There Are Still Two Americas

Sometimes I get discouraged
I look around and, things are so weak
People are so weak
Sometimes,
Sometimes I feel like crying
Sometimes my heart gets heavy
Sometimes I just want to leave and fly away
Sometimes I don't know what to do with myself
-- Mos Def


I have long since accepted the fact that this blog is read exclusively by my family and friends. I am okay with this. It occurs to me that some you all might not have heard the following story before, so I'm just trying to raise a little awareness.

Today was supposed to be the sentencing hearing for Mychal Bell, a 17-year-old African American young adult convicted of aggravated battery. He was facing up to 15 years in prison. This is unremarkable insofar as I'm sure that there are 17-year-old African American boys and girls sent to jail every day. But Mychal Bell's story is not that of a common street criminal. His story is about racial inequality in America today:

It all began at Jena High School . . . when a black student, Kenneth Purvis, asked the school's principal whether he was permitted to sit under the shade of the school courtyard tree, a place traditionally reserved for white students only. He was told he could sit where he liked.

The following morning, when the students arrived at school, they found three nooses dangling from the tree.

Most whites in Jena dismissed it as a tasteless prank, but the minority black community identified the gesture as something far more vicious. "It meant the KKK, it meant 'niggers we're going to kill you, we're gonna hang you 'til you die'," said Caseptla Bailey, one of the black community leaders.

Old racial fault lines in Jena began to fracture the town. It was made worse when - despite the school head recommending the noose-hangers be expelled - the board overruled him and the three white student perpetrators merely received a slap on the wrist.

As racial tension grew last autumn and winter, there were race-related fights between teenagers in town. On 4 December, racial tension boiled over once more at the school when a white student, Justin Barker, was attacked by a small group of black students.

He fell to the ground and hit his head on the concrete, suffering bruising and concussion.

He was treated at the local hospital and released, and that same evening felt able to put in an appearance at a school function.

District Attorney Reed Walters, to the astonishment of the black community, has upgraded the charges of Mr Barker's alleged attackers to conspiracy to commit second degree murder and attempted second degree murder. If convicted they could be 50 before they leave prison . . .

Mr Barker has since been charged with possessing a firearm in an arms-free zone (the school grounds).

Student segregation, threats of lynching, preferential treatment for whites, and unjust punishment for African Americans. This isn't an excerpt from a John Grisham novel, although it almost sounds like a bizarre mixture of "To Kill a Mockingbird" and "Mississippi Burning."

Things sound bad, but they only get worse when one learns in greater detail about the incidents that followed the white students' hanging nooses on school property:

After a number of scuffles, the district attorney came to the school and gathered students for a tough talk.

"I can make your life go away with the stroke of a pen," they recalled him saying. Black students said he looked directly at them. Walters denied it.

The incident was never reported to police, said U.S. Attorney Donald W. Washington. A report might have triggered a hate-crime investigation, although federal authorities rarely go after juveniles for such crimes. Washington added that if the students had been expelled, tensions might have been eased and the violence avoided.

In the weeks that followed, the fighting continued. In one scuffle, Robert Bailey, one of the six teenagers now facing trial, said a white man broke a beer bottle over his head after jumping him at a party, but there was no immediate investigation. Months later, Justin Sloan, who is white, was charged with simple battery and given probation for that attack.

Bailey was involved in a second incident when he and friends spotted one of his attackers at a gas station. As Bailey and his friends approached, they said, the white teenager ran to his truck and brandished an unloaded shotgun at them. Bailey helped wrest the weapon away, refused to give it back and was charged with stealing the gun.

Days later came the school fight that led to the prosecutions. Sheriff Carl Smith said the crimes justified the charges.

Truly sickening. The injustice continued when these young men were exposed to the criminal "justice" system:

Race fights roiled the town for days, culminating in a schoolyard brawl that led the LaSalle Parish district attorney to charge six black teenagers with attempted murder for beating up a white teenager who suffered no life-threatening injuries.

Mychal Bell . . . was convicted in July by an all-white jury on reduced charges of aggravated battery and conspiracy to commit it. Like his co-defendants -- Robert Bailey, Carwin Jones, Bryant Purvis, Theodore Shaw and Jesse Beard -- Bell had no prior criminal record.

He faces up to 22 years in prison, and civil rights advocates say the reduced charges were still excessive and did not fit the crime. "Can they really do this to me?" Bell asked recently, sitting in his jail cell looking frightened and numb.

The white teenager who was beaten, Justin Barker, 17, was knocked out but walked out of a hospital after two hours of treatment for a concussion and an eye that was swollen shut. He attended a ring ceremony later that night.

(If you'd like to know more about the story, you can watch Democracy Now's coverage here, here, here, here, here and here.) But thankfully, the Third Circuit Court of Appeals in Louisiana threw out Bell's conviction, because the battery charge is not one for which a minor may be tried as an adult. Nonetheless, Bell is still being held in prison pending an appeal by the government.

I just want to make a few points regarding this case, and race in general:

1) I don't think it can be argued that the students don't deserve discipline. But all of the students deserve to be disciplined -- the white ones and the blacks ones alike. The students who were charged did commit assault, but they were responding to threats against their well-being. Not to mention that whoever hung the nooses from the tree committed a racially-motivated hate crime[1] and was able to get away scot-free.

2) This is far from the only case of racially disparate criminal punishment. Aside from the longstanding argument about the disparities in certain narcotics offenses under the Federal Sentencing Guildelines, the Washington Post article notes other recent examples of African American teenagers being harshly tried and sentenced:

• In Douglas County, Ga., Genarlow Wilson was convicted of molestation and sentenced to 10 years for engaging in consensual sex with a 15-year-old girl when he was 17. He served more than two years before a judge voided the sentence, but Wilson, now 21, remains in prison while the state appeals.
• Also in Georgia, the state Supreme Court threw out the conviction of Marcus Dixon, 19, who was serving a 10-year prison sentence for having sex with an underage white girl in 2003.
• In Paris, Tex., a special conservator ordered the release of Shaquanda Cotton, 16, who was serving up to seven years for shoving a white teacher's aide in 2005. Months earlier, the same white judge had given probation to a 14-year-old white girl who burned down her family's home.

John Edwards has focused both of his Presidential campaigns on the theme of "two Americas," meaning that there is one America for the rich and one for the poor. It appears, at least when it comes to criminal justice and punishment, that there really are two Americas: one for the Caucasians and one for the African Americans. As Earl Ofari Hutchinson points out, "a black teen is six times more likely to be tried and sentenced to prison than a young white, even when the crimes are similar, or even less severe than those committed by white teens."

3) Disparate treatment of the races goes beyond imprisonment to death. Who can forget the case of Sean Bell, shot by police officers during his bachelor party because they "thought" that someone in his car had a gun. Just this week two off-duty police officers in D.C. shot a 14-year-old boy who they claim had a gun. No gun has been recovered at this time.

