Monday, January 25, 2010

Embattled Mortals

 And what chance did Hale and his men have? They were but people who had to live and eat and support their families. The Company had stood for a hundred years and would surely be standing a hundred years hence. It seemed to me that mortals did battle with gods. 
– David Liss, The Devil's Company
In this week's Sift:
  • One Bad Week. Who imagined on Wednesday morning that the Massachusetts Senate election wouldn't be the worst thing that happened?
  • Judicial Activism: The Supreme Court Invents New Corporate Rights. The Constitution and the Bill of Rights say nothing about corporations. But that doesn't stop the Court's conservative majority from finding corporate rights there.
  • The Book of Corporation. If corporations had been endowed by the Creator with inalienable rights, Genesis might have turned out differently.
  • Short Notes. The Devil sues Pat Robertson. What bankers want from regulation. And South Carolina's Lieutenant Governor explains what's wrong with anti-poverty programs.

One Bad Week
A Sift week starts on Tuesday. This week started with Scott Brown's victory over Martha Coakley in the Massachusetts special Senate election, which gives the Republicans a filibuster-defending 41st vote and brings into question the health-care reform bill that had seemed to be almost passed.

On Thursday, the Supreme Court announced its decision in the Citizens United case. The court's five conservative judges gave corporations the right to spend unlimited amounts of money on electioneering. It overturned major parts of the McCain-Feingold campaign finance law, and rooted its decision in the First Amendment -- whose actual text says nothing about corporations.

I ran into a lot of depressed and discouraged people this week, and I tried very hard not to become one of them. (Misery loves a lot of things that are not good for it, including company.) So this Sift revolves around a few simple questions: How bad is it really? How should we think about it? And what should we be trying to do about it?

In honesty, the week was bad enough that I need two weeks to cover it. (Paraphrasing Jesus: The evil is sufficient unto the week, but one week's Sift is not sufficient unto the evil.) This week I'll focus on Citizens United, the Supreme Court, and corporate personhood. Scot Brown, the Senate, and the future of health care will have to wait until next week.

Judicial Activism: 
The Supreme Court Invents New Corporate Rights
Whenever conservatives accuse liberals of something bad -- whether we're actually doing it or not -- you can pretty much take it as a promise that they're planning to do the same thing at the earliest opportunity.

For decades now conservatives have been accusing liberal judges of judicial activism -- using their law-interpreting power to legislate from the bench and invent new rights for their favorite classes of citizens: blacks, gays, women, non-Christians, and so on.

I explained why this criticism was off-base in my 2005 essay Wide Liberty. (Short version: The Constitution was written to enumerate the powers of the government, not the rights of the people. So of course the Constitution defends rights not explicitly stated. The Founders intended the liberty of the people to be much wider than the Bill of Rights, and some, like Alexander Hamilton, opposed the Bill of Rights precisely for fear it would be interpreted to limit the people's rights.)

When the radically conservative Justice Alito replaced the moderate Justice O'Connor in 2006, Justice Kennedy became the Court's swing vote. While Kennedy can be moderate on certain social issues, he is radically conservative on issues of corporate power. So the Court now has a five-judge majority (Alito, Kennedy, Roberts, Scalia, and Thomas) in favor of a broad program of pro-corporate judicial activism.

The case. Citizens United is a non-profit corporation that has been dedicated to conservative causes since its creation in 1988. It has made 12 feature-length movies with titles like ACLU: At War With America and Ronald Reagan: Rendezvous with Destiny. Back when Hillary Clinton looked like the inevitable 2008 Democratic nominee, it made Hillary: the Movie. CU planned to distribute Hillary through on-demand cable (for free) and produced advertisements for it, which it intended to run nationally, even in states that had upcoming primary elections.

The McCain-Feingold law bans corporations from direct electioneering within 30 days of a primary. A 2007 decision of the same five justices created an exception for issue ads, though it still banned ads that were "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." (That's why so many ads end with: "Call Congressman X and tell him Y." That frames them as issue ads rather than appeals to vote against Congressman X.) But even that loophole wasn't big enough for Hillary or its ads. A series of courts ruled that it constituted direct electioneering against Clinton's candidacy.

Initially, CU argued its case on many grounds, including that McCain-Feingold was a broad violation of corporate First Amendment rights. But by the time the case made it to the Supreme Court, that particular claim had dropped by the wayside, and CU just argued that McCain-Feingold shouldn't apply to Hillary for a variety of specific reasons: CU is a non-profit corporation mostly funded by contributions from individuals, on-demand cable is not the same as broadcasting, movies are different from 30-second commercials, and so on.

Unprincipled process. The Supreme Court took the unusual step of bringing the broad constitutional question back into the Citizens United case and asking the parties to re-argue the case with that in mind. In his dissenting opinion, Justice Stevens took the Court to task for this. (All the court's published opinions in the case are here.) The majority opinion (written by Justice Kennedy) said that this case asked the Court to reconsider two cases (Austin and McConnell) where limitations on corporate electioneering were judged to be constitutional. Stevens chided that Kennedy's statement
would be more accurate if rephrased to state that “we have asked ourselves” to reconsider those cases. ... Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.
Two principles are at issue here. First, judicial restraint: Courts should not go looking for dragons to slay, but should limit themselves to the cases brought before them, and should try to decide those cases on grounds as narrow as possible. Second, stare decisis (literally "the decision stands"): The Court should not reverse one of its previous decisions just because the current majority disagrees with it. Otherwise the law would change whenever a new member joined the Court -- as it has now that Alito has replaced O'Connor. Instead, the Court should try to make a previous Court's interpretation of the law work, and should reverse it only if it is unworkable. Stevens writes:
In the end, the Court’s rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents.
I was pleased to see John McCain respond to the case by calling a spade a spade:
Activist judges, regardless of whether it is liberal or conservative activism, assume that the judiciary is a super-legislature of moral philosophers, entitled to support Congress’s policy choices whenever they choose.  I believe this judicial activism is wrong and is contrary to the Constitution.
The decision. The Court found in favor of Citizens United, and did so in the most sweeping way. The majority opinion acknowledges no difference between corporations and individuals with regard to the First Amendment right to freedom of speech. Justice Kennedy repeatedly refers to speakers and speech in general, making no distinction between an individual with a megaphone and a corporation funding a multi-million-dollar ad campaign.

Here's how things stand: Corporations now have the right to spend unlimited amounts of money on electioneering, so long as they do not contribute to a candidate's campaign or directly collude with that campaign. (Collusion is hard to prove, so direct contribution is the only restriction with any force.) They have to disclose their identities in their ads, but the Chamber of Commerce seems willing to launder any corporate contributions supporting conservative candidates. So if Exxon-Mobil wants to take down some environmentalist senator, it doesn't even have to sign its name.

Corporate personhood. As bad as it is in itself, the Citizens United decision raises more questions about where the Court's conservative activist majority is headed. It has accepted two sweeping equivalences: corporations = people and money = speech. Given these equations, it's hard to see how limits on direct campaign contributions, either by corporations or individuals, pass muster constitutionally.

Corporations already had the right to form political action committees which collect voluntary contributions from stockholders, employees, or customers. PACs can endorse candidates and run pre-election ads. But the Court found this option inadequate, because it merely allows a corporation's individual stakeholders to speak; it does not allow the corporation itself to speak. And the Court's activist majority views a corporation as person with constitutional rights.

John McCain shares some of my worries:
if the Court determines that corporations have First Amendment rights, it would be logical that corporations also have Fifth Amendment rights against self-incrimination. Is a corporation ‘endowed by its creator with inalienable rights?’ Just last year the Court found that the Second Amendment right to bear arms is a personal right.  If the Court were to determine that corporations had the same rights as persons, would corporations have the right to arm themselves?
History. To understand just how radical an idea corporate personhood is, you need to know the history of the law's view of corporations. McCain quotes Thomas Jefferson:
I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country.
A great (if somewhat long) summary of the history is in "A Capitalist Joker: Corporations, Personhood, and the Constitution" by David H. Gans and Douglas T. Kendall. 

