An Adversary Is Not a Panacea

Of the many features that separates and Anglo/American legal system from the civil code system that most of the rest of the planet uses, the one that really sets it apart is that ours is an adversarial system.  Two parties enter the courtroom, battle it out from their own perspectives and, most of the time, a winner emerges.  If the "truth" (if you follow me) comes out in the process, so much the better.  Key to this system is that each party controls its own agenda.  Neither the court nor the public at large gets a say in how a case is presented (or not).

Now, one of the few exceptions to this is the grand jury process, which is decidedly one sided.  The prosecutor runs the show.  The defendant usually doesn't have anything to do with it, much less the defense attorney.  Which is part of what makes the grand jury decisions in Ferguson and Staten Island so unusual.  As a result, some folks are wondering whether all that prosecutorial discretion isn't such a good thing, particularly if the prosecutor doesn't seem to want to get an indictment.

There's a discussion to be had there, but one thing that would not improve results, if we're assuming a prosecutor soft-pedaling things, is the presence of a defense lawyer.  This column at Slate offers a refrain I've heard before, but is worth repeating:

The version of Michael Brown’s shooting that the grand jurors heard was engineered by the prosecutors, who vigorously questioned witnesses when their testimony contradicted Wilson’s story and barely questioned witnesses whose testimony supported the officer’s version. Wilson received especially lenient treatment by the lead prosecutor. The final question he asked was whether there was anything else that Wilson wanted the jurors to know. He did:

'One of the things you guys haven’t asked that has been asked of me in other interviews is, was he a threat, was Michael Brown a threat when he was running away. People asked why would you chase him if he was running away now. I had already called for assistance. If someone arrives and sees him running, another officer and goes around the back half of the apartment complexes and tries to stop him, what would stop him from doing what he just did to me to him or worse ... he still posed a threat, not only to me, to anybody else that confronted him.'

There was no defense attorney to question Wilson’s self-serving statement to the jurors.

Emphasis mine.  This after the author lauds preliminary hearings as an alternative to grand juries because:

These 'prelims' are open to the public, and they are adversarial. Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.

All that's true, but what would it have changed?  Why on Earth would a defense attorney in the grand jury have questioned Wilson about his "self-serving statement?"  That's not the defense attorney's job.  Nor would a prelim have made things any better.  Sure, it all would have been public, but, again, if the prosecutor is not inclined to grill the defendant (if he testifies), why would defense counsel do so?

There's an awful lot wrong when it comes to police getting away with horrible behavior, for various reasons.  Those need to be addressed.  But call to completely revamp the grand jury process - one that, like most other parts of the Bill of Rights, doesn't actually apply to the states - seems awfully short sighted.

The problem isn't that, occasionally, when a cop is involved, grand juries act as the kind of brake on state action they were intended to be.  The problem is that, in the run of the mill case involving a regular civilian, they hardly ever act that way.

Some Thoughts on Town of Greece

Last week the Supreme Court decided the Town of Greece case, in which it blessed the appropriateness of regular sectarian prayer during city council meetings.  I'll not go over all the details here, but rather point folks to good writes ups here and here (via) that explain what the holding was and how the majority got there.  I do have a few additional thoughts, however.

Given that everybody on the Court accepts the continuing validity of the Marsh decision, which approved of an opening prayer in a state legislature, the majority didn't have far to go to reach the same conclusion here.  That was partly due to the plaintiffs themselves.  Per the majority, this was their goal in bringing suit:

They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to 'inclusive and ecumencial' prayers that referred only to a 'generic God' and would not associate the government with any one faith or belief.

In light of that litigation strategy, I think it was doomed from the start.  Reasonable compromise may be an effective political strategy (although see), but rarely a legal one.  Compared to what the plaintiffs were asking for, what the town of Greece was already doing wasn't all that different.  At most, it was a difference in degree, not in kind.  Hard to force a court to see the injustice in allowing the status quo to continue.

Having said that, I think Kagan does a good job of showing how the situation in town of Greece was really quite different from Marsh and provided a basis to come to a different conclusion.  Unlike Marsh where, by the prayer defenders' own argument, the prayers at issue were directed only at legislators (and where it was changed in response to a single objection from a Jewish legislator), the context of the town of Greece's prayers were as part of, and prelude to, proceedings in which citizens directly interact with their government.  As she put it in her introduction:

Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.

Note, however, that in her paean to inclusiveness, Kagan skips over/ignores the atheists, agnostics, or other folks who simply aren't religious.  It's an effective reminded that, for all the various religious squabbles that happen in this country, we nonbelievers aren't even considered in most instances.  Kagan has beautifully written about the need for the government not indulge both country and western, but leaves out any mention of the techno jazz trip-hop folks.  And so it goes.

I would have joined Kagan's opinion.  Actually, I'd probably gone all liberal Thomas and write a separate opinion going back to the underlying law and calling it out for being wrong.  Having said that, I think the space between the majority and dissent in this case is pretty tight.  I also think the knock-on effects of the ruling are pretty obvious.  Already we've had the irreligious and minority religious folks chomping at the bit to be included, while at least one Christian in a position of authority has decided to exclude anybody he doesn't like.  This is what happens when we turn regular business meetings into places of worship.

