Thursday, September 27, 2012

Apology? He's got to be kidding.

Okay, this will probably be my last post about the NFL referee lockout.

It should be obvious: I'm for labor, against the bosses. Also against the scabs.

Tonight, though, it's about the bosses. The contract is settled, the real referees get to go back to work, and all is right with the world.

So right, in fact, that Roger Goodell, NFL commissioner and professional POS, is being quoted as apologizing to the fans. In fact, that's the headline on the ESPN web page: "Roger Goodell apologizes to fans." Here's what he said:

"Obviously, when you go through something like this, it is painful for everybody," Goodell said. "Most importantly, it is painful for our fans. We are sorry to have to put our fans through that, but it is something that in the short term you sometimes have to do to make sure you get the right kind of deal for the long term and make sure you continue to grow the game."
Wait, what?

"It is something . . . you sometimes have to do to make sure you get the right kind of deal."

In other words, he keeps insisting that he and the owners were right.

That's not an apology.

As I say, professional POS.

Friday, September 21, 2012

Paige v. State of Vermont, decoded

Okay, I sort of promised I would do this, and I got the guy to send me his pleadings and everything, so here it is.
Brooke, if you're reading, here's the true analysis of your case. And, readers, feel free to just skip it if your head starts to hurt. 
The case name is H. Brooke Paige v. State of Vermont, et al., and it's pending in Washington Superior Court, Civil Division, Docket No. 611-8-12 Wncv. Two of the defendants, the State of Vermont and Jim Condos, have been served. President Obama has still not been served.
This case is what could be called second-order birtherism. It is based not on the disproven claim that President Obama was not born in the United States, but that he is not a natural born citizen because there is some additional requirement to establish natural born citizenship for purposes of eligibility to be President.
As you know, the Constitution provides that in order to be eligible to be President you must be a "natural born citizen". This is the only office for which that is a requirement, and "natural born citizen" is nowhere defined in the Constitution.
The claim that Paige makes is that when the Constitution uses the term "natural born citizen" it means "a child born in the country to `citizen' parents". This is because the term and meaning was invented by Emer de Vattel in his book The Law of Nations, which Paige tells us was in the possession of a number of the members of the Constitutional Convention when they adopted the Constitution.
That's pretty much it. That's the basic claim.
As you might guess, there are a few holes in this theory.

