War and the Sources of Fake News

June 25, 2019

The president would have us believe that anything critical of him is fake. To which many respond that everything out of the president’s mouth (or twitter feed) is fake. Both statements, of course, are false.

Everyone makes mistakes but deliberately faked news often has government hands all over it. One American Administration took us into Vietnam based on lies about what happened in the Gulf of Tonkin, which were revealed when government reports were finally declassified. Another took us into Iraq on the basis of cooked evidence about weapons of mass destruction.

Teaching free speech, I don’t compare truth and falsity – there are enough screw-ups to go around. I compare whether there is better information when the press can act as watchdog or when we are forced into total reliance on official pronouncements. Around the world the answer is obvious. Here the answer is clouded by our attachments to our favorite politicians. But the so-called classification system is designed to feed us cooked evidence when an Administration thinks we can’t deal with truth. Of course, some secrets are kept for reasons of national security or diplomatic reasons, but much is protected only for political reasons. All Administrations convince themselves that it’s good for America that they keep secrets or that they deliberately mislead us. We simply have to assume that even our own government lies to us regularly, sometimes convinced that it’s good for us and often convinced that distortions are good for themselves.

That’s why the press matters. No person or institution can understand everything or get everything right.  Even Einstein didn’t although I certainly like his batting average. But only by examining conflicting evidence do we have some hope of teasing out what we need to know.

John Stuart Mill gave us our basic understanding of free speech and press, teaching that public officials have reasons to mislead: for reelection, to enlarge their own power, to get what they want done, to protect themselves or their beliefs, etc. His point was human fallibility coupled with power to throttle everyone else spells a high likelihood of official gobbledygook masquerading as truth. Worse, official censorship blocks the press from digging and correcting as many important stories as possible. Science, by contrast, is designed to keep challenging mistakes and getting better answers. A free press, too, can keep improving answers.

Go back to the examples I made at the head of this essay. The press made lots of mistakes about Vietnam, Iraq, and elsewhere. But the most damaging mistakes resulted from intentional government newsfeeds designed to mislead. We eventually learned the truth about those and many other cases because reporters kept pushing for more and better information.

Unfortunately I’ve learned over many years not to trust our presidents – they have too many reasons to mislead us that seem good to them. I think Trump is worse than most – he so often misstates the facts that I never trust him. Conservative commentator Bret Stephens wrote, “the Trump administration has credibility issues, to put it mildly, which is one reason why electing a compulsive prevaricator to the presidency is dangerous to national security.” On the other hand, many other presidents have told the truth just often enough that we become gullible when they really want to mislead us.

There’s no way to know what the situation will be between the U.S. and Iran by the time this is broadcast.  But too many lives are at stake; too much depends on figuring out what information is accurate, who is telling the truth and who isn’t, let alone whether it justifies killing both Iranians and Americans. Let there be no war.

The AUMF and War in the Middle East

June 18, 2019

Among the problems with the outdated Authorizations for the Use of Military Force are the countries trying to get Uncle Sam to fight their wars, the difficulty in telling who did what, and in knowing what even our own Administration is up to. Remember that one American Administration took us into Vietnam on the basis of attacks on American military vessels that never happened, and another Administration took us into Iraq on the basis of similarly cooked evidence.

Nor is it easy to tell what the current Administration is doing. The Administration tells us it is confronting Russia by implanting weapons in their power grids.[1] But Trump Administration officials warned the former secretary of Homeland Security not to bring up its efforts to confront Russian interference with upcoming American elections.[2] Are we facing them or bowing to them? As Bret Stephens put it, “the Trump administration has credibility issues, to put it mildly, which is one reason why electing a compulsive prevaricator to the presidency is dangerous to national security.”[3]

