Archive for the ‘Legal Matters’ Category

Much ado over nothing was made this past week regarding a technical glitch (or control room error) during the first of two televised Democratic presidential debates where one pair of moderators’ mics was accidentally left on and extraneous, unintended speech leaked into the broadcast. It distracted the other pair of moderators enough to cause a modest procedural disruption. Big deal. This was not the modal case of a hot mic where someone, e.g., a politician, swears (a big no-no despite the shock value being almost completely erased in today’s media landscape) or accidentally reveals callous attitudes (or worse) thinking that no one important was listening or recording. Hot mics in the past have led to public outrage and criminal investigations. One recent example that still sticks in everyone’s craw was a novice political candidate who revealed he could use his fame and impudent nerve to “grab ’em by the pussy.” Turned out not to be the career killer everyone thought it would be.

The latest minor furor over a hot mic got me thinking, however, about inadvertent revelation of matters of genuine public interest. Three genres spring to mind: documentary films, whistle-blowing, and investigative journalism, that last including category outliers such as Wikileaks. Whereas a gaffe on a hot mic usually means the leaker/speaker exposes him- or herself and thus has no one else to blame, disclosures occurring in the other three categories are often against the will of those exposed. It’s obviously in the public interest to know about corruption, misbehavior, and malfeasance in corporate and political life, but the manner in which such information is made public is controversial. Those who expose others suffer harassment and persecution. Documentarians probably fare the best with respect to being left alone following release of information. Michael Moore, for all his absurd though entertaining theatrics, is free (so far as I know) to go about his business and do as he pleases. However, gestures to protect whistle-blowers are just that: gestures. Those who have leaked classified government information in particular, because they gained access to such information through security clearances and signed nondisclosure agreements (before knowing what secrets they were obliged to keep, which is frankly the way such obligations work), are especially prone to reprisal and prosecution. Such information is literally not theirs to disclose, but when keeping others’ secrets is heinous enough, some people feel their conscience and more duty is superior to job security and other risks involved. Opinions vary, sometimes passionately. And now even journalists who uncover or merely come into possession of evidence of wrongdoing and later publish it — again, decidedly in the public interest — are subject to (malicious?) prosecution. Julian Assange is the current test case.

The free speech aspect of revealing someone else’s amoral and criminal acts is a fraught argument. However, it’s clear that as soon as damaging information comes to light, focus shifts away from the acts and their perpetrators to those who publish the information. Shifting the focus is a miserable yet well-established precedent by now, the result being that most folks who might consider coming forward to speak up now keep things to themselves rather than suffer entirely foreseeable consequences. In that light, when someone comes forward anyway, knowing that they will be hounded, vilified, arrested, and worse, he or she deserved more respect for courage and self-sacrifice than generally occurs in the aftermath of disclosure. The flip side — condemnation, prosecution, and death threats — are already abundant in the public sphere.

Some time after reports of torture at Guantánamo, Abu Ghraib, and Bagram went public, a handful of low-level servicemen (“bad apples” used to deflect attention down the command hierarchy) were prosecuted, but high-level officials (e.g., former U.S. presidents Bush and Obama, anyone in their respective administrations, and commanding officers on site) were essentially immunized from prosecution. That example is not quite the same as going after truth-tellers, but it’s a rather egregious instance of bad actors going unprosecuted. I’m still incensed by it. And that’s why I’m blogging about the hot mic. Lots of awful things go on behind the scenes without public knowledge or sanction. Those who commit high crimes (including war crimes) clearly know what they’re doing is wrong. Claims of national security are often invoked and gag laws are legislated into existence on behalf of private industry. When leaks do inevitably occur, those accused immediately attack the accuser, often with the aid of others in the media. Denials may also be issued (sometimes not — why bother?), but most bad actors hide successfully behind the deflecting shift of focus. When will those acting in the shadows against the public interest and in defiance of domestic and international law ever be brought to justice? I daresay the soul of the nation is at stake, and as long as officialdom escapes all but temporary public relations problems to be spun, the pride everyone wants to take as Americans eludes us. In the meantime, there’s a lot to answer for, and it keeps piling up.

