Tell Me About Michael Bloomberg

August 29, 2007

Re: Tell Me About Michael Bloomberg.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

I would be grateful if knowledgeable readers would let me know their views of Michael Bloomberg and the facts supporting those views. I currently know almost nothing about the man except he became tremendously rich in a business he started, spent a lot -- 70 million perhaps? -- to get himself elected mayor of New York, lives in a home that can be seen from the window of one of my friends’ apartment, and, according to my wife, has said he won’t be a candidate for president. But I am interested in learning about him because of things that happened yesterday and today.

Yesterday a posting here said we need a new kind of candidate instead of the typical amicable mediocrities who go from door to door or state to state for months or years on end in order to be elected. Instead of these hacks we need rational, thoughtful, reflective, smart achievers who seriously study and discuss questions that confront us in order to come up with potential solutions, and who communicate not by pounding on door after door or traveling from state to state for years on end, but by streaming internet video and audio. No names of people who fit this bill were given since, frankly, I did not know of any names. What was being offered instead was a conception, an idea, of what candidates ought to be. (Writers, artists, composer, sculptors, etc. often have visions they are trying to get across, and I was offering a vision without names.)

Today, by freak fortuity, I turned on CSpan II for a few minutes, and saw Bloomberg making a speech at Brookings on efforts to reduce poverty. To my personal amazement, he seemed to be the kind of person who met the vision offered in yesterday’s posting. He was very rational, very thoughtful. It was obvious that he and his aides or officials had thought a great deal about the problem. He offered ideas that have been tried in other countries, while not insisting that beyond peradventure they would work here -- unlike demento, he recognizes the possibility that his ideas might not prove sound. But he brilliantly defended his ideas against the conventional wisdom as to why they should not even be tried, and, like FDR seventy odd years ago, he said we must try something and if it doesn’t work we will improve it or try something else. He did not engage in the platitudes and political crapola that currently passes for political speech in this country, but rather discussed facts and data (and said that in his business data counts).

The speech was very impressive and, if it presents a fair overall picture of the man, would mean he could be exactly the kind of person I had in mind when speaking of the type of politicians we need -- he would be exactly the kind of man who should run for president on a third party ticket. His fitness would not be lessened by his ability to finance a campaign to the extent this might be necessary.

But, as said, aside from listening to parts of this speech, I know almost nothing about the man. Was the speech a fair representation of how he thinks and acts? Or was it an anomaly (as when Joe Biden recently made a very impressive appearance at the National Press Club but, only a short time later, seemed the typical political hack on Tom Ashbrook’s show (On Point) on NPR.)? And what are Bloomberg’s views on important subjects other than efforts to reduce poverty -- on foreign policy, the war, the national security state, the environment, regulation of business and so on? I would really appreciate hearing what other people have to say about this and what facts they cite in support of their views. I am the more interested, of course, because if Bloomberg truly is as he appeared at Brookings, and if he has decent views on a wide range of subjects, he could be a logical individual to run for President at the head of a third party which is desperately needed if we are to break the hold of the national security state mentality and of the mentality that is increasingly screwing over the great mass of Americans who are not filthy rich.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about¬_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

We Desperately Need A New Electoral System, New Methods Of Campaigning, And New Types Of People Running For Office

August 28, 2007

Re: We Desperately Need A New Electoral System, New Methods Of
Campaigning, And New Types Of People Running For Office.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

A couple of weeks ago, on Saturday, August 11th, The New York Times carried an article about a meeting of state Democratic Party officials “from around the country.” The article started on page 1, which evinces a judgment that the matter is of at least some importance, and said the meeting was taking place that very weekend. Oddly, the article was bylined Los Angeles, although the meeting was in Vermont. The reason for the byline seems to have been that the reporter (is she from California?) had spoken with the California party chairman, Art Torres. Also oddly, though the Times thought the subject of the article important enough to put on page 1, my superior researcher could find no follow-up in the Times or elsewhere about what had happened at the meeting.

Here is how the reporter described what I think to be the overall topic of the article:

“Frustrated by a system that has marginalized many states in the presidential election process, or seeking partisan advantage, state lawmakers, political party leaders and voting rights advocates across the country are stepping up efforts to change the rules of the game, even as the presidential campaign advances.”

Two major possibilities were discussed for “chang[ing] the rules of the game.” One is an effort to change electoral rules in California so that, instead of the candidate who received the most statewide votes for president in California getting all of the state’s electoral votes, the electoral votes would be assigned by Congressional districts. In other words, the winner in one district would get that district’s electoral vote, the winner in a second district would get that district’s electoral vote, etc., etc. In this way, California’s electoral votes, which today all go invariably to the Democratic candidate, would instead likely be split.

It is thought that this would insure Republican victory in any close election, because all other states (except Maine and Nebraska) now use the statewide unit rule, under which all of a state’s electoral votes go to the candidate who gets the most popular votes in a state. In this circumstance, the splitting of California’s electoral votes, so that a significant number of them would likely go to the Republican candidate because he or she would get the most votes in particular districts, would insure a Republican victory in a close national election. The Democrat’s loss of a significant number of California electoral votes would mean his or her defeat.

The Democrats in the legislature of North Carolina almost enacted a similar kind of change to the Electoral College system there this year. But Howard Dean stepped in to get the measure tabled. I imagine he understood that if this kind of precedent were set, but were followed in only a few states that included the large ones that reliably vote for the Democratic presidential candidate (New York and California, for example), while not including the large ones that are reliably Republicans (such as Texas), the Democrats would be dead in many if not all Presidential elections, even in ones where the Democratic candidate received a significant majority of the popular vote.

Although the Times did not see fit to write anything (as far as I know) about the results of the meeting in Vermont -- is this the result of a judgment that nothing important happened there, or is it just negligence? -- the proposed new California law disturbed it enough that a week and a half later, on August 22nd, it wrote a lead editorial condemning the California proposal, which it estimated would probably give 20 or more of California’s 55 electoral votes to the Republican candidate. The same editorial spoke favorably -- albeit very briefly -- about a different plan for changing the voting in the Electoral College, a plan sponsored by various political figures including ones who were leading personalities back in the day. Under this plan, put briefly, states would pledge to each other, via interstate compact, to cast all of a state’s electoral votes for the candidate who receives the most popular votes nationwide -- even if that candidate did not win the most popular votes in the particular state. So, for example, if the Republican candidate received the most popular votes nationwide, California would cast all its electoral votes for the Republican even if the Democratic candidate received the most votes in California itself. (The California legislature voted to adopt this plan last year, but Arnold Schwarzenegger vetoed it.)

The national sponsors of this idea seem to have figured out pretty much everything in connection with it. Their arguments (and the, I think weak, counter arguments) are in a book, on the web and have sometimes been mentioned in the print media. I don’t intend to get into most of the various pros and cons. All I will say here about the pros and cons is that the plan seems to be constitutional beyond doubt, requires no constitutional amendment ridding us of the Electoral College, and would cause presidential candidates to have to worry about the votes in every state. For every vote in every state would count in the national popular vote, so candidates could no longer ignore most states because victory there is in the bag for one side or the other (as in California and New York), and could no longer focus only on 13 to 17 so-called battleground states (Ohio, Florida, Wisconsin) whose entire total of electoral votes are truly up for grabs under the present winner take all, or unit, rule followed in all states but Maine and Nebraska. (Maine and Nebraska follow the district by district system that some California Republicans are trying to foist on that state). Republican candidates would have to contest New York and California because millions in those states might vote Republican, and Democrats would have to contest the South because millions there might vote Democratic.

