Hazing is Not Coaching

George Najjar got a place in the New Jersey Football Coaches Hall of Fame last summer. He's won a lot of football games for at least two different public high schools. He is a terrible coach.

Sayreville defensive coordinator George Garcia is a loser, who somehow thought that supplying steroids to children was a good idea.

How can I say that, without ever having met him or seen one of his teams play? Because anyone whose teams are capable of sexually assaulting their members is a terrible coach. Hazing and bullying is not coaching. It's just violence. And if this guy's players thought it was OK to commit such violence against the younger, weaker kids in the program, then Najjar failed miserably at his job.

Najjar is a disgrace, and the fact that even one of his players' parents can stand up for him reflects a sad misunderstanding of what it means to teach or coach. Just as with the Horace Mann sexual abuse scandal, this event was precipitated in part by a bizarre belief among some weak-minded, immoral adults that bullying their kids was a coaching style.

It's not a method or a style, it's a failing. Let's get that straight.

Obama and Holder Get Weird

We're accustomed now to stories coming from China about government suppression of information. No one is surprised to hear that North Korea has arrested someone for speaking truth about what goes on over there. Totaltarian governments fear information because they hate to be embarrassed. Their legitimacy is so tenuous that any inkling of trouble could cause huge trouble down the line.

In the United States, however, we are supposed to trust that information will flow relatively freely. Sure, we'll hear about national security trumping clarity at times, but the 1st Amendment limits that kind of thing.

That's why the Attorney General's argument that a defamation lawsuit against a wholly private company is so bizarre. There really are only two options here, neither one of which is especially attractive. Either the company in question is in fact a front for a cover operation -- in which case the cover is blown just by the government's position -- or it is not -- in which case the Obama Administration has lost its bearings.

According to the New York Times, Holder's argument is classic double speak:

In this case, however, the Justice Department said that “the concerned federal agency, the particular information at issue and the bases for the assertion of the state-secrets privilege cannot be disclosed” without jeopardizing national security.

Why can't we sue? "Secret." Why is the information secret? "Secret." 

That's it.

But that cannot be it. Not here. Not ever.

Why the American Government is failing

The United States faces a number of challenges demanding government action. These problems are not unprecedented, but they are serious. ISIS looks a lot like Hitler to me; Ferguson looks a lot like Selma; the economy looks like has for most of US history outside the 30 years following World War II. Real people may suffer if we manage to ignore some or all of these things.

Yet the current federal government appears unable to respond in any meaningful way. Executive action is stymied by Congress and the courts not out of principle but out of dysfunction. It's not that Congress disagrees with any particular action, it disdains all action. It's not that the Supreme Court guards against abuse of power, it stands in the way of the narrow agenda of five people. President Obama, like President Bush, has not found a way to rally the necessary popular or political support to overcome these obstacles.

Francis Fukuyama, writing in Foreign Affairs makes a compelling case for the view that these failures are systemic and pervasive. The constitutional system designed 250 years ago may work in a general sense, but the way we are applying it right now will stymie or efforts at progress.

Francis Fukuyama
http://governanceproject.stanford.edu/people/fukuyama/

At bottom, Fukuyama argues that we have sucked all the flexibility out of our system. The combination of entrenched special interests (sugar producers, oil producers, unions) and populist resistance to technocracy has stifled the kind of innovation and dynamism that is supposed to be the hallmark of democratic systems. As Exhibit A he offers the US Forest Service, which used to be run by scientific experts insulated from pork barrel politics and narrow regulation by Congress. For a long time it made decisions -- some of them based on faulty information -- in the interest of the long-term good of the country. But soon the agency was eroded by the decay that Fukuyama says is inherent in any system, and the rational, fleet decision-making process bogged down in competing and even conflicting agendas.

The TEA Party is a the worst symptom of the problem, in my view, but it is not the cause.

As I have been saying for twenty years now, we are in the midst of a paradigm shift. These cause existential crisis because they reflect a change in the fundamental reality on which all our assumptions are based. We may be seeing the last decline of our particular form of liberal democracy.

Then again, we may not. If we as a group, as a society, can muster the energy and innovation necessary to see the change we need -- the kind of thing about which Americans have been most proud in their history, justifiably so -- we can transform rather than dissolve.

Now is the time, though. We need to get going.

Why Leadership Matters -- Ferguson's Struggles Continue

Ferguson, Missouri suffered more than anything from a lack of leadership.

As of this writing, the details surrounding Michael Brown's death remain murky, and I am not willing to reach a judgment about Brown or Officer Darren Wilson until we know more.

In the aftermath, however, the St. Louis County and Ferguson police utterly failed in their responsibilities to provide safety for the people living there, including the protesters. Considering how much circumstances improved once Ferguson Police Chief Thomas Jackson got out of the way and Missouri State Police Captain Ron Johnson took over, it is clear that much of the violence could have avoided with better decision-making from the outset.

It also seems clear, however, that the protesters lack leadership. The looting and other crime growing after a curfew was imposed over the weekend indicates that the community of Ferguson could use someone to pull it together and impose some standards. In similar circumstances, Martin Luther King (especially in Montgomery in 1955) and Malcolm X (especially in Harlem in 1964) gave people a focus and a purpose that prevented worsening violence. In Harlem, Malcolm prevented a complete loss of control, even though there were riots. In Montgomery, King helped avoid any violence at all.

What "the people" do matters. But individual leadership also makes a difference, and we need serious and committed leadership in times of crisis.

Are the Police in St. Louis Upholding the Law?