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Throughout human history, the question “who should rule?” has been answered myriad ways. The most enduring answer is simple: he who can muster and deploy the most force of arms and then maintain control over those forces. Genghis Khan is probably the most outrageously successful example and is regarded by the West as a barbarian. Only slightly removed from barbarians is the so-called Big Man, who perhaps adds a layer of diplomacy by running a protection racket while selectively providing and distributing spoils. As societies move further away from subsistence and immediacy, various absolute rulers are established, often through hereditary title. Call them Caesar, chief, dear leader, emir, emperor (or empress), kaiser, king (or queen), pharaoh, premier, el presidente, sultan, suzerain, or tsar, they typically acquire power through the accident of birth and are dynastic. Some are female but most are male, and they typically extract tribute and sometimes demand loyalty oaths.

Post-Enlightenment, rulers are frequently democratically elected administrators (e.g., legislators, technocrats, autocrats, plutocrats, kleptocrats, and former military) ideally meant to be representative of common folks. In the U.S., members of Congress (and of course the President) are almost wholly drawn from the ranks of the wealthy (insufficient wealth being a de facto bar to office) and are accordingly estranged from American life the many different ways most of us experience it. Below the top level of visible, elected leaders is a large, hidden apparatus of high-level bureaucratic functionaries (often appointees), the so-called Deep State, that is relatively stable and made up primarily of well-educated, white-collar careerists whose ambitions for themselves and the country are often at odds with the citizenry.

I began to think about this in response to a rather irrational reply to an observation I made here. Actually, it wasn’t even originally my observation but that of Thomas Frank, namely, that the Deep State is largely made up of the liberal professional class. The reply reinforced the notion who better to rule than the “pros”? History makes the alternatives unthinkable. Thus, the Deep State’s response to the veritable one-man barbarian invasion of the Oval Office has been to seek removal of the interloper by hook or by crook. (High office in this case was won unexpectedly and with unnamed precedent by rhetorical force — base populism — rather than by military coup, making the current occupant a quasi-cult leader; similarly, extracted tribute is merely gawking attention rather than riches.)

History also reveals that all forms of political organization suffer endemic incompetence and corruption, lending truth to Winston Churchill’s witticism “Democracy is the worst form of government, except for all the others.” Indeed, recent rule by technocrats has been supremely awful, leading to periodic market crashes, extreme wealth inequality, social stigmatization, and forever wars. Life under such rule is arguably better than under various other political styles; after all, we gots our vaunted freedoms and enviable material comforts. But the exercise of those freedoms does not reliably deliver either ontological security or psychological certainty we humans crave. In truth, our current form of self-governance has let nothing get in the way of plundering the planet for short-term profit. That ongoing priority is making Earth uninhabitable not just for other species but for humans, too. In light of this fact, liberal technocratic democracy could be a far worse failure than most: it will have killed billions (an inevitability now under delayed effect).

Two new grassroots movements (to my knowledge) have appeared that openly question who should rule: the Sunrise Movement (SM) and the Extinction Rebellion (ER). SM is a youth political movement in the U.S. that acknowledges climate change and supports the Green New Deal as a way of prioritizing the desperate existential threat modern politics and society have become. For now at least, SM appears to be content with working within the system, replacing incumbents with candidates it supports. More intensely, ER is a global movement centered in the U.K. that also acknowledges that familiar modern forms of social and political organization (there are several) no longer function but in fact threaten all of us with, well, extinction. One of its unique demands is that legislatures be drawn via sortition from the general population to be more representative of the people. Further, sortition avoids the established pattern of those elected to lead representational governments from being corrupted by the very process of seeking and attaining office.