Should we support the Administration’s warlike stance toward Iran, on the assumption that we have accurate information that Iran torpedoed two tankers in the Gulf of Oman, including one that is Japanese owned, or should we believe the Japanese that the ships were attacked “by a ‘flying object’” from the air, not torpedoes in the water?[4] Is the best comparison the cooked attack in the Gulf of Tonkin in the Johnson Administration or the cooked claims that Iraq had weapons of mass destruction in the George W. Bush Administration?[5]

And what is all this for? Trump says he wants to stop Iran from going nuclear but Obama had already done that for the foreseeable future. Trump instead released Iran from its obligations under the nuclear agreement. The difference seems to be that Trump wants the credit. But he keeps threatening Iran and getting mad when they don’t lie down and play dead. Worse, Iran is disciplined and intelligent enough to find ways to fight back. Trump seems to figure that Iran alone has no right to fight back, though that way of thinking is likely to involve us in a totally unnecessary war, unnecessary because the agreement he terminated did a pretty good job.

The fist pumping and showing off of military hardware is supposed to make Trump look tough, but it risks the lives of American men and women, not to protect America, but to protect Trump’s reputation, whether as tough guy or as bully depending on whom you ask.

American lives should not be spent in the Middle East. There’s little evidence that we can do any good. Its oil is no longer important and would be better left in the ground. It’s run by a bunch of petty dictators, most of whom would fade into insignificance without American aid and involvement. Moreover, by comparison to most countries in the Middle East, Iran has a relatively stable democratic system. Iran’s clerics have certainly imposed limits but nevertheless the people have a major voice in the choice of the Prime Minister and the legislature. Let Saudi Arabia and the other Gulf states fight their own battles.

Meanwhile, I completely agree with Paul Barker, another former Peace Corps Volunteer who served this country in Iran, like I did, and who wrote the LA Times that before this Administration “leads the U.S. into yet another disastrous war, our lawmakers must repeal the 2001 and 2002 Authorizations for the Use of Military Force and secure the passage of the Prevention of Unconstitutional War with Iran Act. The U.S. can ill afford to stumble into yet another forever war in the Mideast.”[6]

[1] David E. Sanger and Nicole Perlroth, U.S. Escalates Online Attacks on Russia’s Power Grid, https://www.nytimes.com/2019/06/15/us/politics/trump-cyber-russia-grid.html.

[2] Eric SchmittDavid E. Sanger and Maggie Haberman, In Push for 2020 Election Security, Top Official Was Warned: Don’t Tell Trump, https://www.nytimes.com/2019/04/24/us/politics/russia-2020-election-trump.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer.

[3] Bret Stephens, The Pirates of Tehran: If Iran won’t change its behavior, we should sink its navy, https://www.nytimes.com/2019/06/14/opinion/iran-oil-tanker-attack.html?action=click&module=Opinion&pgtype=Homepage.

[4] Eliot Higgins, Was Iran Behind the Oman Tanker Attacks? A Look at the Evidence, June 14, 2019, https://www.nytimes.com/2019/06/14/opinion/iran-tanker-attacks.html?action=click&module=RelatedLinks&pgtype=Article.

[5] Id.

[6] Paul Barker to the LA Times, , 5/18/19.

This Dishonorable Court

June 11, 2019

Last week we talked about ways to block appointments that could make this Court even worse. Is it worth it?

First, if allowed to fester, patterns of Court decisions can last for long periods.

In 1876, the Court denied any federal jurisdiction to prosecute racially motivated violence intended to change political control of government, setting the stage for segregation and intimidation which the Court finally began to address 64 years later. In 1883 the Supreme Court held that Congress had no power to ban racial discrimination in public accommodations. That remained the law until Congress and President Johnson took the Court on in 1964, a reign of discrimination and violence which continues to corrupt race relations.

Later in the nineteenth century, the Court set itself against the economic ideas of the Populists, Progressives and many state governments. That finally changed in 1937, after almost half a century, by which time President Roosevelt was on his way to appointing the entire membership of the Supreme Court.

Republicans like to blame the Warren Court for everything they don’t like but it was the Burger Court, with four Nixon appointees, that decided Roe v. Wade. Abortion foes still struggle to reverse it after nearly half a century.

