Monday, August 28, 2006

August 24 2006

     
August 24, 2006

Re:  Professor X And The Conservative Judges Of Reagan And The Two Bushes.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com



Dear Colleagues:

On Wednesday August 23rd The New York Times printed an op ed piece by a University of Wisconsin professor.  I shall call her X.  Many of this blog’s readers doubtlessly read the Times and saw X’s piece.  It was given pride of place on the Times’ page of columns, and was provocatively entitled, “A Law Unto Herself”.

     The piece viciously attached Judge Anna Diggs Taylor for ruling that Bush’s previously secret but now admitted NSA electronic surveillance of gazillions of phone calls is unconstitutional.  The piece was not only a vicious attack on Judge Diggs, it was also deeply wrong (a subject I shall return to subsequently).  It was so wrong that it was irresponsible of the Times to print it.  

     One imagines that the Times must get dozens, maybe scores -- maybe, who knows, hundreds -- of proposed op ed pieces that it doesn’t print each week, just like it must get hundreds of letters that it doesn’t print.  Assuming, as is so likely, that the Times gets lots of proposed op ed pieces that it doesn’t print, one is at a loss to understand why it ran, and gave pride of place, to X’s screed.  Did the Times not have constitutional and statutory experts vet her article for professional accuracy and professional persuasiveness before running it?  Did it not bother to have her piece vetted because X herself is a constitutional law professor?   Did the Times (and experts?) feel it should be run because it is the product (one might uncharitably call it the ravings) of a conservative to reactionary point of view , so that the Times could not be accused of one sidedness?  Did the Times run her piece because X (I’ve since learned) is a major league blogger -- a major figure in the blogging community (where, I gather, opinions on her politics vary, although I read that she does support Bush’s war in Iraq).  Who knows why the Times carried X’s irresponsible op-ed column?  If I had to make a bet, it would be that several, maybe even all, of the foregoing possibilities played a role.

     The Times, of course, regularly offsets the fact that it is a national treasure -- as I personally believe and as long-time Timesman Ira Berkow recently said at our law school -- by doing things of enormous irresponsibility (like possibly electing George Bush to a second term by not revealing its knowledge of his electronic surveillance before the 2004 election, if it did learn of the surveillance before that election -- which it has now refused to say for over one and one half years).  (A list of irresponsible Times’ actions has been discussed here in prior posts.)  But that the Times occasionally does irresponsible things does not justify doing more of them, and one is amazed that it irresponsibly printed, let alone gave pride of place, to X’s piece.  X, one may say, is no George Kennan, if you understand the allusion.

     Yet, paradoxically, X did say one thing far better than this blogger has ever been able to say it.  She captured one phenomenon about judges so perfectly that I can do no better than quote what she said, which is done below.  From this writer’s perspective, her statement was fortuitously timed because it so beautifully captured a point that I was on the verge of writing about, was about to start writing about the very Wednesday her piece appeared, although I write about it from a directly opposite point of view.  Here is what X said:
So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

     There you have it:  briefly, pithily, and in summary of the wisdom developed in the 20th Century, starting early in that century with the so-called legal realists who exposed, exploded and ridiculed judges’ claims to some sort of politically and economically neutral omniscience.   Judges are neither neutral nor omniscient.

     A judge, as one wag once put it, is a lawyer who knew a senator (although one also has to be a lawyer who holds politically approved views).  Often judges are not particularly competent.  They are deeply biased in favor of views they favor, are quite often intolerant of other views, and evade the central point or points of a matter in order to arrive at preordained decisions they wish to arrive at.  But to hide their bias, their avoidance of centrality, and the so-often preordained nature of their decisions, they speak in complex language and logic invented by the law and lawyers to hide what is being done.  The language and logic are often dull to the point of causing mild encephalitis.  They give the appearance of being neutral, and they make their users sound neutral, when the truth is to the contrary.

     What X wrote is, as said, applicable to something this blogger was about to write on.  As said recently, I don’t usually write about judges and legal opinions.  When it comes to the Supreme Court, there is no crying need because so many people write about them -- although it’s true that much is often missed because the Court’s opinions are nearly a paradigm of excessive length, turgid writing, legalistics, avoidance of centrality, dullness stemming from the last three factors, and duplicativeness arising because there may be so many opinions in a case.  When it comes to lower federal court opinions, reading them and writing about them is discouraged by all the same factors except, usually (but not always), the existence of an excessive number of opinions in a single case (a benefit often offset, however, by the existence of lots of cases, and therefore lots of opinions, on any given issue).  

But while I do not usually write about legal matters, recently this reluctance has been overcome by the number and importance of outrageous reactionary decisions being made by reactionary judges appointed by Reagan and the two Bushes.  One of the opinions, written by The Reactionary Easterbrook, and allowing companies to screw older workers out of major portions of pensions they were counting on and had worked for decades to get (a problem not faced by the federal judges who allowed this), has been the subject of a couple of recent blogs.  A few more, about which I was poised to write when X’s op ed piece appeared, were done by a couple of district court judges (i.e., federal trial court judges) who have let the government off the hook for its terrible conduct in rendering prisoners for torture, in torturing and killing them itself, in running Iraq incompetently, and in prosecuting persons who disclose or pass on classified information -- no matter how “unclassifiable” it in truth is -- while itself or through Bush or Cheney disclosing classified information when it suits their morally and intellectually corrupt administration’s own political purposes.  These are all cases in which the very point made by X is preternaturally applicable.   For in these cases the judges discuss legalistics.  They do so in a way that makes their decisions appear ostensibly “neutral”, at least to the lay eye.  In each opinion the decision is foreordained.  (These judges, unlike Anna Diggs Taylor, are not about to go against George Bush.)  In each case, central points are ignored.  In one case, the judge who protected Bush, Cheney, Yoo and the rest of that evil crowd was for five years, and until very recently, a Bush nominee to the Court of Appeals whom the Democrats would not allow to ascend, and he could still be renominated by Bush.  What is the chance that he would vote against Bush’s position?  In another case the judge, knowing the horribleness of the acts for which he was failing to hold the Executive accountable, said that somebody -- the Congress, the Executive - -  ought to give the victim a remedy.  But he, of course, had to know as a human being that this is almost sure not to happen, and that he was therefore just blowing smoke to make himself feel better as he immunized the Executive’s horrible deeds.

     Let’s briefly go through the cases, starting with the Passaro prosecution in Raleigh, North Carolina.  

David Passaro was a CIA contractor in Afghanistan who continuously tortured and beat the living shit out of an Afghan prisoner until he killed him.  He was convicted a few days ago.  CIA officers testified against him wearing wigs and false mustaches and using concededly fake names.   (Can you beat that?  That’s real justice, isn’t it?)  He was convicted by a jury in the court of Judge Terrence Boyle.  

     As articles and opinions make clear, there can be no doubt that Passaro is a savage.  He is of a type with our My Lai brutes, our Tiger force primitives, the Haditha murderers.   He should be taken out and put against a wall, and is lucky that that is not how things are done in this country.  But bad as he is, he did have a possible defense, but one that Judge Boyle made sure he could not successfully raise.  

     Passaro (a CIA contractor, as said) claimed that he was acting in accordance with the desires of the leaders of the CIA and the Executive Branch.  (This was called the public authority defense).  To prove this he wanted access to Executive memoranda that would show torture was desired and authorized, and he wanted to subpoena and examine Executive Branch evildoers like George Tenet, Cofer Black, John Yoo, and others whose names the judge kept secret.  All this, Passaro believed, would prove his defense.  There is no doubt he is right about what the Executive wanted and authorized – no doubt at all.  For it is already known publicly that there were memos that allowed torture (and some of them are even public now), that high officials wanted torture, that Bush would ask whether it was getting results, and so forth.  But the so-called judge, Terrence Boyle, would not allow Passaro to get the memos or subpoena the officials.  The so-called judge even claimed implicitly that maybe there were no such memos, saying “Even assuming  the classified memoranda do exist . . . .” (Emphasis added.)  “Assuming,” my posterior -- it is well known they exist.  And the so-called judge pretended that maybe Passaro wasn’t relying on what the high officials wanted -- though it’s well know that the CIA, the military, the interrogators all knew what our highest officials wanted done.  They wanted information to be obtained at any cost.

     What Boyle deliberately did is that he avoided the central question -- was Passaro acting in accordance with the desires of the highest authorities of our government -- a sort of  implicit Nuremberg defense, as it were.  Boyle plainly didn’t want the truth about our highest officials to come out in his courtroom, he plainly didn’t want evidence of  their Nuremberg type desires to come out and thus, as far as I know, never got involved with the issue of whether the Nuremberg doctrine would nonetheless block Passaro’s defense even if he were allowed to show the higher-ups were responsible.  So he rejected Passaro’s attempts to get the evidence.  He wrapped this rejection in legal jargon.  He made it sound all nice and neutral.  It was anything but neutral.  It was a deliberate judicial cover-up by a conservative or reactionary Reagan appointee.  And rest assured that it will be upheld by conservative to reactionary appointees of Reagan and the Bushes.

     One holds no brief for Passaro.  He is a savage who should be strung up.  But he was denied a defense by a judge who was not about to allow the truth to come out in his courtroom.  

And by the way, the Passaro case took years.  During almost this entire period the so-called judge, Terrence Boyle, was a Bush II nominee to the appellate court.  What’s the chance that such a judge is going to rule that a defendant can obtain evidence that could cause Bush II and his henchmen (Cheney, Rumsfeld, Yoo, Gonzalez, etc.) to be strung up, at least figuratively?  So much for the law or for justice, either in this country supposedly dedicated to them or in the courtrooms of our conservative and reactionary judges.  (Boyle -- George Bush’s nominee, don’t forget -- has, in the words of the Times in March 2005, made many decisions that “have been criticized by higher courts [because he] wrongly rejected claims involving civil rights, sex discrimination and disability rights.”  His “record is particularly troubling because the court reviewing him, the Fourth Circuit, is perhaps the most hostile to civil rights in the federal appellate system, and even it has regularly found his rulings objectionable”  He also  has been claimed to have decided cases in which he had a financial conflict of interest).

