THE WINTER OF OUR DISCONTENT

THE WINTER OF OUR DISCONTENT

Today's theatre-goers -- or, what is more likely the case, readers -- often mistake the meaning of the opening  line.

In Shakespeare's Richard III, "Now is the winter of our discontent" literally refers to the end of Gloucester's depression as winter woes turn into summer sunshine brought on by the punned "sun of York," namely, Gloucester's brother, who has become King.  Instead of deconstructing any optimism, however, we moderns tend to imbue the line with literalness, where winter is a fixed season rather than a mere and passing prelude.  On this view, winter is not the end of our discontent but simply the present period of it.

Maybe we do this because our ears miss the rhythm -- the inherent ornateness -- of Elizabethan English.  Shakespeare, after all, didn't tweet, and his dialogue wasn't wrapped in pictures and surrounded by music.  Whatever narrative force existed was largely made real by the power of the words.

But maybe we also do it because the line had double meaning, the second of which comports with today's often  mistaken understanding.  

For it is also the case that Gloucester's optimism is more than false, his "winter" of discontent hardly over as he bemoans an ugliness that makes him luckless in love, which he then uses to justify his planned villainy.

In any case,  a similarly confusing "winter of discontent" is now upon us in the middle east.

Benjamin Netanyahu has just been re-elected Prime Minister of Israel.  He hasn't actually formed a government yet, but his party -- Likud -- captured thirty seats in the Knesset -- Israel's Parliament -- which, when combined with the seats won by more conservative and Orthodox parties to Likud's right, will give him more than the needed sixty votes to do so.  He beat a re-constituted center-left party called the Zionist Union, which was heir to the Israeli Labor governments of yore and -- truth be told -- the old line founding Zionists of the Israeli state.  Zionist Union won twenty-four seats and represents a now sizable minority of the Israeli population (and a majority in more secular places like Tel Aviv).

Netanyahu also won ugly.  Just before the election, he renounced the two-state solution, and on the day of the election, he juiced his turnout by telling  Israeli Jews that that the "Arabs were flocking to the polls." The latter was to be feared in his mind, even though the flockers were bona fide Israeli citizens.  Today he asserted that he was not a racist and that he had not changed his views on the need for two independent states -- Palestinian and Israeli -- as the basis for peace.  He explained his pre-election comment as merely indicating that the time for such a solution was not now.

So . . .

When will "now" arrive?

According to Netanyahu and many others, now will come only when all the Arab states, the Palestinians, and Iran (i) concede Israel's right to exist and (ii) lack the ability to attack or otherwise terrorize the Jewish state.   If so, now is a long way off and probably will never come.  Indeed, though not a theoretically impossible state of affairs, there are not negative numbers high enough to describe its practical unlikelihood.  Hamas and Hezbollah could cease to exist but the Iranian bogeyman, with or without nukes, would still foreclose a Palestinian state; the sheer proximity of eternal haters would almost certainly render the second condition unattainable; and in the meantime, continued occupation of and settlements on Palestinian land in the West bank will fuel those hatreds. 

The real question for Netanyahu is this -- if Hamas and Hezbollah were eliminated and the threat of rocket attacks gone, would he cut a deal and create a Palestinian state?  Or would he insist -- as he has in the past -- on other conditions under the rubric of demilitarization, such as no Palestinian controlled airspace, conditions -- it should be added -- to which other nations with whom Israel has made peace and whom Netanyahu has praised -- namely, Egypt and Jordan-- never had to agree?

In the New York Times today, Thomas Friedman claimed that Netanyahu was moving Israel in one of two directions -- either to a "non-Jewish democracy" or to a "non-democratic Jewish state."  He reasoned that, absent a two-state solution, Israel will either absorb the occupied territories and let the Palestinians vote, in which case the Arab birth rate will ultimately allow them to outnumber Israeli Jews and the state will no longer be Jewish, or it will not extend the vote to Palestinians, at which point Israel as a Jewish state will have been assured but it will cease to be a democracy.   

A friend later told me that Friedman's choice was a false one because Israel will never annex the West Bank.  I agree that Israel will not do this, but I do not think that undercuts Friedman's point.  As a practical matter, establishing impossible conditions for a two state solution means that the default reality is one state.  Even a state with un-annexed Palestinian territories is still one state, regardless of how it is described legally.  Such a state is also un-democratic as a practical matter in that large swaths of the controlled population have no say in the laws that effectively govern them.

My friend also thought that Friedman's analysis omitted the most likely scenario, which in his view is war or a series of  wars.  This too appears accurate as a matter of fact; Netanyahu never stands down (nor should he) in the face of Hamas's or Hezbollah's  rockets and we can expect more of what transpired last summer.  

As to Iran, however, the option of war will be enormously costly, and here, Netanyahu did his country no favors in accepting John Boehner's invitation this month to speak to Congress.  Netanyahu claimed that the current negotiations with Iran will produce a bad deal; that no deal is better than a bad deal; and that sanctions can ultimately get Iran to give up any nuclear arms program.  The first flaw in his argument was to characterize the would be deal as a bad one.  On the one hand, no one knows its specific terms yet; on the other, what we do know suggests that the Iranians will be foreclosed for at least a decade and will not be able to produce arms in less than a year even if they decide to thereafter.  