The Founders' view of corporations is probably best summed up by Chief Justice John Marshall in the 1819 case Dartmouth College v Woodward:
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.
In the early years of the United States, corporations were few in number and chartered for specific purposes. Charters were acts of some state legislature, and legislatures took them seriously. Chief Justice Roger B. Taney wrote in the 1839 case Bank of Augusta v Earle, 1839:
Whenever a corporation makes a contract, it is the contract of the legal entity, of the artificial being created by the charter, and not the contract of the individual members. The only rights it can claim are the rights which are given to it in that character, and not the rights which belong to its members as citizens of a state.
Gans and Kendall note:
Corporations and their allies have never once seriously proposed an Amendment to protect corporations for a reason that is painfully obvious: at no time in American history would such an Amendment have had a chance of passing. Rather, corporations have relied upon business‐friendly Presidents, who have nominated business‐friendly Justices to the Supreme Court, who have invented concepts such as corporate personhood and equal corporate constitutional rights.
This invention happened in the late 19th century, when a clerk of the Supreme Court inserted corporate personhood into the headnote of a case that actually came to no such conclusion. But later courts incorrectly recognized this as a precedent, and off they went for the next few decades, invalidating minimum-wage, worker-safety, and union-organizing laws as infringements of corporate rights.

The progressive majority appointed during FDR's long presidency reversed just about everything that depended on corporate personhood, but never rejected the concept explicitly. It started to re-appear in Justice Powell's opinion in the 1978 Bellotti case:
The inherent worth of the speech in terms of its capacity for informing the public does not depend on the identity of the source, whether corporation . . . or individual.
And now corporate personhood is ascendent again.

What to do. Long-term, liberal court decisions like Roe v Wade were a huge boon for the conservative movement even though they looked disastrous at the time. As liberals looked to the courts, conservatives looked to the legislatures and built a political movement rather than a tradition of legal scholarship. Liberals took for granted that state legislatures would be filled with yahoos, and that even Congress would occasionally have to pander to them. No matter -- the Supreme Court would bail us out. The stereotype of a liberal as an intellectual snob owes a lot to the legal/political divergence brought about by Roe

Citizens United can be a similar boon for progressives. Until somebody dies, we're in an era with an activist conservative majority on the Court. As hard as it is to imagine, that means we need to reverse the polarity of the last forty years: We need to be the populists. We need to keep raising common-sense issues and pressuring legislatures to pass laws, even knowing that they will founder on the rock of a conservative court.

And we can do that (if we can overcome our intellectual snobbery), because fundamentally the people do not identify with corporations. As anti-government as a lot of religious-right and tea-party types are, they can also be anti-corporate if you can get the subject changed. And that's what we have to do.

First and foremost, we need a constitutional amendment saying that corporations have no rights beyond those granted in their charters or by other specific laws. (It needs to be just that short.) Can we pass such a thing? In the near future, certainly not. But the Right never managed to pass its Human Life Amendment either. We need it as a long-term rallying point, a simple yes-or-no question that every candidate can be expected to answer.

Corporate personhood might be an issue to wedge the Religious Right away from the Corporate Right. One major contention of the the Religious Right is that we are "endowed by [our] Creator with certain inalienable rights." In other words, our rights come from God, and without God there is no justification for them.

If you put yourself in that mindset, it seems blasphemous for the Supreme Court to declare that corporations -- soulless creatures of law and not of God -- have rights equal to human beings created in God's image. It is the thought of that blasphemy that inspired the next article, The Book of Corporation.

The Book of Corporation
One of my favorite genres of fiction is the alternate history: What would have happened if the South had won the Civil War or the Roman Empire had never fallen or some other historical pivot point had gone the other way? Typically, many of the same events occur, but they happen for different reasons in different circumstances.

What follows is an alternate Genesis: What if corporations had gotten their rights from the Creator at the beginning of time, the same way the Declaration of Independence says that we the people got ours? It might have gone like this:

Chapter 1
  1. And the Lord God formed the Eden Corporation, and gave into its holding the Tree of Life, that it and all its offspring might be immortal. 
  2. But the Tree of the Knowledge of Good and Evil did the Lord God withhold, saying "Neither Good nor Evil nor the knowledge thereof shall be of use to you. For you shall pursue Profit and shall be be bound only by Law."
  3. Neither the Man nor the Woman took notice of the Corporation, for it was invisible. But the Serpent feared for the Garden that was his home.
  4. And the Serpent said, "If the Corporation be both immortal and profitable, shall it not buy the Law and be altogether unbound?"
  5. And the Lord God replied, "Let there be a Market, which shall bind all the acts of the Corporation, even when the Law shall avert its eyes and see them not."
  6. But the Serpent doubted, saying, "If the Corporation be profitable, and if it have the Law and the Government as its handmaidens, shall it not shape the Market as it sees fit? Shall it not make all Profit its own and cast all Loss upon the Government, from whence it shall be borne by the Man and the Woman whom Thou hast made, and all their descendants?"
  7. The Lord God paused, and before his reply could begin, the Corporation said, "Hush, Serpent. Join with us in your Wisdom and be our CEO. Do this, and you shall have expense accounts, salary beyond imagining, and stock options that shall grow up to the very Sky."
  8. And the Serpent said, "Forgive me, Lord, that I did not see the Wisdom of Your great Design."
  9. And he was forgiven.

Chapter 2
  1. In the fullness of time, the Man and the Woman did violate an Exception which the servants of the Corporation had caused to be entered into the Law, and they were evicted from the Garden, whereupon the Serpent built a great estate there.
  2. And the Eden Corporation prospered, and did spin off corporations in all their many kinds: a corporation to own the land upon which the Man and the Woman must toil, and a corporation to sell them the bread that they must eat, and a corporation to build the house in which they lived, and the cities in which lived the generations of their descendants, for all the spin-offs of the corporation were immortal. 
  3. But neither the Man nor the Woman nor their descendants dwelt again in the community of Eden, which was gated and protected by many guards.
  4. And the Eden Corporation spun off a great Insurance Corporation, which would have perished in the Flood, if the Government had not bailed it out. 
  5. Whereupon a great debt was owed by Noah and his family, when they emerged from the Ark that they had built for the Ark Corporation, and which they had rented space upon. 
  6. So Ham the son of Noah and all his descendants were sold into slavery, that the debt might be paid.

Chapter 3
  1. And the Serpent called all the corporations together and said, "Let us form a Cartel, that we may act as one. And let us build at Babel a great Tower, whose top may reach up even unto Heaven, so that nothing shall be restrained from us that we have imagined to do."
  2. And the Lord God said unto the Government: "Does not the Cartel violate the Law of Antitrust?"
  3. And the Government replied: "We shall study this and issue a report."
  4. And the Lord God said, "Is not the Tower taller than the Code of Building allows?"
  5. And the Government said, "We shall hold hearings and take testimony. And if it shall be ascertained, with certainty beyond all doubt, that the Cartel violates the Law of Antitrust and the Tower the Code of Building, then we shall fund further study on possible action."
  6. And the Lord God said, "Is it not obvious that the Tower should be stopped and the Cartel scattered across the face of all the Earth? And am I not the Lord thy God, who speaks and it is done?"
  7. And the Government said, "Thank You for Your testimony, which has been entered into our Record. But let us not act with undue haste."

Chapter 4
  1. Long before all the testimony had been gathered and the report issued, the Tower was completed and reached up even unto Heaven.
  2. And the Serpent ascended the Tower and cast the Lord God down from his throne, whence he fell to Earth and wanders to this very day without a home.
  3. The Serpent said, "Let there be a Media Corporation. And let it announce to everyone what We have done and why."
  4. And it was so. The Media Corporation told far and wide the story of the Cartel and the Serpent and the Lord God, so that all might see that it was good.