One thing that I find odd about Marsh, and the majority opinion on which it was based, is that it rests heavily on the practice of the initial Congress in having opening prayers.  I understand the appeal of looking at what the Founding Fathers did, but they weren't great about following their own constitutional commands.  How else do you explain the Alien and Sedition Acts, which criminalized dissenting political views?  As Justice Brennan put it in a book, “the ink had barely dried on the First Amendment” when Congress passed those acts.  Those acts were so repugnant to a modern understanding of the First Amendment that the Supreme Court recognized that:

[a]lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.

Politics happens and it has always happened.  Looking to the behavior of elected officials as a guide to our higher Constitutional principles is a fool's errand.

While it's important to note that the plaintiffs in Town of Greece weren't trying to stop the prayers, one of the plaintiffs was (so I've read) an atheist.  I sometimes see, particularly in Facebook discussions, Christians who wonder (sarcastically, I assume) why atheists get so "scared" about things like this when they don't really believe in God anyway.  Speaking only for myself, atheists aren't "scared" about the content of prayers themselves, but we are concerned about the power of the state being co-opted by religious groups.  We're angry that the First Amendment seems to mean so little in such situations.

And the harm suffered goes beyond mere hurt feelings:

the harm is that the legal relationship between a government and its citizens has been altered, so that minorities now stand in relation to government as minorities, rather than simply as Americans. Government prayer renders them separate members of the political community, regardless of how they feel subjectively. Justice Kagan is careful about this in her dissent. Every time she describes the harm, she says that citizens of Greece “become partly defined by their creed,” or that the town’s prayer 'alters a dissenting citizen’s relationship with her government,' or that the member of a minority faith 'becomes a different type of citizen ... she stands at a remove, based solely on her religion, from her fellow citizens and from her government.' Constitutional harm of this type is not about the subjective feelings of sensitive minorities, and it is not something that can be avoided by desensitizing them.

Kagan goes through several hypotheticals where a non-participant in the prayer then has to turn around and ask the governing body to take some action on their behalf.  There are reasons we'd never allow a trial to be begun with a prayer, lest any of the parties feel they were behind the theological 8-ball from the very beginning.  Why should a town council meeting be different?

At bottom, what we nonbelievers can't quite figure out is what the purpose of these prayers are.  Why start a business meeting with a plea to the almighty?  Here's what Kennedy says it's for:

As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.

If that's the goal, then I think we can safely conclude that these kinds of prayers are empty exercises.

Which means, in the end, this might all be a bunch of sound and fury (with the requisite helping of idiots) signifying not an awful lot.  I hope so.

Sweet Juicy Justice

I've waffled on before about how the criminal justice system really isn't about "justice" all that much, in the end, at least.  Over at a public defender, Gideon examines that concept in relation to a trio of high-profile cases in the news recently.

One is the story of an heir to the du Pont family fortune, Robert H. Richards, IV, who received no (active) prison time after pleading guilty to sexually abusing his three-year old daughter, which is causing outrage because the sentencing judge indicated that the guy "will not fare well" in prison.  No kidding.

Another is the story of a guy who murdered a doctor during a robbery gone bad.  He "had a long history of delusions about communicating directly with God," which some folks might find just a bit crazy.  He was convicted anyway, partly based on logic (loosely defined) like this:

'He’s sick, but I feel like he knew what he was doing,' said a juror, Dana Torres, 27, a construction worker. 'For me, if he had said Satan told him to do this, it would have been a different story.'

Yikes.

Finally, there's the story of a homeless woman who left her children in her car while she went inside for a job interview.  She was arrested for child endangerment.

Is there a common thread that runs among these cases?  Gideon says:

The three stories are disparate and the memes surrounding each are indisputably different, but don’t be fooled: they are, at essence, about one thing – the utter uselessness of our prisons and the inability of our justice system to hand out anything that should remotely be considered 'justice'.

He's right.  At best, the system is designed to provide something vaguely like justice most of the time, through a procedural scheme that applies in every case.  But no system is perfect (consider just the human element) and even if it does well enough in the mine-run of cases, it won't work all the time.  Getting "justice" in every case would require wide discretion and constantly shifting standards that would make anybody nervous.

Gideon also does a good job digging into the facts of the first case, which are much more complicated than most media screamers indicate.  And, anyway, the meaning is lost in the shouting:

That’s not to say that there isn’t a problem with wealth. Mr. Richards got to go home because he needed treatment and he was able to afford to go to a clinic in MA to get that.

The real take[a]way from this should be not that Mr. Richards got a break, but that he got fair treatment for himself because he was rich and thus, there are hundreds who deserve the same but can’t get it because they are poor.

He goes into even more detail about the case and the outcome here.

