After the Future

SCOTUS Rulings Lost in the News

From today's NYT piece on the Robert's court 'steady move to the right':

In lower-profile cases, the court’s rulings continued to be good for business interests and bad for the Obama administration.

“We shouldn’t lose sight of the court cementing its legacy as the most pro-business court in the modern era,” said Lee Epstein, who teaches law and political science at the University of Southern California and helped write a recent study of the Roberts court’s business rulings.

The U. S. Chamber of Commerce had another successful year. The court cut back on class actions, favored arbitration and made it harder to sue the makers of dangerous drugs and employers accused of workplace discrimination.

“Anyone doubting that the most important story of the Roberts court is its business rulings has not been paying enough attention,” said Doug Kendall, president of the Constitutional Accountability Center, a liberal group. “This term’s 5-4 rulings, all favoring the chamber, move the law sharply to the right and to the great detriment of consumers, employees, and other Americans trying to get their day in court.”

As American liberals rejoice about inevitable gains in the cultural sphere, they shrug about continuous losses in the economic sphere. I am amazed at how little attention Americans pay to the way power works in this country. 

John Oliver on The Daily Show in reference to the Snowden leaks remarked last week that Snowden did not reveal any illegality or wrongdoing, and that was the most disturbing part--that it's all legal now. [But is it?] In the next ten years we will be finding that all kinds of injustices are perfectly legal, and that there is no recourse. 

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Another word about Brazil. Also in today's NYT is an article about the amazing corruption among Brazil's politicians: about a third of the Brazilian congress is currently under indictment, but even when legislators are convicted, they only very rarely go to jail:

Almost 200 legislators, or a third of Brazil’s Congress, are facing charges in trials overseen by the Supreme Federal Tribunal, according to documents compiled by Congresso em Foco, a prominent watchdog group. The charges range from siphoning off public funds to far more serious claims of employing slave labor on a cattle estate or ordering the kidnapping of three Roman Catholic priests as part of a land dispute in the Amazon.

Scholars of Brazil’s judicial system say legislators in corruption scandals often avoid jail, in part because of the special judicial standing enjoyed by about 700 senior political figures in the country, including all 594 members of Congress and senior cabinet members.

The standing allows these people to be tried only in the Supreme Federal Tribunal, producing years of delays in an institution bogged down by many other pressing matters in Brazilian society. Until 2001, politicians could not even be tried without the authorization of Congress, a function of the deference traditionally paid to elected officials in the legal system.

But here's what the recent protests have wrought:

Just as surprising to many Brazilians, Congress is now scrambling to cobble together a response. This week, legislators approved a bill to use oil royalties for education and health care. The Senate, the upper house of Congress, gave its nod to stiffer penalties for corruption, and the lower house, the Chamber of Deputies, shot down an attempt to rein in corruption investigators. Senators are elected for eight-year terms, while members of the Chamber of Deputies serve four-year terms.

Also, a powerful congressional committee approved a measure to lift the veil of secrecy when lawmakers vote on whether to strip fellow members of Congress of their seats.

On Wednesday, the Supreme Federal Tribunal ordered the immediate arrest of Natan Donadon, a congressman found guilty in 2010 of embezzlement — a rare attempt to try to imprison a sitting congressman. The last time the high court made a similar move was during the military dictatorship in 1974, when justices ordered a legislator arrested for opposing a visit by the Chilean dictator Augusto Pinochet.

Still, the fury builds in one protest after another.

“These wolves, that trash over there, they rob the people, they feast on the meat of the people by stealing public money destined to do things for us,” said Caio Fabio de Oliveira, 45, a civil servant in the Health Ministry, who was among the demonstrators against Congress this week in the capital, Brasília. “It is shameful for the Brazilian people; I work for the government, and I’m ashamed every day.”

Only sustained public outrage gets anything done in the public interest. It's no different in the US than in Brazil. For Americans to become outraged, maybe the corruption and blatant injustice has to become as outrageous in the US as it is now in Brazil. If current trends hold, it will be there sooner than we think. The US government is already an publich embarrassment, just not yet an outrageous one.

 

 

 

 

 

 

Josh Marshall & Historical Vacuum Syndrome

Josh Marshall has created a firestorm among his liberal readership by coming out pretty strongly against the Manning and Snowden leaks. I think he gives a thoughtful, honest justification for his views, and the key to it is explained in these three paragraphs:

If you see the state as essentially malevolent or a bad actor then really anything you can do to put a stick in its spokes is a good thing. Same if you think the conduct of US foreign policy is fundamentally a bad thing. Then opening up its books for the world to see is a good thing simply because it exposes it or damages it. It forces change on any number of levels.

