10 July 2020

Feet of Clay, Brains of Clay, and Honoring the Founders

There is a fundamental problem with current discourse on this nation's history, particularly among those overinfluenced by both evangelical protestantism and one-true-church-means-no-differences-allowed catholicism. Which, unfortunately, seems to be the majority of both history textbook editors and elected officials…

That problem is this: Honoring individuals for outstanding achievements is not the same thing as holding those individuals up as role models for everyone to follow in every aspect of their lives. Anyone who thinks otherwise, umm, misunderstands "sainthood." Obvious example: Saint Peter's faith was shaken; more than a few former tax collectors reformed themselves to become not just saints, but disciples; and then there's Saul who became Paul. If you'd like a less-inflammatory example, let's consider the Baseball Hall of Fame, where alcoholic flaming asshole and racist Ty Cobb has a statue — but there's not one word about removing it (which says more about baseball fans than they're generally willing to acknowledge). I've known several Medal of Honor winners (part of the price of a tour as a protocol officer in DC), and some of them were… not appropriate role models, despite their undoubted achievements.

The key issue when dealing with people of the past who had feet, and often brains, of clay is to put their achievements in context, and in particular consider whether their objective (however imperfectly achieved) is/was a worthy one. Senator Duckworth's call for a dialog is exactly what should be happening. The irony that Washington has been put forth as an exemplar of someone who may need fewer statues than he has — when that is precisely what Washington himself would counsel, and indeed he'd be appalled by the hagiography and iconography; just actually read his speeches as President! — has escaped those who worship the ikons and don't know the concepts. Conversely, it is also a more-than-sufficient rationale for removing Confederate iconography: Their objective was treasonous, making their achievements suspect at best.

Because heroes have flaws. They're people. Expecting perfection is a guarantee of disappointment, especially given that history is written by the winners — and rewritten every generation thereafter by the winners in those generations. That's not to say that some "heroes" can't, or shouldn't, be reevaluated right out of herodom; rather the opposite. I would start with more than one of my commanders in chief; others would start elsewhere.

I will make no sarcastic remarks about doctrinaire ancestor worship and its place in comparative religion or socioeconomic development. Other than this one. One of my heroes — Eric Blair a/k/a/ George Orwell — was not exactly free from either overt sexism or borderline misogyny in either his personal life or his writings, nor of a stubborn unwillingness to learn in areas outside his personal experience (like Keynesian economics and their implications for both wartime Britain, and Airstrip One's structure); and the less said about the sciences, the better. That doesn't take away from the achievements of "Politics and the English Language," "Inside the Whale," "Why I Write," Animal Farm, 1984, and other literary works. It does explain why I wouldn't put a statue of him on my front lawn (if I had a front lawn), though.

So, let's just not overdo it. And, conversely, we should listen to others who think we are overdoing it… because we just might learn something.

09 July 2020

Justice Delayed

I'm not going to lead with my idiosyncratic take on the Court's end-of-term decisions this morning. There's something much more important to write first relating to much-farther-reaching implications for the conduct of government, and perhaps for the survival of the Republic.

09 July 2020

to    Hon. Ryan D. McCarthy, Secretary of the Army

        Gen James C. McConville, Chief of Staff, United States Army

info Hon. Mark Esper, Secretary of Defense

        Hon. Sean O'Donnell, Inspector General (Acting), Department of Defense

        Gen Joseph M. Martin, Vice Chief of Staff, United States Army

        Lt Gen Thomas Seamands, G–1 (DCS Personnel), United States Army

re    Systematic Leadership Failure

Dear Sirs

I am terribly disappointed, but not terribly surprised, at the leadership failure at senior levels of the Department of Defense and United States Army in allowing the intimidation, bullying, and loss of service to the nation of an officer selected for promotion who did his duty. In his own words, he will be fine; but the question shouldn't even come up. I am less confident that the nation and the next generation of military leaders will be fine.

It is your job to ensure that those who are qualified for promotion to more-senior positions are promoted, free from outside interference. You have not succeeded in that tasking. Each of you must consider exactly what that means to the officers of today and of tomorrow. Each of you must further consider the permanent damage to the oath of commissioning — that one's duty is to support and defend the Constitution of the United States against all enemies, foreign and domestic — that this fiasco has done and will do in the future. Each of you must consider whether orders you have been given (however couched) regarding this matter are lawful, and how to respond personally to those orders. Each of you must consider what the treatment of Lt Col (P) Vindman — ratified through your silence — will mean to those who later must choose whether to speak truth to power outside of a combat-imminent situation.

Each of you must also consider a significant structural reform to the Defense and Army personnel systems, and advise the other services of your considerations and conclusions. There is no place for the insult of so-called "rehabilitative assignments" for commissioned officers. Commissioned officers, by definition, have the special trust of the institutions of the Congress and the Presidency — if not always of specific individuals holding those offices. The term "rehabilitative assignment" (and any synonyms) disgraces both that special trust and the oath itself. It is fundamentally dishonest to pretend that political friction will not occur, and that such friction cannot result in career casualties. It is at least equally dishonest, however, to pretend that any "rehabilitation" can be accomplished by a later demonstration of super-loyalty by an individual accorded the special trust of a commission, let alone in the field grades or as a senior officer (with the individual confirmation of promotion by the Senate involved). Burying the "disloyalty" under a more-recent glowing performance report is at best counterproductive, and reflects a fundamental failure of the personnel system to match capabilities with responsibilities. The personnel system should not, and in the long run cannot, tolerate this, and needs to reform its traditions, its structures, and its attitudes. That none of the services have done so since those shameful hearings in 1986 reflects poorly upon both the services themselves and the integrity of those responsible for them.

