Monday, October 27, 2008

If you Want Economic Recovery, Eliminate The Capital Gains Tax On Profits From Monies Used To Purchase New Plant And Equipment And To Create New Jobs.

October 27, 2008

Re: If you Want Economic Recovery, Eliminate The Capital Gains Tax On Profits From Monies Used To Purchase New Plant And Equipment And To Create New Jobs.


Having spent the last two weeks in Prague, Germany and Luxembourg, this writer can attest that one is never really out of touch if one doesn’t wish to be. USA Today, the International Herald Tribune, the European edition of the Wall Street Journal and CNN are everywhere, not to mention the BBC. So it was possible -- though the polar opposite of delightful -- to watch the further economic meltdown arising from the loss of moral principles inculcated decades ago in the Midwest shortly after World War II. Good faith, honesty, diligent long range thought, competence, concern for others continue to be on holiday, just as they were when the ARMs, other subprimes, derivatives, 1.7 billion annual paydays for fund managers, Reaganesque (and Republican) induced greed, ever increasing income disparity, ever increasing deregulation, destruction of Glass-Steagall, Greenspanish/Ayn Randish laxity, Greenspanish efforts to cover up one burst bubble by inducing another bubble, were in high carnival. The attempts at financial cure by one of disaster’s architects, Paulson, have thus far proven to be further ineptitude born of poor thought and panic: the 700 billion dollar bailout is to date a failure that only rescues big business, banks still are not lending though they now are fabulously enriched by government money, huge companies that collapse (though for decades we were assured that in hugeness lies salvation) are being merged so that they will be yet bigger (and next time can take down the universe), small businesses are collapsing, some huge corporations seem on the verge, the stock market has dropped like a rock, retirement monies have been rendered financially quadriplegic, people are losing jobs by the scores or hundreds of thousands, homeowners are losing their homes by the scores or hundreds of thousands, to put icing on the cake one read that a high official of Goldman Sachs -- Paulson’s old firm, which sold the trash by the gazillions but was one of the few banks not stupid enough to own the trash itself -- was somehow present at high level discussions of what to do about AIG, whose collapse, if I have it right, might have caused the collapse of Goldman too because Goldman owned so much AIG debt, nations abroad have caught America’s pneumonia, and the ruling establishment of this country, including the sainted disciple of the fool Ayn Rand, Alan Greenspan, has yet again shown itself stupid, greedy, uncaring of others, dishonest, dismissive of facts, and, many of them, worthy only of being put against the wall -- after a fair trial, of course, and only metaphorically, of course -- for smashing up the lives of tens or scores of millions.

Yes, a lot happened while the author was in Europe, and one hardly knows what to say. Plainly events are in the saddle and ride mankind.

In the midst of the disaster, please allow this writer to make two small suggestions, one standard (and alluded to here previously), the other unique as far as I know. The first requisite of economic recovery is emphatically not to give billions to the swine who brought disaster upon us and who currently simply hoard what they are given -- hoard it against a rainy day when we are already at sea in a typhoon. Rather, the first requisite of economic recovery is to give money to those who will have to spend it because they are in need. They have lost their jobs, their homes, sometimes their cars, their food may be dwindling. They will spend the money, not hoard it, and their expenditures will help revival. And while you’re at it, by the way, lower all interest rates to some reasonable amount like 6 or 7 or 8 percent: lower the rates both of those who have lost or may lose their homes, and those who have managed to bear up under the burden; reinstall usury laws, which were knocked out defacto by the Supreme Court 30 years ago using the arguments of a brilliant lawyer who did evil (you might be surprised -- or not -- at who it was and later made clear to me that he was proud of it); and if banks and security holders scream and yell and shout the constitutional strictures about obligations of contracts, well, eff the greedy bastards. Congress and states, it has been ruled, can change the obligations of contracts when escaping societal disaster makes this desirable, and, anyway, even the greedy emmeffers will be financially better off if people can pay their mortgages than if the disaster continues.

Now the unique idea, one that will cause persons who stupidly call me socialistic to run screaming to the loony bin -- where they should be -- because the idea is so capitalistic in nature. Eliminate -- or at minimum, drastically reduce -- the capital gains tax for equity investments used for the purpose of purchasing new plant and equipment or of creating new jobs. Maybe also lower, perhaps drastically lower (even eliminate?) the tax on loans used for these purposes. But tax at ordinary income rates the gains on equity investments used to buy stocks that are already trading, and tax at reasonable rates, though perhaps at less than ordinary income tax rates, the gains on used houses, i.e., houses that have already been purchased a first time.