When a police officer in Ferguson, Missouri shot Michael Brown, he unwittingly unleashed a torrent of fury in the black community there. Brown was 18 years old and unarmed, and the because the police department divulged very little information about how the shooting occurred, except to say that Brown tried to grab the officer's weapon, his death remains one of those inexplicable cases in which a white cop has killed a black kid.

To compound the problem, the police have refused to release the name of the officer involved. So many death threats have been leveled against him that it's easy to see why the department would seek to shield him, but it reinforces the image of the police getting protection that Brown and others like him do not get.

It's also difficult to understand the highly militarized response of the police to protests. Images coming from the scene do not reinforce the idea that the police stand for law and order, but that they stand for violence and power. It is, of course, their job to prevent serious disruption of the city, but these are not the pictures anyone wants to see. High pressure hoses, noise cannons, tear gas and anti-riot tanks are the tools of dictators, and their use here does not serve the city of St. Louis or the people who live there.

St. Louis Post-Dispatch

When Fox News commentators condemn the police and defend protesters, you know something has gone over the top. 

Reporters from the Washington Post and The Huffington Post say they were arrested and then released without explanation. A St. Louis alderman was arrested and says he was dragged from his car. These things reflect a lack of discipline and training on the part of the police there, and do nothing to dispel the notion that Brown was probably killed without real justification.

Today's Adolph Hitler

As the self-styled Islamic State of Iraq and Syria pushes its offensive further south through Kurdish Iraq, it makes clearer its fundamental nature. It is not a religious movement, nor even a political movement fueled by religious values. Instead, it is a totalitarian movement reminiscent more of Adolph Hitler than Osama bin Laden. Its leader, Abu Musab al-Zarqawi is an armed thug with very little religious intent. His goal is total control over a population, and he is willing to use fabricated Islamic law to get what he wants. 

Abu Musab al-Zarqawi: more Hitler than bin Laden
from Wikipedia

As Scott Stewart wrote for the website Stratfor, the Islamic State has managed to build itself into a formidable fighting organization, but it has forsaken any practical efforts to govern or gain popular support.

Stewart writes that 

So far, the Islamic State has been able to claim its battlefield successes as proof of Allah's blessing. However, it has not yet received the global recognition and acceptance it hoped its declaration of a caliphate would produce. The number of jihadist groups swearing allegiance to the Islamic State has remained quite limited to date.

Zarqawi rapes and enslaves women, executes Shi'ites and Yazidis, destroys infrastructure and rejects any suggestion that its actions might be destructive. Zarqawi is a bully in the largest sense, just as Hitler was, using his willingness to be audaciously atrocious as his favorite tool. Fear is his most effective weapon, and he preys on the ignorance of his own people to convince them that he stands for something bigger than his own power.

President Obama's decision to bomb ISIS positions over the weekend was a start, and while I sympathize with his desire to exercise restraint, this really is the first Munich since 1938. This group needs to be stopped.

A Real Lawsuit and ... No

Since Congress prefers not to do its own job -- which consists of passing legislation designed to help govern the country -- it has decided to pursue a silly and frivolous lawsuit against President Obama for attempting to do his. This act is nothing more than inconsequential political theater, contrived because the Republican House already tried impeachment twenty years ago and it did not go well. Attacking Obamacare like this is dumb.

Another suit actually conforms to the rules for "cases in law and equity" designed by the Constitution. I don't agree with the plaintiffs, because I can't see why Obamacare is the abhorrent infringement on liberty they do. At least it's not stupid.

The Affordable Care Act is not Big Government, it's not an intrusion into anyone's life, but it is a big deal, and the courts may be one necessary venue for working it out. I do grow a little tired of the steady drum beat, though.

Clueless and "Conservative"

Before you fling epithets around, at least know what they mean.

Most of the disgusted comments following Kevin E. Lake's flimsy, ill-informed "expose" of the Wounded Warrior Project suggest that somehow "liberals" are to blame for the problem Lake purports to reveal. Why? No one seems to know, including the people doing the lamenting.

http://tipofthespearventures.com/wounded-warrior-project/

Lake's complaint is that the WWP is corrupt --as all charities are, in his view -- largely because they do not spend enough of their money on the wounded soldiers themselves but also because of some vague problem with non-disclosure agreements that I can't follow. He provides no numbers and no names for the anecdotes he uses for evidence. Nor does he offer a standard for what makes for legitimate charity work, perhaps because, in his view, we should all emulate him and just walk around handing money to veterans we know on an individual basis.

By most independent assessments, the WWP is pretty good, if not great, in its use of the money it receives. Every charity has to use some of its money for administrative costs and fundraising, and this one seems to balance these interests reasonably.

My issue, though, is with the bizarre discourse around Lake's weird little piece. 

Conservatives' biggest complaint is with excessive expenditure and empowerment in the federal government. They claim not to be heartless or greedy or self-centered, but to believe that freedom and self-sacrifice and community are best served in the private sector. These are not unreasonable positions to hold, and they are almost certainly correct in many instances.

Conservatives also tend to holler that liberals don't respect soldiers or the military.

OK, so the Wounded Warriors Project ought to be a conservative fan fave. And that's even if the CEO is paid millions of dollars to do his job. If the conservative point of view is correct, then the CEO deserves to be paid a lot of money for the service he provides in aggregating the donations of millions of people and distributing them to soldiers wounded or impaired by war. Government is nowhere to be found here, in part because the organization is not taxed, as a non-profit.