Sincerely,

A Citizen (who took that same oath)

The Vindman fiasco is linked directly to all four decisions of the Court this morning. The overt common theme is the difference between stated limits on the power of an office or person in the Constitution and the practical ability to evade those limits, particularly for personal advantage. The less-obvious common theme… we'll get there.

The two opinions on "The Res" can be discussed quickly, precisely because the class of persons directly affected is… not in the public view. McGirt (No. [20]18–9526 (PDF, Gorsuch 5–4)) held that the parts of Oklahoma set aside for the Creek Tribe by nineteenth-century treaty remain "Indian country." And that has consequences: Certain enumerated crimes, including (as in this instance) certain sex offenses, allegedly committed by enrolled Tribal members in "Indian country" cannot be tried in state courts, but must be tried excusively in federal courts (or, depending upon certain other circumstances, tribal courts, but that doesn't appear to be at issue in McGirt). McGirt himself has been protesting that the State of Oklahoma had no authority to try him in its courts — which, being polite after having been stationed there, are not renowned for their evenhandedness — and wants a federal retrial. Justice Gorsuch for the Court "hold[s] the Government to its word," and agrees that McGirt was not subject to state-court proceedings. This does not mean exoneration per se; it means retrial, in a court with actual jurisdiction, after further delay.

Things began to get murkier a few minutes later, though, as Vance (No. [20]19–635 (PDF, Roberts 5–2–2)) was announced. Chief Justice Roberts held that grand jury subpoenas for certain documents concerning the individual currently holding the office of President of the United States were not categorically improper… and sent the matter back down for further consideration by the courts below, with some guidance on what to consider. Which will mean at least one more set of appeals, and probably two: One for determining whether the subpoenas are proper under the rubric announced today, and one further when that individual and/or a family member demonstrates the contempt in which he or she holds the judicial system by refusing to comply.

The murk became sticky center-channel silt and mud after another few minutes when Mazars (No. [20]19–715 (PDF, Roberts 7–2)) was announced. The structure of the opinion is similar, as is the reasoning: Congress does have the right to issue subpoenas for records like these, but there needs to be a more-specific showing of need preceded by at least an attempt at a "negotiated solution" between the branches of government before entangling the courts in a fight between branches of the government. In particular, the Court admonishes the House to both ensure that it has exhausted all other ways of obtaining the materials it needs for its legislative purpose (slip op. at 12) and to consider more creative options than blanket turnover of materials (slip op. at 9, a particularly pointed suggestion in this context). The end result is that the House has the theoretical power to demand these documents, but must engage in the equivalent of "administrative exhaustion" before involving the courts with subpoena enforcement.

In the eyes of the guilty (or even just self-doubting) defendant, justice delayed is justice. That's what we've seen here. Justice for Lt Col (P) Vindman will require "rehabilitation" (and waiting for the system to admit it was wrong); Mr McGirt gets to be retried; the individual holding the office of President gets to keep his papers to himself for longer, realistically until after the November 2020 elections (more probably until not earlier than March 2021, and with decent litigation strategy a year after that).

And so it goes.

08 July 2020

Nondiverse Link Sausage Platter

If there's one common spice across this platter, it is reflections on a lack of diversity and how that's self-defeating.

  • From the Department of Ignoring Inconvenient Facts, consider this piece on the "novel of ideas" as a gimmick. (In that magazine, "ignoring inconvenient facts" is rather an editorial requirement.) Dr Ngai's article attempts to treat the "novel of ideas" as sui generis, ignoring the inconvenient histories of the utopian/dystopian novel, the Continental satire epitomized by Voltaire, and similar factual predicates long preceding either "the last decades of the nineteenth century" or any of the examples actually cited in the article, with the exception of a passing reference to Tristram Shandy. What really gives away the game, though, is the not-quite-acknowledged redefinition of the "novel" to mean a "realistic" work; this is immediately apparent in discussion of Broch's Elizabeth Costello and the veiled disdain for the "supernatural" elements in Mann's The Magic Mountain. All of which explains the absence of magical-realist works from the discussion, but that's for another time.

    The real problem with this magazine piece — and I have not read the book in question, as it's not exactly easily available in lockdown for a casual read — is that the editorial work probably disserved Dr Ngai's book. The mid-article "section break" appears to mark omission of critical transitional and contextual material… quite possibly in service of The Paris Review's from-day-one hostility to prose unbounded by naturalism and realism, as exemplified by the magazine's reviews (when they have been printed at all!) of works even verging upon the speculative element — all the way back to the 1940s and as recently as three years ago.