I surmise attrition and/or replacement (the SM path) are too slow and leave candidates vulnerable to corruption. In addition, since no one relinquishes power willingly, current leaders will have to be forced out via open rebellion (the ER path). I’m willing to entertain either path but must sadly conclude that both are too little, too late to address climate change and near-term extinction effectively. Though difficult to establish convincingly, I suspect the time to act was in the 1970s (or even before) when the Ecology Movement arose in recognition that we cannot continue to despoil our own habitat without consequence. That message (social, political, economic, and scientific all at once) was as inert then as it is now. However, fatalism acknowledged, some other path forward is better than our current systems of rule.

First, a bit of history. The U.S. Constitution was ratified in 1788 and superseded the Articles of Confederation. The first ten Amendments, ratified in 1791 (rather quickly after the initial drafting and adoption of the main document — oops, forgot these obvious assumptions), are known as the Bill of Rights. The final amendment to date, the 27th Amendment, though proposed in 1789 along with others, was not ratified until 1992. A half dozen additional amendments approved by Congress have not yet been ratified, and a large number of other unapproved amendments have been proposed.

The received wisdom is that, by virtue of its lengthy service as the supreme law of the land, the U.S. Constitution has become sacrosanct and invulnerable to significant criticism and further amendment. That wisdom has begun to be questioned actively as a result of (at least) two factors: (1) recognition that the Federal government serves the common good and citizenry rather poorly, having become corrupt and dysfunctional, and (2) the Electoral College, an anachronism from the Revolutionary Era that skews voting power away from cities, handed two recent presidential elections to candidates who failed to win the popular vote yet won in the Electoral College. For a numerical analysis of how electoral politics is gamed to subvert public opinion, resulting in more government seats held by Republicans than voting (expressing the will of the people) would indicate, see this article by the Brookings Institute.

These are issues of political philosophy and ongoing public debate, spurred by dissatisfaction over periodic Federal shutdowns, power struggles between the executive and legislative branches that are tantamount to holding each other hostage, and income inequality that pools wealth and power in the hands of ever fewer people. The judicial branch (especially the U.S. Supreme Court) is also a significant point of contention; its newly appointed members are increasingly right wing but have not (yet) taken openly activist roles (e.g., reversing Roe v. Wade). As philosophy, questioning the wisdom of the U.S. Constitution requires considerable knowledge of history and comparative government to undertake with equanimity (as opposed to emotionalism). I don’t possess such expert knowledge but will observe that the U.S. is an outlier among nations in relying on a centuries-old constitution, which may not have been the expectation or intent of the drafters.

It might be too strong to suggest just yet that the public feels betrayed by its institutions. Better to say that, for instance, the U.S. Constitution is now regarded as a flawed document — not for its day (with limited Federal powers) but for the needs of today (where the Federal apparatus, including the giant military, has grown into a leviathan). This would explain renewed interest in direct democracy (as opposed to representative government), flirtations with socialism (expanded over the blended system we already have), and open calls for revolution to remove a de facto corporatocracy. Whether the U.S. Constitution can or should survive these challenges is the question.

Brief, uncharacteristic foray into national politics. The Senate narrowly approved a tax reform bill that’s been hawked by that shiny-suit-wearing-used-car-salesman-conman-guy over the past months as simply a big, fat tax cut. From all appearances, it won’t quite work out that way. The 479-pp. bill is available here (PDF link), including last-minute handwritten amendments. I don’t know how typical that is of legislative processes, but I doubt rushing or forcing a vote in the dead of night on an unfinished bill no one has had the opportunity to review leads to good results. Moreover, what does that say to schoolchildren about finishing one’s homework before turning it in?

Considering the tax reform bill is still a work in progress, it’s difficult to know with much certainty its effects if/when signed into law. However, summaries and snapshots of tax effects on typical American households have been provided to aid in the layperson’s grasp of the bill. This one from Mic Network Inc. (a multichannel news/entertainment network with which I am unfamiliar, so I won’t vouch for its reliability) states that the bill is widely unpopular and few trust the advance marketing of the bill:

Only 16% of Americans have said they think the plan is actually going to cut their taxes, less than half the number of people polled who think that their bill is going to go up, according to a Nov. 15 poll from Quinnipiac University.

