the corner tavern

Buon Viaggio, Mio Fratello

2011-10-04T14:58:00.002-05:00

Brother Tom, born May 1, 1958, passed away two years ago today.

Tomorrow there’ll be sunshine

And all this darkness past …

Playing a gig at “Decades Week” at our high school, circa 1977:

And a more recently, pointing out a perfect cloud:

With My Sainted Irish Mother and various other known ne’er-do-wells a few years back:

And another song I’ll always remember him by:

I got me a ’67 Chevy, she’s low and sleek and black

Someday I’ll put her on that interstate and never look back …

See you in the land of hope and dreams, brother.

Speaking of “London Calling” …

2011-09-23T16:18:00.001-05:00

… (Well, I was) … I should have included one of my all-time favorite versions:

Joe Strummer with The Pogues, recorded live on St. Patrick’s Day, 1988.

Awesome.

Your Friday Clash Song: Quit Holding Out and Draw Another Breath …

2011-09-23T09:48:00.003-05:00

“London Calling,” from the 1979 album of the same name.

It’s a very special Happy Birthday Bruce! edition.

Wait, what?

Yes, that’s right. Today is Bruce Sprinsteen’s 62nd birthday, and it just so happens our man Joe Strummer was a big fan. Via Letters of Note:

When asked for his opinion of Bruce Springsteen in 1997, Joe Strummer sent the following fax to documentary producer Mark Hagen and managed to echo the sentiments of millions of The Boss’s fans. The film in question, ‘Bruce Springsteen: A Secret History’, was broadcast in 1998 on British television. Springsteen returned the compliment during a gig in 2008, declaring Strummer “one of the greatest rockers of all time” before launching into a rendition of I Fought the Law.

Transcript follows. Image courtesy of the Guardian.

Image: Guardian

Transcript

ATTN: MARK HAGEN

Dear Mark – here’s my contribution

BRUCE IS GREAT... IF YOU DONT AGREE WITH THAT YOU'RE A PRETENTIOUS MARTIAN FROM VENUS. BRUCE LOOKS GREAT... LIKE HE'S ABOUT TO CRAWL UNDERNEATH THE CHORDS WITH A SPANNER & SOCK THE STARTER MOTOR ONE TIME SO THAT A ENGINE STARTS UP - HUMMING & READY TO TAKE US ON A GOLDEN RIDE WAY OUT SOMEWHERE IN THE YONDER... BRUCE IS GREAT... BECAUSE HE'LL NEVER LAY DOWN & BE CONQUERED BY HIS PROBLEMS HE'S ALLWAYS READY TO BUST OUT the SHACK & HIT THE TRACK... HIS MUSIC IS GREAT ON A DARK & RAINY MORNING IN ENGLAND, JUST WHEN YOU NEED SOME SPIRIT & SOME PROOF THAT THE BIG WIDE WORLD EXISTS, THE D.J. PUTS ON “RACING IN THE STREETS” & LIFE SEEMS WORTH LIVING AGAIN... LIFE SEEMS TO BE IN CINEMASCOPE AGAIN. BRUCE IS NOT ON AN EGO TRIP... BRUCE IS ACTUALLY INTO THE MUSIC... WE NEED PEOPLE LIKE THIS... A LOT OF RECORDS TODAY ARE MADE BY PEOPLE JUST TO FEED THEIR FAME. BRUCE IS GREAT... THERE AINT NO WHINGING WHINING OR COMPLAINING.. THERE'S ONLY GREAT MUSIC, LYRICS & AN OCEAN OF TALENT. ME? I LOVE SPRINGSTEEN!!!

(Signed, ‘Joe Strummer’)

I just love that: “On a dark & rainy morning in England, just when you need some spirit & some proof that the big wide world exists, the D.J. puts on ‘Racing in the Streets’ & life seems worth living again ...” Yes. Yes it does.

So, without further ado, here’s the man of the hour with his own version of “London Calling”:

From Bruce Springsteen and the E Street Band, London Calling – Live in Hyde Park DVD (2010).

Now turn ’em both up!

The Text of My E-Mail to Judge Penny Haas Freesemann

2011-09-21T10:13:00.002-05:00

This may be yet another example of tilting at windmills, but so be it. Earlier this morning I e-mailed Judge Penny Haas Freesemann of the Eastern Judicial Circuit of Georgia in Chatham County, who, according to Chatham County District Attorney Larry Chisolm, would decide any petition to withdraw the death warrant in Troy Davis’ case. The text of my letter follows:

Dear Judge Freesemann,

I know you are inundated with e-mails today, and I do not know whether you are, in fact, in a position to act with regard to the death warrant in Troy Davis’ case. Nonetheless, as an attorney with 24 years’ experience here in Illinois, I feel compelled to correspond with you in an effort to promote what I see as our cardinal ethical obligation as legal professionals: To protect and defend the integrity of the legal system and to promote respect for the rule of law.

I will not belabor the facts you already know. From the multiple recantations of key witnesses to the lack of physical evidence tying Mr. Davis to the murder of Officer McPhail, the underlying case against him is riddled with doubt. In his concurring opinion in the Supreme Court’s 2009 order transferring Mr. Davis’ habeas corpus petition to the U.S. District Court for the Southern District of Georgia, Justice Stevens noted that “it ‘would be an atrocious violation of our Constitution and the principles upon which it is based’ to execute an innocent person,” quoting In re Davis, 565 F. 3d 810, 830 (11th Cir. 2009) (Barkett, J., dissenting). In re Troy Anthony Davis, No. 08-1443 (U.S. Sup. Ct. Aug. 17, 2009), slip op. at 2. And while the District Court ultimately found that Mr. Davis failed to “clearly establish[ ] [his] innocence” in accordance with the Supreme Court’s order (see id., at 1), the doubts that persist with respect to his guilt or innocence leave open the very grave possibility that if the execution occurs today, the State of Georgia will be committing just such an atrocious violation of our Constitution.

Moreover, whether or not Mr. Davis’ execution is technically legal, whether or not he has been afforded his due process rights in some technical legal sense, going forward with the execution in the present circumstances will undoubtedly weaken respect for the law and the legal system throughout our country. How can we, as lawyers and judges, expect ordinary Americans to accept the fact that a potentially innocent man has been executed ... but at least the courts jumped through all the right hoops before executing him? To the public, the glaring fact remains: The legal system failed to satisfy the most basic principle ensconced in our Constitution – that the government should not be able to take a person’s life unless his guilt is established beyond a reasonable doubt. The public will not take solace in legal technicalities, and as a lawyer I do not take solace in them either.

So far, the legal system has failed to provide a remedy to Mr. Davis, and that failure weakens the legal system itself and promotes disrespect for the rule of law. If you have the power to prevent this execution from going forward, I strongly urge you to exercise that power – not only for Mr. Davis’ sake, but for the sake of the legal system. You may well have the power to save the life of a potentially innocent man and to restore faith in the law with the stroke of a pen. By doing so, you would demonstrate to the public that the law cares more for substance than procedure, that legal technicalities cannot stand in the way of vindicating our core constitutional values.

I sincerely hope you will consider whatever options are available to you.

Kind regards and with the utmost respect,

Elsewhere, the AP reports that Davis’ attorneys plan to file one last appeal today:

Davis’ lawyers drew up a late appeal asking a local judge to block the execution over evidence they object to. Defense attorney Brian Kammer told The Associated Press he would file the appeal in Superior Court in Butts County, home of the state’s death row, when it opens Wednesday.

(Via Think Progess on Twitter.)

Needless to say, that appeal is a long shot, as are requests to either the District Attorney or Judge Freesemann to withdraw the death warrant. Long shots, but not necessarily impossible …

Music For Your Final Hours

2011-09-20T19:44:00.000-05:00

Steve Earle with a live version of “Billy Austin” recorded in 1991:

Now my waiting’s over

As the final hour drags by

I ain’t about to tell you

That I don’t deserve to die

But there’s twenty-seven men here

Mostly black, brown and poor

Most of ’em are guilty

Who are you to say for sure?

So when the preacher comes to get me

And they shave off all my hair

Could you take that long walk with me

Knowing hell is waitin’ there

Could you pull that switch yourself sir

With a sure and steady hand

Could you still tell yourself

That you’re better than I am

Just seems appropriate tonight.

Spare the Life of Troy Davis

2011-09-18T14:48:00.002-05:00

As much as I’ve decided to eschew politics on this blog, I have to weigh in on an issue that some might describe as political. I don’t see it that way; I see it as a simple moral issue. Then again, I’ve been inalterably opposed to the death penalty all my life; it’s never been about liberal or conservative values – just human values.

Anyway, even if you don’t reflexively oppose the death penalty like I do the case of Troy Davis, scheduled to die by lethal injection in Georgia on September 21, should give you pause. If you don’t know Davis’ story, here’s the back ground. And note that this comes from none other than William Sessions, former director of the FBI. Not exactly a faint-hearted, weak-kneed liberal. Anyway, Mr. Sessions describes the Troy Davis case this way:

As Troy Davis faces his fourth execution date on Sept. 21, many may assume that lingering doubts about the case have been resolved. This is far from true, and the Georgia Board of Pardons and Paroles — which has several new members since the Davis case last crossed its desks — has the daunting task of reviewing one of the most controversial cases the state has ever seen.

What quickly will become apparent is that serious questions about Davis’ guilt, highlighted by witness recantations, allegations of police coercion and a lack of relevant physical evidence, continue to plague his conviction. Last summer, an extraordinary hearing ordered by the U.S. Supreme Court to answer these questions instead left us with more doubt.

At Davis’ evidentiary hearing, witnesses called by Davis recanted trial testimony and made allegations of police pressure. Others testified that an alternative suspect had confessed to them that he committed the crime. One eyewitness testified, for the first time, that he saw this other suspect, a relative of his, commit the crime. Police witnesses for the state of Georgia alternatively asserted that the original trial testimony was the true version of events and that it was elicited without coercion.

Some of these same witnesses also had testified at Davis’ trial but have since recanted their trial testimony. The judge at the evidentiary hearing found their recantations to be unreliable and, therefore, found Davis was unable to “clearly establish” his innocence. The problem is that the testimony of these same witnesses, whom the judge had determined were less believable, had been essential to the original conviction and death sentence.

As a lawyer, this is extremely disheartening. The issue here is not whether Mr. Davis should be set free or whether his conviction should be thrown out, but whether the state of Georgia should be permitted to go forward with his execution in the face of serious doubts as to his guilt or innocence. Logic would dictate that in such a case, at a bare minimum, his death sentence should be vacated or commuted; better to let the man live so that those doubts can be cleared up than to kill him without resolving those doubts, right? Apparently, however, the courts could not provide a legal remedy to Mr. Davis because he, the condemned man himself, “was unable to ‘clearly establish’ his innocence” at last year’s Supreme-Court-ordered hearing to review his sentence. Perhaps the court applied the correct legal standard in the context of that hearing (I’m no expert in the field), but if so that tells you that the legal system has clearly broken down. If our courts cannot set aside a death sentence when the defendant’s guilt is clearly in doubt, we need to rethink our approach to these cases.

There is, however, one last avenue for relief. As Mr. Sessions says, the Georgia Board of Pardons and Paroles will meet tomorrow, September 19, to consider granting Mr. Davis executive clemency:

In 2007, the Georgia State Board of Pardons and Paroles issued a stay of execution for Davis and took the admirable position that it would “not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt as to the guilt of the accused.”

Because this case continues to be permeated by doubt, the Board of Pardons and Paroles’ stance continues to be the right one. In reality, there will always be cases, including capital cases, in which doubts about guilt cannot be erased to an acceptable level of certainty. The Davis case is one of these, and it is for cases like this that executive clemency exists.

Those responsible for clemency play a vital role in ensuring our legal system includes a measure of compassion and humanity. The death penalty should not be carried out, and Davis’ sentence should be commuted to life.

That is absolutely correct, as my friend and local writer Emily L. Hauser has been arguing for days now. See her posts here, here, here, and here, with multiple links to online petitions and contact information of various state officials so that you can add your voice to the thousands who have urged the state of Georgia to reconsider the execution of Troy Davis. Please also take a moment to read Emily’s outstanding piece in The Atlantic called “Explaining the Death Penalty to my Children.” It’s one of the most cogent things I’ve read on the subject. I also highly recommend Karoli’s excellent piece, “A Letter to Georgia: Do Not Come What You Loathe,” from the perspective of someone whose family has endured a murder but who still opposes Mr. Davis’ execution. Really moving stuff.

But even apart from Troy Davis’ case, let me reiterate that I am opposed to the death penalty in all cases. I know that view isn’t shared by the majority of Americans, but so be it. It is my view and always has been. I make no apologies for it.

So I’ll leave you with the words of the late Supreme Court Justice Thurgood Marshall from his concurring opinion in Furman v. Georgia, 408 U.S. 238, 371 (1972), a case that struck down the death penalty as it was then imposed in the state of Georgia and elsewhere throughout the United States:

At a time in our history when the streets of the Nation’s cities inspire fear and despair, rather than pride and hope, it is difficult to maintain objectivity and concern for our fellow citizens. But, the measure of a country’s greatness is its ability to retain compassion in time of crisis. No nation in the recorded history of man has a greater tradition of revering justice and fair treatment for all its citizens in times of turmoil, confusion, and tension than ours. This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system.

In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve “a major milestone in the long road up from barbarism” and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.

Unfortunately, Justice Marshall’s optimism was short lived. Just four years later, in Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court reinstated the death penalty, subject to certain procedural controls. Nonetheless, I believe Justice Marshall had it exactly right. We are better than the death penalty.

Your Friday Clash Song: You Must Not Relent …

2011-09-16T11:34:00.000-05:00

This may or may not have been inspired by the release of the new film Contagion or a recent presidential candidates’ debate. “Inoculated City,” from Combat Rock (1982). Either way, it’s a great song. Oddly enough, the original version (video) includes an audio sample from a “2000 Flushes” television commercial, but that was deleted from later versions of Combat Rock. Here’s the longer version from the Rat Patrol from Fort Bragg recording (which eventually became Combat Rock):

So, there you go. Whether you like the long version or the short version, you know what to do.

Turn. It. Up.

Johnny Cash, February 16, 1932 – September 12, 2003

2011-09-13T21:07:00.002-05:00

Yes, I’m a day late, but it’s stil worth mentioning: Yesterday was the eighth anniversary of the passing of an American legend, Johnny Cash.

I was aware of it yesterday but didn’t get around to posting anything due to a million other things; but this morning when my Twitter pal Rosanne Cash (@rosannecash) mentioned that she’ll be playing a show in New York with the Jayhawks (@the_jayhawks) next month, I was reminded of the one and only time my wife and I were fortunate enough to see her father – here in Chicago in August 1994 … with the Jayhawks doing the opening set. It was a great show, notable not only for the phenomenal performance of the elder Cash but because of the incredibly (and appropriately) eclectic crowd. We were there with another lawyer-couple, and there were a fair number of well-scrubbed, urban professional types in the crowd – along with surly teens in black t-shirts, flannel-shirted grunge-types, hipsters, Goths, and, of course, graying old bikers with enormous belt buckles, Harley shirts, leather vests. Suffice it to say the entire history of men’s facial hair was on display that night. And probably some women’s facial hair, too.

It’s also worth mentioning that the mid-1990s was a very prolific time for Johnny Cash. He had just released the brilliant American Recordings LP, reinventing himself and his music for what must have been the hundredth time in his career. As you may know, he went on to record a total of six American Recordings albums with producer Rick Rubin, the last two of which were released after his death. American Recordings IV: The Man Comes Around, released in 2002, is probably the best known of the series. That’s the one that includes his incredible re-working of Nine Inch Nails’ “Hurt” and Depeche Mode’s “Personal Jesus,” two songs I never could have imagined Johnny Cash covering when they came out; and yet, in a sense, it made perfect sense for him to cover those songs in the twilight of his career.

