Egalite! Let’s Change the World!

According to the NY Times the latest entrepreneurial move involves two plastic surgeons opening a store-front for no appointment necessary Botox injections. Botox, a derivative of botulism, is one of the most potent poisons we know. In small doses it disables muscles four to six months, smoothing wrinkles, making a person look younger.   

In more primitive times, we respected elders. In today’s rapidly changing times, elders are hopelessly “out of it”. Most likely in every high school some fourteen year old knows more about computers than any faculty member. People strive to look young, to the point of paralyzing facial muscles, because age is no longer a virtue. Perhaps in the not too distant future we will amend the constitution to make thirty five the maximum rather than minimum presidential age.

Sometime ago Bill O’Reilly (B.O.) criticized Rosie O’Donnell as an America hater because she stated on television that from the start of the war the U.S. killed more than six hundred thousand Iraqis. B.O. accepted the government’s estimate of some sixty seven thousand Iraqi dead, a leap of faith since our government lied before. Taking the government’s figure as correct and discounting killings done by insurgents, we conclude approximately twenty thousand Iraqis were killed by us. Counting dead Iraqis piles assumption on assumption, there being no clearing house for tracking casualties. Someone, I think at Johns Hopkins, estimated Iraqi deaths at over six hundred thousand. That may be high. Our government’s count is irrationally low, but even twenty thousand dead Iraqi civilians seems a large enough number for American’s to begin questioning the justice of their cause.

Killing by stoning, like beheading, seems atrocious but it has the advantage of being one on one and doesn’t involve innocent bystanders. Killing by bombing disconnects killer from victim to the point where a returning pilot may persuade himself he didn’t kill anyone since you can’t see body parts from ten thousand feet. The same disconnect forecloses comparisons of Bush and Hitler. Not only do Americans resist seeing their nation as doing evil, they see concentration camps aimed at discrete groups like Jews and Gypsies as different from carpet bombing whose purpose is to bring enlightenment to the unenlightened. The idea the end justifies the means permeates the American collective consciousness. We condemn one death as barbaric. We accept thousands of deaths as foreign policy.

We think our Constitution protects our democracy with a system of checks and balances by three separate but equal branches of government. If you do the math, two branches rein in the third. As a practical matter, the executive branch is the branch most likely to seize power. History contains no instance of a power grab by legislature or court. Recently it was reported Dick Cheney destroyed visitor logs. If the report is true, he should be impeached.

Congress passed a law concerning retention of presidential records. 44 U.S.C. §2201; 44 U.S.C. §2901.  Presidential records are defined as “…documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” 44 U.S.C. §2901(2). Not to go into too much detail, disputes about record retention are resolved by the Archivist of the United States. If he can’t decide, the matter goes to Congress.

As a lifelong left-wing Democrat, I can be accused of playing politics, but I don’t think so. A lawyer over fifty years, I smile when the claim is made we are a government of laws and not of men. You have only to look at our current Supreme Court and its recent change of course to realize outcomes of cases depend on who decides them. Still, if we are to remain a democracy, laws must mean something. Paris Hilton should not get out of jail free when others serve their full term for the same offense.

Vice-presidents should respect the law. When they don’t, Congress has no alternative to impeachment. Destroying visitor logs is far more criminal than a blow job. Even Republicans should see that.      

George H.W. Bush, (senior) seeking to salvage something of the family name persuaded George W. Bush (junior) to go along with an Iraq study group headed by senior’s trusted lieutenant (Baker). Baker’s group studied the deteriorating situation. While Baker’s report does not call for an immediate or scheduled withdrawal, it says things in Iraq are bad and getting worse.

What to do? Most objections to immediate withdrawal are either patriotic (these colors don’t run) or purportedly practical (if we leave chaos may envelop the region. Then what will we do for oil?) As for chaos, they got that right. Sunni’s, a minority, have for the most part ruled the region for centuries. They are somewhat more ruthless than the majority Shiites, but Shiites learn quickly. Our dictators, like the Saudi royal family, may go down with the ship.

It seems now that junior, ever resentful of senior, will reject the notion the Iraq situation is unsalvagable. He will double down by sending more troops to train the Iraqis, an already failed effort. How surprised senior must be that his effort to rein in his son causes a step deeper into the quagmire.

