July 19, 2015 § 4 Comments
I keep thinking about Thomas Piketty and the relentlessly increasing degree of wealth and income inequality he describes. Every month when a new report comes out and news anchors talk about the state of our economy, the story is, “Our economy is doing better, but wage rates are lagging.” The working class is going back to work, but they’re not being paid as much for their work. As the Chicanos say, “Mucho trabajo. Poco dinero.” [Actually the rest of this old toast, which I will edit, goes “Ching**** tu madre. Viva Madero!” LIke most gringos, I learned to curse in Spanish before I learned anything else.]
I’ve been thinking about what governments should do to reverse this process. I now believe my reasoning has been flawed. Government policies are based on political power. A tiny percentage of our voting population exercises giant influence on government policy. Their influence results from control of money contributed to candidates and so-called “PACs”. In other words, their money translates to political power.
Our state and federal capitols are brokerage houses where political power shapes bargains between the interests of the wealthy and interests of the working class. There is a growing imbalance of that power. So, the solution to the inequality described by Piketty must focus on that imbalance.
The Private Sector
There is another component to Piketty’s inequality: In our capitalist system, most bargains are struck in the private sector, between workers and employers. There, again, is a glaring imbalance of power. When I look and listen to the political rhetoric leading toward the 2015 election season, I hear and see nothing about this private sector power imbalance. I don’t believe redistribution of wealth through reform of the tax system will occur unless it is accompanied by a re-balancing of bargaining power in the private sector.
That private sector re-balancing can be accomplished only if workers are allowed to use their power the same way that employers use theirs: By making strategic choices of how and where they use their power. Employers control where and how to invest their money. Workers must be allowed to control where and how they invest their work.
How can workers empower that control? There are three ways. First, workers have the power to control where and how they and their supporters consume goods and services. That power is called boycott. Second, workers have the power to control where and how they work. That power is called the power to strike. Third, workers have the power to use social media, mass media and the internet to recruit and persuade their families and supporters to join them in their struggles and bargains with owners and managers.
Politicians who seek support of working class Americans should support workers’ rights to exercise all three of those powers. Union organizing should be facilitated and encouraged. Campaign rhetoric should feature lifting legal restrictions on secondary boycotts. Politicians who rely on the votes of workers should show up on the picket lines of labor disputes and worker demonstrations seeking workplace justice.
The problem with “Occupy Wall Street” was its focus on a workplace where the working class could not exercise power. Fast food chains and retail shopping chains are appropriate targets for worker power, not Wall Street. The labor movement needs to broaden its focus and labor’s political allies need to join in that effort.
Making Political Parties Relevant
It is absurd that Scott Walker is basing a strong political challenge in Wisconsin on his union busting credentials. Every Democratic candidate should spend time in Wisconsin denouncing him as an enemy of worker justice.
The deafening silence of Democratic Party leaders concerning issues discussed here threatens to render the Party irrelevant to the most pressing issues of our time. We cannot correct unjust distribution of power in our country as long as every mention of Bernie Sanders by the TV talking heads includes dismissive comments comparing him to Hillary Clinton. We have intelligent, experienced attractive political leaders. Our problem is: They fear to speak the truth about wealth inequality. That injustice will not be solved by government hand-outs. It will be solved by empowering the working class and re-balancing bargaining between workers and employers.
How Can Low Wage Employees be Organized?
We need new models for strikes. It is unrealistic to expect workers earning minimum wage incomes to walk off jobs and stay off until employment contracts are negotiated. Social media could be used to direct carefully planned one-day strikes. The workers in a particular location can be recruited and given a coded direction and asked to keep it secret. When all, or a majority, of the staff at a particular location have agreed, they wait for an email or twitter message with the code phrase. The next day, they fail to show up for work. The next day they return to work. If this works, the pattern of low-wage targets could be like the bumpers in a pinball machine.
Of course, the chain could fire all of them, but that would compound the disruption of its business. If the recruitment process occurs in multiple locations, a retaliatory one-day shut-down at another location would discourage the mass discharge strategy. Also, the present labor laws have protection for “concerted activity” and there might be a remedy for management’s retaliatory discharge.
What I am suggesting is a strategy requiring months of preliminary planning and education. An online campaign to identify employees of a specific chain in a specific area should precede “one-day pinball strikes”. Google has a program called “Google Groups” available for this kind of organizing. I assume it would attract “fink” members who would rat out the workers, but unions have been surviving finks forever. There are risks in any strategy.