If the WWP is poorly run -- and there is no evidence in Lake's rant that it is -- then that has nothing to do with liberalism or conservativism. Nothing. 

Those who want to attack liberals, Democrats and Obama may have good reason, but they make themselves look like idiots when they fling around words without paying attention to what they mean, and thereby undermine the legitimate, serious dialogue we ought to be having.

NBC Should Dump Dungy -- He's a Distraction

Tony Dungy earned his fame as a football coach first, but since he retired from that job he has been treated as some kind of ethical guru by the meatheads at ESPN and the NFL Network. Dungy stood up for Michael Vick after Vick was convicted of running a dog fighting ring in which animals were brutally, viciously killed, and represented the early wave of black head coaches who had been denied equal treatment because of baseless assumptions about the connection between their ability and their color.

Now Dungy says that he would not have drafted Michael Sam, the SEC Defensive Player of the Year, because Sam came as gay before the draft and therefore would be "a distraction." To clear things up, Dungy said it was not Sam's homosexuality itself that would be a problem, but the "media attention" it would get.

Michael Sam 

(Francis Page Jr./Creative Commons) at http://www.neontommy.com/news/2014/02/why-do-you-care-if-michael-sam-gay

Media attention? 

The only reason the NFL exists is to get media attention. Tony Dungy's sole remaining employment relating to football is as a commentator on NBC. The NFL is, itself, nothing but a giant, expensive distraction. Every day is a "media circus" because the NFL makes all its money from television coverage.

If Dungy wants to avoid distractions, tell him to quit his job.

Putin, Law, and Truth

Vladimir Putin built his brutal Russian regime on lies. Like all dictators, Putin prefers to be see as a legitimate ruler, governing in the name of his subjects. Since that story cannot withstand even the briefest scrutiny, he must fabricate some information and obscure the rest. Control of all media outlets therefore lies at the heart of his power, because Russians must only receive news he selects or they would very quickly become angry and unmanageable.

The rest of the world is not under his thumb, however, and neither is empirical reality. This fundamental truth always proves to be the death of dictatorship and totalitarianism in the end. In the case of Malaysian Airlines Flight MH 17, Putin wants to maintain the fiction that he and his minions bear no responsibility for the deaths of hundreds of civilians flying 30,000 feet over the Ukrainian war zone, that any suggestion that they are at fault comes from a worldwide conspiracy to weaken Russia, and that the cause of truth and justice depends on Russia and its supporters. By many indications, Russian citizens, consuming Putin's own version of events, buy this narrative and continue to support Putin. But European and American citizens and their governments have access to the truth, and so demand that Putin behave more like a decent human being.

As a result, Putin is in trouble. As Stratfor analyst George Friedman writes, since the airplane was shot down "Putin then moves from being an effective, sophisticated ruler who ruthlessly uses power to being a dangerous incompetent supporting a hopeless insurrection with wholly inappropriate weapons. And the West, no matter how opposed some countries might be to a split with Putin, must come to grips with how effective and rational he really is." At some point, the real world intrudes on even the most tightly controlled places, and it has come rushing into Moscow in the last few days. we can only hope that it forces serious change in Russia relatively quickly.

If Roberts' Approach is "Incremental" Maybe He is Real Judicial Conservative

Complaints outlined here, in a New York Times piece, suggest that "conservatives" on the Supreme Court want to overrule more precedents. The way the comments are accumulated overstates the trend a little, I think, but still, the remarks from Justices Alito, Scalia and Thomas indicate the distinction between true judicial conservatives and social conservatives.

Social conservatives want to avoid change in gender roles (by preventing abortions), race relations (by voiding affirmative action programs), and economic policy (by striking anything smelling of redistribution of wealth). They like the way things "back in the day."

Judicial conservatives want to avoid jarring the legal and constitutional framework under which we have been operating for some time. They avoid overturning previous rulings or substituting new priorities for older ones by allowing precedents to stand, even if they are controversial -- Roe v. Wade is the classic example.

I'm not crazy about Roberts's politics, but I dod appreciate that he is alt least somewhat hesitant to do what Scalia prefers, which is just make things the way he wants them.

The "Islamic State" is Neither

At the core of Muhammad's life was the quest for an all-in-one society, in which politics, religion, art, and economics all flow from one, central authority derived from the word of God. It is not anti-Muslim or anti-Islamic to say that Muhammad did not seek freedom of religion or pluralism; he believed he had found the answer, and he wanted to apply it.

For the "hyper-violent" adherents of the group called the Islamic State to call for such a thing, then, is deeply rooted in the traditions and philosophy of Islamic culture. Muhammad did the same, and he fought more than one serious, literal battle to achieve its creation. That he succeeded in doing so is one of the things that sets Islam apart from other world religions, and it infuses the faithful with a distinct, though not unique political mindset (one not at all different from that of most Israelis.)

But what would the government of such a group look like? For one, it would erase or diminish the lines drawn more-or-less arbitrarily by the Sykes-Picot Agreement of the early years of the last century. It would be exclusively Sunni, as Iran is fully aware, and authoritarian at least. It would not be open to diversity, and it would not be an especially willing partner with the United States in maintaining Western interests.

