The Crime of Climate Change

April 25, 2019

Yesterday we celebrated nearly a half century of earth days. Some problems have been dealt with, but the problem of climate change has only been getting more urgent. People have been driven out of their homes, communities have been submerged, people have been starved and parched for lack of food and water, fallen victim to thieves looking for the means of survival, and for any or all of those reasons lost their lives and their families to climate change. Those politicians and corporate managers who have refused to lift a finger to protect the climate our lives depend on, those who have blocked any effort to protect our global home should be held criminally guilty of a litany of crimes from conspiracy to murder.

One of the highest priorities of government is to protect us – against fraud, weapons, bad people and natural disasters. A certain trashmouth thrives on enemies and goes looking for them in the Middle East where many share a religion less common here, and on the southern border where he seems terrified by women and their children worn out by a trek of thousands of miles, and starved by the endless walk. They give him the opportunity to shake his fists and flick his tongue at the weak and defenseless.

Amidst the fake threats he claims we should fear, he ignores the big one, the threat that will make our lives nasty, brutish and short, leave our communities in chaos with disease, drowning, and starvation. Climate change destroyed much of this year’s corn crop in the Midwest and is gradually damaging and destroying food supplies, flooding homes and farms, weaponizing bugs, mosquitos and disease. That’s real news that should displace his make-believe one.

But you can’t shoot the climate – that just doesn’t fit the demands of his trash talk and bravado. Dealing with the changing climate requires being willing to listen and learn from people who know what they are talking about, to put aside the arrogance of claiming that he alone knows more than all the world’s scientists, doctors and specialists. He might have to accept advice from people who have spent decades studying the problem.

A world in chaos, where survival depends on theft and murder, is the oyster of hoodlums, gang members and terrorists. Rather than worry about Honduran immigrants, let’s deal with the fact that our country can be turned into Honduras because everything that creates wealth and normality is threatened by climate change. We may hold the Russians and the Chinese at bay with armed forces, but the military will not keep the climate normal.

Are we strong enough to look into the real face of danger and organize ourselves to deal with it? Our government and our scientists and our people have dealt with real challenges when we’ve let them. We’ve sacrificed when we had to. Economists tell us that the most efficient and effective step we could take is a significant carbon tax, but we don’t trust government to redirect the profits from such a tax in order to protect ordinary Americans the way it did when we were at war in the 40s. Too many politicians insist that any attempt to help and protect the people is socialism; they corrode our ability to use government to protect us.

Let’s talk straight: any politician who doesn’t make dealing with climate change our top priority should have the book thrown at him or her. Climate change is already killing millions. It’s not opinion; it’s physics. There are fanatics in Pakistan and Africa who don’t believe in science, where the worst diseases are endemic, and where people kill aid workers trying to vaccinate the population. We know better; there’s no excuse.

— This commentary was broadcast on WAMC Northeast Report, April 23, 2019.

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Climate Change and Flooding in Shiraz

April 16, 2019

Have you seen the pictures of the flooding in the city of Shiraz in Iran? I spent two years living in Shiraz, in the middle of the Iranian desert. Shiraz is near the ancient capital of Persepolis, its Greek name – the Iranians call it Takht-e-Jamshid, or the thrown of Jamshid. It was the winter capital of the legendary kings of Persia: Cyrus and Darius. It was the winter capital because it was warm, much warmer than their summer capital. My future wife was stationed in Hamadan, which the ancient kings used as their summer capital because it was cool. I visited her there and I can testify to the temperature difference.

Persepolis and Shiraz are in the great Iranian desert. It’s very dry. I’d seen it drizzle but you never needed to worry about covering up from the rain. My friends and I were once invited to an open house at an observatory and that was the only evening on which I remember clouds and a very few drops. In fact, it was so unusual that when we made a wrong turn and ended up in the ammunition dump of the Persian army and told the soldiers we were going to the place where you go to see the stars … sure, a likely story! So that was the time I was held at gunpoint in Shiraz until they called the General who was fluent in English and sent his jeep to rescue us. Except for that teaser, and what they piped down from distant mountains, no, there was no water in Shiraz.