However, one works out the details, eliminating or greatly reducing the capital gains tax on monies investors use to provide equity for new plant, equipment or jobs will result in a vast redirection of funds that presently go into the unproductive greed machine called the stock market. The idea here is not terribly different, after all, from the idea behind venture capital funds. People will invest in (and lenders will loan for) productive uses, instead of the effing stock market, because of the vast tax break on capital gains and because stock market profits will be taxed at a near ordinary income rates. Money mangers and funds will spring up to investigate, make recommendations for, and run money for purposes of investment in new plant, equipment and jobs (just as venture capitalists already do for the wealthy). Retirement monies could be invested (or loaned) so that they not only earn money tax free before retirement, but afterwards will be tax free (or have much lower taxes) when people take them out and use them during retirement. Monies could be invested abroad -- even in third world countries -- to be used for new plant, equipment and jobs.
One knows, of course, that the small minded, the tax experts, the tax lawyers, the already rich who want to keep their monopoly on venture capital profits will find a thousand reasons to object to this. They’ll say -- although it is complete bullshit -- that you won’t know what monies are being used for the appropriate purposes and which for other purposes. Baloney: monies will be raised and used for specific purposes just as venture capitalists do, and any commingling merely presents an accounting problem that is less than kindergarten play for today’s computers. They’ll say there won’t be enough demand for all the monies people will want to invest. This is baloney because, when you open up investments to this tax treatment -- and especially if you open foreign investments to it -- the sky may be the limit. They’ll say people will be risking loss of their retirement nest eggs (like George Bush would have had them lose their social security by investing in the stock market). This too is baloney. What do they call what’s already happened to people whose retirement funds have been smashed? What’s more, in the overall, good venture capitalists make a fortune on balance even if they lose money on some particular investments. Moreover, like today’s venture capitalists, the investment funds which spring up to accommodate the investment monies can provide advice to and can engage in monitoring new businesses where necessary. And anyone who does not want to take the risk can continue investing, as they do now, in the stock market, in debt instruments (CDs, Treasuries, etc.).
Opponents will also ask if the new tax treatment should be applicable to corporations that spend monies for new plant and equipment. Of course it should: for scores of years we have already had tax breaks (e.gs., accelerated depreciation, tax credits) for investment in new plant and equipment. And determining the profits attributable (or at least reasonable estimates of the profits attributable) to the new plant, equipment and workers, is simply a matter of cost accounting. How difficult can it be to make reasonable estimates with today’s computers?
The bottom line is this: the already privileged, and the sticks in the mud, will find a thousand alleged objections. Nonetheless, if you want the economy to revive, then quickly eliminate or greatly reduce the capital gains tax on profits from monies invested for new plant, equipment and jobs, and increase the capital gains tax profits from monies used in the wasteful pursuits of trading securities and other things.*


*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@VelvelOnNationalAffairs.com.

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.

Friday, October 10, 2008

Re: Creating And Sustaining The Unsustainable.

October 10, 2008

Re: Creating And Sustaining The Unsustainable.


With the stock market tanking and the economic system worsening on a daily basis, there are some thoughts I would like to get off my mind. They may be wrong, but they are the product of years, sometimes decades, of observation and experience. They are in part philosophical, in part empirical. Some have been mentioned here before, some not.

When the market was flying high at levels like 12,000 to 14,000 on the Dow, it seemed to me (and I would tell my wife) that this was somewhat insane and a more sustainable figure might be somewhere around 9,500 or 10,000. Why? Because for societies, and for most individuals, there is a sustainable pace of progress and then there is an unsustainable, shooting star kind of progress which usually results in what is called regression to the mean. For some reason, the rate of sustainable annual progress, if it were to be quantified, as it can be for some things, seems to range from three to five percent growth for entire economies, to somewhere between six and nine percent for stock markets. There are some individuals who either temporarily or permanently escape the norm, and assume temporary or permanent rocket trajectories because they are lucky, or talented, have come along at the time that is particularly right for them, or for other reasons, e.g., Bill Gates, Ted Sorenson, John D. Rockefeller, Babe Ruth, Pablo Picasso, Jascha Haifetz. But they are the few, the very few -- who set the example of fantastic accomplishment that all Americans are trained to aspire to and almost none can reach. But these are individuals, and their shooting star, or rocket, trajectories cannot be permanently attained by whole societies or institutions. For the latter, it usually has to be slow but steady. Today we are paying the price for a Wall Street system, a market system, a credit system, a housing system, that was (were?) on a shooting star trajectory -- which has now collapsed in what is likely a regression to the mean.

Before moving on to related economic matters, let me note that something similar or at least analogous, has happened in military affairs. With the close of the Cold War, which was won by relatively slow, but steady advance of one type and another over 45 years, the hubristic fools who run this country, the elitist closed establishment that runs the country, thought we were now a sort of rocket that had ascended so high that nobody could touch us. We could control the world; we could do anything we wanted because of our military power. Well, it ain’t so bub, is it?