Suppose a campaign to organize MacDonald employees: Justice At McDonalds “JAM”. A JAM Google Group would be created. Some cheap radio advertising would invite McDonalds employees to sign on the JAM group. Joiners would be identified by email addresses. Some pamphlets would be handed to some McDonalds employees at shift change times. When the recruitment campaign has progressed far enough, a meeting would be scheduled at a community center or a church.
After most or all of the employees at a particular McDonalds were identified, the above “pinball one-day strike” procedure would be implemented.
This kind of organizing would be initiated by one or more of our established unions. The Teamsters or SEIU (Service Employees International Union) are likely candidates. They would not be trying to organize the fast food workers into their union. This would follow the model of the Mine Workers launching the Steelworkers in the ’30’s. Minimum wage workers at McDonalds would not be able to pay the dues of a major international union and their needs differ from those of the sponsoring union. The JAM members would elect their own leaders.
The established unions could offer training, money and advice, but not domination and incorporation. This would have to be done carefully because established unions have assets and are vulnerable to damage suits. The kind of JAM union I am suggesting should take care to operate without assets. It should operate like an AA organization. No dues, some hat-passing at meetings, no buildings, no vehicles. Some friendly groups might contribute funds for particular projects. This “business model” would discourage creative corporate lawyers from filing law suits complaining about boycotts, trespassing, trade libel etc. Judgement proof is handy insulation from damage suits.
I can’t anticipate the goals of a JAM union. I would suggest a simplified contract with a “just cause” requirement for discipline or discharge, a grievance procedure and some small increase in the wage scales.
80% of McDonalds restaurants are owned by franchisees. This would complicate collective bargaining but this could be overcome by targeting a few of the most popular locations in an area, posting a prominent sign at those with JAM contracts and waging a boycott campaign against those who refuse the JAM effort. This would follow the model of the New Deal’s “Blue Eagle” campaign. That was ruled unconstitutional by a recalcitrant Supreme Court. Because JAM boycotts would not be sponsored by the government, constitutional issues would not apply.
These Sunday afternoon musings are born of frustration. I have small confidence that a political system dependent on billion dollar contributors will ever redistribute the wealth necessary to save America’s working class from wage slavery and global exploitation. Nibbling around the edges of the problem will not work. The descamisados must be organized because they are numerous enough to counter the money-driven forces of wealth.
July 10, 2015 § Leave a comment
Some Idle Speculation
It appears to me that the EU is not making a good faith effort to guide Greece toward a viable economy. My suspicion is that, led by Germany and some European financial oligarchs, the EU is really dead set on forcing the Greek people to disavow the results of its recent election of a left-wing government. If I am right, the EU is becoming a sinister enemy of democracy, not a healthy alliance of European economies.
This smells to me like what the United States tried to do when Fidel Castro and Che Guevara freed Cuba from the oppression of Batista. We are now, decades too late, making amends for that effort. The bad odor of the EU’s treatment of Greece is more pungent because it seems to be driven by Germany. Some of the virulent rhetoric attacking Greece sounds like an echo from the 1930’s.
Yes, I know it has become verboten to make reference to Germany’s Nazi past, but we, during the past few months, have witnessed how ugly pasts are like crab grass, aggressive and hard to kill. Half our country, a hundred and fifty years ago, embraced government protection of an economy based on slavery. A brutal war was required to end slavery. But, for the past few months, a significant segment of our citizens have been passionately defending its symbols, referring to them as respected relics of cultural pride. Today, as South Carolina congratulated itself for lowering the Confederate flag, I heard a TV commentator remark that a recent poll showed that 57% opposed the decision to do so. Those opposed contend the flag represents a valued “heritage” and should be regarded as homage to their ancestors who fought in the Civil War.
I assume there are many Germans who have similar feelings about WWII and their “heritage” and ancestors. But, just as Southerners who honor the Confederate flag don’t discuss the horrors of slavery, I suspect the Germans who still recall with pride the glory of the 1930’s, don’t discuss the horrors of the Holocaust.
My suspicion is that, while the rhetoric has changed, most of those who honor the Stars and Bars have no enthusiasm for ending the continuing prejudice and racism that remains a shame and a plague in our country. I also suspect that there is a broad overlap between the German minority who feel some bitterness about the outcome of WWII and those who are prominent in Germany’s right wing political faction bitterly opposed to the democratic socialist government of Greece.