But now I’ve seen photos of flooding in Shiraz. Cars and trucks literally swept along in water several feet deep, floating, pushed by currents of water – I hesitate to say downstream because there was no stream, so what’s down or up?

It’s not nice when it floods in the desert. People aren’t prepared for it. There’s no infrastructure to deal with it. People get carried to their deaths by sudden walls of water. And the water doesn’t stay and do any good. The land can’t soak it up.

The floods in Shiraz are more than a curiosity. They are another reflection of a changing and very unpredictable environment. Sharp environmental changes push people out of their homes, kill others, destroy ways that people earned their livelihood and sustenance. Even now the American military is thinking about the implications. But it’s a worldwide problem and they all need to think about it. People will need protection. Others will become refugees looking for places they might be able to live. Everything is up for grabs.

I once chatted with a very successful engineer about the fact that his home is 8 feet above sea level in New York City. Why not move to higher ground? Because when the water rises 8 feet, New York won’t function like a city; the infrastructure will be overwhelmed. How about moving up to this area where except right next to the Hudson the land is a couple of hundred feet above sea level? Because millions of people from New York City will overrun this area like the gold rush overran Sutter’s Mill in California. A world in climate change will be unpredictable and dangerous.

Maybe we should deal with the climate.

— This commentary is scheduled for broadcast on WAMC Northeast Report, April 16, 2019.

 


Brazilian democracy in danger

April 14, 2019

Another dangerous step in the rise of the wrong wing led by Trashmouth in the White House described at http://www.iconnectblog.com/2019/04/bolsonaros-unconstitutional-support-for-the-brazilian-civil-military-dictatorship-of-1964-1985/.


Guns make bullies of us all

April 8, 2019

We often use the tool at hand for whatever we’re trying to do. Got aspirin or alcohol? Drink it down ‘cause everything feels like a pain. Got a wrench? Everything looks like a pipe. Got a hammer and everything looks like a nail. Pete Seeger sang If I Had a Hammer he’d have used it to hammer out justice. It’s a wonderful song but it seems like the wrong tool.

Some of you may remember the late Congressman Steve Solarz. We went to high school together and I always remember a conversation we had about brotherhood – in student government I headed the brotherhood commission. Steve understood my passion and commented we can’t hammer brotherhood into people. Indeed, we can’t. Instead I had the privilege of inviting Jesse Owens to our school and introducing him to the assembly. Owens, an African-American, had won four medals at the 1936 Olympics in front of the Nazis in Berlin, Germany. We gave him our brotherhood award and then had the privilege of hearing him deliver an impressive and very powerful talk about brotherhood – a great alternative to using a hammer.

In the afternoon before I drafted this commentary, I read about a recent incident of abusive policing in Albany. In the evening, my email was filled with a discussion among law professors about an example in Louisville. Look at Washington and see international sabre-rattling. I looked over some draft commentary and read one about Israel’s reliance on force. And I realized there is a theme. Everybody has the same hammer with a barrel and a trigger. Much too often, from Albany to Louisville to Israel, the Philippines and many other places, the people with the guns don’t bother using their heads or their manners. They don’t have to. Them guns ‘ll make people shut up.

I don’t want to be simplistic about it. Policy changes often lead to overreaction. Focusing on domestic law enforcement, the public somehow has to support the police while also controlling it.

Nevertheless, mappingpoliceviolence.org/ tells us “There are proven solutions. Police Departments that have adopted these use of force policies kill significantly fewer people. But few departments have adopted them.”

Of course, if we could hang them up or put them away except when necessary, we could eliminate a lot of mistaken killing of innocent and unarmed people. There’s lots that police do that don’t call for guns.

Guns also don’t belong in cities. It’s one thing to use a gun for hunting but it’s another for people like George Zimmerman to think they are protecting the community by carrying a gun and killing an unarmed 17-year-old African-American who was heading away from, not toward, Zimmerman.

Guns do not belong in the hands of people who are convicted of domestic violence or any other kind of violence – only the manufacturers could truly like selling guns to people likely to use them on their families. Guns enable people to act out their worst instincts.