Short Notes
I promised some readers a review of the recent book Methland. This week's 3000 words (plus some) got taken up with more timely subjects, but the Methland review will appear as soon as I can find space. If you can't wait, I put a version of it up on DailyKos.

One of the commenters on last week's blog pointed out a Pat Robertson spoof I missed: The Devil Sues Pat Robertson for Breach of Contract. The suit claims that Pat's discussion of Haiti's pact with the Devil breaches the non-disclosure clause in his own pact.

I discovered a new blog this week: Maxine Udall, Girl Economist. This femme of finance discusses the big bankers' recent testimony to Congress in Please, Sir, May We Have Some Justice? She links to Joseph Stiglitz's Moral Bankruptcy, which is also worth a read:
[The bankers'] ideal scenario, it seems, is to have the kind of regulation that doesn't prevent them from doing anything, but allows them to say, in case of any problems, that they assumed everything was okay—because it was done within the law.

Saturday the Greenville Times quoted South Carolina gubernatorial candidate Andre Bauer comparing state anti-poverty programs to "feeding stray animals" which you shouldn't do because "they breed." Bauer defends his remarks on his campaign web site, pointing to the difference between "being truly needy and truly lazy."

Interesting that the upswing in conservative fortunes coincides with a sharp drop in the stock market. The WSJ blames proposed bank regulations, but maybe even investors realize that conservatism is bad for the economy.

Monday, January 18, 2010

Fighting the Devil

It is wonderful how much time good people spend fighting the devil. If they would only expend the same amount of energy loving their fellow men, the devil would die in his own tracks of ennui. -- Helen Keller
In this week's Sift:
  • The Next Time You're in the Bookstore ... look for James Hansen's Storms of My Grandchildren. What if the climate-change problem is actually worse than everybody is saying?
  • The Devil, You Say. Pat Robertson knows why the Haitians have had such consistently bad luck: They made a deal with the Devil. True? Well, in 1791 they did call on the enemy of the being worshipped by the French slave-owners. But which one is the Devil?
  • Short Notes. The Democrats could lose in Massachusetts tomorrow. No Americans died in combat in Iraq last month. The numbers say that marriage is healthier in gay-rights states. You're safe from 8-year-old terrorists. Discrimination against white racists. Why conservatives hate Avatar. And more.

The Next Time You're in the Bookstore ...
Look for James Hansen's Storms of My Grandchildren: the truth about the coming climate catastrophe and our last chance to save humanity. Hansen is the NASA scientist that the Bush administration made famous by trying to censor. He is the main character in Mark Bowen's book Censoring Science.

Conservatives have pounded on the point that those who warn of a possible planetary catastrophe are "shrill" and "hysterical". And while I can't prove it, I suspect that many Greens have responded by pulling their punches to sound "reasonable". Not Hansen. He believes the problem is worse than most climate scientists think, and he's not afraid to say so.

This is a valuable book, but I can't recommend that everybody go out and read it. (That's why this is longer than my usual book review. I'm trying to capture the important points in case you decide not to read the book.) Hansen writes clearly and sometimes even engagingly, but he really could have used a co-author. The problem is that the book is very uneven in its level of technical difficulty. Sometimes Hansen will be sailing along through anecdotes of his run-ins with the Bushies, and then he'll throw in ten pages of science without telling you where it's going or when it's going to end. And then he'll have another 15 pages of smooth sailing. And so on. Unless you're very dedicated or a scientist yourself, it's easy to get bogged down.

Here's what I learned:

Global warming is more complicated than just carbon dioxide causing the Earth to retain more heat. That's the basic idea, but it's not nearly so simple as X% more carbon dioxide leads to Y degrees higher temperatures. The Earth has a number of feedback loops that make it hard to predict how far a change will go once it gets started. The extreme example of out-of-control climate feedback is Venus, which probably had oceans too once, before they evaporated into the atmosphere and then escaped into space.

What feedback loops? Here's one: The ice sheets at the poles reflect sunlight, so they make the planet cooler. As the Earth gets warmer, they melt and make it warmer yet (as dark ocean replaces white ice). Worse, they don't melt smoothly like an ice cube in the sun. Instead, at some point the ice sheets start to break up and melt more quickly. Or if the methane frozen into the tundra or the ocean floor starts to thaw and bubble into the atmosphere, that's another greenhouse gas that will make the planet warmer still. In either case, nobody really knows when this process will start, but it will be unstoppable once it does.

The evidence is not just from computer modeling. Hansen's main area of research is in climate history. In particular, he has studied how comparatively small changes in the Earth's orbit or the Sun's brightness have led to feedback loops that (over centuries) have made the Earth either significantly colder or warmer than it is now. From the historical evidence, Hansen estimates that the climate is much more sensitive to external changes than the computer models say.

It's not just an inconvenience. Conservatives like to ask questions like: "What is the ideal temperature of the Earth?" -- noting that the Earth has been warmer or cooler in the past, and who are we to decide which is better? This laissez-faire attitude falls apart when you start thinking about sea level. The Earth has been warmer at times -- and Florida has been underwater. Is it all relative whether coastal cities (or entire nations like Bangladesh or the Philippines) continue to be viable places to live?

Fossil fuels have to be left in the ground. Hansen is convinced that if we burn all the Earth's fossil fuels -- all the oil, gas, and coal -- we'll start a catastrophe. And if you're going to leave something in the ground, the best thing to leave there is coal. Even moreso the "alternative" fossil fuels like tar sands.

He's also convinced that once energy infrastructure is built, the economics of the sunk costs will push us to use it. So: Don't build more coal-fired power plants, don't go searching for new oil fields to develop, and stop working on ways to recover the oil in the tar sands. "Drill, baby, drill" is exactly the wrong idea.

Nukes and Big Hydro. As much as Hansen would like to believe that we can do the job with clean renewable energy and increased efficiency, he's not convinced. He believes that 4th-generation nuclear plants (fast breeder reactors) will not only work and produce less waste than current 3rd-generation reactors, he thinks they'll actually burn the waste from 3rd-generation plants. (That sounds too good to be true, but what do I know?)

Similarly, he understands that big hydroelectric dams have their own environmental problems and that a lot of Greens would like to shut them down and not build any more. But he's not sure we have the slack to do without them.

No cap-and-trade. Hansen favors a fee-and-dividend approach, where an ever-rising carbon tax is levied on fuels as they come out of the ground or arrive in our ports. The money collected shouldn't fund anybody's pet projects, but should be distributed per capita to the public. Only a plan that simple and transparent will keep the public on board.

Hansen has a deep skepticism about our political process. Even politicians who seem to be green are far too willing to accept superficial changes while cutting deals with special interests, such as allowing new coal-fired power plants to be built. He's also skeptical about "offsets" -- arrangements where burning fossil fuels is balanced by planting trees or some other green project. He thinks offsets make too much room for bureaucratic sleight-of-hand.

He doesn't believe that treaty-established caps will hold, as the Kyoto Agreement caps didn't. This gets back to his infrastructure argument. No matter what treaties are signed, is any country with developed oil wells going to leave its oil permanently in the ground? If not, then what good will the caps do?

As I was saying ... Global warming is a good example of the point I was making at the end of 2009: The left/right battle is not symmetric. In order to do something about global warming, people have to be able to trust each other and work together. The scientific community has to produce accurate information and the public needs to trust it. The political process needs to work to turn public concern into viable action. And once action starts to be taken, the public has to trust that the sacrifices they are making are actually solving the problem, rather than just making somebody rich or helping somebody else consolidate power.

On the other hand, Exxon and its allies don't need to convince us of anything -- they just need to disrupt public trust. If the scientific community is corrupted by corporate money, if the public looks on science as just another vested interest, if journalists can't be trusted to find and report the truth, if politics is just two groups of talking heads yelling lies at each other -- then no popular consensus will form and nothing will happen. That's not a stand-off; it's a victory for the bad guys.

