Can You Smell The Irony?

Posted in Social & Political with tags , , , , on June 16, 2017 by xaipe

I’m honestly not going to say much about this here. I just want to point out that the entire compendium of Rights he lists as necessary for Cuba are the very things he would love to get rid of in the United States (read here, here, here, & here to make up your own mind).

Also, let’s not forget, the burgeoning hospitality investment by U.S. companies in Cuba does NOT include Trump businesses because as long as he is POTUS he’s legally shut out of those markets. One has to wonder if he’s not actually attempting to hamstring his competitors while he sits out of the market.

Let’s at least be clear about one thing: this policy has absolutely nothing to do with freedoms for Cuba & everything to do with pandering to a miniscule subset of Americans who can’t let go of the past, as should be evident by the number of times POTUS said, “Bay of Pigs.”

Motherfucker, please! 

An Open Letter to Senator Jeff Flake regarding the shooting in Washington D.C. the morning of June 14, 2017

Posted in Personal, Social & Political with tags , , , , , on June 14, 2017 by xaipe

I sent the following to one of my Senators who was apparently at the baseball field that was shot up this morning. I’m frankly horrified that anyone would shoot at any government official, but I can’t say that I didn’t see this coming.

Before last year’s election, I said that it would not matter who won, someone would get shot. I saw nothing but extreme & excessive vitriol from both sides regarding each candidate, though I have to say without hesitation that the conservative displays were the most egregious (like Michael Flynn leading chants of “Lock Her Up” & candidate Trump’s open mocking of his opponents, using debasing & demeaning language at every opportunity).

The complete disgust each has for “the other” has been coupled with outright hatred of the people viewed as other. It was once assumed that we are all Americans first, but that certainly doesn’t seem to be the case now. Apparently, we are all Party first, unless you’re Christian, in which case, god chooses the GOP for you.

It is time to put away the guns, the swords, the long knives. We should instead sharpen our wits & use ideas as ammunition. I doubt very much that Senator Flake will ever see my words. I further wonder how much meaning they will have for him since, it’s obvious to me, they come from a liberal before they come from a human being & a constituent.

I guess all I can do is put the words out there & hope. Not a very comforting action.

The Honorable Jeff Flake:

Dear sir, 

I just wrote to you concerning a policy matter but didn’t want to bring up this incident in the same communication.

I have learned of the shooting at a baseball field where you & other Republican members & representatives were practicing softball. I want to express my sincerest apology to you & every other individual who was terrorized in this manner.

That this is what politics in America has become saddens me to no end. Everything we do seems to be driven by a continuous cycle of contempt, one side for the other. Like this ridiculous, ludicrous notion offered by Mr. Gingrich that career lawyers, whose interest is serving Justice before anything else, can’t properly investigate a President because at some point they made a campaign donation for “the other side.” The problem isn’t helped by this President’s animosity for facts, if not the truth itself. All of that is further complicated by 24-hour “news” organizations, like MSNBC & Fox News, who editorialize everything, viewing the world through their lens rather than presenting the facts for the people to make their own judgments.

None of this serves the administration of Justice. Make no mistake, I mean Justice in the fullest philosophical definition of that word, encompassing the dual aims of Justice: fairness & equality of liberty & opportunity for all.

The center has gone from American politics, and it results in the incredibly callous, stupidly dangerous, & viciously cruel act of violence perpetrated this morning. I wish my voice were bigger, louder. There are so many of us citizens crying out from the hollow core of American social & political life. We desperately long for a time when a person is judged on the content of their Ideas & not the color of their Party’s banner. However, it appears that the middle ground is now occupied by a flagging minority, & now we’re shooting representatives in public places (I point out that I use “we”in the royal sense, & add that I also include the shooting of Representative Gabrielle Giffords in this current thought).

I am continually discouraged by American politics. There arose a notion that we shouldn’t discuss politics or religion at the dinner table. I’m not sure from where this comes, but I’m sure that it is the most dangerous idea to hit the mainstream since slavery, perhaps. There is nothing more crucial than discussing these matters, as families, as groups gathering in communion anywhere for any reason. If people who are supposed to have affection for one another cannot manage to find a way to discuss important things meaningfully, how are we as a society supposed to maintain any dialogue whatsoever?

Instead, there is the resort to disdain, contempt, disgust, & violence, usually in that order. Marriage counselors generally say that the most dangerous thing in a marriage is contempt. If contempt reaches into the heart of just one party in the relationship, the relationship is dead unless it’s addressed quickly. The problem is that we constantly fail to recognize contempt in ourselves & therefore mistake it in others.