Mos Def was on Bill Maher's program a couple of weeks ago. Aside from spouting 9/11 conspiracy theories, he made an incredibly lucid point about the varying degrees of threat that black Americans face today: "I don’t think I’m going to get blown up – listen, I’m black in America. I live under constant pressure . . . I’m sorry. I’m from the projects. I know danger. I don’t feel no danger from that shit." Cornel West picked up his point from there:

[I]n 9/11, it’s the first time many Americans of various colors felt unsafe, unprotected and subject to random violence and hated. But, to be black in America for 400 years is to be unsafe, unprotected, subject to random violence and hated . . . [I]f you’re used to dealing with the strain and the pressure and the violence coming at one – because, let’s face it, the civil rights movement was a fight against American terrorism. That’s what Jim Crow was. It was American terrorism.

So, in some cases, African Americans are lucky if they are incarcerated. That's the least of their problems.

4) The institutional view of race in America is maddeningly out of touch with reality. Not long ago I recapped the recent Supreme Court term. In Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts' rejection public school admissions procedures that considered a student's race righteously stated that, "[a]llowing racial balancing as a compelling end in itself would 'effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.'" This view belies a fundamental and startling misunderstanding of the state of race in this country.

According to the most powerful jurist in our country, we're never going to be able to achieve racial equality until we just "get over it." We shouldn't consider race, because it brings up all sorts of problems, so we all need to pretend like it doesn't exist. In his view, the most effective way to level the unequal playing field create by racial inequality is to imagine that the field is actually level, and just let racial minorities work harder. Equality, the Chief Justice appears to believe, is there for the taking. If only African Americans wanted it bad enough. This is what happens when one form of institutional racism re-enforces another.

5) Finally, this injustice underscores the fact that it often takes a single act by a single person to reveal the problems in our society. James Peterson at blackprofs.com celebrates the efforts of a single young seventeen year-old man:

Make no mistake about it though Mychal Bell is a hero. By most accounts, Mr. Bell should have taken a plea agreement at the time of his trial. “A plea bargain would have put him back on the streets in a matter of months” (ISR interview with Alan Bean). He was an emerging High School football star with interest from various college programs . . . Mr. Bell understood that whatever his football career might have been or might still become, he couldn’t submit to a ‘justice’ system that required him to co-sign racial injustice with a circumstantially coerced guilty plea. Bell’s courage set the stage for leaders and activists to fully engage the complex racial conundrum that Jena, LA has become. His time spent in jail, for a crime that this recent overturning suggests he could not have committed, is part of the heavy lifting required to confront the problems of race and class in our selectively aggressive criminal justice system. A sad but corollary fact of Bell’s stand is that it unveils the kind of legal environment (racialized and unforgiving) within which too many young black men must make similar decisions about life, innocence, and justice.

This young man can teach all of us a thing or two about courage -- a lesson that our community and national leaders would do well to learn.

Get involved at ColorofChange.org


[1] Hate crimes are a federal offense. Also, the United States Senate has said that, "violent crime motivated by bias . . . devastates not just the actual victim and the family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected[,]" and also that, "eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude."

A Liberal Guide to Good Citizenry.

Is it just me, or have my posts been overwhelmingly negative lately? "I hate Karl Rove," or "Al Gonzales was incompetent," or "Corporations are curtailing free speech." I'm not sure if it's the exhaustion that has resulted from my training for an upcoming race, or the fact that I haven't put my expert legal skillz to work in a couple of months, but something is definitely making me cranky. Enough already. In order to remedy the inevitable depression caused by the end of summer, I'm determined to do something positive.

Living in a city isn't easy these days. Property values are skyrocketing, the population is constantly expanding, and, as Jay Z says, "Ain't no love in the heart of the city." In an effort to be constructive, I'd like to try to ease some of the urban angst by providing you all with a guide of "dos" and "don'ts." Hopefully this will help every person get along with their neighbors in whatever stuffy, congested metropolis you may currently be living.

Here is all that you need to know about being a good city dweller, condensed into ten easy steps*:

1. Walking and sending text messages at the same time is always a good idea. What could possibly be a bad idea about doing two things that require more than a minimal level of coordination and awareness? Contrary to common sense, doing two things at once actually makes each activity better, not worse. You would definitely read a magazine while riding a bike or juggle whilst engaging in coitus, right? Right.
2. It's fun to yell at the top of your lungs while walking through a residential neighborhood at 2am. How else will your neighbors know that 1) you are incredibly drunk on a Tuesday, and 2) you are having a really amazing time walking down the street? They certainly won't have any idea if they are sound asleep in their beds.
   
3. Cities are centers of fine dining. When you're out pleasing your very refined palate, be sure to act as though you are the only person in the restaurant. Please, feel free to speak as loudly as you like, and pay no mind to the personal space of your fellow diners. It's important to remember that every person's meal is enhanced by overhearing your tales of working as an account executive at the Corporate Executive Board, or your trips down the memory lane of your sorority days at the University of North Carolina.
4. It's important for your health to stay in shape. City dwellers often go about this through jogging. Well, if you're an overweight middle-aged man, there's only one acceptable way to jog: shirtless. Everyone loves seeing your naked, sweaty, leathery, curly hair-covered torso. It's highly unreasonable for anyone else to expect you to cope with the oppressively thin layer of material that a tee shirt imposes upon a person. If only someone would come up with some sort of synthetic fiber that dries quickly!
5. If you're like anyone that lives on my floor, you have awesome taste in music. It would be a crime to deprive others of your collection of Paul Oakenfold or lame new wave CDs. You should blast your stereo at all hours of the day, regardless of the day. Your neighbors are sure to appreciate the fact that their monthly rent entitles then to the ancillary benefit of a free class of music appreciation, taught by partying gay men or aging wannabe hipsters at 1:30am on a Thursday.
6. Owning a car is big part of how Americans "define" themselves. If you own a car in the city, you're not defining yourself properly unless you're using the engine of said car to announce your presence to everyone around you. After coming to a stop at a stop light or stop sign, always be sure to gun the engine and screech off the line. Not only does this demonstrate how you are a real-life extension of "The Fast and the Furious," but you will also go really fast for at least 200 feet, until you have to stop at the next stop sign. Which, I assure you, is quite a rush.
7. When driving in said car, honking at pedestrians is the most effective way to express to them that you are a bright, articulate individual looking to make some type of real, substantive connections with them. Whether you're a man honking at a female jogger, or a man cruising the Dupont Circle neighborhood looking to tell another man that he has a "nice physique," this is the classiest method of communication available to the modern city dweller. (By the way, yes, I was cruised in the manner that I just described. No, the man doing the cruising was not Larry Craig. Hey-O!)
8. We can all agree that double-parkers are annoying. If someone has temporarily abandoned their car, thereby preventing your car from leaving its parking space, do not remain silent. Be sure to lay on your horn as loudly and as frequently as possible. Even if you have been doing so for a sizable period of time to no avail, do not give up. If you can't change the behavior of the person blocking you, at least you can make everyone else within ten blocks as annoyed as you are. If a double-parked car is blocking an alley or preventing you from advancing up a thoroughfare, the same rules apply. Definitely do not attempt to back up and go another route.
   