There is one other matter, however, which I wish to point out about the proposed new plan; it is a matter which, as far as I know, has not been discussed either by the plan’s sponsors or by the limited comment in the media. The plan, as said, provides that Electoral College victory will go to the candidate who gets the most popular votes. But the most popular votes does not mean a majority of the popular votes. A candidate could win with 40 percent or less of the popular vote -- as Lincoln won with less than 40 percent. Although one deduces that to some people, maybe a lot of people, the plan is attractive because under it Al Gore would have been President, not the incompetent, semi demented George Bush (though neither was even close to a popular majority), it also remains true, despite Lincoln, that some very bad people besides Bush II have become president with only a plurality of the popular vote, not a majority. Exhibit Number One would be Richard Nixon (who had only 43.4% of the popular vote in 1968). Exhibit Number Two for a lot of us, because of his lack of morality or honesty (though many love him), would be Billy Bob from Arkansas in 1992 (who got only 43 percent of the popular vote). Another, with perhaps a more mixed record and character, who got elected with only a plurality was Wilson (who got 42.5 percent of the vote). One might add that a president who got elected with a majority but was awful was Lyndon Johnson, whose huge majority in 1964 (when he had 61.7 percent of the popular vote) was even (a bit) larger than Nixon’s in 1972. (Nixon got 61.1 percent). So we can get awful presidents by a majority of the popular vote as well as by a plurality, though it has to be said that both that Johnson and Nixon had the often huge advantage of already being a sitting President in 1964 and 1972 respectively, that Johnson probably could not have initially won the Presidency on his own, and that Nixon, as said, had only a plurality in 1968 -- and a thin one at that (43.4% for Nixon to 42.7 for the second place Humphrey).

The question which arises under the proposed new plan of electing presidents is whether it is sufficient to provide, in a nation which supposedly follows majority rule at least most of the time, that the winner of the most popular votes will win the presidency -- even though this candidate may have a plurality of only 42 or 43 percent - - or less. Or, rather, should the plan provide some method of insuring that the winner obtains a majority of the popular vote. There are ways that automatically do the latter by taking account of voters’ ranked preferences when no candidate has an initial majority.

My strong preference would be to build in a method of arriving at a majority of the popular vote, so that a state’s electors would be voting for the candidate who received a majority, not just a plurality. This seems to me more in keeping with the proposed new system’s fundamental goal of bringing the election result more in line with the popular will. It will also be a further step towards opening up the electoral system to a dire necessity upon which the future of our country may depend, even likely depends. That is, it will be a step towards making it possible for a third party to put up a candidate when, as now, millions are extremely dissatisfied with the choices likely to be given us by the two major parties. A third party is essential because it will, I think, take a third party to allow us to shed the national-security-state, Washington mentality which the two major parties are locked into, which they maintain regardless of the votes of the populace, and which will destroy us as surely as it has destroyed previous empires. Opening up the system to a third party (or parties) is probably the only way to overcome our addiction to the national security state, an addiction replete with industrial, technological, and repressive appurtenances, including domestic spying.

It does not seem likely to me that one can comfortably rely on either of the current two major parties to overthrow the ultimately-disaster-producing national security state. Much blame for the advance of the national security state is currently placed on the demento in the White House. And he did take it to new heights. But the truth is that the national security state had its origins back in the late ’40s and early ’50s, under Truman and Eisenhower, due to the Cold War against Communism and everything the country felt it necessary to do to combat the Communists. And, at the end of his period in office, Eisenhower even specifically warned against one important aspect of the national security state, the military industrial complex. But then the situation only got worse and worse under Johnson and Nixon, continued under Reagan and thereafter, and reached its acme to date under demento. Both major parties have bought into it big time, so the failure of Democrats to end the current war after having been elected in 2006 to do so should not have come as a wholly shocking surprise to people who put them in office to stop the war. Only a new party dedicated to fundamentally different ideas about America and the world will, in reality, be able to end the national security state. (Or do you really expect the Democrats to do it, if elected?)

The needed third party would be given a great boost by requiring a majority vote to win the presidency, and by implementing this through some form of ranked, instant run off system if no candidate initially has more than a plurality. Such a system would allow people to vote their first choice for a third party candidate whom they favor, with little if any fear that this would throw the election to some Neanderthal if their candidate fails. To take a concrete example, under the system being discussed, Al Gore, not George Bush, would have won in 2000 because it is almost certain that the vast preponderance of people who voted for Ralph Nader -- who got 2.7 percent of the vote when Gore received 48.38 percent -- would have ranked Gore second and that Gore would then have received about a 51 percent to 49 percent majority, or a 50.5 percent to 49.5 percent majority, in the instant run off after Nader was eliminated.

Under the system being discussed, it’s also possible, by the way, that Bush I would have been reelected in 1992, when Clinton got only 43 percent of the popular vote and Perot got 19 percent despite his craziness during the campaign. It is likewise possible, though not certain, that Humphrey, not Nixon, would have been elected in 1968, when Nixon had 43.4 percent of the popular vote, Humphrey had 42.7 percent, and George Wallace had 13.5 percent. (If one has to look back over history, almost any system that would have caused Nixon not to be elected would seem retrospectively desirable.)

To reiterate the bottom line, the political system would be opened to needed third party candidates under the proposed new plan of electing the president, if that plan were supplemented by a run off system that would allow people to vote for a third party candidate without fear of thereby electing another demento from a major party. (Note that, even under a new system, the major parties, which have given us wackos, nonetheless seem likely to receive more votes, at least initially, than a third party candidate.)

But at least as important, and quite possibly even more important in my judgment, the new plan, supplemented by a rankings-based instant run off, would also be a powerful precedent for opening up the Congressional and Senate races to third parties -- it would be a precedent whose example would constantly be cited and might shortly be followed. It is crucial to open up the legislature to third parties. Only in that way is it liable to be possible to elect legislators who wish to cause America to recede from being a national security state, and who will vote for policies that serve the interests of the vast bulk of the country instead of the oligarchy of wealth and power that has run it for about the last 50 years. If forty or fifty third party legislators were elected to Congress (instead of there being only one or two who do not belong to either major party), the debates over policy and legislation would have quite a different cast, the enacted policy and legislation would likely be quite different, presidents could not safely ignore the third party legislators’ views, and we would have a fighting chance to go upward instead of downhill. The initial years of the Republican Party in the 19th century show what a difference can be made by a new party with a fighting chance to win.

Today a third party does not have a chance in Congressional elections to the Senate or Congress because, as in the Electoral College, the states follow a winner take all system. Whoever gets the most votes in a Congressional district becomes that district’s Congressman or Congresswoman. If one wishes to cure this, there would seem to be various possible ways, with the most effective perhaps being statewide proportional representation. But, however it is done, it is important that it be done.

To many, this will seem like pie in the sky, just as, as recently as a few years ago, changing the Electoral College, or its present workings, seemed like pie in the sky. But now its workings may well be changed within a few years, so maybe we can hope that the way we elect Congresspeople can be changed too, especially since the future of the country depends on giving people more choices than the tweedle dum, tweedle dee non- choice between the two major parties that are part of the ruling oligarchy and now monopolize politics in support of the national security state.

And, while I’m bringing up what lots of people will think pie in the sky, let me bring up a matter that goes to the heart of how our crappy politics are currently practiced in this country. If there is one thing that is lacking in current politics, it is thinkers. One does not get elected by spending his or her time reflecting deeply on matters, spending his or her time thinking them out and engaging others in serious discussion about them. For such individuals there is no place in American politics -- a Lincoln, should he come along today, would be dead in the water before he even began. Rather than promoting thinkers and true accomplishers into political office, our politics consists of going from house to house day after day, week after week at the local levels, going from city to town to village to city in state after state after state for years on end at the highest level, various mixtures of these at intermediate levels, and, in general, exhausting one’s body and one’s mind meeting, greeting, flesh pressing, blabbing and bobbing and weaving instead of thinking, reflecting and in a serious way discussing. (This was not the way Lincoln -- or even Harding (to take a bad example) - - sought office. Lincoln didn’t leave Springfield.) Our present anti-Lincolnesque method of politics is virtually guaranteed to get us exactly what it usually does get us, government by a near kakistocracy (government by the worst) instead of government by the best (or at least the quite good). Our near kakistocracy is adept at making themselves look good to people: to get elected they need show a pleasing, amicable personality (like the demento we first knew), a ready smile, good looks, reasonable fluency (although demento initially was semi tongue tied -- but let us not misunderestimate him). They must show themselves the kind of persons you might want to have a drink with. But reflectiveness, thoughtfulness, rationality, high intelligence, extensive knowledgeability, serious achievement -- these are distinctly not part of the game. All this too needs to be changed if the country is to escape the fix it’s been in for decades. Nor would it be difficult to drastically change methods in this age of streaming internet video and audio that enable a candidate to reach gazillions of people.