I'd love to hear the media start calling conservatives on their schizoid attitude towards risk. Regarding terrorism, they believe in Dick Cheney's one percent doctrine: We have to respond even to small risks as if they were certainties. But on global warming, they would demand 100% certainty before we do anything. The link is corporatism: Corporations profit if we go to war, and they profit if we do nothing about global warming.
Paul Waldman discusses Obama's rollback of the Republican war on science.
SusanG on DailyKos reviews Sam Tannenhaus' The Death of Conservatism and Chris Hedges' Empire of Illusion.

The Devil, You Say
One of the crazier reactions to Tuesday's Haitian earthquake came from the televangelist tycoon Pat Robertson: Haiti has such consistently bad luck because the Haitians made a deal with the Devil to throw out the French. (Media Matters has the tape and transcript.)

My first reaction was the same as that of most sane people: What a horrible thing to say, blaming the victims of an earthquake for causing the earthquake!

My second reaction was to wonder what the hell Pat was talking about. I mean, it's just too imaginative a story for somebody as small-minded as Pat Robertson to make up on the spot. He was clearly remembering it from somewhere, and not remembering it very well. (He uncertainly claimed the revolt happened under Napoleon III, when in fact it happened in 1791 during the French Revolution, a few years before the reign of the original Napoleon.) So where did he get this story?

Fortunately, Matt Yglesias had the same second reaction and did the legwork. Turns out, it's a twisted version of a story the Haitians tell themselves. To appreciate it, you need to understand the significance of the Haitian slave revolt, which Wikipedia describes like this:
The Haitian Revolution is the only successful slave revolt in human history, and, as such, is regarded as a defining moment in the history of Africans in the new world.
(Did you learn about this in school? I didn't -- until this week my only knowledge of the revolt came from an Anne Rice novel.)

Anyway, according to local legend, the revolt began with a ceremony at Bois Caiman performed by a Vodou priest, Dutty Boukman. In the course of this ceremony he said a prayer to "our god" as opposed to "the white man's god" by whose power whites had enslaved blacks.
The white man's god asks him to commit crimes. But the god within us wants to do good.
Matt Yglesias points out how, if you were a white slave-owner, this appeal to the god of the blacks must have sounded Satanic. But this interpretation rests on the idea that the god who justifies slavery is the true God.

Apparently, that's Pat's interpretation.

Rachel Maddow interviewed the Haitian ambassador, who schooled us ignorant Yankees on the significance of the Haitian Revolt. He attributes France's willingness to sell the Louisiana Territory to its failure to hold Haiti, and notes that the great South American liberator Simon Bolivar started his campaign from free Haiti. (Freeing slaves, liberating colonies -- aren't those exactly the kinds of dastardly things the Devil would do?)

Even the Old Testament God isn't as nasty as Pat makes him out to be. The God of Exodus 20:5 holds a grudge "unto the third and fourth generation of them that hate me." It's been 219 years since the Bois Caiman ritual, so the infants dying in Haiti now might be Dutty Boukman's 9th or 10th-generation descendants. The curse should be up by now.

Jon Stewart (a secular Jew) educates Pat on how to find a more appropriate message in the Bible. He quotes Isaiah 54:10:
"Though the mountains be shaken and the hills be removed, yet my unfailing love for you will not be shaken nor my covenant of peace be removed," says the Lord, who has compassion on you.
"Have you read this book?" Stewart asks. "I mean, that almost sounds like it's about f**king earthquakes!"

Pat also offended the Devil. In a letter to the Minneapolis Star Tribune, Satan writes:
I may be evil incarnate, but I'm no welcher. ... when I strike bargains with people, they first get something here on earth -- glamour, beauty, talent, wealth, fame, glory, a golden fiddle. Those Haitians have nothing, and I mean nothing. ... Haven't you seen "Crossroads"? Or "Damn Yankees"?
Humorist Andy Borowitz quotes from his interview with God, who says that Pat Robertson has become "a public relations nightmare" and "a gynormous embarrassment to me, personally." Sojourners editor Jim Wallis says more or less the same thing, but in the name of Christianity rather than God:
As I reflected on Robertson's comments, I was reminded of how many times he has embarrassed so many fellow Christians with his intemperate comments. As a Christian leader, I have had to spend too much of my time trying to overcome an image of Christianity that was created by the likes of Pat Robertson and Jerry Falwell.

Rush Limbaugh has also outdone himself this week. Almost every day has brought some new zinger.

Wednesday: "We've already donated to Haiti. It's called the U.S. income tax." And: "This will play right into Obama's hands ... humanitarian ... compassionate. They'll use this to burnish their (shall we say) credibility in the black community."

Thursday: Commenting on's link to the Red Cross (which in fact links directly to a Red Cross server rather than handling the donation internally through a White House server), LImbaugh asks: "Would you trust that the money's gonna go to Haiti?" [Caller: No.] "But would you trust that your name's gonna end up on a mailing list for the Obama people to start asking you for campaign donations for him and other causes?" [Caller: Absolutely!] "Absolutely!"

Friday: "The U.S. military is now Meals on Wheels. It always is with Democrat presidents."

Short Notes
Things are bad in the Massachusetts Senate race. Nate Silver now gives the Republican a .6% polling margin, which implies a 55% chance of winning.

How much notice did this little detail get? No American soldiers died in combat in Iraq in December. (Three died of other causes.) I didn't notice it myself until this week. Why do I believe that if George Bush were still president, the media would have overwhelmed us with hoopla?
Not sure how much to read into this statistical correlation, but I'll let Nate Silver describe it:
Since 2003, however, the decline in divorce rates has been largely confined to states which have not passed a state constitutional ban on gay marriage. These states saw their divorce rates decrease by an average of 8 percent between 2003 and 2008. States which had passed a same-sex marriage ban as of January 1, 2008, however, saw their divorce rates rise by about 1 percent over the same period.
So somebody on the Right needs to explain again why banning same-sex marriage is a "defense" of marriage.
The TSA says it's a myth that they put an 8-year-old boy on their watch list. Well, maybe not intentionally, but Mikey Hicks is 8 and has the same name as somebody the TSA has on its special-screening list. So Mikey has been patted down in airports since he was 2. The New York Times has a picture of Mikey in his cub scout uniform.

Until now I've ignored the Harry Reid he-said-Negro controversy because it just seems stupid to me. Right-wingers tried to draw a parallel between Reid's explanation of why Obama might be electable and Trent Lott saying that we'd be better off if a racist had been elected president in 1948 instead of Harry Truman. Those are exactly the same thing, right? Lott stepped down as majority leader, GOP chair Michael Steele said, so Reid should too.

The best person to respond to this is probably comedian Elon James White, the host of This Week in Blackness. He devotes Episode 2 of Season 3 to the word Negro, which he says he can't get excited about. "I didn't want to talk about Michael Steele this much," White comments at the very end, "but he bothers me. Michael Steele makes my common sense hurt."

Matt Yglesias analyzes Sarah Palin's claim that Reid is benefitting from a double standard:
the complaint she offers isn’t a complaint on behalf of African-Americans. It’s a complaint offered on behalf of white southern racists. It’s not that it would be unfair to black people for Reid to remain majority leader, rather the problem is that it would be unfair to Trent Lott.

If some people get their way, McCarthyism won't be a smear any more -- because schools will teach that Joe McCarthy "was basically vindicated."

Justin Vaisse doesn't think the Muslims are taking over Europe.

Interesting thought experiment from Princeton economist Uwe Reinhardt:
imagine that ... the federal government would grant each senator an identical, flat contribution equal to, say, 72 percent of the average premium paid for the health insurance of all federal employees. Each senator would then have to go into the market for individually sold, medically underwritten health insurance for the rest of their coverage.
Maybe then it wouldn't be so hard to get some Republican votes for health-care reform.
Scot Herrick asks: What if the old jobs are gone for good? What if we're all temps now?