This constant back & forth where one “side” disagrees with the “other side” is damaging in the highest regard. It does nothing but breed contempt, derision, & enmity. 

I am truly delighted that you are unharmed, but completely inconsolable that such an incident even happened in the first place. Please share my best wishes with Rep. Scalise for a speedy recovery. I can only offer these words. Unfortunately, there is not more that I can do, except to pledge that I will continue to irritate & agitate my friends & family until they come to the table to find the center again.

We can only affect change in ourselves, however. Still, I don’t think it’s a fruitless endeavor to try. Maybe the notion of our elected officials being shot will alter the mood, but I’m not going to be overly optimistic.

Sincerely & with heartfelt sadness.

Addendum for this blog: I certainly do not think MSNBC is responsible for the dissolution of discourse. The good people there do their level best to be objective, even when editorializing. They are nowhere near the level of Fox News, which has recently become an extension of Russia Today, apparently, based on some extremely similar reporting of late.

What is this Florida International University Constitutional Law Professor saying?

Posted in Law & Justice, Social & Political with tags , , , , , , , on June 11, 2017 by xaipe

Er, perhaps I should correct that to simply say, “What the Fuck?!”

This is Professor Elizabeth Foley Price on MSNBC Live , which aired Sunday, June 11, 2017. To be as accurate as possible, I want to transcribe the part of her statement that contains the central argument offered in answer to the question posed by Ms. Witt regarding whether or not the POTUS can order the FBI to back off an investigation of Michael Flynn because Flynn is the President’s friend, i.e. that POTUS obstructed justice:

“To the extent people want to make this obstruction of justice, there’s a million reasons why this is not technically obstruction of justice, either as a statutory matter or a constitutional matter. But this point in particular about corrupt intent is even worse because, think about it, the President also has the authority, under Article II of the Constitution, to pardon people. But we don’t say, for example, that the President can’t pardon cert…er…a certain person because he has a corrupt intent. ‘He, he likes the guy, he’s known him for a long time; therefore, he can’t pardon him.’ The pardon power, like the power to head the investigative, or, er, rest of the executive branch, like the FBI, like the DOJ, is a plenary discretionary authority of the President. He can pardon anybody for any reason he wants to, ‘corrupt motive’ or no. And he can direct the investigation or non-investigation of anyone, ‘corrupt purpose’ or no.”

Wow. I’m going to state immediately that I am not a lawyer of any kind. Even our host only seemed to be able to attempt a rebuttal, making an honorable effort. Because I find this whole thing to be laden with words that sound like specific legal jargon, I’m going to look for terminology that could have a particular meaning within the law. I want to make sure that I don’t conflate any jargon-laden meaning with the plain meaning of the colloquial language, so I’m going to post the relevant material I find that might lead to understanding.

Obstruction of Justice: there’s a well covered federal statute that defines this legal term, 18 USC sec. 1505. Stated in the most simplistic manner, the first part of this statute deals with anyone withholding or destroying or concealing or lying about information requested in compliance with an investigation or proceeding. The second part deals with the act of interfering, by any means or manner, with the administration of the law, sought through inquiry or investigation, by any federal judicial or congressional proceeding.

Corrupt Intent: this one is pretty simple. Committing an act despite knowing it is illegal is corrupt intent. This is a broad definition, however. It should be noted that the above referred 18 USC sec. 1505 also contains language that suggests that anyone who seeks, “corruptly or by threats of force,” etc,  to impede said proceedings, is obstructing.

Plenary Power: again, this seems pretty straight forward. A plenary power gives complete authority over a particular area. Cornell University Law chooses an example from the Constitution, Article I, Section 8, Clause 3, which grants Congress authority over Interstate Commerce. The courts have viewed this as a plenary power, holding that State’s do not have the right to pass laws governing interstate commerce without the consent of Congress. Prof. Price is also correct that Presidential Pardon is considered a plenary power. There is some argument surrounding this; however, it has nothing to do with the POTUS’ power to direct the Offices of the Executive Branch.

(As an aside, here is an interesting article in the William & Mary Law Review that argues that it might be time to restrict the pardon power, giving an extensive history that begins with the concept in English Law. Of course, the paper does not argue that pardon power currently has limits. It just suggests that pardon power ought to be limited.)

Let’s take all that we’ve discovered so far & see if we can’t state her argument in syllogistic form.

Premise 1: POTUS cannot commit obstruction of justice with regard to directing FBI investigations because obstruction in this sense requires corrupt intent.

    Sub 1: The POTUS has “plenary power” to pardon people.

    Sub 2: The power to head the Executive Branch of government, including the FBI, is like the power to pardon, i.e. it’s a plenary power.

    Sub 3: Therefore, POTUS has plenary power to head the FBI.