  • Much more overtly concerning a lack of diversity, AMPAS is adding a more-diverse new set of members. What AMPAS is not doing, though, is constraining the publicity-and-marketing branch, which is both the least-diverse branch and the most hostile to diversity. This is the branch that demands that women stop working in front of the camera in major roles between 35 and 50 because it's harder to market them as sex-thingies instead of, say, real people; that whitewashes through its efforts to make things more "broadly appealing" (usually on the phone or in other ways to avoid taking the blame for that pressure); that values doing it brand new but all over again (just bigger this time). It also gets to vote on the Oscars despite having no legitimate role in the film production process.
  • Or you could just consider the dubious science and history of population genetics and its founder. Doing so in an intelligent fashion, though, might require some knowledge of actual genetics… and Stalinism (Lysenko was a symptom).
  • Ponder this remarkably tunnel-visioned piece on the lack of major superhero films being released during COVID–19 restrictions that never engages with three fundamental flaws in the superhero narrative. The common superpower of virtually all superheroes is independent wealth. Virtually all superheroes substitute naked physical force for actual problem-solving, all too often focused with laser vision on symptoms and not problems in the first place. Worst of all, superhero stories rely upon the passivity and impotence of almost everyone who is not a superhero concerning the problems and/or symptoms forming the narrative McGuffin in the first place. And too often, superheroes are just playground bullies (but they're our bullies, so that's acceptable… sort of like supporting banana-republic dictators who proclaim that they're anti-communist, and how well did that work out in, say, Iran?). There are occasional exceptions on one axis, rare exceptions on two axes, but the comics world — and, with rare exceptions, superheroes are embedded there — doesn't presently allow denying all three (at least to my imperfect knowledge, but not for lack of looking). This lack of imagination in a literature of the imagination is rather frustrating.

    Some day, some enterprising sociology dissertation is going to study this sort of thing, looking at not just the superhero stories themselves but the creators. Look! Free dissertation fodder! I've done my public service for the day!

  • Sometimes literal translations aren't good enough; it's impossible, for example, to accurately translate schadenfreude into English without, at minimum, a paragraph or so. Denotation is relatively easy; connotation, not so much. And thus we come to a headline like „Der Präsident liest!“ which is remarkable for its implicit answer to a question not asked. The reporter's question turned on whether Drumpf did read the briefing materials that described "bounties." This quotation, though, implies that the Press Secretary was affirming that he could read the briefing materials… a disturbing counterpoint, perhaps in a minor key, to the implications of Dr Mary Trump's book.
  • Last for today, but far from least: It's a good day to be a religious bigot, based on today's Supreme Court opinions. The problem is not with these particular litigants, or at least not so much with these particular litigants; it is with the implications of saying "Religious Doctrine Is Special" and excuses discrimination in employment of non-policy-making teachers (PDF) and imposing religious orthodoxy on all employees for their health needs (PDF), not just on these facts but as core doctrine allowing much worse actors to evade law and justice.

    This, again, comes down to a lack of diversity. There are no members of the Court (and, to my knowledge, never have been) who are not Judeo-Christian, let alone outright atheists; and virtually no scientists (although in that regard the Court differs little from the judiciary in general, and even the Bar as a whole). The few immigrant members of the Court in its history have had no experience living in (or being professionally involved with) theocracies, and thus have no visceral or direct experience to draw on in understanding how theocracy is just another brand of totalitarianism (and thus inimical to the Constitution). And more to the point, the Court and its jurisprudence have elided any distinction among "religion," "religious doctrine," and "religious hierarchy and governance," a rather interesting and disturbing pretense. It's an argument I've lost, long ago; I regret perhaps most of all that it's an argument almost never considered.

    One problem here becomes more-easily discussed when considering less-emotional clashes. What right would a Jewish or Muslim business have to object to a bacon-curing plant next door that had successfully passed all environmental requirements — even was a model plant? More directly, here, would that Jewish or Muslim business have a right to fire one of its employees who chose to marry an employee at (or even the owner of) that bacon-curing plant? My point here is not to equate the (without any semblance of contemporary scientific basis) doctrinal dietary restrictions with any (without any semblance of contemporary scientific basis) doctrinal sexual and/or contraceptive restrictions; it is to point out that doing so is a matter of theology and therefore not for the courts. However, Little Sisters II in particular doesn't just tolerate that intrusion — it requires it, unless one accepts that religious doctrine (as opposed to individual faith) has independent standing and basis for noncompliance with laws of general applicability (that do have contemporaneous scientific basis). That, I'm afraid, is something that a long line of cases stretching back for a century denies, either directly or implicitly.

    The danger here is not in a Catholic school system's desire to have its teachers (even those who teach no, or virtually no, religious material or doctrine) be "role models" for students, or in ensuring that a sub-sect's interpretation of doctrine regarding health insurance is "respected" by secular authorities whose purpose is different (and arguably orthogonal). The danger here is in the return of overt discrimination justified by "religious" doctrine. Little Sisters II and, even moreso, Morrisey-Berru are steps away from actual neutrality, for a very simple reason: The faithful must live in the world and accommodate their actions to it, and that has a price. "Free exercise" does not mean (and cannot mean) "free of charge," particularly in light of the rest of the First Amendment. More succinctly, freiheit ≠ kostenlos — especially when externalizing those costs.

06 July 2020

Droopy Monday Link Sausage Platter

It's Monday. All week.