You know, the kind of people who run large, successful corporations or other businesses, or who successfully run universities, conduct themselves in the way I would like to see politicians’ conduct themselves. Why does anyone think our political methods will produce competent officials instead of the dementos it does produce, when more serious methods are used to obtain more serious, better leaders in walks of life where America is more successful than in politics?*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about¬_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

The Federal Courts Bow Down, Abjectly, To The Secrecy Demands Of The National Security State

August 21, 2007

Re: The Federal Courts Bow Down, Abjectly, To
The Secrecy Demands Of The National Security State.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

In case after case we see what little regard the federal judiciary has for truth, for honesty. Rather than invoke the “old fashioned” concept of the need for truth and honesty, the courts find reason after reason, in one field after another, for overriding these ancient human necessities. It makes no difference whether judges were, and were appointed by, Republicans or Democrats; the judges are all alike. Whether the field is national security, business crookedness, hide-the-truth privileges or anything else is no matter. Truth and honesty come in last. Indeed, often -- even usually -- they are not even mentioned. That is shocking, but is so.

One of the latest examples is a lawsuit regarding her memoir brought by Valerie Plame Wilson.

The problem began when Wilson wanted a waiver from the CIA allowing her to begin receiving her deferred annuity at a younger age than the normal minimum. In February 2006 the CIA wrote her a letter refusing to do this (on the ground that the minimum age is a statutory requirement that could not be waived). The letter stated her dates of service, dates nobody gainsays. The dates were not said to be classified. In fact, the whole letter was unclassified.

After Plame got the February 2006 letter, a Congressman introduced a “private bill,” in January 2007, that would allow her to receive her deferred annuity earlier than the statute otherwise allowed. The Congressman put a copy of the February 2006 letter refusing a waiver into the Congressional record in support of the need for the private bill. With certain exceptions not pertinent here, the version of the February 2006 letter placed in the Congressional record was identical to the original. It thus stated when Plame started at the CIA. After being placed in the Congressional Record, the letter became and remained publicly available on the internet on the Library of Congress’ website.

Three days after the letter was put in the Congressional Record, the CIA told Plame that the February letter contained (unidentified) classified information. They made her return it, and sent her back a version supposedly properly redacted to reflect classification. In essence they sent her back a largely blank page -- everything of substance on the page was redacted, except that the redacted letter did say she served from January 2002 to January 2006.

So, to recapitulate: The CIA first sent Plame an unclassified letter identifying her dates of service. That letter was public because it was put in the Congressional Record and on the internet. The CIA then claimed the information was confidential and redacted it although it was already in the Record and on the internet.

Meanwhile, Plame wanted to publish a memoir she had been writing. It gave her dates of service. In September 2006, she submitted the manuscript to the CIA for vetting, as required. The CIA said she could not disclose her dates of service prior to 2002 in the manuscript because that information is classified. Plame sued over this at the end of May 2007. The federal district court (i.e., a federal trial court judge) ruled against her on August 3, 2007. The judge, named Barbara Jones, who sits in New York City, said that because Plame’s dates of service prior to 2002 are classified, they cannot be published in her book. That they are already in the Congressional record and on the internet -- with nobody denying the veracity of those dates -- is irrelevant. The opinion did not mention any need or desire to liberate truth or honesty.

Now the fact is, of course, that whether Plame can put her dates of service prior to 2002 in her memoir would seem small potatoes in view of the fact that the (uncontested) information is already public. Maybe what she speaks of in the memoir would in some way be more understandable if her dates of service were in the memoir, but, on the other hand, maybe it would make no difference. The big noise from Winnetka, the important point, is that the (uncontested) information already is public, so that nothing of possibly serious consequence can be hidden by keeping the dates out of the memoir. The real importance of the judge’s decision, then, is not that she is keeping truth out of the public record. She is not doing so. The real importance is the attitude her opinion bespeaks towards classification and secrecy, an attitude that pervades the federal judiciary in other cases where it does keep important information from the public’s knowledge, and an attitude that pervades much of the country because of the national security state mentality that has become prevalent.

It is hard to imagine a judge, or any sensible person, saying that information which is not secret, but is widely public, must be kept secret. This is illogical, is a contradiction in terms, but is exactly what has happened here. And it happened here for two interrelated reasons plainly discernible from the very same parts of the opinion. One reason is that the judge has bought into and is furthering the national security state, the kind of state that is going to end up destroying this country. Second is that, because of this buy-in, the judge, like other federal judges, willingly accepts any bull manure, any crapola, put forth by the CIA to justify what it has done.

The essence of the judge’s excuses is this: The courts must bend over backwards to defer to the CIA -- must fall on their faces backwards to defer to it (to speak in physiological impossibilities) -- when it claims the release of information poses a risk to intelligence gathering. Here the dates of Plame’s service prior to 2002 were never declassified, and the CIA says an “official” acknowledgement of the dates of Plame’s service (presumably by permitting the dates to now be published in her book) would harm national security. Whereas in the absence of official acknowledgement, protection is provided because “the public [is left] to guess” whether the dates in the February 2006 letter are accurate. It is irrelevant that Plame argues that the government “cannot ‘plausibly deny’” the truth of the dates set forth in the February 2006 letter that is in the Congressional Record and on the internet (dates which, to reiterate, are uncontested).

That national security would be harmed is the burden of an affidavit submitted by a CIA official in (presumably differing) classified and unclassified versions, and the CIA official’s “explanation is reasonable.” Reading between the lines, one sort of gathers that the reason the affidavit supposedly is reasonable is that, if people abroad learn the official dates of Plame’s service, they may try to determine what secrets of their own may have been compromised by some association with Plame.

Also, ‘“face-saving may often be as important as substance’” in international affairs, so that “‘official confirmation’” of Plame’s dates of service “‘could have an adverse effect on our foreign relations.’” To prove this, the judge cited another case saying Khrushchev cancelled a summit meeting not because U-2’s had flown over the Soviet Union, which he knew, but because Eisenhower “‘had publicly admitted that he had approved the mission.’”

So there you have it. We must defer to the CIA. If it says information must be hidden, then it must remain classified even though it is open for all the world to know -- supposedly the world will be left guessing because of continuing classification, even though the information is already public and incontestable. Also, admitting what we’ve done -- i.e., speaking truth -- will cause serious problems. So we have to cover up truth and/or lie. Since we must defer to the CIA, if it says up is down or down is up, or that truth is falsity or falsity is truth, then the courts must say so too.

This is, of course, the mentality of a national security state (of a Nazi Germany or a Stalinist Russia) - - which is what we have become. Quite often this mentality of hiding the truth or lying won’t even work in the short run, and in the long run it will destroy the country because of mistakes fomented by secrecy and the twin that secrecy almost always lead to: lying. In the short run here, nobody is really left to guess about Plame’s dates of service, and you can bet your sweet bippy that, as soon as the information first became public, foreign nations and services that felt they might have been compromised began reviewing any mutual activities with which Plame was connected in order to determine the possible degree of compromise. That is what we do. Why would anyone think that foreigners would not do the same? Only the incompetent CIA and the German judges of the federal judiciary would act as if it were not true. (For an unrelieved blast at the incompetence of the CIA, read Tim Weiner’s recent book, “Legacy of Ashes”). The simple fact, as shown by the Khrushchev example, by the secret wars Nixon created in Laos and Cambodia, and even by the court’s statement that “Leaving the public to guess carries some degree of protection” (emphasis added), is that the only people who can be fooled are American citizens. Our enemies know what we are doing when we bomb them, or soon learn what we are doing, as when we engage in secret special ops against them or when their people who use certain financial channels get rolled up. It is the American people who don’t know what we are doing, or who are the last to learn. And, in the end, that is the only real purpose of foolish secrecy like not “officially” admitting Plame’s dates of service.