Turning back to economic matters, the rocket philosophy took over the economy, starting with Reagan and continuing through Bush, Clinton and Bush. Reagan’s twin pillars, as said here before, were uncabined greed and militarism, and he got us on the road to disastrous non regulation, to inroads on and finally the repeal of Glass Steagall, to greed is good as a controlling philosophy, and to the totally unleashed, amoral (or immoral), and completely unregulated individuals and companies that were the incarnation of greed is good. Some Reaganites, feeling unable to refuse to recognize that his views have now led to disaster, now retreat to saying that at least he was the Great Communicator. What he was, was the great bullshit artist, who found a receptive audience in a body politic which did not shower itself with reasons that would cause one to believe in its intelligence, and that wanted to hear that people should be able to do whatever they want without let or hindrance, as the lawyers say.

The unsustainable had to be sustained as long as possible, of course, so we got ARMs and Alan Greenspan. Any fool could see -- let me repeat that, any fool could see -- that ARMs were a disaster waiting to happen. You did not even have to know, and for quite a while many of us did not know, that there was rampant cheating going on, e.g., false statements of buyers’ incomes, false statements regarding down payments, false appraisals. All you had to know is what lots of us did know: that the initially low interest rate would be reset later -- would inevitably go up, because of the historic fluctuation in interest rates. ARMs visibly were always an invitation to disaster, as they have now proven to be in fact. Yet the knowledgeable financial types -- the commercial banks, the investment banks, the mortgage people -- with greed unleashed by the philosophy of Reagan and his decades of disciples -- promoted these ultimately and foreseeably unaffordable mortgages, sold them by the millions to the ignorant, packaged them as securities to be sold to investors, invented a system of supposed insurance (credit default swaps) so huge, uncontrolled and unknown that nobody can say how large is the possible disaster we are facing, and made billions in hay while the sun of greed and dishonesty shined.

You know, although I think the election of McCain would be a disaster because he never met a war he didn’t love and has a dishonest streak a mile wide (as evidenced at minimum by the Keating 5 business, his putative embrace of Bush for awhile, and his current campaign), he and his advisers are right in saying that we need to find a way to keep people in their homes and paying mortgages. We will remain in big trouble so long as people, by the hundreds of thousands or millions, keep defaulting on mortgages. Better to take the loss in mortgage value at one blow -- it is always better to take a loss at one blow, as companies do when they write off a huge loss at one blow -- and move on from a resulting new starting point. The Chinese water torture is continuous torture, after all.

Than there is the sainted Alan Greenspan, the greatest saint we’ve had since Saint Ron. Believing that Wall Street would do no wrong and regulation could do no right, this avatar of the wing nut Ayn Rand aided a tech bubble that ultimately collapsed, covered up the economic effects of that collapse by aiding a housing bubble that has now collapsed, used his prestige to ward off all regulation of derivatives whose unregulated spread now threatens the world’s economy, and kept saying that Wall Street can be relied on to do the right thing. Now he tries to cover up his world class idiocy -- which became, of course, the conventional wisdom in a political and general society which regularly promotes idiocy to the status of conventional wisdom -- by saying that the problem was that, to his surprise, Wall Street, acted greedily, dishonestly, irresponsibly. Apparently this Randian genius has never heard of the word “history.” Or maybe he thinks that history shows that Wall Street always acts ungreedily, honestly, responsibly. Would it be too much to say he obviously is either a fool or a liar or both, instead of the genius people pretended he was?

You know, I doubt that Greenspan himself committed crimes and can be sent to jail, where he should be sent. But thousands of people who promoted the debacle did commit crimes; they deliberately perpetrated frauds in one way or another. The jailhouse doors should be opened for them by the thousands. We already have what, about two million people, in jail? A few thousand or a few tens of thousands more wouldn’t hurt. The possibility of jail is the only thing that the people at the top of this society understand. This is as true of the economic elite as it is of the political elite who gave us aggressive war and torture. This society is unlikely ever to change unless those responsible for its major disasters, which always are accompanied by, made possible by, crimes such as fraud of one type or another, are put in the slammer so that future potential culprits will know they better not engage in shenanigans or they too will face the slammer. Open wide the jailhouse doors, I say, so that the criminal culprits who bring disaster upon us can enter in their thousands or tens of thousands.*

*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@VelvelOnNationalAffairs.com.

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.

Thursday, October 09, 2008

Re: A New Modest Proposal: The Questions At The So-Called Debates Should Reflect The Answers, Since The Answers Will Not Reflect The Questions.

October 9, 2008

Re: A New Modest Proposal: The Questions At The So-Called Debates
Should Reflect The Answers, Since The Answers Will Not Reflect The Questions.



I would like to make, in Swiftian words, a modest proposal. This one is half in jest, but also half meant.