     Now let’s turn to some opinions by a federal judge in Alexandria, Virginia named T.S. Ellis III.  That’s right, not T.S. Ellis, or T.S. Ellis Senior or Junior.  Nope.  T.S. Ellis the third.  That tells you pretty much everything you need to know, doesn’t it -- Princeton ’61 (back in the days of bigotry at Princeton), Harvard Law ’69, a nominee of Saint Ronald in 1987.  When we’re done, you will not wonder why it is sometimes said that the government likes to file its criminal cases in Alexandria because the judges there favor it.

     In May Judge T.S. threw out the case brought by Khaled El-Masri because, said T.S., it involved state secrets.  Masri was the innocent guy whom the CIA and its buddies grabbed off the street (so to speak) at the Serbian-Macedonian border, imprisoned and interrogated for awhile, then drugged and flew to Afghanistan, interrogated for months,  and, five months after grabbing him, dumped on a deserted road in Albania.  

     That the CIA has been doing all these things as a regular matter has been well known for years.  The Times, the Washington Post and others have learned and disclosed details down to the airplanes, airports and company fronts the CIA has been using to render people for torture.  But the so-called Judge, T. S., said that El-Masri’s case must be thrown out because it might reveal state secrets -- a doctrine which was created by the Supreme Court in 1953 in a case in which, it is now known, the government lied to the Court, but which nonetheless continues to be used by reactionary judges for the purpose of letting the government get away with torture if not murder -- and, for all I know, with murder too.  Here the so-called judge, T.S., used the state secrets doctrine to shield a once secret, now revealed criminal governmental enterprise -- torture is a criminal violation of both international and domestic law.            

     As our reactionary judges do, T.S. used legalistics to try to make it look as if he were writing in a neutral fashion, when in reality he always found some reason -- or more accurately, trumped up some reason -- why El-Masri’s legal points were always wrong and why El-Masri had to lose even if the identity of agents, etc. could be and would be kept secret.  (I gather that fake mustaches, wigs and fake names are okay if used to convict a low level slug in North Carolina while protecting high level slugs there, but not if they would be used to find against the policy of high level slugs in Alexandria, Virginia.)

     You have to say one thing here for T.S. the third, though.  True, he made a grossly false statement (which non lawyers might call a lie) by saying “It is important to emphasize that the result reached here is required by settled, controlling law” -- which it most certainly is not, and other judges could readily have reached a different decision.  But he felt badly about reaching this supposedly “required” decision.  So he said his opinion was not a comment on the truth or falsity of El-Masri’s factual claims and that, if they are true, all “must . . . agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.”   Such a remedy, said T. S., must come from the Executive or the legislature.  This was all very safe to say, of course, since T.S. knows as well as I do that the chance El-Masri will be given a remedy by one of those branches approaches nil.  The Executive won’t admit mistakes, and the Congress is too immoral and too weak kneed to give a damn or do the right thing.  But what is any of this to a such and such the third, Princeton ’61, where there was no torture for the anointed of the earth, who did not get grabbed off streets and rendered unto Afghanistan and would have no idea what this is like.

     El-Masri’s case is far from the only one in which conservative Reagan appointee T.S. the third, Princeton ’61, has faked it for the Executive -- has used neutral sounding terms and legalistics to reach decisions foreordained to favor the Executive.  Take, for example, decisions he made (one as recently as last week) in the so-called Custer Battles case.  Like the opinion of The Reactionary Easterbrook in the IBM pension case, the decisions are too full of legalistics to even begin to describe what was said.  The matter revolves around whether various different funds controlled by the Coalition Provisional Authority -- the group long headed by Bush’s pal Paul Bremer -- belonged to Iraq or the United States.  The central point which T.S. elided was that, regardless of technicalities, Bremer, his successor, and the CPA fundamentally controlled Iraq, and the CPA is, for practical purposes, an American operation even if the UK and other members of Bush’s “coalition of the willing” were technically among its creators.  As a practical matter, therefore, all the money was America’s because we controlled the whole shooting match over there.  Moreover, Custer Battles itself, though in form a private outfit, is in reality, like Blackwater, a mercenary in the employ of the United States government, which has undertaken the dangerous practice of using mercenaries, as in ancient days, to do things that should be done by regular troops (e.g., guarding officials, interrogating prisoners).  (It is hard to imagine anything worse than the increasing use of mercenaries instead of U.S. servicemen by the U.S. government.  This is what authoritarians did in the 1500s, 1600s, and 1700s -- remember Great Britain’s Hessians?)

     Judge T.S. the third, Princeton ’61, has also recently decided (on August 9th) not to dismiss at this point, on first amendment grounds, a government prosecution against two AIPAC officials charged with receiving and passing on classified information.  I wish to say that this is the least objectionable of his decisions discussed here.   For it does contain lots of language indicating knowledge that vital first amendment considerations implicating the public’s need to know about government evil are involved in the law relating to the case, and that leaking is a regular sport in Washington.  But, on the other hand, Ellis also has lots of language giving the government great scope to argue that leaks must be punished whenever it says they are dangerous or harmful, whenever it says “legitimate national security interests” are involved.  T.S. III’s language in this regard is broad enough to let the government lie with impunity about this -- as the Solicitor General who argued the case later conceded defacto the government did when it claimed vital national security secrets were involved in the Pentagon Papers case.  This broad language is a vast loophole allowing the government to prevent the public from obtaining information it desperately needs in order to know the evil that government is doing.  (And would a judge who is willing to say that a horrid phenomenon like rendition for torture is a state secret though it is publicly known down to fine details, be likely to contradictorily say that information George Bush says must be classified for the public safety should instead not be classified?)  

     Beyond opening the door wider to phony Nixonian/Bushian claims of supposedly legitimate classification, the opinion of T.S. the third evinces no consciousness of the additional evil that can arise when people like Bush and Cheney determine to declassify information on the spot, as it were, for their own political purposes.  This was said to have been done in connection with the Valerie Plame matter, and was apparently claimed to be legal by Executive apologists.  (I am at a loss to understand where in the statute or regulations, much less in constitutional doctrine, the apologists find such authority to declassify on the spot for political purposes, and to thereby add political one sidedness to the claim that, if the President says an opponent has leaked dangerous material, then the opponent can be prosecuted -- and can be prosecuted regardless of how vital it is for the public to become aware of the leaked information (e.g., rendition for torture, murder in prison camps, vast spying on Americans).)

     Let me finish this posting by going back to where it began due to the fortuitous appearance of Professor X’s op ed column just as I was about to start writing.  Let me go back, that is, to Professor X’s piece and to its criticism of Judge Anna Diggs Taylor.

     I have to say, with reverse bigotry, that it is hardly a surprise that it was a black judge -- one who apparently has suffered both racial and gender discrimination -- who had the guts to be the first to knock down Bush’s electronic spying.  A few years ago, in 2004, when this blogger was saying Bush is incompetent, one knew of only five columnists in the entire mass media who were willing to say the same.  All the rest were too gutless or stupid to say something that is now common currency, and is common currency for good reason.  Of the five who were willing to say it, three were black, Bob Hebert, Eugene Robinson and Derrick Jackson, while only two were white, Maureen Dowd and Paul Krugman.  This even though the incredibly overwhelming percentage of columnists and pundits in this country are white, not black.  It seems a fair guess that the black experience in America -- hundreds of years of slavery, followed by a century of Jim Crow and worse (lynchings), followed by continued second class citizenship, has sensitized African Americans to white stupidity and injustice in a way that must forever escape one who, like Richard Cory, is a child of enormous privilege but, unlike Cory, arrogantly, unfeelingly, without sense or sensitivity does things that put bullets through other people’s heads.  And, for that matter, the Irish community, of which Dowd is a member, and the Jewish community, to which I presume Krugman belongs and to which this blogger belongs, has experienced much of the same as African Americans over the centuries and in America itself (though these groups are now mainly part of the establishment in this country), so that there likely is an identical reason for at least some of their members to be more attuned to the stupidity and injustice of the Bushian, privileged, WASP  uber class than is the average American of more “standard” background.  In any event, after the experience of who was and who was not willing to call Bush incompetent a few years ago, it was no surprise that a black judge, not a white one, had the guts to say that what Bush is doing violates the law.  And for the courage displayed by African Americans toward Bush and Cheney, and toward the latters’ efforts to usurp power, we should be grateful, profoundly so.  A thank you should go to Judge Diggs.

     Professor X, however, is a very blonde example of apparently more privileged background, judging by the picture of her on the web.  And, according to Professor X, Judge Diggs has “blithely ignor[ed] [her] obligations;” “didn’t [even] bother to come up with the [neutral sounding, legalistic] verbage that normally cushions” biased legal opinions; has shoddily “disposed of” serious arguments in an irresponsible way; has engaged in “sheer sophistry” by relying on ideas that most of us consider fundamental to the founding of this country such as the fact that this nation rejected the idea of a king (with the broad, nearly unlimited powers possessed by a monarch); is wrong in claiming Bush is asserting powers outside the Constitution because he “isn’t arguing that he is above the law” -- has X read, one might hyperbolically ask if she even knows about, the Bybee/Yoo memos for the Executive that said the President can do whatever he wants as Commander-In-Chief -- but instead is merely “making an aggressive argument about the scope of his power under the law” -- I repeat, has X read the memos? does she even know about them?, does she know that torture and unbounded wiretapping are illegal?; and the judge supposedly has violated the precepts of judicial decisionmaking by placing a judge’s view (on constitutionality) over the President’s view.  (Although she mentioned the case, does Professor X in fact think, underneath it all, that Marbury v. Madison no longer counts so that, as Nixon felt, if the President says it, it’s lawful?)

     Wow!  Quite a rant against Judge Diggs by Professor X.  What can be said about the rant?  Well, in two words, it’s bullshit.