In the long run, in the greater scheme of things, secrecy, and the dishonesty it spawns, do little but create disaster. In Thine Alabaster Cities Gleam, and at times in this blog, it has been pointed out that virtually every societal and economic disaster has gestated in secrecy. The Bay of Pigs, Viet Nam, the bombing of Cambodia, and Laos, the savings and loan debacle, the Enron debacle and the associated economic disaster -- all of these were hatched in secrecy and associated lies. For practical purposes, so was the current war in Iraq.

It seems to me possible that a forthcoming book by a gentleman named Mark Gerstein is going to say things that will further impress this on the public consciousness. Recently Dan Ellsberg sent various people drafts of the Preface and the Afterword he wrote for the book. One gathers from them that secrecy was the nourishing womb of disasters right and left discussed by Gerstein. E.g., the Colombia and Challenger disasters, the Vioxx situation, Chernobyl, etc. (Ellsberg also mentions one of the kings of this genre: what the tobacco companies did.)

Ellsberg discusses a number of reasons why people keep things secret. Most involve self interest. But it is also true that disasters are enabled in a different way by secrecy: when information is not kept confidential, i.e., when it is not secret, when people learn of it, they start asking questions about the logic, rightness, feasibility, practicability, etc. of what is being planned or done. From these questions, from well placed objections, and from the debate the questions and objections spawn comes truth, and with truth comes avoidance of disaster and improvement of policy and action. This is a simple idea, one known for decades or hundreds or even thousands of years. But it is not one that gets credence in a national security state, nor one that the federal courts pay attention to or even mention when the executive makes its nigh ever present claim of national security, state secrets or executive privilege. The ridiculous opinion of Judge Jones, though meaningless in practical terms because the dates of Plame’s service are in fact public, illustrates the courts’ abject bowing down to executive claims of national security and willingness to try to suppress truth. And the fact that Judge Jones’ absurdity was perpetrated by a Clinton appointee shows that it matters little which party a judge’s appointing President comes from.*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about¬_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

The Speech and Debate Clause and Honesty

August 16, 2007

Re: The Speech And Debate Clause And Honesty.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

This is the second in a series of postings about some recent federal court decisions that I find either highly objectionable or, at least, in some way deficient. As is the norm for these postings, I shall court denunciation as an inept lawyer by skipping all the legal folderol and legal gobbledygook that a lawyer is supposed to address if he or she is to be called competent by the legal big shots, and shall instead address what I see as the heart of what bothers me.

The case under discussion today has the truly odd name of USA v. Rayburn House Office Building. Who knew that a House Office Building had rights? Who knew that it could sue? Actually the case concerns the FBI’s search of the office in the Rayburn Building of Congressman William Jefferson, the apparently eminently bribable Louisiana Congressman whose apartment freezer was found to have ninety thousand dollars in it. When I was a kid in the ’50s, and home freezers were, I believe, a relatively new post-war phenomenon, my mother used to keep cooked foods in her freezer. Once she asked us how we liked some very good soup and, after we said it was delicious, informed us that it was four years old. It had been in the freezer. Jefferson has clearly gone my departed mother one better, in fact 90,000 ones better.

The problem in the case revolves around the Constitution’s speech and debate clause. That clause protects legislators from being arrested, prosecuted or questioned etc. by the executive because of legislative actions like casting a vote a particular way, making a speech on the floor of Congress, and other legislative duties performed by Congressmen and Senators. Also, as part of its protection, the clause protects so-called legislative materials from being seized by prosecutors, since use of these materials is part of the protected legislative process. Precisely what constitutes protected legislative materials can, one supposes, be a question. A draft of a speech, or research for a speech, should constitute legislative materials, one would think. $100,000 in a freezer at home would not be, one might equally think.

The process of seizing materials from a Congressional office, which has never happened before, necessarily implicates questions of what are and what are not legislative materials. The question of proper procedures for such a seizure of materials - - procedures which will enable prosecutors to seize non legislative materials in the office, but not legislative ones - - therefore got a lot of attention in the case, even most of the attention. I shall not discuss this, however, but rather shall focus on the question of bribery.

Even though the speech and debate clause does not exempt bribery from its protection, it has long been recognized, it probably always was recognized, that bribery is not in fact protected by the clause. Any different result would cause democratic government to be for sale -- as it was in the Gilded Age. The problem, however, seems to me to be that, inevitably, the question of whether there was bribery implicates a Congressman or Senator’s legislative acts. The bribery is the reason for the legislative act -- it is the reason for the vote, for the speech on the floor, for calling an agency in pursuit of legislative oversight responsibilities (e.g., calling the Pentagon to ask why A, not B, got a multi-billion dollar contract, or to urge that B’s bid get deep consideration because it is so excellent). So, a letter offering a legislator shares in a company -- the kind of bribe given in the Gilded Age, when stocks and bonds were spread around -- sheds light on the reason for a subsequent legislative vote favoring the company’s interests or for calling the Pentagon to urge the company’s bid upon it. Further, even the mere existence of the stock ownership, without any such letter, can shed light on the reason behind a legislative act like a vote, a speech, a phone call. The obvious truth of the matter is that this stuff is all mixed up together. That is, the otherwise protected legislative act, and the otherwise protected reason underlying it, are all mixed up with, are one and the same as, the unprotected reason showing bribery and the unprotected act of accepting and carrying out a bribe. The protected legislative act of casting a vote is also the unprotected carrying out of the bribe, and the normally protected reason for favoring company A is also the unprotected reason for favoring it because of a bribe

The court of appeals did not deal with the question of what materials would be legislative and which would not be. (For all I know, the parties might have agreed on this matter in this case, so there was no argument over it. This is hard to believe, however.) Rather than consider the question, the court seemed to elide it by merely saying only that the government could not seize undefined legislative materials but could seize undefined non-legislative materials, and leaving the (expectable?) definitional problems, if any, for future litigation in the case. There was a hint at one point that what was being sought -- just like cash in a home freezer -- was evidence of “financial backing and[/]or concealed payments of cash or equity interests in business ventures located in the United States, Nigeria, and Ghana in exchange for [Jefferson] undertaking official acts as a Congressman while promoting the business interests of himself and the targets.” (Or, as the concurring opinion said, the government’s search warrant “sought only ‘fruits, instrumentalities and evidence of violations of’ various federal bribery and fraud statutes.”) The judicial statements of what was sought by the prosecutors is illustrative of my point that as a realistic matter one cannot really separate reasons and acts into those that are protected and those that are not protected, because they’re all mixed up together and in truth are one and the same: the evidence sought here is both the protected reason for a protected legislative act and the unprotected reason for an unprotected bribe.

When this court and others avoid dealing explicitly with or talking explicitly about the all-mixed-together nature of these things, and instead in effect say or assume that bribery is only bribery and can be punished, there is a vital matter at the root of this statement or assumption: the dire need for honest government instead of government sold to the highest bidder. (During the Gilded Age, there literally were bidding contests for the votes and support of Congressmen and Senators.) Perhaps avoidance of discussing the need for honest government occurs because, once you start discussing this essential, you’ve opened a fantastic can of worms -- a can which in my view should be opened. At the narrowest level, you might have to say that, despite the fear of using prosecutorial powers to pressure or punish politically dissenting legislators, the overriding necessity for honest government means that, where the executive can show a good faith belief in the existence of possible bribery or corruption (as it did when getting a search warrant in the Jefferson case), it can search for and seize even materials that represent or relate to a legislative act (such as a phone call to the Pentagon or questions asked in committee). Having to say this would be a sea change from the courts’ heretofore understandable, historically based fear of allowing prosecutors to question legislative acts.

That, as I say, is the narrow problem (even though it is an important problem). The broader, even more consequential, problem is that to say we must have honest government inevitably implicates -- and is a principle that ultimately might have to be carried over to deal with -- the broader problem that our entire government runs on bribery and dishonesty (and everyone in politics and the media knows it). This bribery and dishonesty are called campaign contributions. Campaign contributions are nothing but a form of bribery that has been legalized because of the view that privately donated monies, donations now occurring by the scores and hundreds of millions of dollars, are essential to politics, and that we cannot or shall not have governmental financing of campaigns in order to remove the fantastic, albeit legalized, bribery called campaign contributions. We are, I think, many years beyond having to argue that the big and medium hitters -- the ones who give tens, scores, and hundreds of thousands of dollars -- do so without expectation that their interests will accordingly be rewarded. Of course, everybody on all sides is usually too smart to create a hard copy or electronic evidentiary trail by putting expectations or promises down on paper or on computers, but does anyone believe that putting matters on paper or computers is necessary? Does anyone believe that the hitters give without expectation of benefit, or continue to give simply in the name of good government even though they are not getting the benefits they desire? If anyone believes any of this, there are a few companies (making a bundle in Iraq?) that they should perhaps talk to.