Everyone know that straightforwardness, direct answers to questions, and honesty are pretty much dead in this country, right? We know too in this regard that, even if debates are a good way to arrive at truth -- which may be dubious because of their format, their emphasis on winning rather than truth, and their gotcha quality -- the purported “debates” between the candidates are not in fact debates. As some have realized for decades, and as even the fool mainstream media is beginning to understand and say (especially after Sarah Palin), they are merely talking point speeches on the same general subjects by two people who often do not address either the question that was asked or the points made by the opponent. It is dishonest, and to the viewer frustrating, when these talking point speeches are called debates.

So here is my only-half-in-jest suggestion. Moderators should not ask questions which candidates (dishonestly) will not answer and will instead use merely as springboards to their talking points. That is, moderators should not, for example, ask concrete questions such as can we win the war in Iraq and if so how, or will the bailout help to overcome our economic difficulties or will it also be necessary to lessen mortgage payments, or should the government pay for the healthcare of persons who cannot afford it. Instead, moderators should simply say such things as, “Senator, tell us for two minutes whatever you wish about the war in Iraq.” Or “Governor, tell us whatever you wish for two minutes about the bailout,” or about healthcare, or about any other subject the moderator wants the candidate to speak on. The candidate could then launch into his or her talking points, just as he or she will do anyway when the current types of questions are asked. But at least there will be no dishonest pretense that a debate is going on, or that candidates are trying to answer the questions that are asked, or that each candidate is responding to the other’s points as in a true debate.

The candidates are not going to change. Regardless of what the question is, they are going to continue to repair to talking points just as they have for decades. (One can see the wheels of the “candidatorial” mind turning: “Ah hah. Tom [or Gwen or Jim or whoever] is asking a question dealing with Iraq. So I must say the following six things regardless of what the question is.”) Since the candidates won’t change, and won’t tailor their answers to the actual questions, for honesty’s sake why don’t we change the questions, why don’t we tailor the questions to the type of answers that we know are coming. Tailoring the questions to the answers sounds backwards, no? Yet, since we know what kinds of answers inevitably are coming, why continue trying to kid anyone with the current type of questions. Instead, let the questions reflect the answers because otherwise the answers won’t reflect the questions. If Mohammed won’t come to the mountain, let the mountain come to Mohammed. The suggestion sounds bizarre, but it reflects reality and honesty instead of reflecting what rarely if ever occurs and thus reflecting implicit dishonesty.*


*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@VelvelOnNationalAffairs.com.

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.

Tuesday, October 07, 2008

Re: Alan Dershowitz On Whether To Prosecute Executive Branch Criminals.

October 7, 2008

Re: Alan Dershowitz On Whether To Prosecute Executive Branch Criminals.


Over the years this writer has occasionally made comments relating to Alan Dershowitz. As said before, one’s first conception of him was encapsulated in the joke that the most dangerous place to be in the entire world was between Dershowitz and a television camera. Subsequently, after seeing him on television debates, I became convinced -- and still am -- that Dershowitz is one of the brilliant legal minds of our generation.

From time to time, people would send me emails asking me to criticize Dershowitz, and/or assailing me for not criticizing him, because of his conduct in the Finkelstein matter and because, it is claimed, he plagiarized in a book on Israel. I never wrote about those things because I never knew enough about them, and still don’t.

Now Dershowitz has written on a subject about which I am reasonably knowledgeable (and has spoken on it in a debate). Genius though he may be, I disagree thoroughly with what he wrote and, therefore, shall discuss his views -- including the way he has expressed them in writing and orally.

* * * * * *

On September 13th and 14th a conference was held in Andover to discuss crimes committed by the Bush Administration in its war on terror and to lay plans to try to do something about it. The plans include efforts to try to obtain prosecutions against legally culpable individuals like Bush, Cheney, Addington, Yoo and other high level criminals. One of the panelists at the conference was the rather eminent British law professor, lawyer and author Philippe Sands, of University College, London. Sands has written a most pertinent book, called The Torture Team, about the criminal conduct of certain high level American officials. Two days after the conference, on September 16th, Sands was scheduled to, and did, debate Dershowitz on the torture question at the Harvard Law School. One day before the conference, on September 12th, Dershowitz published an op ed piece in the reactionary bible, The Wall Street Journal, saying that there should not be prosecutions. No doubt, the Journal, one of whose editorial writers has insisted to me that the U.S. does not commit torture, was only too happy to print Dershowitz’s piece.

There were those who thought the date of Dershowitz’s op ed -- one day before the conference and four days before his debate with Sands -- was, shall one say, odd, suspicious. Ostensibly, the timing of the op ed occurred because Joe Biden, echoing Obamian remarks in April, had “recent[ly]” indicated the possibility that an Obama administration might pursue possible criminal offenses by the Bushites. But whether Biden’s remarks were the casus belli for Dershowitz, whether the casus belli was that the idea of prosecutions seems to be in the air now, or whether the upcoming debate with Sands fixed Dershowitz’s intelligence around his policy (to paraphrase the infamous by a double entendre), is impossible to know.