While I'm harrumphing Gideon, I want to point out another thing he says:

As I’ve said repeatedly, prisons aren’t a fun place at all. They’re miserable, dank, scary and smell of piss and shit and blood and tears. I’d probably try to kill myself within the first 24 hours and who are you kidding, so would you.

A thousand times this.  Anybody who talks nonsense about how good inmates have it or about "country club" prisons has never been in one or talked to anybody who has.  Which is one reasons why, sometimes, it's so hard to figure out just what "justice" is.

Score One For Sweden

Ah, Sweden.  'tis a wonderful place, with a deep well of excellent prog bands, from the bucolic symphonic splendor of The Flower Kings to the brutal RIO of Gosta Berling's Saga. It is a place where, so the song says, "the coulds are nice," where "the weather's realy pleasin' and they have good rice."  Then, of course, there are Volvos.

Now they've got another thing to add to the "pro" column, at a time when most other countires, and certainly ours, can't hope to match them - they're closing prisons (via):

Sweden has experienced such a sharp fall in the number of prison admissions in the past two years that it has decided to close down four prisons and a remand centre.

'We have seen an out-of-the-ordinary decline in the number of inmates,' said Nils Öberg, the head of Sweden's prison and probation services. 'Now we have the opportunity to close down a part of our infrastructure that we don't need at this point of time.'

Before you say, "well of course they're going to shut down prisons when the crime rate drops," keep in mind that the crime rate in the United States - particular the violent crime rate (you know, where there are actual victims) - has been going down for decades.  

In spite of that (although some will argue because of that), we put more people in prison than any other place on Earth:

The US has a prison population of 2,239,751, equivalent to 716 people per 100,000. 

China ranks second with 1,640,000 people behind bars, or 121 people per 100,000, while Russia's inmates are 681,600, amounting to 475 individuals per 100,000.

The Swedes, by contrast, lock up only about 76 of every 100,000 people, good for either 112th or 180th in the world, depending on who's counting.

To what do the Swedes attribute this sudden surplus of prisons?  Part of it stems from a recent court decision that limited drug sentences, but part of it is also a reflection of:

Sweden's liberal prison approach, with its strong focus on rehabilitating prisoners.

In fact, in the editorial announcing the numbers Öberg argued:

Sweden needed to work even harder on rehabilitating prisoners, doing more to help them once they had returned to society.

Can you imagine something similar happening in this country?  Think about how those prison closures would quickly become economic issues.  After all, so many poor rural communities are tying their futures to the booming prison business, who's to say that closing prisons wouldn't wind up like trying to get rid of weapons systems the Pentagon doesn't want because of the pork associated with their production?  At best, we'd wind up with a bunch of uselessly open empty prisons.  At worst, the powers that be would find new and devious ways to keep them full.

So, congrats, Sweden on your sudden excess of punitive real estate.  Please don't sell them off to any Americans, OK?  It's hard enough to keep my clients close to home as is.

We Asked For This

The reaction to last week’s revelations (courtesy of Glenn Greenwald) at the Guardian) of sweeping data gathering by the National Security Agency, the predominant reaction from the public has been one of outrage.* Even folks who otherwise fall on the “security” side of the security/civil liberties line stopped and asked if things had gotten a bit out of hand. But even the outrage is justifiable (and I think it is), should anybody really have been surprised by this?

Fourth Amendment expert and former NACDL President John Wesley Hall explains how, as distasteful as the NSA’s plans might be, they probably aren’t unconstitutional under current law:

All this data collection is perfectly legal under pre-Patriot Act law and compounded by it. In 1976, the Supreme Court held in Miller v. United States that it did not violate the Fourth Amendment for the government to gather information from bank records of a depositor under investigation. In 1979, the Court held in Smith v. Maryland that it did not violate the Fourth Amendment for the government to put a pen register on a telephone to record only the numbers being dialed because the telephone call wasn’t recorded. That was, after all, all technology allowed at the time. Think of the NSA as one huge pen register.

As for the Patriot Act, Hall notes that it:

became law without any critical thought, and it made it carte blanche for government to gather information about us. Couple this with the information technology available over the last decade and the ability to store Brontobytes of data, and that we see now was inevitable. I’m not the slightest bit surprised. Nobody keeping up is surprised.

Even beyond that, the primary bulwark keeping the government from searching people (and their stuff) willy nilly, the Fourth Amendment, has been slowly hacked away for decades. Well before 9/11 and the War on Terror, we as a society had largely ceded the protections against unreasonable search and seizure in the War on (Some People’s) Drugs. The quantum of evidence needed to search or seize someone has gradually gone down, while the only effective tool to punish breaches – the exclusionary rule – is on its death bed. In the grand tradition of “when they came for the [INSERT GROUP HERE] I did nothing,” society was largely OK with all this, as it only impacted “those people.” Who gives a shit about goddamn drugies, anyway?

Ironically it’s the drug angle that writer/producer David Simon (of The Wire, Treme, etc. fame) uses to explain why we shouldn’t really be all that freaked out about this (via):

Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.

