape. Anyone who thinks otherwise shows they have not grasped the most important fact about America, which is that it is unknowable."

In the end, says Menand agreeing with Gray, America is a plural place, which means it is a paradoxical place. "Americans are willing to fight, and even to die, for the belief that no one should be made to die for a belief," he says, adding: "The formulations are fuzzy because 'a way of life' has many aspects. There is no perfect clarity. Let us be clear about that."

The Heathen

2003-03-10T18:49:00.000-06:00

Continuing Legal Education

written January 19, 2002

I went to a continuing legal education forum in Indianapolis last Thursday. The topic was the federal laws that are triggered when the President calls reservists to active duty.

There were five uniformed speakers, one of whom was the two-star Adjutant General for Indiana. The session before lunch featured a discussion by Major McGillivary about the USA Patriot Act. He ended his hour-long discussion by directing the audience's attention to the course materials. In the packet was a copy of the Department of State's list of foreign terrorist organizations.

Major McGillivary asked for questions from the audience. The ushers passed a cordless mike to the back of the room and a man asked, "Why isn't the KKK on the list?"

The Major stood there for a moment. Then he said: "Well, it's a list of foreign terrorist organizations."

The man said, "I hear a lot of talk about fighting terrorism, but what about the terrorism in this country perpetrated against African Americans?"

The Major opened his mouth but didn't say anything.

"Is it just me?" the man said. Another man said, "Yes."

By now, the man with the mike had gotten louder and was holding the mike against his mouth. You could feel the percussion of his words coming out of the stadium speakers.

"Is it just me?" he said. "What about my people?"

The Major's mouth was still open. He raised both hands over his head.

"What about my people?" the man said.

The Major's hands were still over his head. "I think the KKK is a terrorist group too," he said. Then the Major looked sideways at where the General sat and added, "But my views aren't the official views of the U.S. Army or the Indiana National Guard." He didn't say anything else. Finally, he put his hands down.

Nobody else had a question. The Major broke the audience for lunch. As the crowd left the conference hall, a military band recording began to play over the speakers, and everyone marched out to a slow brass-and-wind rendition of Dixie.

When I got back from lunch I saw that the man with the mike had not come back. Now there were only two blacks in the audience of about 150: a retired judge and a woman wearing a hijab, who sat near me.

Three hours later, the session closed, but before it did, one of the colonels went to the podium to say that Bill wanted to address the audience.

Bill was an old man with a large red face and a small white moustache. When he spoke, his face and his voice shook.

Bill had a March 2001 National Geographic and a ceramic beer stein. The cover of the Geographic had a picture of a monkey with round eyes. Bill opened the National Geographic and began to read from an article that described how Muslims in an unnamed place had burned the home of a sergeant and had killed some gentle villagers.

Then Bill picked up the beer stein in tiny pink hands and held it over his head.

"I bought this beer stein from a sale table after September 11," he said. On the big screen next to him, the Power Point software projected an image from the beer stein.

The beer stein was decorated with what looked like a child's drawing of a fat jet airliner flying over the Eiffel Tower and toward two tall thin buildings. Above the plane was written, "Here's to the Next 2000."

Bill drew the audience's attention to the "red-tinged airplane" flying directly into the "two towers." He read the legend over the airplane: "The next 2000," he said. Then he rotated the beer stein and pointed to another drawing. It was a tiny little store with a sign out front that said, "Taj Mahal Gift Shop."

"As you know," Bill said, "the Taj Mahal was built by a sheikh to honor his harem. The inside of the Taj Mahal is filled with Islamic writing."

Then Bill directed the audience's attention back to the airplane. "See these round circles? They look like windows--but they're not." Bill had taken the beer stein to a jeweler and looking at the airplane windows through a jeweler's loupe, had discovered something. "The windows are really a series of tiny 9s," he said.

Bill raised the beer stein over his head again. "The terrorists were sending us a message," he said. "If only we had been listening. We could have avoided September 11." Bill added that he had advised the shopkeeper who sold him the beer stein that it was a dangerous thing to sell. "If someone with a less-cool head had seen this beer stein," Bill told the shopkeeper, "you would be lynched." In the end, the shopkeeper sold the beer stein to Bill for seventy-five percent off.

"You can come up and see the beer stein if you want," Bill told those who hadn't left by this point. The man next to me said, "If you play the beer stein backward, it says 'worship Satan.'"

I didn't go see the beer stein. I left behind the woman with the hijab.

The Heathen

2003-03-09T16:52:00.000-06:00

On Bush v. Gore

written in the wee hours of December 13, 2000

The Supreme Court has selected a President.

I have read the opinion. I tried to draw a Venn diagram to represent the various ideological groupings of Justices, but found that two dimensions were not enough.

My first rough count suggests that there are twelve to twenty-plus groupings of agreements/disagreement, I-don't-join-but-I-agree's, I-don't-concur-but-I-agree's, and I-dissent-but-I-agree's on Nearly Everything Under the Law.

In other words, the Court has drafted an opinion that is as clear as blueberry pie. But the opinion leaves Gore a window of opportunity.

Gore can still win one of two slates of Florida electors because Justices Rhenquist, Scalia, and Thomas hid the key under Gore's pillow that will unlock the electoral cage he finds himself in.

Time has run out for Gore's manual recount because the Florida Supreme Court said that the Florida Legislature wanted its electoral votes to get to Congress within the federal time limits. Gore needs to go back to the Florida Supreme Court and ask it to overrule itself on that particular point.

If the Florida Supreme Court does overrule itself, Gore has until the middle of January to complete his manual recount, provided that the Florida Supreme Court supplies all the Equal Protection bells and whistles desired or acknowledged as important by a majority of the U.S. Supreme Court Justices.

The worst that could happen is what Justice Stevens describes in his footnote 5, namely, two slates of electors will be sent to Congress and Congress will have to choose between them. This possibility seems to be of little concern to any of the Justices.

I think the Court could be 9-0 on letting state legislatures decide presidential elections in tight races, but the legislatures will have to remove contested elections from judicial review if they want to avoid messes such as the current one. State legislatures will also have to agree that Congress will be the final judge of contested electors pursuant to federal law.

If you look at Justice Stevens' footnote 2 (documenting all the state election laws that resemble Florida's), it probably means we will see Bush v. Gore-type lawsuits across the nation every four years in states with Mucho Electoral Votes and Close Races. Rather than lock boxes and partial birth abortions, I suspect the next President will be looking to sign a uniform election law.

And now for my vote for the Best of the Best of the Worst after one quick read:

Best Reasoned Decision/Worst Solution goes to Justices O'Connor & Kennedy, who hid their true identities behind the per curiam opinion.

Best Dissent, But Only Because He Contradicts Himself as Effectively and as Often as he Slams Justice Rhenquist goes to Justice Breyer.

Justice Whose Logic Most Resembles His Bow Tie but Who Will be Most Quoted by Democrats Everywhere Until the End of Time or Until Justices Thomas, Rhenquist, and Scalia Die goes to Justice Stevens.

The Crypto-Justice-Spewing-Sarcasm Award goes to Justice Scalia, who must have (had to have) written the "elusive/delusive" zinger in part III of the concurring opinion.