Yet it seems the Republican-led effort will be successful, despite concerns that many middle class people could actually see their taxes rise, that social programs could suffer, that small businesses could be harmed and that a hoped-for economic boom may never materialize. [links removed]

When a change in tax law goes into effect, one good question is, “who gets help and who gets hurt?” For decades now, the answer has almost always been Reverse Robin Hood: take (or steal) from the poor and give to the rich. That’s why income inequality has increased to extreme levels commencing with the Reagan administration. The economic field of play has been consciously, knowingly tilted in favor of certain groups at the expense of others. Does anyone really believe that those in power are looking out for the poor and downtrodden? Sorry, that’s not the mood of the nation right now. Rather than assisting people who need help, governments at all levels have been withdrawing support and telling people, in effect, “you’re on your own, but first pay your taxes.” I propose we call the new tax bill Reverse Cowgirl, because if anything is certain about it, it’s that lots of people are gonna get fucked.

The witch hunt aimed at sexual predators continues to amaze as it crashes the lives of more and more people. I knew once the floodgates were opened that many of the high and mighty would be brought low. It was probably overdue, but no one can be truly surprised by the goings on giving rise to this purge. Interestingly, the media have gone into the archives and found ample evidence of jokes, hush money, accusations, and lawsuits to demonstrate that this particular open secret was a well-known pattern. Some have offered the simplest of explanations: power corrupts (another open secret). No one really wants to hear that time-honored truth or admit that they, too, are entirely corruptible.

One of the accused has openly admitted that the accusations against him are true, which is almost a breath of fresh air amid all the denials and obfuscations but for the subject matter of the admission. And because it’s a witch hunt, those accused are vulnerable to the mob demanding immediate public shaming and then piling on. No investigation or legal proceeding is necessary (though that may be coming, too). The court of public opinion effects immediate destruction of life and livelihood. Frankly, it’s hard to be sympathetic toward the accused, but I cling to noble sentiment when it comes to application of the law. We should tread lightly to avoid the smears of false accusation and not be swept into moral panic.

Ran Prieur weighed in with this paragraph (no link to his blog, sorry; it’s quite searchable until it gets pushed down and off the page):

I like Louis CK’s apology because he understands that the core issue is power … We imagine these people are bad because they crossed the line between consent and coercion. But when almost the entire world is under authoritarian culture, where it’s normal for some people to tell other people what to do, where it’s normal for us to do what we’re told even if we don’t feel like it, then the line between consent and coercion is crossed so often that it basically doesn’t exist.

Once a culture has crossed the line into normalization of hierarchy, it’s a constant temptation to cross the next line, between using a position of power for the good of the whole, and using it selfishly. And once that line has been crossed, it’s tempting for selfish use of power to veer into sex acts.

I like to think, in a few thousand years, human culture will be so much improved that one person having any power over another will be a scandal.

It’s a slightly fuller explanation of the power dynamic, just as Louis CK offered his own explanation. The big difference is that no one wants to hear it from an admitted sexual predator. Thus, Louis CK is over. Similarly, no one can watch The Cosby Show in innocence anymore. Remains to be seen if any of the fallen will ever rise to career prominence again. Yet Prieur’s final statement confounds me completely. He gets the power dynamic but then plainly doesn’t get it at all. Power and authority are not optional in human society. Except for a few rare, isolated instances of radical egalitarianism, they are entirely consistent with human nature. While we might struggle to diminish the more awful manifestations, so long as there are societies, there will be power imbalances and the exploitation and predation (sexual and otherwise) that have been with us since our prehistory.