  • My proposed new name for the NFL franchise located in the nation's capital: The Washington Ruskies. It keeps the same initials, is consistent with the existing color scheme, and continues the theme of the oppressor lording it over the oppressed. Plus it might get some dumb corrupt Russian oligarch to buy out the current majority owner, which would probably be an improvement over an advertising executive.
  • No word yet on the end of the Supreme Court's term, despite two decisions today.

    An unremarkable result demonstrated that being a great brain about the law doesn't indicate having a great brain for strategy. The Court held in two separate opinions (both PDF) that states do have the power to sanction "unfaithful Electors." In this context, "unfaithful" means "voted differently than pledged to based upon the popular-vote outcome in that voter's state." While unremarkable — the result is essentially compelled by the Constitutional text, and yet again nobody cites Bush v. Gore — it's important because it implicitly questions the viability of interstate pacts to reify the national popular vote (since states cannot enforce against another state's unfaithful elector). Strategically, a constitutional amendment would be better; it could abolish the Electoral College in one section, mandate a right to vote except while confined for a felony in a second section, directly constitutionalize the Voting Rights Act in a third section, and deal with other barriers to voting in a fourth. Yes, getting a constitutional amendment passed is hard and calls on non-lawyer skills; on the basis of these opinions, so does winning in constitutional litigation on voting rights.

    The third decision issued this morning rejects robocalling exclusions for collecting government debts (PDF) because by making that particular content-based exception, the exclusion violates the equal protection for political speech. (Because PACs want to robocall you!) This opinion is much more important for its severability analysis than anything else… and bodes ill for those trying to kill off the ACA.

    Left to come: Drumpf's tax returns, church/state separation, and whether the eastern half of Oklahoma is properly considered part of The Res. So, nothing all that significant.

  • An administrative law opinion on immigration pointed out that there was nothing to administratively interpret. In East Bay Sanctuary Covenant v. Barr, No. [20]19–16487, a panel of the Ninth Circuit rejected the Drumpf Administration's rule requiring asylum seekers crossing from Mexico to apply first for asylum in Mexico or on their travels here because that rule is inconsistent with the statute. That is, there's no deference to an agency interpretation of the statute because there's no ambiguity in the statute to interpret. Perhaps more damningly, adoption of the rule also violated the rules for making rules.

    This is the kind of easy case that can make bad law… indirectly. It encourages nativist lobbying (although one wonders who gets to be a "native" in light of that forthcoming opinion regarding the Eastarn half of Oklahoma!) to further bollix up the Immigration and Naturalization Act. For the present, though, it's a fairly direct rejection of "I am the State."

05 July 2020

Once Again, Merely Giving the King the Finger

…probably one of those blown off in home fireworks "celebrations" by people improvising in the absence of professional displays while one or more of (a) drinking, (b) refusing to read the f*cking manual, (c) under twelve (and therefore even more convinced of personal invincibility), (d) not completely cleaning off alcohol residue from hand sanitizer, or (e) notwithstanding anything else, being a candidate for a Darwin Award.

And it's the wrong bloody day anyway.

The birthday of the United States of America is 17 September 1787. That's when something was built. Plus, by mid-September dusk is early enough that kids, combat veterans, and animals won't be kept up all night recovering from the noise. <SARCASM> But that's mid-harvest so eighteenth-century farmers never would have agreed to it, and therefore we can't have it. Sort of like Iowa continuing to be the first Presidential primary; despite Iowa looking nothing like the rest of the nation, it gets to speak first. </SARCASM>

But even if you want to celebrate a "declaration," and demand keeping 1776 (which was about two years after open rebellion started and about seven years before British retreat), 04 July is the wrong day. You could choose from among 07 June, the introduction of the Lee Resolution; 02 July, the adoption of the Lee Resolution, based on the draft of the document that became the Declaration; 05 July, when the Declaration was entered into the journal of the Continental Congress as a "real thing" and distributed elsewhere among the Rebel Alliancerebelling colonies; 08 July, when it was formally sent to the Crown; 02 August, when the Declaration was actually signed; 10 August, when the news reached London; or approximately 10 November (accounts vary), when an official copy finally reached George III after an earlier copy was lost in transit.

So this nation doesn't even declare Mission Accomplished on the right day. No surprise, then, that we're fumbling the response to a real national crisis. Maybe we should declare 01 May… naaah, that's a celebration of international labor, and the plantation-owning class can't have that. Nor give a thought to what many veterans (I'm fortunate, it doesn't bother me) think of fireworks noises… especially as a "celebration" of something for which they've been shot at…

02 July 2020

Not So Anonymous

<SATIRE>

Hi. My name is [redacted], and I've been unjustly accused of being a Karen.

Hello, Karen.

See? That's exactly what I mean.

I can't help it if I have family wealth that I didn't earn. It really doesn't matter if I inherited it, or married it, or continue to leach it off my still-living relatives. What matters is that I've got it, and I'm in the top 10%, and that makes me one of what this country was made for. I'm exceptional. I'm the customer and therefore I'm right, even if there are other customers being inconvenienced so that you can meet my needs and whims. Even when playing with my dog in my park and I'm not technically a "customer," you must defer to me.