In other words, patterns of judicial decisions can last for long periods despite concerted efforts to reverse them.

Second, what the Court has been doing under Chief Justice Roberts is very damaging to American decency and democracy.

In an infamous case, Chief Justice Rehnquist wrote that even if evidence turns up after a defendant had been convicted and shows that the defendant was probably innocent, the conviction was still final and no hearing to consider the new evidence is required.  So the petitioner, Leonel Herrera, was executed. We call the members of the Supreme Court “justices.” But justice had no sway in their thinking. The Court has revisited the issue several times, but it has not changed the law.

Instead the Court keeps getting worse, moving political power away from ordinary Americans. They let states monkey with election arrangements to prevent opposition supporters from voting. They protect partisan gerrymandering of legislative districts in order to protect incumbent parties.

While eviscerating ordinary voters’ rights, they protect the use of corporate cash to control the political process while attacking the political voice of American workers by shredding their unions’ economic base. That combination of support for corporate power and decimation of everyone else’s has been catastrophic for the electoral strength of ordinary Americans.

Beyond its blatant political partisanship, the Court repeatedly attacks the pocket books of ordinary Americans, protecting corporations from responsibility for the harms they do to customers and workers, protecting them from antitrust laws, undercutting employee wages and hours laws, and making us responsible for contract provisions that we may never have seen much less read or understood or had any realistic choice to decline.

The conservative majority has not been friendly to environmental protections that affect our air, water and warm our globe. Heaven forbid corporations should be responsible for the damage they do.

Past experience indicates that these decisions and the damage they are doing to American democracy and the economic system can fester for a very long time. But these problems are time bombs, so the nation can’t wait.

To Protect the Court

June 4, 2019

There’s a lot going on this week. I’ve put on my blog some information about funding legal services for the asylum-seeking immigrants at the Mexican-American border and on the struggle for marijuana legalization in New York.

Now let me turn to the Court. Donald Trump and Mitch McConnell are making noises about approving new Supreme Court judges as soon as possible, regardless of whether it is an election year, the Republican excuse for not taking up the Garland nomination.

By the way, the Constitution does not call them “justices.” That strikes me as a title that should be earned and too many members of this Court have not earned the right to claim that they do justice. The difference between judging and doing justice matters. So the issue is whether we can stop appointing people to perpetrate injustice under the robes of Supreme Court judges?

Democrats do not control the Senate. According to Art. II, sec. 2, the U.S. Senate has the constitutional power to reject the president’s appointment of “Judges of the Supreme Court” because they must be made “by and with the Advice and Consent of the Senate.” The House does not have that power.

Case closed? Is the House out of the game? Absolutely not because it does not have to fund new appointments. Once a judge is approved, the House loses its power to eliminate or diminish the salary of Supreme Court judges. Article III, sec. 1 reads in relevant part that “The Judges … shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

But the constitutional provision refers to judges after they have been confirmed and are holding their offices as judges. Before that happens, many changes can take place, in the number of judges on the Court and in the terms of their compensation. The Constitution does not specify the number of judges, and the Supreme Court has varied from five to ten. Nor does the Constitution specify the compensation of judges except that it may not be diminished during their term in office.

The House of Representatives actually gets regular cracks at those apples. Aside from proposing changes in the laws, perhaps the most significant is in the budget process. Another clause of the Constitution, Article I, section 9, par. 7, reads in part, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

So in any new appropriations bill, the House would have to go along to provide for any compensation whatever for a new Supreme Court judge. Beyond that, of course, there is the possibility of all kinds of negotiations in which the House might condition appropriations on having its will with respect to the size of the Court.

The real issues are whether the House is willing to play hardball, and whether the public which has been offended by the treatment of Supreme Court nominations by McConnell, the Senate and the president, would back them up. That is a political judgment and advantages might go either way, but it is not a constitutional issue. The House is not a rug to be stepped on; it is a necessary player in judicial politics.