There is nothing bad about that deal.  It gives the world time, presumably within which Iranians will enjoy the absence of economic sanctions and some sort of renewed prosperity they won't want to lose ten years hence. It isn't final, and absent effective verification and inspections, Obama won't cut it.  It also won't be perfect, but no deal with a committed adversary is, and in any case, the notion that we should not strike a deal with a non-nuclear Iran is historically obtuse.  We have negotiated and dealt with far more fearful adversaries throughout our history and there is no reason to assume we cannot do the same with Iran.  Nor do we have to "trust" Iran. The deal will provide for verification and without that, it will not occur.

The second flaw is the assumption that future sanctions will bring Iran to its knees and force it to give up its nuclear program.  That type of approach has not worked to date and the sanctions regime already has been fairly draconian; there is no reason to assume that the Ayatollahs will bow to more of the same.  In addition, the efficacy of the sanctions depends on the world -- not just the west --enforcing them, and here, Netanyahu's Congressional speech may have done the most harm, especially if the Russians and the Chinese decide that Bibi and the GOP neo-cons are responsible for killing any deal with Iran.  For, without Russian and Chinese support for sanctions, they are probably useless.

Now is the winter of our discontent.

If you believe Netanyahu and the neo-cons here and in Israel have some sort of war/sanctions strategy that will not create unintended and un-manageable consequences (wars have a habit of doing that) and will ultimately, however long the time horizon, lead to the kind of peace Netanyahu says he is after, that winter may be long but will be followed by a summer sun.

If, however, you believe that the failure to negotiate any deal with Iran, coupled with a frozen status quo in the occupied territories of Israel, is more or less a recipe for war that cannot be controlled . . .

Then . . .

The winter of our discontent won't just be a passing season.

WHO LOVES YA, BABY

WHO LOVES YA, BABY

Leave it to Rudy Giuliani to create a teachable moment.

As we all now know,  Mayor Giuliani went  to dinner this week with a who's who of right-wing muckety-mucks there to assess Wisconsin Gov. Scott Walker's Presidential bona fides.  When it was over, however, the headlines belonged to New York's delusionally self-obsessed former Mayor . . . 

Who decided to lecture Barack Obama on the art of love.  

According to Rudy, the President doesn't "love America." Elaborating, Rudy claimed that "He doesn't love you. And he doesn't love me."  He then diagnosed this condition as the consequence of an apparently twisted Presidential upbringing. "He wasn't brought up the way you were brought up and I was brought up", barked  America's Mayor.  He was never nursed on the mother's milk of "love of this country."

A day later, Rudy had to go on Fox in an effort to explain himself. Our Presidential son of a well-traveled '60s hippie and frustrated Kenyan college student was, according to Rudy, "a patriot." In Rudy-world, however, Obama's patriotism -- which the dictionary plainly defines as "love" of one's country -- is simply over-disguised.  The President is just too "critical" of America, said the Mayor. According to Hizzoner,  Obama  "rarely" says "the things [he] used to hear Ronald Reagan say, the things [he] used to hear Bill Clinton say about how much [they] loves[d]America . . .[I]t sounds like he's more of a critic than he is a supporter."  Still pressed on Thursday about his comments, the Mayor doubled down.  Not only did he refuse to retract them, he announced he'd repeat them.

All this immediately became the fodder for cable diatribes as Rudy turned his latest fifteen minutes of fame into a rhetorical perp walk. Megyn Kelly of Fox called his statement "incendiary."  Chris Cillizza of the Washington Post weighed in with the view that a "once . . . important . . . player in American politics" had "marginalized" himself into a "rank partisan willing to say the most outlandish things to get attention."  Others called Giuliani "clownish," "unhinged," "vicious" and "offensive."  Echoing concerns about the Mayor's resort to otherness pregnant in his reference to Obama's ostensibly different "upbringing," the DNC condemned Rudy for "bigotry,"  as did other less partisan outlets. The White House just called the comments "horrible."

All this is true.  The last charge, moreover, is one to which Giuliani even copped a plea, beginning his Wednesday diatribe by conceding he knew "this was a horrible thing to say." (Memo to the Mayor: when you think something you are about to say is "horrible," that's your brain telling you to shut up.) But let's for a moment ignore the obvious -- the irrationality, the not-so-disguised racism, the over the top narcissism, the in-your-face ignorance that doubles down on a gross error because to do otherwise is apparently a sign of weakness in our "post-truth" political world -- and ask . . .

Along with the song  . . .

What is love?

And let's start with what it is not.

As anyone who is happily married knows, it is not cheerleading.  The two, in fact, are so opposed that they never travel in the same orbit. Cheerleaders mindlessly root for the home team.  There are no hair-brained plays, blown tackles, missed coverages, Hail Marys, historic failures or noble opponents. Cheerleaders live on the sidelines.  All is right in their world because it has to be, whether or not it is.

Lovers, in stark contrast, are very much in the game.  Mistakes matter.  They need to be noticed and corrected. Not because you are better than your spouse or in amoratum, or want him or her  to fail. To the contrary, it's entirely because you are their equal and want him or her to succeed.

Lovers are often the only persons trusted enough to perform the delicate task of effective correction. I don't listen to my wife because I agree with everything she says about me. I listen to her because I know that, whatever she says, she has no agenda other than my happiness.  The world is full of critics who want to cut you down. She is a critic who wants to build me up.

So, pace Giuliani, lovers are critics.  Sometimes, they turn out to be our harshest critics.  Almost always, they are our best critics.