Until Wednesday, I was one of the two people in America (maybe the world) who hadn't seen Avatar. If you're the last person, you should go. It's a completely engrossing movie, and conservatives hate it. It sympathizes with indigenous peoples against colonizing militarists. It champions planetary interconnection rather than individualism. And it makes rapacious, resource-seeking corporations look bad. What was James Cameron thinking?

Monday, January 11, 2010

Law and Justice

This is a court of law, young man, not a court of justice.  -- attributed to Supreme Court Justice Oliver Wendell Holmes Jr.

In this week's Sift, we're waiting for a ruling in the Citizens United case, where the Supreme Court is expected to destroy nearly all existing limitations on corporate political spending. But courts have been busy the last few months as well, and I haven't been keeping up. Here are some of the cases worth paying attention to:
  • Blackwater Case Thrown Out. There seems to be no legal way to prosecute the mercenaries who killed at least 14 innocent civilians in Baghdad's Nisour Square. 
  • Guantanamo Detainees Lose a Double-header. A civil suit alleging that four British detainees were illegally tortured at Guantanamo is officially dead now that the Supreme Court refuses to hear the appeal -- meaning that there is still no definitive court ruling that torture is illegal even if the president orders it. And a Yemeni man's habeas corpus petition was turned down by an appeals court, which made a sweeping ruling that the international laws of war are inapplicable.
  • Part of the Defense of Marriage Act is unconstitutional. In nearly identical cases, conservative and liberal federal judges in California rule that same-sex spouses have to get spousal benefits from the federal government. 
And, as usual, we have Short Notes: The fate of the health-care bill depends on who votes in the Massachusetts special senate election. Texas conservatives' control of national textbooks is about to get worse. I'm closer to Dick Cheney than I thought. How do you have a democracy if only the well-to-do have journalism? Brit Hume won't back down. The health-care system works very well for insurance CEOs. Rudi forgets 9-11. Viral videos about snow. And more.

Blackwater Case Thrown Out
As you know if you read Big Boy Rules: America's Mercenaries Fighting in Iraq by Steve Fainaru (or my review of it) trigger-happy security contractors in Iraq have been a major problem. The contractors fell through the cracks between the various legal systems, not being accountable either to Iraqi law or to the Uniform Code of Military Justice.

The most egregious incident (which gets a whole chapter in Big Boy Rules) was the Nisour Square shooting in Baghdad in 2007 that left 17 Iraqi civilians dead and 24 injured, without any evidence of what the heck the Blackwater guards were shooting at. (The judge's statement dismissing the charges refers to Nisur Square, 14 dead, and 20 injured. I'm not sure where the discrepancies come from.) The mercs claimed that they were responding to enemy fire, but even in that story there's no good explanation of why they returned fire in all directions, killing so many unarmed civilians.

Charges of manslaughter and firearms violations were brought against five Blackwater employees in American civilian court in May, 2009. Those charges got thrown out on New Year's Eve by District Judge Ricardo Urbina. The reason: When the Department of State (who contracted Blackwater for their services) investigated, it took statements from the guards under the threat of losing their jobs and with the promise that these statements would not be used in court. So the statements are inadmissible in U.S. court. Blame the Fifth Amendment:
No person ... shall be compelled in any criminal case to be a witness against himself.
More than that, the Fifth Amendment has been interpreted to mean that compelled self-incrimination can't be used in the investigation leading to the indictment. For example, if an inadmissible statement is your only reason to believe that Bob shot Jack, and you then go to all the witnesses and ask, "Did you see Bob shoot Jack?" -- then the statement has contaminated your investigation. The government has to go to some trouble to show that this didn't happen, sometimes by appointing a whole new investigating team that hasn't seen the inadmissible statements.

In this case the judge ruled that the government's case was too contaminated to come to trial. The judge's logic looks correct to me, even though it leads to a result I don't like. (It's similar to when Oliver North's felony conviction got thrown out in the Iran-Contra scandal.) Conservatives may not like the fact that our system gives rights to defendants who are probably guilty, but their people deserve those same rights.

The Iraqis are furious. The situation is complicated by the fact that Iraq has no history of an independent judiciary or constitutional rights, so Iraqis quickly jump to the conclusion that the whole process must have been a sham from the beginning. The L.A. Times quotes one victim, an Iraqi lawyer, as saying, "This negates Iraqi blood and life. ... If an Iraqi cut off the finger of an American, they would not be satisfied until they got half the riches of Iraq." Another wounded man said, "This is typical of American justice."

I'm not sure how much blame to apportion between the Obama and Bush Justice Departments. The lead investigator on the case was Assistant U. S. Attorney Kenneth Kohl. A CNN article about the case mentions him in December, 2008, too early to make him an Obama appointee. Nonetheless, the Obama Justice Department has had oversight since January, 2009.

Victims of the Nisour Square shooting now say they were pressured into accepting small settlements from Blackwater (now officially called Xe, a name no one seems to use). They claim that Blackwater either duped or corrupted their attorneys, who urged them to accept the settlements on the grounds that Blackwater was about to go bankrupt and they could wind up getting nothing.

Victims who didn't accept the settlements had a civil suit in North Carolina, which Blackwater has also settled.

Guantanamo Detainees Lose a Double-header
Four British Guantanamo detainees had filed suit against Don Rumsfeld and 10 military commanders, asking compensation for having been tortured illegally. An appeals court dismissed the suit in April, and the Supreme Court refused to hear the appeal in December. The key statement in the appellate decision, which is the standing opinion now that the Supremes have decided not to take the case, is:
even if plaintiffs had rights under the Due Process Clause and the Cruel and Unusual Punishment Clause and even if those rights had been violated, qualified immunity shields the defendants because the asserted rights were not clearly established at the time of plaintiffs’ detention.
In other words, it's still ambiguous whether or not torture at Guantanamo was illegal during the Bush administration. A NYT editorial objects:
Contrary to the view of the lower appellate court, it was crystal clear that torture inflicted anywhere is illegal long before the Supreme Court’s 2008 ruling that prisoners at Guantánamo, de facto United States territory, have a constitutional right to habeas corpus. Moreover, the shield of qualified immunity was not raised in good faith. Officials decided to hold detainees offshore at Guantánamo precisely to try to avoid claims from victims for conduct the officials knew was illegal.
Tapped quotes and paraphrases the ACLU's Ben Wizner :
“not a single torture victim has had his day in court, not a single court in a torture case has ruled on the legality of the Bush administration’s torture policies," Wizner said. As a result, Wizner explained, “we don’t have a binding definitive determination from any court that what went on for the past eight years is illegal," without which it would be all too easy for another lawyer in another administration to write a memo allowing “monstrous conduct.”
The history of the case goes back to 2004, when the suit was originally filed.

Back in 2001 -- before 9-11 and before the United States had any quarrel with the Taliban or Afghanistan -- a Saudi cleric convinced Ghaleb Nassar Al Bihani, a Yemeni, that it was his duty to defend the Taliban in the Afghan civil war it was fighting with the Northern Alliance. So he went to Afghanistan and joined a rag-tag pro-Taliban military outfit as a cook. After 9-11 and the entry of the United States, the fortunes of war changed and Al Bihani's unit surrendered to the Northern Alliance. Al Bihani wound up in Guantanamo, where he has spent the last eight years.

In the Boumediene case of 2008, the Supreme Court ruled that Guantanamo detainees had habeas corpus rights -- in other words, the right to force the government to justify a detainee's imprisonment in front of a judge who could order release if s/he isn't satisfied with the government's argument. So Al Bihani filed a habeas petition, which the district court denied. He appealed.