9. Always talk as loudly as possible while on your cellular phone. This applies at all times, regardless of the circumstances. We all already know this. It's just common sense, people.
10. In this technology-crazed world, it is important to gather yourself and all of your pretentious douche bag friends together in some type of online forum. Not merely because you need to connect with other misogynist, bigoted people, but also because your kind will not be able to perpetuate itself unless you have some type of electronic medium through which to disseminate your message. Speaking just for D.C., please hurry! We are experiencing a shortage of elitist a-holes.
    

Now that I have bestowed these nuggets of wisdom upon you, go forth and be productive members of society.

If you're not uplifted by my advice, then enjoy a song:



And be well until my next post . . .


* Many of the details of my examples are Washington-D.C. specific, however, they can be easily altered to fit into your urban locality.

Fredo Takes His Final Boat Ride

You already know, I know it, and the American People know it, but the unremarkable legal mind of Alberto Gonzales is finally vacating the highest law enforcement office in the nation. No longer is the Department of Justice a tribute to the triumph of the middling. A nod to mediocrity, if you will. So now it is time for "el Presidente" to find himself a new "abogado." What can be said about Mr. Gonzales that hasn't already been said about his parallel from the "Godfather" saga?

My fondest memory of the outgoing AG (other than the fact that one of his sons is named Graham (?!)) happened during the summer of 2005 when I was working for the US Attorney's office in DC. Bear in mind that during this period there were rumors that Gonzo might be the next nominee for the Supreme Court. Mr. Gonzales gave a speech to all "young employees" of the DOJ at the main justice building (in front of the famous statue that John Ashcroft had covered up. Beautiful bosoms, if I may say so.).

The gigantic space was filled with people, both on the floor and up on the balcony. The first half of his speech was actually okay, and borderline inspirational: consider a career in public service, public service is good, etc. Then he conducted a Q & A session. The first guy had to be a plant -- he asked a question about the vital importance of fighting terrorism and law enforcement in an age when everyone is trying to kill us . . . I think you can imagine the AG's response: people are trying to kill us, we must be vigilant, etc. It snapped me back into reality by reminding me that I have no respect for the man. Then a fellow GW law student got up and asked him where he stood on the propriety of overtruning Roe v. Wade. The AG turned bright red and said, "Whoa, tough question there. Ha-HA! Ummm . . ." And then he sort of muddled his way through a response that included a lot of "Heh"s and things about how he couldn't discuss speculative cases, blah blah blah. Needless to say, he seemed woefully unprepared to address such a question, and completely incapable of constructing an answer without the aid of a scripted response. After a few more predictable questions and answers, the session mercifully ended. As we all got up to leave, a spokesperson said "The Attorney General would like to come around and shake some hands." My colleagues and I groaned and we then bolted for the door, along with 3/4 of the audience. I think that whole experience offers a nice metaphor for the AG's tenure at Justice.

Those of you who read this regularly know that I like to represent the work product of resigning officers by reliving their own words and statements. Today, however, I'm going to do things a little differently. You see, when asked whether he planned to resign, the AG said, "I could walk away or I could devote my time, effort and energy to fix the problems. Since I have never been one to quit, I decided that the best course of action was to remain here and fix the problems. That is exactly what I am doing." From this statement, Mr. Gonzales would have had us believe that he was not planning to leave his post until he had adequately remedied the dysfunction, politicization and shame that he had wrought upon the Justice Department. Clearly, this was not the case, because Mr. Gonzales was lying to us. Again.

So, because I don't trust a single word that has come out of Alberto Gonzales's mouth, first I'm going to re-publish a timeline of Gonzo's career with the Bush White House. Then, we're going to hear a few performance reviews of Attorney General Gonzales's career from some members of the United States Senate.


I. The Recent Career of Alberto Gonzales.

January 2001: Named President Bush's White House legal counsel.

Jan. 25, 2002: In a memo to Bush, Gonzales contended that the president had the right to waive anti-torture laws and international treaties that provide protections to prisoners of war. Critics, including some Senate Democrats, have said the memo helped lead to abuses of the type seen at Abu Ghraib.

June 18, 2004: Gonzales is questioned by a federal grand jury in the criminal investigation into who in the Bush administration leaked the name of covert CIA operative Valerie Plame.

Feb. 3, 2005: Confirmed and sworn in as 80th attorney general of the United States, replacing John Ashcroft, who resigned. The Senate approved the nomination, 60-36, on a largely party-line vote. His confirmation hearings grew contentious over his 2002 memo waiving anti-torture laws.

April 27, 2005: While seeking renewal of the broad powers granted law enforcement under the USA Patriot Act, Gonzales told the Senate Intelligence Committee, "There has not been one verified case of civil liberties abuse" from the law enacted after the 9/11 terror attacks.

July 24: Gonzales says he notified White House chief of staff Andy Card after the Justice Department in 2003 opened an investigation into who revealed a covert CIA officer's identity, but waited 12 hours to tell anyone else in the White House.

Dec. 15: The New York Times reports on its Web site that Bush authorized the National Security Agency to eavesdrop on Americans and others inside the United States without getting search warrants.

Feb. 6, 2006: The Times reports that U.S. long-distance carriers cooperated with the NSA's warrantless wiretapping of international calls.

Feb. 6: Gonzales tells Congress the president is fully empowered to eavesdrop on Americans without warrants as part of the war on terror.

April 6: The Republican chairman of the House Judiciary Committee says Gonzales is "stonewalling" Congress on the warrantless eavesdropping program.

May 21: Gonzales says he believes journalists can be prosecuted for publishing classified information.

June 7: Gonzales defends the FBI's search of a Democratic congressman's office, saying it was an "unusual step" but necessary in a bribery investigation.

Nov. 18: Gonzales says critics of the administration's warrantless surveillance program define freedom in a way that poses a "grave threat" to U.S. security.

Jan. 17, 2007: Gonzales changes course and puts the government's terrorist spying program under the authority of the Foreign Intelligence Surveillance Court.

Feb. 8, 2007: Former U.S. Attorney John McKay of Seattle says his resignation was ordered by the Bush administration without explanation, seven months after he received a favorable job evaluation.

March 6: Another fired federal prosecutor tells a Senate committee he felt "leaned on" by Republican Sen. Pete Domenici, R-N.M., who hung up on him when told indictments in a corruption case against Democrats would not be issued before the fall elections.

March 9: Gonzales orders an internal Justice Department investigation into the FBI's use of the USA Patriot Act after an audit found that agents had improperly and, in some cases, illegally obtained personal information about people in the United States.

March 11: Citing the FBI's illegal snooping into people's private lives and the Justice Department's firing of federal prosecutors, Democratic Sen. Charles Schumer says it's time for Gonzales to step aside.

March 13: Gonzales accepts responsibility for mistakes in the way the Justice Department handled the dismissal of eight federal prosecutors. Gonzales says he was not closely involved in the dismissals and rejects calls for his resignation.

March 29: A former top aide to Gonzales says the attorney general was briefed regularly over two years on the firings of federal prosecutors, disputing Gonzales' claims.

April 19: At a contentious hearing, Gonzales struggles to convince skeptical senators he did nothing improper in firing eight federal prosecutors. He loses ground as a second Republican senator joins the calls for his resignation and others question his credibility.