The most fundamental problem, then, that inevitably would ultimately be implicated if courts began talking about the need for honest government in the context of the speech and debate clause is that we do not in fact have honest government. We have a corrupt, morally crooked system designed to benefit the rich guy. Money talks and the non affluent guy walks. It is the historical fact in this country that under our corrupt and crooked system the small men -- who in number exceed by scores of millions and more the big and medium hitters -- are ignored, and their interests are screwed over by the pols, until quite literally there is fear of untameable revolution in the streets, of revolution that the powers may be unable to quell (though often they can quell it by governmental violence (as in the Gilded Age).) This is how it was in in the Gilded Age, how it was in the time of the depression, how it was in the time of the Civil Rights movement, how it was in the time of Viet Nam. One suspects that the reason the Iraq war goes on and on is that there is not a threat of revolution in the streets.

So talk in speech and debate cases of a need for honesty in government would have repercussions -- including, incidentally, as occurred with Viet Nam, bitter comments about the hypocrisy of asserting a given principle in one area while ignoring it at home. (In Viet Nam, the talk was of, among other things, the hypocrisy of fighting for freedom in Nam while denying it to blacks and others at home.) It might also have certain other “lesser” repercussions (in addition to “narrower” problems discussed above). For example if honesty is regarded as important in government -- and elsewhere -- it becomes much harder to justify the vast overuse of rules of privilege that have often fostered dishonesty by enabling the truth to be hidden. Overused doctrines of executive privilege and attorney client privilege spring readily to mind here.

So the bottom line here is that, were courts to begin to talk in speech and debate cases about the need for honesty in government, they would be unleashing an idea that could have repercussions broad and narrow over a wide range of fronts (of which I’ve mentioned only a few). So it is too much, one supposes, to expect such talk in such cases. No more than anyone else in power do courts want to unleash the tiger. I’ve explained many times on this website, however, and therefore need not explain again in this posting, that honesty is the tiger that must be unleashed and ridden if this society is to improve. And, truth be told, I do not find the need for honesty any less desirable or important in speech and debate clause cases than anywhere else.

I conclude, as was previously said in the post on access to experimental medicines, by saying again that commentators should tell people who the judges were on each side of a case. Here, therefore, are the names, dates of appointment and appointing presidents of the judges in the Jefferson case:
Majority

Name Date of Appointment Appointing President
Douglas Ginsburg 1986 Reagan
Karen LeCraft Henderson 1990 GHW Bush

Concurrer

Judith Rogers 1994 Clinton


*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com.

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about¬_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

The Access To Experimental Drugs Case.

August 15, 2007

Re: The Access To Experimental Drugs Case.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

Whether deliberately or fortuitously, shortly after posting a piece on the case denying terminally ill patients access to experimental drugs that might save their lives, I received an email on the subject, with an a attached article on the case. I am setting forth below the relevant portions of the email and the article. They poignantly illustrate how depraved the court’s decision is.*

Excerpt From Email

Abigail Burroughs was only nineteen years old when she learned that she had head and neck cancer. Eighteen months of painful chemotherapy and radiation did nothing to stop its growth. Though there were drugs that could save her life, the Food and Drug Administration told Abigail she couldn’t have them. Last week, the DC Circuit sided with the FDA, deciding that patients like Abigail didn’t have the right to save their own lives by accessing life-saving treatments.

Excerpt From Article

Abigail Burroughs was only nineteen years old when she learned that she had head and neck cancer. Eighteen months of painful chemotherapy and radiation did nothing to stop its growth. Her world-reknowned doctors told Abigail about two new drugs that could save her life. Unfortunately for Abigail, these drugs were still in the final stages of their Food and Drug Administration (FDA) trials and only available to a limited number of patients. Though both drugs were eventually approved, it didn't happen in time to save Abigail. Out of government-approved treatment options, Abigail died at the age of twenty-one.



*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com.

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about¬_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

Comments on "The Federal Judiciary, Aping the German Judges, Allows the Government to Force you to Die When you are Sick

From: alan thompson
Date: Wed 8/15/2007 5:34 AM
Subject: Your latest blog (Judiciary,etc.) excellent


Hi Dean Velvel-

Your latest blog was excellent. The subject you chose was important, and the way you laid the case out as an example of how courts promulgate unreasonable decisions said a lot about how to interpret similar decisions. This is exactly the kind of writing I was hoping to receive from you when I was complaining about your use of verse, and I think it's really valuable. Best, Alan Thompson



From: charlie
Date: Tue 8/14/2007 10:02 PM
Subject: Re: The Federal Judiciary, Aping the German Judges, Allows
the Government to Force you to Die When you are Sick

Dean Velvel,
Sir, you have done us a great service with this commentary.
Indeed, the government want,no demands, the right(?) to tell us when or even how to die now. If you do not "volunteer" to serve the military machine in the imperial wars, they tell you to fight or die. If you choose not to serve that machine, they tell you when and how to die from the lack of medical options. Either way, unless as you mentioned you are a major contributor, they tell you when and how to die.
Welcome to the "new" Amerika.
I had a high school teacher way back in the early 60's who said that the US and the USSR were at opposite ends of the spectrum. He said they were moving toward the other and would someday pass each other on the way to the other end of that spectrum. Reality of today tells me he was right on target.
Thank you for your commentary. Thank you also for your valuable time reading this reply.

charlie ehlen

Re: Comment on Blog

From: gwennms
Date: Mon 8/13/2007 5:40 PM
Re: Joe Biden

Dear Dean Velvel,

I was very surprised to read your post about Senator Joe Biden. There are several important points concerning him that I think you seem to pass over rather rapidly.
One: he has been in the Senate since he was twenty-nine years old, that is since 1972, I looked it up. Two: thus far he seems to have few chances to win the nomination. Three: so far there is no third party to adopt him as candidate in the eventuality that he win in the primaries.

I think the first point is important, especially in modern times, since the disconnect of a life spent in the Senate, that is almost forty years for him, hardly prepares for
anything other than continuing to be a Senator; it is rather like being a Duke in the "Ancien Régime." I think there should be a limit to all public offices but this is beside the point. You cite his stressing that one must constantly get up off the floor when one is knocked down, but when has Senator Biden been engaged in these knockout and drag down battles? His runs for the presidential nomination were not by public demand, he presents himself and receives, so far, little support.
Do you really think it possible that he come from so far behind, in polls and money that so important item especially in our corrupt system, to become the nominee?
A third party is the ideal solution but with the stranglehold of the press now almost completely controlled by monopolies, this would depend on the internet and would take time...lots of time.

There is also another question, which lobbies back Biden? That is always an important thing to know about every candidate.
There are also all the unforeseen variables, the looming financial crisis, banking crisis in which cases the US will have to prepare to accept other powers as equals, perhaps even superiors, unless there is really the option of nuke them all and God will find his own. I find that the front-runners in the Democratic pack, with the possible exception of Barak Obama, all have a mind-set in power policies of the past that will no longer be valid in the years to come, years that will require rapid assessments of changing situations and new economic and labor policies if we are not to live in a jungle. Our civil liberties have vanished; no candidate proposes their restoration as part of the Democratic program so a third party is needed urgently.

This is the third time since WWII that we have adopted totally irrational behavior, the McCarthy era, the Vietnam War and now this insane policy of Preemptive War that has brought us the Iraq invasion and occupation, and who knows what else with Cheney beating the drums against Iran. Why would the world be ready to accept that we have obtained a new virginity with a new president?

It is a conscience trying time, at least for those whose consciences still pinch them from time to time. I may be overly pessimistic but pessimistic I am.