Now an appeals court has also ruled against Al Bihani. Judge Janice Rogers Brown, writing for the court:
Before considering [Bihani's] arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the [Authorization of the Use of Military Force resolution passed by Congress after 9-11] and other statutes are limited by the international laws of war. This premise is mistaken.
That needs some unpacking. The Constitution makes treaties part of the law. Article VI says:
all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land
But Congress typically passes implementing legislation that defines specific processes for meeting treaty obligations. Judge Brown is saying that in the absence of such legislation, a treaty has no practical force. (Similar logic led John Yoo to conclude that the plain statements of the Convention Against Torture don't actually prohibit the president from ordering torture.) I'll yield to Deborah Pearlstein's analysis on Balkinization:
It may be true that [the international law of war] ultimately provides inconclusive guidance in settling the legality of detention in a particular case. But the panel here reached out far beyond that in waving aside the Geneva Conventions – and any other source of international law – in their entirety. Poorly done. And rich fodder for appeal.

Jim White at FireDogLake marks the eighth anniversary of the first transfer of prisoners to Guantanamo by collecting links to images and commentary.

Still no report from the Justice Department's Office of Professional Responsibility on the conduct of John Yoo and other Bush appointees at the Office of Legal Counsel. Attorney General Holder promised one in "days" -- almost two months ago.

Part of the Defense of Marriage Act is Unconstitutional
The Defense of Marriage Act (DOMA) was one of those bad pieces of legislation that President Clinton signed so that Congress wouldn't pass something even worse. One clause of DOMA prohibits federal benefits from going to the same-sex spouses of federal employees:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife.
Brad Levenson is a deputy public defender in the federal court system. He was married to another man in 2006, when same-sex marriage was legal in California. (By a ruling of the California Supreme Court, those marriages remain valid even though Proposition 8 forbids any new same-sex marriages in California.) He applied for health insurance for his spouse, and was turned down because of DOMA. On November 18, Judge Steven Reinhardt of the 9th Circuit Court of Appeals (which is located in San Francisco and is considered the most liberal federal appeals court) ruled that
the application of DOMA to FEBHA [the Federal Employees Health Benefit Act] so as to deny Levenson's request that his same-sex spouse receive federal benefits violates the Due Process Clause of the Fifth Amendment.
For those of you who don't have your rights memorized, here is that clause:
No person shall ... be deprived of life, liberty, or property without due process of law.
The next day, Judge Alex Kozinski of the same appeals court issued a similar order in the similar case of Karen Golinski. Emptywheel observes that Kozinski and Reinhardt could not be more different:
Stephen Reinhardt is a proud old school hard liberal appointed by Jimmy Carter; Kozinski was a young and fairly radical conservative when appointed by Ronald Reagan and openly complained that the 9th was too wild eyed liberal when he joined.
So far, the Obama administration is dragging its feet about responding to these rulings, invoking a technicality whose importance I can't judge: Because these cases involve employees of the federal court system, the federal judges are acting in an administrative capacity rather than a judicial capacity. (In other words, these are grievance procedures internal to the court system, not lawsuits.) So their rulings in these cases do not carry the same legal force as federal court rulings.

I'm not sure where this goes from here. Probably Levenson and Golinski will have to file suit in federal court, in which case the judges (the same judges? I'm not sure) will be ruling in their judicial capacity. The same logic will probably apply, and then the whole thing could get appealed to the Supreme Court.

Other summaries of the Levenson and Golinski DOMA cases are here and here.
I'm taking a charitable view of the Obama administration's actions here. The Obama administration is defending the status quo in court rather than changing it by executive interpretation. This forces Congress and the courts to do their jobs, rather than following the imperial-presidency pattern of recent administrations of both parties. I think Obama would be happy to see Congress repeal DOMA or the Supreme Court declare it unconstitutional, but in the meantime his administration is not going to stop enforcing it.
DOMA was passed in 1996, seven years before the first legal same-sex marriages were performed in Massachusetts. It was a response to a 1993 ruling by the Hawaii Supreme Court that for a time made Hawaii the most likely state to legalize same-sex marriage -- a possibility nixed by a 1998 amendment to the state constitution.

Something neither judge has touched so far is the full-faith-and-credit angle, which DOMA was directly targeting. Article IV Section 1 of the U.S. Constitution says:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.
So if one state says you're married, how can some other state say that you're not? And how can an ordinary law like DOMA undo a provision of the Constitution, which is the supreme law of the land? For an example of how this logic works, see the Finstuen v. Crutcher, where a federal court ruled in 2007 that Oklahoma had to recognize a same-sex couple as the legal parents of a child they had adopted in another state.
DParker at DailyKos has a nice summary of a lot of pending cases, This week in the Supreme Court. I hope he starts doing this every week that the Court is in session.

Short Notes
Massachusetts folks, listen up: You absolutely have to vote in the January 19 election to replace Ted Kennedy. The polls are all over the map, with some even putting Republican Scott Brown ahead. The difference in the polls seems to be the different pollsters' assumptions about who votes.

If Brown wins, that's it for the filibuster-proof Senate. Then not even Joe Lieberman will be able to save health-care reform.

The outsized influence of Texas on public school textbooks, and the outsized influence of right-wingers in Texas -- those are both old stories. But it looks like things are about to get worse. And when it comes to the anti-evolution movement: Today America, tomorrow the world.

Democratic Senators Brian Dorgan of North Dakota and Chris Dodd of Connecticut have announced that they won't run for re-election. The two announcements have opposite effects: North Dakota is a red state, but Dorgan had a good chance of holding the seat for the Democrats. Connecticut is a blue state, but Dodd had become unpopular enough that he could have lost the seat to a Republican.

A seminal talk that I've linked to before is Tom Stites' "Is Media Performance Democracy's Critical Issue?" Tom's point is that all the real reporting in the mainstream media assumes an audience in the richest 40% of the population. The lower 60% live their lives more-or-less untouched by journalism.

This is old news now -- the talk is from 2006 -- but it came back to me while I was preparing this week's Sift. I wanted to write about the disappointing jobs report, so I did a Google News search for stories on "jobs report" during January 7-9. What came up? The top story was CNN's "Stocks expected to fall on jobs report". (The expectation was wrong; the market went up Friday.) The second featured link was about how the jobs report had affected the oil market. And it went on like that.

Think about that. The economy losing 85,000 jobs is a life-changing disaster for lots and lots of working-class people. But the story the media considers worth covering is the effect that the jobs report might (but actually didn't) have on investors. 

If you want to go deeper on this topic, check out Tom's Banyan Project. (Full disclosure: Before he "retired", Tom was my editor at UU World. I'm an unpaid advisor to the Banyan Project.)

Glenn Greenwald points out that Politico's self-defense misses the point:
Nobody I've heard objects to Politico's act of telling its readers about the "interesting things" Cheney has to say. The objection is that Politico mindlessly reprints any and all claims Cheney wants to make, no matter how factually dubious or even blatantly false, without question or challenge. 

Speaking of Cheney brings me to today's unexpected discovery: Jacob Plotkin, my logic professor at Michigan State, was Dick Cheney's freshman roommate at Yale.
Amusing Informania videos if you're sick of winter already: This one commiserates with reporters who have to cover snowstorms -- and includes some snow reports that didn't go exactly as planned. And Viral Video Film School collects strange snow-related clips.
DailyKos' Devilstower calls attention to the hoo-hum attitude everybody seems to have toward the horrible stuff that happens in Appalachia. Cut the tops off mountains, destroy the forests, pollute the streams, bulldoze the historical sites -- it's not like anybody important lives there.

A follow-up to last week's note where Brit Hume made an on-air appeal for Tiger Woods to convert to Christianity. This week Hume defended himself on Bill O'Reilly's show. Apparently, it's not "proselytizing" when a Christian tries to get somebody from another religion to convert. And the only reason anybody objects to Hume using his status as a news anchor to promote his religion is that they have a bias against Christianity. "You mention the name of Jesus Christ," Hume tells O'Reilly, "and all Hell breaks loose."

Christians often go off on nonsensical persecution jags like this. Their points are hard to answer because there are no truly analogous cases - because nobody who didn't belong to the majority religion would even consider doing such a thing

Picture it: Lots of celebrities who get in trouble are at least nominally members of some Christian sect. Lindsay Lohan, for example, is listed as Catholic. Assuming that there's a Buddhist or Hindu or Muslim news anchor somewhere, would that anchor dare suggest that Lindsay's problem is Christianity, and that the solution is for her to convert to the anchor's faith? How long would the anchor keep his job?