The Golden Ouija Board goes to Justice Ginsburg, who channeled Justice Rhenquist to illustrate why Federalism, which is usually a Bad Thing to Partisan Liberal Justices, is a Good Thing in this case.

And the Karnak the Magnificent Award goes to my Federal Jurisdiction professor whose final exam read almost verbatim like Justice Ginsburg's analysis of why habeas corpus review is relevant to closely contested presidential races.

I would go to bed, but it looks like it is now time to get up.

The Heathen

2003-03-09T12:45:00.000-06:00

On Principled Dissent

written March 9, 2003

To Moises Naim, principled dissent from President George Bush's plan to violently overthrow Iraq is itself a form of violence against the United States.

President Bush has convinced most of the world that he intends to invade Iraq, with or without the support of friends and allies, with or without sanction under international law. A remarkable anti-war movement has ensued, with tens of millions of people throughout the Eastern and Western hemispheres protesting against war.

One would think that President Bush, who so frequently praises the virtues of democracy, would also believe it virtuous to take popular opinion into account. But he has not, does not, and apparently will not. One would also think that when the president threatens to rain hundreds of cruise missiles on a sovereign nation (a strategy referred to in quasi-biblical terms as "shock and awe"), then responsibility for the destruction it causes and the backlash it will trigger would lie squarely at his own feet.

Moises Naim disagrees. In a recent Financial Times op-ed ("Anti-Americanism's nasty taste"), Naim, editor of Foreign Policy, argues, first, that dissenters against war in Iraq place the world in danger of terrorism, and second, that dissent undermines U.S. legitimacy abroad.

Naim is wrong.

Naim brands dissenters "anti-Americans," which he divides into two camps: the "murderous" and the "light." The members of the murderous camp, says Naim, are "fanatical terrorists who hate the US—its power, its values and its policies—and are willing to kill and die in order to hurt it." What distinguishes the light anti-Americans from the murderous is that members of the light camp aren't, well, murderous. Rather, they peacefully exercise their rights of assembly and speech, taking to the streets and the media to air their disagreement.

In Naim's estimation, however, the difference between murderous fanaticism and democratic dissent is little difference at all. Both are motivated by hatred of the United States.

Naim is correct about the fanatics. But as to peaceful dissenters, Naim has created the classic straw man. He rules out the possibility that any principled motive underlies dissent against U.S. war plans and ascribes to such acts a powerful, irrational force—pure hate.

It is a sign of maturity not to assume the very worst about those who merely disagree or contradict us. After all, reasonable minds can disagree about anything; the western legal system depends on this fact. On the other hand, it is a mark of childishness—or at least churlishness—to blame others for hating us whenever they disagree with us. It is a childish narcissism that grants men faith in the absolute beauty of their own ideas. Men so utterly in love with their own thoughts are bound to conclude that only people insane with hate could ever dissent from such beauty.

On the playground, the five-year-old narcissist weeps, withdraws, or lashes out when the other children do not pay him the homage he believes he is owed. He labels the other children with a child's epithets. Once grown, the child's vocabulary is replaced by the adult's. He still characterizes his detractors as something loathsome, but his words also carry greater practical meaning.

To name something is to instruct us how to behave towards it. If someone is labeled a "terrorist," then we know to behave toward that person according to well-settled security and legal policies. Likewise, if someone is labeled a "patriot," then we know to give great deference to that person's deeds. Thus, when leaders and opinion makers label their opposition, it is more than playground weeping and teeth gnashing; they are instructing their followers how to behave toward the opposition.

Naim has said that hate motivates the dissenters. In doing so, he has instructed his followers to behave in two ways. First, they must be wary of the dissent because the same passion that motivates other "anti-Americans" to kill also motivates the dissent; the "light anti-Americans" are not murderous—yet. Second, Naim's followers need not engage the dissent. After all, who can reason with hatred? Only escalating hatred could come of it.

Because Naim raises these issues, the onus is on him to give us reasons to agree with him. Alas, he has not given us one example or illustration of so-called "light anti-Americanism"; without such evidence, his novel definition is worthless. Furthermore, even if Naim had provided one example, a substantial amount of evidence still contradicts his claim that dissent is hatred by another name.

The Vatican's daily newspaper, L'Osservatore Romano —hardly a bastion of hatemongering—has described preemptive war as "murder on a grand scale; useless, unjust and intrinsically stupid." Senator Robert Byrd, among the more respected and senior members of the Senate, has passionately denounced the rush to war; his fifty years of service to his country hardly bespeaks hatred of it. Zbigniew Brezinski, national security advisor for President Jimmy Carter, has blamed President Bush's "demagogic fixation on Iraq" for the erosion of international support for and legitimacy of U.S. policy (Financial Times, March 4, 2003, p. 3). Brezinski is hardly a wild-eyed bomb thrower—the White House frequently invites him to Pentagon policy briefings. President Carter, while accepting the Nobel prize for peace, criticized U.S. Policy in a lecture that was no manifesto of hate.

The list of principled dissent could go on. Consider the millions of middle class men and women throughout the United States and Europe who have never protested anything but are protesting war against Iraq. "Hatred" is not the first word that springs to mind when you think of them.

Because Naim offers no evidence in support of his position, and because so much evidence plainly contradicts his assertion, he is not entitled to our belief on the matter of "light anti-Americanism." In the end, all Naim persuades of is that he and his followers are unwilling or unable to engage the dissent on the merits of their arguments.

Naim's second contention is that dissent undermines U.S. legitimacy abroad. Again, he has missed the mark.

Legitimacy is the degree to which a nation's actions are valid in the eyes of its people and the international community. Such validity depends on the extent to which a nation's acts are principled, conforming to recognized and accepted laws, norms, and rules of behavior. Legitimacy is not, as Naim implies, something that is owed to the United States by its people and other nations. Rather, it is a mark of how successfully the United States has persuaded its own people and the international community that its acts are, indeed, valid.

Thus, to blame the dissent for stripping the United States of its legitimacy is merely to blame the dissent for not being persuaded. Such blame, however, only makes sense if the blamer is convinced of the utter, absolute, self-executing truth of his own ideas. While it has been the dream of man from time immemorial to be possessed of absolute truth, the dream so far has eluded us; I doubt that Naim and his followers have uncovered it here, or that the United States possesses it by virtue of its economic and military strength.

The question is not whether dissent robs the United States of its legitimacy, but whether the Unites Sates' own acts have conformed to the rules of international behavior. When the question is framed in this way, Naim's conclusions again not only suffer from a lack of evidence, but are discredited by a substantial amount of contrary evidence.

The United States built the international system under which all nations have existed the past fifty years. The international rules in place are the rules that the United States crafted in partnership with its allies. The rules of this system eschew the use of force and unilateral action. Instead, diplomacy and multilateral efforts are the prevailing norms.

It is the United States—not the dissent—that now seeks to deviate from these norms. It is the United States—not the dissent—that has built its national security policy on the unprecedented doctrine of preemption. It is the United States—not the dissent—that threatens to attack Iraq regardless of what international law, the international community, and popular opinion counsel. It is the United States—not the dissent—that has relied on flawed and fabricated data to support its allegations against Iraq. Indeed, it is the United States—not the dissent—that walked away from the Kyoto climate-change protocol, withdrew from the Anti-Ballistic Missile treaty with Russia, and killed negotiations designed to strengthen the Biological Weapons Convention.