First off, if the Constitutional Convention had wanted to say what Paige claims, why didn't they just say it, or define "natural born citizen"?  No answer has been given to this fundamental question.
Second, as GMD regular ntoddpax points out in his own blog, Vattel doesn't say what Paige claims he says. Rather, Vattel's definition of natural born citizen is a citizen born in a country whose father is also a citizen of the country.  The citizenship of the mother doesn't enter into it. Thus, not only is this argument inherently bogus, but he even has to make stuff up to make this argument fit.
Third, as originally written the Constitution contained no definition or criteria for citizenship, vesting in Congress the power to establish "an uniform rule of naturalization". It was not until after the Civil War, in the Fourteenth Amendment, that the Constitution was amended to provide that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
At least since that time all credible and objective commentators have reasoned that every person born in the United States, having been citizens from birth, are natural born citizens.
Paige's response is that the Fourteenth Amendment doesn't change the definition of natural born citizen, and that no statutory or constitutional amendments adopted after the adoption of the Constitution change the original meaning of natural born citizen.
This in itself creates an internal contradiction, because Paige also says in his complaint that subsequent legislation, such as the Naturalization Act of 1790, establish the definition of natural born citizen. (Query: How can a statute establish or create the meaning of a provision of the Constitution?)
Funnily enough, the only use of the phrase "natural born citizen" in the 1790 Act is here:  And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens". The pertinent language, which I have highlighted, is instructive: this language doesn't say anything about persons born in the United States, it just says that someone born outside of the United States to citizen parents is entitled to be considered a natural born citizen. Since it would be absurd to argue that the only persons entitled to be considered natural born citizens are those born outside of the country to citizen parents, the only logical reading of this sentence is that it is a means of conveying natural born citizen status to these people in addition to those who already have it, those born in the United States.
Many cases have applied the citizenship clause of the Fourteenth Amendment, including the famous Supreme Court decision of Wong Kim Ark. Birthers are fond of arguing that none of these cases, includingWong Kim Ark, establish the definition of "natural born citizen" because none of them had to do with eligibility for President, which is the only application for that status. The problem with this argument is that it is entirely negative: even if it did prove that Wong Kim Ark did not establish the definition of "natural born citizen", it still provides no evidence that their pet definition is correct.
Fourth (I think that's what I'm up to), not a single court that has reviewed a challenge to President Obama's eligibility, and I think we're up in the neighborhood of 150 cases now,, has ruled in favor of the claim that Paige is making here. Is it possible that all those state and federal judges are wrong and Brooke Paige is right? I suppose anything is possible, but  the odds are pretty heavily stacked against it.
Fifth, President Obama is the seventh President born to at least one non-citizen parent. If he's ineligible then so were  Woodrow Wilson, Herbert Hoover, and Vermont's own Chester Alan Arthur, among others. Granted, maybe we would have been better off without James Buchanan or Herbert Hoover, but wishing won't make it so.
In short, there is no basis in law for the claim that President Obama is not a natural born citizen and therefore ineligible to serve as president. No court has ever ruled otherwise, and no court ever will. The chance that a Vermont trial court judge, or the Vermont Supreme Court, will rule that he is ineligible is precisely zero.
I know this has gone on for some time (you were warned), but I thought I'd just throw out a couple of other things you might have missed.
First, Paige's buddy, consultant, drafter, or whatever you want to call him in this case is notorious New Jersey birther attorney Mario Apuzzo. You can see some of his antics caught on video here.
Second, following Paige/Apuzzo's kitchen sink approach, the complaint sets forth a number of other areas that they think will incline the court in their favor, including a statement that their definition of "natural born citizen" "was again confirmed by Justice Daniels in Dred Scott v. Sandford, 60 U.S. 393 (1857)." Disregarding the misspelling of Justice Daniel's name (no s), it is most striking that anyone would try to bolster his argument by citing one of the most notorious  decisions in Supreme Court history.
I think I've found the language in Daniel's concurrence that Paige is talking about:

It is difficult to conceive by what magic the mere surcease or renunciation of an interest in a subject of property, by an individual possessing that interest, can alter the essential character of that property with respect to persons or communities unconnected with such renunciation. Can it be pretended that an individual in any State, by his single act, though voluntarily or designedly performed, yet without the co-operation or warrant of the Government, perhaps in opposition to its policy or its guaranties, can create a citizen of that State? Much more emphatically may it be asked how such a result could be accomplished by means wholly extraneous and entirely foreign to the Government of the State? The argument thus urged must lead to these extraordinary conclusions. It is regarded at once as wholly untenable, and as unsustained by the direct authority or by the analogies of history.

. . .
 That, in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. He was regarded and owned in every State in the Union as property merely, and as such was not and could not be a party or an actor, much less a peer in any compact or form of government established by the States or the United States. That if, since the adoption of the State Governments, he has been or could have been elevated to the possession of political rights or powers, this result could have been effected by no authority less potent than that of the sovereignty -- the State -- exerted [p482] to that end, either in the form of legislation or in some other mode of operation. It could certainly never have been accomplished by the will of an individual operating independently of the sovereign power, and even contravening and controlling that power. That, so far as rights and immunities appertaining to citizens have been defined and secured by the Constitution and laws of the United States, the African race is not and never was recognised either by the language or purposes of the former, and it has been expressly excluded by every act of Congress providing for the creation of citizens by naturalization, these laws, as has already been remarked, being restricted to free white aliens exclusively.

  Finally, birtherism does not seem to be the fringiest of Paige's fringe positions. Other equally wacky, if not more so, positions of his include:  

Tax Reform based on the elimination of Federal Taxation of Wages, the Restoration of the Constitutional Authority of the U.S. Treasury (by devolving the illegal Federal Reserve System back under government control), repeal of the Seventeenth Amendment as the best way to resolve the issue of term limits and the current voilation of the voting rights act of 1963 by our continued selection of U.S. Senators by popular vote - I could continue but you get the point. 
I won't spend much time arguing the point, but the evidence for President Obama's eligibility is so clear, and the support for the claims against him are so clearly spurious, requiring heroic efforts to sustain, that the only reasonable explanation is that birthers are motivated by a view that President Obama embodies a unique and unresolvable otherness that renders him unfit to ever serve as President of this great nation. That otherness, of course, is his race.