If I’m Right
If I’m right, Germany will not abide by any reasonable effort to save Greece from an economic meltdown. Unless, of course, its elected leaders resign and call for a new election. Angela Merkel will have the same reluctance to oppose the extremists in her parliament as has been exhibited by some GOP presidential candidates toward lowering the Confederate flag. The political right wing in America successfully delayed the recognition of Cuba for fifty years and, even now, Obama’s executive decision to right this wrong has not been supported by the GOP leadership.
I wish both the Russian and Chinese governments were not going through an economic crisis. The timing is terrible. I think it would be great if either of those governments would send an emissary to Greece with this message:
“It seems you guys are having some trouble getting your so-called friends to lend you money on terms allowing you to stabilize your economy. Tell you what: How about we lend you some money with a structured pay-out that will permit you to survive your problems with dignity and compassion for your people. Of course, part of the deal will be: We partner with you in deals with African nations and we get to establish military, especially naval, bases in your country on favorable terms. See, we Russians have been troubled for centuries with limited access to the Mediterranean Sea. And we would like to have a convenient base from which to launch favorable trade deals with Africa. We think this could be the beginning of a great alliance. We communists are flirting with privatizing some of our economy and you Greeks have taken some steps toward socializing some of your economy. If we’re smart, that could be the basis for mutual success.”
I know this ain’t gonna happen. The Chinese don’t know how to manage a stock market and the Russians have never learned how to manage their economy. When they have to choose guns or butter, they always choose guns. [We make the same choice, but we do a better job of marketing our guns.] Still – it’s fun to speculate what such a deal would do the European bullies who are enjoying pushing Greece around. It would give Angela something else to think about – might get her mind off the right wingers who are making so much noise about Greek socialism. Nothing like a nuclear-armed commie neighbor to focus the mind.
June 20, 2015 § 3 Comments
Jon Stewart last night got it right. We will grieve and pray about the murders in Charleston, but we won’t make changes that address the racism that produced them. I just listened to a CNN program featuring three commenters on Hillary Clinton’s speech in which, among other things, she called for gun control legislation and changes in the criminal justice system that makes a mockery of our claim of “equal justice under law”. One of the commenters was Brian Morgenstern, billed as a “GOP strategist”. He said he thought it was a mistake for Hillary to include a “divisive issue” like gun control in her speech. He is an appropriate representative of the GOP. Every single idea for changing racism in this country is opposed by the GOP.
Blacks don’t have equal health care: don’t mention it; too divisive.
Blacks don’t have equal employment opportunities: don’t mention it; too divisive.
Blacks don’t receive equal treatment in the criminal justice system: don’t mention it; too divisive.
Blacks are harassed, beaten and killed by racist cops: don’t mention it; too divisive.
Black median incomes are about ten percent of the value of white median incomes: don’t mention it; too divisive.
In other words, in the words of an old Woody Guthrie song: “Watch and pray; Live on hay; there’ll be pie in the sky when you die. That’s a lie!”
Our system of government does not make dramatic change difficult. It does not require long delays or cumbersome processes. The Twin Towers in New York were bombed on September 11, 2001. On October 2, 2001, the President signed the Patriot Act which fundamentally changed the balance between government power and individual liberty. When the will is there, the way is no problem.
Gun control and all of the above listed effects of racism have been debated, analyzed, politicized and pondered for decades. We all know there are too many guns in too many hands in this country. We know the 2d Amendment is compatible with reasonable regulation of gun ownership. Reasonable legislation has been drafted and proposed for decades. If politicians in Washington wanted to do something about hateful bigots shooting innocent people, they could have enforceable federal laws on the books by July 4th.
The same thing is true of the other problems. We know how to solve them. The problem is twofold: First, the corporate oligarchs that own our political system don’t want any significant changes that involve money because they are winning the game according to its present rules. Second, there are too many American voters whose attitude toward the plight of black citizens is neatly expressed in an old expression from the 1940’s: “F___ you buddy; I’ve got mine!”
When I listen to pontificating jackasses like Brian Morgenstern, my imagination begins running film clips of how it would feel to smash my fist into his smug face. And don’t lecture me about the First Amendment. It doesn’t apply to private action.