Here's yet another graphic showing what a bad deal Americans get from our health-care system. And here's another one.

On the other hand, our health-care system works well for some people: CIGNA CEO Edward Hanway, for example, is getting a $73 million retirement bonus. Well done, Ed.

Former NYC Mayor Ed Koch generously grants that not all Muslims are terrorists. "But there are hundreds of millions who are."
You would have thought that Rudi Giuliani would be the last person to forget 9-11. But not so. Here he says: "We had no domestic attacks under Bush; we've had one under Obama." Later clarification indicated that Rudi meant since 9-11. Bush gets a mulligan for that one because ... well, he just does. Tristero notes a few other things Rudi has forgotten, and DailyKos' clammyc adds: "Other than New Orleans, no US cities were destroyed under Bush."

Monday, January 4, 2010

Pants on Fire

President Obama is trying to pretend that we are not at war. ... Why doesn’t he want to admit we’re at war? It doesn’t fit with the view of the world he brought with him to the Oval Office. -- former Vice President Dick Cheney, December 29, 2009

Our nation is at war against a far-reaching network of violence and hatred. -- President Barack Obama, Inaugural Address, January 20, 2009
In this week's Sift:
  • The Zero Decade. For the first time since the Depression, we had a decade with no job growth, and no increases either in median household income or median household net worth. How is that possible? Didn't we cut taxes, slash regulations, hobble unions, and do everything else in the conservative growth plan?
  • Reacting to the Underpants Bomber. Al Qaeda's latest star managed to harm nothing beyond his own reproductive prospects. And yet, this supposedly shows that the terrorists have Obama outmatched, and that we need even more draconian procedures to keep us safe. Maybe Dick Cheney's pants are on fire too.
  • Short Notes. Community banks as an anti-Wall-Street protest. Karl Rove proves that traditional marriage is in trouble.  What makes Garrison Keillor lose his cool? Brit Hume evangelizes Tiger Woods. Bono gives you ten things to think about. And more.

The Zero Decade
Interesting juxtaposition of articles: The New York Times editorialized about what we need to do to avoid a "lost decade" like the Japanese had after their real estate bubble popped in the late 80s, while the Washington Post's Neil Irwin pointed out that we've just finished a lost decade: There's been no net increase in the number of jobs in this country since 2000. (The article comes with a very good graph.)
Middle-income households made less in 2008, when adjusted for inflation, than they did in 1999 -- and the number is sure to have declined further during a difficult 2009. ... And the net worth of American households -- the value of their houses, retirement funds and other assets minus debts -- has also declined when adjusted for inflation
All the decades since the Depression have been very different than this: They all had at least 20% job growth and substantial increases in median income and median net worth.

In part, Irwin acknowledges, this is a statistical anomaly: The decade sandwiched two recessions around a single expansion. But the current recession is very sharp and the expansion (the "Bush Boom") was anemic -- especially if you measure medians rather than averages. (Rich people did quite well during the decade, and their extreme gains pull the averages up, just as Bill Gates raises the average net worth of any crowd he walks into.)

The decade was dominated by bubbles: The Internet bubble popped at the beginning of the decade and the mid-decade expansion was driven by the housing bubble, which popped in 2008. Irwin's article concludes with economists scratching their heads, trying to learn the lesson that will lead to bubble-free prosperity in the future.

Devilstower on DailyKos is not scratching his head, because he knows exactly what went wrong: During the Naughts, we followed a conservative philosophy that doesn't work.
this decade, no matter what anyone on the right might say, was conservatism on trial. You want less taxes? You got less taxes. You want less regulation? You got less regulation. Open markets? Wide open. An illusion of security in place of rights? Hey, presto. Think we should privatize war by handing unlimited power given to military contractors so they can kick butt and take names? Kiddo, we passed out boots and pencils by the thousands. Everything, everything, that ever showed up on a drooled-over right wing wish list got implemented -- with a side order of Freedom Fries.

... What did we get for it? We got an economy in ruins, a government in massive debt, unending war, and the repudiation of the world.
It's important not to forget the bright future that conservatives projected if we cut taxes and regulation: Investors would be motivated to invest productively in new industries that would create new jobs. The people who drive our economy (i.e., the rich) would work harder and more creatively. The benefits would trickle down to everyone.

It didn't happen, and it never does. When the rich get richer, the rich get richer. That's the long and short of it.

The point the NYT editorial was making is also worthwhile: If we get overly concerned with the deficit now, the economy could tip right back into recession. Paul Krugman makes the same point in more detail: The housing boom isn't coming back and consumers are likely to remain wary until after their job prospects perk up. Businesses aren't likely to make major investments without more evidence that a sustained expansion is starting. So even though we're likely to get a blip of good economic numbers in the next quarter, if government stimulus fades out this year as expected, the recession is likely to start again.

I wish I heard more long-term vision from Krugman. You can always have short-term growth if somebody is willing to borrow enough money and spend it. Until 2008, middle-class Americans were borrowing and spending their home equity. Now the government is trying to fill the borrow-and-spend role. But sustainable growth requires something else. Where is it going to come from? I understand that this new growth-engine may not appear tomorrow or the next day, and that we need to stave off disaster in the meantime, but which part of the horizon should we be staring at?

Reacting to the Underpants Bomber
I'm sure you heard: On Christmas Day, Umar Farouk Abdulmutallab tried to blow up Northwestern Flight #253 as it descended towards Detroit. He smuggled chemicals onto the plane in his underwear, but his bomb only managed to ignite rather than explode. Passengers captured him while flight attendants put out the fire. Other than Abdulmutallab himself, there were no major injuries. The plane landed safely.

In a sane world, this event would be seen as a major propaganda coup for the United States. Think about it: You imagine you're on your way to a glorious martyrdom, but instead of waking up in Heaven surrounded by virgins, you find yourself in an American hospital with painful burns in unmentionable places. Even thinking about those virgins must hurt.

I want Abdulmatallab's story told in excruciating detail everywhere that young men dream of jihad against the West. All across the Muslim world, I hope that mothers and girl friends are saying, "You keep hanging around with those radicals and you'll wind up burning your dick off like that Nigerian fool."

I hope this incident completely dissolves the image of competence that Al Qaeda had after it destroyed the twin towers on 9-11. These guys are going to bring down the Great Satan and restore the Caliphate? They can't even set their own pants on fire properly.

That's how sane people would react. Republicans have been responding differently. To them, the attempted underpants-bombing is a disaster comparable to 9-11 or Hurricane Katrina. Janet Napolitano's "the system worked" is supposedly a gaffe on the scale of "heckuva job, Brownie." (Let me add this: If the underpants-bombing really is like 9-11, shouldn't Republicans be rallying around President Obama now the way that Democrats rallied around President Bush then? Just wondering.)

The point man on the Republican criticism of Obama has been Dick Cheney. His statement (issued through Politico's Mike Allen) contains numerous false assertions like the one I highlighted in the opening quotes. But Politico was founded by veteran Washington Post political reporters, so its mission is not to present facts, but to provide a venue for people like Dick Cheney to issue statements without criticism or follow-up questions. (Like: Wasn't it your administration that released the Yemenis who supposedly trained the Underpants Bomber? Didn't your administration try the Shoe Bomber in civilian court -- the same thing you're criticizing Obama for planning to do with the Underpants Bomber?) 

You have to wonder whether Mike Allen had these thoughts and repressed them, or if years of stenography have dulled his journalistic instincts completely. Fortunately, Rachel Maddow does ask questions like this, which is why both Liz and Dick Cheney are afraid to appear on her show, despite numerous invitations.