It made sense for Johnny Cash to branch out and cover modern artists like Nine Inch Nails and Depeche Mode because he always was one of the most open-minded artists around. Though his own music was predominantly traditional country and Southern gospel, he embraced everybody – including, at the height of the anti-war and civil rights movements, counter-culture figures like Bob Dylan, Kris Kristopherson, and Joni Mitchell. Take a look at the rundown of artists who appeared on his television show from 1969 to 1971: It literally represents voices from all aspects of American society at the time. So, covering modern alternative rock acts made perfect sense for Johnny Cash in the 1990s and 2000s.

But on the anniversary of his death, I have to go back to the song at the top of this post, “Man In Black.” If there’s one song that’s essentially Johnny Cash’s manifesto, it’s this:

I wear the black for the poor and beaten down

Living in the hopeless hungry side of town

I wear it for the prisoner who has long paid for his crime

But is there because he’s a victim of the times …

I wear it for the sick and lonely old

For the reckless ones whose bad trip left them cold

I wear the black in mourning for the lives that could have been

Each week we lose a hundred fine young men …

Well there’s things that never will be right I know

And things need changing everywhere you go

But till we start to make a move to make a few things right

You’ll never see me wear a suit of white …

Yeah, that pretty much sums up who he was. What a great artist.

What Do You Say to a Five Year Old?

2011-09-11T20:34:00.005-05:00

Yes, it is overkill as a matter of fact. This constant stream of news stories and reminiscences, this obsession with the calamity of September 11, 2001, is complete overkill. Local DJ Lin Brehmer (no ordinary DJ, mind you) refers to our remembrances of days like this as “nega-versaries,” the anniversaries of tragedies that seem to captivate Americans like nothing else.

It’s overkill, but to some extent it’s unavoidable … because we do remember events like September 11 whether we want to or not; and those memories are keener on anniversaries of the event and, I guess, keener still on bigger, “rounder” anniversaries like the fifth and tenth anniversaries. That it seems illogical doesn’t make it less real: We’re hardwired to think there’s something especially significant or poignant about the ten year anniversary of September 11, and to pretend we’re not is an exercise in futility.

So with apologies to my friends who are sick and tired of hearing about it, there’s something about September 11 that I feel the need to recall and to write about today, and I’m just going to go ahead and do it. Because this is a part of the September 11 story that doesn’t get much attention: The way the events of that day affected parents of young children and, more importantly, those young kids themselves. It’s not as gripping as the stories of the first responders, nor as tragic as the stories of those who died and those who lost family members and friends. I’m not trying to compete with those stories; I’m only saying that for someone like me – the father of five and three year old boys at the time – the events of that day presented a unique challenge; and for our boys, who are now 15 and 13, and our daughter, now 9, who was born two months later, the September 11 attacks and what followed may have an effect that’s even harder to fathom.

Harder to fathom, but not altogether unfamiliar.

Anyway, the thing is this: On September 11 and for the next few days, my wife and I did everything we could to shelter our boys from the news, because that’s not really the kind of thing a five and a three year old boy should have to deal with. But we knew we couldn’t keep the story from them for very long, especially because our older boy, Paul, had just started kindergarten at the elementary school down the street and there was virtually no way to prevent him from overhearing older kids or adults talking about it. Moreover, on that Friday, September 14, Paul’s school held an assembly for the kids to address what had happened. The younger kids were spared the gory details, but they were asked to make paper doves for the assembly and they did play some role in it. So at a minimum, Paul was bound to have heard something about the attacks by the end of that week.

It also happened that on that Friday night my wife had plans to meet some friends downtown, and so I was alone with the boys that evening. So after dinner as the three of us were sitting in the boys’ room playing with Legos or whatever, I decided I had to talk to them about what had happened and what they knew. I asked them if they’d heard anything about people getting hurt in New York City earlier in the week. They both looked at me with blank stares. I tried again, asking if they’d heard about a building catching fire or anything like that. Still nothing. So then I asked, “What about a plane crash?”

“Oh, yeah,” Paul said. Mark, our three year old, said nothing. By this point, I thought he’d pretty much lost interest in the conversation.

But Paul went on: “Yeah, I heard about that. But the good thing is, the bad guys got killed too.”

Now bear in mind, he’s five years old at the time. He sees pretty much everything through the prism of superheroes and children’s cartoons and black-and-white good-versus-evil, and so none of this had any real meaning to him. “The bad guys got killed” just means some sort of justice was served, some loose ends of the storyline got tied up. No big deal.

But as we were sitting there, I recalled something I’d read earlier in a special edition of the Chicago Tribune that was published on the evening of September 11 and distributed to every household in the area. In one article, a Tribune reporter had asked various religious leaders for their reaction to the attacks, and Greek Orthodox priest – I wish I knew his name – made the most remarkable observation I had heard at the time. He said in addition to the horrific loss of innocent life, people should mourn the deaths of the highjackers, too, because they were children of God like everybody else; they came into this world as innocent souls and somewhere along the line they were lost. And that loss was tragic too.

Even if you take the religious overtones out of it, the priest had a point. These young men weren’t born highjackers and murders. They were born human beings like the rest of us. They went astray, of course; somehow and for whatever reason the learned to hate and they learned to kill; but they weren’t born that way. Somehow, between birth and death, they lost their way. And that was sad, too.

So that Friday night, sitting in my boys’ room with the world still not making any sense, I tried to convey that idea to my five year old son. I said, no, really it’s not a good thing that the bad guys died too. I said they weren’t always bad guys, but at some point in their lives they turned to bad ideas; they started out good and became bad. And if they hadn’t gone through with the attacks; if, for some reason, they decided at the last minute that they weren’t going to kill innocent people – or if they just chickened out, or got caught – maybe there was a chance that they could come around, that they could learn that whatever grievance they felt they had against whomever the felt they had it, it didn’t justify the wonton murder of thousands of innocent people. Maybe they could have been saved, somehow. So their dying, on top of the thousands of innocent people who died that day, really wasn’t a good thing after all.

I don’t know if that made any sense to Paul. He seemed to understand, at least on some level, but I couldn’t really tell. As for Mark, I’m fairly sure all of this was over his head. But as Paul and I were talking about this, Mark climbed into my lap and held on to me. He knew there was something deadly serious going on, even if he didn’t know what it was.

Did all of this make any difference? I don’t know. All I can tell you is, I did the best I could under the circumstances.

But what’s always bothered me about that day and the events that happened over the next couple of years is this: I realized then that the events of September 11 and what followed were going to be for my kids what Vietnam was for me. Having been born in 1962, I grew up with Vietnam. It was everywhere I looked when I was little. When I was five or six years old, Vietnam dominated every news broadcast on television or radio; it dominated every conversation my parents and older siblings had; it was on the front page of every newspaper and every magazine. There were images of the war everywhere, and even as a young kid I knew that people were fighting and dying overseas every day. And I knew there was a risk that my older brothers could get drafted and might have to go to fight in Vietnam.

And maybe worse than all that, I learned at a very early age that there were serious doubts about the morality and the justification for the war in Vietnam.

I wonder if the architects of Vietnam ever thought about that: That my generation was the first generation in American history to have to ask, at a very early age, whether our country was engaged in an illegal and unjustified war; whether our country had betrayed its most sacred principles. Yes, our country had made grave mistakes before – just ask Native Americans – but most people learn about those things when they’re older, maybe in high school or so, and are better able to balance the good things in our history with the bad. But because Vietnam was ubiquitous in the late 1960s, my generation grew up questioning from a very early age whether our government had ginned up an excuse to wage a war in a foreign country in violation of everything we were supposed to believe in.

So I worry whether in the years since September 11 we’ve bequeathed that same horrible thing on my kids’ generation. After all, the wars that followed the September 11 attacks are more or less all they know, and at least in the case of Iraq the same awful questions linger.

I grew up feeling like a part of my youth had been stolen from me by a government that was willing to lie the country into war in Southeast Asia. Now I have to ask whether we’ve done the same thing to my kids’ generation.

[Pictured at the top: Students from St. Joan of Arc School in Lisle, Illinois, forming a human peace sign on September 9, 2011, to commemorate the tenth anniversary of September 11, 2001.]

“May the Living Let Us In Before the Dead Tear Us Apart”

2011-09-10T21:21:00.000-05:00

Bruce Springsteen, “Worlds Apart” from The Rising (2002)

A Real Journalist Talks About Her Experience on September 11

2011-09-09T21:07:00.001-05:00

View more videos at: http://nbcchicago.com.

Carol Marin, the political editor of WMAQ in Chicago and a Chicago-Sun Times columnist, was in New York City on September 11, 2001, in the vicinity of the World Trade Center as the second tower fell. In this clip, she talks about that experience and the firefighter who saved her life. Although she is reluctant to relive that experience, I think the clip is well worth listening to.

A couple of observations here. If you’re not familiar with Carol Marin, she is an outstanding journalist – one of a handful of local reporters who are the real deal. She’s been covering the MMA-like world of Chicago and Illinois politics for years and I think it’s safe to say that everyone who’s familiar with her work holds her in high regard. By way of example but not limitation, Carol Marin might be best known for quitting her job as an anchor of WMAQ’s 10 p.m. newscast in 1997 to protest the station’s hiring Jerry Springer to provide occasional political commentary – a move that demonstrated the kind of journalistic integrity she’s always epitomized. (To his credit, her co-anchor, Ron Magers, also quit in protest; he’s now an anchor at WLS in Chicago.)

Also, it so happens that on the afternoon of September 11 I was in my car listening to a local radio station, WXRT, when they reached Carol Marin by telephone from New York and talked to her about what she had experienced. This was within a few hours of the second tower’s collapse, and you could tell from the tone of her voice how upsetting it had been, and how grateful she was to have survived. That really stuck with me over the years, and listening to her story again reminds me just how eerie everything felt that afternoon.

One more personal note. I ran into Carol Marin – almost literally – a few weeks after September 11 while running my first Chicago Marathon. It was October 7, 2001, to be precise (which happens to be the day the invasion of Afghanistan officially began), and it’s a pretty un-glamorous story, inasmuch as it involves a desperately needed bathroom break just about a mile and a half into the race where the first port-a-potties were located … But the point is, we both happened to be exiting the (ahem) rest stop at about the same time, and so, like the shameless goof I am, I introduced myself to her and we ran together for a block or so, chatting briefly about that that awful day. She was every bit as unassuming as she is in the video clip above, expressing her gratitude for the firefighter who kept her out of harm’s way. I said something to the effect that I was glad and relieved she was okay – which was true – but I’m sure it sounded completely trite. Nonetheless, she was really gracious about it, and I’ve always appreciated that.

Anyway, it’s a minor thing, to be sure, but it’s one of those indelible memories from September 11 and the weeks that followed.

And before you ask, I have no idea if she finished ahead of me, or I finished ahead of her. I’m pretty sure neither one of us won the race, though.

Your Friday Clash Song: Repression … Gonna Start On Tuesday!

2011-09-09T11:19:00.001-05:00

Why haven’t I played this song before? “Remote Control” from the debut album, The Clash, released in the U.K. in 1977. A slightly different version of The Clash was released in the U.S. in 1979, but it also included “Remote Control.”

The story behind “Remote Control” is odd to me, because I’ve always loved it. Apparently, however, the band didn’t think it was so great:

[“Remote Control” was] [r]eleased as a single by CBS without the band’s permission whilst they were touring Europe. The Clash saw this as a major challenge to the control of their own material, and were especially unhappy as the song was already available on the album (The Clash wanted to release new songs as singles to offer maximum value for money to fans) and they didn’t believe it was a strong enough song to be an A-side. This incident resulted in (and is written about in) the song Complete Control.

Hence, the lyric in “Complete Control”:

They said, “Release ‘Remote Control’!”

But we didn’t want it on the label …

Well, Mick Jones may have thought it was “a turkey,” but I think it’s great. So, I’ll double down and add this insanely awesome live version recorded in Mont-de-Marsan, France in 1977:

Take that!

Okay, so, one last thing. With the tenth anniversary of September 11 looming, this keeps going through my head and I’m not sure why:

Johnny Cash with Joe Strummer doing Bob Marley’s “Redemption Song.” I don’t really know why this seems so appropriate this weekend. Maybe it’s just because it’s two of my favorite performers, both of whom died after 9/11, and the world is just a little emptier without them. If anyone could make sense out of what happened then and what’s happened since, it was Johnny and Joe. And yet they’re gone. That sucks.

Well. Ahem. On that note … have a great weekend!

And: Turn. It. Up.

Your Labor Day Weekend Soundtrack, Part 2

2011-09-05T13:31:00.001-05:00

Well I can’t outdo Peter Rothberg’s “Top Ten Labor Day Songs” at The Nation, but I’ll add these to your holiday playlist.

First, an obvious choice for me: “Clampdown,” by the Clash:

The men at the factory are old and cunning

You don’t owe nothing, boy get running

It’s the best years of your life they want to steal …

(Here’s a great live version of “Clampdown” that can’t be embedded, unfortunately.)

And speaking of the Clash … “Career Opportunities”:

Career opportunities, the ones that never knock

Every job they offer you’s to keep you off the dock …

Here’s Los Lobos with a reminder that American workers come from all walks of life: “Will The Wolf Survive?” from their 1984 album of the same name.

And, yeah, I can’t leave Bruce Springsteen off the list. With Rage Against the Machine’s Tom Morello doing “The Ghost of Tom Joad”:

No home no job no peace no rest …

Because on Labor Day it’s worth remembering the millions of Americans who lack adequate work and the dire consequences that flow from it.

Okay, but it is still a holiday, after all, so we have to end on a high note – and for the record, I make no apologies for this. It’s 1980s camp rock at its finest: The BusBoys, “American Worker”:

And, of course … “Minimum Wage”:

Happy Labor Day!

Your Labor Day Weekend Soundtrack, Part 1

2011-09-03T21:48:00.001-05:00

Bruce Springsteen, recorded live in the studio in 1978, with “The Promise,” which is more or less a sequel to “Thunder Road.” This is probably the best song ever written about having your dreams crushed: We’re gonna take it all, we’re gonna throw it all away …

But it’s a great song just the same.

Your Friday Clash Song: Start All Over Again

2011-09-02T14:50:00.000-05:00

“Wrong ’Em Boyo,” from London Calling (1979), another great cover of an obscure but outstanding ska/reggae song.

From Rhapsody.com:

The song The Clash abandon at the outset of “Wrong ’Em Boyo” is Lloyd Price’s “Stagger Lee.” Seems like a nice shout-out to early rock ’n’ roll/New Orleans R&B, right? But here’s the thing: “Wrong ’Em Boyo” is actually a note-for-note cover of a song by a little-known ska band called The Rulers — yes, including the false start and the “start it all over again.” Okay, deep breath. In “Stagger Lee,” Price, a founding father of rock ’n’ roll, was paying homage to early blues music, singing a song about a character who’s deeply rooted in early American blues and folk music — even though he was modernizing it by turning it into R&B. His modernized blues wafted across the Caribbean (American radio was choppy but listenable in Jamaica), and it inspired a bunch of Jamaicans to first cover American R&B and then, uh, invent ska. (Without American R&B, ska wouldn’t exist. Trust us: this is true.) In covering The Rulers’ “Wrong ’Em Boyo,” The Clash are paying homage to a) early American blues, b) New Orleans R&B and rock ’n’ roll, c) ska and its influence on punk rock, and d) all of humanity, history and beauty. Or something like that.

Sounds about right.