April 23: Bush offers fresh support for Gonzales, saying "This is an honest, honorable man, in whom I have confidence."

May 10: Gonzales is questioned by the House Judiciary Committee, but seemed to weather the interrogation better than during his earlier appearance before the Senate. House Republicans echo Gonzales' call for Congress to move on from the issue of the fired prosecutors.

May 17: Two Senate Democrats say they will seek a no-confidence vote on Gonzales over accusations that he carried out President Bush's political agenda at the expense of the Justice Department's independence.

May 21: Bush calls an upcoming Senate vote of no confidence in Gonzales "pure political theater" and stands by his embattled friend.

May 23: The former Justice Department liaison to the White House, Monica Goodling, testifies before the House Judiciary Committee, saying she believes Gonzales did see a list of U.S. attorneys to be fired. She also says that during a private conversation Gonzales "laid out for me his general recollection of ... some of the process regarding the replacement of the U.S. attorneys." She says she felt the conversation was not appropriate and didn't contribute to the dialogue.

June 11: Republican senators block a symbolic vote of no confidence against Gonzales. The 53-38 vote fell seven short of the 60 votes required under U.S. Senate rules to move the nonbinding resolution to a formal debate. Gonzales says, "I am focused on the next 18 months and sprinting to the finish line."

July 10: Democrats raise new questions about whether Gonzales knew about FBI abuses of civil liberties when he told a Senate committee that no such problems occurred. Lying to Congress is a crime, but it wasn't clear if Gonzales knew about the FBI's action before he testified before the Senate Intelligence Committee seeking renewal of the broad powers granted law enforcement under the USA Patriot Act.

July 19: Gonzales is questioned in a closed-door session of the House Intelligence Committee about Bush's wiretapping program and the administration's response to congressional subpoenas. Committee Chairman Silvestre Reyes says members were especially interested in the reasons behind Gonzales' controversial 2004 visit to the Ashcroft's hospital bedside, reportedly to pressure the ailing attorney general to endorse Bush's surveillance program.

July 23: Gonzales tells Congress in a statement that he's troubled that politics may have played a part in hiring career federal prosecutors.

July 24: In testimony before the Senate Judiciary Committee Gonzales denies that he and former White House chief of staff Andy Card tried to pressure hospitalized Attorney General John Ashcroft to re-certify Bush's domestic eavesdropping program. Gonzales' credibility was at issue throughout the proceedings, with senators of both parties growing exasperated and at some points accusing the attorney general of intentionally misleading the committee.

July 25: The Associated Press reports on documents it obtained showing that eight U.S. congressional leaders were briefed about the Bush administration's terrorist surveillance program on the eve of its expiration in 2004, contradicting sworn Senate testimony the day before by Gonzales.

July 26: FBI Director Robert S. Mueller says the government's terrorist surveillance program was the topic of a 2004 hospital room dispute between top Bush administration officials, contradicting Gonzales' sworn Senate testimony.

July 30: The top Republican on the Senate Judiciary Committee advises Congress to hold off on a perjury investigation of Gonzales over his apparent misstatements about warrantless spying.

July 31: In a carefully worded letter to Sen. Arlen Specter, R-Pa., that never mentions Gonzales, Director of National Intelligence Mike McConnell notes that the administration first acknowledged its controversial surveillance activities and used the phrase "terrorist surveillance program" in early 2006. Also, Democratic House members introduce a measure directing the House Judiciary Committee to investigate whether to impeach Gonzales.

Aug. 2: Senators in both parties concede that they don't have enough evidence to make a perjury charge stick against Gonzales.

Aug. 3: In a two-page letter to Senate Judiciary Committee Chairman Patrick Leahy, Gonzales declines to provide more information about discrepancies in his sworn testimony about the purge of federal prosecutors and its aftermath.

Aug. 11: Gonzales arrives in Baghdad for his third trip to Iraq to meet with department officials who have been there to help fashion the country's legal system.

Aug. 16: The House Judiciary Committee releases partially censored notes from Mueller, dated March 12, 2004, describing a distraught and feeble Ashcroft in his hospital room just moments after being visited by then-White House counsel Gonzales and Card, the president's chief of staff at the time.

Aug. 24: Gonzales telephones Bush at his ranch and says he is considering resigning. Bush says this is a conversation they should have in person.

Aug. 26: Gonzales arrives at Bush's ranch near Crawford, Texas, and they discuss the resignation over lunch. Gonzales signs letter of resignation.

Aug. 27: Gonzales announces his resignation and Bush publicly accepts.

II. Performance Reviews of Alberto Gonzales as Attorney General.

"The attorney general has said, quote, 'I will do the best I can to maintain the confidence of the American people. Mr. Attorney General, you've already lost that confidence." - Sen. Charles Schumer (D - NY).

"He once again is making something up to protect himself." - Sen. Jay Rockefeller (D - WV).

"I'm concerned. This has not been handled well." - Sen. John Cornyn (R - TX).

"It's hard to see anything but a pattern of intentionally misleading Congress again and again." - Sen. Russell Feingold (D - WI).

"I do not find your testimony credible, candidly." - Sen. Arlen Specter (R - PA).

"I don't trust you." - Sen. Patrick Leahy (D - VT).

"He has exhibited a lack of candor with Congress and the American people and a disdain for the rule of law and our constitutional system." - Sen. Edward Kennedy (D - MA).

"Attorney General Gonzales' ability to lead the Department of Justice had been undermined by his serious errors in judgment and conflicting statements. I am hopeful that the President will name a strong successor who will begin to restore confidence in the department.'' - Sen. Susan Collins (R-ME).

"Alberto Gonzales was never the right man for this job. He lacked independence, he lacked judgment, and he lacked the spine to say no to Karl Rove. This resignation is not the end of the story. Congress must get to the bottom of this mess and follow the facts where they lead, into the White House.'' - Sen. Harry Reid (D-Nev).


And so, as the Attorney General fades into the background (but hopefully not out of the reach of Congress's subpoena power), I have one final thing to say:

"Fredo, you're nothing to me now. You're not a brother, you're not a friend. I don't want to know you or what you do. I don't want to see you at the hotels, I don't want you near my house. When you see our mother, I want to know a day in advance, so I won't be there. You understand?"

When Speech Isn't Really Free

Why is it that the people who claim to be the "best" Americans always understand the least about things that make America a great place, at least in theory? Why do the people that claim to love freedom also hate it when someone else exercises that freedom in a manner with which they disagree? I guess the simplest answer is that a certain amount of ignorance is a prerequisite to judging someone else's "credentials" as an American. (As far as I am aware, the only credential required to be an "American" is to be born here. Or become a citizen.) That ignorance pervades all aspects of a person's lifestyle, thereby preventing them from understanding basic principles of democratic theory, constitutional law, etc.