I have now watched the debate between Dershowitz and Sands. (A video was subsequently made available on the internet by Harvard and, since I don’t use a computer, our people made a DVD for me to watch.) There were some things that were so striking that they shall be discussed here before discussing Dershowitz’s pitiful article. Indeed, a few of these striking matters bear on the article.

Dershowitz’s personal deportment was sometimes awful. It was sometimes a caricature of a certain ethnic and geographical canard. One had to see it to believe it, and anyone who doesn’t believe me can view the approximately one hour and forty-five minute debate for himself or herself at http://www.law.harvard.edu/programs/plp/pages/events_archive.php#sands. Dershowitz was totally intolerant of opposing views and assailed the good faith of opponents. At times he vigorously interrupted his opponent and persons who at the appropriate time were asking questions or making statements from the audience. He seemed very defensive, often seemed unwilling to let other people have their say, and his conduct was such that the moderator, who was himself from Harvard Law School, had to tell him on several occasions to calm down, to stop, or whatever the moderator may have said to him. It was an amazing public performance.

Dershowitz also took umbrage -- umbrage is the only word for it -- at what he claimed were misunderstandings of and misuse of the position he took on torture early- on. He was especially incensed that torturers might have said, and others might say, that torturers had gotten mental and/or psychological succor from what he wrote early-on in the game.

Whether Dershowitz is right in claiming that his work has been misconstrued seems to me an arguable question. In part the answer could depend on whether one focuses on certain “literalities” (so to speak) rather than other statements, and whether one considers implications and underlying presuppositions that ordinary readers might find even in the “literalities” he wishes to focus on. But beyond all this, that Dershowitz could not have understood in advance what ordinary readers might find in his various types of statements seems to me to credit Dershowitz with a stupidity he does not possess. Dershowitz does seem, as Sands said, to have a detached relationship to fact; he appears to be in stridently-expressed denial of the fact that torturers could have found succor in his work. Nor, I may say, did others who were in the room with him at Harvard and who spoke up, including some quite brilliant people, seem to find it so strange or impossible that torturers and their supporters had been succored by his writings.

Dershowitz also insisted on focusing extensively on the ticking time bomb scenario of which he seems to have been an intellectual pioneer shortly after 9/11. By now, of course, the whole torture question has gone worlds beyond that unreal, lawyers’ hypothetical used by many to justify torture more broadly (although Dershowitz claimed there had been ticking time bomb scenarios in Israel). True, Dershowitz often discussed matters far beyond the limited, unreal ticking time bomb scenario. But that he nonetheless focused on it so much, and would often return to it though the actual real-world facts have moved so far beyond it, seemed -- dare I say it? -- very defensive, just like his unwillingness on various occasions to let other people talk without stridently interrupting them. (I think stridently is a fair word. If it isn’t, vigorously surely would be.)

Then there was Dershowitz’s strident (again a fair word, I think) insistence that he can be blamed for nothing because he is not a preacher, but is rather a Harvard professor whose job is to analyze the world as it is, to bring people to see the complexities of the world as it is instead of viewing it in their simpleton ways, to cause people to think, and, if the audience doesn’t like it, they shouldn’t be at Harvard. The performance put me in mind of Larry Summers’ infamous comments about the abilities or inabilities of women. Summers too was supposedly just raising the question, just setting the possible truth before the intellectual heathen blinded by their left wing prejudices, etc. Dershowitz’s performance was also ironic, since he insists he is an analytically minded Harvard professor, not a preacher, yet his style has on other occasions reminded me of nothing so much as the rabbis I sometimes used to hear as a little kid.

But beyond being Summerian (not Sumerian -- that would be Iraq or Iran or somewhere), and beyond being ironic, Dershowitz’s very vigorous insistence that he was always acting the part of the analytical Harvard question-raiser seemed -- dare I say it yet again? -- very defensive. I suppose a shrink might say it evinces being in denial of the possibility that his (Dershowitz’s) work could have been relied on by torturers.

Of course, I’m not a shrink, so I can’t really know. One thing that seemed clear even to an ignorant layman, however, was that Dershowitz’s performance -- pretty much throughout -- was of the “It’s all about me” variety (as in “Well, enough about me. Let’s talk about you. What do you like about me?”). He wanted to talk about a ticking time bomb scenario which he apparently pioneered, even though it’s quite irrelevant to almost all, or absolutely all, of what happened. He was misunderstood and misconstrued by both sides. He is against torture in reality. He is a Harvard professor and it is his job to bring analysis, complexity, and truth to the ignorant heathen, including the ignorant simpletons at Harvard. He is the one who should be talking, not others, he is right, and he should not be misunderstood, so others can be vigorously interrupted when they threaten this trinity.