Anyway, here’s the Rulers’ original version:

And I have to point out that when you Google “the rulers wrong em boyo” one of the links that comes up brilliantly if mistakenly identifies the song as … wait for it … “Wrong Embryo.” When you click on the link, however, the YouTube video that comes up actually labels the song “Wrong Emboyo” … which is almost correct; but I’m disappointed it’s not “Wrong Embryo.” Because if you’re going to screw up a song title, you might as well do it hilariously.

Anyway, there you go. Your Friday Clash Song: “Wrong ’Em Boyo.”

Turn. It. Up.

Revamping the Blog

2011-08-29T20:48:00.002-05:00

Of course, given what “vamping” means, I think “revamping” ought to mean something altogether different. But I digress.

Anyway, the thing is, I’ve decided to jettison politics on the blog in favor of (mostly) straightforward legal analysis (with occasional forays into sports and music, because it’s my blog and I can do that if I want). But no more politics, left, right or center.

I’m doing this for at least a couple of reasons. First, being a lawyer, the law is something I actually know something about, and I’ve grown weary of people who are experts in one field (say, economics) believing themselves to be experts in everything even tangentially related to their field of expertise; and, specifically, believing themselves to be experts in politics and the political process itself … which most of them (us) most assuredly are not. So I think I’ll stick to writing about something I actually know. Which is the law.

Second, politics is toxic. It really doesn’t matter if you are liberal or conservative – or one of those mythical independents, who, I think, are really just conservatives for the most part – because no matter what your frame of reference, if you write about politics long enough you will be attacked, and not just by the other side. You will be attacked by people who agree with ninety percent of what you have to say, but who’ve decided, for reasons no one really understands, that the ten percent on which you disagree is far more important than the ninety percent on which you’re jake; so much so that the fact that you disagree on that particular ten percent makes you worse than the political opposition, ninety percent jake-ness not withstanding.

So I leave the politics to those who know what they’re talking about and to those who can deal with the circular firing squad that politics has become, left, right and center.

One last thing. I don’t plan to post nearly as frequently as I’ve done in the past. Maybe once or twice a week, maybe more often, depending on whether I can actually devote the time to it. Occasionally, I may post short pieces on sports or music or whatever else strikes me (but not politics). But by and large, my presence here will be less than it’s been over the past few months. I don’t doubt that that will cause many readers to lose interest, but so be it. Nobody’s getting rich doing this anyways.

Your Friday Clash Song: Generatin’ Steam Heat …

2011-08-19T12:09:00.001-05:00

So, yeah, I know I’ve mentioned this song before, but when I was out for a run this morning listening to my iPod both the Clash and the Ramones came up in rotation (“Police On My Back” and “I Wanna Be Sedated,” respectively), and it hit me: What you really need today is a double dose of punk. Because it’s Friday, after all, and who doesn’t need a double dose of punk, any day of the week. It’s like an IV-bag full of black coffee and a cold hard slap in the face. And I mean that in a good way.

So, I give you a minute-long full-metal-’70s cover of “Blitzkrieg Bop” by The Only Band That Mattered. Or matters, depending on your perspective. The only thing wrong with this song is that there’s not more of it. The Clash Wiki says their cover of “Blitzkrieg Bop” “[w]as played live during 1978, where the band would segue it into the end of Police & Thieves” and “[a] live performance from Le Stadium, Paris 1978 is included as a hidden track on the promotional album Rockers Galore.” So we got that goin’ for us. Which is nice.

The video posted above is one of at least a half dozen live recordings of “Blitzkrieg Bop” you can find on YouTube, all of which are roughly the same length and all of which seem to be truncated at either the beginning or the end. I chose this one because the sound is marginally better that the others. Emphasis on marginally. I just wish there was a longer version because … I mean, holy hell (pardon the expression) it’s the Clash doing the Ramones, fer Chrissakes.

But it does give me the opportunity to add this, from Joe Strummer and the Mecalaros:

Yeah, I know. I posted that before too. But, come on. It’s awesome.

And, just because it’s my blog and I can do what I want, here’re the Ramones at the end of their storied career, doing it the way nobody else ever could:

So there you go. Your Friday Clash Song: The Clash + the Ramones = Unmitigated Awesomeness.

Turn. It. Up.

Saddest Song Ever?

2011-08-18T12:24:00.007-05:00

Yesterday on Facebook, local deejay Lin Brehmer of WXRT was taking suggestions for a list he was compiling of the saddest songs ever. I haven’t seen the final list, but the first song that came to mind for me was Bruce Springsteen’s “Stolen Car” from The River (1980):

She asked if I remembered the letters I wrote

When our love was young and bold

She said last night she read those letters

And they made her feel one hundred years old

And I’m driving a stolen car

On a pitch black night

And I’m telling myself I’m gonna be alright

But I ride by night and I travel in fear

That in this darkness I will disappear.

Yeah, that’s pretty … um … gloomy, eh?

Still, I can’t say it’s necessarily the saddest song ever. Scanning through my iTunes library, a few others occur to me … like the Replacements’ “Sadly Beautiful” from All Shook Down (1990). Here’s Paul Westerberg performing “Sadly Beautiful” live in New York in 1996 (appropriately enough, because All Shook Down was really meant to be his first solo record, not the Replacements’ final LP):

Of course, “Straight to Hell” by the Clash would also fit the bill:

As railhead towns feel the steel mills’ rust

Water froze in the generation

Clear as winter ice

This is your paradise …

Another worthy selection: James Taylor’s “Fire and Rain,” a song about the death of a close friend and Taylor’s own struggles with drug addiction, which might be one of the most finely crafted pop songs ever written:

“San Diego Serenade” by Tom Waits, another song from my misspent youth, certainly deserves consideration:

And since we’re wandering all over the map, genre-wise, I’ll just go ahead and throw this out: Vince Gill’s “Go Rest High On That Mountain,” easily the saddest country/bluegrass song ever written:

Here’s another version, featuring Ricky Scaggs and Urbana, Illinois’ own Alison Krauss. (Religious implications aside, having lost two brothers I know whereof he speaks.)

Anyway, speaking of country/bluegrass/folk/etc., John Prine’s “Paradise” earns an honorable mention. This a live version from 1982 featuring Vince Gill and Marty Stuart that captures the song’s wistfulness and sense of loss:

And the Pogues’ “Streets of Sorrow/Birmingham Six” would certainly make my list:

You’ll be counting years

First five then ten

Growing old in a lonely hell

Round the yard and the stinking cell

From wall to wall, and back again …

You can’t have a list of the saddest songs of all time without at least one reference to The Old Sod, now can you?

Finally, I can’t overlook “No Woman No Cry” by the great Bob Marley (though it’s hard to think of reggae as “sad” …):

Anyway, I’m sure I’m missing all sorts of obvious choices, but that’s what I came up with off the top of my head. Feel free to make suggestions in the comments section …

UPDATE: So, my sister Joan alerted me to the fact that Lin Brehmer has now posted his list of “The Rock and Roll Generation’s Ten Saddest Songs,” and I note that Mr. Brehmer, my erstwhile Best Friend In The Whole World (as he likes to say to all of his listeners), did not take my suggestion and include “Stolen Car.” I still say the lyric about a guy’s wife reading his old love letters and them making her “feel one hundred years old” is, maybe, the saddest lyric I’ve ever heard, but whatev.

On the other hand, he has some excellent selections. I can’t believe I overlooked Warren Zevon’s “Keep Me In Your Heart,” although Bruce Springsteen’s cover of “My Ride’s Here” is nearly as poignant. It’s hard to top a song written by a guy who knows he’s dying and doesn’t want you to forget him, though. I also forgot about the Cure’s “Pictures of You,” which Lin lists at No. 5. Here’s a pro-tip. If your brother dies and you’re asked to find pictures of him for his wake: Do not listen to the Cure’s Disintegration while you’re doing it. Because “Pictures of You” will come on, and you will die. Trust me. I know this to be true.

So, there’s that.

Oh, and Hüsker Dü’s “Hardly Getting Over It” at No. 2? Well played, sir. Well played indeed.

But I still would’ve included “Stolen Car.”

Was Ron Paul “Shafted” by the Media?

2011-08-15T21:23:00.002-05:00

Roger Simon at Politico thinks so:

I admit I do not fully understand Ron Paul and his beliefs. But I do understand when a guy gets shafted, and Ron Paul just got shafted.

On Saturday, the Ames Straw Poll was conducted in Iowa amid huge media interest and scrutiny. The results were enough to force one Republican candidate, Tim Pawlenty, out of the race, and catapult another, Michele Bachmann, into the “top tier.”

…

As The Daily Beast put it: “The new top tier of Bachmann, Perry, and Romney — created by Bachmann’s Iowa straw poll win, Perry’s entry into the race and Romney’s lead so far in many national and state polls — has unleashed torrents of talk about the reshaped race.”

Paul’s name was not mentioned in this piece nor in many others. A Wall Street Journal editorial Monday magnanimously granted Paul’s showing in the straw poll a parenthetical dismissal: “(Libertarian Ron Paul, who has no chance to win the nomination, finished a close second.)”

But “close” does not fully describe Paul’s second-place finish. Paul lost to Bachmann by nine-tenths of one percentage point, or 152 votes out of 16,892 cast.

It’s a sentiment I’ve seen elsewhere, too: that the media treats poor libertarian Ron Paul differently, takes him less seriously, than other candidates, and that, presumably, is “unfair.”

I’m not altogether sure the media is shunning Ron Paul, to be honest with you. He may have done well in the altogether meaningless Ames Straw Poll this year, but he has essentially no track record on the national level. During the 2008 Republican primary elections he mostly polled in the single digits; and, as for the current election cycle, in the latest RealClearPolitics average of major opinion polls Ron Paul garners 9% support among Republicans, fourth behind Mitt Romney, Rick Perry, Michele Bachmann, and the as-yet undeclared Sarah Palin. Consequently, I suspect a lot of folks in the media just don’t think his 2012 campaign will amount to much, and so they may not be shunning Ron Paul so much as allocating scarce resources elsewhere.

But even if the media is shunning Paul, it may have less to do with his cranky libertarianism than his troubling past. I’m referring, of course, to his pre-internet era newsletters, first known as The Ron Paul Political Report then later renamed The Ron Paul Survival Report, which often contained disturbingly racist ad hominems for which Paul still hasn’t offered a cogent explanation. In 2007, Daily Kos documented some of the carnage, including a 1992 piece in which the author wrote, in response to the Los Angeles riots, “our country is being destroyed by a group of actual and potential terrorists – and they can be identified by the color of their skin.” In January 2008, James Kirchick at The New Republic waded further into the dreck, writing:

Finding the pre-1999 newsletters was no easy task, but I was able to track many of them down at the libraries of the University of Kansas and the Wisconsin Historical Society. Of course, with few bylines, it is difficult to know whether any particular article was written by Paul himself. Some of the earlier newsletters are signed by him, though the vast majority of the editions I saw contain no bylines at all. Complicating matters, many of the unbylined newsletters were written in the first person, implying that Paul was the author.

But, whoever actually wrote them, the newsletters I saw all had one thing in common: They were published under a banner containing Paul’s name, and the articles (except for one special edition of a newsletter that contained the byline of another writer) seem designed to create the impression that they were written by him--and reflected his views. What they reveal are decades worth of obsession with conspiracies, sympathy for the right-wing militia movement, and deeply held bigotry against blacks, Jews, and gays. In short, they suggest that Ron Paul is not the plain-speaking antiwar activist his supporters believe they are backing--but rather a member in good standing of some of the oldest and ugliest traditions in American politics.

And as far as I can tell, Ron Paul has never really come clean on those bigoted rants. After the Kirchick piece in The New Republic, Paul told CNN that he “repudiate[s] everything that is written along those lines,” but his explanation for how they got there strains credibility:

Paul told CNN’s “The Situation Room” … that he didn’t write any of the offensive articles and has “no idea” who did.

Yeah, right. It may be true that Ron Paul didn’t write those words, although, as Kirchick pointed out, they went out under his name, without attribution to any other writer, and were often written in the first person so as to imply they were, in fact, his words. But even if he didn’t write them, I find it hard to believe that he has “no idea” who did; and, more to the point, he must have approved that racist garbage at the time the newsletters were published. If his views have changed in the meantime, I think he owes us an explanation as to why he thought those rants were acceptable back then, and what caused his change of heart. Without that, Paul’s statement that he “repudiates” the vicious racism put out under his own name just rings hollow.

So, I can understand why the media might be a little uneasy with Ron Paul. And, frankly, it’s nobody’s fault but Ron Paul’s.

On the Air Again With Tim Corrimal and Friends – Episode 178

2011-08-14T21:59:00.002-05:00

After a one week hiatus, Tim and I are back with Episode 178 of The Tim Corrimal Show. This week, Tim and I were joined by husband and wife team Raine (@Raine1967 on Twitter) and Bob (@BobberDC on Twitter) of The Four Freedoms Blog to discuss state of the world.

After naming our Twitter Friends of the Week (and do check out mine: @Picassokat), it was time for the Republican 2012 Clown Car Update, with Tim noting that former Minnesota Gov. Tim Pawlenty apparently dropped out of the race today; Michele Bachmann won the all-but-meaningless Ames Straw Poll beauty contest (closely followed by Ron Paul, the guy who still hasn’t explained those troubling newsletters he published in the 1980s and ’90s …); and the ascension and near-coronation of Texas’ other semi-literate Republican Governor, Rick Perry, who announced yesterday that he’s running for president. We also discussed Newt Gingrich’s assertion that he’s the King of Twitter (video via Countdown With Keith Olbermann), which, as Gawker explained last week, is pure Gingrichian fantasy.

We also spent some time discussing Standard & Poor’s downgrade of the nation’s credit rating, including the story of the St. Louis area woman who hired a plane to fly over Wall Street with a banner reading: “Thanks for the Downgrade. You Should All Be Fired.” Tim also played a clip of Robert Kuttner from The American Prospect discussing the downgrade with Keith Olbermann. That segment is well worth watching in its entirety.

Although we were running short on time, we briefly discussed last week’s recall elections in Wisconsin, in which Democrat Jessica King defeated incumbent Republican Randy Hopper in the state’s 18th Senatorial District, and Democrat Jennifer Shilling defeated incumbent Republican Dan Kapanke in the 32nd District. Because we were running late at that point, we did not have a chance to play this clip of Jessica King and State Sen. Chris Larson discussing the recall elections with David Shuster, but I recommend it. In particular, as Sen. Larson points out, Republicans now have only a 17-16 majority in the Wisconsin Senate, and Republican Dale Schultz (whom I mistakenly referred to as Dan Schultz – apologies to @pastordan!) is known for moderation. In fact, Sen. Schultz voted against the state’s controversial anti-collective bargaining bill last March, the lone Republican to do so. Which means the Democrats’ gaining two seats in the Wisconsin Senate is, in fact, a significant win.

More to the point, though, the Wisconsin experience shows that the key to progressives’ success is to focus on the state and local level, where real change is possible. This is a lesson that cannot be stressed enough these days. If liberals and progressives want to change Washington, we have to do it one congressional district at a time.

In any event, in my Legal Corner segment today I went over the two federal appellate court decisions I wrote about last week – Vance v. Rumsfeld and Ali v. Rumsfeld – in which the U.S. Court of Appeals for the Seventh Circuit found that former Defense Sec. Donald Rumsfeld could be sued for the torture and abuse of American citizens at a military base in Iraq; but the District of Columbia Circuit ruled that Sec. Rumsfeld and other military officials could not be sued for the torture and abuse of Afghan and Iraqi nationals at Bagram Air Force Base and Abu Ghraib prison. I should point out that August 4, 2011, the U.S. District Court in the District of Columbia also ruled that former Sec. Rumsfeld could be sued by a U.S. military contractor over allegations of torture that occurred in Iraq.