So far, IS has spent all its time rebelling against the status quo, and so has not established anything like a state as yet. It governs nothing, eve as it expands the reach of its military domination and intimidation. Most commentators assume that it will be takfiri and brutal. Al Qaeda itself has disavowed many of its methods as too nasty, and while that group has ulterior motives for such remarks, it's still saying a lot that Zawahiri flinches at their violence.

http://www.eiilir.eu/

If these rebels act anything like takfiris elsewhere, they are not leading in the tradition of Islam. Muslim tradition allows excommunications and attacks on apostates, but Muhammad was a statesman as well as a profit, and he impose strict rules of evidence and procedure on such practices. Here is the Q'uran itself:

O you who believe! When you go (to fight) in the Cause of God, verify (the truth), and say not to anyone who greets you (by embracing Islam): "You are not a believer"; seeking the perishable goods of the worldly life. There are much more profits and booties with God. Even as he is now, so were you yourselves before till God conferred on you His Favours (i.e. guided you to Islam), therefore, be cautious in discrimination. God is Ever Well-Acquainted with what you do. (4:94)

That is, one can not simply wander around the desert killing people on his own initiative, as these people have done. Until they prove themselves to be true Muslims, then, they will gain no legitimacy, and no statehood.

On the Purpose of Rules

I am not a huge fan of instant replay in professional sports. There certainly are some instances in which it is helpful and right: the infamous case of Jim Joyce's missed call at first base to break up a perfect game comes to mind, for example.

Joyce was looking right at the play before he called the runner safe, negating the 27th out of a perfect game (nydailynews.com)

Most of the time, though, the calls that people want to check (and by "people," I mostly mean TV and radio commentators) don't really need to be checked.

Here's what I mean by "need." The point of the out/safe rule, for example, is that runners need to get to the base before the defense tags them or the base they are forced to go to.* This is the fundamental principle of the game, and so needs to be enforced as exactly as possible. But he question of ties is really interesting. The rule book says, in the case of a batter-runner going to first base, that the throw must be there before the runner, suggesting that ties go to the runner. In all other force plays, the rule reads that the runner must beat the throw, suggesting the opposite. This ambiguity is germane because it indicates that the rules-makers had a general idea in mind. Not only that, but it is a reflection of the fact that plays as close as a "tie" will be judged more-or-less arbitrarily, and such is life. The game moves on.

The same idea applies to the strike zone. The purpose of the strike zone is to make the game fair and to keep it moving along. Batters can't just stand there forever waiting for the perfect pitch to hit, and pitchers can't throw things just anywhere. This rule was put in place after the first iteration of the game had batters requesting certain locations for pitches, thereby eliminating the pitcher/batter conflict that is so central to the game's excitement.  To some extent, the strike zone is a matter of interpretation by the umpire, even at the major league level. What exactly is the "midpoint" of a batter's body as he is moving and shifting to hit the ball? There are limits beyond which a fair strike zone can't move, but to think that it is precisely measurable within an inch or so is a bit silly.

Note that the top of the strike zone is not "at the letters," though the practical effect is almost that high. Note also that the bottom is not "at the knee." (http://en.wikipedia.org/wiki/Strike_zone)

At lower levels of the game, this type of interpretation is even more important. Baseball is not fun to play or watch when no one swings the bat and every at-bat takes five pitches resulting in a walk. For the game to work, people must swing. One job of the umpire, therefore, is balance fairness with the good of the game. Call too big a strike zone and hitters have no real chance; call too few strikes and the game comes to a halt. 

All the griping about umps and strikes, then, needs to be based o these principles, not the fantasy that there should be the perfect zone.

The Fundamental and Dangerous Problem with the Hobby Lobby Decision

A disingenuous claim, at best (www.rightspeak.net)

I have two problems with the recent ruling in Hobby Lobby v. Sebelius. One, as I have already tried to make clear, has to do with the intellectual inconsistency of a few justices, led by Antonin Scalia. When justices are inconsistent or dishonest about their reasoning it undermines the political discourse in this country and leads us further away from effective self-governance.

The real danger of the opinion, however, lies in its subversion of the very foundation of democratic government: the acceptance that sometimes you don't get your way. Claiming a 1st Amendment exemption from health care laws is disingenuous. Denial of health care coverage for birth control is not a religious practice, and it does not even stem from a serious religious belief. Rather, it's an expression of a political preference, and the owners of the big box hobby store are bitter that their side lost the political debate.

If representative government is going to work, everyone needs to accept the fact that he cannot always have things his way. Our Bill of Rights was not constructed to guarantee that we never lose a debate. To water down fundamental rights -- or, rather, to use the word "right" inappropriately -- is to weaken the whole scheme and threaten our ability to function as a political society.

On the Slippery Slope

The majority in the Supreme Court's decision in Hobby Lobby v. Sebelius assured us that its ruling was very narrow, and would not exempt for-profit corporations from anti-discrimination laws, for example, on religious grounds.

But within days, it issued another order that called those reassurances into question, and non-profit organizations have read the decision as exempting them from a whole host of regulations.

Is this was a "conservative" court does?

Who We are Now: The United States and Counterinsurgency

In 2009, the US Army, motivated by the disastrous occupation of Iraq in 203, published its Field Manual in Tactics in Counterinsurgency. The problem, as the authors saw it, was that Army commanders did not know what do to once they had occupied a country using traditional military strategy and tactics. The manual describes how commanders should aid in the reconstruction of a society and a polity destroyed by the invasion.

The first basic assumption of the manual -- an idea ignored or abandoned by the doctrine of Rumsfeld's military in 2003 -- is that an American invasion will create animosity and opposition in at least some segment of the population of the conquered nation (referred to in the manual, somewhat euphemistically as the "Host Nation," or HN). As a result, soldiers will have to combat an insurgency for some time after the invasion is over. The second assumption of the manual is that soldiers are not automatically equipped or trained to work like that; they are trained to kill the enemy efficiently and comprehensively, not govern a chaotic situation.