I not only want the pony, I've got the pony, and I deserve the pony. Disney princesses like me are entitled to our status (even that stupid "detective" Mira, and why is she some uncivilized foreigner anyway?). Greed is good, and our Christian God shows his favor by showering prosperity upon the deserving righteous. We know that we're deserving and righteous because we have the money. Even you morons who went to pathetic public schools should understand that the opposite is true, too: By showing that you care about something other than your own money and status, you're demonstrating that you're worthy of neither and certainly not worthy of taking or interfering with any of mine.

I'm tired of the whining about how my family got its money. Slaveholding, sweatshop-owning, drug- and gun-running, loansharking, brothel-keeping, draft-dodging, tax evasion, union-busting, whatever — they're all in the past, and none of them have anything to do with me. They especially don't have anything to do with me because I didn't do any of those things myself, and anything I own now that did (or does) has enforceable contracts to do it anyway. That "job" I have is just to keep busy while the other wealth accumulates; I don't really rely upon it, and I expect to get a better-paying one very soon because I deserve it.

I'm tired of the whining about how tough you have it. I have to pay my kids' private-school tuition, too. I shouldn't be expected to sacrifice my lifestyle for the ungrateful little rugrats. In fact, I can't, because it would betray my family's values. My (or my husband's) ancestors would roll over in their graves if I did. And that would disturb the feng shui in the family tomb, which is just not acceptable.

Just go away. I haven't done anything wrong, and there isn't going to be a first step or eleven others. I'm sure as hell not doing step eight. Ever.

</SATIRE>

Somehow, I don't think an intervention is going to help "Karen." At least not one that refrains from cake and barricades.

28 June 2020

Potentially Overloaded Link Sausage Platter

Sometimes it's almost not worth trying to do a link-sausage platter, if only because including everything I want would look like a 20m-long buffet and not just a platter. During the Year of the Virus, buffets will be right out.

  • As a further demonstration that the un/undereducated right wing is incapable of recognizing reflexiveness — and the irony that a purported expert on Chicago city politics can't recognize the pot calling the kettle black (pardon me, "natural cast iron" due to this commentator's insincerity and insensitivity) is too much to tolerate even if I was fully caffeinated — consider this column by a Chicago Tribune columnist who is so far beneath contempt that I refuse to name him. He claims that the purported Thought Police of the American [center-]left (there really isn't an organized American "left" — the most "progressive"/"liberal" organized groupings are center-left, including the American Greens) will get anyone suppressed who dares criticize anything. Meanwhile, this ignoramus who continues to rely upon an extensive private phone book, anonymous/pseudonymous sourcing often from parties with their own agendas even when they have legitimate information, utter failure to look at what is being responded to, and a screeching historical disdain for non-Christians, for the disabled, for anyone who values education over football, and for military veterans who dare to display any leadership effort that is not entirely consistent with BGen Jack Ripper hasn't been cancelled. Yet. It's obviously going to take another change of ownership at the Trib, together with wider recognition that Reaganism (especially NancyReaganism) was not the quasiparadisical promised land (especially without the manna).

    I didn't know Mike Royko, but I knew some who did, and I read his column when living Back There (even the dubious Slats Grobnick material). This — person — is no Mike Royko. Not even in his focus on the actually corrupt nature of Chicago politics. But then, my car knows about that; it bloody well better, it's probably already registered to vote there (it turns 18 on 03 September).

  • Some further news demonstrating that having more money doesn't mean one is self-confident and/or perceptive enough to avoid obvious fraud: Consider the arrest of various art experts for art fraud this week. Leaving aside for the moment the kind of financial resources one must have to become and survive as an "art expert," this also strikes at one of the fundamental — perhaps insoluble — problems in the arts: Provenance and reproducibility. But that's a long theoretical discussion for another time that mixes inherited wealth, class, cultural imperialism, and technology far too tightly for a Sunday morning. Or for a Sunday matinee performance.
  • Which leads to the related problem that not all music piracy is the same… and some of what is accused of piracy isn't. Again, this leads into way too much theorizing about the arts for precaffeinated Sunday; we're not even talking about "bards versus troubadours," but something deeper. And, in the end, equally wound up with inherited wealth, class, cultural imperialism, and technology.
  • Late-breaking news bulletin (from 198x): SovietRussian intelligence apparatchiks accused of issuing bounties for killing of US personnel in Southwest Asia. Color me Entirely Unsurprised (which is not in the current Crayola-approved 128-color palette; but then, neither is Flesh, at least not any more).
  • Meanwhile, the Supreme Court's 2019 Term is slowly winding down, albeit without any clear end date. It is possible — extremely unlikely, but possible — that the Court could dispose of or formally defer for reargument all thirteen remaining matters tomorrow and Tuesday, allowing the "traditional" term-end on 30 June to hold. That the Court has already scheduled a conference for Wednesday, 01 July, though, makes that extremely unlikely — even aside from the large number of opinions and substantive orders that would need to issue first.

    The one prediction that I will make is that the Drumpf finance case (Trump v. Mazars USA) and the abortion-restrictions cases (June Medical Servs. v. Russo and the converse, which were consolidated) will not be both decided with signed written opinions on the same day. They could both be deferred, perhaps on the same day; one could be deferred; one could be DIGed (dismissed as improvidently granted, which allows the lower-court opinion to stand without formally affirming it). But not full written opinions on the same day, especially since one was argued last month and the other argued months ago.