From that perspective, there’s no [sic] really no balancing to be done. All disclosure is good. Either from the perspective of transparency in principle or upending something you believe must be radically changed.

On the other hand, if you basically identify with the country and the state, then indiscriminate leaks like this are purely destructive. They’re attacks on something you fundamentally believe in, identify with, think is working on your behalf.

Marshall unapologetically associates himself with those in the third paragraph. He defends it by claiming that it is more "balanced". But what does balance mean in a world where power is so asymmetrically distributed? In any event, Marshall's allegiances lead him to write paragraphs like these:

Let me put my cards on the table. At the end of the day, for all its faults, the US military is the armed force of a political community I identify with and a government I support. I’m not a bystander to it. I’m implicated in what it does and I feel I have a responsibility and a right to a say, albeit just a minuscule one, in what it does. I think a military force requires a substantial amount of secrecy to operate in any reasonable way. So when someone on the inside breaks those rules, I need to see a really, really good reason. And even then I’m not sure that means you get off scott free. It may just mean you did the right thing.

So do I see someone who takes an oath and puts on the uniform and then betrays that oath for no really good reason as a hero? No.

The Snowden case is less clear to me. . . . [But] Snowden is doing more than triggering a debate. I think it’s clear he’s trying to upend, damage - choose your verb - the US intelligence apparatus and policies he opposes. The fact that what he’s doing is against the law speaks for itself. I don’t think anyone doubts that narrow point. But he’s not just opening the thing up for debate. He’s taking it upon himself to make certain things no longer possible, or much harder to do. To me that’s a betrayal. I think it’s easy to exaggerate how much damage these disclosures cause. But I don’t buy that there are no consequences. And it goes to the point I was making in an earlier post. Who gets to decide? The totality of the officeholders who’ve been elected democratically - for better or worse - to make these decisions? Or Edward Snowden, some young guy I’ve never heard of before who espouses a political philosophy I don’t agree with and is now seeking refuge abroad for breaking the law?

I don’t have a lot of problem answering that question.

I've always believed that Marshall, like most other mainstream journalists, suffers from what I would describe as Historical Vacuum Syndrome. He is a liberal critic of a system whose rules he basically approves of. He knows they are flawed, but show him a society in which they are not. So, he's right that identifying or not identifying with the government is certainly a factor that will shape your perception of these leaks, but I would add another factor, which is to ask: In which direction do you think our country is moving? Journalists with Historical Vacuum Syndrome don't ask that question. 

If I thought that history was static or that things were headed mostly in the right direction, my position would be similar to Marshall's. I don't think that. I believe American history is trending in a bad direction. I was ready to hop on a more optimistic bus when Obama was elected--I really wanted to; I don't like being cynical--but it became clear fairly quickly that the system is running Obama rather than he running the system. For me, at least, it has become clear that the system has a mind and will of its own, and it's not taking us anywhere good. If you don't believe that, if you believe instead that there is nothing new under the sun, that we're in this static pattern of same old, same old, nothing new here, just business as usual, then you can, like Marshall does, adopt the kind of journalistic attitude that he articulates in his post. Me? Count me among those who favor putting a stick in the spokes. 

Journalists like Marshall would argue that Historical Vacuum Syndrome is a virtue, that they are not in the business of making judgments about historical trajectories. So this leads them to accept the world as it is and play by the rules as they have been developed, no matter how rigged the game has become. "Are they any more rigged now than they have ever been?" they would retort. This is how I see Brooks, Friedman, and almost all the people who have chosen to make a career in American establishment journalism. How could it be otherwise for them? But as such, I'd argue, that they have become coopted defenders of a system that is out of control. The more embedded you are in the system, the harder it is to have any real perspective on it.

That's the difference in the end between Marshall and Snowden. Snowden understands better what's in control and what forces are driving it. He understands the enormity and the asymmetry, and his gesture, while ultimately futile, was an attempt to simply to say NO. 

 

 

Verax: Loners Telling Truths

My two cents on the Snowden leak: Of course, I'm among those who admire his courage, and I am temperamentally inclined to side with whoever takes it upon himself to subvert the technocracy. But it seems a quixotic gesture, and one that is not likely to change anything.