May 29, 2015 § Leave a comment
Last Thursday evening I read three articles. two new and one old, that, for me, were like being in the woods at night, lost and lonely, stumbling over fallen tree branches, feeling fear that began in the pit of my stomach and ended in my throat, then emerging on to a clearing where, a half mile away, a coal oil lamp cast a pale yellow glow from a window. Sometimes the future and the past loom so dark that the friendly light of intelligent hope is more comforting than stimulating.
One of the articles was a biographical character study of Bernie Sanders, the man with a distinctive accent and usually unkempt hair; the socialist candidate for the Democratic Party’s nomination to become president of the United States. Here is a link: Sanders . It was easy for me to identify with him, not only because of his political beliefs but also because of his personal history. He spent the early years of his adult life engaged in futile political efforts. He wrote articles advocating policies that were generally ignored by his fellow citizens of Vermont. He lost four statewide races, two for state senate and two for governor. He was finally elected mayor of Burlington, his first job with a salary sufficient to finance a middle class life style.
I can identify with that history, although, instead of losing statewide races as a candidate, I worked on the staff of candidates who lost statewide races. My record was 0-6.
I found the title for this essay in a vignette from Bernie’s early life. When he was without a job, which was often, his friends took him in. One was Richard Sugarman, who shared many of Bernie’s beliefs. Every morning Bernie would greet his friend, not with “Good Morning”, but with “We’re. Not. Crazy.”
Albert Einstein’s Gentle Socialism
The Bernie Sanders article included an embedded link to a 1949 essay written by Albert Einstein entitled “Why Socialism”. Here is a link: Einstein Like the Bernie Sanders story, Einstein’s essay was a beckoning lamplight seen from a dark place. It is the only reasoned argument for abandoning capitalism I have read that did not assume violent revolution would be necessary.
Einstein, instead, describes a dichotomy of needs and influences that shape our lives: The drive for individuality, what Abraham Maslow later called “self actualization”, and an equally competitive identification with and support for the needs of society. He contends that those different forces can be accommodated and acknowledged without sacrificing either one. The secret is awareness of and respect for those forces in others and willingness to mobilize government’s power to support them.
This essay captivated me. Einstein acknowledges his limited background in social science but he insists that the same rigorous discipline required by physics and astronomy can be applied to social and economic issues. He charmed me with evidence that he had studied Thorstein Veblen and relied on Veblen’s evolutionary analysis of our progress, or not, from what Veblen called the “predatory phase” of human development. Einstein contends that the democratic socialism he advocates would facilitate emerging from that “predatory phase” to one less brutal, more intelligent and more capable of satisfying our need for security and contentment.
Einstein also, having observed the results of the Russian Revolution and its aftermath, acknowledged the problem it poses. Here is the somewhat sad and plaintiff penultimate paragraph of his essay:
“Nevertheless, it is necessary to remember that a planned economy is not yet socialism. A planned economy as such may be accompanied by the complete enslavement of the individual. The achievement of socialism requires the solution of some extremely difficult socio-political problems: how is it possible, in view of the far-reaching centralization of political and economic power, to prevent bureaucracy from becoming all-powerful and overweening? How can the rights of the individual be protected and therewith a democratic counterweight to the power of bureaucracy be assured?”
How indeed. I know the answer. We have it in our hands. It is our Constitution. It may require an amendment or two but the concept has been left to us by our forefathers. With two amendments and commitment to rigorous enforcement our Constitution would be an adequate response to Einstein’s question.
The two amendments? First, “The words ‘person’ and “people’ in this Constitution apply to living natural persons. They do not apply to any legally created entity. Neither do they apply to a person not yet born.” Second, “In this Constitution the protection of freedom of expression does not apply to the spending or investment of money.”
With those two amendments, our Constitution is, I believe, entirely adequate to prevent government bureaucracy from becoming a threat to individual freedom. Political vigilance and common sense would be required and an independent federal judiciary would, as always, be essential but those requirements apply to any government scheme. Soviet Russia had an admirable constitution but it was useless because the judiciary was powerless to enforce it and the police were allowed to ignore it.
Dean Baker’s Demolition of TTP
The third article that illuminated my dark feelings was a critical analysis of the arguments for the Trans Pacific Partnership by Dean Baker, co-director of the Center for Economic Policy and Research, a Washington DC think tank. I have expressed my own hostility toward this “Partnership” in a previous essay posted here. Dean Baker adds authority and devastating contradictory data to support his identification of this proposal as a threat to the fair distribution of international trade benefits. Here is link: Baker
The House of Representatives will vote on “fast tracking” this abomination within the next couple of weeks. The Senate has failed to kill it. We can only hope that the Democrats in the House will save Obama from being responsible for burdening our working class with this unjust agreement for the next two or three decades. If he succeeds, he will join Bill Clinton on the list of presidents who betrayed the hope and promise that motivated those who voted for them.