There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.

Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.

All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal.

Simon stresses that, like the NSA program exposed in the Verizon order, they weren’t listening to calls, just getting the “metadata” (if the term was around back then). That information, he points out, is already generated without the NSA’s request and, increasingly, is going to be stored for some kind of future use by the private companies that produce it. To not utilize it for something as serious as trying to thwart terrorist attacks (or develop more traditional particularized individual suspicion) is silly.

I think Simon’s right that the only thing about the NSA program that’s different from his Reagan-era memory of Charm City is the scope of the information gathering, but, unlike him, that still bothers me. It’s possible to, at the same time, not be particularly surprised by something and yet still outraged. Furthermore, Simon appears to take Obama at his word when he says nobody’s listening to our phone calls.** There’s just no reason to believe that. As this piece at Slate points out, there’s a history of surveillance operations straying far afield from the legitimate, limited goals.

While the NSA’s programs are outrageous in and of themselves, what’s more outrageous is that they may be perfectly legal. They’re clearly authorized by statute and have been blessed by Congresspersons in the know. And, of course, they have the approval of a pair of presidential administrations from theoretically opposite parties. Furthermore, I don’t have any confidence that they violate the Fourth Amendment in its current emaciated form.

No, the real outrage is that we’ve let it come to this. For too many years we’ve traded liberty for security, from crime or from terrorism, on a bipartisan basis. If things have really gone too far for too many people, maybe we can start to roll things back. But I won’t hold my breath.

* Or maybe not. Via Orin Kerr at Volokh, a Washington Post poll found that only 41% of respondents think the NSA’s phone program is “unacceptable,” compared to 56% who find it “acceptable.” There appears to be the inevitable partisan gloss as well. We are so fucked.

** To be fair, in the comments he expresses more concern about the PSRIM internet surveillance program, which does appear to reach content, not just technical metadata.

Zero Dark Bullshit?

Do you have to see a movie before you can judge it? I don’t mean on a “thumbs up/thumbs down” kind of level. I’m talking about on a moral level, deciding about whether the message of the movie is worth condemning. Do you have to see Birth of a Nation to know it’s profoundly racist? Do you have to see Triumph of the Will to know it’s a blinkered piece of propaganda?

Zero Dark Thirty, the new film about the hunt of Osama bin Laden, from director Kathryn Bigelow and writer Mark Boal (the team behind Oscar winner The Hurt Locker), is raising that issue. Specifically, the films brutal depiction of the torture of terrorists by CIA operatives is causing some folks to wonder if it’s an apologetic for the torture. The debate’s been simmering since the film’s gotten into the thick of the awards season, showing up on numerous “best of” lists for the year (it doesn’t officially open outside of NY and Los Angeles until January 11).

Blowback began in the New York Times, where Frank Bruni commented that:

I’m betting that Dick Cheney will love the new movie ‘Zero Dark Thirty.’

That’s because:

‘Enhanced interrogation techniques’ like waterboarding are presented as crucial to that search [for bin Laden].

* * *

And by the movie’s account, it produces information vital to the pursuit of the world’s most wanted man. No waterboarding, no Bin Laden: that’s what ‘Zero Dark Thirty’ appears to suggest. And the intelligence agents involved in torture seem not so much relieved as challenged by Obama’s edict that it stop. Their quest for leads just got that much more difficult.

Glenn Greenwald picked up on Bruni’s criticism. Although he explicitly noted that he hasn’t seen the film and was only working off of reactions to it, he writes:

With its release imminent, the film is now garnering a pile of top awards and virtually uniform rave reviews. What makes this so remarkable is that, by most accounts, the film glorifies torture by claiming - falsely - that waterboarding and other forms of coercive interrogation tactics were crucial, even indispensable in finding bin Laden.

And as Greenwald catalogs, his reaction is not unique:

Other reactions to the commentary from film reviewers from those who haven't yet seen the film was offered yesterday by NYU Journalism Professor Jay Rosen (‘WTF is Kathryn Bigelow doing inserting torture into her film, Zero Dark Thirty, if it wasn't used to get Bin Laden?’); Mother Jones' Adam Serwer (‘The critical acclaim Zero Dark Thirty is already receiving suggests that it may do what Karl Rove could not have done with all the money in the world: embed in the popular imagination the efficacy, even the necessity, of torture’); The Daily Beast’s Andrew Sullivan (‘Bigelow constructs a movie upon a grotesque lie’); and The Daily Beast’s Michael Tomasky (‘Can I just say that I am equally bothered, and indeed even more bothered, by the fact that the movie opens with 9-11’).

It is true, as Adam Serwer over at Mother Jones recounts that numerous sources have established that the information that led to bin Laden’s eventual demise was not procured by torture. So if a film that’s tagline is “The Greatest Manhunt In History” and which the director claims was made using “almost a journalistic approach,” getting such a fact wrong is pretty inexcusable.