Best regards,

Gwenn Seyrig

The Federal Judiciary, Aping The German Judges, Allows The Government To Force You To Die When You Are Sick.

August 14, 2007

Re: The Federal Judiciary, Aping The German Judges, Allows The Government To
Force You to Die When You Are Sick.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

Only infrequently do I write about judicial opinions. There are a number of reasons, but one in particular is of especial importance. Lawyers and judges are trained to consider every possible nuance and argument. In practice this means that opinions present a host of arguments that do not go to the heart of a problem, that often are ways of trying to find a reason to rule a particular way without dealing with the heart of the matter. A legally trained critic, as I am, is in turn supposed to deal with all or most of the arguments pro and con raised by the court, even though most of them don’t go to the heart or are just excuses, and/or can be fairly described as legal folderol or a sort of legal gobbledygook. Not to deal with all of them is regarded in the profession as a sign of lack of seriousness or ineptitude. But to deal with them is boring and a waste of time.

I’ve written about all this, with a pertinent illustration, on pages 63-67 of Volume I of Thine Alabaster Cities Gleam (Doukathsan Press, 2007). Anyone who wishes to understand the matter further can read about it there. Suffice to say here that, not wishing to be bored or to appear professionally inept (and not wishing to bore the reader either), I usually refrain from writing about legal opinions here.

But sometimes the absurdity of some opinions, or their failure to grapple with matters that are essential in life, just gets to me. So sometimes I do write about them, as shall be done now and in the next few days with regard to a few recent decisions. But I shall control myself by going straight to what seems to be the heart of the matter in each case and usually skipping the legal claptrap, the legal folderol (except that some of it is described -- without being responded to (except for a brief comment occasionally) -- so that you get a sense of the gobbledygook that passes for legal analysis and that must be engaged in if the big shots are to consider one a good lawyer). If skipping the claptrap and folderol makes me inept as a lawyer, so be it.

Let us start today with an August 3, 2007 decision by the United States Court of Appeals for the District of Columbia -- the court that Antonin Scalia, Clarence Thomas and John Roberts sat on before they were anointed to the Supreme Court as a reward for their reactionaryism -- in a case called Abigail Alliance For Better Access To Developmental Drugs v. von Eschenbach . The entire non “senior status” court of appeals judges, not just a panel of three judges, participated in this decision; in fact the hearing in front of the whole court was for the purpose of considering, and reversing, a prior two to one opinion by a panel of three.

Here was the question in the case: if a terminally ill patient has no other option for trying to save his or her own life, does that patient have a right to use experimental drugs that have not yet been proven safe and effective (and, one assumes, may never be proven safe and effective), and that therefore have not been approved by the FDA. Any decent person, recognizing that the patient is terminal and has no other options for trying to save his own life, would say that of course the patient has a right to try the experimental drug if he wishes to. And, at bottom, that is what the two judges in the minority thought (one appointed by Reagan and one by Clinton). But that is not what the judges in the majority thought. (They were variously appointed by Reagan, Clinton and the two Bushes). Oh no. By the majority’s lights the terminally ill patient has no right to use the drugs and thus has no option but to die. (The lack of any option but to die reminds one of Tennyson’s Charge of the Light Brigade: “Theirs not to make reply/Theirs not to reason why/Theirs but to do and die/Into the valley of Death/Rode the six hundred.”)

The heart of the case is, of course, the obvious: Can the government stop someone who has no other options from trying to save his or her own life? But the majority in effect said to hell with this central point. It brought up a ton of legal claptrap, of legalistic folderol, to avoid allowing people to have at least some chance to live and to instead condemn them to death. As said, I shall not bother answering its inhumane arguments. But I shall list them so that you can get some further sense of some of the ways in which courts avoid doing the right thing. The court said:

• Regulation of drugs for safety and efficacy has a long history, going back even to 1736 Virginia and 1447 England.

• No right to obtain experimental drugs “is deeply rooted in our Nation’s history and traditions,” and there is thus no such fundamental right.

• Legal doctrines involving the right to self defense, the ban on intentional interference with rescue, and the doctrine of necessity have no bearing.

• There are risks in taking experimental drugs (as if that matters when you otherwise are a dead man walking).

• Death can be hastened, or the quality of remaining life can be impaired, by toxic results of an experimental drug. So the government has a so-called “rational basis” for refusing to let a terminally ill patient try such a drug. (The “rational basis” test, like all of the judicial tests relating to constitutional rights, is nowhere in the Constitution, but was instead made up by the courts, especially the Supreme Court, out of whole cloth.)

• The FDA and Congress have created programs for early access to experimental drugs when the FDA thinks this warranted. (If the FDA doesn’t think it warranted, the patient is SOL.)

• If the dead men walking don’t like what the FDA has done in denying them access to experimental drugs, they can ask Congress to change it. (Good luck if you’re not a billionaire with the money to bribe half the Congress? – except that, to paraphrase Tom Lehrer on plagiarism (“please to call it research”), please to call it campaign contributions.)

With the conceivable exception of the suggestion of going to Congress, a suggestion hopeless for most people, the arguments put forward by the eight members of the majority (shall I say the heartless, cruel eight members of the majority?), the court’s arguments do not begin to touch the central issue of the case: can the government stop people who have received a death sentence from accessing experimental drugs which hold out their only possible hope for survival. All the court has done, instead, is argue a bunch of far less important matters for the purpose of answering that question in the negative, with the effect of condemning people to deaths that at least conceivably might otherwise be avoided.

It is interesting that among the Court’s horrid arguments is one that stands on its head the Constitution and whole raison d’etre of the nation. Throughout the opinion, the question involved is presented as one of whether an individual has a right against the government, a right defined by the court as here being a right experimental drugs. Defining the right thusly, the court finds that human beings have no such right. But I would have thought, I think the framers would have thought, I would think ardent conservatives like some of the judges who joined the majority would have thought, that the question should be whether the government has a right to condemn to death innocent citizens who have committed no crime, let alone a capital crime, and whose only “crime” is that they had the misfortune to become terminally ill with no hope of cure by ordinary means. When we even ask whether a citizen has a right to life protected against governmental destruction, instead of automatically asking where the government gets a right to condemn an innocent person to death, we have turned the whole basis of our government upside down, not to mention Rousseau (I think it was). But unlimited governmental power is, after all, what the “new conservatism” is all about, so perhaps one shouldn’t be surprised at the horrendous basis of the majority’s opinion.

Before closing, let me turn briefly to the two dissenters. It is perfectly clear that they understand that what is at stake here is the question whether the government can cause you to have to die when there are no conceivable cures but unproven experimental ones. One has but to read the last paragraph of the dissenting opinion to know this. It is thus a bit sad in a way that, to prove themselves good lawyers and good judges, the dissenters have to go through the same kind of legal claptrap as the majority, have to engage in extensive arguments that doctrines related to such matters as necessity, self preservation and self defense favor the patients by analogy, that the right to try to save one’s life is grounded in constitutional text and history, that this right is fundamental and therefore the Government’s action is subject not to the easily met “rational basis” test but to the much more stringent “strict scrutiny” test, and so on.

Yet, though the dissenters - - despite their obeisances to the conventional gods of good lawyering and good judging - - understood that the basic question is whether the government can force someone to have to die from a terminal illness, they still, like the majority itself, looked at the question as being one of determining whether the individual has a right against the government rather than asking why the government has a right in the first place to cause one’s death. Though the two dissenters were far more humane than the majority, they too seemed not to grasp that they were standing the Constitution and our whole system of government on its head by in effect assuming the government can do unto the individual unless the latter has a right against it, instead of asking where in God’s name the government gets such a right to harm the individual in the first place. Put differently, the point here is the easily grasped question of whether government exists for the individual or the individual exists for the government. If the former, we must find an initial right in the government to harm an individual. If the latter, the government can harm anyone it wants for any reason it wants unless we can find some countervailing right possessed by the individual. The judges, however -- certainly those in the majority, and I think the dissent too although one can make a strong argument for the decency of the dissent -- inherently assume the individual exists for the government (even though they don’t think of it this way). The judges, at least in the majority, inherently are the proverbial German judges, it seems to me.