Conclusion and a Personal Note
I feel I owe an apology for the emotional language in this effort. I have been affected by the bombardment of hopelessness that has pelted me recently. Netanyahu’s re-election followed by his empowering the most passionate politicians determined to convert Israel into a theocratic bully was a disappointment. David Cameron’s Conservative Party wipe-out of the British Labour Party in the recent election was another. The growing strength of ISIS and the apparent unwillingness of Iraq’s military forces to effectively oppose it is another. The dismemberment of Syria accompanied by the threat of ISIS involvement there is another.
My real nightmare is the probable symbolic terrorist attack in the United States or a mass beheading of Americans broadcast in living color. Other countries, Britain, Spain, Holland – bear such attacks and react with mourning and redoubled efforts at prevention. In America our leaders choose endless war and thousands of needless deaths as the appropriate response. I’m sure ISIS is aware of this grotesque fact. I fear they will use it to their advantage.
All this bad news comes at the beginning of what promises to be an extravaganza of hateful stupidity from a jackass choir of Republicans eager to compete for the allegiance of the lowest common denominator tranche of the American right wing. And who will be our St. Jeanne d’Arc? Why Hillary from the House of Clinton of course! Her head is already bloody but unbowed and her baggage, packed in a truckload of trunks just waiting to be unpacked by reporters, political archivists and GOP flacks, follows her everywhere. But, having spent a billion dollars, she may become our next president. And if not, we will be led by Jeb the Timid or Brash Young Rubio or, worst of all, by the union scalp hunter, the Bible thumper from Wisconsin, Scott “Bring ’em On” Walker.
I plan to stay sober for the next seventeen or eighteen months but only by many repetitions of the Serenity Prayer.
May 17, 2015 § 1 Comment
Modern technology has created a global economy. Multinational trade agreements like NAFTA and the currently pending Trans-Pacific Partnership (TTP) are corporate business responses to this development. These so-called “free trade” arrangements feature trans-national agreements for standardizing trade regulations, patents, copyrights and other laws designed to control the impact of corporate policies and practices on the welfare and incomes of citizens of participating countries. The arrangements are enforceable by affected businesses through appeals to arbitrators with authority to design remedies that supersede the constitutions and laws of those nations. [For a description of this process with respect to the TTP, here is a link: http://en.wikipedia.org/wiki/Trans-Pacific_Partnership#Potential_members.%5D
In this essay I will contend that a glaring omission from these agreements and the processes by which they are negotiated is representation by spokesmen for the interests of members of the working class and underclass in the nations affected by the trade agreements. I will also contend that, just as the restrictions on “conspiracies in restraint of trade” and other anti-trust laws are understandably exempted from the negotiation of multinational trade agreements, the rights of workers to engage in secondary boycotts and other non-violent arrangements for collective action should be suspended insofar as such tactics are employed as bargaining power in the process of reaching trans-national labor agreements.
My title was suggested to me by Jonathan Swift’s 1729 essay entitled “A MODEST PROPOSAL for Preventing the children of the poor people in Ireland from being a burden on their parents or country, and for making them beneficial to the publick”.
Here is a link: http://www.gutenberg.org/files/1080/1080-h/1080-h.htm
I was reminded of this essay because the prevailing focus on corporate welfare disregards the growing inequality of wealth and the workers’ dwindling share of it.
The Negotiation Process
The Trans-Pacific Partnership agreement has not yet been finalized. Congressional action on the President’s demand for “fast track” authority is before the Congress, following a vote against it by the Senate. There will probably be another vote in the Senate and the White House is exerting its considerable influence to overcome dissent by Senate Democrats, led by Senator Elizabeth Warren, Senator Ron Wyden and Minority Leader Harry Reed. The debate process is hampered by the fact that the substance of the issues has been kept secret. Members of Congress can read current drafts, subject to tight secrecy restrictions, but they are prohibited from disclosing to their constituents or the press what they learn.
Too Much Secrecy
What we know is the result of leaks published by Wikileaks. This, to me, is contrary to the proper functioning of a democracy. We are not dealing with any matter of national security, the usual excuse for secrecy. President Obama asks us to trust him and his “team” to protect our interests. He claims divulging the details of the negotiations would unduly inhibit the give-and-take of the bargaining process.