Remember: we’re mammals, meaning we compete with each other for sexual access. Moreover, we can be triggered easily enough, not unlike dogs responding when a bitch goes into heat. Sure, humans have executive mental function that allows us to overcome animal impulses some of the time, but that’s not a reliable antidote to sexual misconduct ranging from clumsy come-ons to forcible rape. This is not to excuse anyone who acts up. Rather, it’s a reminder that we all have to figure out how to maneuver in the world effectively, which frankly includes protecting ourselves from predators. The young, sexually naïve, and powerless will always be prime targets. Maybe we’re not quite barbarians anymore, raping and pillaging with wanton disregard for our victims, but neither are we far removed from that characterization, as recent accounts demonstrate.

I’m a little gobsmacked that, in the aftermath of someone finally calling out the open secret of the Hollywood casting couch (don’t know, don’t care how this news cycle started) and netting Harvey Weinstein in the process, so many well-known actors have added their “Me, too!” to the growing scandal. Where were all these sheep before now? As with Bill Cosby and Bill Clinton, what good does it do to allow a serial abuser to continue unchallenged until years, decades later a critical mass finally boils over? I have no special knowledge or expertise in this area, so what follows is the equivalent of a thought experiment.

Though the outlines of the power imbalance between a Hollywood executive and an actor seeking a role (or other industry worker seeking employment) are pretty clear, creating a rich opportunity for the possessor of such power to act like a creep or a criminal, the specific details are still a little shrouded — at least in my limited consumption of the scandal press. How much of Weinstein’s behavior veers over the line from poor taste to criminality is a difficult question precisely because lots of pictorial evidence exists showing relatively powerless people playing along. It’s a very old dynamic, and its quasi-transactional nature should be obvious.

In my idealized, principled view, if one has been transgressed, the proper response is not to slink away or hold one’s tongue until enough others are similarly transgressed to spring into action. The powerless are duty bound to assert their own power — the truth — much like a whistleblower feels compelled to disclose corruptions of government and corporate sectors. Admittedly, that’s likely to compound the initial transgression and come at some personal cost, great or small. But for some of us (a small percentage, I reckon), living with ourselves in silent assent presents an even worse option. By way of analogy, if one were molested by a sketchy uncle and said nothing, I can understand just wanting to move on. But if one said nothing yet knew the sketchy uncle had more kids lined up in the extended family to transgress, then stepping up to protect the younger and weaker would be an absolute must.

In the past few decades, clergy of the Catholic Church sexually abused many young people and deployed an institutional conspiracy to hide the behaviors and protect the transgressors. Exposure should have broken trust bonds between the church and the faithful and invalidated the institution as an abject failure. Didn’t quite work out that way. Similar scandals and corruption across a huge swath of institutions (e.g., corporate, governmental, military, educational, entertainment, and sports entities) have been appearing in public view regularly, yet as a culture, we tolerate more creeps and criminals than we shame or prosecute. (TomDispatch.com is one of the sites that regularly reports these corruptions with respect to American empire; I can scarcely bear to read it sometimes.) I suspect part of that is a legitimate desire for continuity, to avoid burning down the house with everyone in it. That places just about everyone squarely within the “Me, too!” collective. Maybe I shouldn’t be so gobsmacked after all.

Caveat: This thought experiment definitely comes from a male perspective. I recognize that females view these issues quite differently, typically in consideration of far greater vulnerability than males experience (excepting the young boys in the Catholic Church example).

Violent events of the past week (Charleston, VA; Barcelona, Spain) and political responses to them have dominated the news cycle, pushing other newsworthy items (e.g., U.S.-South Korean war games and a looming debt ceiling crisis) off the front page and into the darker recesses of everyone’s minds (those paying attention, anyway). We’re absorbed instead with culture wars run amok. I’m loath to apply the term terrorism to regular periodic eruptions of violence, both domestic and foreign. That term carries with it intent, namely, the objective to create day-to-day terror in the minds of a population so as to interfere with proper functions of society. It’s unclear to me whether recent perpetrators of violence are coherent enough to formulate sophisticated motivations or plans. The dumb, obvious way of doing things — driving into crowds of people — takes little or no planning and may just as well be the result of inchoate rage boiling over in a moment of high stress and opportunity. Of course, it needn’t be all or nothing, and considering our reflexively disproportionate responses, the term terrorism and attendant destabilization is arguably accurate even without specified intent. That’s why in the wake of 9/11 some 16 years ago, the U.S. has become a security state.