I heard recently that AT&T had censored a portion, two lines to be specific, of its webcast of Pearl Jam's performance at the Lollapalooza music festival in Chicago (video of the story is also available here). According to the article, "[t]he event was shown with a brief delay so the company could bleep out excessive profanity or nudity." I sure don't think that, "George Bush, leave this world alone/George Bush find yourself another home," is profane in any way, shape or form., which makes me wonder why a corporation would feel the need to interfere with the band's performance by removing words that could only be deemed political speech. For me, it brings to mind another incident involving musicians and political speech . . .

Several weeks ago I was reading an article in the Times about the trend of hip hop shows that cater to white folks. The portion of the article that piqued my attention was this:

On April 29, during [Rage Against the Machine's] reunion concert at the Coachella festival, Mr. De La Rocha gave a speech accusing the Bush administration of war crimes and said, “They should be hung and tried and shot.” (Hmm. In that order?) A clip found its way to the Fox News program “Hannity & Colmes,” which was not overstocked with Rage Against the Machine fans. The on-screen headline read, “Rock grp ‘Rage Against the Machine’ says Bush admin should be shot.”

Sean Hannity seemed to suggest that the Secret Service should be alerted. Ann Coulter, a guest, got in a good quip (“Has anybody checked in with a Flock of Seagulls to see what their position is on Bush?”), then delivered a final verdict, “They’re losers, their fans are losers, and there’s a lot of violence coming from the left wing.”

On Saturday night Mr. De La Rocha responded. He attacked the “fascist” Fox News pundits for “claiming that we said that the president should be assassinated.” As the crowd shouted its approval, he continued, “No: he should be brought to trial as a war criminal and hung and shot. That’s what we said.” Despite the insistence on due process, this still isn’t a position any mainstream politician would endorse. But that’s precisely the point: At a time when unimpeachable causes and pragmatic endorsements are the norm, it’s nice to be reminded that rock stars can get political without sounding like politicians.

Now I'm not even sure where to begin here, but this cursory recap of these events alone made me so angry I actually yelled at my computer monitor. I really should have just left the issue alone, taken from this article that white people are getting into non-mainstream hip hop, and left it at that.

My insatiable thirst for knowledge, however, forced me to delve a little deeper into the ruminations of Ms. Coulter and Mr. Hannity on this issue. I read the transcript of the show that covered this important subject, and it did not disappoint. Aside from the fact that Ted Nugent was one of the guests, sprinkling the conversation with his trademark insanity, the show was full of rants such as the following:

HANNITY: "Look, that's the point. If you threaten the president of the United States, I think that's a pretty — that's over the line. And the bottom line is, this is the president. Ann Coulter, this is the president of our country. You threaten to shoot the president, you're going to get under investigation, and you are going to, perhaps, get arrested. That's a terroristic threat.

Solicitor General Hannity makes a compelling argument here. Let's arrest this guy. No -- wait, upon further reflection, I've got a couple of problems with this . . .

First: He. Didn't. Threaten. To. Shoot. The. President. He didn't threaten to shoot the President! He said that he thinks that they're guilty of war crimes, and that there should be a trial. And as a result of the guilty verdict in that trial, they should get the death penalty. Capital punishment is a conservative value, is it not? Hannity should be embracing that idea. If he thinks, however, that the death penalty is "terroristic," then he has more in common with my crim law professor than I ever realized. Perhaps Sean Hannity is secretly a crit legal scholar.

And second, I remember taking a little class in law school called "The First Amendment." In that class, we learned about a case called Watts v. United States. This 18 year-old kid was engaged in a discussion at an anti-Vietnam rally in DC. Someone said that young people should be better educated before they are permitted to speak. Watts responded that, "[t]hey always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." You know what the Supreme Court said about that man's prosecution under a statute that outlawed making threats against the president? They said that it was improper, because, "[t]he language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with [Watts] that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."

You see, unlike Hannity, the Supreme Court understood that political speech is at the core of the Freedom of Speech. It is generally pretty inflammatory and controversial, and people should be given leeway to speak their minds. This was almost forty years ago and during -- wait for it -- a time of war. Personally, I am going to trust the Supreme Court, because, unlike Mr. Hannity, it is their job to interpret the Constitution. Under Hannity's interpretation of the First Amendment, however, the Secret Service would have to investigate comedian Patton Oswalt when, as part of his act, he said, "[i]f the standard for impeachment is covering up a burglary, or getting a blowjob, it that means 'you're impeached,' then shouldn't Bush have been fucking executed at this point?" And that is just stupid.

Ms. Coulter responded a little differently:

COULTER: "I'm not painting them as liberals. I'll paint them as losers. You know, I missed the VH1 special 'I Love the '90s.' I missed this whole thing. Who cares about them? Has anybody checked in with Flock of Seagulls to see what their position is on Bush[1] . . . They're losers. Their fans are losers and there's a lot of violence coming from the left wing. Look, there's violence towards me and other conservative speakers on college campuses. Look, there's violence towards me and other conservative speakers on college campuses.

HANNITY: You got attacked with a pie."

I can't believe I'm going to say this, but I actually agree with Coulter's argument, at least with respect to the attempted "outrage" on the part of Mr. Hannity, Esq. She thinks that rock bands like RATM, and presumably Pearl Jam, are stupid and she's not going to listen to them.[1] Which is what is supposed to happen in a society that values free speech: the speech is disseminated and people are free to choose whether to listen or not. Ideas that are rejected eventually fade from the marketplace of ideas. But Hannity and his ilk don't really care to consider the nature of free speech in a democracy. He wants the Secret Service to investigate arrest everyone who says anything about the president, regardless of the constitutionality of said action. Why? Because that's how you chill free speech and shut people up.

"Graham, you're crazy," you say. "This is America. No one tries to use law enforcement or the threat of legal action to chill political speech." You're right. What was I thinking. I'm probably just paranoid cause I read this Slate.com article about how a couple was arrested in 2004 for wearing anti-Bush T-shirts at a political event. Oh, and that article also notes various similar examples of White House political operatives censoring speech at political rallies, like:

• Citizens removed from a Bush event in Denver because of an offensive bumper sticker on their car outside ("No More Blood For Oil");
• A Tucson student barred from a Bush event for sporting a Young Democrats T-shirt;
  
• Wisconsin citizens forced to unbutton their shirts before attending a Bush speech, only to have an attendee wearing an anti-Bush T-shirt ejected from the event.

So excuse me for being a little worked up about people and organizations trying to censor opposing viewpoints. I guess what I take from all of this is that, if you don't like what someone is saying then you should either remove them from the premises, threaten to arrest them, or actually arrest them. Regardless of the legality of such an action, or its inconsistency with the principles of a free and open democracy. But if you shout loud enough over what someone else says or force them to cover it up, you can control debate in this country.

For me, however, the Hannity & Colmes segment really got interesting toward the end, with this little exchange:

COLMES: Should you have been investigated when you said about Bill Clinton, 'The only issue is whether to impeach or assassinate'? Should you have been investigated for that?
COULTER: No, that was a serious legal point…
COLMES: ... where he should be impeached or assassinated? You should not have been investigated for that?
COULTER: If this were a civilized country, that would be the question.
COLMES: If we're going to investigate people with those comments, you should have been looked into.