If the United States' behavior lacks legitimacy, it is because the United States—not the dissent—is failing to follow the rules of the very system it built.

Thus, Naim is left with nothing to bolster his case. His Financial Times op-ed boils down to a vain attempt to work the phrase "anti-Americanism" into every sentence, as if sheer repetition will persuade his readers to purchase his ideas the way a radio jingle played over and over might persuade them to purchase a stick of deodorant.

One can only wonder at the vulnerability Naim feels when he considers the lack of evidence and reason for his position. It is no surprise that he relies on simplistic labels to make his point, as if he could, by mere incantation, draw a magic circle around his shining ideals and save them from a tarnishing rebuttal. But there are no magic circles. If Naim's ideas were nearly so illuminating as he pretends them to be, they would outshine any disagreement. He would not need to hide his detractors under a bushel called "light anti-Americanism." He would not have to protect his thoughts from principled dissent.

The Heathen

2003-02-26T04:52:00.000-06:00

When Good Books Collide

written April 1, 2000

How Green Was My Valley of the Dolls
Three showbiz girls claw their way to the top in a charming Welsh coal mining town in 1939, then hit the bottom when their search for husbands leads them to men who have great singing voices but eat leeks and spit black phlegm. The three adjust to reality in this endearing folk tale by becoming addicted to prescription sedatives.

Little Fountainhead on the Prairie
A megalomaniac architect builds the biggest damn log cabin anyone in Kansas has ever seen, then has S&M sex with Ayn Rand in the loft while papa plays his fiddle.

20,000 Leagues Under the Volcano
Captain Nemo sails the Nautilus to Cuernevaca to sink engines of war but instead gets drunk for 12 hours on mescal, is robbed, then murdered by a couple of Mexicans who reduce the giant squid to calamari.

The Sermon on the Canadian Mountie
Jesus advises his followers, "Blessed are the meek, for they always get their man."

Curious George and the Rape of Lucretia
In this timeless children's story a funny little monkey violates a Roman lady, which allows the Man in the Yellow Hat to the overthrow Tarquin rule in Rome and establish the Republic.

The Joy of Cooking the Naked Lunch
Favorite hallucinatory recipes from the Interzone, including Narcotic Souffle and Cold Turkey Sandwich--plus the William S. Burrough's mixed drink compendium for husband-wife junkies: Heroin Chaser and Shooter Through the Head.

The Heathen

2003-02-24T18:56:00.000-06:00

On the Hebron Massacre

by Gerald M. Phillips
March 21, 1994

As an Atheist by upbringing and choice, I note that religion is most often accompanied by action. Belief is a private matter engaged in inside the head. Religion is public expression in the midst of others who are usually affected by the expression. On Sunday morning, when the devout worshippers toddle off to church, I am temporarily plagued by traffic jams but take advantage by having the super market to myself while they raise their voice to make joyful noises unto the Lord.

I also suffer the effect of their pressure groups on the laws of my state. This morning the Catholic sponsored anti-abortion law went into effect. My public schools are under siege to remove books from the library because of the tender ministrations of the fundamentalist Protestant churches. When I taught, I would get, periodically, long lists of religious holidays for which I was supposed to excuse students. (Separation of church and state?)

I must bow my head in prayer at public gatherings.

And worst of all, I must suffer the depredations of Louis Farrakhan, Yahweh ben Yahweh, the Lubavitchers, the Aryan Christian Brotherhood, the Ku Klux Klan (yes, a religious organization), Pat Robertson and his brethren, and the gaggle of child molesting priests all over the country.

I know that I am condemning entities because of individuals. But I will cite my own religious authority, Soren Kierkegaard who condemned the organized religions as follows:

"[A] crowd in its very concept is the untruth, by reason of the fact that it renders the individual completely impenitent and irresponsible, or at least weakens his sense of responsibility by reducing it to a fraction.

"....The falsehood first of all is the notion that the crowd does what in fact only the INDIVIDUAL in the crowd does, though it be every INDIVIDUAL. For 'crowd' is an abstraction and has no hands: but each individual has ordinarily two hands.

"....In the next place, the falsehood is that the crowd had the 'courage' for it, for no one of the individuals was ever so cowardly as the crowd always is.

"The crowd is untruth. Hence none has more contempt for what it is to be a man than they who make it their profession to lead the crowd....

"....The witness for the truth--who naturally has nothing to do with politics and must above everything else be most vigilantly on the watch not to be confounded with the politician...is to engage himself if possible with all, but individually, talking to every one severally on the streets and lanes...in order to disintegrate the crowd, though not with the intent of educating the crowd as such, but rather with the hope that one or another individual might return from this assemblage and become a single individual."

Phillips comment: Organizations of religion are generally mindless regressions to the numb morality of the lower sensibilities of the humans that take refuge in them. Along with Kierkegaard, I "pray" that people can be isolated from the conscience-destroying crowd of religious organizations and brought to individual humanity and personal concern for their fellows.

It is crowd mentality that brought us Hebron and crowd mentality that prevails in Bosnia. It is crowd mentality that shoots doctors in the back and it is crowd mentality that fights adoption of needy children.

I do not believe the P.C. creed for a minute. It is another example of crowd mentality. The screaming lunatics on the West Bank jumping up and down and yelling "kill, kill, kill" are indistinguishable from one another in their total lack of personal identity and responsibility.

In Altoona, they are trying a smirking priest for molesting an altar boy. The priest admits he has molested 26 other boys, but not THIS one. The church is paying for his lawyer as if condoning the act. After all, they (the church) can forgive him and make him repent and they really don't give a flaking damn about those 26 boys, any more than the loonies that supported Goldstein in his massacre have a care at all about the families of the people who were killed.

It is, I think, easy to kill in the name of God and country. It is somewhat more difficult to assume personal responsibility under the common law.

2003-02-23T06:15:00.000-06:00

Malpractice

by Gerald M. Phillips
January 11, 1994

Speak Silenzio, despite the paradox of your name!

What is the relationship between malpractice and malfeasance. That is, if the doctor makes an honest mistake and the patient suffers, to what extent does the law make the doctor vulnerable. I asked my son, the malpractice lawyer, and he says, "You work it out or the judge decides."

This implies that there is no standard. Perhaps that is what the law should do for starters. It would not cost the taxpayers a thing if someone, for good and all, defined malpractice say, in the same terms as a penalty offense in the National Football League.

Your equitable correspondent
Gerald M. Phillips

2003-02-23T06:03:00.000-06:00

Argumentum ad Hominem

by Gerald M. Phillips
January 11, 1994

Cicero, in his essay, "De Oratore," defined the orator as the "good man who also speaks well." He spends a great deal of his essay attempting to define the Aristotelian concept of "ethos."

Attacks on ethos are "argumentum ad hominem," but when Eliot Ness argued against Big Bill Thompson on the grounds that he was a friend of Al Capone, the "ad hominem" was well addressed. It was a demonstration that Thompson was not a "good man."

The attacks on Mr. Clinton, however, are not based on any charge. In fact, the argument is that there is no evidence that a charge is warranted. It is clearly the political opposition seizing on a major public relations gaffe.

