Monday, July 23, 2018

Someone is responsible for destroying American democracy and, surprise, it's not the Russians

One of my favorite science movies is Steven Soderbergh's 2011 Contagion. Not only is it smart and riveting, it also features three strong women scientists as its heroes. See the short essay I wrote to  see why I loved this film.

For those unfamiliar with it, Contagion - to the extent cinematically practical - realistically portrays the unfolding of a deadly global pandemic and the valiant efforts of scientists around the world to wrestle it to the mat.

Atlanta's Centers for Disease Control is a setting of the film. (They even participated in its production.) In the story, the director of CDC Dr. Ellis Cheever, played by Laurence Fishburne, is confronted by a U.S. government agent who suspects that the pandemic is the result of terrorists weaponizing the bird flu. To which Cheever responds, "someone doesn't have to weaponize the bird flu.The birds are doing that."

I like sharing this quote because it applies to so many situations where people jump at dramatic explanations while overlooking the explanations that are staring them right in the face.

Take for instance the current hue and cry about Russia trying to destroy our democracy. Now, there's little doubt in my mind that Russian agents, under the direction of Vladimir Putin, have committed criminal acts in order to influence the outcome of the 2016 presidential election. Perhaps they're still at work trying to do the same for the upcoming midterms.

But when it comes to destroying American democracy, I take a cue from the CDC director in Contagion and say, "the Russians don't have to destroy our democracy. The Republicans are already doing that."

All the havoc wrought by Putin and his gang of twelve indicted GRU agents and their stateside colluders pales in comparison with the damage that has been done over the past decade by the combination of gerrymandering and voter suppression engineered by the GOP and their agents at all levels of government. If the democratic process dies in this country, we will have no one to blame other than the Republican Party.

The fact of the matter is that much of the Russian threat to our electoral process can be effectively addressed by securing our electoral infrastructure. My guess is that, for less than the cost of a single advanced fighter aircraft, we could put in place the digital defenses necessary to keep Russian - and other - attackers out of our ballot boxes.

I wish I could say that it was a fraction as easy to address the threat posed to our democratic system by Republicans. We will have to regain control of a number of state houses in order to reverse the gerrymandering already in place. As it stands now, with an increasingly Republican Supreme Court, overturning of the despicable Citizens United decision which elevates the rights of corporations to those of citizens in our electoral process, is a pipedream. And it looks as though hope to turn back GOP voter suppression measures targeting people of color are likewise doomed for the near future.

So, by all means, let's do the easy stuff that's required to frustrate Russian and other hackers who are trying to mess with our elections. But let's not forget that our greatest enemy when it comes to undermining democracy in this country is the Republican Party. And the only way to defeat their nefarious designs is to beat them soundly at the polls come this November. It could very well be our last chance to do so.

Friday, July 20, 2018

Why subpoenaing Trump's interpreter at Helsinki is a bad idea

I'm not a big fan of the doctrine of executive privilege which contends that a president can withhold information resulting from the internal operation of the executive branch of government. Its invocation, as Richard Nixon's effort to suppress the release of the Watergate tapes illustrates, is used more often than not to keep information critical to the functioning of our democracy from seeing the light of day.

That said, it makes sense to me that presidents should be able to engage in frank, off-the-record, private conversations with individuals, including other world leaders. I believe this because such conversations are an important way for them to explore the range of policy options, some speculative, that are part of good decision-making. Releasing a transcript or compelling testimony by third-parties would have a chilling effect on such discussions.

Of course, this note has to do with the recent demand that the interpreter present at the private conversation between Donald Trump and Vladimir Putin in Helsinki Monday be subpoenaed by Congress to testify about what she heard. Although a congressional committee could issue such a subpoena, it's hard for me to imagine that it would be upheld by by a federal judge when confronted with assertion of executive privilege for the reasons outlined above.

Might there be exceptions? Didn't Nixon end up having to release his tapes under threat of a subpoena after all?

I do think that there are exceptions and that they mostly have to do with demonstration of probable cause that conversation in question was implicated in the commission of a crime. In spite of the clamor about Trump being a traitor, I suspect that the standard of probable cause would be hard to meet in this instance. My guess is that most federal judges - and ultimately the Supreme Court - would see this subpoena as little more than a politically motivated fishing expedition.

And, in the usual and understandable rush to undercut Donald Trump, we should consider what would be lost if such a subpoena succeeded. Well for starters, as an article in the New York Times today points out (see "Who Heard What Trump Said to Putin? Only One Other American" in the comments), it would compromise the professional ethics of people who serve as interpreters. The likely result being that only political lackeys would be selected do a job that demands the highest level of language expertise.

More significantly, and something that appears to be lost on Trump opponents who are forever looking for new legal mechanisms to thwart his administration, it opens the door to all conversations between future presidents and world leaders where an interpreter or a notetaker is present being subject to revelation by subpoena.