But is that really what the film shows? After all, Greenwald and many others haven’t actually seen it. Are film critics so swayed by the technical aspects to check their morality at the door?* Consider this take from Spencer Ackerman at Wired:

Kathryn Bigelow’s new film about the decade-long manhunt for Osama bin Laden begins with an unsparing, nauseating and frighteningly realistic look at how the CIA tortured many people and reaped very little intelligence. Never before has a movie grappled with post-9/11 torture the way Zero Dark Thirty does. The torture on display in the film occurs at the intersection of ignorance and brutality, while the vast, vast majority of the intelligence work that actually does lead to bin Laden’s downfall occurs after the torture has ended.

He goes on to describe what happens on screen in some detail:

These are not ‘enhanced interrogation techniques,’ as apologists for the abuse have called it. There is little interrogation presented in Zero Dark Thirty. There is a shouted question, followed by brutality. At one point, ‘Maya,’ a stand-in for the dedicated CIA agents who actually succeeded at hunting bin Laden, points out that one abused detainee couldn’t possibly have the information the agents are demanding of him. The closest the movie comes to presenting a case for the utility of torture is by presenting the name of a key bin Laden courier, Abu Ahmed al-Kuwaiti, as resulting from an interrogation not shown on screen. But — spoiler alert — the CIA ultimately comes to learn that it misunderstood the context of who that courier was and what he actually looked like. All that happens over five years after the torture program initiated. Meanwhile, the real intelligence work begins when a CIA agent bribes a Kuwaiti with a yellow Lamborghini for the phone number of the courier’s mother, and through extensive surveillance, like a police procedural, the manhunt rolls to its climax. If this is the case for the utility of torture, it’s a weak case — nested within a strong case for the inhumanity of it.

Likewise, Emily Bazelon at Slate suggests things are a bit more nuanced:

The movie thus doesn’t show a vicious act of torture leading straight to a game-changing piece of intelligence, or even a unique piece. After all, the interrogation of Amar takes place in 2004; Bin Laden remained free for seven more years. And yet it’s Amar’s information that feels crucial, because it’s presented as the root of Maya’s obsession with this particular lead. This is the way in which the movie credits torture: It suggests that the tenacious agent who led the hunt wouldn’t have been moved to do so without this piece of information given up by a detainee who’d been tortured.

Is this actually what happened? It’s hard to say for sure.

And, for what it’s worth:

Boal told TheWrap.com that despite the gruesome torture scenes, viewers who come away thinking torture was the pivotal tactic in nabbing bin Laden, rather than one method used in a decade-long hunt, are ‘misreading the film.’

I can’t say whether either Ackerman’s or Bazelon’s impressions are accurate – I haven’t seen the movie yet, of course – but neither can Greenwald and others who haven’t seen the movie say it isn’t. Context matters, particularly when you separate the work itself from how it’s either promoted or described shorthand. From the advertising, one might expect the focus of Zero Dark Thirty to be on the raid itself and the time period just before when it was planned and the intelligence gathered to support it. But perhaps the movie tells a broader story, one in which the national urge for revenge took some ugly and dead end turns before it turned out the way it did. Maybe it’s a metaphoric examination of the entire war on terror, in which we gain the ultimate prize (bin Laden in a watery grave), but at tremendous cost? Who can tell without actually seeing it.

I saw some similar criticisms, in reverse, of Argo, Ben Affleck’s slick depiction of the rescue of a small group of Americans who escaped the embassy in Tehran in 1979. People argued it didn’t go far enough into the background of the Iranian revolution or that it didn’t deal enough with the hostages who didn’t make it out of the embassy. But that’s not what the movie was about. It was about a specific event that occurred against the backdrop of those events. It was never supposed to be a long form examination of the Iranian revolution.

Which is just to say, you really need to see the movie before you decide its morally horrific. Is there some reason to think that critics, who have actually seen it, just check their moral compasses at the door? Or is the film perhaps more nuanced and subtle than Bruni, et. al., are giving it credit for? Who knows? I suppose we common folk will need to wait until January to find out.

In the end, it’s best to judge for yourself.

* Who do they think they are, lawyers?!

What’s Spanish for “Chuztpah”?

As the story goes, the best definition of “chutzpah” is when a son who murders his father and mother then seeks mercy from a court because he’s an orphan. That is a good one, but this one might not be far behind.

You probably don’t know the name Cecilia Giménez, but you no doubt are familiar with her work. Giménez is the elderly Spanish woman who decided to do something about the deteriorating fresco of Jesus at her church and turned it from this . . .

. . . into this:

Images via Wikipedia.

Giménez and her handiwork have been roundly mocked,* but the increased attention has made the small Spanish church a tourist destination. And Giménez wants in on the action:

According to El Correo, Gimenez has apparently lawyered up, and is now asking for royalties from her church’s newfound money stream.

She also complains that the notoriety of her work has led to her becoming a virtual shut in due to media attention and tourists flocking to the church. It’s not clear to me how getting a piece of the church’s revenue from the painting would solve that problem (if anything, it seems likely to make it worse), but I’ll admit I’m unfamiliar with the Spanish legal system.