There is some merit in this argument, but the problem is: we are asked to grant authority to negotiate without knowing what we are agreeing to. We are also asked to limit our ability to express approval to parts of the agreement when negotiations are completed. Our elected representatives will have to accept or reject the entire agreement – no directions to return to the bargaining table seeking modifications. This is not a proper process for framing an agreement that will significantly affect the lives of Americans for several decades with no way to change it if it proves to have been a mistake.
I have not seen one word indicating that any member of the “teams” who have done and who will do the negotiating of this TPP represented the interests of workers. This looks like “trickle-down” economics on steroids: “What’s good for corporate America is good for America”. Do we really have reason to believe this, given the recent evidence?
Here is Ron Wyden, speaking on the floor of the U.S. Senate during the debate on “fast track” authority:
“The majority of Congress is being kept in the dark as to the substance of the TPP negotiations, while representatives of U.S. corporations—like Halliburton, Chevron, PHRMA, Comcast, and the Motion Picture Association of America—are being consulted and made privy to details of the agreement. […] More than two months after receiving the proper security credentials, my staff is still barred from viewing the details of the proposals that USTR is advancing. We hear that the process by which TPP is being negotiated has been a model of transparency. I disagree with that statement.”
Here is link to the opinion of Robert Reich, former Secretary of Labor, writing last January about this TTP: http://www.alternet.org/robert-reich-largest-most-disastrous-trade-deal-youve-never-heard.
Joseph Stiglitz is a Nobel Laureate professor of economics at Columbia University; former chairman of the President’s Council of Economic Advisers during the Clinton administration. Here is his reaction to TTP:
My Modest Proposal
I have written several essays about Thomas Piketty’s book, “Capitalism in the Twenty-First Century”. He has compiled a prodigious database to establish a fact: capitalism exerts relentless pressure toward wealth inequality. His analysis concludes: the only remedy to avoid a degree of inequality that becomes unsustainable, either due to violent revolution or implosion when consumer demand no longer suffices to support demand for investment, is a global remedy that redistributes wealth from the wealthy to the middle and underclass. It seems to me that globalization resulting in corporate pressure for multinational trade agreements may also suggest a way to design and implement the kind of global remedy required by Piketty’s analysis.
Removing trade barriers is a good idea, but only if the wealth generated by a more efficient market is fairly distributed. That fairness can be achieved by arming the bargaining representatives for the working class and the underclass of capitalist nations with the bargaining structure and power to demand fair distribution of wealth.
There are some historical examples pertinent to this idea that are interesting to me. Applying the reasoning and justifications for trade agreements to a proposal for labor agreements is similar to Marx’ conversion of Hegel’s dialectical idealism to dialectical materialism, a process sometimes referred to as “standing Hegel on his head”.
I know that today’s political climate is unlikely to take seriously any idea of a trans-national labor agreement. I believe, however, in Piketty’s prediction. Wealth inequality will continue to grow and, as it does, pressure for a remedy will become stronger.
Globalization has been accompanied by the explosive impact of social media on the pace of social change. We are, right now, witnessing the way a relatively small group of brutal men, using religious fanaticism as a cloak, can become a force threatening the stability of nations. I don’t think they will prevail but they have demonstrated a solution to a problem that limited the effect of “Occupy Wall Street” and the “Arab Spring”. I thought those efforts would be transformative. They weren’t. They failed to create permanent structural changes to implement the ideas they expressed. ISIS has accomplished that.
I hope these problems will attract and inspire creative and courageous people to demand a global solution to a global problem. The seeds of the TPP were planted over ten years ago. The negotiations have continued for seven years. It will take years to create a structure for global labor negotiations with developed capitalist countries. My “modest proposal” is a suggestion fueled by hope. Here is the longshoreman philosopher, Eric Hoeffer’s advice to those who might accept my suggestion, across the decades:
May 10, 2015 § Leave a comment
Last Thursday the Second Circuit rendered a unanimous decision in ACLU v. Clapper. They reversed the dismissal of ACLU’s suit challenging the NSA’s metadata surveilance program. They ruled the Patriot Act did not authorize it. They discussed. but did not rule on. ACLU’s claims based on the First and Fourth Amendments to the Constitution. They described the various defenses offered by the government in support of the Judge Pauley’s decision to dismiss the suit. They disapproved of each of those defenses and came close to stating some of those claims were deliberately deceptive.