Premise 2: Because POTUS has plenary power to head the FBI, he can direct investigations in any manner he sees fit, regardless of motive.

Conclusion: The POTUS cannot commit obstruction of justice with regard to directing FBI investigations. 

    It’s a fairly neat argument. Her assertions seem all to be represented, & the order I have given her premises seem to follow the logic…
    Who am I kidding? I can’t possibly take this seriously. Logic was thrown out the window the second she started down her “plenary” road.

    If we simply examine that singular statement about plenary authority, we’ll find the flaw as well as one of the most insane statements I’ve ever heard a lawyer utter. 

    First, she provides no relevant citation from the text of the Constitution or any legislation demonstrating that any plenary power to direct the Executive Branch en bloc exists. She speaks only generally to “Article II of the Constitution,” indicating no specific section or clause. Article II is concerned with establishing the Office of the President & delineating the powers of the Office in general, but the Constitution is mute on the subject of the FBI & its director.

    The FBI exists simply by force of will. In 1908, Attorney General Charles Joseph Bonaparte, just decided to hire his own team of DOJ investigators without request, without permission, & without objection. With tacit congressional & executive consent, his successor dubbed this new investigative arm the Bureau of Investigation.

    The FBI is organizationally under the Department of Justice (it was created out of whole cloth by an Attorney General, after all), & so far as I can tell the original directors were simply appointed by the Attorney General with no oversight or consent from any other governmental party required. It was in response to Hoover’s extremely long reign, & the incredible amount of power he had amassed from the information he’d gathered through often illegal or questionable means, that on his death the President & Senate assumed the authority for appointment & consent of the Director of the FBI respectively.

    It isn’t until 1976 that Section 203 of the Crime Control Act establishes that the person who fills the position of the Director of the FBI will serve a term of ten years & is appointed by the President with the advice & consent of the Senate. While the legislation doesn’t specifically state its purpose for creating this ten-year term, it didn’t arise in a vacuum.

    I refer here to a really fantastic piece in LawfareBlog by Andrew Kent, Susan Hennessey, & Matthew Khan, a brief history of the Crime Control Act of 1976. Essentially, it comes down to these small paragraphs:

    “When recommending enactment of the ten-year term, the Senate Judiciary Committee wrote a comprehensive report of its rationale, including:

    ‘The purpose of this bill is to achieve two complementary objectives. The first is to insulate the Director of the Federal Bureau of Investigation from undue pressure being exerted upon him from superiors in the Executive Branch. The second is to protect against an FBI Director becoming too independent and unresponsive.’

    As Chairman of the Judiciary subcommittee overseeing the FBI, Senator Robert Byrd said during a hearing on the ten-year term legislation that the FBI director must not use the Bureau as ‘a political action agency for the President,’ but cannot be allowed to turn the Bureau into a personal ’empire.’”

    I’m not sure I could or should add anything. It seems exceedingly obvious that this particular legislation was intended, as evidenced by the clear and convincing statements of the Judiciary Committee & its chairman during the crafting of the bill, to act as an affirmative check on the power of the POTUS to “direct” the FBI in any regard.

    Ultimately, Prof. Price’s point was to say that we really want to avoid thinking of indicting the POTUS in the usual way of criminal indictments. She wanted to alarm us about the Court having to “constrain the power of the POTUS,” though that is, ostensibly, the very role of the Courts in the practice of Judicial Review, a cornerstone principle unique to American jurisprudence (you might think a Con-Law Prof would know that).

    While I don’t disagree that criminally prosecuting a sitting President in courts of law is problematic at best & potentially unconstitutional, I have to again fault her for her words.

    Rather than point out the liquefied ground on which such a prosecution might rest–who would arrest & detain a sitting President, who would prosecute, & who would adjudicate?–she again retreats to language that belies her assertion by later stating that it would somehow be problematic for the Courts to perform their integral function of constraining the powers of the POTUS as a co-equal branch of government, especially given she believes these powers to be plenary, an assertion she also fails to prove as her premises fail to establish her conclusion.

    This is enough for me to question her fitness as a Professor of Law & a Juris Doctor, but I’m not quite finished.

    Let’s revisit the clear, plain language meaning of what Professor Elizabeth Foley Price of Florida International University said:

    “The pardon power, like the power to head the investigative, or, er, rest of the executive branch, like the FBI, like the DOJ, is a plenary discretionary authority of the President. He can pardon anybody for any reason he wants to, ‘corrupt motive’ or no. And he can direct the investigation or non-investigation of anyone, ‘corrupt purpose’ or no.