The first two chapters serve as a remarkable textbook on practical human geography. They describe the physical and social manifestations of a people's values (and make careful distinctions between the values of a society and its interests -- concepts that deserve very further thoughts at all levels of government.)

I say it is "practical human geography" because this is a field manual; its purpose is to instruct soldiers on what to do, on a day-to-day basis, when they are an occupying force in a foreign place. The soldiers need to understand their Host Nation well enough not offend its inhabitants and thereby strengthen the Army's opponents.  They must provide security in its most basic form while also improving infrastructure and the faith in the rule of law.

These are enormously complicated and complex undertakings, and the book emphasizes the need for soldiers to adhere to legal and political restrictions in the conduct of open war. It teaches methods of detainment, search and seizure, interrogation, interaction with NGO's and government agencies. It urges restraint and observation while also describing the best way to establish effective kill zones for an ambush in an urban area.

In other words, the people of the United States, through its military, have become the guarantors of the rule of law in parts of the Middle East. If we did not know that already, we can see it in the rapid disintegration of Iraq once the Army left.

Now is the time to have a careful, reasoned debate about the consequences and implications of this fundamental fact. I wish we were capable of having it.

On the Assassination of Anwar al-Awlaki

In 2011, President Obama ordered the killing of an American citizen living in Iraq. His name was Anwar al-Awlaki, and he was suspected of orchestrating or inspiring at least three terrorist attacks on American soil. Using an unmanned drone, the CIA vaporized al-Awlaki without submitting his case to a court or convicting him of any crime. In other words, Obama carried out an extra-judicial execution -- the kind of thing generally frowned upon under the rule of law (unless you are John Yoo.)

The problems with this sort of thing are obvious. If the president unilaterally can order the death of a US citizen, there is very little he cannot do. Our system of checks and balances, if it was designed to do anything, was intended to prevent this kind of drastic action being taken without any sort of due process. More specifically, there seem to be direct legal prohibitions on this sort of thing, as legal scholar Kevin Jon Heller pointed out even before the killing.

Recently, the Obama Administration released the memo written to the president explaining why this targeted assassination was legal and justified. Essentially, it invokes the 2002 Authorization for the Use of Military Force (AUMF) and asserts that the government could "reasonably conclude" that al-Awlaki was a member of al Qaeda. The facts behind this conclusion are redacted, with the permission of a federal judge who ordered the release of the memo, so we can't know why they think he was a member of the one specific terrorist organization reached by the AUMF.

In other words, the executive gave itself permission to conduct an assassination based on information known only to the executive.

Where is Ted Cruz when you need him? Why is this OK when Obamacare is a crazy overreach?

Once Again, the "Conservatives" of the Supreme Court Go Wild

Samuel Alito likes to call himself a conservative, as does Antonin Scalia. Once again, however, both these men jumped the rails in the majority opinion in Hobby Lobby v. Sebelius. Essentially, they announced that Congress should have chosen a different way to accomplish their goals. The corporation of Hobby Lobby, they said, had First Amendment rights to exercise religious beliefs (a novel interpretation that no true judicial conservative would endorse, even if social conservatives love it), and Congress chose a method of regulating health care that interfered too much with those rights. They did not assert that Congress had no power to legislate as they did, but they did propose an alternative way of going about it they liked better.

I don't like the decision for a number of reasons, not the least of which being that I find the claim that birth control is tantamount to abortion to be absurd. I'm especially annoyed, however, with the hypocrisy of Alito, Scalia and Thomas and the damage it is doing to our system.

Speaking of Scandals

Why is the Republican Party leadership not up in arms about the way Blackwater was managed under the Bush Administration? Forget Benghazi. The White House not only enabled the private firm to behave badly, it deliberately undermined the functioning of legitimate government operations -- like a State Department investigation -- in order to give the group free rein.

Here's the answer: Republicans believe that when government acts, it is wrong, but when private companies act, all is good. (This is not unrelated to the Hobby Lobby decision today -- more on that after I have read the full decision.) Republicans want to contract out functions that ought to be kept within the powers of the government, and that includes military action.

My complaint with that position is that it undermines the accountability that is fundamental to the rule of law. It's dangerous.

What Does it Mean to be an Ally?

The State if Iraq in Syria (ISIS) is a nasty outfit, and if you don't believe me, ask Bashar al-Assad and Ayman al-Zawahiri. Assad has made himself as infamous as his father by defending his right to gas his own people; Zawahiri is the current head of al-Qaeda, an organization not known for its squeamishness in the face of violence. These men have condemned both the methods and the bloody objectives of ISIS, and, along with the government of Iran, has agreed to share intelligence and personnel in the effort to kick ISIS out of Iraq.

All of these people, as well as the state of Israel and the government of the United States, are banding together to defend the map, as it is constructed below. The status quo, with all of its economic and political implications, reflects a secret process of map drawing conducted by French and English diplomats in the first years of the 20th century. That is still exists is a testament to the extraordinary quantities of blood and treasure governments have been willing to expend in its defense.

http://www.oilempire.us/new-map.html

What ISIS wants to do is erase all these lines and consolidate the entire region under one, repressive Islamic state based on its blatant misreading of the Koran and in conflict with most modes of fundamental morality. ISIS is mean and ought to be eradicated.

stratfor.com

On one level, therefore, it is not at all surprising that so many states would get together to eliminate ISIS. These entities have been at war themselves, however, in nasty ways of their own. For Iran and the US to acknowledge publicly that they are sharing information, therefore, is stunning. It goes to show that we may have more in common that is often recognized.