The panel consisted of Judges Sack, Lynch and a District Court Judge sitting by appointment. Two were appointed by Obama; one by Clinton.
Judge Sack wrote a concurring opinion. He included the following quote that neatly stated the nature of this legal argument.
“Safety from external danger is the most powerful director of national
conduct. Even the ardent love of liberty will, after a time, give way to its
dictates. The violent destruction of life and property incident to war, the
continual effort and alarm attendant on a state of continual danger, will
compel nations the most attached to liberty to resort for repose and
security to institutions which have a tendency to destroy their civil and
political rights. To be more safe, they at length become willing to run the
risk of being less free.”
The Federalist No. 8 (Alexander Hamilton).
Hamilton is not my favorite Founder but his warning is prescient.
I have expressed my own ideas about the surveillance program in three posts on this blog:
Technology, the Law and the Constitution; The Surveillance Debate; and A Second Thought About Surveillance.
The first one of these essays discussed the District Court’s decision in this case and compared it with another District Court decision, Klayman v. Obama, which ruled squarely opposite to the ACLU case . Klayman was appealed and, on April 7, 2014, the Supreme Court declined to review it. In this 2d Circuit decision, the Court adopts some, but not all, of Judge Leon’s reasoning in his Klayman decision.
As stated, I agree with Hamilton, but, ironically, his Federalist Party sponsored the Alien and Sedition Act , a broad-based threat to individual liberty that stained the first decades following the adoption of the Bill or Rights. That history is a perfect example of how rhetorical promises are forgotten when they conflict with political ambitions.
I fear the consequences of arming the government with ways to snoop and then threaten to expose the private behavior of any person in this country who becomes a political problem. I do not trust our criminal justice system, even less our political system to observe appropriate limits on that kind of power. The McCarthy decade; the “drug wars” and the DEA ‘s methods; the “Global War on Terror”; the CIA’s record of deception and interference in the internal affairs of other countries – this is only a partial list of my reasons for distrusting our government with unbridled power. The Patriot Act granted power to one of the most reckless Presidents in the history of the USA – a man who served as a compliant puppet of Dick Chaney and Donald Rumsfeld. Secret access to the telephone habits of our entire population is power with which no person or group of persons should be trusted. I
It is true we live in perilous times, but we should not be so distracted by fears of foreign peril that we surrender ourselves to the discretion of politically powerful people in our government. To do so is especially dangerous now, when our political system has been corrupted by legalized bribery – when the so-called “money primary” has become more important than the electoral process in the selection of our choices of rulers.
For those of you who want to read the 2d Circuit opinion, here is a link: Clapper This link will require some manipulation. It will take you to the 2d Circuit’s web page. At the top you can click on “decisions; then use the drop-down arrow to pick the period of time. The ACLU decision came down on May 7, 2015. The opinion is a long one (about 100 pages). I spent over four hours highlighting the essential parts, but I finally gave up. There may be some way for WordPress (the program I use for this blog) to link to a highlighted Adobe copy of a court decision. I’ve searched online and read the instructions. I think it is a problem because this computer is a Mac and the instructions are for Widows – I’m not sure. What I have finally concluded: two college degrees and 50+ years of law practice have equipped me with less capability in the field of computer technology than the average 12-year-old and I don’t have a 12-year-old handy. So, dear readers, you will have to skim through the opinion and find the interesting parts.
Here are some hints: The Court describes the kind of information that can be gleaned from knowing the date, time, duration, location and phone number of a caller and receiver. The way a clever analyst can use that kind of information is interesting. The Court, in a footnote, cites an article from Science magazine that is part of that discussion. Use Control-F to search for “Science”.
The background of the argument is interesting. Do a word search for “Snowden” (BTW don’t use the quotes)
You can skip most of the discussion of “preclusion” – it’s not very interesting and the Court rules that it doesn’t apply.
The Court’s demolition of the government’s claims that it needs everyone’s telephone records but it doesn’t actually “review” any except those “relevant” to a legitimate inquiry is interesting. The Court reminds the government that the 4th Amendment prohibits unreasonable “search and seizure” of a citizen’s property and information. I have not before seen a court use the distinction between “search” and “seizure” so effectively.
The judges who wrote the majority and concurring opinions are good writers. The legalese is not there. They write plain English, so it won’t be too bad to read their opinions. Not as good as Holmes or Brandeis, but not bad.