Just placed a hold on Bill O’Reilly’s (I’ll call him B.O. from now on for efficiency) book “Culture Warrior”. I disagree with him, but I should read what he has to say. On his show, Radio Factor (apparently not the “No Spin Zone”) he refers to SPs. I am told by someone who claims to know, that SP is the acronym for Secular Progressive. Since B.O. uses S.P. as a term of derision, I assume he is neither Secular nor Progressive.

According to my dictionary, secular means of this world, not religious. A Progressive is someone who believes he embraces the future, usually by seeking to improve the lot of people whose lot needs improving. Progressives oppose perceptions of elite and inferior.  I am an SP, or worse.

B.O. does not reveal much of himself. I don’t know if he believes in God, though he refers to himself as the product of parochial schools. I’d be surprised if he didn’t believe in God. He also, I think, believes in meritocracy, a social structure where the cream rises. The suggestion of a classless society where everyone has the same similar material goods must drive him up a wall. He was lower middle or lower class when he was young. Like self made people generally, he sees himself as entitled to what he has, although he claims he never went into anything for money. He did what he liked, and the money came to him. I believe that is what happened.

Elitism is an interesting subject. More next week. 

Our Constitution divides the federal government into three “separate but equal” branches, legislative, judicial, and executive, to provide “checks and balances” against tyranny. Restraining tyranny was high on the founding fathers to do list for their new country. While they had no historical experience other than monarchy, from our vantage point, we know that legislators as bodies and judges as courts, do not become tyrants. A tyrant is one man, usually the chief executive turned bad.

If you do the math, checks and balances in a three part government, mean two branches should control the third.

A few years ago Justice Scalia joined Vice President Cheney on a hunting trip. It was claimed he paid his own way, shot from a different blind and hardly saw the Vice President. Environmentalists brought a suit challenging a meeting Cheney had with energy company officials. They wanted to know who attended the meeting. Cheney claimed executive privilege. The question ended in the Supreme Court.

The environmentalists challenged Scalia’s right to sit on the case because of the “appearance of impropriety”, the standard by which judicial impartiality is measured. Turned out the justice who decided their challenge was Scalia himself. In a many page opinion, he absolved himself of wrongdoing and found himself  impartial. Unfortunately, requests to recuse judges are usually acted on by the judge whose impartiality is questioned. Congress, state legislators, the president, and governors should legislate to change this situation. Judges can be counted on to resist this obvious reform by claiming judicial privilege. If they do, they should be removed from office. Two branches in all cases, should trump the third.

Congress should legislate limits to what are now perceived as executive prerogatives such as the number of vacation days in a year, the number of press conferences in a year, the form the press conferences take, and the materials to be delivered to third parties. Presidents decide when or if to have press conferences and who to call on for questions. A fellow named Jeff Gannon, a fictitious journalist, easily obtained press credentials while legitimate news organizations have difficulty. The Gannon episode was even wierder than that.

By the same token, presidents now decide what materials they will deliver to Congress or other investigators. They claim national security, but more likely than not they are covering their ass. No president should be permitted to withhold information from Congress. If he does, he should be removed from office.

These are small matters, but legal procedures more often than not separate the free from the not free. Presidents are not kings. We should not treat them as if they are.

We say we are a government of law and not of men.  The most cursory consideration demonstrates this cannot be true. Not only do we tussle over judicial nominations which proves we realize the man (or increasingly the woman) has something to do with the outcome, we accept dissenting opinions which would be unnecessary were the law as clear as we think.

We have two main schools of constitutional interpretation, originalism which holds to the constitution’s words and the founding fathers’ intention and judicial activism which wants the law and the constitution to change with the times. i.e. discovering a constitutional “right to privacy” by enlarging a slippery phrase like “due process”. 

The Dred Scott decision illustrates the point. Southern slave states were persuaded to join the union by constitutional language which guaranteed their right to own slaves. Not quite a hundred years later many sought to end slavery. Congress, responding to this pressure passed the Missouri Compromise which limited the spread of slavery in the territories. It also provided that if a slave entered a free state, he was free. Dred Scott, a slave, got to Illinois, a free state. He brought an action to declare himself free. The Supreme Court through Chief Justice Roger Taney, a Virginian, I believe, declared the Missouri Compromise unconstitutional and Dred Scott a slave.

There were many reasons for the Civil War, but the Dred Scott decision did its bit. A conservative I know considers the Dred Scott decision judicial activism because it declared an act of Congress unconstitutional. I see it as originalist because it used original constitutional language to uphold slavery. If you take a strictly legal position, Dred Scott was correctly decided. Judicial activists, perceiving the intense emotions engendered by slavery and hoping to keep the peace, would create a senseless distinction, such as the Missouri Compromise did not limit slavery, which of course it did, but just kept it where it was.