     Now, I’m not going to say that Judge Diggs’ opinion is any different from those of conservative judges in the sense of reaching results preordained by a judge’s views, reaching results opposite to those that a judge of opposite political views would have reached.  Liberal and conservative judges alike have been doing this at least since Marbury v. Madison in 1803.  But apart from this, X’s diatribe is only the politically motivated screechings of a mind said to favor Bush’s war in Iraq.  In this regard, one is surprised that X failed to screech against the fact that Judge Diggs, unlike conservative  federal judges like T.S. the third, who have relied on the state secrets doctrine to throw cases out of court, refused to do so when enough already is publicly known and admitted so that there can be no doubt that the program objected to in court is in fact in place.

     When one reads Judge Diggs opinion (of 42 ½ typed pages -- you’d never suspect this length from reading X’s claim of cursoriness), one sees that she extensively discusses prior cases and their meaning for the present one, and does so on a whole variety of issues (including technical ones that X implicitly claims she does not even discuss), discusses what lawyers call legislative history and discusses legislative background, discusses applicable statutes, extensively discusses constitutional law including long quotations from Justices Powell, White, Black, Douglas and Jackson (specifically including parts of what she calls Jackson’s “historic” concurring opinion in the Youngstown Street & Tube case -- the very opinion, and in fact some of the very same parts of that opinion, that John Roberts relied on in his testimony before Congress when nominated to be Chief Justice, discusses the Congressional authorization of military action that the Administration relies on, discusses recent Supreme Court work relating to that authorization, and even – though you’d never, never know this from reading X’s screed -- rules in favor of the government with regard to data mining.  To read -- even to glance -- at Digg’s opinion is to know that X’s screed is nothing but politically motivated crap.

     One gathers from the screed, however, that one objection it raised to Diggs’ opinion is that, allegedly, sections of it are too “short” to be worthwhile.  They don’t measure up to a professorial, and often “judicial,” standard of interminable length, interminable length that is supposedly prerequisite for accuracy but in reality is merely a recipe for endless dull verbiage of little consequence.  Well, one might paraphrase an old saying to X by recasting it thusly, “Ars longa, veritas brevis.”  That would not be exactly apropos, at least not if one believes art is truth.  But it gets across the point.  Truth, like vita (life) (Ars longa, vita brevis), can be brief.  It doesn’t require interminability.  Of course, as Professor X’s diatribe shows, falsehood too can be brief.

     I have to address one last point.  It would be unfair not to.  On Wednesday the 23rd, the same day that X’s column appeared, the Times also carried an article saying that Judge Diggs had a possible conflict of interest because she is the secretary and a trustee of a group that since 1999 had made four grants to the ACLU, which represented plaintiffs, for work on education about the Bill of Rights, racial profiling and gay rights.  The grants were for $20,000, $60,000, $20,000 and $25,000.  Experts and others who commented for the article generally held that there was in fact no conflict of interest or at least no obvious one, because the grants were not related to the subject matter of Bush’s electronic surveillance and/or because judges often serve on boards of non-profit groups that may come before them in court, but that it would nonetheless have been much better for Diggs to have disclosed the matter up front.  

I do not personally have a firm opinion on the conflict matter, but I do know hypocrisy when I see it.  Scalia goes on a hunting trip with Cheney when Cheney has a major case in front of him.  Roberts and Boyle and no doubt others sit on important cases and decide for the Executive when the Executive is discussing with them the possibility of appointment to a higher court or has nominated and supported them for it in the face of strong opposition.  Judges, including very prominent ones, write articles on political subjects that may come before them in court.  Historically, judges advise Lyndon Johnson on the Viet Nam war, or maintain close friendships with him, while deciding against challenges to his war.  All this, yet Judge Diggs is being accused of a conflict?  

The accusation against Diggs of a conflict is sheer political hypocrisy, and will remain sheer political hypocrisy, until the whole system is cleaned up, until the whole system, which is rife with conflicts that judges refuse to admit are conflicts, is cleaned up.  Should the whole system be cleaned up?  You bet.  Will it be cleaned up?  Not a chance.  

Thus as matters stand now, accusations of conflict against Diggs are sheer, and mere, hypocrisy from those who are politically desperate to have Bush’s electronic spying upheld.  (And, by the way, will it be upheld by appellate judges of very different political views than Diggs?  I would say the chances are heavy.  For appellate judges, of a completely different political stripe than Diggs, will likely use their own falsely neutral sounding legalistic language, and legalistic complexities, to reach a preordained result different from hers.)(  


Myfiles/Blogspot/Blogltr.ProfessorXAndJudges

Thursday, August 17, 2006

Updates On The IBM Pension Case, Military Cooperation Between The U.S. And Israel, And Bush's Possible Plans Regarding Iran.

August 17, 2006

Re: Updates On The IBM Pension Case, Military Cooperation
Between The U.S. And Israel, And Bush’s Possible Plans Regarding Iran.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

I wish to briefly bring you further up to date, as it were, about events discussed in two recent blogs.

The first is the August 11th posting which assailed the Seventh Circuit’s plutocratic opinion in the IBM pension case. That blog explained how the opinion written by The Reactionary Easterbrook allowed older American workers to get screwed over by a dishonest and unfair change in their pensions (a dishonest, unfair change away from the type of pensions that federal judges like The Reactionary Easterbrook have.) The blog also fit the dishonest change into the broader picture of how American workers, who suffer loss of jobs and loss of pensions, have been getting screwed over by big business, while high executives who run their companies into disaster, even bankruptcy, get rewarded by huge salaries, stock options, golden parachutes and the like.

Yesterday, however, The Wall Street Journal -- not exactly a fount of left wing liberalism or socialism, as one repeatedly points out -- carried an article showing that the change in pensions exemplified in the IBM case is even worse than one realized. The change, which screws over persons who have worked for a company for 20 or 30 years, is adopted, of course, to lower companies’ costs at the expense of the workers. According to the Journal, researchers at Cornell, Colorado and the University of California at Irvine have found that, in the years when pensions were changed and employees screwed over, “incentive compensation for the chief executive officers” of the culprit companies jumped dramatically. “For example, filings show that when Cooper Tire & Rubber Co. converted its pension to a cash balance plan in 2002, the CEO’s incentive pay rose to $1.5 million -- the highest level in a decade -- from $702,000 the year before. After a similar move by Clorox Co. in 1996, the incentive compensation for G. Craig Sullivan, its chief executive, jumped to $5.6 million from $961,000 the year before.” On “average incentive compensation for the chief executive officers jumped to about four times salary in the year of the pension cut, from about three times salary the year before. Companies that didn’t change their pensions saw little change.”

But this is not all. It seems that, just a few days before The Reactionary Easterbrook rendered his awful decision, “Congress approved a measure that would deem cash-balance plans legal. While the [Easterbrook] ruling will be appealed, and the bill has yet to be signed into law by President Bush, employer groups say the recent actions are a green light for employers to change their pensions.”

So what we have goes even beyond what was discussed in the prior blog. What we have, indeed, is a situation in which the pensions desperately needed and relied on by average workers are cut dramatically so that highly paid executives can make even more money -- can make millions more -- and Congress (as well as the Seventh Circuit) has approved this. It’s another example of the rich getting richer on the backs of the middle class and the poor, while the Congressional hacks who are paid off, bought and sold by big business (as if this were the Gilded Age -- well, maybe it is) approve this monstrous result.

The other posting, dated July 25th, “offer[ed] a few views of possibilities” “of why Israel is taking the actions it is in fact taking in Lebanon, the reaction of the United States, and the extent to which the two countries are acting in concert -- and/or may even have secretly conferred beforehand.” Among the possibilities offered were a desire by George Bush “to show the Iranians that, even if we can’t destroy their nuclear development work, we can certainly destroy their country. From the air, we can reduce it to rubble, and damn quick too. What is more, and as true for Syria too, we would want to show the Iranians and Syrians that their countries can be destroyed from the air if they continue to sponsor terrorism. (The same lesson might well apply to our so-called friends like the Pakistanis, even the Saudis.) What better way to show these countries that conventional bombing can destroy everything, and quickly too, than to have the Israelis rain destruction on Lebanon, reducing it in short order to an international basket case, which is about what has happened. The Iranians and Syrians, even the Pakistanis and the Saudis will take notice. If they are too stupid to take notice, their attention can be called to it in the ‘halls’ and ‘channels’ of diplomacy.

“In addition, the rain of country-wide destruction from the air will show ordinary citizens within these countries that, much as they may hate and despise and wish for the destruction of America, Israel and the west, it is extremely dangerous, is fraught with destruction, to harbor organizations like Hezbollah, Hamas and al Qaeda in their midst. Guerrillas, said Mao, are the fish that swim in the sea, with the citizenry being the sea. A point could be to make the sea decide to be inhospitable to the fish.

“All of this may not be as entirely crazy as it can sound.”

Well, two things may now be said. One is that the foregoing possibility offered on July 25th seems to have been pretty close to right, as will be explained below. The other is that today people generally feel that, due to the surprising effectiveness of Hezbollah, things did not turn out as Bush and the Israelis hoped and expected. Yet, as also discussed below, people may be far too quick, one thinks, to write off the Lebanese war as a strategic failure for Israel and Bush.

