Civil Liberties

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Resistance

Beverly Gage had an interesting essay in Sunday’s New York Times Magazine, “A ‘Resistance’ Stands Against Trump.  But What Will It Stand For?  In it Gage discusses the history of the word, resistance, and how it has transformed at various times from being against to finding what it is for.  Right now, when we talk about resisting Trump, or perhaps I should say that when I use the term, I mean taking a stand against his proposed (and some implemented) actions that can remove my civil rights and civil liberties.  I think each participant in the current Resistance stands for his or her own reasons.  So how can we coalesce into a positive movement?

Before Trump’s election, anyone who claimed to have been a member of “the resistance” was most likely over the age of 85, a veteran of anti-fascist struggles in France and other Nazi-occupied territories during World War II. That resistance involved armed conflict and personal risk of the bleakest sort, with guerrilla fighters hiding in the catacombs of Paris while Hitler’s forces did their worst above ground. Under fascist rule, there were no plausible options for political engagement. It was a fight to the death, and in early 1940s Europe, before the arrival of Allied troops, the outcome was far from certain. Talking about resistance still evokes this sense of honorable struggle against an occupying power. It implies patience as well as militancy, the ability to say no over and over and over again, to refuse to cooperate until the whole system crumbles.

After the war, anticolonial movements from South Africa to Northern Ireland found their own strategies of resistance, settling in for long, sometimes bloody fights.

Of course, the American south had “massive resistance” to school integration.  I remember well the year my hometown of Moorestown, New Jersey, hosted a group of young men and women from Prince Edward County, Virginia who were just trying to finish high school after “massive resistance” closed the schools.

The American left created a different language of resistance, much of it focused around the anti-conscription activities of groups like the War Resisters League. This anti-draft sensibility reached its peak in the late 1960s, during the Vietnam War, when student activists proclaimed a transition, per one slogan, “from Protest to Resistance.” As the movement veterans Staughton Lynd and Michael Ferber pointed out in their 1971 book, “The Resistance,” that shift grew out of a desire to embrace “a deeper and riskier commitment, a move that warranted a new term to replace ‘dissent’ and ‘protest.’ ” The goal was no longer simply to object to the war; it was to throw a wrench into the war machine and make it stop. Antiwar activists continued to engage in peaceful protest — but now some also burned draft cards and firebombed R.O.T.C. centers. A small number, like the Weathermen, took up bona fide guerrilla activity, planting bombs at the Capitol, the Pentagon and other prominent buildings.

The Michigan Republican who tweeted that we needed another Kent State to put down the current protests hasn’t read his history:  Kent State stiffed the resistance to the Vietnam War rather than ending it.  I remember the nonviolent movement being galvanized by Kent State.

As the war and its life-or-death stakes came to an end, so, too, did the embrace of resistance as a literal armed underground conspiracy. But while it faded as a political strategy, it began to gain prominence as a category of academic social analysis, the sort of thing that anthropologists and historians looked for in their studies of human societies. This was part of a broader trend toward “social history,” with its insistence that ordinary people — not just generals and politicians — could be the agents of serious historical change. Sometimes this meant studying organized revolts, like slave rebellions or peasant uprisings. By the 1980s, though, “resistance” had come to encompass a much broader set of behaviors. Enslaved or oppressed people might resist by taking up arms, but they might also resist simply by refusing to do as they were told. The political theorist James Scott called these “everyday forms of resistance” — a category that could include giving a sullen look to an employer, deliberately misfiling forms or just living life, as much as possible, on terms of your own choosing.

As I wrote earlier, the current resistance movement allows each participant to participate for her or his own reasons.  But can we become something bigger?  Gage leaves us with some hope.

fist-of-resistance

As a movement-building enterprise, designed to achieve the greatest possible participation, this mode of resistance makes sense. But despite its good cheer, it still emphasizes what is not possible: It says that Trump is about to take a sledgehammer to the nation’s finest institutions and principles and that the only thing most citizens can do is shout “no” as loudly as possible.

Many organizers have vowed that this yawp of dissent represents a beginning rather than an end — and history suggests that they may well be right. Some of the most significant shifts in modern American law and political culture came out of efforts birthed in panic and despair. During World War I, for instance, the United States banned criticism of the government, interned thousands of German Americans and instituted widespread surveillance of immigrants and political radicals. Many Americans supported these policies; others feared that the country was abandoning cherished traditions of tolerance and free speech. In response, a small group of alarmed progressives founded an organization that came to be known as the American Civil Liberties Union. They lost many early courtroom battles, but their vision of a nation in which “civil liberties” were taken seriously eventually changed the face of American law and politics.

If I have any prediction about what the future holds, I think that the women’s movement, the environmental movement, and civil liberties movement will all gain strength as we each decide where to put our energy, time, and money into positive actions.   While we continue to resist it all.

Photograph:  Shannon Stapleton/Reuters

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There’s something happening here…

Actually there is too much happening.  Each time I start to pick a topic to write about, there is another headline, another outrageous action taken, another horrid confirmation.  I don’t care whether you support President Bannon – oops, I mean Trump – or not, things are moving so quickly one doesn’t have time to fully judge the consequences.  I’ve decided to follow two rules:  try to stop mocking him and laughing at him.  And pick an area or two and concentrate on them.