I support the Second Amendment right to carry a muzzle-loading-single-shot-18th-century device deep in the woods. That’s the strict construction that conservative judges have been trying to teach us to use. Claims about the breadth of the Second Amendment come from people’s prejudices, not the Constitution. Guns should need an excuse and a warrant before they are pulled out in public because guns make bullies of us all.

— Addendum – four excellent podcasts and web sites:

Shots Fired Part 1: https://www.wnycstudios.org/story/shots-fired-part-1

Shots Fired Part 2: https://www.wnycstudios.org/story/shots-fired-part-2

https://mappingpoliceviolence.org/

http://useofforceproject.org/#project

— This commentary is scheduled for broadcast on WAMC Northeast Report, April 9, 2019.


Problems Proving Obstruction and Conspiracy

April 2, 2019

Two statutes add to the many issues that complicate the status of Robert Mueller’s investigation of Russian interference in the 2016 presidential election.

One defines obstruction of justice as “imped[ing] the due administration of justice.”[1] It has been treated as necessary that one have specifically intended to obstruct a proceeding. One can prove that someone like Trump intended to impede justice either by statements of intent or actions that make it obvious. Obstruction is about such things as Trump’s dismissal of Comey and urging an end to the investigation. It would have been cleaner if Trump had recused himself from the investigation. But he didn’t dismiss Rosenstein or Mueller or order either Comey or Sessions to end the investigation, only encourage them to. Was that enough? It probably would be if you told a police officer to get lost. But, even though Congress is not limited by the same rules of evidence, Supreme Court decisions about evidence of intent will complicate things. Let me come back to that in a moment.

A second statute makes “[A]ny conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . .” a violation of federal law.[2] Participants must agree, intend, and do something to further the conspiracy. Once again, intent might be proven by explicit statements, or by actions that make it obvious.

The Supreme Court, however, is not a friend of the obvious. It ratcheted back the law of conspiracy in an antitrust case saying that it is not enough to show that two people or companies acted as if they were acting in concert. The Court wants something closer to an explicit statement or admission.[3]

The Court doesn’t like to infer intent from behavior, except for infering intent to favor African-American efforts to equalize their opportunities with those of whites. The Court decided that many electoral district lines were unconstitutional racial gerrymanders in favor of African-Americans based on the shapes of the lines, even where the more obvious purpose was political gerrymandering which, to this day, they refuse to condemn.[4] But the Court resists finding that white officials disadvantaging minorities did so intentionally.[5] In one case they would not even get to the evidence, writing that such discrimination by high public officials was “implausible.”[6]

Intelligent attorneys would stop short of explicit statements or admissions. Politicians and criminal conspirators often make agreements based on unstated understandings. Trump came much closer to the brink than an intelligent lawyer would have. But notice the absence of any explicit quid pro quo. There’s no “release the recordings, Mr. Putin, and we’ll deliver the EU.” There’s no “let us help you violate our laws to get information on the Democratic National Committee or candidate Clinton.” It wasn’t even in the form of requests that they do some illegal things in the U.S. Instead the evidence we know about was all encouragement – saying that would be great, we hope Putin does it, or we predict he will. Trump’s statements are not explicit. Lawyers recognize that circumstantial evidence is often the most reliable but this Court thinks big shots and major corporations should be protected from it. Here, the evidence we know about is ambiguous – does it indicate a joint endeavor or simply knowledge of Putin’s actions?

The strength of the evidence will depend in part on whether Congress is willing to ignore the Court. In other words, the U.S. Supreme Court had its favorites and its scapegoats even before Trump’s appointments made it worse. None of that makes Trump blameless but it does mean that there will be battles over the evidence if there is any attempt to impeach.

— This commentary was broadcast on WAMC Northeast Report, April 2, 2019.

[1] 18 U.S.C. § 1503, 1505 and https://www.law.cornell.edu/wex/obstruction_of_justice.

[2] Hass v. Henkel, 216 U.S. 462, 479-480 (1910).

[3] Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

[4] See, e.g., Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996).

[5] See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); and see also League of United Latin American Citizens [LULAC] v. Perry, 548 U.S. 399, 517 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part).

[6] Ashcroft v. Iqbal, 556 U.S. 662 (2009).


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