Tuesday, September 18, 2012

NPR: Where's the bias?

Part of our regular radio diet is On the Media, a public radio program produced by WNYC that examines various aspects of the mass media. It's valuable for people who are interested in the news, how the news gets to them, and what forces are at work influencing the content we hear.

Last week's program examined the relentless right-wing claims that National Public Radio has a liberal bias. I don't think it does, and I think the evidence shows that I'm right, but you can certainly listen to the podcast and make your own decision.

I thought it was ironic when I was listening to All Things Considered just yesterday, the day after hearing "On the Media" report on claims of NPR liberal bias, and I heard what struck me as a clear illustration of the opposite of liberal bias.

The story was about President Obama announcing at a campaign stop in Ohio that his administration had filed another unfair trade complaint against China. It was a dialogue between Audie Cornish in the studio and Scott Horsley on the road with the campaign, and at about 2:00 into the story the following exchange occurs:

CORNISH: Now, Mitt Romney has dismissed the president's latest enforcement action as too little, too late. And, I mean, are these the first enforcement actions the White House has taken against China?
HORSLEY: No. The White House boasted it has actually filed trade cases against China at more than twice the rate of the Bush administration.

 The question asked by Cornish was a factual question of how many trade complaints have been filed by the Obama administration. The true answer appears to be that the Obama administration has filed complaints at twice the rate of the Bush administration,  and after providing a one-word factual answer Horsley replies with a comment of "boasts" by the Obama campaign.

Nothing would have been lost in the report if Horsley's answer had been, "No, the Obama administration has actually filed trade cases against China at more than twice the rate of the Bush administration." That would have been a factual and complete answer to a factual question.

By adding the phrase, "the White House boasted . . ." to his answer, Scott Horsley implicitly indicated that the answer was one of opinion or political posturing, rather than one of fact. By doing this, and by characterizing the statement as a boast, Horsley's answer undermined the credibility of the Obama administration's statement and gave President Obama's opponents reason to reject the answer, since it was not a factual statement but merely a campaign boast.

There are many situations in which the facts are more favorable to one side of a debate or the other, but the media, especially NPR and other media aiming for credibility and impartiality, still have the obligation to report the facts.

Thursday, September 13, 2012

Do you need a mirror for this?

Just a few thoughts about the embassy violence this week.

It appears that the reason that some Islamic extremists are mad at the United States is this stupid anti-Islam movie that some guy made. You see, based on what they've been told of the way the world works, or at least the way the world they're familiar with works, it would be impossible for some anti-Islam extremists in the United States to make such a movie unless it was supported by the United States government. It's really just inconceivable to them that the intolerance of a few extremists is not typical of everyone in the United States and our government.

In response, conservatives in the United States are arguing, as they have argued before, that the actions of the people who attacked and burned our embassies and killed our ambassador represent the actions and beliefs of all Muslims. You see, based on what they've been told of the nature of Islam, it would be impossible for some anti-American extremists to take such actions unless those actions were supported by Islam around the world. It's really just inconceivable to them that the intolerance of a few extremists is not typical of all Muslims.

Wait, what?

Wednesday, September 12, 2012

Casualties of the war on drugs

Over my legal career one of the cases I am most proud of involved a federal drug forfeiture case I worked on. The victims of the forfeiture were a husband and wife and their four children. The federal prosecution, facilitated by a paid informant, landed both parents in federal prison for years and tore them away from their children. Then the federal government tried to take their home.

When [the parents] were faced with both prison sentences and the loss of their Vermont home, some had very little sympathy for their efforts to keep their four children together in the only home they had ever known. Their response when asked, “But what about the children?” was “Well, they should have thought about that before they got involved with drugs.” Fighting negative public opinion, the [parents] persisted in bringing their concerns to the press and their legislators. Their efforts were instrumental in raising awareness of the plight of child victims of forfeiture, and resulted in a debate on the rights of children in such cases, as well as front-page coverage in Vermont papers and on TV, and a piece in the New York Times law section, picture and all (“When a Forfeiture Means Uprooting the Innocent,” 5/15/92). In this article, Jessica, the . . . oldest child, then 15 said, “I haven't done anything for the past two years. I can't go on vacation because I don't want to come back and find the house boarded up. My parents should serve time for what they did, but the government shouldn't take our house. I've lived here since I was three. It's punishing us kids a lot.” (In this case, the . . .  two oldest children were actually part owners of their home under the terms of a divorce settlement between Patricia and their father -- a fact the government wished to ignore). 