Lovers are also honest.  In fact, love is impossible without honesty. Then it is just pretense.  And dangerous.

Giuliani's take on Obama ignores all of this.  Indeed, the problem with Giuliani is not so much that he gets Obama wrong (though he does).  The problem is that he gets love wrong.

Obama honestly portrays violent extremism and terrorism as a phenomenon entirely devoid of any legitimate religious impulse.  He rightly refuses to equate the views of two billion Muslims with the distorted claims of a relative handful of terrorists, or to hold one of the three great monotheistic religions responsible for abuses committed by a small handful in its name.  In doing so, he is being faithful to the best values that define American exceptionalism.   We do not condemn Christianity when fundamentalists kill doctors in its name; we should not condemn Islam when terrorist behead captives in its.

The separation of church and state is not simply an institutional divide in this great country.  It is also a moral one, where individuals are responsible for their own acts and cannot hide behind a false religious veil fabricated to justify immoral crimes.  The Enlightenment taught us many things.  One was that morality is too important to be left to the preachers, priests, imams or rabbis.

Giuliani and his supporters have criticized Obama of late for ostensibly failing to name ISIS and our decades-plus fight with terrorism for what they believe it is -- Islamic, or religiously-based and/or sanctioned, terrorism.  Obama, however, is right to do so, and he is right to do so for at least two reasons.  The first is that the asserted equation is wrong; the vast majority of Muslims and Islamic leaders repudiate terrorism in its entirety.  The second is that the terrorists want us to accept their definition of the fight as one between competing religious world views.  They want us in effect to clothe their crimes in the legitimacy of religion.  Their fight, however, is not about the former and cannot be made legitimate via recourse to the latter.

All this Obama has pointed out carefully over the past year, much to the consternation of his opponents.  On this, moreover, he has also been unyielding, again causing frustration in a GOP that thinks it vanquished him last November.

This, however, may be his finest hour.

Because, rather than trumpeting a false view of American exceptionalism that eschews criticism in favor of mere boosterism, he has articulated a compelling vision of moral clarity.  That vision avoids the mistake of equating Islam with terrorism.    It admits the reality of the historic record, where sins committed in the name of religion have occurred with all too much frequency and across the religious divide.  And it condemns ISIS and all violent extremists for the moral evil they practice and preach.

If the question is who loves ya baby, the answer is . . .

Barack Obama.

IT'S CHRISTMAS IN NEW YORK AGAIN

IT'S CHRISTMAS IN NEW YORK AGAIN

I heard it for the first time two months after the fact.

At a dinner with the Friendly Sons of St. Patrick.

I have listened to it every year since.

At Christmas.

The "it" is an Irish ballad -- "Christmas in New York" --  written and sung by a band from Yonkers, NY called Shilelagh Law.    

         There's snow in the air
         Winter is here
         The wind is blowing
         And outside's so clear
         There's presents to wrap
         And cards to send
         It's Christmas in New York again  

              

We Irish have a love affair with music.  We all think we can sing. Even those of us who can't.  With a little fuel, caution is generally thrown to the wind and whole groups of party-goers belt out their favorites.  In the old days, that meant "Whiskey in the Jar," "The Irish Rover," and -- of course -- "Danny Boy."  Nowadays, the Beatles, Shania Twain and Cold Play make the cut.  If you actually can sing, watch out.  My grandparents routinely returned from their Saturday night revelries only to wake their youngest daughter to sing for their fellow travelers. Which is how my mom became our family's best public singer.

         There's somebody singing a holiday song
         You pick up the tune and start singing along
         You learned the words some time way back when
         It's Christmas in New York again                

Irish music can be sentimental. And angry. Just like the Irish. Shilelagh Law sugar coats that just a bit when the band talks about itself.  They don't say they reflect anger.  Instead, they say they "reflect a collision of two cultures that results in bedlam."  The two cultures are New York and Ireland.  The band asserts it "embodies all that is New York Irish music," including "dancing, weeping, lots of laughter, plenty of drinks, and the inevitable visit to the local diner at 5 am."  OK,  fine, but I still think lots of those 5 am diners show up a little pissed -- at least at something.

            Fancy store windows and millions of lights

            Downtown in December, what a fabulous sight

            You spin round and round trying to take it all in

            It's Christmas in New York again

One of the fundamental facts about alcohol  is that it is a depressant. I always marvel at the drinkers (or drunks) who tell me they are depressed.  What did they think they would be?   Of course, even a blind squirrel finds the occasional nut.  Sometimes things are depressing and sadness is more than appropriate, aided or not  by a side of Jameson's.

             But as you gather round the table with everyone

             You feel that something has been left undone

             The tree is all trimmed, the shopping is through

             But there's one last thing you still have to do

New York -- my home -- has had a very bad December.  First a grand jury refused to indict anyone for what the City's medical examiner concluded was the homicide of Eric Garner, forcing thousands of my neighbors to the streets in protest against the lack of accountability on the part of those who enforce the law but seem to be able to get away with breaking it. Then, last weekend, an EDP -- that's cop speak for "emotionally disturbed person" -- traveled from Maryland to Brooklyn and gunned down two cops sitting in their police cruiser. He had previously shot his girlfriend in Maryland and instagrammed that his imminent dual homicide would be payback for the Garner travesty in New York and the Brown case in Missouri.