However, having taught argumentation for more than four decades, I can warn you that there will be more and more of this sort of argument raised as smoke and mirrors to distract attention from the health care debate which will, in the final analysis, define the Clinton presidency.

It is caveat emptor for each of us. We must evaluate the "ad hominem" to discover whether it is a genuine blot on the escutcheon or a "sophistical elenchus," a deliberate contumely designed to divert our attention from important issues.

I would prefer to continue to assault the HSA and leave Mr. Clinton's virtue or lack thereof for the courts to decide.

Your heraldic correspondent
Gerald M. Phillips

2003-02-22T13:38:00.000-06:00

In Legal First, Groups Urge High Court to Review Secret Court Ruling on Government Spying

NEW YORK, February 18 - A coalition of civil liberties and Arab-American groups today urged the U.S. Supreme Court to review an extraordinary decision by a secret appeals court that broadly expanded the government's powers to spy on U.S. citizens.

The case offers the first opportunity for the Justices to consider government actions in the wake of September 11 that severely restrict civil liberties in the name of national security.

The ACLU filed the appeal together with the National Association of Criminal Defense Lawyers (NACDL), the American-Arab Anti-Discrimination Committee (ADC) and the Arab Community Center for Economic and Social Services (ACCESS), a Michigan-based organization.

At issue in the case-which has focused a spotlight on the ultra-secret Foreign Intelligence Surveillance Court-is whether the Constitution and the USA PATRIOT Act adopted by Congress permit the government to use looser foreign intelligence standards to conduct surveillance in criminal investigations in the United States.

Today's request also gives the U.S. Supreme Court the opportunity to review for the first time the constitutionality of the Foreign Intelligence Surveillance Act (FISA), originally enacted in 1978.

The groups said in legal papers that they believe their members and many other Americans are currently subject to illegal surveillance, noting that the FBI has already targeted its members in numerous ways. For example, the FBI recently ordered its field offices to count the number of mosques and Muslims in their areas in order to establish their surveillance priorities.

The FISA court and the Court of Review were created under a federal law intended to authorize government wiretaps in foreign intelligence investigations. Under FISA procedures, all hearings and decisions are conducted in secret. The government is normally the only party to FISA proceedings and the only party that can appeal to the Supreme Court.

In a separate motion that accompanied the request for a review of the lower court decision, the groups argued that they should be allowed to appeal the historic decision even though they were not parties in the lower court proceedings.

The FISA Court of Review's November 2002 ruling-the first in its history-overturned an earlier unanimous decision of the lower FISA court rejecting the Justice Department's bid for broader surveillance powers. In its May 2002 decision, the FISA court documented numerous surveillance abuses, including serious errors in approximately 75 applications for foreign surveillance.

Today's legal challenge comes just days after reports that the Justice Department is seeking yet another massive legislative expansion of its powers. The proposed legislation goes even further than the USA PATRIOT Act in eroding checks and balances on Presidential power and encouraging police spying on political and religious activities.

The Motion to Intervene

The Petitioners move to intervene, alleging that the Court of Review's decision "seriously compromises the First and Fourth Amendment rights of United States citizens and permanent residents." The Petitioners add, "These fundamental issues should not be finally adjudicated by courts that sit in secret, do not ordinarily publish their decisions, and allow only the government to appear before them."

In particular, the Petitioners argue that Congress did not intend the FISA courts to rule on statutory and constitutional issues arising from FISA litigation. Additionally, the Petitioners argue that Supreme Court review is justified because the FBI has doubled its requests for FISA search warrants, placing Arab, Muslim, and South East Asian Americans in fear of unconstitutional searches and invasions of privacy.

I. Intervention is proper under Rule 24 F.R.C.P.

Rule 24 of the Federal Rules of Civil Procedure allows a party to intervene in a case if the requirements of (1) timeliness, (2) a cognizable interest, (3) an impairment of the interest, and (4) the lack of adequate representation have been satisfied.

A. Timeliness

The Petitioners argue that their motion is timely because it was filed within 90 days after the Court of Review rendered its decision, which is the period of time for filing petitions for certiorari with the Supreme Court.

B. Cognizable interest

There are three criteria for the "cognizable interest" provision of F.R.C.P. 24. First, there must be an asserted interest. Second, some law must protect that interest. Third, there must be a relationship between the interest that the law protects and the claims at issue.

The ADC and ACCESS claim they satisfy this requirement. First, they assert that they have an interest in free speech, association, and privacy. Second, they assert that the First and Fourth Amendments to the U.S. Constitution protect these interests. Finally, they argue that the FISA court's ruling implicates these legally protected interests because the FBI already claims to be watching members of the Arab community and monitoring the speech of Muslims or those persons communicating with INS detainees.

Furthermore, the Petitioners are vocal critics of U.S. foreign policy in the Middle East and have defended or donated to charities under investigation for or accused of supporting terrorist organizations. They believe this makes their members a target for government surveillance. Many have already been interviewed by the Department of Justice and the FBI; as a result, many have curtailed speech and associational activities protected by the First Amendment, and fear that the government is violating their privacy interests, which are protected by the Fourth Amendment.

The ACLU fears that its staff and members are or will be targets under FISA because of the ACLU's defense of Arabs, Muslims, and South Asian Americans. The NACDL argues that information obtained from FISA surveillance will be used unconstitutionally against their clients in criminal proceedings.

C. Impairment

The Petitioners argue that their interests will be impaired if intervention is disallowed because (a) they cannot appeal the FISA Court of Review's decision to any other court, and (b) they will be subject to the possibility of government surveillance without ever knowing whether and to what extent their activities have been or are being observed.

D. Lack of adequate representation

The Petitioners argue that they satisfy this requirement because the government is the only party apparently allowed to appeal a FISA ruling to the Supreme Court. Given the government's lack of interest in appealing since it won the case below, the Petitioners have no one to adequately represent their interests.

II. Standing

The Petitioners also claim to have standing to intervene because their members would otherwise have standing to sue in their own right; the interests the Petitioners seek to protect are germane to the purposes of the various organizations seeking intervention; and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit because no questions of fact are at issue and because it is difficult--if not impossible--for people who are targets of secret surveillance to assert their constitutional rights in court.

The Petition of Certiorari

I. Introduction

The Petitioners seek review by the Supreme Court "to clarify that the government cannot constitutionally conduct surveillance under lower foreign-intelligence standards where its primary purpose is law enforcement rather than foreign intelligence."

II. Jurisdiction

The Petitioners cite three separate grounds for the Court's jurisdiction in this case.

First, they cite 50 U.S.C. § 1803(b), which provides in relevant part, "If [the FISA Court of Review] determines that the [government's] application was properly denied, the court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision."

The statute doesn’t say whether parties other than the government can petition the Supreme Court if they lose before the FISA court. However, the Petitioners argue that Congress did not intend to prevent non-government parties from petitioning for review. They claim that Congress only provided for appeals by the government because normally the government is the only party that appears before the FISA courts.

Second, the Petitioners argue that the Court has jurisdiction under 28 U.S.C. § 1254, which grants the Supreme Court power to review any decision by a court of appeals. They assert that the FISA Court of Review is a "court of appeals," thus, the Supreme Court has jurisdiction over this case.