I was able to represent two of the children, obtain representation for the other two, and work with the lawyers for the two parents to save the home for the children. At the time I had not heard of any similar case in which a family home was preserved for the children, so aside from the suffering and deprivation the family had to endure during the imprisonment it was a good result, and I'm happy to say that the family is still strong.

At the time I considered, and still consider, the paid informant to be lower than whale shit, abusing the trust of people who thought he was their friend for his own benefit. I wonder if he has ever felt remorse for what he did.

There are cases, though, in which the informant is as much a victim as anyone else. A recent New Yorker has an excellent article about confidential informants in drug cases, documenting a number of cases in which people arrested for minor drug charges were forced to become undercover informants. Sometimes, as happened to three young people profiled in the article, things go badly wrong (what could go wrong when you send an unsophisticated kid into a drug buy with cash, hard drugs, and guns, right?) and the undercover informant winds up getting murdered by the people the police sent them to gather evidence from.

You should read the whole article, but the gist of it is clear. The War on Drugs depends for its very existence on the coerced use of informants, some of whom are minors; informants are involved in up to eighty percent of all drug prosecutions. The informants are sent into dangerous situations with little or no training and inadequate supervision and backup. Their efforts not only enable drug prosecutions, they also provide support for the forfeiture industry, in which local, state, and federal agencies cash in on drug prosecutions by seizing the assets of the defendants in a system of "guilty until proven innocent" cases filed not against the person but against the property itself. (The case I was involved in was officially called The United States of America v. Eleven Acres of Land, More or Less.) These forfeiture cases enable them to buy guns, fancy cars (think Don Johnson's Ferrari on Miami Vice) and other equipment.  Finally, the system of mandatory minimum sentences not only imposes harsh sentences on minor offenses, increases the terrible incentive to become an informant, and includes rewards for acceptance of responsibility and cooperation with other prosecutions.

We have seen over the years that the War on Drugs has shredded our constitutional rights. It has inflicted terrible devastation on individuals, families, and communities. Now, we now see that for people unfortunate enough to be trapped into working for the government, the War on Drugs can be fatal.

Certainly there are reforms that could be introduced in the system of confidential informants and asset forfeiture, but the real problem is the War on Drugs itself. As long as we continue this pointless and futile effort we can expect that the battleground will be covered by the bodies of its casualties.

Monday, September 03, 2012

Don't watch tonight's game

It's Labor Day, that holiday established to honor America's working men and women, and particularly organized labor, the heroes who fought and died for the forty-hour week, the eight-hour day, employee benefits, and the right to organize. You could be forgiven for thinking it's just the holiday that marks the end of summer, but you'd be wrong.

Still, tonight, after the burgers are eaten, the beers have been drunk, and the grill is put away,you might be thinking about football. After all, it's fall and that's what fall is for, right? As you plan out your NFL viewing schedule for the season, I have a suggestion for you: Don't.

That's right, join with me right now and agree that you won't watch a single NFL game, in person or on television, as long as they're using scab officials.

You may have forgotten, but the NFL has locked out its workers, in this case the officials, and has hired scabs from the low minors (like not NCAA Division), going down as far as the Lingerie Football League, to save each team $6,000 a game. (Never heard of the Lingerie Football League? Uniforms consist of shoulder pads, elbow pads, knee pads, garters, bras, panties, and ice hockey-style helmets with clear plastic visors in lieu of face masks.)

Anyway, from the evidence available so far, apparently the scabs aren't very good, even compared to the scabs the NFL hired in 2001. Laughably bad, as in the broadcasters are literally laughing at the calls. So bad, in fact, that people, including the NFL players' union, are worried that they won't be able to keep the games safe for the players, and the players' union is considering a strike.

I don't care about football, and I won't be watching any of these games anyway, but I do care about workers' rights.

If you care about the quality of the football games you watch, or about the rights of the workers who are entitled by law to organize to negotiate for wages, hours, and working conditions, though, you should care about this lockout, and maybe you should decide that you're not watching scabs.