          It's Christmas Eve, 11 pm

          You walk down to the church and you quietly go in

          You kneel down in the last pew right on the aisle

          And say "God I know that it's been awhile

          But can you do me a favor on this Christmas Eve

          Can you send out some blessings to people for me

          You know these last few months have been kinda tough

          And we could use a little love"

The two police officers were Wejian Liu and Rafael Ramos.  Officer Liu, married only two months ago, was a seven year veteran. Officer Ramos was on the force for two years and, at 38, had become a new cop at a relatively old age in a second act of personal service. He was also about to become a chaplain.   A father of two, he is now dead at 40.  The two were working overtime as part of an anti-terrorism drill in the Bedford-Stuyvesant neighborhood in Brooklyn.  Observers say the EDP approached their car, assumed a shooting stance, and then opened fire.  The officers never had a chance.  NYC's Police Commissioner correctly called it an "assassination."  Mayor DiBlasio said it was "a despicable act."  

            So bless New York's finest, our angels in blue

            Giving us hope and helping us through

            And bless New York's bravest, the FDNY

            Giving their sweat and their tears and their lives

Many were just angry and took that anger out on the wrong people. The head of the City's Patrolmen's Benevolent Association (PBA), Patrick Lynch, blamed the Mayor for the killings, claiming that DiBlasio's support for Garner and past criticism of police meant that he had "blood on his hands"  Even Rudy Guiliani thought that comment over the top, calling it "incendiary" and "inappropriate." It actually was a lot worse than that.  I am the god-son of a New York police officer who never lived to see me become an Assistant US Attorney.  I come from a family of cops.  You can be pro-civil rights and pro-police at the same time.  The two are not remotely contradictory.  The vast majority of police fully respect the rights of those whom they police; in fact, a small minority of their fellow officers account for the vast majority of brutality or abuse. There is no need for Lynch or anyone else to claim that any protesters or politicians are responsible for the killings of Liu and Ramos because the claim is as false as it is divisive.  

               And bless all the medics and our troops overseas

               Bless the guys in the hardhats, removing debris

               Bless the everyday people who answered the call

               Bless those who gave some and those who gave all

Officers Liu and Ramos gave all.   Unfortunately, so did Eric Garner. The rest of us -- the "everyday people" -- have to answer the call. It's a call that respects the police.  But it's also a call that respects the Constitution. More than two centuries ago, before there was either a Constitution or a Revolution, John Adams, a Massachusetts lawyer, defended both. He was the defense attorney who successfully defended six of the eight British soldiers charged with manslaughter in the wake of shootings of protesters who themselves had attacked the soldiers.  Bill DiBlasio is not anti-cop. He has given the police department all the resources it has requested, and his Police Commissioner, William Bratton, has praised him for this.  Lynch's outlandish comments, moreover, are only his latest effort to drive a wedge between the cops and the Mayor. Earlier, he encouraged officers to sign letters requesting that the Mayor not be at their funerals if they were killed in the line of duty.  Liu and Ramos did not do so,and Officer Ramos's family has welcomed the Mayor to Ramos's funeral.

                   Bless all the souls who left us this year

                   You may be gone but you'll always be here

                   Singing and dancing with family and friends

                   It's Christmas in New York Again.

WHY NOT READ IT

WHY NOT READ IT

For the better part of two days now, I have been bombarded by media accounts of and non-stop comment on the Senate Select Committee on Intelligence's Study of the CIA's Detention and Interrogation Program. 

The Study itself, which runs to more than 6,700 pages, is still classified.  On Tuesday, however, the Committee released a Forward to the Study written by the Committee's present chair, California Sen. Dianne Feinstein, the Study's Findings and Conclusions, and the Executive Summary of the Study. That Executive Summary alone is 499 pages.

In a nutshell, the Study concludes that (1) the CIA engaged in torture, (2) the program didn't work, and (3) the CIA repeatedly lied about the program to Congress, the Department of Justice (DOJ), the media and the public.  The word "nutshell" should be taken literally.  The 499 page Executive Summary contains 2552 footnotes and is based, as apparently is the full 6,700 page report, almost exclusively on CIA documents and other public records. Those documents, moreover, include voluminous memoranda, testimony,  emails and reports from the actual on ground participants in the program on up to the various directors of the CIA.  The report, though written by staffers employed by the Democratic majority on the Intelligence Committee, is also bi-partisan in its criticism -- it lambastes Obama's appointed CIA directors as thoroughly as it lambastes Bush's.

Following publication of the Executive Summary, the push back has been intense and emotional. Appearing on Fox News, former Vice President Cheney called the report "a bunch of crap," and this morning, former Congressman Joe Scarborough said the same thing on his "Morning Joe" program on MSNBC.  Yesterday, three former directors of the CIA -- George J. Tenet, Porter J. Goss and Michael V. Hayden -- along with two former deputy directors -- John E. McLaughlin and Albert M. Calland -- penned an op-ed in the Wall Street Journal skewering the Committee for not having spoken to them and stating, point blank, that the CIA program was effective and "deemed . . .legal".

Cheney and Scarborough admit that they have not read the report and it is not clear whether the former directors and deputy directors have either.  In their Wall Street Journal  piece,  Tenet et al. make a number of claims that the Executive Summary refutes in detail.  In discussing specifics, for example, they assert that "The CIA never would have focused on the individual who turned out to be bin Laden's personal courier without the detention and interrogation program"; that "Once they became compliant due to the interrogation program, both Abu Zubaydah [a senior al Qaeda operative] and KSM [Khalid Sheik Mohammed, the mastermind of the 9/11 attack] turned out to be invaluable sources on the al Qaeda organization"; and that the program disrupted and prevented other "mass casualty attacks" in the wake of 9/11, including a "second wave" attack planned against the US west coast.