What a fitting little capsule of what so enrages me about this sort of thinking. First Hannity says that they have made "terroristic" threats, when, in fact, he is actually misleadingly accusing them of suggesting that we assassinate our president. And then it turns out that his star guest, Ann Coulter, didn't just call one of the candidates for the Democratic nomination for president a "faggot"? She actually used the term "assassination" in reference to President Clinton. But that was a "serious legal point" that would have been considered in a "civilized country"?! The only difference between Coulter and Vedder/de la Rocha is that they are espousing opposing viewpoints. What's more, it's one thing when Hannity & Co. or AT&T try to censor people. But when it's the White House? Absolutely unacceptable.

Or maybe I just don't understand what it means to truly be an American. I just want to thank Fox News for bringing us quality programs like "Hannity & Colmes" that advocate a constrained view of political speech in a manner that is inconsistent with current constitutional law, and which treat people like Ann Coulter as if they have something constructive to add to any debate on any issue.[2] And I want to thank AT&T for telling us what we as music fans and consumers want to hear from musicians. And finally I'd like to thank the White House for telling us what we want to be able to say and to hear at our political rallies.

Our democracy is better for it.


[1] Sweet zinger there by Coulter. First of all, I'm assuming that the irony is lost on her that she's dismissing RATM for being an old and irrelevant musical act while sharing a panel with Ted Nugent. But Coulter is nothing if not in touch with what the young people are listening to these days. Aside from the fact that I think RATM was pretty popular when they broke up, who the hell died and made Ann Coulter the arbiter of cultural relevance? And what's with the comparison to Flock of Seagulls? Is that the last time she bought a rock album? Or did she make that comparison because they both have "weird" hair? Those are called "dread locks," Ann.

And most importantly: Ann Coulter considers it "violence" when someone throws a pie at her?! What a joke.

[2] And let's not forget about The Nuge. He's not quite as bad as Coulter. He only called Barack Obama a "piece of shit" and told him to "suck on my machine gun." And then he called Hillary Clinton a "worthless bitch" and told her to "ride" one of his machine guns.

I'm not saying that I think Nugent should be arrested. Call me crazy, but I just think it's highly unlikely that Fox News will do a story objecting to his comments. I wonder why this might be.

Bush's Brain Takes Leave of Office

Oh Karl Rove, we hardly knew ye. It feels like just yesterday that you were creeping us out with that bizarre flagellation that you call dancing.[1] Sadly, however, the man known by his boss as "Turd Blossom" is stepping down come the end of August. John Dean, former WH Counsel under President Nixon, once said that "Karl Rove . . . makes [Charles] Colson look like a novice." I'll be so sorry to see him go, but thankfully he won't be gone for long.

The only fitting way to re-live the Rove years is to do so through his own words:

"As people do better, they start voting like Republicans - unless they have too much education and vote Democratic, which proves there can be too much of a good thing."

"We now clearly are not the country that was 49-49. We're now at 51-48 and may be trending to 51-47. It is incremental but small, persistent change. We saw it in 2002, and we saw it again this year. . . . It tells me we may be seeing part of a rolling realignment." -- Nov. 7, 2004

"Conservatives saw the savagery of 9/11 in the attacks and prepared for war; liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments and offer therapy and understanding for our attackers . . . Has there ever been a more revealing moment this year? Let me just put this in fairly simple terms: Al Jazeera now broadcasts the words of Senator Durbin to the Mideast, certainly putting our troops in greater danger. No more needs to be said about the motives of liberals." -- June 23, 2005

"Just a few months ago, five justices on the U.S. Supreme Court decided that a national consensus prohibited the use of the death penalty for murders committed under the age of 18. In its decision, the majority ignored the fact that at the time, the people's representatives in 20 states had passed laws permitting the death penalty for killers under 18, while just 18 states -- or less than 50 percent of the states allowing capital punishment -- had laws prohibiting the execution of killers who committed their crimes as juveniles.[2]

These attempts, and many, many more over the past decades, have led to widespread concern about our courts. While ordinary people may not be able to give you the case number or explain in fine detail the legal principles they feel are being bent and broken, they are clearly concerned about too many judges too ready and eager to legislate from too many benches. " -- Nov. 11, 2005

"Like too many Democrats, it strikes me they are ready to give the green light to go to war, but when it gets tough and when it gets difficult, they fall back on that party’s old pattern of cutting and running. They may be with you at the first shots, but they are not going to be there for the last tough battles. They are wrong, and profoundly wrong, in their approach." -- June 12, 2006

"Look, I'm looking at all these . . . [midterm election poll projections] and adding them up. And I add up to a Republican Senate and a Republican House. You may end up with a different math, but you're entitled to your math. I'm entitled to 'the' math." -- Oct. 25, 2006

"We will fuck him. Do you hear me? We will fuck him. We will ruin him. Like no one has ever fucked him!" -- Rove, discussing a state political operative who did something that displeased him.

Now that Rove is gone, I think the key question is this: in the 2008 election, who will be willing to step up to the plate and ask important questions like whether a voter would be more or less likely to vote for John McCain if they knew he had fathered an illegitimate child who was black, or if a voter would be more or less likely to vote for Governor Ann Richards if they knew that her staff was dominated by lesbians?

After almost seven years of Karl Rove, I think America needs a shower.


[1] One thing that I always wondered about that clip: what piece of information do you suppose is coming in on his blackberry (minute 1:00)? Was it some tidbit to be used for the character assassination of a Democrat? Perhaps some horribly misleading talking point about the war? We will never know.

[2] Evidently, Rove, like his good friend George W. Bush, is very cavalier about using the death penalty. Rove wants to execute juveniles, and sees judges who refuse to do so as "activists." Bush enjoyed mocking a woman who was on death row by fabricating an anecdote about her begging for her life. These guys are quite the pair of "compassionate conservatives."

The Liberal "Loses It" Over the Election, Part 1

Well, we only have about 15 months left until Election Day 2008, and I'm already sick of everyone and everything involved in this election. I guess this shouldn't be a surprise to me because the last election made me sick and there was only one Republican. And now there's a Republican field that includes the shell of what used to be John McCain, the loathsome Mormon ex-Governor of Massachusetts, and Willem Dafoe from "Shadow of the Vampire." (If you don't know what I mean with the last one, compare Rudy to Max Schreck. Thank you very much.)

On Tuesday night the Democratic candidates met to discuss important issues that they have never -- NEVER -- covered before in a "forum" sponsored by Big Labor a/k/a the AFL-CIO. That is to say that the "serious" candidates met to discuss novel issues like trade, terrorism and lobbying. Mike Gravel was not present because, according to the forum organizers, he got his application in too late. It seems to me that something like a late application wouldn't prevent the labor unions from including Hillary Clinton. But I guess that Gravel is not seen by political insiders and the media as necessary to a meaningful debate on the issues relevant to our next presidential election.