    Her final affirmative statement says, without equivocation, that the POTUS has absolute, unchallenged authority to command the FBI to investigate or not to investigate any person for any reason whatsoever, even if the motivation for ordering the commencement or cessation of the investigation is itself known to be illegal, immoral, or unethical!

    I’m going to rephrase that in case it stunned you into a fugue state: an American professor of American Constitutional Law at an American university apparently believes that the United States Constitution gives our POTUS the unassailable authority to use the FBI as his personal Gestapo!

    I’m not sure that a more clearly stated paraphrase can be cobbled together from any other language. Frankly, I’m pretty sure anyone stopping on a blog about “political & social philosophy” would have easily discerned this meaning immediately. I’m sure the one individual reading this already gleaned for him- or herself exactly what the professor was saying.

    Still, it is important to recognize that the reduction to absurdity isn’t The only thing fatal about her argument. The fact that her entire assertion reduces to, “POTUS can use FBI indiscriminately & without remorse or consequence, so he can’t obstruct justice” is a bonus to me. Her argument fails, both on its merits & on the fact that it renders an absurd subconclusion, i.e. that the power of POTUS over the FBI is plenary. Either way, she makes a case that she might not be fit to train young minds in the vagaries of United States Constitutional law.

    Does anyone have an email address for the President of Florida International University? I’d really like to ask him or her, “What the fuck?!”


    Regarding Civil War Monuments in Arizona

    Posted in Law & Justice, Social & Political with tags , , , , on June 11, 2017 by xaipe

    I recently encountered an opinion piece in our local Phoenix, AZ newspaper, The Arizona Republic, by columnist Laurie Roberts. In her column, Ms. Roberts discusses several monuments in Arizona commemorating the Civil War in some regard (her headline is stated rhetorically as a question, as though she doesn’t quite understand why Arizona would have monuments to an event that occurred 47 years before we even became a state, but I digress).

    I can’t say that I disagree with the rhetorical flourish, but let’s not try to suggest she does anything but feign real surprise that there are Civil War memorials in Arizona. She wants to emphasize her conclusion: that there are valid reasons most of these monuments be removed from public spaces (the exception is for a marker at the site of the westernmost battle in the Civil War), a result I support. One of the primary markers erected in Arizona wasn’t even dedicated until 100 years after the Civil War. This fact alone should lead you to a conclusion regarding the reality of what these markers mean.

    As a native of Arizona, recognizing our independent spirit & progressive roots, I can appreciate that Ms. Roberts takes a balanced, common sense approach to looking at the purpose of the monuments before deciding whether each should stay or go. However, she does very little to provide any context for what a “commemoration or memorialization” of the Confederacy actually means!

    As an example, Ms. Roberts cites The Daughters of the Confederacy as endorsing the creation of many of our Arizona markers to the Confederacy. What she doesn’t do is offer the reason this organization exists, i.e., put in the context of the cult of the Lost Cause of the Confederacy. I say “cult” because most recognize it for what it is, a forced ideology designed to whitewash, rationalize, fetishize, iconize, idolize, & bathe-in-golden-aura all the invented romantic symbols of a “noble South” that only existed in the minds of the privileged white southerner. 

    The cult of the Lost Cause of the Confederacy was created to obscure the reality of the Confederacy, to sanitize history to the fact that the the Civil War was a war of insurrection against the United States, & that it was specifically about the subjugation of people into slavery, as the Cornerstone Speech by their vice-president, Alexander Stephens clearly states: 

    “[the] corner-stone [of our Confederacy] rests upon the great truth, that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.” (Stephens)

    Now, I have another question to add to Ms. Roberts’ original concern: “How has removing monuments to a war fought to save slavery, a war against America, become controversial, particularly in a time celebrated for its America First pronouncements?!”

    It should be obvious that such markers memorialize & celebrate a (thankfully) failed experiment to destroy America. The sole aim of this insurgency was to preserve the so-called “right” of one person to own another person as a slave. If you fought for the Confederacy, then you fought against the United States. There are no American patriots in the Confederacy, by definition!

    New Orleans mayor, Mitch Landrieu, made this same point in an excellent speech on why it’s important to remember the reasons these monuments exist. As Landrieu demonstrates, if such “monuments” exist to “commemorate our history,” they have failed also to memorialize the slave ships or to create markers that recall the very trees from which the bodies of the lynched swung. 

    “So for those self-appointed defenders of history and the monuments, they are eerily silent on what amounts to this historical malfeasance, a lie by omission. There is a difference between remembrance of history and reverence of it,” (Landrieu) 

    We should be especially loud on this point: We do not support any reverence to a false narrative that glorifies some notion that the Confederacy is a lost Camelot! This is simply not factual.