For example, would we want President Elizabeth Warren's private discussions with her Chinese counterpart to always be a matter of public record? Do we really want already trigger-happy Republican congressional committee chairs - I'm looking at you Trey Gowdy - turning every trip by a Democratic president abroad into a subpoena battle?

Finally, although there's absolutely no changing their minds, Republicans are using what they see as politically motivated legal tactics to convince their base that legitimate legal process, like the Mueller investigation, are nothing more than cynical sour grapes on the part of Democratic losers. Calling for the subpoena of Trump's interpreter in Helsinki plays right into their hands.

Wednesday, July 18, 2018

A few cautionary words on behalf of accused Russian agent Mariia Butina

I rise to speak on behalf of - but necessarily in defense of - Mariia Butina, the Russian political science graduate student now in federal custody, standing accused of having failed to register as an agent of the Russian Federation as well as related conspiracy charges.

I am motivated less by my belief that Mariia is innocent of the charges levelled against her, than by a desire to push back against the rising tide of 21st-century red-baiting that has enveloped this country. In particular, I am troubled by the fact that the people egging this phenomenon on are blind to the kind of repercussions that may lie in store.

For those who haven't been keeping up with the details of Mariia's plight, she was arrested Monday for her failure to register as a Russian operative. The activities that she engaged in while failing to register include cozying up to the National Rifle Association in an effort to create a back channel of communications between influential Republicans, notably members of the Trump administration, and Russian counterparts.

First, it should be noted that creating a back channel of communications, in and of itself, in no way constitutes a crime. In other contexts, it goes by the name "diplomacy." But, if you're working under the direction of a foreign government, as appears to be the case with Mariia, you have to let the U.S. State Department know that that is your plan.

Of course, this kind of nuance will be lost on the American public, as the words agent and operative used to describe Mariia become interchangeable with spy. Perhaps other charges will be revealed that suggest what she did came closer to what we would label espionage, but, until they do, it's hard for me to see that Butina is guilty of endangering the national security interests of this country in any substantive way.

I should say, in my own defense here, I am well aware of the political context in which Mariia's indictment and arrest occurred. To me they were a demonstration that the National Security Division of the Justice Department, along with Deputy Attorney General Rod Rosenstein, had, maybe at Robert Mueller's urging, decided to fight back against Donald Trump's public disdain for U.S. intelligence agencies that he put so cravenly on display during his summit meeting with Russian leader Vladimir Putin earlier this week. In addition, there may be a possibility that Mariia will "turn" and provide the kind of evidence for collusion that Special Investigator Mueller is looking for.

So, you might ask, what's the harm? Butina is no ingenue and should have been aware that the job she signed up for with the Russian Federation carried with it some risks. If that's the case, her brazenness with how she conducted communications with her Russian handlers, suggests that she either did not care or had not been properly trained.

The harm lies not so much with Mariia, although having a young person sentenced to a lengthy term in a federal prison for getting in bed with the NRA hardly strikes me as fair. I would argue that having to attend two National Prayer Breakfasts in the course of her assigned duties here should constitute punishment enough. Frankly, I would prefer the slammer.

The real harm, just about to be played out in Russia, with the arrest of U.S. graduates students or American representatives of nonprofit organizations working there under the pretext that they are operating as unregistered agents of our government or some similar trumped up charge. Russia hardly needs any encouragement to imprison foreigners working there on behalf of human rights or press freedom and we have just handed them a bushelful.

If we're lucky, this exchange of pawns in our current geopolitical struggle with Russia will end with a prisoner swap involving Mariia and an American counterpart who is just now about to be arrested in Moscow or St. Petersburg. If we're not lucky, a lot of innocent people will be caught in the crossfire, and the already difficult humanitarian work in Russia will be brought to a screeching halt.

After all is said and done, although I appreciate the blow against Donald Trump that was intended by the arrest of Mariia Butina, in particular by its timing, I believe, in the greater scheme of things, it will prove to have been misguided, resulting in few tangible political benefits and, perhaps, a number of ruined lives.

Tuesday, June 26, 2018

Punching Nazis and brunching Nazis: what's a resister to do?

I weighed in on the debate about whether it was okay to punch Nazis in the face around the time that white supremacist Richard Spencer was cold-cocked while giving a sidewalk speech on the heels of his infamous "Hail, Trump!" moment during the president's inaugural festivities.

I said then, and I say now, that I thought it was a bad idea to encourage individuals to take the use of violent force into their own hands for any number of reasons. First and foremost was the recognition that force should only be used as a last resort in any situation. Indeed, the use of force should be an overt admission that peaceful remedies have been exhausted.

So far, the democratic process in this country is still alive, although, admittedly, not entirely well. It's certainly not so debilitated yet that we must turn to some sort of vigilante justice in order to accomplish political change. In spite of gerrymandering and voter suppression, we are still obligated to seek redress through the electoral process.