Conspiracy Theorists and Ginsburg’s Illness

June 3, 2019

Stumbled on a case study of conspiracy theorists who claimed Ginsburg had died, Jon Levitan and Andrew Hamm, Case study on the Ginsburg conspiracy theories in action, SCOTUSblog (Mar. 15, 2019, 11:37 AM).  Have a good laugh and then a good cry. The story is funny so long as you forget how sad and dangerous these fabricators are. Need I add that the study of these conspiracy theories was conducted by SCOTUSblog, a well respected source for news on the Court.

Marijuana Justice

June 3, 2019

On a recent NYCLU lobby day, I had the privilege of speaking with several members of the NY legislature including my own representatives in both the State Senate and Assembly. I know that there is a lot of feeling in the legislature that it is time to stop criminalizing generations of minorities for sales of marijuana.

There are perfectly appropriate ways to regulate sales without condemning and criminalizing people for sales that are purely harmless. There is a market for perfectly decent uses of marijuana. It is absolutely appropriate that this be done in a way that takes account of racial justice and provides pathways for people in the minority communities to participate instead of saying marijuana is good now and then excluding the minority community from the benefits. The history of regulation of marijuana has been a history of discrimination. It’s time to undo as much of that as possible.

Let me suggest typing “smart-ny.com/act” into your computer. Of course search engines are masters at taking precise requests and giving you a list of choices that don’t include what you asked for. I tried many formulas and this one worked. Make sure you get Start Smart New York but don’t type that – type “smart-ny.com/act” or the search engines will fight you – that of course is another battle.

And when you get smart-ny.com/act, you might take a look at their suggestions and consider calling your representatives. I don’t know how many of you have done that, but it should not surprise you that your representatives are happy to hear from you. They want to know what you think. Give them that pleasure.

Funding Legal Work at the Mexican-American Border

June 2, 2019

At the NYCLU Annual Meeting a couple of weeks ago, we had an excellent discussion of the problems at the U.S. borders. Two of the attorneys who are actively working at the Mexican-American border in Texas came to talk with us: Lorelei Williams, Director of Immigration & LGBTQ/HIV Advocacy at Staten Island Legal Services, and Claire Thomas, the Director of the Asylum Clinic at New York Law School. Zach Ahmad came up from the main office of NYCLU and spoke about problems on the New York border. (We were supposed to hear from Albany Law’s Sarah Rogerson but, unfortunately, she was ill and couldn’t come.)

What Claire Thomas and Lorilei Williams described was harrowing and painful to hear. I had conversations with both women, but Lorilei and I got into a conversation about how the work is being funded. Programs on immigration law are not necessarily supporting lawyers to head for the border. The absence of counsel for the thousands stranded at the border is a major problem. I was particularly impressed by the fact that many of the attorneys are going down there on their own dime. Because of that, I asked Lorilei to send me some info about which organizations are supporting lawyers at the border and could use help for this humanitarian work. This is what she sent me:

Hi Stephen,

Thanks so much for reaching out, and for your kind words. The draft post looks great- thank you for sharing. Here are two great resources with more articles and places to donate/volunteer:



A few other additions would be to donate to Annunciation House or Santa Fe Dreamers Project as well.

Thanks so much for your support. Every little bit helps!


Lorilei A. Williams,

Director, Immigration & LGBTQ/HIV Advocacy,
Staten Island Legal Services

After hearing from Lorilei, my friend, Henry Freedman, who ran the National Center for Law and Economic Justice for some forty years, wrote to suggest another, the Immigration Justice Campaign, https://www.immigrationjustice.us/, For novices in the immigration field, it provides CLE, written and visual training materials and resources, plus mentoring from an experienced immigration lawyer, and insurance coverage can be provided for retired attorneys. Henry wrote me that he and his wife, a former NY State appellate judge, have used the program very successfully in Immigration Court asylum cases.


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