That case is captioned John Doe v. Donald Rumsfeld, et al., No. 08-CV-1902 (U.S. Dist. Ct., D. D.C.), and you can download a copy of Judge James Gwin’s August 4, 2011 ruling in .pdf format here. In the John Doe case, the District Court determined that the plaintiff could not sue Rumsfeld for violation of the Detainee Treatment Act of 2005, 42 U.S.C. § 2000dd(a), which provides that “[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.” Doe v. Rumsfeld, mem. op. at 9-10. Ultimately, however, the District Court found that the plaintiff could assert a claim against Rumsfeld under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violation of his Fifth Amendment substantive due process right “to be free from conduct and conditions of confinement that shock the conscience.” Doe v. Rumsfeld, mem. op. at 28.

Finally, we ended the show with a discussion of Pat Buchanan’s latest racist faux pas, the one where he referred to Pres. Obama as Rev. Al Sharpton’s “boy” on Sharpton’s MSNBC show. Tim played a clip of The Jimmy Dore Show in which the panel considered Buchanan’s almost-equally-unbelievable “defense” of that remark (“I was … using boxing terminology …”) and found it to be, um, lacking.

So, I’ll end here by reiterating the point I made at the close of today’s show: The Buchanan incident reminds me, and it should remind all liberals and progressives, that this is what Pres. Obama is up against. Day after day after day. This is what the President of the United States has to deal with; and if we on the left aren’t conscious of that fact, well … we should be.

Your Friday Clash Song: As the Daily Crown Disperses, No One Says That Much …

2011-08-12T10:54:00.002-05:00

So, I resisted the temptation to go with “London’s Burning” or “Guns of Brixton” this week, as much as those songs might seem to fit the bill, because I don’t want to exploit the recent violence in the UK and I feel woefully ignorant about the real causes of what’s going on there. For further reading on that subject, local blogger extraordinaire Emily Hauser recommends this post by Londoner Penny Red. I’d rather read and listen to people who live there and are directly affected by the upheaval than speculate about it from thousands of miles away, but I’m sure the situation is far more complex than American media let on.

Anyway, in lieu of more obvious choices, I elected to go with “Somebody Got Murdered” from Sandanista! (1980) in honor of Tariq Jahan, a Birmingham father who rose above the tragedy of his own son’s death last week to promote peace:

In a message to the local community, [Jahan] implored: “Today we stand here to plead with all the youth to remain calm, for our communities to stand united.

“This is not a race issue. The family has received messages of sympathy and support from all parts of society.”

Visibly emotional, Jahan added: “I lost my son. Blacks, Asians, whites – we all live in the same community. Why do we have to kill one another? Why are we doing this? Step forward if you want to lose your sons. Otherwise, calm down and go home – please.”

If that’s not one of the most compelling stories to come out of England these days, I don’t know what is.

So, about the song. Joe Strummer described the genesis of “Somebody Got Murdered” this way:

We got a phone call from Jack Nitzsche and he said “We need a heavy rock number for this movie with Al Pacino” so I said OK. I went home and there was this guy in a pool of blood out by the car parking kiosk. That night I wrote the lyric. I gave it to Mick and he wrote the tune. We recorded it and Jack Nitzsche never called back.

Maybe it’s just as well, because the song stands on its own as a testament to one of the band’s core principles: its longstanding opposition to violence, political and otherwise. More than anything, “Somebody Got Murdered” speaks to the utter futility of urban violence in a way that resonates this week, especially after the senseless death of Tariq Jahan’s son:

And you’re minding your own business

Carrying spare change

You wouldn’t cosh a barber

You’re hungry all the same

I’ve been very tempted

To grab it from the till

I’ve been very hungry

But not enough to kill

Somebody got murdered

His name it can’t be found

A small stain on the pavement

They’ll scrub it off the ground

As the daily crown disperses

No one says that much

Somebody got murdered

And it left me with a touch …

(A “cosh,” by the way, is a blackjack or bludgeon; the verb “to cosh” means “to hit on the head with a cosh.”)

It’s a haunting song, “Somebody Got Murdered,” but it’s further proof that the Clash were the moral voice of pop music at a time when no one else really cared to be. It’d be nice if people still listened to what they had to say.

So there you go. Your Friday Clash Song. Turn. It. Up.

Torture Week Continues …

2011-08-11T21:25:00.004-05:00

It was not my intention to blog all week about legal liability for claims of torture, but it’s been a hot topic in the news lately. Yesterday, veteran Chicago political reporter Carol Marin reported on a local case that’s taken on national interest:

For the first time, a federal judge has ruled former [Chicago] Mayor Richard M. Daley can be sued as a defendant for his alleged role in what plaintiffs claim is a citywide conspiracy to cover up police torture.

And Daley could be deposed by lawyers representing alleged victims, all African American, who charge their abuse came at the hands of a small band of predominantly white police officers under the command of former Chicago Police Cmdr. Jon Burge.

…

Burge was convicted last summer of perjury and obstruction of justice for lying in a civil court case when asked if he knew of the torture. He is serving a four-and-a-half year sentence in federal prison.

The alleged cover-up dates back to the mid 1970s.

…

Michael Tillman spent 23 years in prison for murder. He confessed, said [Tillman’s attorney, Flint] Taylor, because he was suffocated and beaten by Chicago Police officers. “They used a form of waterboarding, pouring 7-Up up his nose,” Taylor said. “That’s the kind of torture they used over a four-day period with Michael Tillman.”

When he was released in 2010, Cook County special prosecutors concluded there was no reliable evidence against him. Tillman received a certificate of innocence from the chief judge of the Criminal Courts of Cook County.

In his civil lawsuit, Tillman alleges the city conspired to cover up torture cases.

The case is captioned Michael Tillman v. Jon Burge, et al., No. 10 C 4551 (U.S. Dist. Ct., N.D. Ill.), and you can read Judge Pallmeyer’s July 20, 2011 Memorandum Opinion and Order in which she ruled that former Mayor Daley could be held liable for some of Tillman’s claims here; you can download a .pdf copy of that ruling here.

By way of background, Tillman sued Burge, Daley and several city, county and police department officials who allegedly were involved in committing and/or covering up widespread torture at the city’s Area 2 Police Headquarters where Burge served as a commanding officer in the 1980s, all of which began well before Tillman was arrested and tortured there. As against Mayor Daley:

Plaintiff alleges that as Mayor and State’s Attorney, Defendant Richard Daley had personal knowledge of the alleged abuses perpetrated by Burge and other Defendants at Area 2, but declined to investigate the abuses and failed to disclose these exculpatory allegations. Plaintiff asserts that, had Daley and Martin investigated the allegations of abuse at Area 2 prior to his arrest, he would not have been tortured and would not have been wrongfully convicted. Plaintiff further alleges that as a result of a conspiracy between Daley, [former Police Superintendent LeRoy] Martin, [former Police Superintendent Terry] Hillard, [former Superintendent’s Aide Thomas] Needham, [former Office of Professional Standards Director Gayle] Shines and others to suppress information about torture at Area 2, “Plaintiff’s wrongful prosecution was continued, his exoneration was delayed and his imprisonment lasted far longer than it otherwise would have.” According to Plaintiff, between 1989 and 1992, Daley and Martin were given “additional actual notice that Burge was the leader of a group of Chicago detectives that systematically tortured and abused African American suspects” through an Amnesty International report and public hearings. Plaintiff alleges that in 1996, despite his knowledge that findings of torture and abuse had been made against Defendant Dignan, Daley promoted Dignan to lieutenant. Plaintiff also alleges that Daley, against the advice of his senior advisers, “personally insisted” throughout his tenure that the City of Chicago “continue to finance the defense of Burge, Byrne, Dignan, and other Area 2 detectives, despite his personal knowledge that Burge committed acts of torture.”

Tillman v. Burge, Mem. op. at 9 (.pdf) (citations to Complaint omitted).

Tillman’s Complaint asserts claims for violation of his federal constitutional rights under Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983; various state law claims for malicious prosecution, intentional infliction of emotional distress and the like; and conspiracy claims under both state and federal law. (Id. at 2.) While Judge Pallmeyer found that Daley could not be held liable on the substantive torture and abuse counts because Daley was not directly involved in those acts (and Tillman acknowledged that Daley, when acting in his capacity as Cook County State’s Attorney, was entitled to immunity; see id. at 22-23 n. 13), she ruled that Daley, in his capacity as Mayor, could be held liable on the conspiracy counts. With regard to the federal conspiracy count under Section 1983, the court explained:

In this case, Plaintiff has explained the role that each of the individual Defendants played in greater detail. His allegations suggest that Plaintiff’s torture was more than just an isolated incident, and suggest, further, that the suppression of the truth about what occurred at Area 2 was the result of coordinated efforts that continued for some time. As discussed above, the Defendant Officers are alleged to have participated directly in the torture, as did Burge; [former Assistant State’s Attorney Timothy] Frenzer allegedly did so as well, by attempting to take a statement when he knew the torture was ongoing; Martin and Daley are said to have undermined and obstructed findings of torture; Shines allegedly suppressed findings of torture; and Plaintiff claims that Needham and Hillard continued to suppress findings and undermine investigations into torture at Area 2 after they took office. Plaintiff has listed a litany of actions at Area 2 furthering and concealing the abuse that took place there, and has also provided specific allegations regarding acts of torture performed on this Plaintiff and on others. These allegations are sufficient to allege a § 1983 conspiracy. More specific allegations against the individual Defendants–a showing that their decisions to join in the general purpose of the conspiracy were deliberate and coordinated, for example–would indeed be helpful. The nature of conspiracy itself often prohibits such detail at the pleading stage, however. The court concludes Plaintiff has presented more than “naked assertions,” and his conspiracy claim survives.

Id. at 36-37 (citations to Complaint omitted).

Of course, it is important to note that Tillman’s civil case against Burge, former Mayor Daley and the other city, county and police officials is far from over. At this juncture, all the court has done is to deny (in part) the various defendants’ (including Daley’s) motions to dismiss. That means that insofar as Daley is concerned, the court determined that the conspiracy counts of Tillman’s Complaint are legally sufficient, and so he may proceed with discovery (including Daley’s deposition) and, barring further dispositive motions down the road, to trial on those counts. As with the Vance v. Rumsfeld case I discussed on Monday, there is still a long way to go before Tillman obtains justice, and it’s anyone’s guess whether there will be appeals down the road that may derail that process altogether. Still, I am encouraged by the District Court’s ruling in Tillman’s case.

We may yet see elected officials and high ranking cabinet members held accountable for torture and abuse committed on their watch. Judge Pallmeyer’s ruling in the Tillman v. Burge case brings us a step closer to that day.

Ghost Town

2011-08-10T20:15:00.002-05:00

I’ve purposefully avoided writing about the riots in the UK because news coverage in America has been remarkably thin and I don’t want to comment about something that sensitive without knowing the facts. But all of this is eerily reminiscent of the strife that gripped that country in the early 1980s, and immediately upon hearing about the violence I thought of this: “Ghost Town,” the 1981 record by the English ska group The Specials.

Turns out, my musical instincts were correct.

From Dorian Lynskey in The Guardian on August 9, 2011, discussing “crisis music” that captures the mood of social upheaval:

Certain genres are aflame with crisis music: late-60s rock, mid-70s reggae, punk, early-90s hip-hop, the bleaker end of grime and dubstep. I can’t help notice that a common newspaper headline echoes the title of a Clash crisis song, London's Burning, but the one most mentioned over the last few days is Ghost Town by the Specials.

Like all cultural myths, the myth of Ghost Town can be annoying and overstated. The charts, as a rule, are not stuffed with records documenting social anxiety. My colleague Alexis Petridis is fond of pointing out that the single competing for the No 1 spot when riots exploded across Britain in the first week of July 1981 was Bad Manners’ version of the Can-Can, which would certainly make for a more antic soundtrack to archive footage of Brixton and Toxteth. …

But still, [“Ghost Town”] was the No 1 single and a remarkable one at that. Forget the lyrics for a moment: the mood is the message. As I wrote in my book: “It is the negative image of a song like Babylon’s Burning: hollowed out rather than crammed with incident, smouldering instead of blazing. Like all great records about social collapse, it seems to both fear and relish calamity.” …

Ghost Town is a prophecy that sounds like an aftermath. The ghost town it describes, gutted by recession, is the terrain before a riot (“people getting angry”) but you sense it will be as bad or worse after the anger has erupted. Hence the song’s circularity: it begins as it ends, with a spectral wail that could be either a cold wind or distant sirens. When the riots did break out, the Specials found the experience frightening rather than vindicating. …

In its nauseous fatalism Ghost Town expresses how I’ve felt watching the chaos on London streets over the past few days. The comments, in newspapers and online, which chime with me are the ones professing sadness, confusion and a willingness to wait for more information before jumping to conclusions, the latter being particularly welcome.

Understanding what’s going on in the UK far less than someone like Mr. Lynskey, I, of course, will jump to no conclusions, but I do want to echo something my friend Danielle Blake (@DCPlod) said on Twitter earlier today. Danielle lives there, so she knows what she’s talking about; and so I took notice when she said this:

I have so much respect for Tariq Jahan - the guy’s just lost his son, and he’s urging peace and calm. Cops better catch his son’s killers.

And then:

Also, Tariq Jahan’s response and the bravery of the three dead young Muslims is the strongest possible rebuttal to Islamophobia. #ukriots

What she’s referring to is this:

The pressure on [Prime Minister David] Cameron followed a day of rising tensions in Birmingham as community leaders and police appealed for calm following the death of Haroon Jahan, 21, and brothers Shazad Ali, 30 and Abdul Musavir, 31. The three were part of a group of around 80 guarding a petrol station and shops from looters in Winson Green when they were victims of a hit-and-run in the early hours of Wednesday. A murder inquiry has been launched, and a 32-year-old man is being questioned.

Amid fears the deaths could spark inter-communal reprisals, the distraught father of Jahan made an emotional appeal to the community, revealing he had desperately tried to resuscitate his youngest son.

Holding a photograph of Haroon, Tariq Jahan, said he was nearby and rushed to help. “I ran towards the commotion and the first guy I found was someone I didn’t know. I started giving him CPR until someone pointed out that the guy behind me was my son on the floor,” he said.

“So I started CPR on my own son, my face was covered in blood, my hands were covered in blood. Why, why?

“He was trying to help his community and he has been killed.” Describing his son, a mechanic and keen boxer, as “a very well-liked kid”, he said: “I can’t describe to anybody what it feels like to lose a son. He was the youngest of three, and anything I ever wanted done, I would always ask Haroon to sort it out for me.

“A day from now, maybe two days from now, the whole world will forget and nobody will care.”

In a message to the local community, he implored: “Today we stand here to plead with all the youth to remain calm, for our communities to stand united.

“This is not a race issue. The family has received messages of sympathy and support from all parts of society.”

Visibly emotional, Jahan added: “I lost my son. Blacks, Asians, whites – we all live in the same community. Why do we have to kill one another? Why are we doing this? Step forward if you want to lose your sons. Otherwise, calm down and go home – please.”

As I say, I don’t pretend to fully grasp the underlying cause of the unrest there, but I do understand basic human decency, and it’s clear to me that Tariq Jahan embodies that virtue. I hope his message, ultimately, is the one that prevails.

And Now the Bad News …

2011-08-09T20:49:00.003-05:00

Yesterday I reported on a federal appellate decision out of the Seventh Circuit in Chicago in which the Court of Appeals affirmed a ruling by the District Court denying motions by former Defense Secretary Donald Rumsfeld and the United States to dismiss a lawsuit brought against them by two U.S. citizens for alleged acts of torture they endured at the hands of U.S. forces while in custody in Iraq. Although that case is far from over (see today’s piece Adam Serwer at The American Prospect in which he briefly describes how that case and others like it can still go south), the ruling, if it stands, is an important step toward holding high ranking Bush Administration officials responsible for serious wrongdoing – including torture – committed in the so-called “war on terror.”