21 June 2020

Sundown-Too-Late-Tonight Link Sausage Platter

This public-service advertisement is brought to you by the government of New Zealand, which clearly presumes a much better education level and much better sense of irony on the part of its citizens than one can ascribe to "Real 'Murikans." And the actor is even wearing the (admittedly unofficial) Oklahoma state t-shirt! n.b. I was stationed there, and the news reports in the "real media" have revealed no change whatsoever. I continue to fear that, if I were to drive across the border, I'd be pulled over by state troopers with mirrored sunglasses (mirrors on the inside, naturally) and asked to consent to a search for contraband Doonesberry collections, on the basis of my anti-heffalump bumper stickers.

  • I'm shocked. Shocked, I say, to find rampant abuses of power in Donald's Palace of VersaillesTotalitarianism.

    Your consequences, sir. (two PDFs)

  • As I predicted, Lt Col Vindman is viewed by the Army promotion system as better than "just fine" and still unlikely to actually be promoted. But this administration couldn't spell "unlawful command influence" if spotted the first twenty letters. Hell, it couldn't spell "DOPMA" if spotted the first four, so I shouldn't be surprised.
  • The arts world has problems with its legacy of racism, sexism, and classism. Consider, for a moment, the longstanding tradition in American publishing of paying authors twice a year, about three months after the close of the "royalty period" (meaning up to nine months after the publisher has gotten the money). Historically, there's only one kind of "payment" that has been semiannual and based on old data in the US: Interest on corporate and municipal bonds, which (especially prior to the late 1980s) were held almost exclusively by either well-heeled white men or investment funds managed by well-heeled white men. It's not just publishing, either; it's perhaps even worse in visual arts.

    The fundamental problem here is that "the arts" are not viewed as appropriate productive activity for the great unwashed by those who already have excess capital to spend on the arts. With the rare exception of so-called "professional athletes," there are multiple barriers and presumptions built into the system to make it virtually impossible throughout entertainment for anyone not in the 1% of "entertainment" to exist in the basic economy as full-time individual entertainers. And sometimes even that 1% runs into problems.

  • The rest of the sports world is inconsistent. Sometimes they get it, and even overcome ruling-class bias. Most of the time, though — not so much. Leaving aside that "golf" is a four-letter word, I know all too well about "private golf clubs" and their "members," and even not-so-private clubs like the one that purportedly hosts the top US golf tournament (for men only, naturally). And there's that coded class bias again: Given the cost of equipment, practice, memberships, etc., exactly what type of individuals can realistically expect to be among those "amateurs" to be developed? Certainly not Jim Thorpe (which, in a not-at-all-surprising bit of circularity, sends us back to Oklahoma again).

17 June 2020

Damage to the National Security

So, then, what "classified information" might be in Mr Bolton's book? I suggest first understanding what "classified information" is — and is not. As an aside, the remainder of the US government gives at least lip service to this as authoritative (references too numerous to track down during Phase II "reopening," with the nearest depository library both closed and 100km away).

1. CLASSIFICATION POLICY

a. Information shall be classified only to protect national security. If there is significant doubt about the need to classify information, it shall not be classified. Unnecessary or higher than necessary classification is prohibited by Reference (d).1 Information will be declassified as soon as it no longer qualifies for classification.

b. Classification may be applied only to information that is owned by, produced by or for, or is under the control of the U.S. Government. Information may be considered for classification only if its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security and it concerns one of the categories specified in section 1.4 of Reference (d):

(1) Military plans, weapon systems, or operations (subsection 1.4(a));

(2) FGI2 (subsection 1.4(b));

(3) Intelligence activities (including covert action), intelligence sources or methods, or cryptology (subsection 1.4(c));

(4) Foreign relations or foreign activities of the United States, including confidential sources (subsection 1.4(d));

(5) Scientific, technological, or economic matters relating to the national security (subsection 1.4(e));

(6) U.S. Government programs for safeguarding nuclear materials or facilities (subsection 1.4(f));

(7) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security (subsection 1.4(g)); or

(8) The development, production, or use of weapons of mass destruction (subsection 1.4(h)).

c. Information assigned a level of classification under Reference (d) or predecessor orders shall be considered as classified at that level of classification despite the omission of other required markings.

2. CLASSIFICATION PROHIBITIONS

a. Information may not be classified, continued to be maintained as classified, or fail to be declassified in order to:

(1) Conceal violations of law, inefficiency, or administrative error.

(2) Prevent embarrassment to a person, organization, or agency.

(3) Restrain competition.

(4) Prevent or delay the release of information that does not require protection in the interests of the national security.

b. Basic scientific research and its results may not be classified unless clearly related to the national security.

3. LEVELS OF CLASSIFICATION. Information identified as requiring protection against unauthorized disclosure in the interest of national security shall be classified Top Secret, Secret, or Confidential. Except as otherwise provided by statute, no other terms shall be used to identify U.S. classified information.

a. Top Secret. Top Secret shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the OCA3 is able to identify or describe.

b. Secret. Secret shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the OCA is able to identify or describe.

c. Confidential. Confidential shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the OCA is able to identify or describe.