It's too bad that the Tea Party can't get as worked up about violations of the Fourth Amendment as they do the Second Amendment. Then (maybe) we'd see some change. But I guess it's hard to get worked up about something that is so abstract. We don't feel violated by telecommunications searches as we would if the police broke down our doors and ransacked our homes. We are now a surveillance state and that's not going to change. The ship has long ago left the dock when any kind of resistance to that could have been meaningful. Americans don't care that they've become that, and there is no power faction to push back against it. There will be no debate--nobody really wants to have it. We will go back to sleep in a few days, and be stirred awake again if Snowden is caught or brought to trial. But it won't be OJ or whoever people were all obsessed with down in Arizona a couple of weeks ago. We won't care.

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I was reading Jeff Toobin's piece in the New Yorker, and then David Brook's piece in the NYT this morning, both of which are critical of Snowden. I don't know why, because I should be used to it, but it still surprises me when people like Brooks and Toobin instinctively react negatively to what Snowden did. I guess the difference lies in that they are embedded in a system that they see as flawed but basically good, and I see the same system as in a process of degradation toward deeper levels of corruption and unfreedom. I am not a utopian, I don't expect to live in a social system without flaws and corruption, but it's the direction that bothers me, and our direction is not on a positive track. And anyone who recognizes that and wants to do something about it deserves our respect, not the kind of treatment he received from both.

Toobin, writes that Snowden is  "a grandiose narcissist who deserves to be in prison", and he seems to think that he should have been a boy scout and used legal channels to make his concerns public. A blog post perhaps? An op ed? "What, one wonders, did Snowden think the N.S.A. did?" writes Toobin. "Any marginally attentive citizen, much less N.S.A. employee or contractor, knows that the entire mission of the agency is to intercept electronic communications." Why, in other words, did he choose to work for a spy agency if he's against what spies do?

But of course this is not the issue. The NSA surveillance activities might be legal, but there is good reason to believe these activities are in violation of the Fourth Amendment. But no one can ever challenge it in court, because any one who might undertake such a challenge does not have access to the evidence because it is classified.

The issue is the degree to which the government can invade our lives, a government that after the Military Commissions Act can call us a terrorist (even if we're not), arrest us, never bring us to trial, put us in prison, and throw away the key. And you don't raise concerns about a government that can do that by going through channels. It would be like working for the mafia and raising questions about the legality of what it is doing. Unfair analogy? The NSA is legal and the Mafia isn't. But surely you see that there is a mafia or rather there are several mafias who own enough lawmakers who make the laws that legalize their violations. And while in theory we can vote those corrupt pols out of office, in practice we tend not to. 

And then there's David Brooks's take. I've always kind of liked David Brooks's nerdy decency. I accept him as a sincere advocate for a kind of conservatism that I sympathize with in theory, but for which I see precious few places to apply it in the world in which we live. Brooks's approach is not to put Snowden on the shrink's couch as Toobin wants to do, but to put on his sociologist's mortar board. His argument, nevertheless, is basically the same as Toobin's, i.e., Snowden is an isolated (disembedded) loner who doesn't understand the concept loyalty or care about the common good and rule of law:

If you live a life unshaped by the mediating institutions of civil society, perhaps it makes sense to see the world a certain way: Life is not embedded in a series of gently gradated authoritative structures: family, neighborhood, religious group, state, nation and world. Instead, it’s just the solitary naked individual and the gigantic and menacing state.

This lens makes you more likely to share the distinct strands of libertarianism that are blossoming in this fragmenting age: the deep suspicion of authority, the strong belief that hierarchies and organizations are suspect, the fervent devotion to transparency, the assumption that individual preference should be supreme. You’re more likely to donate to the Ron Paul for president campaign, as Snowden did.

This is consistent with Brooks's longstanding Burkean view about how societies ought to work, and I'm sympathetic to it--in the abstract. I'm a conservative regarding things in our lived social life that are worth fighting to conserve, but the surveillance state and the plutocracy it protects are not among them. 

I agree with Brooks to this extent. Loners like Snowden tilt at windmills and don't accomplish much. Nothing changes until "mediating institutions" (like political movements) start demanding significant changes. I think these will emerge in time, but they simply don't exist now in any way that is commensurate to the need. And that's why Toobin and Brooks otherwise seems so clueless. So meanwhile we have alienated Millennials like Snowden and Manning, who in their acts of conscience are lonely voices crying in the wilderness. Let us hope their sacrifices are not in vain, and that they a preparing a way for more potent political and cultural movements to come.

P.S. Here is Corey Robin's take on Brooks's piece. Yes and No. Yes, he's right about the bromides deployed to delegitimize Snowden; No to the aspersions he casts on communitarianism.