The GOP and X-gate

Ever since Watergate, Republicans have been keen to demonstrate that they are not the only ones guilty of official malfeasance. Although they were unmoved by the obviously illegal behavior of Ronald Reagan and George W. Bush as they traded arms for hostages with a country identified as a state sponsor of terrorism, and as they deliberately violated a law passes by Congress to prevent interactions with a corrupt and violent insurgent group, they have since scrounged up all kinds of scandal.

Thus, the bizarre behavior of Kenneth Starr, the investigator in search of a crime; birther fanatics insisting that Barack Obama is not American; the weirdly hysterical outcry about the Benghazi attacks; and now the "investigation" of the IRS for targeting conservative groups.

The problem with all of these protests is that the behavior they decry is hardly in line with the wildly unconstitutional acts of the Republican versions. Bill Clinton was a lech, but he did not abuse his office in a serious way. Obama has a birth certificate, and his only "crime" seems to be that he is black and Harvard-educated. If the State Department did want to portray the Benghazi attacks as protests, and succeeded in doing so for two days, so what? And the "targeting" of the Tea Party by the IRS has more to do with campaign organizations masquerading as tax-exempt non-profits (and therefore robbing the government) as it does with official malfeasance.

It's just another indication of the fact that the Republican Party has become unhinged, to the detriment of us all. We need at least two sane parties, the GOP is not holding up its end.

"Politics," the Supreme Court and the Rule of Law

A flurry of media attention has been directed lately at the Supreme Court, which scholars have argued has drifted from its responsibility to serve as neutral arbiter of the law. In early May, Thomas Edsall wrote a piece for the New York Times summarizing a lot of this commentary, and concluded that the Court's polarization comes from the four justices who consider themselves most "conservative."

The core scholarship behind Edsall's op-ed came from a study done by Geoffrey Stone of the University of Chicago, which found that in cases generally considered most "important," these four justices -- Scalia, Alito, Thomas and Roberts -- departed from the "judicial conservativism" they espouse at public speaking engagements, and engaged in an "activist" approach to evaluating legislation.

To be judicially conservative is to refrain from overturning the actions of the political branches unless there is a compelling constitutional reason to do so. Such a reason usually comes from a list articulated in a famous footnote to the Court's decision in United States v. Carolene Products. The principle behind the list is that if a statute infringes on a specific constitutional right or interferes with the basic functioning of democratic processes, the government must prove the necessity of the law; otherwise, the Court ought to assume that any reasonable law is constitutional. The point of such an approach to is prevent judges sitting "on high" from imposing their fundamentally undemocratic judgment on the creation of law. It calls for a careful -- not to say narrow -- reading of the words of the Constitution and a restrained application of judicial power.

Stone argues, however, that in the most important cases Scalia, Alito, Thomas, and Roberts tend to vote not according to these principles but according to their own personal political preferences and tastes -- exactly the thing judicial conservatives say it is wrong to do.

Just as referees and umpires ought not be remembered -- because it's always their worst decisions people recall -- the Supreme Court is ill served by its recent notoriety. Justice Scalia, who writes intentionally inflammatory dissents and makes more public speeches (and earns more money for them) than any other justice, is primarily responsible for all this public attention. In my view, this behavior is unconscionably selfish and destructive.

This problem goes beyond the mere reputation of the Supreme Court. It undermines the very foundations of reasoned public discourse in this country. By design, Congress and the executive branch are intended to pursue self-interested agendas, if not in the personal sense, at least in the political sense. But the judiciary is supposed to be dispassionate and neutral. Its  traditions, its methods, its selection, all are designed to insulate judges from the ephemeral demands of re-elections and other political contradictions. I am not naive enough to believe that judges never are influenced by public opinion or electoral competitions, and I am not even arguing that such influences always are bad. The Court at the moment, however, has lost its moorings, and we all are suffering as a result.

The Most Important Thing Said About the Sterling/ Clippers Controversy

Bomani Jones got it right. I happened to hear this on the radio last night, and I'm glad the Huff Post picked it up.

Muslims Did Perpetrate the Attacks of September 11, 2001 -- and it's OK to say so

Islam does not cause terrorism. It did not cause the attacks on the World Trade Center in 2001.

The people who perpetrated those attacks did claim, however, to be doing it in the name -- and for the cause -- of their warped, misinformed view of Islam. Osama bin Laden and the leaders of al Qaeda who planned the attacks declared war on the United States because it threatened their vision of what the world ought to be like: a constricted, misogynistic, brutal theocracy.

Most Muslims do not, and never did, support the policies and actions of the terrorist group. They do not recognize as their own the message that bin Laden espoused.

When we say that Muslims attacked Manhattan, and they did so out of misplaced religious zeal, we are not condemning all Muslims and we certainly are not condemning Islam. We are telling the story as it happened.

That's why the objections to a short (approximately seven-minute) video at the September 11 Museum in Manhattan are badly misplaced. People worry that visitors to the museum will mistakenly believe that all Muslims are to blame if Islam is mentioned at all. If that's true, then we have problems (and I am sure we do), but they are not ones that can be solved by excluding the information.

I suppose that the purpose of "interfaith panels" like the one lodging the complaint is to reflect sensitivities like these. But I do not understand  -- and find a bit distasteful -- the position that we should not mention the stated motives of the people who staged the attacks. It seems fundamentally dishonest, and therefore not what museums should do.