But the key thing to remember about that case, Donald Vance and Nathan Ertel v. Donald Rumsfeld and the United States of America, Nos. 10-1687, 10-2442 (7th Circuit August 8, 2011), is that the two plaintiffs who sued Rumsfeld and the U.S. government were American citizens. Consequently, the Seventh Circuit found that if the allegations of the plaintiffs’ complaint were true, then they were entitled to maintain a claim for damages against Rumsfeld for violations of their constitutional rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The fact that their rights were violated in Iraq, rather than in the United States, was immaterial:

[W]e agree with the district court that a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone. We see no persuasive justification in the Bivens case law or otherwise for defendants’ most sweeping argument, which would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone. United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.

Vance v. Rumsfeld, slip op. at 3 (.pdf).

At the same time, however, the Court of Appeals in Vance recognized that other circuits have held that non-U.S. citizens could not maintain lawsuits for damages based on allegations of torture that occurred outside U.S. territory. In particular, the Vance court cited a recent decision by the District of Columbia Circuit, Ali v. Rumsfeld, No. 07-5178 (D.C. Cir. June 21, 2011) (.pdf), in which the court upheld the dismissal of claims brought by Afghan and Iraqi civilians against Rumsfeld and various U.S. military officials for abuse and torture at Bagram Air Force Base and Abu Ghraib prison.

The allegations of torture and abuse in Ali v. Rumsfeld are similar to, but even worse than, the allegations in Vance (I set out the Court of Appeals’ summary of those allegations in Vance in yesterday’s post). Without reiterating those allegations verbatim here, the amended complaint filed in Ali alleged that four of the plaintiffs, who were Afghan citizens, were held for various lengths of time during 2003 and 2004 at Bagram, and the other five plaintiffs, who were Iraqi citizens, were held for various lengths of time during the same period at Abu Ghraib. Each of the plaintiffs alleged that he was subject to various forms of torture and abuse, including sleep deprivation, exposure to extreme temperatures, beatings, deprivation of medical care, death threats, mock executions, deprivation of food and water, and sexual assault. See Ali, slip op. at 3-5. With regard to the individual defendants, including Rumsfeld and various high ranking military officials, the plaintiffs alleged that they:

(1) formulated or implemented policies and practices that caused the torture and other cruel, inhuman or degrading treatment of Plaintiffs; and (2) had effective command and control of U.S. military personnel in Iraq and/or Afghanistan and knew and had reason to know of torture and abuse by their subordinates and failed to promptly and effectively prohibit, prevent and punish unlawful conduct.

Id. at 5.

Like the plaintiffs in Vance, the Ali plaintiffs brought Bivens claims against Rumsfeld and the others for violating their rights under the Due Process Clause of the Fifth Amendment and the Eight Amendment’s prohibition against cruel and unusual punishment. The Ali plaintiffs also asserted claims under the Alien Tort Statute, 28 U.S.C. § 1350, for violations international law, and directly under the Geneva Conventions; and sought a declaratory judgment against Rumsfeld finding that he violated international law, U.S. treaty obligations and the Constitution. Ali, slip op. at 5-6. The District Court dismissed all of the plaintiffs’ claims, and the plaintiffs appealed every issue except the dismissal of their claims under Geneva. Id. at 6-11.

The bulk of the Court of Appeals’ decision deals with the constitutional issues raised by the plaintiffs, and that discussion turns on two major questions: Whether the plaintiffs, who were not U.S. citizens, could assert claims based on the U.S. Constitution; and whether the defendants were entitled to qualified immunity in the event the plaintiffs could do so. With regard to the first issue, both the District Court and the Court of Appeals relied on a series of cases, including Johnson v. Eisentrager, 339 U.S. 763 (1950), and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), and Zadvydas v. Davis, 533 U.S. 678 (2001), all of which essentially hold that while non-U.S. citizens are protected by the U.S. Constitution while they are physically present within the territorial limits of the United States, they do not have rights under our Constitution in relation to actions taken by the U.S. government outside the territorial limits of the United States. See Ali, slip op. at 7-8 n. 5 for an explanation of those cases.

However, the Court of Appeals recognized that all of those cases were decided prior to the Supreme Court’s decisions in Rasul v. Bush, 542 U.S. 466 (2004), and Boumediene v. Bush, 553 U.S. 723 (2008), which held that foreign detainees at Guantánamo Bay, Cuba, were entitled to file habeas corpus petitions under the Suspension Clause of Article I, Section 9 of the Constitution. So, the question arose whether Rasul and Boumediene effectively overruled or modified earlier cases that held that foreign citizens could not avail themselves of rights under our Constitution for acts occurring outside the country. The Ali court concluded that the answer was most likely no, noting that “the Supreme Court in Boumediene ‘explicitly confined its constitutional holding “only” to the extraterritorial reach of the Suspension Clause’ and ‘disclaimed any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause.’ [Rasul v. Myers,] 563 F.3d [527,] at 529 [(D.C. Cir. 2009) (per curiam)] (quoting Boumediene, 553 U.S. at 795).” Slip op. at 14.

In other words, Ali interpreted the Supreme Court’s decision in Boumediene to be limited to allowing non-citizens at Guantánamo the right to assert habeas corpus rights; that ruling, according to the Ali court, did not apply to non-citizens located anywhere else in the world (and, in particular, to the plaintiffs in this case who had been incarcerated in a war zone), and it did not apply to any constitutional rights other than the right to bring a habeas petition.

In the end, however, the Ali decision turned not so much on a finding that the plaintiffs had no constitutional rights (although the court believed they had none), but instead on the defendants’ qualified immunity. As the court explained, “[q]ualified immunity shields a government official from civil liability if his conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,’” citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Ali, slip op. at 13. And so, based on the its reading of Boumediene, the court concluded:

As it was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens detained at Guantanamo Bay—where the Supreme Court has since held the Suspension Clause applies—it plainly was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens held in Iraq and Afghanistan—where no court has held any constitutional right applies. … [T]herefore, the defendants here are protected from the plaintiffs’ constitutional claims by qualified immunity.

Id. at 14-15 (footnote omitted).

Unfortunately, if I were a betting man I would lay odds that the Supreme Court would agree with the District of Columbia Circuit in Ali, and would, perhaps, go a step further and conclude that non-citizens in the plaintiffs’ circumstances – that is, detained, tortured and abused in a war zone outside the United States – are not entitled to any constitutional rights at all. So, as encouraging as the Vance case was with regard to the rights of U.S. citizens who were subjected to torture in Iraq, the Ali decision has a much broader, and, unfortunately, very negative, impact on our ability to hold the Bush administration accountable for its crimes.

The Courts Strike Again: Rumsfeld Can Be Sued for Torture of American Citizens

2011-08-08T21:40:00.002-05:00

Although I missed the opportunity to address this issue last week when the U.S. District Court in Washington, D.C. reached a similar conclusion, today the federal appellate court here in Chicago upheld a trial court’s decision allowing a civil lawsuit to proceed against former Defense Secretary Donald Rumsfeld for authorizing torture methods that ultimately were used against U.S. citizens detained in Iraq. The Army Times reports:

CHICAGO — A lawsuit accusing former Defense Secretary Donald Rumsfeld of personal responsibility for U.S. forces allegedly torturing two American whistleblowers who worked for an Iraqi contracting firm will be allowed to move forward, a federal appeals court ruled Monday.

The ruling from the 7th U.S. Circuit Court of Appeals in Chicago comes just days after a similar decision by a federal judge in Washington, D.C., that gave the green light to an Army veteran — who also alleges he was tortured in Iraq — to sue Rumsfeld for damages.

Monday’s ruling rejected arguments that Rumsfeld should be immune from such lawsuits for work performed as a Cabinet secretary.

The case is captioned Donald Vance and Nathan Ertel v. Donald Rumsfeld and the United States of America, Nos. 10-1687, 10-2442 (7th Circuit August 8, 2011), and you can download and read the court’s opinion in .pdf format here.

Briefly, the complaints in the underlying case allege that two U.S. citizens, Vance and Ertel, traveled to Iraq in 2005 to work as civilian employees of a private security firm called Shield Group Security in the so-called “Red Zone” outside Baghdad. Slip op. at 5. Vance became concerned that high ranking officials at Shield Group were engaged in various acts of corruption; and so he contacted the FBI in Chicago when he was home for his father’s funeral in 2006. (Id. at 5-6.) The FBI put Vance, and eventually Ertel, in contact with other government officials and requested that they gather further information about Shield Group’s activities and report back. (Id. at 6.) However, Shield Group eventually became suspicious of Vance and Ertel, revoked their credentials and essentially held the two hostage in Shield Group’s Red Zone compound. (Id. at 6-7.)

After a couple of days, U.S. military officials came to the compound and seized Vance and Ertel. But rather than rescuing them, the military transferred Vance and Ertel to Camp Cropper, a military prison near the Baghdad airport (slip op. at 7-8), where, Vance and Ertel allege, the following occurred:

Vance and Ertel allege that after they arrived at Camp Cropper they were strip-searched while still blindfolded, and issued jumpsuits. They were then held in solitary confinement, in small, cold, dirty cells and subjected to torturous techniques forbidden by the Army Field Manual and the Detainee Treatment Act. The lights were kept on at all times in their cells, so that the plaintiffs experienced “no darkness day after day” for the entire duration of their time at Camp Cropper. Their cells were kept intolerably cold, except when the generators failed. There were bugs and feces on the walls of the cells, in which they spent most of their time in complete isolation. Vance and Ertel were driven to exhaustion; each had a concrete slab for a bed, but guards would wake them if they were ever caught sleeping. Heavy metal and country music was pumped into their cells at “intolerably-loud volumes,” and they were deprived of mental stimulus. The plaintiffs each had only one shirt and a pair of overalls to wear during their confinement. They were often deprived of food and water and repeatedly deprived of necessary medical care.

Beyond the sleep deprivation and the harsh and isolating conditions of their detention, plaintiffs allege, they were physically threatened, abused, and assaulted by the anonymous U.S. officials working as guards. They allege, for example, that they experienced “hooding” and were “walled,” i.e., slammed into walls while being led blindfolded with towels placed over their heads to interrogation sessions. Plaintiffs also claim that they were continuously tormented by the guards, who would conduct shake-downs of their cells, sometimes on the false premise that they had discovered contraband, and who seemed intent on keeping them off balance mentally.

The constant theme of the aggressive interrogations was a haunting one — if Vance and Ertel did not “do the right thing,” they would never be allowed to leave Camp Cropper. Vance and Ertel were not only interrogated but continuously threatened by guards who said they would use “excessive force” against them if they did not immediately and correctly comply with instructions. The plaintiffs allege that this treatment lasted for the duration of their detention at Camp Cropper.

…

Vance and Ertel were never charged with any crime or other wrongdoing, nor were they designated as security threats. Instead, both were eventually released and dropped off at the airport in Baghdad to find their way home.

Slip op. at 9-11 (citations to the record omitted).

Note that all of the foregoing allegations come from the Second Amended Complaint filed by Vance and Ertel against Sec. Rumsfeld and the United States. Because Rumsfeld and the United States filed motions to dismiss those claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, both the District Court, which denied the motions, and the Seventh Circuit Court of Appeals, which affirmed that ruling, took those allegations as true for purposes of determining whether Vance and Ertel had pled legally recognized claims against the defendants. In other words, neither the District Court nor the Court of Appeals was vouching for the accuracy of those allegations; rather, both courts were asking the question whether, if those facts were proven at trial, would Vance and Ertel be entitled to recover damages from the defendants under existing law.

Moreover, it’s important to note that neither Vance nor Ertel knew the identities of their torturers. The guards did not wear name tags or other identification, and they referred to one another by code names. (Slip op. at 11-12 n. 4.) So, rather than suing those individual prison guards, Vance and Ertel sued Sec. Rumsfeld for his role in establishing the torture methods that they were subjected to.

In any event, Vance and Ertel sued Rumsfeld for violation of their constitutional rights under the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which found that individuals whose constitutional rights were violated by federal officials could being lawsuits directly under the constitutional provision allegedly violated. (In the absence of the Bivens decision, an individual whose constitutional rights were violated by the federal government would have no remedy, because Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983, applies only to state officials, not federal officials.) But that is difficult in a case like Vance’s and Ertel’s, because, as the Seventh Circuit explained, under Bivens, government officials cannot be held vicariously liable for the acts of their subordinates under ordinary legal principles of supervisory liability, or what the law refers to as respondeat superior. Rather, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Vance v. Rumsfeld, slip op. at 14, quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1948 (2009). In other words, Vance and Ertel had to show that Rumsfeld was directly involved in creating the policies that led to the violations of their civil rights.

The entire opinion runs some 92 pages, and so I won’t attempt to summarize it all here. But the gist of the Seventh Circuit’s ruling is this:

We affirm the district court’s decision on the Bivens claims in No. 10-1687, concluding in this sequence, from the narrowest issue to the broadest: (a) that plaintiffs adequately alleged Secretary Rumsfeld’s personal responsibility for their treatment, as required under Bivens; (b) that Secretary Rumsfeld is not entitled to qualified immunity on the defense theory that a reasonable government official could have believed in 2006 that the abuse plaintiffs have alleged was not unconstitutional; and (c) that a Bivens remedy should be available to civilian U.S. citizens in a war zone, at least for claims of torture or worse.

Slip op. at 13. Moreover, with regard to Rumsfeld’s personal liability for the treatment of Vance and Ertel, the Court of Appeals ruled:

We conclude that the plaintiffs have sufficiently alleged Secretary Rumsfeld’s personal responsibility. While it may be unusual that such a high-level official would be personally responsible for the treatment of detainees, here we are addressing an unusual situation where issues concerning harsh interrogation techniques and detention policies were decided, at least as the plaintiffs have pled, at the highest levels of the federal government. We conclude that plaintiffs have sufficiently alleged that Secretary Rumsfeld acted deliberately in authorizing interrogation techniques that amount to torture. (Whether he actually did so remains to be seen.) We differ with the district court in one respect, though. We think that the plaintiffs’ pleadings, if true, have sufficiently alleged not only Secretary Rumsfeld’s personal responsibility in creating the policies that led to the plaintiffs’ treatment but also deliberate indifference by Secretary Rumsfeld in failing to act to stop the torture of these detainees despite actual knowledge of reports of detainee abuse.

Id. at 16-17.

Two final points here. First, the court’s decision today means that Vance and Ertel will be able to proceed with their case through discovery and, barring further substantive motions, to trial. It does not mean that a jury will find in favor of Vance and Ertel; that could be months or years away, and there’s no guarantee of the outcome. Second, the defendants will probably attempt to appeal the Seventh Circuit’s decision to the United States Supreme Court, and, given the importance of the case, I would not be surprised if the Supreme Court took the case. So, there’s a long way to go until justice is truly served.

But today’s decision may prove to be an incredibly important step along the path to justice for the illegal acts of the former administration, and, in particular, for torture authorized at the highest levels. And so it’s worth remembering, once again, the critical role the courts play in our representative democracy.

Programming Note

2011-08-07T20:55:00.002-05:00

We did not record The Tim Corrimal Show this week, as Tim and Ron were off partying in New York City with a certain well-known (occasional) guest of the show who happened to have a birthday this weekend. I’m not insanely jealous. Really, I’m not.

We’ll be back next Sunday to dissect the week in crazy, er, politics. In the meantime, enjoy this musical interlude from the BoDeans:

“Blowing My Mind,” from their new CD, Indigo Dreams.

As you may know, we use one of my favorite BoDeans’ songs, “Closer to Free,” as the intro to my “Legal Corner” segment on Tim’s show. So we have to support the band.