Third, the Petitioners argue that the Court has jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a), which provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

The Petitioners claim that the All Writs Act is a gap-filler that comes into play when the law doesn't specifically confer Supreme Court jurisdiction over a type of appeal. They also argue that an appeal to the Supreme Court should not depend on whether a ruling was favorable or unfavorable to the government. Furthermore, they argue that the extraordinary circumstances surrounding this case warrant review of the case.

III. Statement of the Case

The FISA Court of Review held that the USA Patriot Act authorizes issuance of FISA warrants even when the primary purpose of an investigation is law enforcement rather than foreign intelligence.

The FISA Courts were created by Congress in 1978 to grant surveillance warrants to the FBI to secretly gather intelligence information--not information to be used for criminal law enforcement--on foreign powers or agents of foreign powers; the warrants aren't nearly as difficult to obtain as criminal search warrants, which are governed by the Fourth Amendment.

The government believed that the USA Patriot Act expanded the scope of FISA warrants to include the gathering of information for criminal law enforcement purposes.

Thus, in 2002, U.S. Attorney General John Ashcroft asked the FISA Court to change its rules so that FISA warrants could be used for criminal law enforcement.

In spite of the fact that the government had misled the FISA Court on numerous instances, the FISA Court relaxed the rules on warrants somewhat, but not as much as the government wanted.

Dissatisfied with the FISA Court's decision, the government appealed to the FISA Court of Review, making an argument that it had never presented to the lower FISA Court: that there is no statutory basis to limit FISA warrants to intelligence gathering only. The Court of Review rejected the government' s argument, stating that the Patriot Act required judicial inquiry into the "significant purpose" behind the government's motive for seeking surveillance information in the first place.

Having said that, the Court of Review agreed with the government's second argument that the "significant purpose" test eliminated the need to weigh the government's law enforcement purposes against its intelligence gathering purposes. Under the Court of Review's ruling, the government need only articulate objectives that are broader than merely criminal prosecution.

As a result, FISA warrants may be issued even when the government's primary purpose in seeking the warrant is criminal law enforcement and not intelligence gathering.

The Court of Review avoided the question of whether a FISA warrant is a "warrant" for Fourth Amendment purposes.

Rather, the Court held that because the FISA statute's main purpose is to govern intelligence gathering, the mere fact that a FISA warrant may lead to criminal prosecution does not mean that FISA warrants are governed by the Fourth Amendment. Intelligence gathering, said the Court, will usually implicate criminal prosecutions, which is not sufficient to trigger Fourth Amendment protections.

IV. Arguments

First, the Petitioners argue that because Congress passed FISA in response to U.S. government excesses in spying on its own citizens, the Court should not sanction the expansion of FISA warrants into the criminal law enforcement realm.

Second, the Court of Review should have--and could have--avoided the problematic Fourth Amendment issues by ruling against the government.

Third, FISA warrants are unconstitutional under the Fourth Amendment because they aren't actually "warrants." Real warrant require the government to show probable cause that the target has committed, is, or is about to commit a crime.

A FISA warrant only requires a showing of probable cause that the subject is a foreign power or agent of such power, and that foreign intelligence will be gathered. The government doesn't have to show any probable cause that the target of a FISA warrant is in any way connected to criminal activity.

Moreover, unlike warrants governed by the Fourth Amendment, targets of a FISA warrant are categorically denied any notification that they have been searched.

Even if these concerns were not fatal to FISA warrants, the fact that FISA warrants are subject to less judicial review than criminal search warrants is enough to make them unconstitutional.

The Petitioners also argue that the government cannot circumvent the Fourth Amendment by citing "special needs," because the Supreme Court has never held that special needs suspend Fourth Amendment requirements when a search implicates criminal law enforcement.

Fourth, the Petitioners argue that the FISA Court of Review's holding conflicts with numerous other federal court rulings that FISA warrants are restricted to foreign intelligence gathering and cannot be used for criminal law enforcement purposes.

Fifth and last, the Petitioners argue that allowing FISA warrants that violate the Fourth Amendment will lead to violations of First Amendment rights because people will self-censor unpopular political speech out of fear of being targeted by a FISA warrant.

2003-02-22T06:19:00.000-06:00

'Our critics are antisemites....'

written October 12, 2002

An unsigned editorial in Forward asserts:

“If a person bitterly attacked Israel for its treatment of Palestinians, but also similarly attacked China for its treatment of Tibetans, Russia for its treatment of the Chechens and India for its treatment of the Kashmiris, I would not attribute the criticism to antisemitism even though Israel has far more justification for its actions than any of these countries.”

I accept Forward's admission that Israeli policy is liken unto the policies of China, Russia, and India--brutal and bloody, formulated by an often repressive regime bent on dominating and destroying an indigenous people.

And I now understand that as a frequent critic of Israeli policy, all I need to do to avoid being spuriously labeled an antisemite is to note that Israel's actions place it in the company of other thugs on the world stage.

2003-02-22T05:55:00.000-06:00

Memo to the Editor

The following is an e-mail received by a colleague of mine who was a third-year law student at a top-tier law school. It reveals the close mentoring relationship that some law school professors develop with their young charges. Pay close attention to how the professor inspires and motivates the student editor of the law journal. In particular, pay close attention to how the professor, acting as a role model, shows the student editor how to solve a problem with the editing of a document:

Date: Mon, 16 Apr 2001 08:29:11 -0500
From: "G."
To: "U." Subject: Book Review

MEMORANDUM

To: U., Editor-in-Chief, The Journal

From: Professor G.

Re: Book Review

Date: April 16, 2001

This weekend I reviewed the most recent revision of the book review on Law in South America, and I am livid about what was delivered to me by the Journal's editors. I expressed my displeasure to both you and Mr. W. after I reviewed the last version of the book review, but matters have only gotten worse. I have worked for six years on the Journal, and rarely have I seen, at this late stage in the editing process, such a pathetic performance by the student editors. It is clear that the student editors are either incompetent or are simply going through the motions with caring about the quality of the product they put in front of me or the author. If I was the partner in a law firm and junior associates produced work this bad, they would be fired immediately.

You and I need to discuss this matter at your convenience.

G.

###

Now, I'm no big city lawyer (yet), but it seems to me that law school professors who call their students names may want to reevaluate why they're teachers. They may want to consider the effect they have on young minds with high hopes of entering an elite profession.

And they may want to consider that those same law students are going to go on to be quite successful. The day will come when either the professor or the law school needs or wants something from those attorneys--most likely money for the law school's annual fund. It wouldn't surprise me if some attorney--older and wiser to the game law school professors play--whipped out a copy of the above memo and told the school, "If this is how much I was worth to the law school, then how much do you think the law school is worth to me?"

What goes around come around, which may explain in part why so many lawyers are reportedly so unhappy with their chosen profession. If an attorney's either a cannibal or fresh meat, then I can understand why practicing law gives so many attorneys a bellyache.

2003-02-21T17:43:00.000-06:00

Muslim Rage, Jewish Fear

written March 6, 2002

In his op-ed piece The Core of Muslim Rage," Thomas Friedman asks unnamed Arab Muslims (who evidently walk up to Friedman unbidden and tell him of their feelings about viewing news about Palestine): "Why are you so pained about Israelis brutalizing Palestinians, but don't say a word about the brutality with which Saddam Hussein has snuffed out two generations of Iraqis[?]"