And withal, his brilliance was on display, his exceptional verbal facility, his ability to deal with concepts, his Stengelesque ability to bring in points or analogies others might not even dream of, his ability to bring in facts in rapid-fire fashion -- although some people thought he got facts wrong and Sands even said at one point that Dershowitz had a detached relationship to the facts. Dershowitz’s brilliance -- as well as his obviously gigantic ego -- was on display in a perverse cause, and, one might even say, he was too brilliant by half.

Now let me turn to Dershowitz’s op ed piece in The Wall Street Journal, to which some of the foregoing relates.

Near the beginning of his piece, Dershowitz concedes the need to preserve the idea that ‘“no one is above the law.’” But what he gives with one hand, he immediately takes away with the other. For there is a “countervailing principle . . . that is equally important.” It is that “the results of an election should not determine who is to be prosecuted.” (Emphasis added.) “These principles,” he says, “inevitably clash when the winners of a presidential election investigate and prosecute the losers.” The clash exists “even if the winners honestly believe that the losers committed ‘genuine crimes’ rather than having pursued merely ‘bad policies.’” For the prosecution will almost surely be seen as “‘a partisan witchhunt.’”

So . . . . Dershowitz says we must have a rule of law, but not when the culprits (or their stand-ins) lose an election. That’s some rule of law, right? And why should there be no rule of law -- no prosecutions -- if the culprits (or their stand-ins) lose the election? Because there wouldn’t be any prosecutions if their side won it. The winners can’t prosecute the losers because the losers, had they won, would not prosecute themselves. Again, that’s some rule of law, huh? Ya gotta love it, don’t you?

Let us now put the matter in the concrete context of the current election. Dershowitz’s point is that, if Obama wins, an Obama administration shouldn’t seek prosecutions of Bushites because, if McCain wins, a McCain administration (presumably) wouldn’t seek them. But how about turning the matter around, as law students learn to do in their very first week of law school. Why couldn’t we equally say that, if McCain wins, his administration should consider and, if the facts warrant, bring prosecutions because, if Obama wins, his administration would consider, and if the facts warrant, bring prosecutions? To put it simply, if a surmise as to what one of the two administrations might do is to control action, then why shouldn’t the controlling surmise be what Obama would do rather than what McCain would do? This is only the more true because, as I’ve often discussed elsewhere, the rule of law, accountability for horrid criminal conduct, and what future presidents might do are all likely to depend on Bush, Cheney and Co. suffering criminal punishment if they have committed ghastly crimes, as so many of us think true beyond honest dispute.

In jurisprudential terms -- which surely are not familiar to most laymen -- the question relates to the doctrine of so-called neutral principles of law, a doctrine that was a major bone of contention in the early 1960s. Ignoring that the facts of an initial case might cause one principle to be adopted rather than another, the doctrine held that neutrality requires that the adopted principle must nonetheless be applied in a subsequent case which might have quite different facts. It ignored also that, if the second case had come first, a very different principle might have been adopted in the first place because the facts were so different. Dershowitz’s logic is analogous to the now discredited neutral principles theory (which Richard Posner once demolished absolutely). Dershowitz is trying to persuade laymen unfamiliar with legal legerdemain, with which he has been intimately familiar for over 45 years, that because McCain (presumably) would not prosecute, Obama shouldn’t, and he is deliberately ignoring that one could reverse it by saying that since Obama would prosecute, McCain must also.

For one of Dershowitz’s brilliance to ignore this almost has to be deliberate -- he cannot be completely unaware of it because to urge such lack of awareness would again credit him with a stupidity he does not possess. What he has done simply fuels the fire of those who say he arrives at positions and then finds or invents alleged reasons in support later.

It is “interesting” -- that’s a nice word for it -- that Dershowitz claimed at the debate to be, so to speak, the great “complexitor” bringing life’s complexities and deep analysis to the unenlightened simpletons of Harvard, yet he chose to ignore the simplest of complexities: chose to ignore that you would get the opposite result if you simply employed the opposite logic that Obama would prosecute to uphold the rule of law, so therefore McCain likewise should prosecute. So much for the self-professed avatar of complexity and sophisticated analysis.

To support his position Dershowitz says that a prosecution will inevitably be seen as political partisanship because in our system, unlike others, the Attorney General is both the chief law enforcement officer and a political adviser to the President. What he is saying defacto is that the framers set up a system in which even arch criminals in the highest office cannot be prosecuted subsequent to holding office. This might be real news to the framers, who not only wanted law to rule, not kingly tyranny, but who specifically provided that an official can be prosecuted after being convicted and impeached, a prosecution that necessarily would have occurred in a subsequent administration if it were a president who was impeached. The Dershowitzian idea that the Constitution has established a system under which serious crimes cannot be punished, and serious criminals therefore go scot free, is, to put it mildly, bizarre. And from the complexitor analyst of Harvard yet.