Relevant to this discussion are two articles by Seymour Hersh, one in April and one in August. Hersh strikes me as generally being far more reliable than the lying U.S. government. (In the course of a long career he has written of -- and broken the stories of? (I don’t remember) My Lai and Abu Ghraib.) The vigor of official or semi official denials of what he writes may be directly proportional to its truth and importance, I would judge. He recently wrote in August that, in effect -- as was speculated here in July -- the Israeli and U.S. governments cooperated closely in advance with regard to Israel’s attack on Hezbollah and Lebanon. It was the American hope, apparently, that we would learn things from the bombing of deeply dug in Hezbollah that would aid us in bombing the even more deeply dug in Iranian nuclear facilities (which are sometimes at a depth of 75 feet one gathers). (Iranian engineers, it is said, advised Hezbollah on digging in.) As well, Israel’s attack on Lebanon’s infrastructure “was ‘the mirror image of what the United States has been planning for Iran’” (over the opposition of some military people). Yale flunk-out Richard Cheney, Hersh quoted a “former senior intelligence official” as saying, said, ‘“What if the Israelis execute their part of this first, and it’s really successful. It’d be great. We can learn what to do in Iran . . . .’” As well, Hersh quoted one assertedly knowledgeable consultant as saying that Israel’s “goal is to deter more attacks by telling Nasrallah that it will destroy his country if he doesn’t stop, and to remind the Arab world that Israel can set it back twenty years”.

In his April article Hersh wrote extensively of George Bush’s program to take military action against Iran because of its nuclear threat, a program, Hersh says, that only a few (wacked out?) Republican hawks (and at least one Democrat) were being briefed about to some extent. The program, over the opposition of various military officers, included the use of atomic weapons, as well as widespread destruction of Iran’s infrastructure, military facilities and equipment (as Israel destroyed Lebanon’s infrastructure). It also includes the existence already of special forces on the ground in Iran to reconnoiter, target facilities, etc., and efforts to suborn, as it were, disgruntled minorities in Iran. (More recently, I gather, the military won its fight against the use of nukes -- some officers were threatening resignations over this issue, Hersh says. This could have made it even more important to see what results Israel could obtain by conventional bombing of dug-in facilities.) The Bushian program also included hopes that bombing would cause Iranians to rise up against their government.

All of this, as said, is pretty close to, sometimes even identical with, some of the speculations in the July posting. Right now, of course, the general view is that Bush and Israel failed in what they sought to achieve. Hezbollah is not destroyed. It still has lots of rockets. The captured Israeli soldiers have not been returned. Iran and Syria look to be strengthened. World opinion often reviles Israel and the U.S. The whole enterprise looks a failure, or close to it.

Let me digress for a moment before saying why it is still early days to say the Israelis and Bush completely failed. I saw the Yale mediocrity on television the other day bleating. Not speaking. Bleating. In that way he has that bespeaks stupidity. He could not understand, he bleatingly spun, how Hezbollah could say it had won, when it used to occupy in safety a state within a state (more formally called, I think, an imperio en imperium), but now has to retreat out of what used to be its “safe area.” Oh my. What a dummy even to try to spin such bull shit. The aims of Israel and the U.S. were not accomplished: Hezbollah proved a tenacious (at minimum) opponent. It held off what is considered the Mideast’s most powerful army. It fought better, probably, than any Arab force previously has against Israel. It fought so well that bitter recriminations are beginning in Israel – which despite the vaunted, claimed intelligence of Jews was stupid enough -- had generals and politicians stupid enough -- to follow some of the disastrous techniques by which Americans -- Bush, Cheney, and Rumsfeld -- failed in Iraq (with Bush and Cheney wanting Israel to follow their stupid, failed tactics). Hezbollah fired thousands of rockets into Israel, when a major, failed point of Israel’s action was to stop this. Hezbollah’s patrons, Syria and Iran, were strengthened in various ways. The Lebanese ultimately came to support Hezbollah. America is even less trusted now as an honest broker than before. And George the Stupid, George the Spinner cannot understand why Hezbollah claims victory? Oh my, our country is in real trouble with a boob like this in charge. Of course, we’ve known this for a long time, haven’t we. (There’s no question mark at the end of the last sentence. It’s not a question. It’s a flat statement.)

But enough digression. Back to the question whether Israel and Bush did or did not fail by launching and fighting this war. There is one thing that Israel’s campaign did prove in all probability. It is that, just as Israeli bombing and shelling turned Lebanon into a basket case, so too in all likelihood American bombing, without using nukes, can, if we choose, turn huge sections of Iran and Syria into vast wastelands that will look like Berlin in 1945. Israel bombed Lebanon for a month. What if we were to bomb Iran the same way for six months or a year? Oh my.

A second point is related to the first. While Lebanese may admire Hezbollah and Nasrallah now, how will they feel about them three or six months from now, when the Lebanese are still living with the results of massive destruction? The Germans, if I am correct, partly because of the vast destruction of their country by the U.S., Britain and Russia, (pictures of Berlin in 1945 are simply not to be believed) ultimately began to rethink their prior support for Hitler. Maybe the Lebanese will ultimately feel the same about Hezbollah because of what it brought upon them. More to the point, maybe the Iranian public, if not the leaders, seeing what happened to Lebanon, and knowing it can happen to Iran, only worse, far worse, may begin to rethink support, voluntary or compelled, for a regime that may bring this down on them. Maybe, that is, the destruction in Lebanon may do some good with regard to Iran after people have had time to think about the situation for a few months. This is far from certain, and could even prove to be the opposite of what happens, but it is not impossible.

Of course, there is one point which conceivably could do immense good in helping cause the foregoing kind of reaction in Iran. It is a point which worked in Cuba in 1962, and maybe it would work now (although Ahmadinejad, perhaps unlike Khrushchev, is regarded by many, even UN atomic weapons inspectors, it seems, as a certifiable nut). It is a pledge of noninvasion. Right now a lot of people agree that one driving force behind Iranian nuclear efforts is the view that a country we don’t like has to have the bomb in order to forestall possible invasion by the United States. There is much to this view, I am sorry to say. But probably, as with Cuba in ’62, we could elide it by a firm pledge not to invade Iran if it in turn pledges not to seek or acquire nuclear weapons or other weapons of mass destruction, and opens itself to inspection to prove that it is living up to its pledge.

Unless some kind of deal like this is worked out, it is hard to see how there is going to be anything but an ending that in one way or another is terrible to the current imbroglio over Iran’s efforts to obtain nuclear weapons. And the apocalypse, if there is to be one, could come sooner than anyone likes to think. After all, Iran must give an answer before the end of August to the UN’s demand about belaying its nuclear weapons efforts, and today is August 17th. If Iran does not agree to belay its efforts, there are supposed to be sanctions. But, it is widely thought, George Bush has a messianic streak. And, as I understand it, he is of the belief that God speaks through him (which is a canard upon God). How long will such a person be satisfied with mere sanctions? We know it was his intent to invade Iraq regardless of what the UN did. Why won’t he intend and do the same against Iran.

And if he does launch a war against Iran, what will the Congress do? Nothing, one estimates. What will the military do? Follow his orders, one estimates. And what will our people do? Nothing, one again estimates, but this is chancier. Chancier indeed, and fraught with possibilities that could make the domestic uproar over Viet Nam seem child’s play. Better by far to pledge noninvasion and hope this may cause the Iranians to agree to forego nukes out of fear that otherwise their country could be destroyed far worse than Lebanon has been destroyed. And, by the way, it also wouldn’t hurt to formally apologize for the U.S. having engineered the overthrow of Mossadegh and the concomitant restoration of the Shah in 1953, an act which is the fundamental reason why the Iranians came to hate us and, in 1979, seized our embassy and took American hostages.*


* This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. Dean Velvel’s podcast can also be found on Itunes or at www.lrvelvel.libsyn.com

Tuesday, August 15, 2006

Appended Speech From a Visitor To Israel

August 15, 2006

Re: Appended Speech From A Visitor To Israel

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

I have appended a speech given by a returned visitor to Israel. A friend sent it to me with the comment “Facts very few newspapers publish.” Or tv stations show as a general rule, one might add. Thos readers of this blog who think Israel “done bad” in the war or is the Nazified juggernaut of the Middle East or who for other reasons favor Lebanon, Hezbollah, Hamos, the Palestinian position, Syria or Iran should not bother to read the appended speech. It will tell you things you will not wish to hear, will not want to know, and will automatically refuse to believe.*


WHEN I ARRIVED IN ISRAEL AT THE BEGINNING OF JULY, I FOUND ISRAELIS UPBEAT AND OPTIMSITIC. THE ECONOMY WAS BOOMING, HAVING RECOVERED FROM FOUR DEVASTING YEARS OF THE INTAFIDA AND THE HI TECH SLUMP. A RECORD TOURIST SEASON WAS FORECAST AND NEW CONSTRUCTION -- FROM HOUSING TO HIGHWAYS TO INDUSTRIAL PARKS -- COULD BE SEEN EVERYWHERE. WHILE THE SCARS FROM THE TRAUMATIC WITHDRAWL FROM GAZA A YEAR EARLIER WERE STILL FRESH, MOST ISRAELIS SAW THE DISENGAGEMENT AS A POSITIVE DEVELOPMENT. SUICIDE BOMBINGS WERE FEW AND FAR BETWEEN, THANKS TO THE SECURITY BARRIER AND OTHER MEASURES. AND EVEN THE FREQUENT ROCKET ATTACKS FROM GAZA AND LEBANON, FROM WHICH ISRAEL WITHDREW 6 YEARS EARLIER, WERE CONSIDERED TOLERABLE IF INEXCUSABLE.

FOUR DAYS LATER THE WORLD CHANGED DRAMATICALLY. THE BRAZEN KIDNAPPING OF 2 ISRAELI SOLDIERS BY HIZBOLLAH, FOLLOWING ON THE HEALS OF A SIMILAR INCIDENT IN GAZA SEVERAL DAYS BEFORE, BROUGHT HOME THAT WHAT WAS AT STAKE WAS NOT LAND FOR PEACE BUT THE VERY EXISTANCE OF THE JEWISH STATE. ISRAEL’S ENEMIES -- HIZBOLLAH, IRAN AND SYRIA --MADE IT PAINFULLY CLEAR THAT THEIR INTENT WAS NOTHING LESS THAN THE DESTRUCTION OF ISRAEL. THE FEELING ON THE STREET WAS VIRTUALLY UNANAMOUS: ISRAEL MUST DO EVERYTHING IT COULD TO DESTROY THE ABILITY OF HIZBOLLAH TO SERVE AS AN INSTRUMENT TO WIPE ISRAEL OFF THE FACE OF THE MAP, TO QUOTE AN INFAMOUS IRANIAN PRESIDENT.