Rule number one is difficult:  There is just too much to make fun of coming directly from the Trump Administration.  In the past two days we’ve had the President ask us to pray for Arnold Schwarzenegger since higher ratings mean more money  – not for Arnold but for the President.  I thought he was supposed to divest himself, but obviously the regular rules don’t apply.  For a Black History Month speech, the President told us that Frederick Douglass was still alive at the ripe old age of 122 and still trying to teach us.  At least the last part of that sentence is true as we can learn from reading his writings.  And then we’ve had a fake terrorist attack to justify a travel ban based on religion. Yes, the infamous Bowling Green Massacre concocted by Kellyanne Conway who later explained she misspoke.  But I try not to laugh too hard and keep reminding myself this is really serious business.

Senator Cory Booker was on the Rachel Maddow Show the other night.  He and Rachel talked about protest and opposition fatigue.  This is what I’m trying to avoid with rule number 2.  But I think I’ve picked areas that are just too broad because I’m following civil rights and civil liberties.  They can encompass women’s rights and immigration huge (as our leader would say) topics in themselves.  But I am a woman and the daughter of immigrants.

This is how Charles P. Pierce opens his short February 2 essay We Know How This Ends:  The White House is once again tolerant of white supremacy.  

There are some remarkable stories that have vanished for now in this city. One of the most prominent of these is that out-and-out white supremacy is operating at the very top levels of the executive branch of the government in a way that it hasn’t since, I don’t know, the Wilson administration. The Collected Works of Steve Bannon are bad enough. From USA Today:

“They are motivated. They’re arrogant. They’re on the march. And they think the Judeo-Christian West is on the retreat.”

The last describes many Trump supporters.  The accompanying photograph which I am not including is of the Oklahoma City Federal Building after the April 1995 bombing.
I believe that Steve Bannon, white supremacist, who thinks that immigration is an invasion is the real power in the White House.  He is going to encourage the Timothy McVeigh’s of the world.  He has already given “permission” to the young white Canadian who attacked a mosque in Quebec.   And remember that white supremacy is largely male supremacy.
So we have to be vigilant, try to avoid Bannon/Trump fatigue, and keep pushing back.

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Policing is a tricky business

Most of us want to be safe.  Maybe that should be all of us.  But how to feel safe and to be safe are questions with many answers.  If we were to listen to the NRA and other gun rights supporters we can best get to safe with each of us carrying a loaded weapon all the time.  Most of us, however, depend on the police.

We recruit young men and women, give them some training, arm them, and send them out to face dangerous situations.  I can’t imagine doing a traffic stop at night, alone.  I’ve heard stories from my State Trooper stepson that are really frightening.  And we also expect them to act within the boundaries society has established:  no excessive force and no stops without cause.  I think that most black men know that “cause” is a slippery thing.  Driving while black is a common reason to be stopped.  I remember my mother telling me about an African American minister who always drove at least once to any place he had to go in a white neighborhood during daylight.  He did this so when he went to a meeting at night, he would know where he was going and wouldn’t be wandering around lost.  He feared being stopped.  Then there is the story of my husband who was stopped while driving four black churchwomen back from a class.  The excuse?  His rear license plate was crooked.  The real reason?  I think they suspected he was a white pimp driving his “girls” someplace.  I guess the trooper realized after he stopped them and looked at the women that they were all middle aged or older and not at all what he had thought.  Was this profiling?  You bet.

So cause can sometimes be difficult to determine.  If see someone driving very fast and weaving in and out of traffic, you have cause for a stop.  If someone is speeding on a two lane road in the rain, you have cause for a stop.  And if you get a report of shots fired in a neighborhood known for gang activity, most of us would think that is cause for a stop.  That seems to be what happened last Friday night in Boston.  According to the story in the Boston Globe

Friday’s incident began at 6:40 p.m. when gang unit officers investigating a report of shots fired stopped a vehicle on Humboldt Avenue near Crawford Street to interview its three male occupants, authorities said Friday night.

The suspect stepped out and began to flee while firing his gun, said David Procopio, a spokesman for the State Police, which works alongside Boston police to address gang violence.

The suspect wounded Moynihan [a police officer] under the right eye, Evans said.

A law enforcement official also said the suspect, who was not identified, had several previous gun-related charges.

Evans [Boston Police Commissioner William] said that the stop was initially routine and that the suspect had fired at police “before they had time to react,” but the officers quickly returned fire, killing the suspect.

Gunfire also struck “a middle-aged woman” who suffered a flesh wound, possibly in her right arm, Evans said.

“I think she got caught up in the crossfire,” he said.

Officer John Moynihan is a veteran Boston policeman who is expected to survive.

So what exactly are we to make of this incident?  Was this a stop with cause?  The report was of shots fired.  Kevin Cullen wrote about the incident and the immediate aftermath for the Globe.

Angelo West wasn’t going back to prison.

That’s what this was about. Pure and simple.

When members of the Boston police gang unit stopped the car he was driving on Humboldt Avenue on Friday evening, he knew that the .357 Magnum he was carrying was a ticket back to Cedar Junction in Walpole, and he wasn’t going out like that.