Nor can Dershowitz admit that a special prosecutor could do the job. “These ersatz functionaries bring problems of their own to the criminal justice process,” he says, “as evidenced by the questionable investigations that targeted President Bill Clinton, vice presidential chief-of-staff Lewis ‘Scooter’ Libby (full disclosure: I consulted with both of them, without fee, about their cases) and others over the past decades.” One would think Dershowitz never had heard of Archibald Cox or Leon Jaworski, who were special prosecutors when serious crimes were at stake, as now, instead of trumped up nonsense as in the Clinton matter. One would think him a naif unaware that politicians did everything they could, successfully, to destroy or evade or minimize the efforts of other special prosecutors, destructive conduct that should be excoriated and beneath contempt in the present case. As for the Libby case -- where Fitzgerald roared like a tiger but brought forth only a mouse (and venal Cheneyian politics almost surely got involved to limit the results, consequences that history likely will reveal far more fully) -- it is frankly preposterous to call the investigation “questionable,” an adjective that partisanly reflects Dershowitz’s “consult[ation].” As well, one hardly knows what to say about the fact that Dershowitz made sure to tell us he consulted with Libby (and Clinton) “without fee.” Are we supposed to think he felt so strongly that out of principle, not publicity seeking, he consulted at a big financial sacrifice? Such thought comes hard when one realizes that, as far back as the O.J. Simpson case in 1994 -- when lawyers’ fees (high as they already were) were much lower than later -- it was reported that Dershowitz was being paid between 400 and 650 dollars per hour. One can only wonder what his hourly fee must be today. One is not impressed with an implicit claim that out of principle (not publicity seeking) he sacrificed financially for Clinton and Libby.

Dershowitz goes on to claim (in the words of a question he puts) that there is “too great a risk of criminalizing policy differences” when a subsequent administration prosecutes members of a prior one; a risk that will have “a chilling effect on creative policy making and implementation.” To prove his point he says that a “politically appointed prosecutor, imbued with partisan zeal, could find technical violations of the criminal law in some envelope-pushing policy of virtually every administration.” Then, clearly attempting to warn us by the example of the notorious Beria while pretending not to be doing this, he says “One does not have to be as ruthless as Laventri Beria -- who infamously assured his boss Joseph Stalin ‘show me the man and I’ll find you the crime’” in order to find a basis for a prosecution. “Even the most well-intentioned and honorable partisans,” continues Dershowitz, “may see ‘genuine crimes’” by their political opponents where in fact there is “nothing more than ‘really bad policies.’”

Dershowitz’s argument is in a crucial way “fact free.” For it ignores the actual facts of the situation and is couched in abstractions only. He has to do this because the actual facts devastate his argument. (Dershowitz thus has to pull another lawyer’s trick -- the trick of arguing abstractly -- because the actual facts are so devastating to his point. In this connection, there is an old saying in the law that you should argue the facts, but if you don’t have the facts, argue the law, and if you don’t have the law, baffle them with bullshit.) For we are not dealing here with mere technical violations, or Beriaesque invention, or possibly desirable “creative policymaking.” We are dealing, rather, with outright serious crimes banned by numerous international and domestic conventions and statutes, with crimes whose ban is an outgrowth of the Nazi era that Dershowitz reviles (as he did at the Harvard debate). We are dealing with extensive torture, with murder -- murder by the scores apparently, with savage beatings of prisoners, very likely with aggressive war that has resulted in scores or hundreds of thousands of deaths and at least as many horrible injuries, with imprisoning and holding incommunicado for years people who often were innocent. Torture, murders, aggressive war, savage beatings, holding innocent people incommunicado for years -- these are mere “technical violations”? These are desirable “creative policies” which should not be “chilled”? These are Berian inventions of crime?” I don’t think so. These are the essence of serious crime. Dershowitz’s effort to ignore the actual facts is pitiful. It is not only pitiful, but is also a rejection of Nuremberg, though Dershowitz would of course feel forced to deny this.

It is, additionally, an example of yet another lawyer’s trick. By bringing up, in the abstract, possibilities of future mistakes or of going too far in the future, while ignoring what the actual facts of the present are, Dershowitz seeks to obtain immunity for clear, actual present crimes by bringing up hypothetical possibilities of punishing people wrongly in the future for conduct that isn’t clearly criminal. This kind of logic, employed all the time by lawyers, is the kind of argument that lawyers call a “parade of horribles.” Dershowitz thus posits that those who might at a trial be found horribly guilty of atrocious crimes now should not even have to face trial lest some hypothetical person be tried in the future for conduct that may not be a crime. That logic, of course, if widely employed, would be the end of all criminal law. Nobody could be tried for clear crimes now lest someone be wrongly tried in future.