In fact, The Washington Post thinks we need to get him the hell out of any future debates so that we have some "serious debates." The Post does make a good point that we need debates that actually make candidates give in-depth answers and permit them to actually respond to one another. I couldn't agree more. The lack of meaningful responses and the creation of a "memorandum of understanding" between candidates is what made the League of Women Voters withdraw their sponsorship of presidential debates in 1988. But I think that the Post is way off with this:

Voters trying to sort out their presidential choices aren't helped by debates cluttered with the likes of Mike Gravel (hint: he's a former senator from Alaska) on the Democratic side and Ron Paul (hint: he's a libertarian House member from Texas) among the Republicans. If the standard is that any declared candidate is entitled to a podium, we're going to end up with even more crowded stages in 2012 . . .

For starters, as this process continues, debate organizers ought to think about using various tests to narrow the fields. Has a candidate demonstrated any indicia of viability or seriousness: standing in the polls, ability to raise money, trips to the state where the debate is taking place? When Mr. Gravel says he's not running to win, that ought to be grounds enough to toss him out. Yes, at this early stage, poll standing alone isn't enough to exclude a candidate; some serious, experienced candidates are mired in the single digits, and they ought to be given their chance to catch fire. But as the process moves forward, the bar for inclusion should move higher.

The Post's conclusion is that a better debate is one that actually includes less debate? I tend to think that exposing oneself to more viewpoints, particularly in the political realm, might actually be good in a democracy.

Why am I getting fired up about Mike Gravel being excluded from a debate? I mean, the man is a crackpot, right? I am willing to admit that, for a variety of reasons, Gravel does not display "viability or seriousness" as a candidate: 1) his poll numbers are in the low single-digits, 2) he has those weird campaign commercials, 3) his campaign currently has about $50,000 in the bank, when one probably needs $50 million to last until November 2008, and 4) he seems to yell a lot when he is invited to debates. But Gravel has done some worthwhile things for this country during his career in public service. His filibuster on the Senate floor eventually led to the end of the Vietnam War draft, and he read the Pentagon papers into the congressional record and got them published by Beacon Press. Also, he doesn't take cash from corporate lobbyists, and he never voted for us to get involved in Iraq. I'd say that that actually gives him two legs up over Hillary at this point.

But my annoyance has more to do with a disturbing trend emerging in our national elections. The people who are running (!?) these elections -- the two major political parties, corporate organizers (including the Commission on Presidential Debates established by the Democratic and Republican parties), big media etc. -- have a nasty habit of attempting to marginalize candidates for not being "serious" in a manner that I think perverts the electoral process. This Gravel incident reminds me of the 2000 election. When Al Gore and George W. Bush got together for a debate, Green Party candidate Ralph Nader and Reform Party candidate Pat Buchanan were not permitted to attend. In the Nader biopic "An Unreasonable Man," Nader is shown arriving to simply watch the debate (with a proper ticket) at Bunker Hill Community College in Boston. He was refused entrance to the building and told by a Mass state trooper that if he would not leave then he was going to be arrested. It was a chilling moment. (If you want to, you can watch videos of protests over his exclusion from other debates.)

The CPD requires candidates to have a minimum of 15% popular support in order to participate in one of their debates. And the Washington Post wants candidates' inclusion in debates to hinge upon standing in the polls, ability to raise money, and trips to the state where the debate is taking place. [1] I find this proposal problematic because being included in a debate (or a "forum" or whatever) gets candidates like Nader and Gravel free exposure. With that free exposure could come more campaign contributions which might be accompanied by, or lead to, popular support. So there is a nice self-perpetuating system here: a candidate is marginalized because he/she is not popular, but he/she cannot become more popular because they are marginalized.

This cycle is has a purpose, but I do not think that the CPD or the national parties want to save the voter time or keep the average voter from being confused by a large field of candidates. Ultimately, I think that having candidates like Nader and Gravel around means that certain issues might be raised, issues that are not favorable to candidates or their big supporters, but which should be addressed, nonetheless. While this doesn't benefit the political establishment or the candidates that the establishment supports, it's beneficial for the public to have included people who are willing to discuss issues that a lot of the press are loath to pursue. As I said before, a robust debate is better for democracy, not worse. Not only are more ideas disseminated by including more voices, but some of these candidates are able to raise issues and confront the more "legitimate" candidates about subjects that debate moderators and the media might be too timid to broach, which is helpful in deciding whether that candidate should be president.[2] For example, whereas the press might just let the issue of Hillary's vote in support of the Iraq war drop, candidates Gravel or Kucinich might continue to bring it up and force her to address her decision with something besides a smarmy and evasive talking point.

Now I think that people who disagree with what I'm saying (e.g. the Washington Post and the like) will probably say that allowing less "serious" candidates to participate will open the door to including any old candidate for president, and thus we will have to let every nutjob who declares themselves fit for office take part. Let's be clear -- people like Ralph Nader, Mike Gravel and Ron Paul are not really "crack pots." (These are crack pots.) They are not your crazy Uncle Sal holding "campaign rallies" and giving speeches from his conversion van in the A & P parking lot. These are people who have dedicated their lives to serving in the public interest, they are raising real issues that concern Americans, and they are taking thoughtful positions. Positions that are supported by some Americans and might just deserve a voice on the national stage.

The ironic thing about Ralph Nader's exclusion from the 2000 presidential debates is that the big parties kept him out because he was not "important" enough to be there. And yet, many in the Democratic establishment accused Nader of stealing votes from Al Gore, and blamed him for basically helping to elect George W. Bush. So there is this strange paradox: Nader was not a serious enough candidate for the presidency to include him in a debate, and yet he was serious enough to determine who became president. Does that make sense?[3] Of course not. Because it was not Nader's fault that Gore lost the election, and he was important enough to have been included in the debates.

My ultimate point is this: I am sick of being told by either the media, beltway insiders, or the two major political parties, whom to respect as a first-tier candidate, who can be taken seriously on particular issues, and to whom we should even be listening at all. I'm not planning on voting for Mike Gravel or Ron Paul, but with over a year to go until election day, what is the hurry to marginalize these people and exclude them from the national dialogue? If third party or "extreme" conservative or liberal candidates are so un-serious then why can't we let them say their peace until they run out of support or money?


[1] Again, the Supreme Court has said that money in the form of campaign contributions (and similar in-kind donations) is political speech. I think it's incredibly ironic to value campaign money over actual political speech by a candidate. Surely actual political speech occupies a more valued place in our hierarchy of speech, does it not? I mean, one is essentially expressive conduct, and the other pure speech. Traditionally, those two things have been looked at differently.

[2] To say that debates nowadays are less than challenging, and produce responses that are less than meaningful, is beyond stating the obvious. There are some voices out there who feel that there are important questions that are not being asked of the candidates. At least we now know whether or not McCain would read his daughter's diary if he happened across it. I find his answer only slightly more troubling than the recent electronic surveillance legislation.

[3] One explanation for this argument might be that it is in the interest of the Democratic Party to blame Nader, rather than to fess up to the fact that some of the party leadership might be fucking incompetent. Or maybe the two large parties might have an interest in arguing that third parties are to blame for our discontent after the 2000 election?