Baseball Umpires, Fairness and Justice

A couple of professors of management (of all things) wrote a piece of the New York Times Sunday Review last week explaining why the Major Leagues need to employ video replay more frequently than they do, and it bugs me. I am not always bothered by stats geeks, even when they talk about baseball -- some of my best friends are like that. But this argument reflects a serious misunderstanding of what an umpire does and why replay is not the answer to their complaints.

First of all, their last line represents a complete loss of perspective, and indicates exactly the problem with their perspective."The question is," they say "whether we, as fans, want our games to be fair and just, or whether we are compelled to watch the game because it mimics the real world, warts and all." Frankly, raising the question of "justice" in the context of baseball is absurd. Baseball is a game, and justice is too big a concept to fit inside a game. It amounts to hyperbole, and makes everything else easier to dismiss.

But every game does need fairness, and anybody has the right to expect that any contest is fundamentally fair. So, do King and Kim give us reason to believe that instant replay would make the game more fair?

They begin with this: "After analyzing more than 700,000 pitches thrown during the 2008 and 2009 seasons, we found that umpires frequently made errors behind the plate — about 14 percent of non-swinging pitches were called erroneously."* 

This claim assumes, of course, that their technology is perfect at judging balls and strikes. I am not convinced that this assumption is valid. Some of the technology I have seen on television appears, in my view, to make patently false representations of the strike zone: where the little white mark shows up in the little box does not correspond to the place the real ball crosses the plate, even on replay. For the sake of argument, though, let's grant them technological perfection.

 They go on:

We also found that the pitch count had an influence over the umpire’s perception of a pitch. When the count was 3-0, and another ball would end the at-bat, the umpires mistakenly called a strike 18.6 percent of the time, compared with a 14.7 percent error rate when the count was 0-0. But when the count was 0-2, with another strike yielding a strikeout, the umpires expanded the strike zone only 7.3 percent of the time, half the error rate for 0-0. The umpires, in other words, appeared biased against ending an at-bat.

This is an interesting thing to consider. Players and coaches have known of this bias for time immemorial. Taking a pitch on 3-0, especially in an obvious way, often will result in a called strike if the pitch is close. This fact is not generally considered unfair, because at any level below the majors, everyone involved does in fact want to avoid "ending an at-bat" in this way too often. Walks have the potential to kill a game, and even the winners of a game riddled with them sometimes regret the experience. 

In other words, the sport benefits when players swing the bat rather than watching pitches go by. You can argue, of course, that in the major leagues this kind of consideration should be taken into account, but the players even at that level understand the way the game operates. This kind of error, therefore, may not be unfair. It is expected as normal business, and does not disadvantage any group in particular, especially in the long run.

Another example from a game I saw last week comes to mind, as well. The runner on first base ran on the pitch, and successfully beat the throw and the tag into second base. His slide, however, brought him over the base, and when the runner stood up he lost contact with the base for a split second. Through the whole move, the shortstop, who had the ball, held his glove on the back of the runner, so when the runner lost contact withe the base he was technically out. The defensive manager called for a replay, and the replay booth confirmed, despite a view from the camera that showed day light between the runner's belly and the bag.

This was the right call. It was fair and -- if we are going to inflate ourselves as King and Kim do -- just. The purpose of the rule is not to catch people in this way. If we allow replay to take over in this way, we will subvert the game rather than supporting it. The same can be say of the famous "neighborhood play" on double plays, which is specifically exempted from replay because the way the game has always been played encourages second basemen turning two to avoid anchoring themselves on the base. We get more double plays -- which are fun -- and fewer injuries -- which are not fun -- as a result.

In other words, the "right" call is not always purely objective. It requires judgment. That's the "human factor" so many people denigrate.

*I would suggest, parenthetically, that if you have analyzed 700,00 baseball pitches, your boss needs to ask more of you.

The Legality of Crimea's Annexation

Having read and heard more on the legality of the Crimean secession from Ukraine, I remain unconvinced that the whole thing is bogus.

The argument against the legality Crimea's departure and its ensuing annexation by Russia is that the process was coerced. Although there was a referendum, no one thinks it was clean. For one thing, the margin of victory was far too wide. You can't get 99% of any group to vote for any thing; I would expect the margin for voter error -- people accidentally voting against it -- would be higher than 1%. For another, the voting was closely "supervised" by Russian soldiers, present despite denials of their existence by Putin.*

Putin's reflexive paranoid ranting reinforces the impression of illegitimacy. His railing against Western interference in Ukraine and his calling protesters "fascists" and "extremists" indicates his wacko world view and his inclination to behave erratically.

That Crimean Tatars report increasing persecution under the newly Russianized government makes matters worse.

At Dartmouth College this weekend I heard lecturer Jason Sorens argue that this coercion made the referendum clearly illegal. Only when both entities in the matter -- the separatists and the recognized government -- agree to the secession is it truly legitimate, he said. Such concessions are not unheard of, he pointed out, and include Congressional authorization for Puerto Rico to leave the United States at any time it chooses.

Viktor Yanukovich: Out for good reason

This line of reasoning, however, has its weaknesses. The new Ukrainian interim government derives its own legitimacy form a popular mandate not achieved through normal elections. I have no doubt that the people of western Ukraine were right to expel the corrupt, brutal puppet Yanukovich. But it's not obvious to me that Crimeans are bound by that choice, and if their move was irregular it should not surprise us. The form of the referendum was wrong, and in situations like this form matters. No one argues, however, that the majority of Crimeans would have voted against secession if a clean vote had been held.