It’s beyond evident that hostilities have been simmering below the not-so-calm surface. Many of those hostilities, typically borne out of economic woes but also part of a larger clash of civilizations, take the form of identifying an “other” presumably responsible for one’s difficulties and then victimizing the “other” in order to elevate oneself. Of course, the “other” isn’t truly responsible for one’s struggles, so the violent dance doesn’t actually elevate anyone, as in “supremacy”; it just wrecks both sides (though unevenly). Such warped thinking seems to be a permanent feature of human psychology and enjoys popular acceptance when the right “other” is selected and universal condemnation when the wrong one is chosen. Those doing the choosing and those being chosen haven’t changed much over the centuries. Historical Anglo-Saxons and Teutons choose and people of color (all types) get chosen. Jews are also chosen with dispiriting regularity, which is an ironic inversion of being the Chosen People (if you believe in such things — I don’t). However, any group can succumb to this distorted power move, which is why so much ongoing, regional, internecine conflict exists.

As I’ve been saying for years, a combination of condemnation and RightThink has simultaneously freed some people from this cycle of violence but merely driven the holdouts underground. Supremacy in its various forms (nationalism, racism, antisemitism, etc.) has never truly been expunged. RightThink itself has morphed (predictably) into intolerance, which is now veering toward radicalism. Perhaps a positive outcome of this latest resurgence of supremacist ideology is that those infected with the character distortion have been emboldened to identify themselves publicly and thus can be dealt with somehow. Civil authorities and thought leaders are not very good at dealing with hate, often shutting people out of the necessary public conversation and/or seeking to legislate hate out of existence with restrictions on free speech. But it is precisely through free expression and diplomacy that we address conflict. Violence is a failure to remain civil (duh!), and war (especially the genocidal sort) is the extreme instance. It remains to be seen if the lid can be kept on this boiling pot, but considering cascade failures lined up to occur within the foreseeable future, I’m pessimistic that we can see our way past the destructive habit of shifting blame onto others who often suffer even worse than those holding the reins of power.

Events of the past few days have been awful: two further shootings of black men by police under questionable circumstances (Louisiana and Minnesota), and in response, a sniper killing five police officers (Texas) and injuring more. Everything is tragic and inexcusable; I offer no refuge for armed men on both sides of the law using lethal force against others. But I will attempt to contextualize. Yes, issues of race, guns, and public safety are present. The first two are intractable debates I won’t wade into. However, the issue of public safety seems to me central to what’s going on, namely, the constant beat of threatening drums and related inflammatory speech that together have the effect of putting everyone on edge and turning some into hair-triggers.

I’ve read news reports and opinion columns that subject these events to the usual journalistic scrutiny: factual information strung together with calm, measured assurance that what occurred was the result of intemperate individuals not representative of the public at large. So go ahead and worry, but not too much: those guys are all outliers — a few bad apples. As I take the temperature of the room (the country, actually), however, my sense is that we are approaching our boiling point and are frankly likely to boil over soon, perhaps in concert with party nominating conventions expected to break with convention and further reveal already disastrous operations of the federal government. The day-to-day,  smooth surface of American life — what we prefer in times of relative peace and prosperity — has also been punctuated for decades now with pops and crackles in the form of mass shootings (schools, theaters, churches, clubs, etc.) and a broad pattern of civil authorities surveilling and bringing force to bear against the public they’re meant to protect and serve. How long before it all becomes a roiling, uncontrollable mess, with mobs and riots being put down (or worse) by National Guardsmen just like the 1960s? Crowd control and management techniques have been refined considerably since that last period of civil unrest (I wrote about it briefly here), which is to say, they’re a lot creepier than water cannons, tear gas, and pepper spray (nothing to laugh about if one has been on the receiving end of any of those).