I have been curious, since the story broke, as to just what the legal landscape of this situation was. As I understand it, Giménez took this project up on her own volition and without authorization from the church leaders. If so, it sounds like vandalism, doesn’t it? If somebody came into my house and started “renovating” the stuff on my walls, I’d be kind of pissed. If that’s the case, getting royalties would seem to be a stretch. On the other hand, if Giménez had some vague permission to do what she did and it’s become a cash cow, I think she’s got a legitimate claim for some compensation.

Even if she never sees a Euro, Giménez nonetheless wound up with a level of fame (or infamy) that most artists only dream of. That’s got to count for something.

* I kind of like it. Who needs another “realistic” vision of a pasty white Jesus, anyway?

Another Moral Panic Falls Apart

While I was off doing NaNoWriMo, there were some news reports about one of the more peculiar ideas teenagers were having across the country. It involved vodka, tampons, and . . . well, let’s let Stephen Colbert sort it out:

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Field tests showed it didn’t work that well, anyway (via). But it’s a good story on how a moral panic gets rolling, especially when it involves something teenagers do. After all, they’re an alien species to adults, anyway, so who knows what kind of weird shit they’ll come up with. More times than not, however, the facts on the ground don’t really match up to the hysteria that initial media reports stir up.

So, on that front, remember the great threat to civilization known as sexting? You know, where teenagers were taking pictures of themselves in various stages of undress and sending them to other teenagers via cell phone and what not? It was an epidemic, another example of how the sexualization of the culture was reaching young people.

Only, it turns out, it wasn’t. As with the vodka-soaked tampons, the hullabaloo about sexting is more about heat than light. As reported here, a pair of new studies shows that instead of nearly 1 in 5 teens engaging in that kind of behavior, the real numbers are more like 1 in 100:

‘There’s a zeitgeist in America socially that suggests that sexting is something that’s really prevalent,’ Pew research specialist Amanda Lenhart told the [New York] Times. ‘I think this research shows that it actually isn’t that prevalent. It happens, but the likelihood of it happening to any given person is pretty low.’

How does something like that get so blown out of proportion? The co-author of one of the studies explained:

It only takes one or two cases to make people think this is very prevalent behavior. This has been reported as if it were something that everyone was doing...It's really not the case.

That’s particularly true in the modern media world, fed by a 24-hours news cycle and the fertile fields of social media. How do we avoid falling into that kind of trap next time some sensational news story breaks? As usual, a healthy dose of skepticism (nay, even cynicism) goes a long way. You know how when it comes to financial scams that if something sounds too good to be true, it probably is? I propose a similar truism when it comes to new stories about the habits of teens – if it sounds too weird to be true, it’s probably bullshit.

Same As It Ever Was

The scandals rocking major college football continue:

[T]he Carnegie Foundation made headlines with a report, ‘American College Athletics,’ which concluded that the scramble for players had ‘reached the proportions of nationwide commerce.’ Of the 112 schools surveyed, 81 flouted NCAA recommendations with inducements to students ranging from open payrolls and disguised booster funds to no-show jobs at movie studios.

By “continue,” I mean they’ve been going on for nearly a century. That Carnegie Foundation report came out in 1929. 10 years later, freshman players at Pitt went on strike . . . because they weren’t getting paid as much as their more senior teammates.

Those two tidbits are just a part of the fascinating, and depressing, history of the commercial side of college sports laid out in Taylor Branch’s new article in The Atlantic (via). Branch is arguing that college athletes should be paid, although I’m still not convinced (beyond the scholarships, academic assistance, etc.). What he does do is make a good case that NCAA invocation of “amateurism” and “student-athletes,” at least when it comes to the big money sports, is not only hollow, but pretty much always has been.

In fact, the term “student-athlete” first popped up in litigation:

The term came into play in the 1950s, when the widow of Ray Dennison, who had died from a head injury received while playing football in Colorado for the Fort Lewis A&M Aggies, filed for workmen’s-compensation death benefits. Did his football scholarship make the fatal collision a ‘work-related’ accident? Was he a school employee, like his peers who worked part-time as teaching assistants and bookstore cashiers? Or was he a fluke victim of extracurricular pursuits? Given the hundreds of incapacitating injuries to college athletes each year, the answers to these questions had enormous consequences. The Colorado Supreme Court ultimately agreed with the school’s contention that he was not eligible for benefits, since the college was ‘not in the football business.’

Equally fascinating is how the NCAA, which wasn’t organized with any real authority over the schools that made up its membership, leveraged the nascent TV coverage of college football (the schools thought TV would kill the sport!) in the 1950s to exert some control over the situation. That control slipped away in 1984, when the Supreme Court ruled that the NCAA couldn’t keep individual schools or conferences from seeking out their own TV deals. Ironically, what kept the NCAA from being crippled financially was college basketball, because only it could sell the TV rights to the men’s national championship tournament, aka March Madness. Starting to see why there’s no similar tournament for major college football?