None of these claims, however, are accurate.  In fact, they are refuted by the CIA's own records.

The Zubaydah/KSM and bin Laden courier claims are instructive. In the case of the first, as the Senate report makes clear, Zubaydah had provided actionable intelligence under questioning by the FBI and others long before he was detained by the CIA and subject to torture, and KSM, who was tortured from the point at which he was captured, provided information that more often than not was false. More to the point,  the CIA actually concluded during its interrogations that it was not obtaining useful information from KSM by water boarding him.  As to the courier, the report makes clear that he was identified long before any tortured detainees pointed the finger at him,  that the most accurate information on the courier came from a detainee who had not been tortured, and that the CIA knew -- again from untainted sources -- of the courier's closeness to and intimate involvement with bin Laden. Finally, as to any success in stopping other attacks, the Senate report contains a detailed examination of the CIA's twenty most repeated "success" claims, including disruption of the second wave west coast attack.  It explains that, in each of those specific cases, the CIA's "enhanced interrogation" (it's euphemism for torture) program did not create the success or disrupt any plot. In particular, the second wave attack cited by Tenet et al. was disrupted upon the arrest of a plotter and information obtained from him without any resort to torture.  

The complaint that the directors and deputy directors were not consulted in advance of the Senate report, while technically true, is also more than strained.  The Executive Summary is based almost entirely on contemporaneous CIA documents, and the views of the directors and deputy directors -- especially those of Gen. Hayden -- were available from those documents and their own public testimony, and are repeatedly cited and quoted in the Senate report. To claim, therefore, as Cheney and Scarborough have, that the report didn't consider the "other side of the story" -- or the views of the principals --  is  false.  In fact, the Senate report is for the most part simply a report of the findings of the CIA itself.  In other words, the report is based on "their" side of the story as it was told (and memorialized in emails and memos) at the time by the operatives and analysts on the ground and at CIA headquarters in Langley, Virginia.

The Senate report contains similar detail -- including accounts of evidence destruction -- in support of its claim that the CIA misled Congress and the public on the scope and success of its torture program, as well as information that it even misled the Department of Justice and the executive branch.  All of this is dismissed with a wave of the hand by Tenet et al., who instead insist that the DOJ "deemed" the CIA program legal. 

The last claim is more or less true.  What DOJ did was authorize limited use of torture in specific cases.

It is also true, however, that the CIA in effect "jobbed" DOJ.  As the Senate report makes clear, again based on the CIA's own documents, the agency misrepresented what it was getting absent torture, the number of its detainees, the significance of some of the detainees, the extent of the torture it was planning and then performed (including the use of "rectal infusions"), the medical conditions of those subjected to torture, and the physical/medical effects of the torture. The CIA even misrepresented Sen. McCain's position to DOJ, asserting that McCain had approved of the techniques for which it was seeking approval when he manifestly had not. None of this, of course, covers DOJ in glory; torture and the techniques the CIA classified as enhanced interrogations and disclosed to DOJ, has and have long been illegal.  The US itself prosecuted the Japanese for water boarding prisoners during World War II, and long before DOJ's lawyers got hold of the CIA's post 9/11 requests, there really was no debate on what constituted torture. 

Knowing John McCain's position, moreover, does not require a CIA briefing. 

The point here, however, is that the CIA's defenders -- including the ex-directors, ex-deputy directors, Cheney and Scarborough -- keep insisting that criticism of the agency is being undertaken without any appreciation of the "context" in which the CIA had to make these decisions, including fear of imminent additional attacks in the wake of 9/11, when the record discloses that the CIA itself did not even accurately describe that context to the overseers at DOJ from whom it was seeking some sort of legal cover.  

This is critical.  We depend on our leaders and on our agencies to get it right in times of crisis.  The easiest "ask" in the wake of 9/11 was the ask for torture.  No American would have cared if any al Qaeda operative had then been tortured to death.  Many will not care even today.   That we should ought not be used to disguise the fact that we won't and don't.  Law, therefore, exists precisely to save us from ourselves.  The fact that the US engaged in torture is tragic.  The fact that it did not have to do so is, perhaps, even more so.  And now, the fact that we cannot have a rational conversation about what occurred  -- that a former Vice President and a former Congressman call a voluminous report, based on contemporary documents making almost indisputable claims given the mountain of evidence amassed and discussed, "crap" without having even read it -- is perhaps the most tragic.

Because we will just repeat these mistakes in the wake of some future crisis.

Even though we should not, and even though we will not have to.

How can we stop this?

Here is a modest proposal.  

Before anyone talks about the Senate Select Committee's Study of the CIA's Detention and Interrogation Program, including the Committee's just published Executive Summary, he or she . . .

Should read it.

"I CAN'T BREATHE"

"I CAN'T BREATHE"

If a picture's worth a thousand words, how come this one didn't convince twenty-three grand jurors?

That is the question being asked in New York City and throughout the country today in the wake of a grand jury's failure to indict Officer Daniel Panteleo in connection with the death of Eric Garner last summer.