    Many of the markers in Arizona are not about “remembering” history. They are about obscuring it & offering homage to a false mythology.

    This serves no one, period. 

    If people want to fly their confederate flags, I’m not about to stop them. Their free speech rights allow them to fly that flag. However, these people need to own up to what it is they’re celebrating: those flying the confederate flag endorse the greatest attempted sedition against the United States of America in history! I fail to see how there can be a patriot among them.

    In defending the removal of the statues in his city, Mayor Landrieu took each monument in turn, giving important context to their existence. In each case, these monuments are indefensible. The reasons they exist & the things they memorialize aren’t “history” but rather an overt effort to suborn the facts.

    These markers are the expressions of a wistful mythology built around a failed revolt against a just cause, liberty for all! These monuments were meant to support the status quo of a Jim Crow America & specifically to undermine the Civil Rights Movement itself. 

    I think it is imperative that all Arizonans understand this regarding our own markers to the Confederacy. Given the facts, I think most Arizonans would agree that many of these markers should be removed from our public arena. Of course, if we are to decide to remove the markers in question, can we then muster the will to act? 

    Those are all discussions that should be had. We can’t just bury our heads & accept what we’re told about these things that exist in our public sphere. If you still want to defend these symbols of racism & insurrection, consider how you would respond to this situational posed by Mayor Landrieu:

    “Another friend asked me to consider these four monuments from the perspective of an African American mother or father trying to explain to their fifth grade daughter who Robert E. Lee is and why he stands atop of our beautiful city.

    Can you do it?

    Can you look into that young girl’s eyes and convince her that Robert E. Lee is there to encourage her? Do you think she will feel inspired and hopeful by that story? Do these monuments help her see a future with limitless potential? Have you ever thought that if her potential is limited, yours and mine are too?” (Landrieu)

    In the end, honoring the broad strokes & real sacrifices, tragedies, & triumphs of our shared history serves us all. 

    Importantly, Mayor Landrieu also notes, the enterprise to truly respect our past is not about taking something away from one to give it to someone else. History simply demands us to respect the full breadth & scope of our shared story, to celebrate the full factual narrative that truly makes us great; that we find both comfort & joy in our National Motto, “Out of many, we become One.”

    This was a concept expressed by Mayor Landrieu when talking about the things that make New Orleans such an incredible city: her people, in whom is expressed all the wonder that can be America, a living celebration of diverse ancestries wrapped into a shared cultural identity dependent on each diverse flavor to express the best of itself so that the whole might be greater still.

    We radiate beauty and grace in our food, in our music, in our architecture, in our joy of life, in our celebration of death; in everything that we do. We gave the world this funky thing called jazz—the most uniquely American art form that is developed across the ages from different cultures. Think about second lines, think about Mardi Gras, think about muffaletta, think about the Saints, gumbo, red beans and rice. By God, just think:

    All we hold dear is created by throwing everything in the pot; creating, producing something better; everything a product of our historic diversity. (Landrieu)

    The fact must be admitted: We are stronger & better when we engage together in meaningful exchange, both to develop a respect for the factual narrative of our past & to build a better framework for creating the narrative of our future, beginning with honoring the vital ingredients each culture brings to the notion of what constitutes America itself, a nation founded on a principle of individual liberty for every person crossing our borders & a respect for justice above all else.

    If we’re faithful to our own historical narrative, the future has a better chance at being faithful to its coming history, regardless of by whom it’s recorded. I think we owe it to ourselves to continue to have this kind of discourse, to recognize that honoring history isn’t identity politics.

    Identity politics is about subverting the whole in favor of tribal self-interest & self-identification. Honoring history is about recognizing the facts of our past & weaving a meaningful narrative that makes clear to our contemporaries as well as to our progeny that we appreciate & respect the whole truth of our incredible collection of world cultures & multicultural expressions of universal moral concern for achieving the fullest expression of liberty & justice for every individual, regardless of one’s specific identity characteristics.

    My First WordPress Blog

    Posted in Miscellaneous on March 26, 2009 by xaipe

    Well, I’ve done it. I’ve moved to Worspress. I’ve had blogs on Live Journal, on MySpace. In fact, they’re still there. For now, that’s where they’ll stay.

    I want this to be a fresh start. I want to post on tics that are currently relevant & that explore the breadth of social & political thought. Hopefully, this is going to be for my most well-rendered thoughts & expressions.

    Of course, I’m terrible at keeping up with these because I’m so enamored of the pen & paper. Let’s hope that the current state of affairs encourages me to bring my better thought to a (hopefully) wider audience than just me.

    Wish me luck.

    Updated: 24.05.17 18:35UTC