Dershowitz also claims there should be no prosecutions because Congress could investigate, impeachment is available “[i]n extreme cases,” and culprits can be voted out of office. Once again, Dershowitz is fact free. For Viet Nam and Iraq have taught us, to our consternation, that these supposed remedies are pretty much useless. This needs no elaboration, I’m afraid.

Somewhat strangely, near the very end of his article, after lengthily reviling prosecutions, Dershowitz admits that there can be instances where prosecutions would be alright: in the “extremely rare situation” where the existence of criminal intent and crime are “so apparent to everyone” -- to everyone, mind you -- that no reasonable person would suspect partisanship. There is likely to be, of course, no such situation where the existence of crime is universally seen to exist and suspicion of partisanship therefore nonexistent. There are always people -- tens and scores of millions of people -- who see horrible acts as permissible, or at least as well intentioned if misguided efforts not deserving of punishment. Such is the case with Bush. Such was the case with Nixon. Such was the case with unrepentant Germans in 1945 and 1946. (To Dershowitz, perhaps, the views of Nixonites, and of Germans who (correctly?) suspected victor’s justice, made them unreasonable in suspecting partisanship. But forms of political partisanship were present at Nuremberg and such partisanship would have existed in support of prosecuting Nixon. Nonetheless what was, or would have been, criminally prosecuted also were crimes. And one wonders -- does Dershowitz claim there is prosecution-preventing partisanship when Israel puts Arabs on trial for blowing up or otherwise killing Israelis? Why does one doubt it?)

Dershowitz closes his article with one of his “it’s all about me” remarks, of the kind that were so prevalent in the debate with Sands. He says that he will vote for the Obama-Biden ticket and, so doing, “I will try to persuade them, if they win, not to conduct criminal investigations of their defeated opponents.” “I will try to persuade them” (emphasis added) as if they necessarily must be looking for his advice or at least should be looking for it, just as “I consulted with both [Clinton and Libby], without fee, about their cases.” [Emphasis added.] There seems no end of ego, does there? And this from a fellow who, brilliant though he is, seems not to care that his position destroys Nuremberg, at least in American courts, destroys the rule of law and accountability, and often relies on mere lawyers’ wiles.

One can hardly help suspecting that, for all his bluster at the debate about having been misunderstood, about being against torture, about the justifiability of his ticking time bomb scenario, about this and that, Dershowitz may be deeply concerned over the fact that he is one of those who has received blame for the torture that occurred, and might receive ever more blame in the future as the ideas which motivated people at Guantanamo become ever more known.

Could there even be concern over being a possible defendant? That Dershowitz could possibly be a defendant is an idea I would think very unlikely, and positively wrongheaded unless it somehow were to turn out that he did not confine himself to writing and speaking publicly about torture, but instead, like Henry Kissinger secretly sneaking into the White House to advise Bush, had also consulted secretly with the government to urge the permissibility of torture. But as far as I know, there is absolutely no evidence that Dershowitz did this. Naif that I may nonetheless be, I cannot see that Dershowitz (unlike Yoo or Goldsmith) did anything of significance that warrants a fear of prosecution. I thus suspect his concern arises solely from receiving blame for being one possible intellectual godfather of what occurred, however fair or unfair such blame may be.*

*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@VelvelOnNationalAffairs.com.

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.

Friday, October 03, 2008

Reasons Why

Misfits in America Chapter 4

Did the materialism and anti-intellectualism of post war America discourage a generation from pursuing public service?  For Bronze and Wolfe, college in post-war America was dominated by a  male group mentality that created a fraternity class full of boys intent upon verbally putting one another down while competing mightily in intra-fraternity games in pursuit of athletic glory rather than intellectual growth.


You can listen to Chapter 4 of Misfits in America here .

Episodes of Thine Alabaster Cities Gleam will be cross-posted here every Tuesday and Friday.  Thine Alabaster Cities Gleam is also available on iTunes , and in print from Amazon.com

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Wednesday, October 01, 2008

Uncaring Harvard of the Midwest

Misfits in America Chapter 3

The finest state University in the Country? In 1960’s Ann Arbor cheating, drinking and gut courses were the administratively accepted norm, from simply procured exam exemption letters from the University Psychiatrist, to stuffed student government ballot boxes to failed attempts to scale walls in pursuit of copies of upcoming exams.  Yet over and over again The University of Michigan overlooked the rampant school wide cheating, while continuing to tout itself as the Harvard of the Midwest.



You can listen to chapter 3 of Misfits in America here .

Episodes of Thine Alabaster Cities Gleam will be cross-posted here every Tuesday and Friday.  Thine Alabaster Cities Gleam is also available on iTunes , and in print from Amazon.com

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