My question, to anyone with the equanimity to think twice about it, is this: aren’t these outcomes a rather predictable result of the bunker mentality we’ve adopted since being instructed by the media and politicians alike that everyone the world over is coming to take away our guns freedom? Further, aren’t the vague, unfocused calls to action spouted constantly by arch-conservative demagogues precisely the thing that leads some unhinged folks to actually take action because, well, no one else is? Donald Trump has raised diffuse threats and calls to action to an art form at his rallies, with supporters obliging by taking pot shots at others at the mere whiff of dissent from his out-of-tune-with-reality message. (Don’t even think about being nonwhite in one of those crowds.) He’s only one of many stirring the pot into a froth. Moreover, weak minds, responding in their lizard brains to perceived threat, have accepted with gusto the unfounded contention that ISIS in particular, terrorism in general, represents an existential threat to the U.S., and thus, generalizing the threat, are now calling for curtailing the practice of Islam (one of three Abrahamic religions arising in the ancient world with over 2 billion adherents worldwide) in the U.S. Apparently, the absolutism of freedom of religion (can also be interpreted as freedom from establishment of a state religion) enshrined in the 1st Amendment to the U.S. Constitution is lost on those whose xenophobia erases all reasoned thought.

The mood is turning quite ugly. A quick survey of history probably reveals that it’s always been that way. Many of us (by no means all of us) understand calls to “make America great again” as coded speech advocating return to a white male Christian dominated culture. So much for our vaunted freedom.

I don’t watch political debates. Being of sound mind and reason, I’m not part of the target audience. However, I do catch murmurs of the debates from time to time. Because torture is a sore subject with me, this excerpt (full transcript here) from the Feb. 6 debate moderated by World News Tonight anchor David Muir perked up my ears:

MUIR: … we’re going to stay on ISIS here and the war on terror, because as you know, there’s been a debate in this country about how to deal with the enemy and about enhanced interrogation techniques ever since 9/11.

So Senator Cruz, you have said, quote, “torture is wrong, unambiguously, period. Civilized nations do not engage in torture.” Some of the other candidates say they don’t think waterboarding is torture. Mr. Trump has said, I would bring it back. Senator Cruz, is waterboarding torture?

CRUZ: Well, under the definition of torture, no, it’s not. Under the law, torture is excruciating pain that is equivalent to losing organs and systems, so under the definition of torture, it is not. It is enhanced interrogation, it is vigorous interrogation, but it does not meet the generally recognized definition of torture.

MUIR: If elected president, would you bring it back?

CRUZ: I would not bring it back in any sort of widespread use. And indeed, I joined with Senator McCain in legislation that would prohibit line officers from employing it because I think bad things happen when enhanced interrogation is employed at lower levels.

But when it comes to keeping this country safe, the commander in chief has inherent constitutional authority to keep this country safe. And so, if it were necessary to, say, prevent a city from facing an imminent terrorist attack, you can rest assured that as commander in chief, I would use whatever enhanced interrogation methods we could to keep this country safe.

Cruz is obviously squirming to avoid answering the simple questions directly and unambiguously. Whose definition has Cruz cited? Certainly not one of these. Another page at the previous link says plainly that waterboarding is “torture plus” precisely because of its ability to inflict “unbearable suffering with minimal evidence” repeatedly. Relying on some unsubstantiated definition to keep waterboarding among available interrogation options and then invoking the ticking time bomb scenario is callous and inhumane. Cruz is unfit as a presidential candidate for lots of reasons, but his stance on torture is an automatic disqualification for me.

Muir then turns the same question(s) over to Trump:

MUIR: Senator Cruz, thank you. Mr. Trump, you said not only does it work, but that you’d bring it back.

TRUMP: Well, I’ll tell you what. In the Middle East, we have people chopping the heads off Christians, we have people chopping the heads off many other people. We have things that we have never seen before — as a group, we have never seen before, what’s happening right now.