So he came out of the car, without a word, put his gun to the face of John Moynihan, and pulled the trigger. Then he ran off, turning back to fire at Moynihan’s colleagues.

Did he really think he would get away?

…

There was an extraordinary scene as police officers combed the area for spent shell casings and other evidence as Moynihan underwent surgery at Boston Medical Center. Some people got in their faces, calling them pigs, screaming about another black man shot to death by police.

I wonder.  Did any of them know the victim?  Did they understand that he shot first and that he was a three time loser facing life?

The Boston Police and the Suffolk County District Attorney then made an extraordinary decision.  Dante Ramos explains

The Rev. Jeffrey Brown finds the surveillance video persuasive, so much so that he gets up from where we’re sitting and pantomimes what happens in it: Boston Police Officer John T. Moynihan approaches a stopped vehicle last Friday, stands by the driver’s door, and taps on the edge of the roof to tell him to come out. As the driver, Angelo West, emerges, Moynihan shifts on his feet — and suddenly rears back as West shoots him in the face. Then, in Brown’s rendition, West leans over the fallen officer, as if to shoot him again. Another officer interrupts by firing at West, who flees while discharging his weapon.

The confrontation on Humboldt Street in Roxbury ended with West dead and Moynihan badly injured. People who’ve seen the video, taken by cameras mounted at a nearby business, say it makes West’s culpability plain.

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The footage from Roxbury bears a time stamp of 6:46 p.m. Friday, and interactions between police and spectators on the scene soon became edgy. Supporters of the Black Lives Matter movement, which has protested the deaths of African-American men under dubious circumstances in Ferguson, Mo., and elsewhere, raised the possibility that West’s death was part of that pattern.

In past cases involving so-called officer-involved deaths in Boston, video evidence came out only at the end of a long investigation. Authorities waited a year after the 2013 shooting of Darryl Dookhran by Boston police to release footage that supported officers’ account of the event. Yet by around noon Saturday, police were showing the video from Humboldt Avenue to a group that included Brown, the Rev. Miniard Culpepper, state Representative Russell Holmes, civil rights attorney Rahsaan Hall, and others.

Releasing the video sets a precedent that may be difficult to live up to in the future.  In other cases, there may be witnesses visible that need protection or the video may be more ambiguous and need to have a jury interpret it.  But in this case it was the right thing to do and a good decision by Commissioner Evans and DA Conley.  People may still question whether the stop itself was justified, but clearly the shooting of Angelo West was the only thing that police could have done.

Yes, black lives matter – all lives matter.  But we need to ask if they all matter equally.  Don’t people like Angelo West terrorize the very community in which many of the protesters live?  Don’t get me wrong.  I would rather see West in prison for life than dead, but in the end Angelo West is dead.  John Moynihan will survive.  I think justice was served.

 

 

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Judge Moore and Justice Thomas and marriage equality in Alabama

I guess that Alabama Supreme Court Chief Justice Roy Moore is taking his cues from Supreme Court Justice Clarence Thomas’ dissent instead of from the actual ruling in which the majority of the United States Supreme Court refused to stay a District Court ruling that allowed the state to become the 37th state to allow same – sex marriages.  According to the Washington Post story, Justice Thomas wanted a stay.

The court is months away from hearing arguments in a landmark case about whether states are free to ban such unions. But Thomas said a majority of the justices may have already made up their minds, as reflected by the court’s “indecorous” decision Monday morning allowing same-sex marriages to proceed in Alabama.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote in a dissent from the court’s order refusing to stay the weddings. “This is not the proper way to discharge our . . . responsibilities.”

Thomas and his pal, Justice Scalia voted for a stay.  And I think he is probably right.  The more states that allow marriage equality and the more couples that marry, the harder it will be to overturn any lower court rulings.  It may turnout that the Supreme Court will “compromise” by letting the few states in which the Appeals Court has overturned lower court rulings that not allowing marriage equality violates either the state or U.S. Constitution, but I think they are headed for a Loving v. Virginia kind of decision.

However, Judge Moore appears to have decided that he’d rather go with Thomas than the actual ruling.  Judge Moore ordered Alabama probate judges not to issue marriage licenses to same-sex couples.  According to the Washington Post

Much of the legal uncertainty in Alabama over same-sex marriage centers on Roy Moore, chief justice of the state’s Supreme Court. On Sunday night,Moore told Alabama’s probate judges not to issue marriage licenses, defying a federal judge. This is not the first time Moore has refused to follow a federal judge’s ruling.

We all remember when Judge Moore refuse to remove that large stone Ten Commandments monument from the courthouse.  The Post explains

Until this week, Moore’s claim to fame was being the “Ten Commandments judge.” The controversy that led to Moore being ousted from the bench involved a large monument to the Ten Commandments that had been installed in the Alabama Judicial Building in Montgomery.

This two-and-a-half-ton monument, and Moore’s fight to keep it in place, served as a cultural flash point. Civil liberties groups argued that it violated the church-state separation, while conservative and religious supporters of Moore defended his actions.

The Southern Poverty Law Center, the American Civil Liberties Union and Americans United for the Separation of Church and State filed a lawsuitarguing that the monument violated the constitutional prohibition against religious endorsement. The U.S. Court of Appeals for the 11th Circuit agreed, ordering Moore to remove the monument.