I accept Friedman's admission that Israelis brutalize Palestinians, but I don't think his analysis beyond that is coherent.

What I think Friedman wants to say is that Muslims have not contributed to the material advancement of the societies in which they live. As a result, Muslims (yes, all of them, they're all alike according to Friedman's view) are materially impoverished, deeply ashamed, and undignified. This shame and lack of dignity, Friedman (practicing psychology without a license) suggests, has been externalized as suicidal violence aimed at Israel and the United States.

That's what I--charitably--think Friedman wants to say.

What Friedman actually says is that "[w]hen Hindus kill Muslims it's not a story, because there are a billion Hindus and they aren't part of the Muslim narrative."

Which explains why Friedman doesn't write about Hindu-Muslim violence, unless it's an aside to Jewish-Muslim violence.

Let me follow Freidman's lead and practice psychology without a license. The real point of Friedman's analysis is not "Muslim rage" (a phrase which is vague to the point of meaningless), but Jewish Fear--fear that Arabs are having babies at a phenomenal rate.

Israel and all affluent industrial societies are beginning to experience negative growth. Their days--and people--are literally numbered.

Arab babies are the intifada that Israeli bulldozers can't plow into the ground.

The Heathen

2003-02-21T05:05:00.000-06:00

What Every Canadian Should Know

written April 27-28, 1999

My good Canadian friends refuse to live in the United States for two reasons: We don't broadcast curling (that's the Canadian sport of sliding rocks on ice) on network television and we do have the National Rifle Association.

The curling they forigive us for, but they can't fathom why the NRA is allowed to operate within U.S. borders.

The reason, my friends, is because God, guns and guts made this country.

Because in 1871, National Guard officers, so appalled that young recruits died because they could not fire their guns at Shiloh, founded the NRA in New York. Because military individualism required a soldier to be a marksman. And because the NRA promoted that quality, General John J. Pershing admired it.

So the NRA arose from the military and the Civil War, both of which are inextricably linked to slavery. Behold:

Our gun-toting, firearm-worshipping culture has gathered itself under the sheltering umbrella of the NRA and is packing heat because Lincoln freed the slaves.

In that light, the better question might be "Why is the US military allowed to operate?"

And why is the NRA now recognized as an NGO by the UN?

Better yet, why is the Dominion of Canada Rifle Association allowed to operate?

"While the Association still maintains very close links with the Department of National Defence, its mandate is now much broader in that the mission statement of the Association is:

"To promote the pursuit of excellence in military and civilian marksmanship as a positive and significant contribution to Canada, to the sport of shooting and to the safe handling of firearms."

And incorporated by an Act of Parliament, no less. I bet the NRA would love to be declared a Cabinet of the U.S. government.

As if it already hasn't been.

But my Canadian friends inform me that an Act of Parliament does not mean that the DRA has cabinet status. In fact, most Canadians have not heard of the DRA, which apparently is a rather rarefied group.

Canada's NRA is the National Firearms Association, which has ties to the NRA. And it is very much opposed to recent changes to Canadian gun laws, such as mandatory registration of all firearms.

The DRA, on the other hand, is a 130-year-old gentleman's target practice club for members of the military. It stays out of the news, doesn't associate with anything that looks like a Canadian "gun lobby," and produces Olympic caliber marksmen.

Now why can't the NRA be like that?

But to get back to my Canadian friends' original question, the NRA isn't so much allowed to operate here as it is the shadow cast by a history of armed rebellion in this country. I sometimes think you can hear echoes of the "The British are coming" in our citizens' vows to protect their property with deadly force if needed.

And deadly force always seems to be needed.

Maybe to understand the NRA, Canadians have to understand the Second Amendment in the context of the Third Amendment to the U.S. Constitution. Canadian loyalists, however, would never have need for such protections.

We in the United States, on the other hand, do need protection. We want protection. We are constantly looking over our collective shoulder. Parts of our Constitution read as if written by people who knew that someone was out to get them.

And when they do come to get them, the NRA will be right there with Smith & Wesson in one hand and the Second Amendment in the other.

I just hope they don’t mistake us for them when they pull the trigger.

The Heathen

2003-02-20T05:34:00.000-06:00

What's the A.N.S.W.E.R.?

So the antiwar group A.N.S.W.E.R. is under fire for not letting Rabbi Michael Lerner have his say at a San Francisco antiwar rally. According to A.N.S.W.E.R.'s critics, it's a front for the World Workers Party, which stands accused of supporting Saddam Hussein and standing for the elimination of Israel.

As near as I can tell, this recent broo-ha-ha over A.N.S.W.E.R. began with an op-ed that neo-con Michael Kelly wrote for the Washington Post in January in which Kelly criticizes A.N.S.W.E.R. and the WWP for what were known in bygone days as "unAmerican activities."

The WWP opposes the inspection regime in Iraq and suspects the United States of imperialist ambition in the region. However, the WWP doesn't so much regard Iraq as a model of governance as much as it sees no practical difference between the U.S. and Iraq. At any rate, in the collective minds of Kelly et al., opposing Bush policy is the same as "supporting Saddam." In their estimation, critics of the Bush policy are traitors and, in this case, commie traitors. No doubt identical reasoning is behind their claim that the WWP is for the "elimination of Israel."

The WWP probably is for the elimination of Israel, as far as Israel is a colonial-capitalist system. But this understates the WWP's manifesto. The WWP is Marxist through and through. It stands for the elimination of the world as we know it. To the extent that Israel is part of that world, yes, it's for the elimination of Israel.

Kelly et al. could also apply their fractured logic to the WWP and Islam and conclude that the WWP is anti-Muslim. WWP founder Sam Marcy wrote in 1993 that "[t]he so-called Islamic revolution cannot address this problem [of capitalist overproduction]. Its adherents can inveigh and protest against it. But being opposed to the socialist revolution, they confine themselves to slogans that do not touch the basis of private property and capitalist ownership of the means of production." Under the Kelly rubric, if you replace "Islamic" with "Israeli" in Marcy's piece, you turn Marcy into an anti-Semite.

In the end, the WWP supports the dyed-in-the-wool Marxist dream of a workers' revolution, and opposes anyone or thing that opposes that dream. The Kelly's of the world, on the other hand, remember the good old days when simply labeling someone a "commie" literally destroyed that person's life; I think they dream of a day when labeling someone "anti-Israeli" or "pro-Saddam" will have the same destructive effect.

As for the Michael Lerner flap, A.N.S.W.E.R. posted an explanation of it at its web site. Lerner's has his story too.

The lesson I take from this is that the far left is vocal about war in Iraq but fractured over Israel-Palestine; as a result, its anti-war stance is fractured, but that may be irrelevant given the sheer number of anti-war protestors that hit the streets world-wide this weekend. The right, on the other hand, is not only vocal, it's in control and has a policy toward Israel that doesn't split its pro-war stance. But I think the right was put on the defensive this weekend. I hope it stays that way.

The Heathen

2003-02-19T06:01:00.000-06:00

'. . . to God in Behalf of Said Tuber.'

The following is a real affidavit uncovered years ago when one of my mentors, now a superior court judge in Indiana, was performing a title search in Marion County, Indiana. Behold the power of prayer. And potatoes. And give credit to the lawyer who figured out how to serve his (batty) client.