THE IMPACT OF THIS WAR ON THE LIVES OF ISRAELIS IS DEVASTATING AND FAR REACHING. FOR THE FIRST TIME SINCE THE 1948 WAR OF INDEPENDENCE THE CIVILIAN POPULATION IS ON THE FRONT LINES. THE NORTH OF ISRAEL, EVERY CITY, EVERY BUILDING, EVERY CITIZEN IS PART OF THE BATTLEFIELD. EACH DAY HUNDREDS OF MISSLES ARE FIRED INDISCRIMATAELY, WITH NO PRESIGNATED TARGET AND NO PURPOSE OTHER THAN TO KILL, MAIM AND MAKE LIFE HELL FOR PEOPLE LIVING IN THE NORTH.

LET ME TRY TO GIVE YOU A SENSE OF HOW THIS WAR IMPACTS ON THE DAILY LIVES OF ISRAELIS. FRANKLY IF YOU ARE IN JERUSALEM OR TEL AVIV OR ANYWHERE TO THE SOUTH DAILY LIFE GOES ON SEEMINGLY NORMAL. IT IS THE 1.5 MILLION ISRAELS IN THE NORTH THAT ARE MOST DIRECTLY AFFECTED. HAIFA, ISRAEL’S THIRD LARGEST CITY IS A GHOST TOWN AND THE GOVERNMENT HAS TAKEN THE UNPRECEDENT STEP OF EVACUATING KIRYAT SHIMONA, ONE OF THE HARDEST HIT OF THE NORTHERN COMMUNITIES.

· FACTORIES AND BUSINESSES HAVE CLOSED OR ARE ON DRAMTICALLY REDUCED SCHEDULES. TENS OF THOUSANDS ARE OUT OF WORK, WITH NO SOURCE OF INCOME.
· OVER 20,000 SCHOOL AGED CHILDREN HAVE BEEN RELOCATED TO SAFE HAVENS IN THE MIDDLE AND SOUTH OF ISRAEL.
· THOSE WHO REMAIN, MOSTLY THE POOR, DISABLED AND RECENTLY ARRIVED IMMIGRANTS, LIVE IN CROWDED, UNDEREQUIPPED BOMB SHELTERS THAT WERE NOT DESIGNED FOR PROLONGED STAYS, JUST QUICK DECISIVE 6 DAY WAR. MANY LACK AIR CONDITIONING, ADEQUATE LIGHTING AND BASIC SANITARY FACILITIES.
· THOUSANDS OF NEW IMMIGRANTS HAVE BEEN MOVED FROM ABSORPTION CENTERS IN THE NORTH. MANY HAVE BEEN IN ISRAEL ONLY A FEW MONTHS. THEIR ULPAN HEBREW LANGUAGE CLASSES ARE FILLED WITH WORDS LIKE MISSLE, SOLDIERS, DEAD AND WOUNDED SO THEY CAN BETTER UNDERSTAND THE NEWS BROADCASTS.
· THE NEWS BROADCASTS ARE FILLED WITH FUNERALS, BURNING BUILDINGS AND A RESOLUTE MESSAGE FROM ORDINARY CITIZENS AND GOVERNMENT OFFICIALS ALIKE THAT ISRAEL MUST AND WILL PREVAIL
· A VISIT TO HAIFA TO WITNESS FIRST HAND THE DESTRUCTION FROM A MISSLE BARRAGE. THE DETERMINED VOICE FROM THE BALCONY OF A MAN WHOSE APARTMENT WAS DAMAGED IN THE LATEST ATTACK: ISRAEL WILL WIN; WE ARE STRONG. I SAW UP CLOSE AND PERSONAL WHY THESE MISSLES ARE SO DEVASTATING:THEY ARE FILLED WITH BALL BEARINGS THAT SPRAY OUT IN A 200 YARD RADIUS AND RIPE TO SHREDS ANYONE IN THEIR PATH;
· ROUTINE EVERYDAY LIFE IS A FACADE; THE IDF ISRAEL DEFENSE FORCES IS PRIMARILY A PEOPLE’S ARMY; A CALL UP OF THE RESERVES AFFECTS EVERYONE; HUSBANDS AND SONS; WIVES AND GIRLFRIENDS;COLLEAGUES AND NEIGHBORS
· THE BEST AND THE BRIGHTESTOF ISRAELI YOUTH VOLUNTEER TO SERVE IN ELITE COMBAT UNITS; THEY KNOW WHAT IS AT STAKE AND WANT TO BE IN THE FOREFRONT OF DEFENDING ISRAEL; THEY ARE ALSO THE ONES WHO HAVE THE HIGHEST CASAULITY RATE IN THIS URBAN WARFARE.
· THERE ARE TWO COUPLES WHO ARE MY CLOSEST AND DEAREST FRIENDS IN ISRAEL. DURING THE FIRST WEEK OF THE WAR I CALLED ONE OF THEM TO MAKE ARRANGEMENTS FOR SHABBAT. THEY WERE AT FUNERAL FOR BENNY HILLMAN, A YOUNG MAN WHOSE WEDDING THEY HAD ATTENDED THREE WEEKS BEFORE. DURING THE SECOND WEEK OF THE WAR I RECEIVED A CALL FROM THE OTHER FRIEND. ONE OF HER FORMER STUDENTS, SOMEONE SHE HAD REMAINED IN TOUCH WITH OVER THE YEARS, HAD JUST BEEN KILLED. LAST WEEK ANOTHER SOLDIER FROM HER HOME TOWN OF PHILADELPHIA WHOSE PARENTS WERE MEMBERS OF HER FORMER CONGREGATION DIED.
· WHICH LEADS ME TO HOW ISRAEL IS FIGHTING THIS WAR.CONTRARY TO WHAT THE MEDIA WOULD HAVE YOU BELIEVE, ISRAEL IS NOT INDISCRIMINATELY BOMBING AND TARGETING CIVILIANS. I VISITED ONE OF THE MAJOR AIRFORCE BASES FROM WHICH OPERATIONS ARE CONDUCTED. THEY SHOWED US VIDEOS WHICH CLEARLY REVEAL MISSLES FIRED FROM APARTMENT COMPLEXES, SCHOOLS AND OTHER CIVILIAN SITES. HIZBOLLAH HAS INTENTIONALLY EMBEDDED ITSELF WITHIN THE LEBANESE CIVILIAN POPULATION, USING THEM AS SHIELDS BEHIND WHICH THEY BRANDISH THEIR SWORDS. EVEN IN THE FACE OF THIS REALITY, PILOTS MUST OBTAIN SPECIAL PERMISSION TO BOMB THESE TARGETS AND ARE NOT ALLOWED TO DO SO IF THERE IS A HIGH PROBABILITY OF CIVILIAN CASULTIES. IF A SITE IS APPROVED, LEAFLETS ARE DROPPED ALERTING THE CIVILIAN POPULATION THAT THE SITE IS A TARGET. THE SAME PROCEDURES APPLY WHEN GROUND FORCES CONDUCT OPERATIONS. THIS PUTS ISRAELI SOLDIERS AT RISK, BUT PRESERVES A CORE PRINCIPLE OF JUDAISM: THE SANCTITY OF HUMAN LIFE


ISRAELIS DO NOT WANT OR EXPECT US TO JOIN THEM IN THE BOMB SHELTERS TO ENDURE THE DAILY BARRAGE OF MISSLES. ISRAELIS DO NOT EXPECT OR WANT US TO SEND OUR HUSBANDS AND SONS TO PICK UP A RIFLE AND ENGAGE A CUNNING AND DEADLY ENEMY. AND ISRAELIS DO NOT WANT US TO LOOK AT THEM AS POOR COUSINS WHO NEED A HANDOUT.

WHAT ISRAELIS WANT FROM US IS TO STAND SIDE BY SIDE WITH THEM IN THEIR STRUGGLE; TO RECOGNIZE THAT THEY ARE FIGHTING ON OUR BEHALF FOR THE EXISTANCE OF A PLACE THAT WE JEWS CAN CALL OUR OWN. AND THEY WANT US AS PARTNERS TO SHARE WITH THEM THE ENORMOUS FINANCIAL BURDEN TO COPE WITH THIS TRAGIC AND COSTLY WAR.

AND THAT IS WHY WE ARE HERE THIS EVENING.




* This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. Dean Velvel’s podcast can also be found on Itunes or at www.lrvelvel.libsyn.com

Friday, August 11, 2006

The Seventh Circuit's Abominable Decision In The IBM Pension Plan Case.

August 11, 2006

Re: The Seventh Circuit’s Abominable Decision
In The IBM Pension Plan Case.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

As readers of this blog know, my view is that honesty is a supreme virtue, maybe the supreme virtue, because other virtues (e.g., competence) depend upon it. Correlatively, the dishonesty of our political and everyday lives strikes me as the supreme defect from which we suffer, because it leads to so many other problems.

Perhaps less known to readers is that my regard for the federal judiciary is very low. It is extremely unhappy to be compelled to believe that the Warren Court, the Court which existed from 1954-1968, was an aberration, was the only even half way liberal or progressive court in 230 years of Supreme Courts. It is equally unhappy to think that we were unable to depend in advance on the Supreme Court to curb an Executive which has repeatedly sought the kind of power Hindenburg ceded to Hitler in 1932, and still cannot depend on the Supreme Court to curb the Executive because the Court has thus far, in a cowardly way, only put its toe into the water, has given little in the way of specifics, has not dealt with the vast majority of the problems raised by the Bush/Cheney Hitlerian grab for power, and because the Supreme Court, like the lower federal courts too, is increasingly filled with right wing reactionaries, lately ones appointed by Bush, who may yet appoint more (and certainly will appoint many more reactimaries in the lower courts). Nor can we depend on the Senate to stop this since, with the help given to Republicans by conservative Democrats such as Joe I (It’s All About Me) Lieberman, the Senate has shown itself incapable of stopping the right wing takeover of the judiciary.