He was then removed from his judgeship by the state ethics panel, but was reelected in 2012.

2300alabama-ssm-0209

So as a result of Judge Moore deciding the Thomas dissent was better than the refusal to grant a stay, Alabama is in chaos.  There are now counties where no marriage licenses are being issued at all, some that are just refusing same-sex couples, and others who are complying with the district court.

There will be more lawsuits as people are denied the right to marry.  I wonder what Justice Thomas will do when the next appeal from Alabama reaches the Supreme Court, but I think the Alabama ethics panel will be having another hearing with Judge Moore.

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When spouses are both in politics

I’m not necessarily referring to Bill and Hillary Clinton and whether his actions, both while governing and personally (think Monica) should be fair game if Hillary decides to run.  I’m thinking today about David Barron and his wife, Juliette Kayyem, who is running for the Democratic nomination for Governor of Massachusetts.  I happen to be a Kayyem supporter although she is fighting an uphill battle.  And I wonder if it just got even more uphill.

David Barron was just confirmed to the 1st Circuit Court of Appeals which is New England.  His nomination was held up because he is the author of the infamous “drone” memo.  The New Yorker’s Ryan Lizza had an interesting piece about Barron and the memo today.

On July 16, 2010, David J. Barron, a lawyer at the Department of Justice, sent Eric Holder, the Attorney General, a lengthy memorandum. Barron, who had celebrated his forty-third birthday earlier that month, was a professor at Harvard Law School, on leave for a couple years to work for President Barack Obama. Barron, like many young lawyers who arrived in Washington with the new Administration in 2009, had impeccable liberal credentials. As a Harvard undergraduate on the Crimson, the campus newspaper, he wrote sympathetic pieces about Jesse Jackson’s 1988 Presidential campaign. During the summer of 1993, before his third year at Harvard Law School, he interned with the N.A.A.C.P. in Washington. After graduating, he clerked for Supreme Court Justice John Paul Stevens, a leader of the court’s liberal wing, and then worked in the Clinton Justice Department. During the Bush years, he was a relatively prominent critic of the Administration’s national-security polices, especially its embrace of torture.

In 2006, while Bush’s Justice Department lawyers were tweaking a new legal regime allowing for bulk-collection surveillance and what they called “enhanced interrogation,” Barron helped review the bylaws of the Botanic Gardens Children’s Center. As a professor in Cambridge, he raised money for the campaign of Deval Patrick, who has been governor of Massachusetts since 2007. That same year, 2007, he even attended the YearlyKos convention, a sort of South by Southwest for left-leaning bloggers and activists trying to push the Democratic Party in a more unabashedly progressive direction. During his legal career, he has signed amicus-curiae briefs in several highly political cases, including one defending a living-wage ordinance in Santa Fe, New Mexico, and another defending a major campaign-finance reform law. In 2008, during an NPR interview, he mused that articles of impeachment could be justified against a President who purposely misled the country into war.

 

Juliette Kayyem

Juliette Kayyem

His wife has similar liberal credentials.  I first met her right after the World Trade Center bombings.  Everyone was in a panic about the possibility of more incidents, about loss of civil liberties, the prospect of some kind of martial law, and whether we were safe.  I can’t remember the exact words she used, but she was reassuring with ideas that one did not have to curtail civil liberties to combat terrorism.  After that I read her column in the Boston Globe and found, for the most part, that she had a pretty commonsense approach to things.  But I know that a number of supporters of other Democratic candidates want to tar her with the David Barron’s memo justifying the drone strike that killed an American citizen living in Yemen and involved in terrorism.

His July, 2010, missive, which was one of the last that he wrote during his eighteen months running O.L.C., was historic and—to many—troubling: yes, Barron argued, the President of the United States could kill an American citizen named Anwar al-Awlaki. And, as a rule, the memo argued, the President could kill any American citizen abroad connected to Al Qaeda or an associated group—without a trial or other legal proceedings—if he deemed that person an imminent threat.

This post is not meant to debate the memo or whether we should have killed Anwar al-Awlaki without a trial, but whether Barron’s memo is fair game for his wife’s political opponents.  None of us know what he wrote or what kind of justification he used:  We only know that al-Awalki is dead.  We don’t know if Kayyem agreed with what he wrote or if she even knows any more about the contents of the memo than the rest of us.  I do know the fact that he wrote has already been raised against her.  It is likely that if she does manage to get the nomination that some part of the progressive community will not work for her.

Boston Magazine has already raised the question.  The article opens

Gubernatorial candidate Juliette Kayyem has run into some trouble with Massachusetts Democrats over what some characterize as hawkish views on the use of tough measures in the cause of national security, her area of expertise. So, with the Democratic state convention less than six weeks away, she probably doesn’t need the trouble that’s stirring up around her husband on the issue—regardless of how irrelevant it may be to her, and how she might run the Commonwealth.

And ends with this.

None of which, of course, should have anything to do with supporting Kayyem for governor. They’re not her memos; it’s not her decision whether to release them; it’s not her nomination. But with her gubernatorial campaign hinging on what those delegates do in mid-June, this is probably a distraction she would rather have behind her.