* The fact that the soldiers were wearing uniforms without insignia is in fact a violation of international law, which requires legal combatants to display name, rank and national identifiers.

Can Corporations Really Have 1st Amendment Protections for Religion?

First Amendment jurisprudence gets more bizarre by the month under the current Supreme Court. First, in its Citizens United decision, the Court found that corporations have free speech rights. The conclusion there means not just that corporations can express opinions in ordinary situations, but that the government must protect such expression except under the most extraordinary circumstances. We all have an obligation to corporations in this scheme of things.

Now the Court appears to be open to the idea that corporations have religious rights, too.

We're not talking here about the right of individuals who own companies, but the companies themselves. The company at issue in Sebelius v. Hobby Lobby wants to refuse to pay for any insurance that would allow an employee to be reimbursed for contraception like IUD's. The owners say that they object to such measures on religious grounds, and that the Affordable Care Act would therefore violate their rights by providing such insurance.

Now, what if they made the same claim about vaccinations? That is, not only do the owners not want to be vaccinated or have their children vaccinated, but they do not want to be required to pay for insurance that would allow their employees to be vaccinated. Under this reasoning, they could claim religious exemption from almost any regulation simply by applying a twice-removed impact on them.

Note that the owners still want to distinguish themselves from their company for the purposes of liability and taxes, but not when it comes to the 1st Amendment.

Just like the recent Arizona law about religious rights in hiring, this argument is nonsense. If the First Amendment can be made to mean everything, it is made to mean nothing. It's dangerous and foolish to water our rights down like this.

The Law on Crimea

Crimea in the Russian Empire

Ukraine

The United States and many European governments have taken the position that the Russian annexation of Crimea is a blatant violation of international law. 

Maybe, but it's complicated.

First, we have the ouster of Viktor Yanukovich as "president" of Ukraine. No one thinks Yanukovich was anything other than a kleptocrat supported b the brutally corrupt regime of Vladimir Putin in Russia. Technically speaking, the protests that forced him to leave the country may not have been legal, even if they were perfectly justified as dissent against a bad government. If you adhere to the Lockean/ Jeffersonian  notion that Yanukovich's government was inherently illegal and illegitimate and therefore all protests against it, including those intended to cause its overthrow, are legal, then we have one conclusion. If you prefer the idea that he was elected in a flawed but legal election, then we have another.

Next, we have the concept of self-determination, the Wilsonian idea that every "people" has the right to affiliate itself with whatever nation it chooses. Under this framework, the Crimean referendum to quit Ukraine and join Russia is not only acceptable, but preferable.

But Vladimir Putin is the fly in this ointment. His actions are so thoroughly dishonest, corrupt and illegitimate that law-abiding people can hardly stand by and watch. Putin is working to bring back the totalitarian model of Stalin and Hitler, with rejection of emperical  truth at its core. He invades Crimea, and then denies that Russian troops are there, even as journalists take pictures of them. He steals billions of dollars from his own government and complains of capitalist corruption. He resorts to force first and last.

Putin's very existence is an affront to the rule of law, and he ought to be opposed by everyone all the time.

But I'm not sure what to make of the Crimean separation.

Betim Kaziu and the First Amendment

Until Thursday, I had never heard of Betim Kaziu.The I took a class to Manhattan to see the Second Circuit Court of Appeals, and we heard oral arguments in his case.

Betim Kaziu

In 2009, the government indicted Kaziu, a Brooklyn resident, for conspiring to travel abroad to fight against US interests. According to the indictment, Kaziu

took steps to continue on to Pakistan to obtain training and other support for violent activities. Kaziu also attempted to join Al-Shabbab, a radicalized, militant insurgency group, which has supported Al Qaeda and which has been designated as a terrorist organization by the United States Department of State. In addition, Kaziu made efforts to travel to Afghanistan, Iraq, and the Balkans to fight against U.S. armed forces. To that end, Kaziu attempted on multiple occasions to purchase weapons in Egypt. Ultimately, Kaziu traveled to Kosovo, where he was arrested by Kosovar law enforcement authorities in late August 2009.

Note that at no time did Kaziu succeed in any of these plans. The charge was solely that he conspired to do certain things.

In 2011, a jury returned a conviction, and in 2012 Kaziu was sentenced to 27 years in prison. At the sentencing, federal judge John Gleason excoriated Kaziu for showing insufficient remorse for wanting to be a "jihadist."

In his appeal, Kaziu's attorney made two arguments: first, that the government had insufficient evidence, as a matter of law, to convict Kaziu; and second, that he had a First Amendment right to do what he did.

Essentially, the First Amendment argument is that Kaziu never really did anything. He walked around saying that he wanted to do a thing -- kill American soldiers abroad -- but never demonstrated any actual capacity to execute these wishes. Everywhere he went, he failed even to find and join groups that might facilitate his desires. He was arrested in Albania after he made a "martyrdom video," which his attorneys say was "in jest."

That last part is a problem. If law enforcement is to have the ability to prevent terrorist attacks, it probably has to be allowed to intercede once somebody says they are on their way to martyr himself. And claiming that it's all just a joke, after months of travelling around trying to find the chance to become a martyr, is not going to fly.

But I don't feel especially confident about the worthiness of this conviction.* Kaziu is young and an idiot. Foolishness is not a defense, of course, but did the government show that he was a real threat? It does not seem so to me. And the judge's lecture from the bench only sounds like a cranky old man.

*There are other problems, aside from the 1st Amendment claim, that I will get to later.