40022
State of Indiana
Affidavit
County of Marion

Comes now Emma Morgan of 2940 North Kenwood Avenue, Indianapolis, Indiana, and first being duly sworn, upon her oath deposes and says:

That during the month of May, 1954, a common sweet potato, 5 1/2 inches in length came into her possession. That this affiant was attracted to said sweet potato for the reason that she felt that God had put it on earth to preserve it for reasons unknown to this affiant.

That this affiant has earnestly besought God to bless said sweet potato and to preserve the same for posterity; that said sweet potato on this date, the 13th day of June, 1956, is in a perfect state of preservation, it only having lost a little weight, but has in no wise deteriorated in any other respect and is solid and whole.

That said sweet potato has been a great blessing to this affiant and is to her a manifestation of the power of prayer. That this affiant actually and truly believes that said sweet potato has maintained its form and its original condition because of the prayer that this affiant has directed to God in behalf of said tuber. That the affiant further states that said sweet potato has been a great comfort and joy and that through God and the manifestation of said sweet potato's present condition, is a constant joy and help to the undersigned.

That this affiant through the power of prayer has asked God to bless others through the instrumentality of said sweet potato, and that this affiant verily believes that God has blessed her and given her health and financial security because of her interest in and to said sweet potato, and that God will continue to bless her and to bless others because of his [sic] and this affiant's interest in said sweet potato.

Further affiant sayeth not.

/s/Emma Morgan

Subscribed and sworn to before me, a Notary Public in and for said County and state, this 13th day of June, 1956.

2003-02-18T19:46:00.000-06:00

What It Means to be an American and a Muslim

written Sept. 10, 2002

Journalist Nadirah Z. Sabir has written a column titled "A year later, exploring what it means to be an American and to be a Muslim."

After yesterday, it means don’t stop in Georgia for a bite at Shoney’s on your way to Florida.

There were a couple of points in Sabir's article that caught my attention. The first was the notion offered up by Dr. Abdul Basit that American Muslims should “get with the times”:

"The biggest issue Muslims need to address is internally," said Dr. Basit. "Muslims are stuck in the past; ready to criticize. Intercultural conflicts have to be addressed among people who can't differentiate between culture and religion."

But you could say the same thing about many groups in this country--the Christian right, for example. Conflating culture and religion is not exclusively an immigrant Muslim issue or exclusively an American Muslim issue.

And, if the European experience is any indication, intercultural conflicts between Muslims and non-Muslims will transform over generations into inter-class conflicts. American Muslims are or will end up in the same boat we’re all in today, i.e., concerned with who has the wealth and power and where they are on the food chain.

The second point raised in the article was the violation of civil liberties--which will always be experienced more acutely, if not exclusively, by minorities. The only hope is that enough people will speak and act on the expectation that this country preserve and enforce civil liberties for everyone. So far, the "speak-and-act" group appears relatively small when compared to the "accuse-and-condemn" group.

What happened in Florida yesterday is reminiscent of the Red Scare, which, in my opinion, was viewpoint discrimination and bigotry masquerading as national security.

Yesterday, three Muslims were arrested on an uncorroborated tip that they had laughed about 9/11 in a restaurant, were interrogated by federal authorities for hours, and were apparently not informed of the reason for their detention until near the end of their detention. They have so far been portrayed in the media as either terrorist or despicable pranksters.

And these conclusions have so far solely been based on the government’s characterization of the incident, itself based on one woman’s dubious claim of what she heard.

The willingness to believe the worst about these fellows before the facts are all in, if not a violation of their civil liberties, is at least a violation of civility and their dignity.

We live in a day and age when our Attorney General testifies before the Senate that civil libertarians "scare peace-loving people with phantoms of lost liberty," and when a member of the President’s Civil Rights Commission, Peter Kirsinow, publicly suggests that he would not and could not prevent the creation of concentration camps for Arab American should another 9/11 occur.

I can’t say that I blame American Muslims for being afraid. I’m afraid for them. I’m afraid for a lot of people.

The ideas that are America are too large for the small minds running this country to contain. And that's where I pin my hope: That even if the Ashcrofts of this nation can toss innocent people into jail, they still can’t toss the ideas of innocence and liberty into jail.

The Heathen

2003-02-17T18:10:00.000-06:00

All Enron, All Day

written January 20, 2002

I've been reading up on my Enron lore, and the regulatory issues look to fall under five areas: banking, accounting, fiduciary duty, cronyism, and market forces. So it should be very easy for us to get right to the point when we're talking about Enron. Right. To. The. Point.

Banking

Let's talk about the repeal of Glass-Steagall in 1999 by the Financial Services Modernization Act of 1999 (the Act). The Act removed Roosevelt-era restrictions on the banking industry's role in securities, which allowed JP Morgan and others, on the one hand, to give Enron the financing it needed while, on the other, disguising the loan-like nature of this financing. In short, investors weren't able to assess the risks of these "funding" arrangements.

On the regulatory side, the Act updated banking law without modernizing the regulatory regime needed to monitor this brave new world. In the end, the Act provides little regulation in certain areas and duplicative regulation in others, with multiple agencies given jurisdiction over the same area--which leads to a regulatory bog.

In the Senate, the Act was sponsored by Phil Gramm all by his lonesome. President Clinton was "pleased" to sign the Act into law in November, 1999, saying, "Beginning with the introduction of an Administration-sponsored bill in 1997, my Administration has worked vigorously to produce financial services legislation that would not only spur greater competition, but also protect the rights of consumers and guarantee that expanded financial services firms would meet the needs of America's underserved communities. Passage of this legislation by an overwhelming, bipartisan majority of the Congress suggests that we have met that goal."

So keep your eye (and butt-kicking foot) aimed at JP Morgan.

Accounting

Bad time to be an accountant. Like most professionals, accountants are largely self-regulated. The accounting rules that helped bring Enron down have been around for years-- decades in some cases. And unregulated.

Other accounting rules aren't self-regulating, and that's a problem too. Unlike the European system of accounting, which runs on broad, aspirational standards, American accounting, to the extent that it is regulated, is regulated in excruciating detail. This hands accountants endless loopholes by which to comply with the letter of the law while skirting the purpose of the law. Maybe less regulation is more in this case.

Fiduciary Duty

The rules for acceptable business behavior are there, and Enron, Andersen, et al., violated them. Short of putting a government monitor in every board room of every corporation in the nation, what do you do?

Cronyism

Following the taint on the Bush administration leads to a skid mark that goes back in time to when Kenneth Lay was a Nixon advisor. Lay and Enron have been sought out for feedback by presidents ever since, Republican and Democrat. Three-quarters of current Congressional Republicans have taken Enron money, along with Democrats on committees that influenced Enron's business (Gephardt, Schumer, and Dingle, among others).

Enron also spread lots of cash around Texas (gasp), and not just with Republicans. Gov. Richards benefited from Enron largess, and Sheila Jackson Lee got at least $10,000 more in Enron money than did Tom DeLay.

Overall, though, Enron's only number 36 on the Big Political Donor list. If number 36 can buy this kind of disaster, what are 1 through 35 getting?