1. Executive Order 13526, Classified National Security Information (29 Dec 2009).

2. Foreign Government Information.

3. Original Classification Authority.

1 DoDI 5200.01 (pdf of typescript), DoD Information Security Program: Overview, Classification, and Declassification (24 Feb 2012) Enc. 4 at 40–41 (explanatory footnotes supplied, typography corrected to usages in DODR 5200.1 (1983 printed ed.)).

It's rather clear that the Drumpf Administration is channeling Edmund Blackadder when dealing with bad actors.

BlackadderWhite House Counsel: Oh, incidentally, Baldrickcitizenactorspublishers are very superstitious. On no account mention the word "Macbethclassified" this evening, alright?

BaldrickCitizen: Why not?

BlackadderWhite House Counsel: It brings them bad luck and it makes them very unhappy.

BaldrickCitizen: Oh, so you won't be mentioning it either?

BlackadderWhite House Counsel: No… well, not very often.

Nob and Nobility, Blackadder III (ep. 4, 01 Oct 1987) ("redline" edits supplied).

"Damage to reelection chances" doesn't fall inside of ¶ 3. And before shrieking that Hunter Biden is even relevant, consider the problems with son-in-law Jared Kushner's security clearance — it's very much the pot calling the kettle black in the world of black information, while ignoring that black lives matter (all possible puns intended, including the difficult and never-mentioned ones not really concerning domestic race relations). In over a third of a century, nothing has changed for the party that holds itself out as expert on "national security."

I know all too well what the "review process" looks like, from both sides of the desk. More to the point, I know all too well how common overclassification is, and have personally observed how it is used in practice to obstruct justice (notwithstanding ¶ 2b, which overrules ¶ 1b(4)). And further details remain… classified (notwithstanding the third sentence of ¶ 1a).

14 June 2020

Another COVID–19 Annoyance

It's bad enough that stores are poorly stocked with essentials. Whether that's from hoarding, logistical barriers, or production issues is really beside the point. I'm annoyed, though, that some marketing "geniuses" are making it even more difficult to maintain social distancing in stores with their endcaps and mid-aisle cardboard displays — and what's worse, seldom for essentials. There aren't endcaps or mid-aisle cardboard displays for flour, or baking soda, or even unusual cleaning products; no, they're for empty-calorie snacks and "Special Deal!" generic underwear and perfume. It's plenty difficult to keep two meters away from people in aisles averaging three meters or less in width, but when the walking space is made narrower — especially at aisle end, where everyone is turning to get to the next aisle — it's impossible.

And meanwhile, there are plenty of empty shelves where there isn't any rye flour, isn't any pasta, isn't any soup or ramen, isn't any pork that doesn't look unusually ill-trimmed. Plenty of space for the stuff stuck in the middle of the aisles.

So hats off to you marketing geniuses with no clue about store layouts, who no doubt order all of your groceries online and therefore never see the inside of a store… or, at least, never see the inside of a store that hasn't been specially cleaned up for your inspection visits and marketing consultations. It doesn't matter whether you're employed by the processed-food manufacturers, regional distributors, or stores themselves (corporate or local): You're all assholes for continuing something that was already annoying (just getting around the people stopping at the displays!) by deploying specific barriers. Literally barriers.

You're not helping, store managers, by not removing the displays, despite any "contractual obligations," and using your temporarily empty shelf space to enhance customer flow. Oh, wait a minute: You don't want customers to get through the store quickly, even though that's best for everyone's health; you want them to linger, hoping that they'll buy just one more thing with their steadily decreasing reserves of money, time, and health. Bugger off.

And shoppers: Don't walk side by side when we're supposed to be practicing social distancing. Especially when you're both — or all three of you! — paying more attention to your phones than anything else.

11 June 2020

Home-Cooked Link Sausage Platter

Diving face-first into this platter may be the only way to consume it. At least you won't have to tip the driver.