The medieval times — I mean, we studied medieval times — not since medieval times have people seen what’s going on. I would bring back waterboarding and I’d bring back a hell of a lot worse than waterboarding.

Trump, in contrast to Cruz, doesn’t squirm at all (though he does struggle to complete a sentence, resorting instead to a stammering, repetitive word salad no one seems to mind). Instead, he goes full war criminal without hesitation (though at this point in time it’s only postulated). Trump’s polarizing, inflammatory style has earned him both severe disapprobation and earnest support. Like Cruz, Trump has a variety of automatic disqualifications as a presidential candidate. My thinking is that, even though I can’t peer into his mind and guess his true motivations (which may be as obvious as they appear) or anticipate his behavior should he attain office, his moral judgment vis-à-vis torture (and frankly, most other topics as well) is so impaired that I don’t trust him as a playground monitor.

In narrative, there are four essential types of conflict:

  1. man against man
  2. man against society
  3. man against nature
  4. man against self

One might argue that Cruz, Trump, and their supporters who applaud “get tough” rhetoric (add Hillary Clinton to this group) fall into the first category, ever battling enemies like besieged heroes. I would argue they fall into the fourth as well, battling their own inhumanity, though there is a notable lack of wrestling with anything approaching a conscience. But in truth, debate over torture might better be categorized as man against everything, considering who and what is destroyed even by entertaining the fantasy of torturing others. Some still argue that a strategic advantage can be retained using torture, whereas Trump (always the extremist) merely relishes the possibility of obliterating others. However, we become monsters by keeping the option alive.

The Supreme Court ruled today in Kentucky v. King today that the Fourth Amendment does not apply in cases of exigent exception. Such exceptions include threat of imminent bodily harm or destruction of evidence. The sticking point is where the police create those exigencies by their own actions. The Court ruled in favor of expanded police powers — yet another chink in the plateless armor of the U.S. Constitution.

My reading is that this is merely a version of the ticking time bomb scenario used to justify torture, though the stakes are considerably lower. The significant details of the Kentucky case (PDF of the decision here) are that, upon chasing a drug buyer/dealer into an apartment complex, the cops smelled marijuana fumes, banged on a door (not knowing which door was correct), heard sounds of rustling and scrambling from inside, proceeded to bust through the door, and entered without warrant. I didn’t read the entire opinion, but it seems obvious to me that awarding increased power to the police in a drug case, when police are often known to use overweening force without much hesitation and sometimes without much accuracy, doesn’t rise to a level of urgency justifying abrogation of the Fourth Amendment.

The war on drugs has been a dogged loser for decades now and has only succeeded in creating a criminal class out of a supply-and-demand dynamic that will not be legislated away any better than was Prohibition. While some actors in the drug trade are driven to violence and desperation, a large portion of them are criminal only in the same sense as those who indulge in underage smoking, drinking, or sex. We tend not to crucify underage smokers or drinkers, but those who obey their innate biological urges prior to the arbitrary age of 18 (or whatever the age of consent may be in various jurisdictions) are often prosecuted and classified as rapists, putting them on life-long sex offender lists. The same insane logic applies to prosecuting recreational drug users as criminals rather than treating the issue as a health problem or epidemic, which it in fact is considering how prevalent recreational drug use is among the public.

The balance in cases of hot pursuit or belligerent resistance is tricky, and nearly every news report and anecdote I read about excessive force employed by police officers against, say, grandmothers or 13-year-old girls is accompanied by mediating details that, if shaped the right way, make tazering an unarmed, wheelchair-bound citizen the right thing to do. Actually, it’s rather easy to construct bogus narratives that make any sort of resistance, principled or otherwise, to the state’s monopoly on use of force the actions of a terrorist. Once in a while, though, I’d like to see the balance weighted clearly in favor of citizens, which is among the chief aims of the Bill of Rights.