Hopefully this’ll tide us over till next week.

Hiroshima Connections

2011-08-06T20:30:00.004-05:00

Sometimes I question the accuracy of my own memory. For example, I could all but swear that 35 years ago, during the summer of 1976, Elton John’s “Island Girl” was the one song you couldn’t get away from, the song that was on a more or less continuous loop on every pop radio station in America. But it turns out, that song was released in September 1975.

Still, I can remember riding bikes around my home town that summer – and I know it was the summer of 1976 because I got a three-speed bike for my 14th birthday that year – with my two closest friends, Mike and Jon, and I remember Jon loudly singing “Island Girl” in an intentionally nasally falsetto as we rode through neighborhoods on the other side of the el tracks, the part of town Ernest Hemingway once dissed (because surely he was not referring to our neighborhood, south of the el tracks, where ordinary working people lived in broken down clapboard houses on narrow lots …). But anyway, I think I spent nearly every day that summer hanging out with Mike and Jon, playing basketball down the alley from Mike’s house or riding our bikes around town or listening to Monty Python records at Jon’s house (Matching Tie and Handkerchief, the world’s only three-sided LP, was one of our favorites).

Anyway, here’s a funny thing about that friendship. Without our really being aware of it, the Venn diagram of our families’ experiences intersected at a point some forty years before, during World War II. My dad, the son of immigrants with a German-sounding name, was a World War II combat veteran, having served in Europe (mostly in the area around Cherbourg, France); Mike’s dad, an Italian American, also served in World War II, in the Pacific; and Jon’s parents … well, that’s an altogether different story, one I didn’t really know until several years later.

Jon was Japanese American, of which, of course, I was well aware. His father was the pastor at a local Methodist church where Mike and many of our other friends attended services. But what I didn’t know was this: Jon’s parents, both of whom were American citizens of Japanese descent, met in an internment camp in Colorado during the war. Yes, my friend Jon’s parents were among the 127,000 Americans who were locked up in camps during World War II just because they happened to be Japanese.

In any event, growing up in a – how shall I put this – really liberal home in the 1960s and ’70s, I took it as an article of faith that the U.S. bombing of Hiroshima and Nagasaki on August 6 and August 9, 1945, respectively, was morally wrong. It was a dark moment in an otherwise noble war; but it was wrong nonetheless. My friend Mike, on the other hand, saw it differently. Serving in the Pacific Theater in World War II, Mike’s father was told that he would be in the invasion force that landed on the main islands of Japan, where the U.S. expected to incur about a million casualties in an effort to force the imperial government to surrender. While it may seem like a cold blooded calculation, to Mike it was simple: A million Americans shouldn’t have had to die to end a war that began with the unprovoked attack on Pearl Harbor; so, if the alternative was to kill, say, hundreds of thousands of Japanese, Mike felt that calculus made sense, both morally and practically. And it was hard for me to argue with him, given that his own father had once found himself staring down the barrel of that particular gun.

Mike and I debated the bombings of Hiroshima and Nagasaki on more than one occasion when he and Jon and I used to hang out back in the mid-’70s, and it occurs to me now that Jon didn’t have much to say about it. It must have been odd that his two friends would have this discussion around him, in a sense, never really wondering what he thought about it. Here we were, two White kids whose fathers both served in the military while his parents – decent, honest, loyal American citizens – were held captive by their own government, for no reason other than their Japanese ancestry. It might have seemed odder still to Jon, knowing that his Japanese parents were interned while my father and his family, with their Teutonic-sounding last name with a small-“v” von, and Mike’s father and his Italian American family, were not.

But even more than that, I wonder how it must have seemed to Jon to listen to Mike and me debate the wisdom of killing nearly a quarter million Japanese in Hiroshima and Nagasaki, Japanese civilians at that, in order to save a hypothetical number of American GIs, especially at a time when Japanese Americans were treated with such indignity. If it was personal to Mike on account of his father’s service in the Pacific and the fact that he might have died on a Honshu beach but for Hiroshima and Nagasaki, I wonder how personal it was for Jon to hear the two of us speak in such clinical terms about dropping nuclear weapons on his ancestral home?

I wish I’d given that some thought back then, but I was fourteen years old. Fourteen year olds don’t think about that sort of thing, I suppose.

But I’ll tell you something else that nags at me, especially knowing what Jon’s parents went through during World War II. I understand where Mike was coming from and I get the argument that, if given the choice between the deaths of a million American service men and a quarter million Japanese civilians, who should bear the burden of ending the war Japan started … But the problem isn’t just the ghoulish balancing act that that analysis requires; it’s accepting the underlying premise: That Japan would never have surrendered without either (a) a massive invasion that would have cost the lives of a million soldiers; or (b) dropping nuclear bombs on Hiroshima and Nagasaki and killing a quarter million Japanese civilians. Because in order to accept that basic premise, you have to take the word of the U.S. government, which insisted that those were the only options. The U.S. government insisted that the Japanese would not surrender absent those kinds of horrific losses.

But this is the same U.S. government that was so prejudiced against Americans of Japanese descent that it locked them up in internment camps, even though Americans of German and Italian descent (including, I should point out, my dad with his very German last name and Mike’s dad with his very Italian last name) were not. So how can we conclude that the government’s analysis of whether and under what circumstances Japan would surrender wasn’t motivated, or at the very least, influenced, by that same sort of virulent anti-Japanese bigotry? And doesn’t that undermine the credibility of the argument itself?

It’s a scary thought: That when it came to making what might have been the most difficult decision of the war, our leaders’ judgment was clouded by racial prejudice.

You Know Who Else Liked to Barbecue?

2011-08-05T20:17:00.003-05:00

No, not that guy; this guy:

A court in Germany [was] expected to grapple on Friday [August 27, 2010] with what may amount to one of the biggest dinner bills of all time. When Chancellor Angela Merkel invited then-United States President George W. Bush to spend some time with her in northern Germany on his way to a G-8 meeting in Russia back in 2006, the itinerary included some sight-seeing along the Baltic Coast and a cozy barbeque.

Merkel had wanted to show Bush her own constituency of Merklenburg-Western Pomerania, with a visit to the picturesque coastal city of Stralsund and a meal of barbequed wild boar, a local delicacy, in the village of Trinwillershagen. Security for the US president’s three-day pleasure trip was provided by over 12,000 police officers.

Take a look:

Applying FoxLogic™ to Pres. Bush’s 2006 cook out in Trinwillershagen with a bunch of, well … not just White people, but, um … Germans … one might have called it (I’m just riffing here) an “Aryan Wienie Roast.”

Or, perhaps, a Beer Hall Putsch.

Because … you know … the White people. In Germany. With Pres. Bush. At a barbecue.

See how that works?

Your Friday Clash Song: Hip Hop Barbecue Reprise Edition

2011-08-05T12:44:00.004-05:00

So, Oliver Willis caught this deliciously not-racist screen capture from the totally not-racist Fox Nation website, brought to you by not-racist Fox News. And don’t you dare call them racist, because if you do, you’re the racist. You race-card-playing racist, you.

As Mr. Willis tweeted, “Fox News gives up on racist dogwhistle, trades it in for a racist vuvuzela.”

FTW, as the kids say.

Anyway, that leads me to reprise the very first Your Friday Clash Song selection, which happens to be one of the band’s earliest forays into hip hop: “This Is Radio Clash,” here performed live on The Tomorrow Show with Tom Snyder in 1981:

And here’s the original version:

I mentioned last week that toward the end of the Clash’s mercurial existence, Joe Strummer and Mick Jones increasingly saw rap and hip hop as the next logical step in the evolution of political music. As Joe once said, “underground hip-hop … picked up where punk left off and ran full steam ahead.”

It’s too bad Joe’s not around any more. Imagine the heads at Fox News exploding if Pres. Obama had invited him to the White House for a barbecue.

But anyway, here’s the thing. This sort of thing, Fox News’ racial dogwhistles and the litany of other possibly unintentional (but quite possibly intentional), clumsy, racially-charged malapropisms that come from the GOP’s Tea Party fringe, doesn’t seem to be going away any time soon. So, it’s hard to avoid the conclusion that a large percentage of White Americans just can’t get used to the idea of an African American in the White House. Whether they are overtly racist, I cannot say; but if they’re not, why are they so uncomfortable with Pres. Obama interacting with other African Americans, especially African Americans whom they link to African American culture. Note the pictures at the top of that Fox Nation story: Former NBA standout Charles Barkley, the Round Mound Of Rebound; Chris Rock, a comedian; and Jay-Z, a rap star. Never mind the fact that other attendees included Tom Hanks, Nancy Pelosi, Hillary Clinton, David Plouffe, David Axelrod, Rahm Emanuel … it was the apparent otherness of Black celebrity icons that caught Fox News’ attention. And that influenced the sarcastic headline, Obama’s Hip Hop BBQ Didn’t Create Jobs.

To whom does that headline speak?

So, if you want to know why I tend to defend the President as vociferously and as often as I do, here it is in a nutshell: This is going on. This constant, racially-charged drumbeat is going on, and it’s going on precisely because Barack Obama crossed the invisible color line that most people thought would not be crossed in our lifetime. And as long as this is going on, this constant race-baiting, this constant effort to undermine the President’s legitimacy because of his race and this constant appeal to the worst in human nature, as long as all that is going on, I want nothing more than to see Barack Obama be successful, to be reelected, and to do so with broad support across the country.

I’ve never said liberals shouldn’t criticize the President, and I’m not saying that now. I am saying that defeating racists and dog-whistle-blowers is a huge priority to me. Other liberals are free to prioritize issues their own way; I only ask that you respect that this is important to me.

Well, I only ask that, and one other thing. Turn. It. Up.

Music For Your Double Dip Recession

2011-08-04T20:52:00.001-05:00

Bruce Springsteen - Atlantic City by jpdc11

So, the big story today was the precipitous drop in the Dow Jones Industrial Average (a 512 point drop, or about a 4.3% decline in value), and everyone had an opinion about what caused it and who was to blame. A word of caution, though. I wouldn’t be too quick to assume any one thing (meaning, of course, the debt ceiling deal signed into law earlier this week) was the sole cause of today’s plunge. The world is far more complex than that, and, as Bloomberg explains this evening, markets all over the world have been on the decline lately; so it’s highly unlikely that today’s market plummet can be blamed on a single political decision by the U.S. Congress.

Regardless, I think I had a very different reaction to today’s news than most people. Because I wasn’t swooning at the news; I was thinking about millions of Americans who are simply not effected, directly at any rate, by fluctuations in the market because they have no meaningful investments to speak of. Now, I don’t want to see anybody’s retirement account wiped out, of course; but what about the millions of people whose only assets are the clothes on their back, a few dollars in the bank, and the handful of meager possessions in the apartment they can barely afford? What about the people who lack not only retirement accounts, but jobs? Or the people who are working, taking whatever job they can find in this godawful economy, but are woefully underemployed and barely holding on?

Because those people have more immediate concerns than the value of your 401(k).

That’s why, hearing the news about the market’s drop today, I thought of that guy in Bruce Springsteen’s “Atlantic City,” a song that resonates more and more as the so-called “recovery” limps along:

Now I’ve been lookin’ for a job but it’s hard to find

Down here it’s just winners and losers and don’t get caught on the wrong side of that line

Well, I’m tired of comin’ out on the losin’ end

So honey last night I met this guy and I’m gonna do a favor for him

Well, I guess everything dies baby that’s a fact

But maybe everything that dies someday comes back …

Honestly, that’s the guy I’m worrying about in this economy.

As an aside, “Atlantic City” has one of the best lyrics in the history of rock music – I got debts that no honest man can pay – because it says so much in so few words. It’s another line that really hit home today; and it was such a good lyric, Springsteen used it twice on Nebraska (1982):

“Johnny 99,” another unbelievably prescient song from that LP:

Now judge judge I had debts no honest man could pay

The bank was holdin’ my mortgage and they was takin’ my house away

Now I ain’t sayin’ that makes me an innocent man

But it was more ’n all this that put that gun in my hand …

That’s a great song all by itself, but if you’ve never heard the Johnny Cash version, do yourself a favor. Get your hands on it, now:

If it doesn’t give you chills, you’re not really paying attention to what’s going on.

Another Conversation With Bukko

2011-08-03T20:08:00.001-05:00

I meant to post this video the other day after I mentioned my friend Bukko Canukko, who subsequently pointed out he’s not much of a fan of Midnight Oil, the Australian band who’s song, “Beds Are Burning,” led off that post. It’s the Hoodoo Gurus with a live version of “What’s My Scene,” originally from their Blow Your Cool! LP released in 1987 (the year I graduated law school, for what it’s worth). Bukko also pointed out the other day (and I should have remembered this) that he’s not an expatriate Australian living in Canada, he’s an expatriate American who lived in Australia for awhile before relocating to Canada. So, I stand corrected both musically and factually.

In any event, Bukko was kind enough to stop by again and leave some very thoughtful comments (thoughtful in the sense of being well thought out) on yesterday’s post about my Twitter exchange with Keith Olbermann and what I see as a new opportunity for liberal advocacy here in the States – namely, pushing for the repeal of the debt ceiling. Bukko’s comments on that post (here and here) elucidate what I think is a not altogether uncommon feeling on the left, a sense of disaffection not necessarily with Pres. Obama himself but with the whole of our political system and political culture; and, if I may speak for Bukko, I think he views Pres. Obama’s “failures” as nothing more or less than a manifestation of that dysfunctional political system and culture. By the way, I put the word “failures” in quotation marks not to imply that Pres. Obama has succeeded at every turn (of course he hasn’t) but because I don’t always agree with the way his liberal critics characterize the disappointments we’ve all felt since Pres. Obama’s inauguration. Sometimes, those disappointments can be chalked up to Pres. Obama – that is, sometimes they really are his failures – but often times (most of the time, in my view), those disappointments are the result of the normal political struggles that go on in Washington. Presidents don’t win every battle, and not every loss is their fault; sometimes, the other side just has the votes.

But I digress. The upshot of Bukko’s recent comments, I think, is this:

Ah, Dave, I admire your earnest good citizenship. But – there’s always a but – my attitude is “Why bother?” Since you used some French in your post, let me give you my French saying for this case: “Save qui peut!” It’s the French “run away” call, which translates into “Save yourself if you can!”

…

I’ve been activating and demonstrating all my life (including in Australia.) Didn’t do a lick of good at stopping fascism. I don’t think the U.S. deserves saving. It’s too full of sociopaths and cretins. Yourself and a good 1/3 of the population excluded, of course. The bastards who cheer the fascists on, and the inert masses who do nothing to prevent their own downfall will get what’s coming to them, get it good and hard.  

Peak Oil, peak finance, peak complexity (when a system gets too complex, it starts breaking down) means we’ve hit peak human population. It’s only a matter of how hard it falls during the inevitable collapse. Activism can't stop the forces of nature.

Now that may sound a little harsh (it sounds a harsh to me!), but you have to understand that this is coming from someone who’s not some paranoid survivalist or some rightwing (or leftwing) troll. As he points out, Bukko’s a guy who’s put an awful lot of faith in our electoral system, never missing an opportunity to exercise the franchise even if it seems pointless at times. So if I may play armchair psychologist for a moment, I think the sentiment expressed above is symptomatic of a kind of fatigue so many people on the left are feeling these days: It’s not about being crazy or paranoid, it’s about feeling like you’ve fought and fought and fought and fought … and still havne’t made any headway. And that can make anyone feel like giving up.

I don’t agree with it, but as I sit here staring down 50, I have to say … I understand it.