I urge you to read the relatively short concurring opinion by Judge Sack. He includes some interesting history of the “Pentagon Papers” episode. He also gave me the quote from the Federalist with which I began this item.
This decision from the Second Circuit reverses the District Court decision with which I disagreed. Also, the Supreme Court’s denial of cert. in the appeal of the District Court decision with which I did agree, gives me some satisfaction that some of the damage done by he Patriot Act may be eventually undone.
[For non-lawyers: “cert.” is short for certiorari, Latin for “to be more fully informed”. When an appellate court wants to review a lower court decision to see if, in the appellate court’s opinion, it was correctly decided, the appellate court grants a “writ of certiorari” – a demand that the lower court send to the appellate court the entire record of its consideration of the case to “fully inform” the appellate court the bases for the lower court’s decision. When the appellate court denies an application for certiorari, it leaves the lower court decision in tact and effective.]
During the next few days, the Congress will debate ways to amend the Patriot Act. The analysis in the 2d Circuit’s decision should provide some resources to those who are seriously trying to restore some respect to the Constitution. It will be messy. Some in the GOP will vote against granting any power to Obama, regardless of any concern for, or understanding of, the merits of the argument. Some Libertarians like Rand Paul and some Tea Partiers will be motivated by some flavor of general anti-government ideology. And some, like Ron Wyden, will probably present my own reaction to the phone surveillance program. The fact that Mitch McConnell wants to keep everything as is assures me that I am on the right side of this argument.
April 12, 2015 § Leave a comment
A recent newscast informed me that President Obama is “considering” removing Cuba from a list of terrorist sponsors. Huh! I didn’t know Cuba was on such a list. This caused me to think about how Cuban school children might react to this news.
A Short History of U.S. Cuba Relations
I assume that they, like American school children, are taught the history of their country. So, I assume they learn that Cuban patriots, in the 1890’s, revolted against Spanish colonial rule, just as America revolted against British colonial rule. Then, I assume they learn that, following an explosion on the American battleship Maine, the United States sent an army to Cuba, not to join the revolution, but to replace Spain’s colonial control of Cuba. They probably also read that the Maine explosion may have been part of a plot to create an excuse for the American invasion.
Next, they probably learn that a guerrilla army led by Raul Castro, Fidel Castro and Che Guevara waged a successful war against Fulgencia Batista, a puppet dictator of the United States and loyal friend of American corporations enjoying profitable arrangements in Cuba. That revolution lasted from July 1953 until January 1, 1959. On that New Year’s day, the victorious guerrillas swept into Havana, drove out Batista and established Cuba as a free country.
Fidel Castro became President, an office he still holds. The Cuban government nationalized property owned by American corporations. In retaliation, the American government imposed an embargo seeking to destroy the Cuban economy and confiscated all Cuban funds located in the United States. The Soviet Union loaned Cuba money to enable it to survive these destructive efforts and established a close relationship with Cuba.
In 1961, the United States attempted to overthrow the Cuban government with a military invasion at the Bay of Pigs on Cuba’s southern coast. The Cuban army defeated the invaders.
After serving in various capacities following the revolution, Che Guevara, a communist from Argentina, went to Bolivia. There he organized a revolutionary force opposed to a military dictator, Renee Barrientos. CIA commandos were sent by the United States to support Barrientos. One writer claims that Klaus Barbie, a Nazi war criminal living in Bolivia, aka The Butcher of Lyon, assisted and advised the CIA about the capture of Guevara. Finally, on October 9, 1967, Che Guevara was executed by a Bolivian soldier, on orders from Barrientos.
I can only imagine, given this history, how Cuban school children might react to the news that this history brands their government as a sponsor of terrorism. I suspect they would like for the restrictions lifted on travel to and from the U.S.. They probably would like to emigrate to the U.S.. But they would be only human to question why this record labels their country with the same label as the one pinned on ISIS. They may even know of some Cuban version of an old saying about the pot calling the kettle black.
Are revolutionary efforts to free a population from brutal colonial rule or military dictatorships “terrorism”? If so, in addition to “considering” the removal of Cuba from a list of sponsors of “terrorism”, I think we should reconsider the definition of “terrorism”. The United States’ history of sponsoring and supporting military dictators all over Central and South America hardly gives us credentials to pin labels on Cuba or anyone else until we change our policies.