It is no excuse that, because they think there are pros and cons here, the majority would rather that the Congress or the FDA make the decision. Remember: the whole case is about people who have no option for saving their lives except by experimental drugs. Shall we say, as the majority necessarily implies, that Congress or the FDA can legitimately stop them from trying to save their lives?

Let me conclude by saying that I have long thought, and said, that the mainstream media do a great public disservice by not identifying, or by barely identifying, judges who issue horrendous (and other) decisions. So, listed below, are the names, appointing Presidents, and years of appointments of the judges in the majority and the judges in the dissent. You will find that there are judges on each side appointed by a (liberal?) Democratic president and by conservative Republican presidents. This is yet another piece of evidence favoring the idea that we have but one political party with two branches, and thus have a systemic problem.
Majority

Name Date of Appointment Appointing President
David Sentelle 1987 Reagan
Karen LeCraft Henderson 1990 GHW Bush
Raymond Randolph 1990 GHW Bush
David Tatel 1999 Clinton
Merrick Garland 1997 Clinton
Janice Brown 2005 GW Bush
Thomas Griffith 2005 GW Bush
Brett Kavanaugh 2006 GW Bush



Dissent

Douglas Ginsburg 1986 Reagan
Judith Rogers 1994 Clinton*




*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com.

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about¬_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

Re: Jean Edward Smith And Joe Biden

August 6, 2007

Re: Jean Edward Smith And Joe Biden.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

I shall use this post to do something I don’t believe I’ve done before: to comment – relatively briefly – on two things I saw on Book TV over the weekend. One of the two things relates to a matter that was on my mind last week. The other relates to something on my mind for a long time.

Last week a post here related to historian Jean Edward Smith. More precisely, it related to the vitriolic reaction to his suggestion that the Democrats could expand the size of the Supreme Court in order to curb its reactionary decisionmaking if they win the presidency and Congress in 2008. Over the weekend, Book TV televised a talk by Smith at the FDR Library about his new biography entitled, simply, “FDR.” I had the book in my briefcase to read next (and indeed started it soon after hearing Smith), so I listened to his talk. He was impassioned about what FDR did for the country. The talk seemed at least an implied rebuke to the longstanding conservative-to-reactionary attempt to paint FDR a political blackguard.

Upon beginning to read the book, I realized the talk seems to have been taken, in major part word-for-word, from Smith’s preface. No matter. Smith’s passion was evident in the talk, and, based on what I know from prior reading, he seems to have his facts right, both those pro FDR and those con FDR. After about 70 pages, I still find it very readable -- and some of the end notes fascinating. (Reading end notes because they often have interesting stuff in them is one of my weaknesses.) For long books to be fascinating is not an easy trick for an author to pull off. Viz. the fact that recently I’ve stopped in the middle of a couple of long books about two subjects of great interest, one being the relationship between two arch criminals of American government and the other being about the constant derelictions since midcentury of a major American governmental institution. (As so many know, stopping a book in the middle is somehow contrary to a veritable law of nature that oozes into us somewhere along the line. Critics even write of how they manage to do this. It ain’t easy bub, and the fact that one nonetheless does it says something about a book.)

Anyway, the passion, apparent accuracy and, most of all, the extensive historical knowledge evident in Smith’s remarks at the FDR library made me think that his obvious competence is yet another reason why the vitriol directed at him in the letters-to-the-editor column was mistaken, or, as someone recently put it when implicitly commenting on the ignorant speech patterns of the Great Decider, “misunderestimated” Smith. One is tempted to say that his critics are the ignorant savaging the knowledgeable -- a common human phenomenon -- but who knows if the critics are in fact as ignorant as one might think, not to mention that there are a horde of occasions (although this doesn’t seem one of them) when we of the rabble get it right and our supposedly knowledgeable betters are all wrong. (Viet Nam and Iraq being cases in point.)

The other matter concerns Joe Biden. Book TV showed a talk he recently made at a National Press Club luncheon. (The speech was occasioned by a book he recently wrote.) Among other matters he stressed the need to constantly get up off the floor when one is knocked down (be one a person, a nation, or anything else) and the need to keep one’s word. He also talked about his long-held view that a tripartite division of Iraq into virtually independent Sunni, Kurdish and Shiite areas in a federalized state is the only possible “solution” to a problem that in reality has no good solution. (The need for a tripartite division has been the view in this space, as the columnists used to say, ever since my posting began.) He gave quite reasonable sounding responses to criticisms of the suggestion for a triple division. And, time after time, he responded to questions with brevity, with succinctness (and with wit). Joe Biden brief? Joe Biden succinct? Is this a new Joe Biden?

For a long time it has seemed to me, and has been written here, that this country desperately needs a new third party. It also, of course, is at this point wholly uncertain whether a third party can arise. Of all the people currently running for the Presidency as Republicans or Democrats, it has seemed to me that all the Republicans are no damn good as human beings, at least they are no damn good as human beings in their political personas, however they may be in private life, and that several of the Democrats are the same. One of the few Democrats whom I’ve thought well of is Biden (notwithstanding, one must say, his now nearly two decade descent into plagiarism and his oh so Senatorially typical, incompetent diarrhea of the mouth -- as was true of all the senators – instead of asking short sharp pertinent questions when “questioning” the unethical, hide-the-ball Supreme Court nominee John Roberts and Roberts’ fellow hide-the-ball nominee Samuel Alito in hearings on their nominations.

Biden’s talk at the National Press Club set one to wondering anew. The man is very intelligent generally, his foreign policy views are quite intelligent, his heart is in the right place, (like Jean Smith) he has passion. Maybe electing Joe Biden would be a very good thing. Is it even possible that a new or nascent third party could assist this, thereby avoiding both an at least conceivable inability to attract its own sufficiently viable candidate and, very importantly, avoiding the charge that, like Nader, it is making it possible for some political Neanderthal from the Republican Party to win the presidency yet again?

What one has in mind is this. A third party could support Biden as its candidate too if he were to win the Democratic nomination. Hasn’t something like this, or identical to it, been done in New York, with the Liberal Party adopting a candidate of one of the two major parties? My recollection is that this has been done. Is the recollection mistaken?

I doubt that Biden would even have to formally agree to be the third party’s choice as well as the Democrats’ choice. A simple “benign neglect” by him toward the third party adoption of his candidacy would do. He would not forget, if elected, that the third party insured he would go over the top. The third party itself would benefit, of course, because it will have established itself as a future serious competitor to the two major parties - - a competitor that might one day replace one of them as the Republicans replaced the Whigs in the mid nineteenth century -- and in 2012 or 2016 could put up its own candidate. 




R:\My Files\Blogspot\Blogltr.JeanEdwardSmith.JoeBiden.doc

Comment on Increasing the Size of the Supreme Court.

Date: Thu 8/2/2007 10:54 AM
Subject: Re: Increasing The Size Of The Supreme Court.



Larry,

A couple of comments: I have always found Chamberlain's Passing of the Armies very moving. Still do. Read it to my wife Jane. She cried. I think any good American would be moved.

Only problem, it never happened, at least not as Joshua L. told it. Check out William Marvel, A Place Called Appomattox. Came out a few yrs ago, and got good reviews. He's done his homework. Chamberlain waited until almost everyone of any rank at the surrender had died, then published his account, which does someone inflate his role. One of the few generals still living who was there was John Brown Gordon of Georgia, who took a leading role in Reconstruction, and once his state was safe from carpetbaggers, scalawags, and blacks, became a New South booster and advocate of sectional reconciliation. He read Chamberlain's version and was shrewd enough to endorse it and boost it.

Now some distinguished historians like William W. Freehling cite Marvel's account, but apparently have not read it, because they continue to follow Chamberlain's version of the story. I find it all highly entertaining.

I still believe, or want to believe, in Chamberlain's version. I also believe in Santa Claus and my country, but sometimes it's very hard to keep the dream alive. I try to pass it all on to my children, but as a scholar think it's important to keep a bright line between myth and reality.