Of course, it’s TV money that’s largely driving the latest round of conference shifting we’re seeing go on right now. The drive for the ACC, Big (sorta) 10 and the artist formerly known as the PAC-10 to grow big enough to justify a conference championship game was because of the extra revenue, mostly from TV, they generate. Likewise, WVU doesn’t want to be relegated to a crippled Big East and potentially cut out of the windfall that is the BCS sweepstakes.

As I said earlier, I’m still not sold on the idea of paying college athletes. However, Branch does a good job of showing how profoundly fucked up the current system is. It's not quite this bad . . .

Crack Baby Athletic Association
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PARKEric Cartman,Kyle Broflovski,more...

But it's close.  Maybe the best option is to blow it up and start from scratch. There’s no good reason for sports to enmesh with academics at all. Let the NFL, NBA, and what have you set up youth academies like the soccer clubs in Europe and elsewhere do and go from there. Or reduce the whole thing to the level of Division III, where those involved really are student-athletes.

Yeah, that’s not going to happen anytime soon. So this Saturday I’ll choke down my concerns, put on my bright yellow WVU shirt, and cheer as “we” beat up on LSU on national TV in primetime. Hopefully. ‘cause if we don’t, it’s only a game, right? At least I have the luxury of looking at it that way.

Same as it ever was, indeed.

Fun With Photoshop (bin Laden Edition)

By now, we’re all familiar with the famous shot of the White House situation room, in which Obama, Biden, and numerous others watched while the hit on bin Laden was carried out:

In the week or so since then, that picture has taken on a life of its own, depending on who’s playing around with it.  The silliest (though not funniest – see below!), and most controversial, is the version published in Der Tzitung, a newspaper for orthodox Hasidic Jews published in Brooklyn, in which they eliminated Secretary of State Hillary Clinton and another woman from the photo.  Why?  To keep good with God, of course:

In accord with our religious beliefs, we do not publish photos of women, which in no way relegates them to a lower status. . . . Because of laws of modesty, we are not allowed to publish pictures of women, and we regret if this gives an impression of disparaging to women, which is certainly never our intention. We apologize if this was seen as offensive.

They are, of course, free to publish whatever they want (or not) in their paper, whether it’s motivated by religion or any other reason.  But “God tells us to do it” doesn’t work as a defense to such an obviously sexist practice.  Cutting women out of a photograph in the name of “modesty” sounds an awful lot like the school of misogyny based on making women so special and precious that they have to be protected from everything around them.  It’s an old saw.

Consider Bradwell v. The State, an 1872 Supreme Court decision dealing with an Illinois woman who had the temerity to want to practice law.  She was denied the license by the state and appealed to the U.S. Supreme Court, which affirmed.  In doing so, Justice Bradley explained (in a concurring opinion):

the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.

In other words, women are too delicate to mix it up with the men in the big bad wider world and, oh by the way, get back in the kitchen, squirt out a baby, and make me a pie!  For more on women breaking into the legal field see here.

But, as I said, the publishers of Der Tzitung have the perfect right to be sexist douchebags and print their newspaper accordingly.  If they want to be so unethical as to distort the historical record in their paper, that’s their business.  And, likely, they did nothing illegal in ‘shopping the women out of the room, as a photograph created for the U.S. government has no copyright control on it, so it’s not subject to the restrictions found on most works.

And that’s a good thing, because while it makes the publishers of Der Tzitung easily identifiable unethical dipshits, it also provides fodder for some really funny stuff.  Wired collected a bunch of modified versions of the photograph from around the web, some of which are pretty good.  My two favorites:

I particularly like the Blue Screen of Death reverse image.  More fun here.

Some bin Laden Thoughts

Remember the Lloyd Bridges character in Airplane!, who several times opines (to nobody in particular) that “it looks like I picked a bad week to give up . . .” a succession of mind-altering substances?  Well, it looks like I picked a bad week to give up blogging, huh?  No more than 90 minutes after I posted the little update below did the word start to leak out that Osama bin Laden was dead.  Under the banner of “better late than never,” here are a few thoughts.

First, regardless of the impact bin Laden’s death has on the War on Terra, or our relationship with Pakistan, or anything else, the world’s a better place with bin Laden out of it.  To throw out another movie reference, I’m reminded of the news update at the beginning of the South Park movie, when the anchor explains that it’s been weeks since Saddam Hussein had been killed by wild boars “and the world is still glad to be rid of him.”  We, the planet, are going to be glad we’re rid of bin Laden for a long time to come.

Having said that, the mob-like reaction to the news, which looked like something that might happen after your team win the Super Bowl (per the local news, couches were burning in Morgantown!), was not our finest hour.  I understand the catharsis of the moment, particularly for those who were victims of 9/11 or family members.  But publicly cheering the death of your enemies – isn’t that something the bad guys do?  I’m not talking about a joyous celebration of the end of the War – ‘cause we aren’t there, yet.  This was one of those things that needed to be done, and those who did it should be satisfied in a job well done, but other than that we just need to get on with things.