All of us have seen the video of the encounter.  In it, one uniformed officer -- not Panteleo --  is standing in front and to the left of an obviously irate Garner, who repeatedly complains that he has been and is being  being harassed. Garner and the officer obviously know each other.  Garner excitedly tells the officer that "It stops today" and that he "did not sell nothin'," apparently referring either to the policeman's claim that he was selling illegal cigarettes -- "loosies" in the parlance of the street -- at that time,  or to prior encounters where that charge was made.  When the cop appears to ask why Garner is screaming (the audio on the police officer is hard  to pick up), Garner explains that "Every time you see me, you want to harass me, you want to stop me . . . I'm minding my business officer."  He then says, "Please just leave me alone. I told you the last time, please just leave me alone."

At that point, there appears to be a break in the tape.  Then, two more officers approach Garner from his front, and Panteleo, who is dressed in street clothes -- shorts and a green jersey with the number 99 on its back -- moves toward and touches Garner from the right and behind.  Garner raises his hands and says, apparently in response to Panteleo (who Garner does not seem to think is a cop), "Please don't touch me."

Panteleo then grabs Garner by placing his left arm around Garner's neck with his right arm under Garner's right arm near the armpit. Panteleo rapidly moves backwards, more or less parallel to the store window at which Garner was standing, turns Garner around slightly and moves back toward where they all started, and then takes Garner down.  All this time Panteleo's arm remains on Garner's neck; as Garner is prone on the sidewalk, Panteleo is spread lengthwise over Garner's back and legs.

As the other officers -- three of them -- secure Garner's legs and torso against the sidewalk, Panteleo moves to his knees and Garner's head, and then compresses  Garner's head against the sidewalk with his hands.  Garner then says, "I can't breathe."  In fact, he doesn't just say he can't breathe.  He repeats the statement . . .

Seven more times.

Meanwhile, the guy with the cell phone who is taking the video of the encounter is told by still more police (by this time , two or three additional officers appear to be on the scene) to "back up".  While doing this, and continuing to video the event, the guy says "All  he did was try to break up a fight."

Shortly after repeatedly telling them he couldn't breathe,  Garner, according to a witness, "went limp."  He apparently went into cardiac arrest.  EMS arrived and took him to Richmond County Hospital, where he was pronounced dead.

As a  matter of policy, the police in New York City are prohibited from using choke holds.  The policy was inaugurated in the early '90s after there had been at least one fatality following use of the technique during an arrest.  In that case, unlike here, the police were actually indicted.  Though they were acquitted in the subsequent criminal trial, the family later prosecuted a civil rights claim against the City and the City paid a seven figure settlement.

Why no indictment here?

There really does not appear to be a credible answer.

Grand jury proceedings are secret, so we have no idea what the jurors heard or saw during the month long investigation.  The Staten Island prosecutor who presented the case to the grand jury has petitioned the court to release some of the contents of the proceeding, but it is not clear what portions -- if any -- will be made public.  Moreover,  unless everything is disclosed, any type of selective unveiling will just contribute to the already widely shared view that the police are immune from accountability.

Is that view accurate?

It is always dangerous to make assumptions or conclusions without the benefit of seeing the full record.  But in this case, all of what we do know makes it virtually impossible not to conclude that at least some law was broken and a trial should have occurred.

First, though his lawyer says that Officer Panteleo was not applying a choke hold, the video evidence refutes that claim.  The officer clearly puts his arm around Garner's neck and keeps it there until Garner is on the ground and he can move to his knees and compress Garner's head .  If, as his lawyer is claiming, Panteleo was just using an authorized take down procedure, that arm would have been nowhere near Garner's neck; instead, it would have been under Garner's left arm and around Garner's chest or near Garner's shoulders.

Second, the medical examiner who autopsied Garner concluded that the death was a homicide caused by a combination of neck and chest compression.  This in itself refutes the claim that a choke hold wasn't applied.  The ME undoubtedly saw what are known as petechial hemorrhages -- small burst blood vessels -- on Garner's larynx,  which are the common result of  fatal neck compressions.

Third, the notion that a grand jury -- as distinct from a trial on some criminal charge, even one short of intentional murder -- is or could be an appropriate vehicle for accountability in this case is itself very suspect.  I am a former federal prosecutor, and the conventional wisdom that prosecutors control grand juries is true.  The old adage that a prosecutor could get a grand jury to indict a ham sandwich if he or she wanted is founded on the reality that prosecutors -- and prosecutors alone -- decide what evidence gets presented to a grand jury.  Prosecutors also instruct grand juries on the applicable law. Consequently, their control of the process is fairly complete.  In the case of most crimes, that structure materially favors indictment.  In the case, however,  of alleged crimes perpetrated by the police, especially alleged crimes arising out of the use of force, a countervailing pressure is at work. The police and their supporters -- the various PBAs and SBAs -- are almost universally opposed to these types of claims, and prosecutors for the most part allow them to present their defenses in an unimpeded way to the grand jury, and provide the instructions needed for a "no bill" -- law speak for no indictment -- if the jurors like what they see and hear. This, moreover, is a dispensation granted no other defendants.

Fourth, the prosecutor in this case gave all the police officers on the scene -- except Panteleo -- immunity. This allowed all of them to testify without fear that they too might be indicted.  Had they not been granted immunity, their own lawyers undoubtedly would not have allowed them to testify, so defenders of the District Attorney will naturally claim that the immunity deal allowed the grand jury to get relevant evidence it otherwise would not have heard.  

Maybe so. 