I don’t usually write about the semi-obscenity called the federal judiciary. Maybe this is because, after 40 years of watching the obscenity to one degree or another -- sometimes as a participant or close observer, sometimes intermittently -- its misconduct bores me, the more so since it’s expectable. Maybe it’s because the courts try to hide their misconduct in stilted writing and jargon that only a lawyer could love and in layer upon layer of logical complexities. Whatever the reason, this blogger does not write much about the abysmal federal judiciary.

There is, however, a junction at times between the dishonesty one reviles and the federal judiciary about which one rarely writes. This junction arises, for instance, when judges or Justices make up or virtually make up their own facts, when lawyers who worked on a case thus say they don’t recognize their case in a court’s opinion. Tony D’Amato of Northwestern University Law School has written about this. I have too. So have others. It is not a terribly infrequent occurrence. It is a technique of simple dishonesty that judges use to arrive at decisions they wish in advance to arrive at. If you want a simple analogous example from the political world that will make this really easy to understand, think WMDs -- that is, think the Bush/Cheney false claims about WMDs, false claims, invented facts, put forth to enable Bush/Cheney/Rumsfeld to accomplish their heart’s desire of invading Iraq.

Another example of the junction between dishonesty and the federal judiciary arises when courts allow parties to get away with dishonesty, sometimes truly gross dishonesty, and sometimes, by the way, make up facts in order to allow a party to get away with dishonesty -- a phenomenon which conjoins courts’ own dishonesty with allowing parties to get away with being dishonest.

My favorite all time example of allowing dishonesty was perpetrated roughly 40 years ago by a Second Circuit Court of Appeals judge named Henry Friendly. Henry Friendly was next to God in the pantheon created by the Harvard and other fancy pants lawyers of my generation. Or maybe he was above God. As a student he apparently had gotten one of the highest grade point averages (maybe even the highest GPA) anyone ever got at the Harvard Law School. He was regarded by his law clerks as a brilliant and wonderful man. (I was once, around 1970, in a meeting with him about a draft of a book on Presidential war powers written by a then Columbia Law School professor, later federal judge and top State Department lawyer, named Abe Sofaer; it was clear in the meeting that Friendly was in fact a very smart guy. But Friendly got it in mind once that the SEC had made a terrible mistake in charging some then unknown capitalist with crooked conduct of one sort or another. So he wrote an opinion in which he twisted and turned and invented and rationalized in the interest of supposedly showing why this character had been unjustly charged and was not guilty. The problem was: in a few years this character became infamous for the scope and nature of his dishonesty, and has been on the lam now for over 30 years, I think. His name is Robert Vesco.

Nice going, Henry. Way to let dishonesty off the hook.

Well, that is my all time favorite; perhaps in part because I was probably one of the few who said early-on that Friendly’s opinion was a pile of you know what.

But there are, of course, many other opinions that are themselves dishonest or reward the dishonesty of parties. Last year I wrote about the Arthur Andersen case, in which the Supreme Court wrote a ridiculous opinion letting Arthur Andersen off the hook for its dishonest misconduct. (The post is dated June 20, 2005, and is printed at p. 460 of Blogs From The Liberal Standpoint: 2004-2005.) I also wrote about the judicial approval of the government’s dishonest screwing over of soldiers who were told and thought they had signed up for the reserves for only a one year trial, but later were told that the fine print had them hooked for several years and so they were going to be sent to Iraq. (This post is dated December 6, 2004 and appears at p. 14 of Blogs From The Liberal Standpoint: 2004-2005.) And just a few days ago a case was decided by the Seventh Circuit Court of Appeals which rewarded dishonest misconduct being widely practiced in the corporate world.

Although I do not follow the federal courts closely these days, one has the subjective impression that there are some names that regularly seem to come up in the newspapers when one of the federal appellate courts delivers a particularly right wing, retrograde, or anti-civil liberties opinion. The names of two deep dyed conservatives judges spring to mind: the widely-thought-brilliant Frank Easterbrook of the Seventh Circuit, who with Richard Posner was long thought the intellectual star of that Circuit, and the name of political hack, friend – and - associate-of-Jesse Helms, Judge David Sentelle of the District of Columbia Court of Appeals. Thus it is that, just a few days ago, Easterbrook delivered an opinion that allows huge companies all over the country -- hundreds of them -- and smaller ones too, to dishonestly screw millions of older workers out of major portions of the pensions they expected to have when they retired. It is not enough, you see, that people who worked for a company for 20 or 30 years suddenly found themselves out of a job. Nor is it enough that companies’ pension plans for workers weren’t funded, or were funded with company stock that declined terribly in value, so that, while top executives escaped with tens of millions in golden parachutes or funded pensions, or stock options worth millions for bringing companies out of bankruptcy, ordinary workers found themselves with little or nothing by way of pensions when companies fell on hard times or went bust.

No, none of this was enough. So it was also necessary to screw workers by changing the nature of their pension plans after they had put in 20 or 30 years at a company, so that they would get a much smaller pension than they had been promised or been counting on, plans that could well have been the reason for staying at a company for such a long period of time.

This cheating, this defrauding, of older workers was accomplished by companies switching from so-called traditional types of pension plans to so-called cash balance pension plans. It is not worthwhile here to delve into the exact mathematical methods by which the switch in plans accomplished the fraud upon older workers; the accounting, the mathematics, the terminology are all far too complicated to make such an exercise fruitful here. Suffice to say that nobody, but nobody, denies that they ended up with pensions smaller, often much smaller, than they had been promised or were relying on. The Wall Street Journal -- not exactly a font of left wing liberalism -- said in its article on Easterbrook’s opinion (involving a tiny company called IBM, no less) that older workers “can end up with pensions that are 20% to 50% lower.” That’s right: the switch in plans approved by Easterbrook can cost older workers, who may have been at a company for decades, 20 to 50 percent of the pension they expected to receive and had sometimes worked for decades to get. This is what Easterbrook approved. He was joined by two other judges, one of whom is Daniel Manion. Manion was widely reviled as a reactionary -- his father Clarence, one notes, the Dean of Notre Dame Law School, had been a founder of the John Birch Society -- and he was a legal hack -- more than 40 law school deans said he was unfit for the job when he was nominated to the bench by Reagan 20 years ago, was supported by John R. Bolton -- yes, that John R. Bolton, who is now Ambassador to the U.N. -- and won only by dint of a 49 to 49 tie vote in the Senate, with Vice President George Bush casting a 50th vote in his favor. These, then, are the kinds of life tenured, amply pensioned judges (with pensions much like the ones they have let workers be screwed out of) who are allowing millions of ordinary workers to be deprived of desperately needed money that they worked decades to receive: a rank (even if brainy) conservative like Easterbrook and a reactionary hack like Manion. Revolution, anyone?

You know, it used to be said of Earl Warren that the question he would ask in a case was, “Is it fair?” You don’t think Easterbrook asked whether it was fair, do you? One would never expect a life tenured, amply pensioned, deeply-conservative, elitist federal judge to ask that question, would one? You don’t think he even asked if it was honest for companies to promise workers a given level of pension, for which the workers then worked for years, for decades, and to then withdraw the promise to the workers when they got older and could not start over again, do you? Of course, not.

Well, then, what did the brilliant Easterbrook say to justify this dishonest -- it is dishonest to obtain labor for decades by a promise and to then withdraw the promise - - screwing over of workers. Well, what he said does not bear repetition, is not worth the pain either of the writer trying to write it or the reader trying to understand it. But basically Easterbrook wrote a very complex opinion purporting to prove that the change from a traditional to a form of cash balance plan did not constitute age discrimination against older workers, but instead “is age-neutral” even though older workers were getting screwed in ways that would never occur to younger workers who are far closer to their starting dates than their ending dates. To ostensibly prove age-neutrality he sought to display intellectual pyrotechnics through complicated, often mathematical, discussions of the time value of money, imputed credits, interest rates, defined-benefit plans versus defined-contribution plans, benefit accruals, and other true arcana. But to quote Easterbrook himself when speaking somewhat snippily about arguments made by the older workers, “[all] of these propositions [may be] correct, and [all] of them are irrelevant.” The only relevant points are two that Easterbrook, his buddy Manion and a third judge chose to ignore, chose not even to mention or discuss: (1) The change in pension plans by IBM and hundreds of other companies was grossly unfair to older workers, who had no option to stay with the old plan and consequently lost a major share of pensions they had worked for for years. (By the way, isn’t this discrepancy between older and younger workers, with older ones losing promised benefits and younger ones not losing them, age discrimination in itself?) And (2) it was sheer dishonesty to promise people certain pension benefits, to use the promise to obtain their work for decades, and to then welsh on the promise and cheat the people.*



* This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. Dean Velvel’s podcast can also be found on Itunes or at www.lrvelvel.libsyn.com

From: Richard Boswell
Date: Wednesday, August 09, 2006 5:16 PM
To: velvel@mslaw.edu <velvel@mslaw.edu>
Re: Ramifications Of The "Debate" Between Alan Dershowitz And James Zogby


I am no expert in this area, but my understanding of the law is that at a minimum force is allowed in self-defense but to no more a degree than is required to neutralize or protect oneself. I think that some of the debate as it relates to Lebanon is that the responses have been disproportionate.
I would not be surprised if the thinking on this applies to what we would expect of the police when they are dealing with a hostage taker. Now assuming that you are correct and the Hezbollah are using human shields, which is different than the situation that might be faced by the police -- rockets being launched -- then force could be used sufficient to prevent the launching of more rockets but also to minimize death and injury to innocent civilians. Based on what I have read, the Israeli military has told civilians to leave, and then declared that anyone remaining is a legitimate target. Many of those departing have been targeted or otherwise prevented leaving.
Therefore there may be some situations in which excessive force has been used and others where it has not. I do not think that this is right and wrong situation. The Israelis are not totally unjustified in some of their response. On the other hand on balance I am appalled at what appears to be a general disregard for civilian life. On the other side, there is nothing that justifies Hezbollah's launching of missiles against the civilian population in Israel. One has to admit however that the missiles launched by Hezbollah are much cruder and less accurate than the Israeli air-strikes. This lack of accuracy does not justify the missile launches but in order to maintain your own credibility it is important to be balanced.
As to the fact that the U.S., being caught in a similar situation would do the same as Israel -- to my thinking this is no justification. I am equally critically of my own government when it kills innocent civilians.