We need to think about what happens when both spouses are politically involved.  Are they two people or do they only count as one person?  Should we assume that they agree on everything?  Are they responsible for each other’s actions?  I don’t have the answers, but we have to think about these things as we are going to see more political couples like the Clintons and like Juliette Kayyem and David Barron.

Photograph: Boston.com

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Warning labels

I know I’ve been neglecting my blog the last few weeks.  I’m finding much of the news depressing and it is finally spring and who wants to be depressed by dwelling on disasters – current and potentially future.  But I’m aroused from my lethargy by a couple of recent stories, so I may well go on a blogging binge.

My first subject is warning labels.  “Cigarettes are Hazardous to your health.”  “Not gluten-free”  “Keep away from water [on my hair dryer]”  All handy and relevant for physical health and safety.  But now some students are agitating for warning labels on books for reasons of psychological health.  Classic books.  Like “The Great Gatsby” .  This follows a commencement season where students got various speakers removed because of something they’d done in the past or some opinion they hold.  Something very disturbing is going on here way beyond the protection of someone’s mental health.  I love the opening of Renee Loth’s column in this mornings Boston Globe

Warning: This column may contain material you disagree with or find offensive. It may provoke a strong reaction, making you feel angry or exposed. Of course, you can log off or turn the page. But this is the opinion section of a general-interest newspaper. Shouldn’t you expect to find provocative, even threatening ideas? And shouldn’t other readers be able to see this column without a cautionary note that it might do them harm?

She goes on to explain

Something similar is happening on college campuses, where reasonable concern for students who may have suffered terrible traumas has morphed into a serious threat to intellectual freedom. Increasingly, students are expecting “trigger warnings’’ to be issued before they are asked to read certain texts or view course material that may be troubling. It can be something as raw as a graphic rape scene or a bloody wartime battle, or more conceptual, such as themes of racism or oppression. At some schools, students want to be allowed to skip a class or reading if they fear it will trigger a stressful reaction.

The criteria for the warnings are varied and ill-defined. At Rutgers University, Virginia Woolf’s novel “Mrs. Dalloway” was targeted for a warning because it contains thoughts of suicide. At Oberlin College, students requested one for Chinua Achebe’s “Things Fall Apart” — a hardy perennial on freshman reading lists — because of its treatment of colonialism. Trigger warnings have been proposed for “The Great Gatsby” and “The Merchant of Venice” because they depict violence, misogyny, or racial slurs.

Warning label

Excuse me if I thought that great writing was supposed to be thought-provoking and maybe disturbing.  In her column on the subject in today’s Washington Post, Kathleen Parker discusses a potential answer.

Without making light of anyone’s ethnicity, race or trauma, especially rape or stress disorder suffered by veterans (another specific group of concern), such precautions are misplaced in an institution of higher learning where one is expected to be intellectually challenged and where one’s psychological challenges are expected to be managed elsewhere.

There are, besides, other ways to inform oneself about a course or literary assignment that might be problematic for whatever reason. Then again, if reading “The Great Gatsby” causes one undue angst owing to its abuse, classism, sexism and whatever-ism, then one might consider that college is not the right place at the right time.

Moreover, part of literary criticism is understanding the historical context of a given work. Thus, when the egregiously offensive N-word appears in the “Adventures of Huckleberry Finn,” is it too much to ask that readers reflect upon the word’s usage when Mark Twain wrote the book?

Within that understanding is a world of learning, from the history of race to the evolution of language. Instead, we are enslaved to “responsible pedagogical practice,” as one sympathetic faculty member put it. Thus, a draft guide at Oberlin College suggests flagging anything that could “disrupt a student’s learning” or “cause trauma”:

“Be aware of racism, classism, sexism, heterosexism, cissexism [transgender discrimination], ableism and other issues of privilege and oppression. Realize that all forms of violence are traumatic, and that your students have lives before and outside your classroom, experiences you may not expect or understand.”

I once co-taught a class on women and war.  We read some disturbing stuff, especially for some class members who were veterans or who had active duty spouses.  But we didn’t have an y”trigger” warnings on what we assigned to read.  What we did was talk.  One can learn from someone else’s experience.  Besides if there are all these warning labels, maybe someone won’t read the book and find out it really isn’t so bad after all.  And where does it end?  Do we not read about the civil rights movement in Mississippi because the murder of three civil rights workers might be disturbing?  Should be miss reading “The Color Purple” because it might be a trigger for someone?  Is talk of the plague in the Middle Ages also a trigger for someone’s trauma?  Parker is right:  the proper response is discussion.

Loth ends her column this way

Trigger warnings aren’t new; they are common on the Internet, where they alert readers to a range of potentially upsetting material from common profanity and insensitive jokes to depictions of drug abuse, eating disorders, even spiders. But they are especially worrisome on college campuses, where exposure to a free exchange of ideas is paramount. “When a student opts for a liberal arts education, they have opted to jump into the cauldron of life,” said attorney Harvey Silverglate, a fierce advocate for freedom of thought on campus. “You should expect to be occasionally very disturbed. That is actually part of the education.”