Had Taney not come from a slave state and had he been a judicial activist, the decision would have been different. Freeing Dred Scott might have avoided the Civil War by shifting the  problem to the next generations who might be ready for less bloody possibilities. Times change. Constitutions don’t. While it seems anarchic, it makes more sense to trust judicial activists to adjust the law to changing circumstance rather than bind ourselves to our ancestor’s perceptions. 

In basic training during the Korean conflict my commanding officer, a pudgy fellow, ordered a variety of seemingly senseless acts. I don’t know if it was the army’s way of training us to obey instantly, if he was being sadistic, or both. As he ordered us about a smirk played at the edges of his mouth, as if grown men obeying his commands amused him.

When an officer entered the enlisted mens’ barracks, the first man to see him shouted “Attention”. Everyone then jumped to their feet, standing at attention until the officer said “at ease.” One day I looked up to see the CO climbing the stairs. He visited daily, no doubt to see all of us jump at his entrance. Our eyes met and for what seemed an eternity, I didn’t say anything. At the last minute, I shouted “Attention” and watched that smirk tug the corners of his mouth.

Later talking to the sergeant, I mentioned my conflicted feelings about showing respect to this guy I did not like. The sergeant who perhaps liked the CO less than me, said I was not respecting the man. I was respecting the uniform and the office. It is a distinction worthy of a Wall Street lawyer. 

Yesterday’s NY Times carried an article about a meeting between Senator Elect Jim Webb and George W. Bush. George W. Bush, like my former CO, smirks. George W. Bush asked Senator Webb how his son a Marine in Iraq was doing. I wasn’t there, but I expect George W. Bush smirked as he asked the question. How good is anyone doing in Iraq?

Senator Webb’s response was “I’d like to get them out of Iraq, Mr. President,” which struck a lot of people as impolite. The article concluded Senator Webb’s initial instinct was to slug the president, probably a felony or worse. I can only imagine Senator Webb disclosed this to someone, unless the Times uses mind readers as sources.

I think the president acted much like my former CO knowing Senator Webb was caught in a system where he could do nothing but obey. It’s especially hard to take when the deciders are also smirkers. As for the respect George W. Bush deserves, I don’t think he deserves any. Even his puppet, Iraq’s president, snubbed him. How wrong does a person have to be before we ignore the office and judge the office holder as the nasty individual he is?

Some parents use the silent treatment to manipulate a child’s behavior. In most cases, since the child is small and dependent, the strategy works. The child tearfully promises to be good if only the parent will talk to him again. The parent sees this as a victory although the child ends up battling insecurity for the rest of his or her life.

I do not know if George Bush received the silent treatment as a child although reports are his mother, Barbara Bush, is one tough lady. However acquired, the silent treatment is a mainstay of his foreign policy. Iran and North Korea do not conform to his definition of civilized, so we will not talk to them. As foreign policy this is nonsense.

Sometime ago Iran’s president sent our president a letter in which he outlined differences and suggested a dialogue. Our president who sees quite a few things as signs of weakness, did not respond. Iran’s president recently sent a letter to the American people in which he says we should rethink our Iraq strategy (If the last election means anything, a majority of Americans agree) and we should also rethink our strategy of following Israel anywhere it takes us. (I’m not sure what the last election said about that) Unfortunately Iran’s president doesn’t realize American’s don’t have much to say about our government’s decisions. I’m not sure what we would do if George Bush decides we need him to fight the war on terror past the end of his term. He has demonstrated disrespect for the Constitution many times. What’s one more time amongst friends?

The Bush administration resists calling what goes on in Iraq a civil war. Apparently they believe civil wars are less manageable than sectarian conflict. To say we inspired a civil war somehow admits defeat.

The dispute is semantic revolving, like some freshman college discussion, on what we mean by “civil war”. The conflict differs from our civil war or from a revolution in that civil wars and revolutions have two sides, the ins and the outs. In Iraq there are many sides, not only the big three, Kurds, Sunnis and Shiites, but groups within those groups. It is a large mess which the United States and its troops can’t sort out.

Perhaps if we left, one group or another or a coalition, after much bloodshed will emerge supreme and the Iraquis can get on with their lives, or what’s left of them. Civil war, why not? The label doesn’t matter. It’s not something the US can fix.