  • Even without contemporary blackface productions, so-called "legitimate theatre" remains racist, both on stage and off. Not to mention fundamentally ignorant of its ruling-class bias that extends far beyond race. "Cui bono?" indeed… and the less said about appropriation of "legitimate theatre" (disturbingly parallel to "real property," and largely to the benefit of the same people!) the less coffee I'll spew on my keyboard this morning.
  • This runs parallel to legitimate dismay (I fully intend the ironic dissonance with the last sentence of the preceding sausage) over the historical and contemporaneous discrimination in publishing. And as bad as that is with the authors, consider the infrastructure's problems. One might even argue that the racism is just an accident of class warfare, except that it's virtually impossible to separate the two, especially since they have been mutually reinforcing throughout history. Original position matters, albeit seldom in a good way and usually by being ignored… which is disturbingly parallel to BLM.
  • But original position doesn't matter enough. We've got a noble class without much noblesse oblige, whether temporal or faith-based. I challenge a good statistician to subanalyze those two problems against "inherited wealth." I do not have enough reliable data to determine whether the billionaires whose baseline made them top 2% are better or worse than the rest… primarily because there isn't a statistically valid sample of those who don't satisfy that description. Anecdotally, however, the worst miscreants seem to be the landed fortunes, epitomized at 1600 Pennsylvania Avenue. It's all too much like selecting a top military leader by holding a jousting tournament; which, come to think of it, doesn't sound all that different from current practice…
  • Speaking of which, congratulations Gen Brown, the first man of color to lead a US military service as Chief of Staff (we've got a loooooooong way to go before saying anything other than "man"). Now if they'd also mention that he's an AFROTC grad and not an expletive-deleted ringknocker, they'd get an even better look at both the problem and one of the sources of the problem.
  • I sneer at the whingeing of academics on job descriptions (pierced paywall via third-party reference) and misuse of their work, because every line officer knows what that feels like (perhaps, especially, Gen Brown with all the time he spent in Stan-Eval). Even the PBI, whose "additional" and/or "collateral" duties are Where the Action Is — and, frankly, far more likely to affect unit-level success (or failure) than yet another single-insignia officer "leading" yet another artificial training scenario while the NCOs do the actual leading. Not to start yet another "staff versus command" firefight (since both are essential), but take a close look at Gen Brown's history of assignments… and ponder that only staff officers ever ponder conflict causation and its relationship to employment of military force and achievement of military objectives. Commanders don't have the time or energy to do so, at least not if they're competent commanders; the burdens of command are too great, even in "peacetime."
  • Or, the flip side: What happens when you really are the smartest, or at least best-informed, guys in the room — and the room is otherwise full of financial "geniuses," trust-fund babies, and "political operatives." Although that's a worthwhile article with an interesting and detailed account, it misses the first cause in the name of chasing down proximate cause: The object of power is power, and if there's one thing that the real experts don't have it's the power to actually decide. That may be a good thing in some senses, but CDC is an example of extremes.

08 June 2020

Social Justice Warrior Link Sausage Platter

"The policeman isn't there to create disor[d]er, the policeman is there to preserve disorder." (Hello, police forces in 1980s Central Oklahoma: I remember you and your treatment of personnel under my command. Dah Mayah was understating your unofficial and close to official guidelines with a Freudian-slip truth, wasn't he? And the less said about the Chicago PD he left behind, the happier we'll all be.)

  • Before anyone forgets in the backlash to certain retired officers fulfilling their sense of duty, in a way that active duty and reserve officers cannot (due to potential criminal consequences): The commissioning oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic," definitely includes the Fourteenth Amendment with its promise of equal protection of the laws — a pretty good definition of "social justice warrior," if that ambition is actually achieved. We wouldn't allow George Floyd's treatment in the field in a foreign nation; we sure as hell shouldn't allow that at home.

    So if anyone is actually paying attention, that's approximately 225,000 active-duty social justice warriors ready for duty, based on end strengths for FY2019 (albeit improperly distributed due in large part to racist traditions at and arising from the academies), trained in leadership roles and the requirements of the Law of Armed Conflict, and ready for deployment for national security under the direction of command authority. Oops, there's the problem.

    I find it immensely enraging that LOAC requirements are more stringent and protective than US policing standards. And not just because there's no qualified immunity under LOAC.

  • On the other hand, military officers are seldom so directly impacted by self-aggrandizing assholish career politicians as are cops — at least not until they become relatively senior and seasoned. And this is in the form of an explanation — by no means an excuse — for inimical police union leadership unwilling to admit to error or embrace actual justice over technical legal compliance. The American political machine, especially as embodied in both Dah Mayah and Boss Hogg (which is to say, regardless of region, political party, jurisdiction size, or damned near anything else that one might expect to make a difference), has taught police unions (and other public unions like those for teachers) that nature abhors an abuse of power vacuum. So on the all too rare occasions that "management" and "politicians" leave an abuse of power vacuum in the first place, the union leadership rushes to fill it.

    I've seen cops denied promotions and outright fired for not properly deferring to elected officials and the otherwise-powerful — and that leads to the opposite practice. I've seen it in large cities, medium-sized cities, small cities and large towns, and largely rural areas. For forty years. You know what I'm talking about: The deputy mayor of {medium-sized city} who got a police escort home instead of a DUI ticket. The alderman who ensured that none of Those People were made watch commanders or above at any station in his precinct. The city governments that paid the police with vouchers during a liquidity crisis while drawing their own paychecks for part-time white-collar positions (yes, that B-line on Hill Street Blues in the 1980s was inspired by the real world). The president of the small-town Chamber of Commerce never even questioned about his wife's black eyes or his daughter's broken arm (not to mention the near-lynching of her different-ethnicity boyfriend, fortuitously unsuccessful only because the miscreants couldn't tie a secure knot). The deputy sheriff who refused to arrest a county councilman suggesting an armed march on, and violent confrontation with, the state legislature in opposition to "coddling" the "dirty" immigrants.

    Our politicians have taught the police unions how to take power and how to behave with it, and have been pretty consistent about it for the last couple of centuries. We shouldn't be entirely surprised that they've learned the same lessons as any other fraternity: Wait your turn and then you can be the one doing the hazing. And covering up afterward (with resumé–building thrown in for good measure).

  • Or y'all could just try listening to those immigrants for a change… before they become convinced that only "direct action" will result in change. Despite this being a nation composed of immigrants — especially regarding Manifest Destiny.

    It might be more accurate to say that this is a nation of actual and aspiring plantation owners, depending upon the shape of the plantation and whether the preferred afternoon drink is a mint julep, a carefully cellared aperitíf, or a culturally appropriated kombucha. But that would be telling.