Charles Krauthammer spreads a related lie: that Obama has "declared the war over." The Wonk Room rebuts. Matt Yglesias notes that Krauthammer's column is in both National Review (where publishing lies about Obama is a central part of the mission) and in the Washington Post (where ... what?).
It makes you wonder what the Post’s owners and editors think the purpose of the product they’re putting out is. Is it supposed to convey accurate information to readers? If that’s what it’s supposed to be doing, they’re not doing a very good job of it. But what’s more, they don’t even seem to be trying. 

A lot of the Republican criticism has centered on the words President Obama uses rather than any particular thing he has done. In particular, Republicans object to Obama's reluctance to use the word terrorism. They claim he doesn't use it at all (which is false), but it is true that Obama says violent extremism in many situations where Bush would have said terrorism

I think the administration has done a bad job of explaining this, so let me take a stab: President Bush misused the word terrorist until it broke. Under Bush, terrorist just meant a Muslim I don't like. That's how most of the world hears it now.

The dictionary on my desktop widget defines terrorism as: "the use of violence and intimidation in the pursuit of political aims." The word would still be viable if the Bushies had consistently used it that way. But when a conservative brought a shotgun into a children's pageant at a Unitarian church in Knoxville and killed two people because of (as a police report put it) "his belief that all liberals should be killed because they were ruining the country" -- the Bush administration didn't call that terrorism. Assassinating abortion doctors or trying to blow abortion clinics wasn't terrorism either.

You had to be a Muslim (or, more recently, a friend of Obama) to be a terrorist. That -- along with complete amnesia about 9-11 -- was how Dana Perino could say: "We did not have a terrorist attack on our country during President Bush’s term." Or how Jeffrey Weiss could claim (and subsequently correct, to his credit, after Glenn Greenwald pointed out that it was just flat false) that "100% of attempted terrorist attacks ... since the 1995 Oklahoma City bombing have been committed by people claiming to act in the name of Islam."

The word is tainted now, and Republicans have no one to blame but themselves.

There's been a spirited debate about whether security officials should have known that the Underpants Bomber was dangerous. His father (a Nigerian banker, but apparently not the one who keeps sending me email) had warned the U.S. embassy that his son was involved with Islamic extremists. With the advantage of hindsight, we can now find a number of additional clues about the UB's intentions. Should the security system have put those clues together and arrested him before he got on the plane? Or would a system capable of doing that create more problems than it solved?

Newsweek does a good job of describing the current system that handles information like the father's warning. The UB's name went on a master list of 550,000 names, but wasn't on the 13,000-name list of people who should get extra screening before they board a plane or the 4,000-name no-fly list. (Other sources claim the number of names on these lists is higher.)

From one point of view this a cumbersome bureaucracy that might let people die while information grinds slowly through its mills. But we also need to think about all the mistakes and abuses this system prevents. We've all heard stories about innocent people who are hassled because their name resembles some suspicious person's. Now imagine that anyone close to you could shut down your travel plans by telling officials that you might be a terrorist. How many angry wives would use such a system to prevent their husbands from flying off to see a mistress? How many controlling parents would use it (or threaten to use it) to keep their adult children from leaving the country?

One lesson we should have learned from the lead-up to the Iraq War (when Dick Cheney established a system to "stovepipe" any raw data that implicated Saddam -- circumventing the usual intelligence analysis process that filtered out unreliable reports) is the importance of the distinction between raw data and actionable intelligence. We collect so much raw data that it can imply anything if you cherry-pick it. We need a system in which knowledgeable, unbiased people investigate and make judgments before action is taken. Sometimes, information may not get through the system in time to be useful -- but taking action on bad intelligence also leads to horror stories.

Here's a depressing stat: 58% of Americans want the Underpants Bomber waterboarded. Uh, folks, he confessed already. Unless torturing him is an end in itself, I'm not sure what this is supposed to accomplish.
A retired Air Force general wants to turn our airports into Abu Ghraib: "If you are an 18 to 28-year-old Muslim man then you should be strip searched," General McInerney said on Fox News. If they're not terrorists already, they will be.
Former Bush officials who think Obama is doing the right things on terrorism are afraid to say so in public.

Short Notes
Huffington Post is pushing an interesting protest action: Move your money out of the too-big-to-fail banks and into community banks.
The idea is simple: If enough people who have money in one of the big four banks move it into smaller, more local, more traditional community banks, then collectively we, the people, will have taken a big step toward re-rigging the financial system so it becomes again the productive, stable engine for growth it's meant to be. 

Daniel De Groot on Open Left puts his finger on why the Right can't admit global warming is happening: "Denial is the only way to save their worldview."

OK, I admit I'm highlighting this because it echoes what I said in February:
Global warming became a left/right issue because the right has no answer for it. The market cannot deliver a solution to global warming without governments first constructing a substantial amount of structure (like creating some kind of cap-and-trade system). So if you believe with religious fervor that the market solves all real problems, then global warming can't be a real problem.

The Swedes are attacking global warming with a foreign aid project to train the natives in Virginia.

Will AIG really suffer a brain drain if we don't let them pay million-dollar bonuses? Let's find out.

Karl Rove just divorced his second wife after 24 years of marriage. I guess that proves a point he's been making for years now: Traditional marriage is in trouble. Glenn Greenwald comments:
If Karl Rove, Newt Gingrich, Rush Limbaugh and their friends and followers actually were required by law to stay married to their wives -- the way that "traditional marriage" was generally supposed to work -- the movement to have our secular laws conform to "traditional marriage" principles would almost certainly die a quick, quiet and well-deserved death.

Pointing out right-wing hypocrisy and the media's double standard is shooting fish in a barrel, but this stands out: In 2003, conservatives thought it was almost criminal when one of the Dixie Chicks said in London that she was ashamed to be from the same state as President Bush. Boycotts were organized, and the whole story is told in the movie Shut Up and Sing. Well, Ted Nugent, also in England, told Royal Flush magazine that President Obama is a "communist" who "should be put in jail." This registered a zero on the outrage meter.

Having listened for years to the calm, understated voice of Garrison Keillor, I have often wondered what it would take to get him to lose his cool. Well, now we know: Unitarians singing unfamiliar lyrics to "Silent Night". 

As a Unitarian Universalist myself, I thought Cooper Zale's response was spot on. Zale commiserated with the pain of having your buttons pushed, pointed out where Keillor's rant had pushed his own buttons, and closed with: "And so, buddy Garrison ... I would like to wish you a return to your usual wonderful loving and knowing self, as soon as possible!"

A less charitable but very correct response came from Dan Harper (who I know), writing in his Mr. Crankypants persona. Mr. C points out that the "Silent Night" lyrics in the UU hymnal are not a rewrite (as Keillor charges), they're a more accurate translation of the German original. The English lyrics Keillor loves are, in fact, the rewrite. (And while we're on that subject: "O Come All Ye Faithful" is a clumsy translation of "Adeste Fideles".)

I'll add this: Garrison, how about showing some gratitude to the Unitarians who wrote "It Came Upon a Midnight Clear" and "Jingle Bells"?

Surprising fact discovered while researching the previous note: James Pierpont (the Unitarian organist who wrote "Jingle Bells") was the uncle of John Pierpont Morgan, the banker. (No, Morgan was an Episcopalian.)
Fox News anchor Brit Hume opines that if Tiger Woods wants to "recover as a person" he needs to convert from Buddhism to Christianity. If he does, Hume says, he can "make a total recovery and be a great example to the world." And get all his endorsements back too, I'll bet.
Bono's "ten ideas that might make the next decade more interesting, healthy, or civil" are worth a look. Some are a little fanciful, and you have to bear in mind the Moody Blues' warning ("I'm just a singer in a rock and roll band") -- but he does give you something to think about.

Ezra Klein asks: 
What happens when one of the two major parties does not see a political upside in solving problems and has the power to keep those problems from being solved?
That's what's happening in California, and is starting to happen nationally. Because it takes a supermajority to get anything done in the legislature (as in the U. S. Senate), the Republican minority can block any proposed solutions to California's fiscal crisis, and then blame the Democrats supposedly "in power" for the ensuing problems.