(I Always Feel Like) Somebody's Watching Me

First there was 9/11. In response, the President authorized the National Security Agency to intercept communications of US citizens that were being routed through international switchboards without a warrant. Then The New York Times reported on this program, and there were many problems. The administration felt that the Times had compromised an important tool in the "war against terror." The problem for others (lawyers, criminal defendants, "enemy combatants," the public, etc.) was that a particular federal law requires warrants for wiretapping and electronic monitoring in cases involving U.S. residents/citizens being investigated for "national security" reasons.

Over the weekend Congress passed the Protect America Act. I'm sorry, what I meant to say was that the Congress approved the warrantless surveillance program that the president had been touting as vital to the national security. I'm sure you're probably aware of the details of this incredible act of legislative cowardice by now. But here's a little synopsis of the changes brought about by the law, as understood by the Washington Post:

Under the administration's version of the bill, the director of national intelligence and the attorney general could authorize the surveillance of all communications involving foreign targets. Oversight by the Foreign Intelligence Surveillance Court, composed of federal judges whose deliberations are secret, would be limited to examining whether the government's guidelines for targeting overseas suspects are appropriate. The court would not authorize the surveillance.

This may or may not be the extent of the new bill.[1]

Privacy "nuts" are freaked out by the changes, but conservative (yes, he is) law professor and privacy expert Orin Kerr is cautiously optimistic about the changes to the law:

1. First, I have a number of concerns about the legislation from a civil liberties perspective. For example, limiting judicial review to whether it is clearly erroneous that something is reasonably designed to target those reasonably believed to be outside the U.S. seems like a pretty weak threshold . . . I also have an instinctive difficulty with the mandatory nature of the program without individualized court orders forcing compliance.
2. [T]his legislation does a number of things well. I think I basically agree with the idea that if someone is outside the United States, FISA should not regulate the monitoring of their communications. Intelligence agencies have long been able to monitor such calls from listening posts outside the U.S. without triggering FISA (think Echelon); this legislation makes the same rule apply regardless of where the communication is routed. Although I'm not happy about forcing ISPs and providers to comply with a mandatory program, the basic idea of letting the government access those communications without a statutory warrant requirement seems appropriate.
3. I also like the idea of submitting the means of implementing FISA to the judges for evaluation. Although the review is deferential, it recognizes that the technical means of implementing FISA's broad guidance is really critical to how the statute operates. I also think it's important that this is a temporary fix. If the Patriot Act experience is any guide, any reauthorization will come with some serious legislative scrutiny and a ratcheting up of oversight mechanisms as a condition of re-approval.

One of the most important parts of the new legislation is the provision that Kerr mentions during his second set of concerns, the portion that requires internet service providers and telecommunications companies to comply with with government investigations. They (AOL, Comcast, Time Warner, etc.) now have to cooperate with the government at all times.

I guess that the primary concern that I have about this whole thing is that the legislation authorizes investigations aimed at foreigners, but it sweeps in communications by people living domestically who have conversations with people who might reasonably be believed to be living abroad. (It's unclear to me if they actually have to be living abroad. It just seems like the agency has to think that someone is.) And this is problematic, I believe, because of the post-9/11 destruction of the "the wall" that once separated foreign intelligence investigations from those of domestic law enforcement. This means that information obtained through national security investigations, which require a lower threshold of evidence in order to obtain authorization, can then be used in criminal prosecutions, which would ordinarily have to meet the requirements of the 4th Amendment and various criminal laws.

Now you might think that the likelihood of an American citizen being listened to and subsequently prosecuted for criminal offenses based upon information gathered according to lesser evidentiary showings or constitutional safeguards is unlikely. But similar things have happened before (not that the ends don't sometimes justify the means). It might also be the case that it's unlikely that we'll catch any foreign terrorists through this program. I don't know about the inner workings or effectiveness of these programs, but these are interests that everyone should consider when balancing their privacy interest against their safety interest. And maybe, just maybe, the degree of trustworthiness of law enforcement should factor in to one's privacy calculus? Just a suggestion.

It makes me wonder how a president that the conservative periodical US News & World Report described as "a lame duck, and an unpopular one at that," managed to force the Congress into conforming to its wishes? Recently, the Attorney General was less than entirely truthful with the Congress about previous surveillance activity and the administration's debate over that surveillance. Also, the FBI engaged in unauthorized surveillance and misused national security letters under the USA PATRIOT Act AND the Attorney General also misled the Congress about that.[2] So why is Congress trusting this administration with this tool which may be more than just minimally invasive? And why is Alberto Gonzales being given more powers when he has shown that he could not be trusted with the ones that he already had? Evidently, certain members of Congress were apparently afraid that they would lose political points if they were framed as being "soft on terror," especially in the event that an attack were to occur during their summer vacation. Just ask Barack Obama: "Everybody was afraid they might be branded as soft on terrorism." So it would appear that our representatives in government feel that this issue is so important that we can live without a debate and simply subject ourselves to reduced levels of privacy for the next six months, particularly when the alternative might cost someone re-election. Absolutely spineless.

First, I just want to personally thank the Senators who voted against the bill:

Akaka (D-HI) Baucus (D-MT) Biden (D-DE) Bingaman (D-NM) Brown (D-OH) Byrd (D-WV) Cantwell (D-WA) Cardin (D-MD) Clinton (D-NY) Dodd (D-CT)

Durbin (D-IL) Feingold* (D-WI) Kennedy (D-MA) Kohl (D-WI) Lautenberg (D-NJ) Leahy (D-VT) Levin (D-MI) Menendez (D-NJ) Obama (D-IL) Reed (D-RI)

Reid (D-NV) Rockefeller (D-WV) Sanders (I-VT) Schumer (D-NY) Stabenow (D-MI) Tester (D-MT) Whitehouse (D-RI) Wyden (D-OR)

(Remember, some names do not appear because, for one reason or another, they did not vote.) If you want to thank your Congresswomen/men, feel free to look them up here.

Second, a friend of mine, Jim P. from Worcester (Woosta), reminded me yesterday of the popular line of argument that "the Constitution is not a suicide pact." Indeed, this is true. But disasters are also not blank checks to sacrifice the rights that we have come to expect and respect. And the changes that we are talking about will ultimately result in a shift in the status quo of everyday privacy, and that is not something that we should flippantly give away (or have given away for us). As David Corn said, we do not, "want the suicide pact argument to be used as a cover for the violation of civil liberties." This is not a political issue. It's a philosophical debate that people, including our congressmen & women, need to start taking more seriously. They need to consider our rights and interests as citizens and keep their own political calculus out of this, especially when that might possibly be the factor that finally tips the scales in a particular direction. People have been politicizing the threat of terrorism for too long, and it simply needs to stop.

The new legislation is up for re-authorization in six months. Is it too much to ask for us to have some real, meaningful consideration of these issues at that time? It seems to me that debating is just about the only thing that Congress does reasonably well.


UPDATE: Glenn Greenwald tears the Democrats who voted to authorize the administration's wiretapping program a new one. He says that the politics of fear was proven ineffective in the 2006 midterms, but some Washington insiders don't get this.


[1] As a bizarre exchange on the Newshour last night demonstrated, there may still be some uncertainty among legal "experts" about the particulars of the law.

* He was also the only one to vote against the USA PATRIOT Act in 2001. My goodness, I love that man.