Much of the focus on content warnings grows out of a concern for marginalized groups, whether minorities, the disabled, or anyone not in the “dominant culture.” Feminist studies in particular have promoted them as a way to make women feel safer in a sometimes hostile campus environment, which can and does include sexual assault. But there are as many potential triggers as there are students. It’s a practical impossibility to protect against all of them.

Nor should we try. Nancy Gertner, a former federal judge and professor at Harvard Law School, says students have asked her to disclose whether an exam in her criminal law course would contain any triggers for rape victims. She has refused. “I have a feminist objection to the notion that women need to be inoculated against certain issues,” she said. “Women need to engage, to come to grips with these issues.” The university should prepare students for the rest of life. “There are no more trigger warnings the minute they graduate,” she said.

Let’s hope that this trend has a very short life.

Picture:  istockphoto/globe staff illustration

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The politics of macho

In 1992 when he was running for President in a tight Democratic primary race, Bill Clinton rushed back to Arkansas where he was governor to preside over the execution of Ricky Ray Rector.  According to a New York Times article at the time

Mr. Rector, 40 years old, was convicted in November 1982 and sentenced to die for the 1981 shooting death of Police Officer Bob Martin in Conway, Ark. He was also convicted of another murder that occurred two days earlier….

After shooting Officer Martin, Mr. Rector turned the gun on himself, destroying part of his brain. His lawyers said that even though he could speak, his mental capacities were so impaired that he did not know what death is or understand that the people he shot are not still alive.

“He is, in the vernacular, a zombie,” said Jeff Rosenzweig, a lawyer for Mr. Rector before the execution. “His execution would be remembered as a disgrace to the state.”

Mr. Rosenzweig said Mr. Clinton was harshly criticized as being soft on crime in 1980, when he was defeated by Frank White, his Republican opponent, in his first re-election bid. Mr. Clinton defeated Mr. White two years later and has been re-elected three more times.

Bill Clinton needed to show that a Democrat could be just as tough on crime as any Republican.

Oklahoma Governor Mary Fallin

Oklahoma Governor Mary Fallin

Twenty-two years later we have Oklahoma governor, Mary Fallin, threatening to defy the Oklahoma Supreme Court while her allies in the legislature start to impeach justices.  Why?  Because they wanted to proceed with two executions.

States like Oklahoma have tried to protect drug companies by passing laws prohibiting the disclosure of what’s in their lethal injections. But attorneys have argued that state secrecy about what’s in those lethal injections violates the ban on “cruel and unusual punishment,” and some courts have agreed, including a court in Oklahoma that blocked Lockett’s execution. When the state Supreme Court backed the lower court, Fallin said she would defy it, insisting the court only had authority over civil, not criminal matters. Then the court shamefully reversed itself, after a state legislator promised to impeach the justices for staying the executions. Fallin forged ahead with the killing of Lockett and Charles Warner.

Now she is investigating what happened.  I think we know already.  Mary Fallin was so anxious to prove her toughness that she abandoned all good sense and tried to execute Clayton Lockett.  We all know how that worked out.

Then there is the critique of President Obama’s foreign policy from those who seek more military intervention in places like Ukraine and Syria.  The President has his own ideas as reported in the New York Times

On a day in which he announced new sanctions against Russia for its continued threats to Ukraine, Mr. Obama said his foreign policy was based on a workmanlike tending to American priorities that might lack the high drama of a wartime presidency but also avoided ruinous mistakes.

“You hit singles, you hit doubles; every once in a while we may be able to hit a home run,” Mr. Obama said at a news conference with Mr. Aquino. “But we steadily advance the interests of the American people and our partnership with folks around the world.”

He was mocked in some circles with it being characterized as the “Ichiro” foreign policy after Ichiro Suzuki, the former Seattle Mariner and now New York Yankee who has made a very successful career out of hitting singles.  It shows that one doesn’t always have to hit home runs; home run hitters tend to strike out a lot.

Mr. Obama offered this trip as Exhibit A for the virtues of an incremental approach: He nudged along trade negotiations with Japan, consoled a bereaved ally in South Korea, cultivated ties with a once-hostile Malaysia and signed a modest defense agreement with the Philippines.

…

“Why is it that everybody is so eager to use military force,” Mr. Obama said, “after we’ve just gone through a decade of war at enormous cost to our troops and to our budget. And what is it exactly that these critics think would have been accomplished?”

I was hoping that the era of macho politics was fading, but now, it seems that women governors need prove themselves just a tough as a man.  No one is saying that Clayton Lockett is a wonderful man who doesn’t deserve punishment, but perhaps Mary Fallin should take a page out of the President’s book and slow down.  Mr. Lockett wasn’t going anywhere and neither are the other inmates on Oklahoma’s death row.

Photograph: AP/Cliff Owen

 

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Death of an angry, unhappy man

I know that many were happy with the news of Fred Phelps’ death but when I first heard, I wasn’t quite sure how I felt.  On one hand, a man who protested at the funerals of men and women who died in combat would no longer be able to do so.  On the other, one could feel sorry for a man who could never get over his anger.  He was once a noted civil rights lawyer in Kansas  and won an award from the local NAACP, but even back then there were signs he was troubled.  The obituary in the New York Times notes

He earned a law degree in 1964 from Washburn University School of Law in Topeka, but his legal career was troubled from the start. According to the Southern Poverty Law Center, which describes Westboro Baptist as “arguably the most obnoxious and rabid hate group in America,” Mr. Phelps struggled to find people to attest to his good character when he wanted to be admitted to the bar, was temporarily suspended for professional misconduct, and was even sued for failing to pay for candy his children sold door to door.