R. Boswell

Comment Re: Ramifications of the "Debate" Between Alan Dershowitz and James Zogby

From: Jones, Larry
Date: Wednesday, August 09, 2006 4:00 PM
To: velvel@mslaw.edu <velvel@mslaw.edu>
RE: Ramifications Of The "Debate" Between Alan Dershowitz And James Zogby


Ah, for the 'good old days' of warfare, when columns of marching soldiers faced an opponent's columns of marching soldiers on the open field of battle. Then came the French and Indian War where the Indians dared hide behind trees and in the clefts of rocks.
To the British, only cowards hid behind things. (Which probably explains why they lost almost every subsequent guerilla war (notably the American Revolution and the War of 1812) until WWI when 'modern' warfare began.
Yes, Vietnam was an eye-opener for the U.S. Use women and children? How barbaric. How cowardly. Yet it was effective.
The little boy coming toward a GI might just want gum, or he might be laden with explosives. Rules changed.
Actually, they had changed during WWII The story is told how during one particular encounter between Patton and the Germans
the Germans had strapped near naked women to the front of their tanks to keep the Americans from trying to blow up the tanks.
One young Lt. asked Gen. Patton, "what do we do?" Patton is said to have responded, "you do your job, soldier, and blow up
the tank." "But what about the women," the Lt. asked? "I don't see any women," Patton responded. "All I see are weapons of war."
When the enemy hides in churches, mosques, schools or shopping centers, these are no longer "civilian" centers; they are now
enemy fortresses. Engaging the enemy is such situations means civilians will be killed. But the outrage and blame lies not with those who kill the civilians being so used by the enemy but with those who changed the rules of war and used civilians as 'weapons of war' in fthe first place. We don't make the rules for every game we play. Sometimes the rules are made for us.
Or we can play 'fair' and stand in the open field and wait to be shot by the man behind the tree.

Thursday, August 10, 2006

Iran. Joe I (It's All About Me) Lieberman

August 10, 2006

Re: Iran.
Joe I (It’s All About Me) Lieberman.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

Two comments on news or occurrences of yesterday, August 9th.

I.

On the first hour of his NPR show, On Point, Tom Ashbrook interviewed a series of prominent Israelis regarding the war. They included, among others, a former Ambassador to the UN, a former Deputy Speaker, and a former Ambassador to the U.S. and Minister of Defense. They represented a range of opinions from what I think to be the far left in Israel to ditto the far right. They were often thoughtful and, a couple having formerly been Americans, were articulate to a degree that is almost unheard of among our crummy, thought-free, verbal stumblebum politicians. Only Adlai Stevenson in my memory can rank with the kind of fluency one got, or gets, from the likes of Abba Eban, Benjamin Netanyahu or one of the interviewees, Dore Gold. And if people on the American left don’t like this comment because I mentioned the likes of Netanyahu or Gold, or on the right don’t like it because I mentioned Stevenson and Eban, that is just too bad. Brilliance and articulateness are exactly that regardless of one’s political point of view. Lots of people didn’t like Winston Leonard Spencer Churchill’s policies, you know.

There is one thing that the discussions on Ashbrook’s show made perfectly clear -- if only by necessary implication -- regardless of where on the spectrum an interviewee’s opinions lay. That is that there must be a serous public discussion in this country (as in Israel too) -- not the sound bite crapola favored by the Bush/Cheney crowd, but a serious discussion -- about what if anything to do regarding Iran. This is especially true because Iran might be nuclear armed in short order. That sanctions will stop this seems very dubious.

As Ashbrook’s program showed, there are numerous possible positions on the question of Iran, some of which were aired, some not. For example, it may be that the mentality of Iran’s wacked-out leaders represents a threat not just to Israel and, via terrorism, to the United States, but also to lots of middle eastern Arab countries, which consequently may begin to band together -- even with Israel -- to put the brakes on Iran after the current war is over. This possibility would argue for using diplomacy and negotiations, not military action, to curb Iran. Or it may be that once seeing, through presumed atomic tests, just what nuclear weapons can do, even Iran’s leaders will moderate their actions, conscious that whatever they can do to Israel or the United States will be returned twenty fold or one hundred fold on them and their country -- which would get pretty much wiped off the map, I imagine. (Even the Soviet communists, who were our sworn enemies and had hundreds and then thousands of nuclear weapons, did not cross the abyss.) Or it may be that people like Ahmadinejad are so nuts, are so in thrall to the idea of Islamic martyrdom (I think Bernard Lewis probably believes this) that they would use their atomic weapons on Israel, Europe, the U.S. or whatever country can be reached by their presumably ever greater numbers of ever longer-range long range rockets, so that it behooves the western world to take out the current Iranian government now by military means even if this causes a major conventional war, lest we seriously risk a far worse nuclear war five or ten or twenty years down the road. Or it may be that time changes and heals all things, so that the best policy, once again, is to continuously use diplomacy and negotiation.

This author does not know the best course to take. But it seems that one can be confident that we better have a serious discussion about this, and this is true even if such a discussion were to eventuate in a considered decision to do little but let time take its course.

II.

Joe I (Its All About Me) Lieberman says he is going to run for Senate even though he lost the primary -- and by a reasonably healthy margin too. (Like politics itself, four percent ain’t beanbag.) Well, what else does one expect? All politicians (or nearly all) are crumbum egotists who, like Joe I (Its All About Me) Lieberman, think it important for the world to have the benefit of their putative talents in high places. Joe I (It’s All About Me) Lieberman, who has explicitly let us know that it would be a crushing loss to the nation not to have him in the Senate, is merely a perhaps somewhat polar example of the breed. This is a guy, after all, who, unlike some other pols (e.g., Edwards, Goldwater, William Miller (remember him -- he gave up his House seat to be Goldwater’s running mate) or Dole (who gave up his senate seat to run for President) -- but, tellingly, like the egomaniacal Saint Lyndon Johnson(and the egomaniacal Lloyd Bentsen) -- ran for the Senate simultaneously with running on his party’s national ticket so that he wo+uld keep his Senate seat even if he did not become Vice President. As well, Joe I (It’s All About Me) Lieberman obviously thinks it crucial that the Senate have a leading Democrat, like him, who will help Bush and Cheney continue to fight their misbegotten war in Iraq, and who -- remember this? -- will help them install deeply conservative Justices and judges whom people of more moderate views think a menace to decency and freedom in this country. Such help to Bush and Cheney is, after all, nonpartisanship, as Joe says, and as Cheney agrees.

What’s more, Joe I (It’s All About Me) Lieberman is in the throes of the panic which affects a pol who is faced with being thrown out of office and has only briefly held a real job -- who has only briefly worked in the private sector instead of government and so rarely has had to scramble for a living like us ordinary folks. What to do, what to do when you have no experience that fits you for anything other than suckling at the government you-know-what or maybe working as a hack K Street lobbyist, which is what lots of our pols, even high rankers like Mitchell and Dole (the Viagra man) turn into, but which Joe would probably not want to stoop to since he no doubt sees himself as an exemplar of religious morality because he is Orthodox. Oh, what to do, what to do? Obvious answer: run for the Senate and hope to win, so that you can continue suckling at the government you know what, can continue to help your pals Bush and Cheney, and can continue to give America the benefit of your talents, which you know America cannot do without.*
* This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. Dean Velvel’s podcast can also be found on Itunes or at http://www.lrvelvel.libsyn.com/

Wednesday, August 09, 2006

Ramifications Of The "Debate" Between Alan Dershowtiz And James Zogby

August 9, 2006

Re: Ramifications Of The “Debate” Between
Alan Dershowitz And James Zogby.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

Last night, on Larry King live, Alan Dershowitz and James Zogby had what passes for a debate on television. Each had their strong and weak points, including certain types of conduct that one abominates (e.g., vigorously shaking one’s head negatively as the other speaks, vocally interrupting the other). But at the end of the day (or the ten minute or so segment), it was pretty obvious that one point, previously adverted to in this blog, remained without a satisfactory answer. Nor have certain correspondents of this blog, notwithstanding their sheer brilliance and knowledge of law, provided what I would consider a practicable answer (as opposed to a theoretical one).

The difficult question remains this: what do you do when an enemy uses the population as shields in one way or another -- when it lives among them, fires from among them, sometimes deliberately places them where they could get killed, or even physically hides behind women and children and babies. This is a question we have, I gather, often faced in Iraq, that we faced in Viet Nam, and that apparently exists in every guerrilla war. Dershowitz’s answer is that you are forced to reluctantly kill the civilians. Otherwise the guerrillas will kill you with their rockets, etc. And this so-called asymmetrical kind of warfare is a type the democracies will increasingly face -- especially from Muslim fundamentalists, one supposes -- so that it will wreak havoc on the democracies if our morality forbids us from firing at the enemy because civilians are mixed in. I think I’ve got Dershowitz’s views right; if not, maybe someone will tell him so that, if he wishes, he can respond and tell me I’m wrong.

Zogby’s view seems to be that you are not to fire or bomb when your weaponry will kill the civilians. I think I’ve got his view right. If not, maybe someone will tell him to respond to me to say I am wrong.