Anyway, I don’t know if this makes much sense, but here is how I responded to Bukko’s comments, and I’ll reproduce essentially my entire comment here so you don’t have to click back and forth (plus, it’s my blog and I can do that!):

Bukko, my friend, as you know I don’t share your cynicism … but I do respect it, listen to it, ponder it. I certainly don’t reject it out of hand. I still believe there are reasons to fight the good fight, but then again I used to think there were reasons to remain Catholic too. And truth be told, in my heart I left the church and religion generally long before I was able to own up to it. Maybe it’s the same with politics and activism.   

Here’s the thing though. I’m not devoid of cynicism; in fact I guess it’s my cynicism that leads me to believe that Pres. Obama is the best we can get in our current political climate. So I take what I can get and I’m happy that – for the moment, anyway – we’re not dealing with someone considerably worse (read: conservative Republican) in the White House. What if all we get out of the country’s first African American president is an incrementally better life for African Americans, an incrementally less racist nation, incrementally more and better opportunities for people of color, and for women, and for other groups that have traditionally been left out of America’s largesse … what if that’s all we get out of Pres. Obama’s election? Well, then, at least we got that.   

That isn’t hopey-changey; that’s looking at the world, and America, with eyes wide open. 

Anyway, Bukko, thanks for the conversation. I appreciate the challenge and I look forward to the next one.

Keith And Me …

2011-08-02T20:40:00.002-05:00

So I had this mini conversation with Keith Olbermann on Twitter today, which started out with a simple question I posed in response to his impassioned critique of yesterday’s debt ceiling deal. The conversation began thusly:

I respect @KeithOlbermann’s righteous indignation over the debt deal. I just wish he, or anyone, could identify what the alternatives were.

To which Mr. Olbermann responded:

@Dave_von_Ebers The alternatives are for POTUS not to congratulate himself, and for there to be pressure on him and the system from the left

And then added:

@Dave_von_Ebers and practically, since the credit rating may be lowered anyway, the 14th Amendment was just as viable as capitulation

As to the latter point, while I don’t know if Mr. Olbermann’s correct about the impact on the country’s credit rating, I’ve already expressed my trepidation over the so-called “Fourteenth Amendment solution” here and here.

But as to the former argument, Mr. Olbermann has a point, doesn’t he? That is to say, those of us who aren’t in Congress or the White House have to use the tools that are available to us to try to effect change. On election day, you can vote; and leading up to an election, you can pound the pavement canvassing for your favorite candidates. Between elections, however, the only tool we really have is, as Mr. Olbermann says, pressure. Meaning, I guess, writing, calling and e-mailing your elected representatives (I e-mailed my Congressman, Rep. Danny Davis, earlier today); writing letters to the editor; blogging and Tweeting to your heart’s content. … And, if you’re lucky enough to have a television or radio program, you can take to the airwaves to rail about anything and everything that gets your goat.

Nonetheless, the question remains: if you’re going to use the tool that’s currently available – political pressure – what are you going to apply it to? I suppose there’s some utility in grousing about the debt ceiling deal itself, even though it’s, as those French socialists say, a fiat accompli. After all, if your elected officials do something you don’t like, why wouldn’t you give them an earful? Theoretically, the more complaints they hear about their past mistakes the more likely they are to think twice about repeating them.

Or, maybe it just makes you feel better even though you know it’ll have little impact on the jokers anyway.

But when the outrage over the debt deal wears off, or when you decide you really want to do something to improve the country’s future, you may want to consider applying that political pressure to … getting rid of the debt ceiling once and for all. I made the case the other day that the debt ceiling is both horrible policy and most likely unconstitutional under Section 4 of the Fourteenth Amendment, but I’m not the only one who thinks the debt ceiling has to go. In fact, former Republican economic advisor Bruce Bartlett made a similar argument in the New York Times just yesterday:

Almost 10 years ago, I testified before the Senate Finance Committee that the debt limit should be abolished. Among the others who testified that day, including Treasury Secretary Paul O’Neill, no one supported my position.

What we have seen, currently and in the years since that hearing, is that for any politician to deny the validity of the debt limit is effectively to support unlimited debt, something no member of either party can afford to be accused of.

The negotiations leading up to Sunday night’s announcement that President Obama and Congressional leaders of both parties had reached a deal to cut trillions of dollars in federal spending over the next decade makes the case against the debt limit that much stronger. We now know that it is a powerful mechanism for political extortion.

Unless the party holding the White House has a comfortable majority in the House of Representatives and at least 60 seats in the Senate, raising the debt limit is going to remain a means by which the minority party can impose its demands on the majority.

That is, in fact, exactly what happened here (and, in my view, would have happened no matter what strategy Pres. Obama pursued); and it’s exactly what the drafters of the Fourteenth Amendment, and in particular, Section 4 of the Fourteenth Amendment, sought to avoid.

And while Mr. Bartlett is right when he says that, generally speaking, politicians have been reluctant to take a stand against the debt ceiling (meaning, in Mr. Bartlett’s words, they’d be “support[ing] unlimited debt”), if ever there was an opportunity to turn the tide on the issue, it might be right now, because the country is pretty disgusted with the way this whole scenario played out. According to CNN:

A majority of Americans disapprove of the deal struck Sunday by President Barack Obama and congressional leaders that will raise the country’s legal borrowing limit, and three out of four believe elected officials have acted like “spoiled children.”

According to a CNN/ORC International poll conducted Monday during a House of Representatives vote on the legislation, 52 percent of Americans say they are opposed to the debt ceiling deal while 44 percent are in favor of it. The Senate passed the legislation Tuesday in a 74-26 vote.

Full results (pdf)

…

Seventy-seven percent of respondents said elected officials who have dealt with the debt ceiling have acted like spoiled children. Just 17 percent believe the politicians have acted like responsible adults.

That’s pretty astonishing, when you think about it; and if anything it plays right into the arguments I have made, Mr. Bartlett made yesterday, and, in fact, the drafters of Section 4 of the Fourteenth Amendment made 145 years ago. We should not allow the spoiled children in Congress to use the nation’s public debt for extortion – but they will as long as they have the debt ceiling to rely on.

So now that we’ve got the public’s attention, let’s bring that pressure to bear on repealing the debt ceiling, shall we, Mr. Olbermann?

Nixon’s Grand Jury Testimony and the Adversarial System

2011-08-01T21:14:00.003-05:00

While everyone was distracted with other news last week, this happened:

(Reuters) - More than 36 years later, the secret grand jury testimony of President Richard Nixon in the Watergate scandal was ordered released on Friday [July 29] by a federal judge because of its significance in American history.

U.S. District Judge Royce Lamberth granted a request by historian Stanley Kutler, who has written several books about Nixon and Watergate, and others to unseal the testimony given on June 23 and 24 in 1975.

…

Lamberth ruled in the 15-page opinion that the special circumstances, especially the undisputed historical interest in Nixon’s testimony, far outweighed the need to keep the records secret. Grand jury proceedings typically remain secret.

You can download the opinion in In re Petition of Stanley Kutler, et al., No. 10-547 (U.S. Dist. Ct. D. D.C. July 29, 2011) in .pdf format here. The decision is straightforward enough, but it turns on an issue I personally hadn’t considered before, which is the extent to which the general rule of secrecy that envelops grand jury proceedings is riddled with exceptions.

As the District Court points out in the Petition of Kutler decision, the long-standing rule of grand jury privacy – which, the court notes, “is ‘older than our Nation itself,’” Petition of Kutler, Mem. op. at 3, citing In re Biaggi, 478 F.2d 489, 491 (2d Cir. 1973) (quoting Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959)) – is codified in Rule 6(e) Federal Rules of Criminal Procedure. Specifically, Rule 6(e)(2)(B) essentially provides that no one involved in the grand jury process, including the grand jurors themselves, the government’s attorneys, court reporters, interpreters, and so forth, can disclose any “matter occurring before the grand jury.” Rule 6(e)(3), however, provides a limited list of exceptions to the general rule of grand jury secrecy, and I would have thought, prior to reading the Petition of Kutler decision, that that list of exceptions is exclusive.

But that’s not so, according to the District Court. Rather:

[C]ourts have recognized that—in the absence of an exception under Rule 6(e)(3)—there may be “special circumstances in which release of grand jury records is appropriate even outside the boundaries of the rule.” Id. (quoting Biaggi, 478 F.2d at 494 (supplemental opinion) (internal quotations omitted) (holding that Rule 6(e) did not bar the public disclosure of grand jury minutes, even where no Rule 6(e) exception applied, when sought by the grand jury witness himself)). In [In re Petition of] Craig, [131 F.3d 99, 102 (2d Cir. 1997),] the Second Circuit embraced the “special circumstances” exception first recognized by Chief Judge Friendly in Biaggi, holding that “permitting departures from Rule 6(e) is fully consonant with the role of the supervising court and will not unravel the foundations of secrecy upon which the grand jury is premised.” Id. at 103. The Craig court explained that the special circumstances exception “is consistent with the origins of Rule 6(e), which reflects rather than creates the relationship between federal courts and grand juries.” Id. (citing Pittsburgh Plate Glass Co., 360 U.S. at 399 (explaining that “Rule 6(e) is but declaratory” of the principle that the disclosure of grand jury materials is “committed to the discretion of the trial judge”)). Judge Calabresi, writing for the court, noted that the Second Circuit was not alone in this view. See id. at 103 & nn.3–4 (citing In re Hastings, 735 F.2d 1261, 1268–69 (11th Cir. 1984) (describing courts’ “inherent power” to authorize the disclosure of grand jury records outside of Rule 6(e))).

Petition of Kutler, Mem. op. at 4. In fact, the District Court explained that as judge-made exceptions to grand jury secrecy were developed over time, Rule 6(e)(3) was amended to include those new exceptions – a strong indication that the list of exceptions set out in the rule is not meant to be exclusive but merely reflective of evolving trends. Petition of Kutler, Mem. op. at 5-6.

Ultimately, the District Court concluded that it could order the release of Nixon’s grand jury testimony because of its historical significance, even though there is no exception in Rule 6(e)(3) for the release of testimony on that basis:

[T]he reason disclosure is sought is particularly significant here. There is no question that the requested records are of great historical importance, and indeed, the government does not contest that fact. Petitioners focus on both the general historical importance of the Watergate criminal investigations and the specific historical importance of President Nixon’s testimony. To be sure, Watergate’s significance in American history cannot be overstated. Nearly forty years later, Watergate continues to capture both scholarly and public interest. The disclosure of President Nixon’s grand jury testimony would likely enhance the existing historical record, foster further scholarly discussion, and improve the public’s understanding of a significant historical event. See, e.g., In re Tabac, No. 3:08-mc-0243, 2009 WL 5213717, at *2 (M.D. Tenn. Apr. 14, 2009) (finding that the Craig factors, specifically historical importance, weighed in favor of unsealing grand jury testimony relating to James Hoffa); In re Petition of Nat’l Sec. Archive, No. 08-civ-6599, Summary Order at 1–2 (S.D.N.Y. Aug. 26, 2008) (finding that “substantial historical importance” justified the disclosure of grand jury records relating to Julius and Ethel Rosenberg, Abraham Brothman, and Miriam Moskowitz); Am. Historical Ass’n, 49 F. Supp. 2d at 297 (finding that historical interest and other relevant Craig factors outweighed the need to maintain the secrecy of grand jury transcripts relating to Alger Hiss); In re Petition of Gary May, No. M 11-189, Memorandum & Order at 3–4 (S.D.N.Y. Jan. 20, 1987) (finding that “undisputed historical significance” justified the disclosure of grand jury minutes relating to William Remington, a prominent public official accused of being a Communist during the McCarthy era).

Petition of Kutler, Mem. op. at 10-11.

It’s an interesting decision, and I think the District Court got it right. As an aside, however, I have to wonder whether, in the absence of last weeks debt ceiling hysteria, one particular aspect of the case would have gone unnoticed by Pres. Obama’s liberal critics. From Reuters’ report on the case last Friday:

The Obama administration’s Justice Department had opposed releasing Nixon’s testimony, citing the privacy interests of individuals named in the testimony, among other reasons.

But Lamberth said those privacy interests were minimal.

Far be it from me to look for reasons to spar with my fellow liberals, but given the left’s hypersensitivity to every decision the Obama Administration makes, I would not have been surprised to hear liberals cry foul over the Administration’s attempt to protect the secrecy of Nixon’s grand jury testimony, had those critics not otherwise been distracted last week.

For my part, I’m glad the testimony is going to be released … but I have absolutely no problem with the Administration going to court to fight for the general principle of grand jury secrecy. Because that’s how legal disputes are supposed to be resolved – with two (or more) sides advocating differing viewpoints, seeking to vindicate different interests, with the ultimate decision resting in the hands of an impartial decision-maker. As much as I might empathize with the petitioners who sought the release of Nixon’s grand jury testimony – and I do – it would be absurd to suggest that the was no other interest to consider in the matter.

To the contrary, the interest the Administration sought to vindicate is, in fact, worthy of vindication. As the District Court explained in Petition of Kutler:

The rule of [grand jury] secrecy is justified by a number of objectives, including:

(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

United States v. Proctor & Gamble Co., 356 U.S. 677, 681–82 n.6 (1958) (quoting United States v. Rose, 215 F.2d 617, 628–29 (3d Cir. 1954)).

Mem. op. at 3-4.

So even though the release of grand jury testimony was probably the right result in this particular case, the general reasons for protecting grand jury secrecy are extremely important. Which means some one has to assert those reasons in court – in this case, the Obama Administration – otherwise, the courts might simply ignore them.

Sometimes it seems my friends on the left think the only thing that matters in litigation is the outcome, and not the vindication of crucially important legal principles. But that’s not how our adversary legal system works, and it’s not how it should work.

On the Air Again With Tim Corrimal and Friends – Episode 177

2011-07-31T21:37:00.005-05:00

Episode 177 of The Tim Corrimal Show has now been posted, and this week Tim and I were joined by returning favorite Vent of The Cultured State (@vcthree on Twitter) and new favorite Jill E. Bond (@JillEBond on Twitter) for another great show. If I do say so myself.

On this week’s episode, after our Twitter Friends of the Week (and do check out mine, @HowieChicago), we moved on to our weekly Republican 2012 Clown Car Update, featuring a runner-up for Blandest Potential GOP Nominee, former New York Gov. George Pataki (although, in fairness, Pataki might be No. 3 on the GOP Blandness Scale behind Tim Pawlenty and Thaddeus McCotter); Michele Bachmann’s Government-Sponsored Mortgage Hypocrisy (video); and Newt Gingrich (who?) with his not-so-Made-In-The-U.S.A. campaign t-shirts (ditto) … the real question being, who knew Newt Gingrich was back from vacation?

In any event, we then turned (inevitably) to the debt ceiling crisis, with Tim playing a clip of yesterday’s comments by the President on the need to compromise for the good of the nation … which comments, for better or worse, are now moot given that the President announced tonight that a deal was reached to avert default:

Washington (CNN) -- Two days before the deadline for a possible U.S. government default, President Barack Obama and congressional leaders reached agreement Sunday on a legislative package that would extend the federal debt ceiling while cutting spending and guaranteeing further deficit-reduction steps.

The proposed $3 trillion deal, which still requires congressional approval, brought some immediate relief to global markets closely watching the situation play out and a nation filled with anger and frustration over partisan political wrangling that threatened further economic harm to an already struggling recovery.

However, there was no guarantee the plan will win enough support to pass both chambers of Congress.

Sigh.

Well, anyway, let me reiterate some questions I raised on the show today. I suspect that whatever the final details are, no one on the left (myself included) will be happy with the deal. We all know that the budget deficit should never have been tied to hiking the debt ceiling in the first place. Raising the debt ceiling is nothing more or less than a mechanism to allow the government to pay debts it’s already obligated to pay, and so it has exactly nothing to do with the deficit itself. I won’t repeat the statistics we all know by now, but Congress has raised the debt ceiling countless times to avoid default since the debt ceiling’s inception in 1917, in almost every instance without controversy. It should have happened that way again.