He succeeded in winning settlements in discrimination cases he filed as a civil rights lawyer.

“Most blacks — that’s who they went to,” the Rev. Ben Scott, president of the N.A.A.C.P.’s Topeka branch, said in an interview with CNN in 2010. “I don’t know if he was cheaper or if he had that stick-to-it-ness, but Fred didn’t lose many back then.”

Mr. Phelps, with his wife, Margie M. Phelps, left, and daughter Margie J. Phelps, at a demonstration in Baltimore in 2007.

Mr. Phelps, with his wife, Margie M. Phelps, left, and daughter Margie J. Phelps, at a demonstration in Baltimore in 2007.

Phelps was disbarred in 1979.  While he has said that his anti gay crusade began because a grandson was propositioned he showed a predilection for child abuse.  Amy Davidson writes in the New Yorker piece titled “The Two Freds” about Fred Rogers and Fred Phelps

One unpleasant thing about Fred Phelps was the way in which he and his church members brought children to their protests and had them hold placards like the ones that Roberts quoted, and repeat slogans slurring gay people and praising divine killings. They tended to be Phelps’s own children or grandchildren—how else would you find an eight-year-old to damn Mr. Rogers?—and the bulk of his parishioners were his relatives. The obituaries refer to complicated loyalties and estrangements, but then, those of some very good people do, too. But one can see, in the hanging of hateful signs on children, the very opposite of Fred Rogers’s life’s project, which was to treat young people both morally and as serious moral actors. Mr. Rogers spoke of the intense drama of one’s earliest years, Supreme Court cases or no, and the way that friendship, above all, was orienting. Of the two Freds, he’s the one who endures. Phelps, and all his vitriol, will spin away.

Phelps and his congregation at Westboro Baptist Church (composed primarily, if not entirely of family) demonstrated everywhere.  They spread Phelps angry message at thousands of funerals of the well known and of ordinary people as well as at many events.  Phelps represented an angry God.  The New York Time obituary again

In 1998, he explained his view of a wrathful God in an interview with The Houston Chronicle.

“You can’t believe the Bible without believing that God hates people,” he said. “It’s pure nonsense to say that God loves the sinner but hates the sin. He hates the sin, and he hates the sinner. He sends them to hell. Do you think he loves the people in hell?”

So in the end, I feel sorry for a man filled with so much hate and anger.  I hope he can find peace in another life.

Photograph:  Jed Kirschbaum/Baltimore Sun, via Associated Press

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American defectors: life for Edward Snowden in Russia

Now that Edward Snowden has been granted temporary asylum in Russia (I suspect they mostly just wanted him gone from the airport.), it is not so certain he will have an easy life.  No matter how terrible you think surveillance is in the United States, I can guarantee that it is worse there.  And he likely has nothing more to trade to get better treatment.  NPR ran this story a few days ago.

If NSA leaker Edward Snowden is allowed to leave the Moscow airport and enter Russia, as some news reports suggest, he’ll join a fairly small group of Americans who have sought refuge there.

So how did it work out for the others?

In short, not so well. Some became disillusioned and left, like Lee Harvey Oswald. Others were sent to Josef Stalin’s gulags, where they served long sentences or were executed. Some lived out their days in an alcoholic haze.

“There’s little evidence from historical records that [Snowden] has anything good to look forward to,” says Peter Savodnik, a journalist and author of the upcoming book, The Interloper: Lee Harvey Oswald Inside the Soviet Union. “Essentially, nobody from the U.S. who has defected to Russia has gone on to think that’s a smart decision.”

In the 1920s and ’30s, hundreds of American leftists moved to what was then the Soviet Union, motivated by a desire to build socialism.

Alexander Gelver of Oshkosh, Wis., was taken there by his parents. But when the 24-year-old wanted to return to the U.S., he was stopped by Soviet police outside the U.S. Embassy in Moscow. He was arrested and disappeared. Only in the 1990s did his fate become clear: He was executed in 1938, one of Stalin’s many victims.

The Associated Press documented the case of Gelver and 14 other Americans who disappeared in the Soviet Union in the 1930s and ’40s. All were either imprisoned or executed. Dozens, perhaps hundreds of other Americans, met a similar fate during the rule of Stalin, who suspected that foreigners were spies.

A famous case in the Cold War era has parallels to Snowden. William Martin and Bernon Mitchell, cryptologists at the NSA, defected in 1960. But they came to regret their decision and became alcoholics. Martin died in Mexico in 1987. Mitchell died in Russia in 2001.

One defector who did return was Oswald. He left for the Soviet Union in 1959, returned to the U.S. three years later, and became infamous as the assassin of President Kennedy in 1963.

Edward Snowden, the NSA leaker seen here in a photo taken in July, has been granted temporary asylum in Russia. Thursday, he left Moscow's airport for the first time in more than a month.