The immunity deal, however, also allowed all the other officers to support Panteleo in whatever account Panteleo provided.  Without assuming the testifying cops did anything other than tell the truth, it is still hard not to assume they were at least biased in Panteleo's favor.  It is also not clear that they themselves did not violate proper procedure.  The arrest and take down in this case was not problematic and irregular simply because a choke hold was applied. The chest compression the other police applied to Garner while he was on the ground telling them he couldn't breathe -- which the Medical Examiner cited as another factor contributing to Garner's death -- itself violated policy.

Whether the arrest was irregular for other reasons is also an open question.  From the video, it just isn't clear exactly why the police were interested in Garner that day at that time.  If, as some of the backtalk suggests, they thought he was selling illegal "loosies," a charge which Garner himself vehemently denied, why did they not just give him a summons?  Was it because he was then out on bail for that same charge? If so, what evidence did they have of the crime given Garner's denial -- a denial which appears to have been true in that there were no reports of "loosies" on his person, and one which, in any case, makes perfect sense if Garner was then minding his own business and staying on the right side of the law (lots of folks on bail try to avoid committing the crimes for which they are about to be tried).  

Or was it because this is just what cops do in the era of "broken windows" policing? 

"Broken windows" policing has been around now for more than twenty years.  The theory is that arrests for small crimes -- panhandling, subway turnstile jumping, illegal graffiti -- stop criminals from moving up the ladder to bigger crimes.  Crime has gone down dramatically in New York City over the last two plus decades, so supporters of "broken windows" claim it is working.  Whether this is so, however, has been questioned by criminologists who have noted a host of other factors --   demographic in the form of an aging population (crime is a young man's game)  and penal in the form of longer prison terms  -- which might explain the result.  

Undeniably, however, "broken windows" -- along with "stop and frisk," which NYC only recently ended -- disproportionately captures minorities and people of color, and they are rightly sick and tired of that reality.  They are also rightly sick and tired of the risks they face when confronted by the police.  Whatever Eric Garner was or wasn't doing on a street in Staten Island last summer when four cops more or less surrounded him, one thing is absolutely clear.

He  should not have died for it.

That is why thousands of New Yorkers took to the City's streets last night in protest.  As they engaged in "die-ins" at Grand Central Station, protested in Times Square, and took over a portion of the West Side Highway, passers-by gave them thumbs up and shouts of approval.  The Mayor appropriately wondered about the risks his own mixed-race son faced in the current environment. And for their part, the police in New York City last night -- unlike the para-militarists  in Ferguson a few weeks ago --  managed the protests well.  As they should have, they let the protest go forward without any undue confrontations. They followed the proper procedures.  They were professional.

Too bad that wasn't the case last summer.

IT'S THE TURNOUT, STUPID

IT'S THE TURNOUT, STUPID

On Tuesday in the mid-term elections, the Republicans gained at least eight Senate and fourteen House seats. They are also likely to win the December Senatorial run-off in Louisiana (where no candidate beat the 50% threshold required to win outright on election day).  They have the largest GOP margin in the House since 1946.   They were able to win not just blood red states in the south and mid-west but also purple Colorado and Iowa, and they  protected their gubernatorial majority by picking up Massachusetts, Maryland and Illinois while defending themselves in Wisconsin and Florida.  They also won control of twenty-four state legislatures to the Democrats' fourteen; the other twelve were split.

Gallons of ink are now being spilled explaining these results.

The favorite culprits are President Obama's low approval rating, the state of the economy, and a general hatred for things governmental. On this narrative, a center-right country reclaimed its rightful control in the wake of executive fecklessness that has bloated the budget, stalled the economy and made a mess of health care.  With the Keystone pipeline unbuilt thanks to Harry Reid, and our enemies abroad untamed thanks to Barack Obama, the electorate deprived Reid of his majority (and Obama of his Presidency) on its way to re-claiming the big prize in 2016.

The only problem with this narrative is that . . .

It is false.

Start with the Senate.   All of the seats contested last Tuesday were previously filled in the 2008 election, which was a Presidential year. The eight seats lost by Democrats this year were in Montana, South Dakota, West Virginia, Arkansas, Iowa, Colorado,  North Carolina, and Alaska.  In all of them, turnout compared to 2008 was down by orders of magnitude.  Nationally in 2008, more than 50% of registered voters went to the polls, record numbers for a modern Presidential election; last Tuesday, slightly more than 36% of registered voters went to the polls.  Those that voted, moreover, were older, whiter, and less Hispanic than their 2008 counterparts.  In other words, the Democratic vote in 2008 stayed home in 2014.

Turnout aficionados are now comparing this year's electorate to 2010's, the last mid-term, and finding out that the turnout difference was about 6%.   About 42.2% of the registered electorate showed up in 2010 compared to the 36% that voted last Tuesday.   These same aficionados are also pointing out that in some of the eight states won by the GOP, to wit, North Carolina, turnout among minorities and Hispanics was at or above 2010 levels.

The problem with this approach is that it understates the Democratic vote that stayed home and creates the space for the false narratives spinmeisters at Fox are now falling in love with. Turnout is always lower in non-Presidential years. All this means, however, is that mid-terms do not provide an accurate picture of where the country stands. They therefore should not be used to fashion false trends or to confirm what are necessarily incomplete indictments.  