But the budget deficit was tied to raising the debt ceiling this time, and before we get to assessing blame for what is likely to be a lousy deal, we should take a hard look at how we got here. The conventional wisdom on the left seems to be that it’s the President’s fault for agreeing to negotiate both budget cuts and raising the debt ceiling in the same deal, but I’d like to know what other path he could have chosen. This is not about exculpating the President; it’s about trying to find out what went wrong and whether it could have gone differently. So here’s the question. If from the outset the President had “insisted” on a clean bill raising the debt ceiling, as the President’s liberal critics say he should have done, what would have happened when the GOP just said: “No”?

Raising the debt ceiling required legislative action, and the GOP controls the House and has enough votes to filibuster in the Senate. So no matter what the President “insisted” on, the GOP was free to introduce any legislation it wanted to in the House, including the bill Speaker Boehner ultimately offered last week. As despicable as that bill was, why does anyone think the GOP would have offered a better bill just because the President demanded a “clean” debt ceiling bill from the outset?

And we all know what happened to Sen. Reid’s less odious bill once it reached the GOP-controlled House: It died an untimely death. So, even if the Democratic controlled Senate offered (and the GOP failed to filibuster) a “clean” debt ceiling bill, why would any one think that that would have passed the House?

Therein lies the problem. Republicans, especially in the House, were never going to agree to a clean debt ceiling bill. So, the only arrow left in the President’s quiver, legislation-wise, was to threaten to veto any bill other than an increase of the debt ceiling with no strings attached. But that wouldn’t have solved the problem. It would have sent the parties back to the drawing board to try again. And since it appears, as the Washington Post’s Ezra Klein suggested earlier today, that “[p]lenty of Republicans [we]re prepared to blow through the [debt ceiling] deadline” and to live with the consequences … the simple fact is, they wouldn’t have come back with a clean bill anyway.

So it’s hard to see how we would have ended up in any different position than we’re in now, no matter what the President “insisted” on.

That, at least, is how it appears to me. If I’m wrong, please – please – show me where I’m wrong. Tell me how the President could have forced a majority of the House of Representatives to accept a bill that did nothing more than raise the debt ceiling. I’m tired of platitudes; tell me how it could have happened. Because so far, no one has been able to articulate, specifically, what the President should have done.

Of course, all of the foregoing turns on one key assumption: That the debt ceiling crisis had to be resolved through legislation. There is, of course, the famous (or infamous) “Fourteenth Amendment Solution” that I wrote about last week, and that brings me to this week’s “Legal Corner” segment. To review, the concept is this: Section 4 of the Fourteenth Amendment provides, in relevant part, “The validity of the public debt of the United States … shall not be questioned”; and the legislative history suggests that the rationale for that provision was, in the words of Ohio Sen. Benjamin Wade, that “the national debt [should be] withdrawn from the power of a Congress to repudiate it.”

So, the theory goes, in order to comply with the Fourteenth Amendment, the President could simply ignore the debt ceiling, “invoke” Section 4, and direct the Treasury to continue to pay the nation’s bills even after the debt ceiling was reached.

There are, however, two major problems with the Fourteenth Amendment solution. First, the Amendment itself doesn’t affirmatively grant any power to the President. It doesn’t say that if Congress fails to prevent a default, the President has the power to keep paying the nation’s bills anyway. In fact, Section 5 of the Fourteenth Amendment explicitly gives Congress, and not the President, the power to enforce all of the provisions of the Amendment itself, including Section 4:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The second major problem with the Fourteenth Amendment solution, as I detailed in my post last week, is that in the event Pres. Obama were to “invoke” Section 4 and ignore the debt ceiling, there’s a very real chance that Republicans in the House of Representatives would commence impeachment proceedings.

But so that leads me to the real point of my “Legal Corner” discussion this week: The debt ceiling has to go. The law, which began as part of the Second Liberty Bond Act in 1917, is in all likelihood unconstitutional, and it’s horrific as a matter of policy. Even if a law placing a limit on the amount of debt the federal government can incur is constitutional on its face, it’s unconstitutional in its application – as current events clearly show. If the Fourteenth Amendment requires the federal government to honor its debts and the debt ceiling law prevents that from happening unless its amended to raise the debt ceiling, the law, as applied, continually threatens to force the government to violate the Constitution. How can that possibly be constitutional? The answer is, it can’t be.

More to the point, the very purpose of Section 4 was to remove the issue of paying our debts from the political arena altogether. Again, quoting Sen. Wade of Ohio at the time Section 4 was being discussed:

I believe that to do this will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress.

(Emphasis supplied.) In other words, the situation we find ourselves in today – this policy nightmare where certain members of Congress use the debt ceiling as a means to extort items off their political wish list – is exactly what Section 4 was designed to avoid.

And so the only grown up way to avoid these problems going forward, and the only way to ensure we pay our debts as the Constitution requires, is to repeal the debt ceiling once and for all.

Your Friday Clash Song: What Do We Have For Entertainment?

2011-07-29T11:17:00.000-05:00

With a special hat-tip to Al D’Amario (@aldamario on Twitter) who recommended this last week, a live version of “The Magnificent Seven,” originally from Sandinista! (1980). There’s a very similar version on Live: From Here to Eternity (1999), which has been the go-to playlist on my iPod lately. Live Clash might be the best music ever to run to. But I say that about a lot of music.

Anyway, I’ve often pointed out how versatile the Clash were for a punk band, and this song really showcases that versatility: It’s hip hop, fer Chrissakes, recorded before most white folks even knew what hip hop was. According to Antonio D’Ambrosio:

[Joe] Strummer’s unique partnership with Mick Jones, his main collaborator and lead guitarist in the Clash, brought a revolutionary sense of excitement to modern music. Strummer and Jones quickly recognized the power of rap music that was just emerging from New York City’s underground in the late seventies. “When we came to the U.S., Mick stumbled upon a music shop in Brooklyn that carried the music of Grand Master Flash and the Furious Five, the Sugar Hill Gang…these groups were radically changing music and they changed everything for us.”

With typical Clash inventiveness, they became one of the first white groups to incorporate rap into their music. As a tribute to the path-breaking Sugar Hill Gang, the Clash recorded The Magnificent Seven, one of their best-known and most important singles. In another example that marked the Clash’s commitment to challenging social conventions, they enlisted several New York City rap groups to join their huge Clash on Broadway tour. At the time, this was extremely controversial since it was widely believed that combining the two disparate audiences and musical genres would result in racial mayhem.

Reflecting on the group’s influence, I suggested to Strummer that hip-hop has replaced punk rock as the dominant political pop cultural force in spirit, vitality, and creativity. He responded, “No doubt about it, particularly in respect to addressing the ills of capitalism and providing a smart class analysis, underground hip-hop, not the pop-culture stuff, picked up where punk left off and ran full steam ahead.”

In retrospect, the evolution of political music from punk (and reggae) to hip hop seems perfectly logical, as logical as the evolution from blues to rock ’n roll was; but at the time pop music was (and this is a complete understatement) pretty well segregated along racial lines. I suppose it still is, which is sad, but the Clash certainly did their part to bridge that gap.

And even though Joe Strummer wrote the lyrics to “The Magnificent Seven” off the cuff in the studio, the song’s dystopian feeling seems to fit the current political mood:

Ring! Ring! It’s 7:00 a.m.

Move y’self to go again

Cold water in the face

Brings you back to this awful place

Knuckle merchants and you bankers too

Must get up an’ learn those rules …

Yeah, well, maybe on Friday it’s best not to think about the alarm clock going off again …

So, anyway, here’s another version, recorded live on The Tomorrow Show with Tom Snyder when Snyder was desperately trying to remain relevant (he also had U2 and Elvis Costello on around that same time):

And the original studio version:

You lot! What?

Don’t stop! Huh?

So there you go. Your Friday Clash song: “The Magnificent Seven.”

Turn. It. Up.

So, The Old Man Would Be 90 Today …

2011-07-28T20:25:00.001-05:00

And in is honor, a scene from one of his favorite movies: A Thousand Clowns (1965), starring Jason Robards. We grew up with this movie, but it was only many years later I discovered (as I’ve mentioned before) that Jason Robards’ character was loosely based on radio/television personality Jean Shepherd, who’s most famous these days for having written and narrated A Christmas Story (1983) … and therein lies an odd coincidence: It turns out that Jean Shepard was born July 26, 1921, just two days before my father, and right here in Chicago. As if to complete the circle, it also turns out Jason Robards was born July 26, 1922, just a year later … and also in Chicago.

In any event, I think there was something about this movie that appealed to men of my father’s generation; men who were, I think, disillusioned by the capitalist rat race they found themselves in in post-World War II America. The opening sequence kind of nails it:

Murray Burns: Nick, you are about to see a horrible, horrible thing thing.

Nick: What’s that, Murray?

Murray Burns: People going to work …

I suspect my father often shared that sentiment, although he never let on. Not to me, at least. In fact, my dad was a pretty solid citizen in most respects: World War II combat veteran, college professor, involved in the local Catholic parish, served on the local school board and the village Human Relations Commission … Maybe it was despite the attitude embodied in A Thousand Clowns, maybe it was because of it, but he was the kind of guy who got involved in things – in his case, the local civil rights and open housing movement, local politics, and so on – maybe because he wanted subsequent generations to live in a more humane world. I think Murray Burns would have appreciated that, although Murray Burns himself would have lacked the gumption to get it done.

In fact, (as I’ve also mentioned before) roughly forty years ago, in December 1971 when my dad was 50, he drafted a “Proposed Policy on Human Dignity” for our local public schools, governing everything from integrating the schools to teaching the value of diversity to hiring teachers and administrators of color. The following year, our local school district became one of the first in the nation to adopt a policy like that, which is not a small thing, if you ask me. I think about that frequently these days, because I’ll be turning 50 next year … and I think, what’ll I say that I did by the time I was 50 to change the world? Well, um, I’ve got this blog thing, and, uh, …

Anyway, here’s another clip that my dad liked:

C’mon, old man, where’s your professional attitude?

Indeed.

Well, it’s too bad the old man isn’t around any more. So, happy birthday, dad, wherever you are.

A Song for Bukko

2011-07-27T20:45:00.001-05:00

An acoustic version of “Beds Are Burning” by Midnight Oil, for my favorite expatriate Australian living in Canada, Bukko Canukko, who’s long been a part of the motley crew of regulars over at Jesus’ General’s blog, and who occasionally graces this blog with his comments, which, agree them or not, are in a class by themselves. When I refer to Bukko as a friend, I mean it, and it’s not a term I use loosely. The group of us who’ve hung (not hanged, mind you; that’s used to refer to someone who’s doing the, er, Spandau ballet, if you will) out at the General’s place since at least 2004 or so are genuine compatriots. We’ve known each other and interacted on a fairly regular basis for many years now, and many of us have communicated (and commiserated) with one another in our real lives, outside of blogs and social media, via e-mail and snail mail and the occasional telephone conversation. I consider these folks to be my first on-line “family,” so to speak, and I’ll stand by every last one of them.

Even an expat Australian who’s living in Canada.

But I digress. Yesterday, Bukko left a comment here on a post entitled “Why I’m Not Thrilled With the Fourteenth Amendment Solution,” and I thought it was worthy of a special mention for a couple of reasons. First, Bukko pointed out something I should have included in the original post, as lengthy as it was, which was this:

I’ll tell you another reason I don’t like the “14th Amendment Solution”: it’s one more step toward making the president into a king. If Obama is given the power to unilaterally decide “I don't care how Congress limits my ability to spend money; I’m going to do it anyway” then it becomes a precedent for future presidents.

Um, exactly right. One of the rather disturbing trends on the left – among both Pres. Obama’s supporters (of which I am one, by and large) and his liberal critics – is our apparent inability to understand the role of the president in our tripartite federal government. And it’s particularly sad that we don’t seem to get that, because we rightly pilloried George W. Bush for his usurpation of Congressional authority and his expansion of the powers of the presidency. When Bush asserted that he could set up the prison camp at Guantánamo Bay, hold prisoners indefinitely, redefine torture to suit his whims, disregard the Geneva Conventions and the Uniform Code of Military Justice – all despite the fact that Congress and Congress alone has the power to “[t]o declare War … and make Rules concerning Captures on Land and Water” (U.S. Const. Art. I, § 8) – we said he was disregarding the constitutional separation of powers, and we were right.

So we ought to be very careful indeed to suggest that Pres. Obama should simply disregard federal law – in this case, the debt ceiling – even if there is an argument that that law is unconstitutional. We don’t want Pres. Obama to be the final arbiter of the constitutionality of federal laws any more than we wanted George W. Bush to be, right? So the Fourteenth Amendment solution to the debt ceiling crisis is, as Bukko pointed out, problematic for that reason too.

Of course, I could point out that Pres. Obama’s liberal critics often make the same mistake when they assume he can force laws through Congress despite the fact that the votes just aren’t there to get those laws passed, but I digress yet again.

Anyway, the second noteworthy point in Bukko’s comment yesterday, and the reason I chose the song at the top of this post in his honor, was this:

I’m one of those lefties who doesn’t like Obama because I see him as an old-fashioned Republican (who’s to the right of Eisenhower.)

Now, as I said above, Bukko’s a friend of mine, and since this is my blog, I elect not to take on the substance of that comment (other than to note that I do, in fact, disagree). I will, however, use that comment as an opportunity to make a more general observation about the nature of political leadership, and it begins with that Midnight Oil song, “Beds Are Burning” … or, more to the point, the guy who sings that song: Peter Garrett, a former lawyer and one of the earliest members of the group. From Wikipedia:

Midnight Oil (also known informally as The Oils to fans), was an Australian rock band from Sydney originally performing as Farm from 1972 with drummer Rob Hirst, bass guitarist Andrew James and keyboard player/lead guitarist Jim Moginie. While vocalist Peter Garrett was studying at Australian National University in Canberra, he answered an advertisement for a spot in Farm, and by 1975 the band was touring the east coast. By late 1976, Garrett moved to Sydney to complete his law degree, and Farm changed its name to Midnight Oil by drawing the name out of a hat.

(Footnotes omitted.)

Garrett was one of the co-writers of “Beds Are Burning,” and it’s one of the more radically leftist songs by a group known for its radical-left-type songs. It’s a song about how European settlers abused the indigenous peoples of Australia, and it advocates giving the country back to them:

The time has come

To say fair’s fair

To pay the rent now

To pay our share

The time has come

A fact’s a fact

It belongs to them

Let’s give it back …

So, a guy who’d write and sing lyrics like that has to be a bona fide, genuine leftist hero, right?

Well, apparently not. See Garrett, not altogether unlike a certain other former idealist with a law degree, went into politics and is now a Labour Member of Australia’s Parliament and its Minister for School Education, Early Childhood and Youth. And since he entered national politics in Australia in 2004, he’s repeatedly been chastised for “selling out” and becoming a mainstream Labour Party politician (see, e.g., here, here and here).

In fact, I believe it was Bukko who first told me that liberals in Australia were bitterly disappointed in Garrett …

But that gets me thinking. Did Garrett really “sell out,” as some accuse Pres. Obama of doing, or did he, like so many idealistic people who get into politics, find out it’s easier to come up with political slogans (and catchy lyrics) than it is to actually govern? Because it seems to me that if a guy like Peter Garrett can’t sustain that perfect liberal persona once he enters politics, maybe nobody can. If idealist after idealist after idealist enters into the political arena and is eventually perceived to be a “sell-out,” I wonder if it’s really even possible to be an idealist and yet do the business of government.

Which doesn’t mean liberals should give up their own idealism. Not at all. But maybe we should recognize that there is no such thing as a perfect liberal. Or, at least, no such thing as a perfect liberal politician.