Both of them -- as people often do, even usually do -- seem to admix what could be called a matter of pure principle with contextual claims, here contextual claims about who really started or is responsible for this war. Implicit in this is the claim that responsibility for the war determines the justifiability of shooting or bombing when civilians may be killed (conceivably a dubious proposition in either direction). Thus, contextual questions such as whether the Lebanese government bears major responsibility because it gave Hezbollah a free pass for several years. (Could it have done otherwise, one might equally ask, without getting its own head chopped off, just as the Syrians had Hariri killed? Is this nonetheless no excuse? Etc.)

Now, I am not wholly confident of my own answers to the relevant questions of principle and context. (I am certain only that any answer will draw howls of outrage.) But I do have some views that, one thinks, could conceivably bear consideration. Maybe they are wrong, but until that is definitively shown, they do, one believes, bear thinking about:

1. It could be thought that the kidnapping of two soldiers should not have led to fighting of this magnitude. Yet the media and the public seem to ignore the fact -- or what I gather to be the fact -- that rockets were regularly being shot into Israel for quite awhile prior to the kidnappings. All those Americans, especially leftists, who excoriate what Israel has done, might ask themselves what they think the United States would do if, say, Mexico were to constantly shoot rockets into the U.S. (Remember the expedition we sent after Pancho Villa after his raid on Columbus, New Mexico? Remember how we nearly started World War III because there were rockets in Cuba that could have been fired against the United States? Remember what we recently did in Afghanistan?) I would put it to you that, as after 9/11, America’s military reaction would beggar Israel’s.

Maybe opponents of what Israel has done would respond that they think America would be doing wrong -- and in the past did wrong -- and that our wrongs don’t make Israel right. If so, I can only suggest, in the words of the old saw that is both figuratively and literally applicable, “Tell it to the Marines.” Right or wrong, we did it and no person who knows anything about this country can doubt we would do it again. Israel’s response is small potatoes in comparison.

This, by the way, is a matter of “context” that one does not hear or see in the media.

2. It is obvious to all that Iran and Syria are the countries basically responsible for what is going on. Still, the government, nation and people of Lebanon must also share major responsibility. For they at minimum tolerated, and to an extent -- a very great extent? -- encouraged the growth of Hezbollah in their midst. People who participated in the Lebanese government in these circumstances are especially culpable.

Those who rail against Israel might remember that we took out (or arranged for the taking out) of the entire Taliban government because it harbored Al Qaeda. I do not see the Lebanese government as being any different than the Taliban in this respect (another point of comparison that one does not hear or read in the media).

There is a serious need to impose some form of serious liability when governmental figures knowingly harbor groups that would wreak armed havoc in other countries -- personally, I would say that, if other nations can get their hands on such figures, they should be clapped in irons for the rest of their (un?)natural lives or put up against the wall.

This question of the responsibility of governments and peoples for the evil they allow to occur -- a principle which includes but is not limited to harboring the Al Qaedas and Hezbollahs (and Hamases) of this world -- is, of course, a two-edged sword, a point I would applaud. It would mean that people in the Eisenhower and Kennedy administrations would be liable for harboring and training the Cuban exile brigade that attacked Cuba at the Bay of Pigs. Amen to that. It would also mean that Americans in general, not just executive branch officers and lots of legislators, bear responsibility for the disastrous atrocity of Viet Nam and for the disastrous abomination of Iraq II, the more so because Americans have political freedom and the vote, yet did not remove the executive and legislative people who fostered these atrocious and wrongheaded wars. As far out as one might think it to say so, it is unlikely that we will ever put an end to war until we start seriously punishing those who are responsible for wrongheaded and/or evil ones. (I assume here the concept of just war -- not everyone would admit to such a possibility, one thinks.) There is a reason why Bush, Cheney et. al. do not want there to be international criminal courts: they might be among the first in the dock. They would, of course, be closely followed by Assad and the other nuts in Syria and by Ahmadinejad and his wacked out colleagues in Iran who want to wipe Israel off the map.

3. There is the question of the U.N. In terms of peacekeeping on the ground, it is, I suspect, pretty much a serial failure (like Bush in business and government). To allow the Arab countries and those here and elsewhere who agree with them to bully us into using a UN force -- as opposed to, say, a multinational one run by governments -- to keep the peace in southern Lebanon in the future would be, in terms Americans can understand, like trying to turn an habitually losing college football team into a winning one by hiring a coach with a lifetime record of winning 20 percent and losing 80 percent of his games. It is nuts or, in the case of the UN, at least semi-nuts.

4. The civilian casualties of rockets and bombing. At least until the last few days, the American media (took care to?) show mainly the Lebanese casualties. This contrasts dramatically, by the way, with our media’s years-long failure to equally show the civilian casualties of American bombing and artillery in Iraq, casualties which apparently are in the many thousands or tens of thousands -- far higher than those caused by Israel. I do not think the discrepancy is wholly fortuitous. When one shows the civilian casualties, one is liable to turn viewers against the nation or group inflicting them -- as has occurred in the present war in Lebanon. The American media won’t risk this with Iraq; it has been scared to death to do things, like regularly showing the horrible Iraqi civilian casualties we cause, that might cause it to suffer retribution from the Executive (not to mention some of the Executive’s nutbag henchmen in Congress). The media have no such fear of Israel.

So the media have shown the Lebanese civilian casualties from the beginning, thereby turning people against the Israelis, but have shown Israeli civilian casualties only to a far lesser extent (although there clearly have been such casualties, albeit many fewer because Hezbollah’s thousands of rockets are not as effective at killing people as Israel’s aircraft and artillery). And, showing Lebanese casualties, the media too often ignores the whole background and context of what led up to this war. It is needless to say, I presume, that the American media, especially the electronic media but also much of the print media, is usually quite inept when it comes to background and context. (And, apart from this, it sometimes does not even seriously cover major horrid events. Darfur, anyone?)

5. Then there is the fundamental, so far not satisfactorily resolved question, on which Dershowitz and Zogby took different sides: what do you do when the enemy hides among, uses as shields, and fires at you from among the civilian population? Personally, I don’t think there is yet a satisfactory practical answer to this question.

A nation cannot allow its safety to be jeopardized in this way. This is only the more true of a nation like Israel, which lives with memories of the holocaust, which the rest of the world, particularly including Britain and the United States, did not lift a finger to stop, though they knew what was going on. Opponents of Israel like to forget these inconvenient facts and, indeed, revile those of us who remember them, excoriating us precisely because we do remember them. The opponents see Israel as now being some mighty force, or at least they claim this, forgetting and ignoring 2,000 years of history that Israelis (and Jews everywhere) live with. A nation which feels threatened will believe there are circumstances -- broad ones, one fears -- that necessitate what military people and their supporters like to soften by the phrase “collateral damage.”

The weak of the world, on the other hand, those whose only weapon is so-called asymmetrical warfare, say that such guerrilla tactics (plus suicide tactics) are all they have.

This situation presents a true conundrum at present, unless one takes either the extreme position that democracies (and others) must allow themselves to be harmed, conceivably even destroyed, because they cannot respond to such tactics if the response would kill civilians, or the equally extreme position that killing civilians is just an unfortunate aspect of what we are facing and what we must therefore do. Whatever the supposed solution to the conundrum that may exist in theory, I have not yet heard one that is practicable in fact -- that is practicable when Hezbollah or Hamas or Al Qaeda is firing at you from inside or right next to a building occupied by civilians, has established a headquarters or arms dump in such a building, has its leaders live or hide there, or is using women and children, even babies, as human shields.

All of this has been faced by the U.S., Israel, or both. Even worse, it might get far worse before it gets better if, as some claim, we are facing, God forbid, a clash of civilizations, a horrid possibility that one does not wish to believe but that increasingly begins to look possible as the wild men of Syria and Iran increasingly assert themselves (and Pakistan too, one fears), not to mention the guerrilla groups that are asserting themselves.*



Myfiles/Blogspot/Blogltr.RamificationsDershowtzZogby
* * This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. Dean Velvel’s podcast can also be found on Itunes or at www.lrvelvel.libsyn.com

Thursday, August 03, 2006

From: Ron Walker <ronald.walker@gmail.com>
Date: Tuesday, August 01, 2006 7:49 PM
To: Dean Lawrence R. Velvel <velvel@mslaw.edu>
Re: [Conflict] Email from the Dead/Missing Canadian UN Observer

I believe an important point in regard to your email is this: what do you do when guerrillas hide among the population, fire guns and rockets from among their human shields, and you have no way of separating them from their shields while they continue to fire at and kill you or your citizens? The right says fire at them though you will kill civilians. The left -- and I gather you too whatever side of the spectrum you are on -- says never fire at them though they will continue to kill you and your citizens. The middle has not come up with any bright lines or maybe any line, and certainly not one that is practical in the heat of combat where your own people may die.

A fair point, although I'd disagree with your (central) suggestion that the division is between "left" and "right" (maybe that's where the fault lines are in the USA, but the USA isn't the world). It's essentially an ethical/cultural question, not a political one. And like most ethical/cultural questions, there's no "correct answer" - just answers that feel right. That's a moral-relativist's answer... the USA (and the Islamic terrorists) tend towards a moral absolutism: a belief that God supports your cause, and thus almost anything done in its cause can be forgiven. I pick the expression "ethical/cultural question" because -in my view anyway - culture and ethics are usually inextricably entwined. And that's kind of worrying, in that moral absolutism is growingly the domain of ONLY the USA and of its Islamic enemies. Attemting to present the conflict as a war between "good" and "evil" is probably doomed to failure - and towards increasing isolation of the USA by a world much of which finds moral absolutism morally repugnant. I'm interested that the USA curently finds itself in a situation not very dissimilar to that of the Victorian UK - "the world's only superpower" - and faced with the same temptations. What's particularly interesting is that Victorian England spawned a debate between champions of the two main ways of proceeding: Gladstone and Disraeli; the former propounded the idea that ethical conduct is ALWAYS in a nation's best long-term interests, whereas rthe latter espoused a more "carpe diem; we may not have the abiliity to abuse our poition of power tomorrow!" viewpoint. the USA seems to have spawned a Disraeli... but no Gladstone.

Ron