The mechanics of the actual killing bother me less.  To my knowledge, bin Laden is on record repeatedly saying he wouldn’t be taken alive.  While that may have been idle blustering, at a certain point you have to take a man at his word.  I’m not certain that someone who set in motion plans that have killed thousands of innocent people around the world is really entitled to the benefit of any doubt in that area.

Then there’s the question of Pakistan – willfully ignorant or merely epically incompetent?  I suppose we’ll find out down the road.

But the real important question that must be answered – right the fuck now, please! – about bin Laden’s death is who gets the credit for it, politically?  Like it or not, Republicans, but as a nation we have a “you broke it, you bought it” style mentality when it comes to presidents.  Whatever good happens during their terms they get credit for, whatever bad happens is their fault.  Actual causality is too tricky to figure out.  It’s why presidents get the praise/blame for economic cycling, even though they have very little impact on such things. 

It’s also how the Republicans give credit to Reagan for the end of the Cold War, as if he kicked over the Berlin Wall himself.  History, of course, is rarely that simple.  Reagan’s contributions to the end of the Cold War were set upon the building blocks of his predecessors.  Likewise, while Obama gets the credit for drilling bin Laden, the operation that brought him down stretches back to the Bush II years (and even the Clinton era, if you want to squint hard enough).  Yes, I know what Bush said and I’m not saying he gets a lot of credit.  But he and his cronies laid some of the foundation upon which the operations was based.  History is like that - it doesn’t really play political favorites.

In the end, the only question that really matters is whether bin Laden’s death makes things any better for us and the world at large.  Yeah, it feels good that he’s gone.  But the War on Terra, like the War on Drugs, isn’t going away anytime soon.  And any hope that burying the bin Laden hatchet would have turned the corner on anti-Muslim feeling in this country is, apparently, wishful thinking.  Only time will tell.  It always does.

On Jumping to Conclusions

When I started feeding the silence earlier this month, I said that I wasn't going to talk about politics all that much, as I was burned out on the never ending "my team versus the other team" dynamic in the country.  Politics, at least my impression of politics, has moved on from the staid debates of the Sunday morning talk shows to being something like a 24-hour version of SportsCenter.  We got a tragically typical example of that over the weekend.

Before the bodies were cold in Tuscon on Saturday, the political angles of the shooting, which left six dead and another dozen wounded, were being calculated.  The left saw the shooting as a political act, tied in with and spurred on by rhetoric during the recent election about "Second Amendment solutions" and other such nonsense, and not without some basis.  Giffords's office windows had been shot out, apparently because she dared to vote in favor of health care reform.  And, of course, she was one of those Congresspeople targeted by Sarah Palin's PAC in an ad utilizing rifle sights to designate targets.  The right denied any connection between rhetoric and action and offered up some clearly bullshit responses, such as that the sights in the Palin ad were "surveyor's crosses", not rifle sights.

Perhaps the best sum up of how these things devolve into left/right affairs it noted in this Salon piece about the alleged shooter's list of favorite books on his MySpace page:

Conservatives pointed to Loughner's citation of "The Communist Manifesto" as proof that he was a leftist maniac and liberals interpreted his enthusiasm for Ayn Rand's "We, the Living" as evidence that he was a right-winger.

Not to toot my own horn, but when talking about the incident with the girlfriend on Saturday, I said that I thought a purely political motivation was unlikely.  There simply isn't a history of mass killings as political act in this country.  When an assassin targets a politician, there usually isn't a great deal of collateral damage.  As the girlfriend pointed out, killing a whole bunch of innocent bystanders - including a 9-year old girl (born on 9/11, no less) - would not do any cause any good.

Based on what we know now, which is still far from everything of course, the alleged shooter looks to be simply nuts.*  Based on his YouTube videos (screen shots helpfully preserved at TalkLeft), he appears to be paranoid and prone to conspiracy theories.  Might the ramblings about "currency" tie into the whole "get us back to the gold standard" argument of some libertarians and other right wingers?  Maybe, but it's hardly a strong tie in.  As John Scalzi puts it:

What little I’ve seen — which is basically what everyone else has seen to this point — doesn’t convince me this is about politics as anyone but Loughner understands it. We may (and probably will) learn more as time goes on. But for the moment, I’m of the opinion that whatever this is about, is about Loughner, rather than the overall state of politics in the United States.

Nevertheless, it looks like the incident might cause folks to focus a bit more on political rhetoric with violent images or overtones.  That's a good thing.  But let's try and talk about the issue without trying to score political points for our side.  Sometimes, you've got to turn off SportsCenter and get beyond the tribalism.  Whether we can do it or not, I have no idea.

* To paraphrase someone, he may be crazy, but he's not stupid.  According to reports, the alleged shooter had asserted his Fifth Amendment right to remain silent, so that may slow down the explanatory process a bit.  He's now in the hands of one of my colleagues from Arizona, who has a heck of a mountain to climb over the coming years.