The Market

Moody's, S&P--these outfits own the stocks they rate. They gave Enron a thumbs up until the 11th hour and 59th minute. The people who saw Enron coming were in the bond market, where Enron's debt had junk-bond status long before Moody's downgraded the stock. So--watch the bond ratings if you want to assess risk.

The End

Near as I can tell, Enron's uniqueness is its bigness and first-ness. What happened to Enron could happen to any company. Nearly 800 restated their earnings last year, maybe (probably) because of the sort of off-the-books shenanigans that tanked Enron. Who's to blame? Nobody. Everybody. Enron lived in the house that America's been building since the Great Depression. The politicians couldn't have planned this even if they wanted to.

The Heathen

2003-02-17T05:03:00.000-06:00

News from the Future

written Nov. 17, 2002

I downloaded the following article from the future. Posting it in its entirety does not violate copyright laws because it hasn't been written yet:

Spammer Charged With Terrorism
August 23, 2003

(Washington, D.C.)--A seventeen-year-old Californian and self-described anarchist has been arrested and charged with terrorism by the Department of Justice for flooding the Internet with tens of millions of unsolicited e-mail messages, thousands of which shut down a Washington state Internet Service Provider for two days last week at an estimated loss in business and productivity of $5 million.

The name of the youth, whose web site identifies him only as "Sky," has not been released by the DOJ, which says he will be charged as an adult under the Homeland Security law passed last year by the lame-duck Senate after little debate.

Although the e-mails did no permanent damage to the ISP, according to U.S. Attorney General John Ashcroft they violated the law because their sheer volume and effect on the Washington ISP made them "potentially destructive of privately controlled communication resources essential to the minimal operation of the economy and government."

The text of the e-mails encouraged recipients to buy anti-establishment literature, bumper stickers, and T-shirts with slogans critical of the Bush administration. A link was provided to a web page where the items could be purchased on line.

The e-mails contained a phony return address and were sent under a header that read "THIS E-MAIL WILL SAVE YOUR LIFE." The e-mails also included a message stating, "You can't get rid of me and I won't stop until the Bush/Cheney/Ashcroft axis of evil is stopped by whatever means necessary."

According to Ashcroft, "The implied threat of future unsolicited e-mails appeared to be intended to intimidate or coerce recipients into purchasing anti-government material."

He added that the content of the e-mails, which were sent to numerous federal government e-mail accounts, also "appeared to be intended to influence government policy through intimidation or coercion." One of the items advertised for sale "in the fight against the Bush axis of evil" was the Anarchist's Cookbook, a favorite among right- and left-wing extremists. It teaches users how to conduct a guerilla war using household items as weapons.

The book also contains bomb-making instructions.

The Homeland Security law defines "terrorism" as any act that is "potentially" destructive of "key resources" and "appears" to be intended "to intimidate or coerce a civilian population [or] to influence the policy of a government by intimidation or coercion."

To be terrorism, a person's action must also violate state or federal law.

California law makes it a crime to send unsolicited commercial e-mail with a misleading header and a phony return address.

The suspect's attorney said that his client's actions are protected by the First Amendment.

A DOJ spokesperson said that the government was also investigating the California ISP that hosted the teenager's web site for a possible violation of the law.

Under the law, "terrorism" is not only a potentially destructive criminal act that apparently threatens civilians or the government, but includes "any" activity that "involves" a terrorist act, which experts say is a provision designed to prosecute any person who aids a terrorist, even if the person's act is otherwise lawful.

"The ISP under investigation actively solicits the business of anarchists and other violent anti-government types," the DOJ spokesperson said. "It arguably was involved in the suspect's terrorist act."

Attorneys for the ISP declined to comment, but observers say that web sites similar to the suspect's have been removed by the ISP since the arrest of the suspect.

(The text of the House version of the Homeland Security Bill from 2002, H.R. 5005)

2003-02-16T18:21:00.000-06:00

Sometimes America Gets It Right

written Dec. 9, 2001

In Thomas Friedman's Dec. 9, 2001 article "Ask Not What…", he says that he likes the way the President is handling the war, but there are more important fights than against terrorism, i.e., the fights against (1) the President’s “narrow, hard-right Sept. 10 agenda” [NHRS10A] and (2) the world’s perception of us.

There are not many specifics in Friedman’s article, but I gather that the President’s NHRS10A--as implied by Friedman--is to encourage wasteful consumption, increase our dependency on foreign oil, discourage public service, promote 10% pay hikes for all CEOs, halve U.S. foreign aid, eliminate micro-loans to poor women, erect free trade barriers, and leave African children (at least the literate ones) in the dark.

If these things are true, then I do not blame the world for hating us, much the same way Friedman hates us: for being wasteful, slavish, selfish, self-centered and cruel.

In Friedman’s estimation, such a people as we need, not an Executive, but an Executive Scold to go around behind us turning off lights, picking up our socks where we let them drop, and reminding us to play nice with others. In other words, an executive very much like Tom Friedman.

For example, Friedman says the President should tell us to turn down our thermostats so we “would not be so much of a hostage to Middle East oil”. Think about it. We would still be hostages to Middle East oil--just chilly ones.

“Liberating us from the grip of OPEC would be our Victory Garden.” But we know that Bush can have any Victory Garden he wants--as long as he does not plant it in ANWR, off the coast of Florida, or near a coal or a nuclear energy facility.

“Imagine if the president called on every young person to consider enlisting in some form of service the Army, Navy, Marines, Air Force, Coast Guard, Peace Corps, Teach For America, AmeriCorps, the F.B.I., the C.I.A.?” War DOES make for strange bedfellows. But do we know for a fact that young people are not considering public service already, if not “in droves” (however many that is), at least in scads?

Friedman wants all CEOs to take a ten percent pay cut so there will be fewer unemployed workers. Assuming CEO pay cuts automatically flow to the unemployed, in the mid-90s, the Fortune 500 CEOs together were paid about $750 million. Say today that it’s $1 billion. Ten percent of that divided by November’s 450,000 unemployed is an extra $222 each year for each unemployed person. I’m no big city economist, but I am suspicious of Friedman’s domestic policy suggestions. Particularly if he meant for that ten percent to go to 125 million working Americans instead.

In sum, regarding Friedman’s blanket criticism of what he calls “the President’s NHRS10A,” although the criticism may be deserved, Friedman’s solutions aren’t coherent.

On the global front, Friedman want to double our foreign aid. Why? To date, in today’s dollars, we have, for example, given India more than $52 billion through USAID alone. Does Friedman think the Indians would have been more receptive to Colin Powel if they were into us for $100 billion instead?

As for the rest of it, Friedman writes as though citizens here and around the world were not already motivated before September 11 to promote microlending, democracy, and free trade.

Friedman is bothered because he believes the world hates America, that America deserves it, but that America can “buy up” in the world’s opinion polls by planting American flag decals on solar light bulbs so that a Third-World continent with rampant adult illiteracy can read at
night.

As for The Rest of the World, yes, its perception of us matters. But our own perception of us matters more. For starters, that perception should be based on facts, not vaguely articulated hand-wringing and weird, guilty fantasies. Because who else but Americans are going to set the record straight, or make the case that sometimes, maybe often times, America gets it right? There’s plenty about America to criticize, but when all I read from Friedman is plenty of criticism, I begin to suspect that he has left the better part of what this country does--and has done--unsaid.

The Heathen