No doubt the Democrats would not have done as well this year as they did in 2008 given Obama's unpopularity, however undeserved, and the country's continuing economic problems, however much they are a product of Republican-led spending cuts that created a form of quasi-austerity on this side of the Atlantic.  But if the electorate this year had been as large, as young and as diverse as it was in 2008 and 2012, it is highly doubtful that Democrats would have lost eight seats, especially in view of the fact that two of them were Colorado and Iowa, neither of which is red.

On the House side, I suspect the same variables are more or less at play but will defer here to analysis by Steve Kamp, a law school classmate who has written a yet to be published tome analyzing every House race from 1788 to the present and who sent me and others some preliminary thoughts on last Tuesday's results.  Steve notes that, going into this election, Republicans held House seats in seventeen (17) districts where Obama won in 2012 and Democrats held House seats in nine (9) districts that Romney won.

On Tuesday, Democrats won back only one of those Obama districts but Republicans took back four of the nine Romney districts and won additional districts taken by the President in 2012, facts which collectively suggest that turnout was determinative.  Of course, the swing itself -- fourteen (14) seats in a body with 435 of them -- was pretty small, largely owing to the fact that the House has been so thoroughly gerrymandered that few if any races are competitive in any election years, Presidential or non.  The same, moreover, can be said for  the legislative races, where the GOP took control of only one more legislative body.

Finally, there are the gubernatorial contests.  The GOP picked up executive chambers in three Democratic states -- Massachusetts, Illinois and Maryland -- and defended what it held in Wisconsin and Florida.  These states always hold their gubernatorial elections in non-Presidential years so we'll never know what would happen if the electorate were larger, younger or more diverse.  Or put differently, in those limited elections, and for reasons  based only on the anomaly of schedule, the turnout differential doesn't matter.  

Everywhere else . . .

It does.

THE MID-TERM MORASS

THE MID-TERM MORASS

Though little has been accomplished by Congress over the last two years, the mid-terms are upon us. 

This means that anyone who is remotely politically active has been inundated by a barrage of emails from candidates, PACs and so-called independent committees far and wide seeking campaign funds. It also means that  all of us have been besieged with television ads, computer pop-ups and mailers either touting the candidates on whose behalf the missives were sent or --  much more likely -- portraying their opponents as veritable enemies of the democratic state.

The Republicans, from all accounts, are favored to add to their majority in the House of Representatives and take the Senate as well, though the latter possibility is still considered a close call.  The House remains a GOP bailiwick largely because of partisan re-districting in 2010, when they first recaptured the House.  The GOP edge in Senate contests largely results from the fact that there are more than half a dozen seats currently held by Democrats in either very red states that voted for Romney in 2012 or purple states where President Obama is anathema to large majorities. Consequently, Senators Landrieu , Hagan,  Begich and Pryor are in trouble in Louisiana, North Carolina,  Alaska and Arkansas;  open seats in South Dakota and Montana held now by Democrats will probably switch; and there is a close contest in Iowa.

Thus the horse race.

When you try to explain, however, why the horses are thus aligning,  reason takes a holiday.  

It's not that political prognisticators cannot give reasons.  They can and do.

It's that none of those reasons should be working given the current environment.

Reason number 1 is that the economy is still in the doldrums,  and this historically favors the so-called "out" Party.  The doldrums are real -- income inequality is the highest it has been in 100 years; the poverty rate has been at 15% for three years; record numbers are now on food stamps; and growth -- while positive -- is still weak and, in any case, not producing wage gains.  None of this, however, should favor Republicans.  The GOP has  supported the very policies -- tax cuts for the rich, benefit cuts for the poor and middle class, weak unions and assaults on public sector employees -- which created these conditions, and opposed any policies -- additional stimulus, the automobile bail-out, the infrastructure bank,  and the Affordable Care Act -- which helped or would have helped to alleviate them.  

Meanwhile, the right wing echo chamber at Fox beats the deficit drum and the creditor class in general continues to warn of impending inflation.  This occurs despite the fact that (1) the deficit has been coming down like a rock for the last four years (and, as a long term matter, would come down more appreciably if sufficient stimulus had been enlisted to create less than anemic economic growth) and (2) there has been little to no inflation since the financial meltdown in 2008 and the lesser Depression that followed.

Ah  . . . on the economy, it always comes back to 2008.  

Which, though more than true, is  too bad for the Democrats.

Americans have short attention spans. We refuse to dwell on the past and reject leaders who overly whine about it.  Obama's poll numbers are at a low because he has been at the helm for the last six years, and while better, things are not great.  Pointing out the reasons . . . or that Obama inherited all of these problems from Bush . . . or that the Republican Party as a whole has raised obstruction and the politics of "No"  to an art form . . . or that things would have been a lot worse had we followed their policies for the last six years . . . 

Comes too close to whining.

 Even if it is accurate.

Consequently, it looks like the GOP is getting a free pass this cycle. If Republicans win, it will be because -- and only because -- voters hold Democratic incumbents in red states and Obama in the White House responsible for the fact that things are not better.  This is not fair but, as JFK famously warned us, life is unfair. The  buyers remorse, however,  will be enormous because the GOP literally has no policies to spur growth or dampen inequality.  Tax cuts do neither in an environment where wages are flat; in fact, they create more inequality by massively improving the lot of the 1%. And wholesale attacks on public sector employees simply drive down the wages of middle class wage earners.

All of this is obvious and should matter.  

But in an age of unlimited corporate campaign spending by anonymous donors hiding behind hypocitcally named "independent" committees . . .

It doesn't.