On another front: there's a new bio of Lee out reviewed by David Blight, a PC type who liked it because it helped put another chink in Marse Robert's armor and legend. As I understand it, the author is an old hand in the State Dept. I wonder if all the policies and actions of the US govt, under various presidents, were ones she could endorse morally in good conscience? Or did she just keep her lip buttoned when she disagreed w/one war or another and keep drawing her GS-13 salary?

Amazing, after much research in a trove of Lee letters that she found, she has come up with some brilliant insights. Lee, a professional army officer and white southerner, was conservative! Who knew? Quelle surprise. Also, he was a racist, unlike all of us today; and unlike everyone else back then. Here's the clincher: he once beat, or had beaten, rather badly, one of his wife's slaves. I ran across that story years ago, but from an abolitionist source, and so I was skeptical.

What this tells me is that Frank Tannenbaum was right in Slave and Citizen: under slavery, nothing escaped, nothing and no one. It fouled everyone it touched, including Lee.

Best regards,

Mike Chesson

Comment: Increasing The Size Of The Supreme Court.

From: Boyle, Francis
Sent: Wed 8/1/2007 4:58 PM
Subject: Comment: Increasing The Size Of The Supreme Court.

about 2/3ds of all federal judges have been appointed by Reagan, Bush Sr and Bush Jr-- most drawn from the ranks of the right-wing, racist, bigoted, reactionary, sexist, elitist, totalitarian, torture-mongering and warmongering Federalist Society, including 5 members of the US Supreme Court (one of whom lied about his membership). Congress should just sit on their salaries until their much-beloved Freidmanite "market economics" drives them into private practice. How about a progressive application of Law & Economics Theory?

fab.

Francis A. Boyle

Re: Increasing The Size Of The Supreme Court

August 1, 2007

Re: Increasing The Size Of The Supreme Court.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

Over the years I have found that the letters to the editor of The New York Times are often very cogent, sometimes a lot more cogent than op ed pieces that caused them to be written. One also notices that it is common for there to be several letters, four or five, on one side and perhaps only one letter on the other. How this ratio arises is mysterious. Does it reflect the ratio of letters received by the Times on one side and the other? Does the radio reflect what the pertinent editor believes rather than the ratio of letters received on one side or the other? Who knows?

A few days ago, on July 30th, the Times carried no fewer than eight letters responding to a July 26th op ed piece by a historian named Jean Edward Smith. Smith had made a suggestion as to what should be done if the current Supreme Court continues on its merry way, if it continues to follow what so many see as a conservative, even right wing, agenda. Citing six historical instances when the size of the Supreme Court had been increased or decreased, sometimes for momentous reasons such as ensuring an antislavery, pro union majority during the Civil War or ensuring a majority that would approve the issuance of paper money after Grant was elected, and one instance when an increase had been attempted but had failed due to Presidential duplicity -- FDR’s court packing plan -- Smith suggested that the Democrats could increase the size of the Court to protect liberal values if they win the presidency and Congress in 2008. This writer has previously suggested the same, although I lacked Smith’s historical knowledge of some of the previous instances.

Though Smith teaches in West Virginia, this writer happens to have met him because he was interviewed on my one hour book television show with regard to his 2001 book entitled Grant. In that interview he was responsible for one of the more dramatic episodes ever to have occurred on the show, which occurred when he was describing the incredibly moving formal surrender ceremony which occurred three days after Appomattox, when the Army of Northern Virginia stacked its arms and furled its flags in a formal act of surrender to the Army of the Potomac. This was what Joshua Lawrence Chamberlin called The Passing of the Armies; the descriptions one reads of it make it seem far more dramatic than, say, the movie so many of us have seen of the surrender of the Japanese on the battleship Missouri at the end of World War II. For true drama, one should read about the passing of the armies. It is hard to describe it orally to someone without choking up a bit. Smith was deeply moved when he described it on the TV show.

Be all this as it may, what surprised me about the letters to the editor responding to Smith were the uniformity and even stridency of the opposition to his suggestion. Seven of the letters were against him, even one from a person who said Smith was “my old thesis supervisor” but went on to call his suggestion “simplistic.” Some of the seven might fairly be described as brutal to one extent or another, and only one seemed to favor his suggestion (which to reiterate personal guilt, is one I too have made).

A couple of the ideas that were repeated in the letters struck me as quite uninformed or worse. Though expressed in sometimes varying language, fundamentally the basis of the opposition is that advocating an increase in the size of the Court is a reprehensible way of attempting to obtain a Court that will uphold principles and values one holds dear instead of casting them aside. Very relatedly, it is said that there is no right to have one’s own values triumph in the Supreme Court because “the very purpose of a written Constitution is to insulate certain bedrock principles and protections from being undermined by the popular values of the times,” values which can change.

When one considers this argument, it falls to the ground. Should there not have been an increase in the size of the Court if absence of an increase would have resulted in pro slavery or anti union decisions in the midst of the Civil War? Should there not have been an increase if a lack of increase would have resulted in the continued vitality of a then recent decision outlawing paper money -- the kind of money we use today? Should Roosevelt not have attempted his court packing plan if the price of lack of attempt would have been, as so many think, continued evisceration of the New Deal by the Supreme Court? To put these questions is to answer them: the argument in the letters is preposterous.

How about the idea that one has no right to have one’s own views adopted by the Court, especially views which may prove temporary? Well, just what do the letter writers think the Republican Presidents have been doing since Nixon took office. They have been nominating Justices who will carry out their right wing principles, and have now gotten to the point where one more hard right Republican appointment would enable them to drive all other principles from the field.

Nor are the right wing’s principles and values enshrined as holies of holies in the Constitutional book. Where is it written in the Constitution, one would like to know, that money is free speech, so that vast campaign contributions -- read bribes and graft -- which are wrecking our political system, are beyond regulation or ban? This view is a pure judicial invention, while one could think that attempts to create a fair political contest are consonant with the long term values of this country. Likewise, where is it written in the Constitution that corporations are “persons” who therefore receive the protections of the 14 Amendment and are thereby enabled to perpetrate enormous evil when this is to their economic benefit? This doctrine too is a pure judicial invention, and contrary to the views of those who wrote the 14th Amendment. It is an invention of Justices who lock, stock and barrel reflected the mercenary, anti human ideas of the Gilded Age. And, in a statutory inversion that bothers the hell out of me, where in the statute books is it written that the antitrust laws should be gutted by ideas that eviscerated long standing rules against price fixing or by ideas that give pampered treatment to the mergers, monopolies and oligopolies that wield such overwhelming power in this country? This evisceration is not the product of long standing principles, but of right wingers and their Justices who have successfully sought in recent decades to destroy long lasting principles and values.

There was one other notion which surfaced a few times in the letters to the editor. This is that life tenure is the real flaw, and is causing the current Supreme Court to be out of step with the times. Along this line, it was suggested that perhaps tenure should be limited to 10 or 14 or 16 years.

Well, maybe. But, on the other hand, some of the greatest justices in American history were on the Court and made great contributions for 20 to 35 years. The first Marshall, the second Marshall, Douglas, Black until he got hardening of the mental arteries in his last few years, Brandeis, Brennan, Stevens. Justices like this cause one to think that limited tenure might not always be such a hot idea. On the other side of it, it’s also true that sometimes lifelong tenure was an enabler for Justices who did great evil that might have been elided by limited tenure. Justices like Taney, Field, some of the four Horsemen of the 1920s and 1930s, Frankfurter and Rehnquist came to mind in this respect.

As a bottom line on all this, upon analysis one would have to say that the often bitter opposition to Smith’s suggestion that surfaced in the letters was pretty much uninformed or, to use a word used by his old advisee, “simplistic.” Indeed, one can hardly help wondering whether the letters came from right wingers who like things just as they are, thank you very much. Well, that suspicion is probably unfair because it may be false. What is not unfair or false is to say that the letters represent a historically uninformed, antichange, pro status quo conventional wisdom, an ideological genre that is all too common in this country and is used in nearly every political field. Those who practice the genre of historically ignorant conventional wisdom that fails to consider alternative notions think they are supporting the best in American life when in reality they are promoting the worst. Viet Nam anyone? Iraq anyone? 