Let’s hope that Snowden has better luck.  It will be tough not knowing many people and not speaking Russian.  Personally, I don’t think he made a good choice or got good advice.  I have never understood why he couldn’t go directly from Hong Kong to South American someplace.

Photograph:  Tatyana Lokshina/AP

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Fixing FISA

Congress is beginning to have a debate about surveillance, oversight and secrecy – the one good thing to come out of  Edward Snowden’s continuing adventure.  Of course, it is hard to debate when you can’t talk about a lot of things in public or even to your fellow members, so I was very interesting in reading Judge James G. Carr’s op-ed in yesterday’s New York Times.  His suggestion is one that Congress and the Obama Administration should be able to debate and legislate without revealing anything that needs to be kept secret.  Judge Carr is identified as a senior federal judge for the Northern District of Ohio,[who] served on the Foreign Intelligence Surveillance Court from 2002 to 2008.

CONGRESS created the Foreign Intelligence Surveillance Court in 1978 as a check on executive authority. Recent disclosures about vast data-gathering by the government have raised concerns about the legitimacy of the court’s actions. Congress can take a simple step to restore confidence in the court’s impartiality and integrity: authorizing its judges to appoint lawyers to serve the public interest when novel legal issues come before it.

The court is designed to protect individual liberties as the government protects us from foreign dangers. In 1972, the Supreme Court ruled that the Nixon administration had violated the Fourth Amendment by conducting warrantless surveillance on a radical domestic group, the White Panthers, who were suspected of bombing a C.I.A. recruiting office in Ann Arbor, Mich. In 1975 and 1976, the Church Committee, a Senate panel, produced a series of reports about foreign and domestic intelligence operations, including surveillance by the F.B.I. of suspected communists, radicals and other activists — including, notoriously, the Rev. Dr. Martin Luther King Jr.

The Foreign Intelligence Service Act set up the FISA Court in response. To obtain authority to intercept the phone and electronic communications of American citizens and permanent residents, the government must only show probable cause that the target has a connection to a foreign government or entity or a foreign terrorist group. It does not have to show, as with an ordinary search warrant, probable cause that the target is suspected of a crime.

The problem is that the court only hears from one side.  I wrote recently that the real danger to our civil liberties is the FISA Court and I hoped that people will come up with ways to try to fix it.  Judge Carr has one suggestion at which Congress should take a serious look.

Critics note that the court has approved almost all of the government’s surveillance requests. Some say the court is virtually creating a secret new body of law governing privacy, secrecy and surveillance. Others have called for declassified summaries of all of the court’s secret rulings.

James Robertson, a retired federal judge who served with me on the FISA court, recently called for greater transparency of the court’s proceedings. He has proposed the naming of an advocate, with high-level security clearance, to argue against the government’s filings. He suggested that the Privacy and Civil Liberties Oversight Board, which oversees surveillance activities, could also provide a check. I would go even further.

In an ordinary criminal case, the adversarial process assures legal representation of the defendant. Clearly, in top-secret cases involving potential surveillance targets, a lawyer cannot, in the conventional sense, represent the target.

Congress could, however, authorize the FISA judges to appoint, from time to time, independent lawyers with security clearances to serve “pro bono publico” — for the public’s good — to challenge the government when an application for a FISA order raises new legal issues.

…

Having lawyers challenge novel legal assertions in these secret proceedings would result in better judicial outcomes. Even if the government got its way all or most of the time, the court would have more fully developed its reasons for letting it do so. Of equal importance, the appointed lawyer could appeal a decision in the government’s favor to the Foreign Intelligence Surveillance Court of Review — and then to the Supreme Court. No opportunity for such review exists today, because only the government can appeal a FISA court ruling.

A combination of a people’s advocate and public release of decision summaries would remove some of the mystery and secrecy.

One obvious objection: judges considering whether to issue an ordinary search warrant hear only from the government. Why should this not be the same when the government goes to the Foreign Intelligence Surveillance Court?

My answer: the court is unique among judicial institutions in balancing the right to privacy against the president’s duty to protect the public, and it encounters issues of statutory and constitutional interpretation that no other court does or can.

For an ordinary search warrant, the judge has a large and well-developed body of precedent. When a warrant has been issued and executed, the subject knows immediately. If indicted, he can challenge the warrant. He can also move to have property returned or sue for damages. These protections are not afforded to FISA surveillance targets. Even where a target is indicted, laws like the Classified Information Procedures Act almost always preclude the target from learning about the order or challenging the evidence. This situation puts basic constitutional protections at risk and creates doubts about the legitimacy of the court’s work and the independence and integrity of its judges. To avert these dangers, Congress should amend FISA to give the court’s judges the discretion to appoint lawyers to serve not just the interests of the target and the public — but those of the court as well.

079 Capitol Hill United States Congress 1993

079 Capitol Hill United States Congress 1993 (Photo credit: David Holt London)

We are already deep in uncharted waters and we need to take steps to try to protect ourselves.  It serves no purpose if we lose our civil liberties while protecting them.  I don’t have a great deal of hope that Congress can actually get itself together enough to act, but there has been some glimmer of bipartisanship about this issue.  Let us hope someone writes Judge Carr’s ideas into a bill so it can be introduced.

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