What troubled me most about the calls for punching out Nazis wherever one might find them was the utter naivete of the recommendation. The people who would have Nazis and others like them punched imagine that, when struck, they would simply fall to the ground and that will be the end of that. "Yay us," as they say.

But the reality is that the introduction of the use of force into an already heated situation is often the beginning of an escalating spiral of violence which may lead to a brawl and, if guns are drawn as they very well might in such circumstances, uncontrolled shooting into a crowd. The severe injury or even death of innocent passersby would be the price to pay for encouraging people to demonstrate their outrage with the use of their fists.

In addition, by implicitly deputizing anyone with a grievance with fascists to punch away, we are allowing that person to determine - only by their lights - who makes for a deserving target and what amount of violence they are permitted to apply in their quest for vigilante justice. Is this something we would really want?

Ethically speaking, when we advocate for a certain kind of behavior we are responsible for anticipating and weighing likely outcomes when others follow what they believe to be our well-considered advice. Crying out, "collateral damage," as the dust settles doesn't excuse us from responsibility for consequences that could have been easily foreseen and avoided. Blood that results from our encouragement for punching is, at least in part, on our hands.

This kind of analysis brings me to the consideration of the controversy of the day, the ethical question surrounding the decision not to serve high-level Trump administration officials, such as Sarah Huckabee Sanders, at a restaurant.

The debate has been labeled one about incivility in public life, but I don't feel that that accurately characterizes all the behaviors under consideration. Perhaps the word does apply to aggressive badgering and in-your-face harassment. They are tantamount to acts of violence in my opinion.

Here I'd like to focus on the question of whether a personal choice to deny someone a commercial service constitutes uncivil behavior. To ground my position ethically, I would emphasize that I believe that your labor and your services are fundamentally yours to either offer or to withhold as you see fit. Any regard for personal autonomy demands as much.

(I'll note in passing that denying emergency services to anyone for political reasons would be ethically reprehensible. Suffice it to say, recognizing this, Geneva Conventions long ago mandated the appropriate medical care of enemy combatants.)

This does not mean that your deciding to withhold your labor is without consequences. Your boss could very well fire you for declining to do your job. Likewise, you could run afoul of laws on the books that require your business, if you run one, to serve people who are members of groups which have traditionally been discriminated against. Ironically, in this case, your act would be described as one of civil disobedience, although I feel a misguided one. That said, you could also suffer civil and criminal penalties as a result.

Now it's up to each of us to decide when to deny service to a party for what we consider morally objectionable behavior. Who else could make that decision? Some people may want to draw the line at serving a county commissioner who has voted for a property tax rate increase for example. That's their prerogative, although it probably means that finding long-standing gainful employment may be a struggle.

But sometimes the transgression of the service-requesting party is an affront to universally held human norms, for example participating in the implementation of a policy that forcibly separates children from their parents at the U.S.-Mexican border. As I have written elsewhere, this behavior is so egregious that it constitutes a crime against humanity, one which, I hope, will catch the attention of the International Court of Criminal Justice someday soon.

In these circumstances, your withholding service not only may be ethically permitted, it may be ethically recommended. This of course depends on one's personal situation, namely what the impact of such a decision might as a result of loss of employment. There may be mortgages to pay and mouths to feed, after all. We have a word for people who, after deliberation, are willing to take the hit demanded by such moral action; they are called heroes.

It's useful to recall that the people who led and participated in the 1955-56 Montgomery bus boycott, were actually prosecuted for their "uncivil" behavior. They were accused of promoting a disruption of the public order, this for simply deciding how *not* to spend their own money. That boycott still serves as a prototype for how individuals can use their personal choices in the commercial sphere to effect social change.

I'll close by applying the consequence-based analysis I offered above to my argument here. Yes, indeed, I would encourage people to consider withholding their services from a person whom they believed was involved in a process that amounted to a moral crime.

And what about the consequences of encouraging this kind of behavior? One consequence would be salutary, leading, as in the case with the Red Hen restaurant that refused service to Sarah Sanders, to consultation between managers and employees about how to address important ethical questions of the day. That seems like a good thing to me. Of course, the rejected customer would have to go elsewhere for their meal. Perhaps they would even take the opportunity to reflect on what they had done to provoke the situation, although this is hardly something we could count on.

And finally, I'll say that I would welcome having the tables turned on me as far as such so-called uncivil acts go. I very well might find myself one day a prospective customer in a restaurant whose owner or employees find my positions on, say, LGBTQ rights or women's access to reproductive health care morally repugnant. How would I feel if I were turned away?

Honestly, I'd feel as though I had been done a favor. I'd feel as though I had been been prevented from giving my money to people who oppose the things I hold dear. I would thank the restaurant and its staff for letting me know where they stand and take my business elsewhere. With pleasure.