Anthony Kennedy will retire July 31. This gives Trump and Republican Senators a chance to nominate and confirm a fifth hard right justice. Already the Court has become extremely ideological and activist. Today it declared that Unions couldn’t require employers to pay the union a a fixed amount per worker, because that allegedly violated the first amendmenr rights of workers in unionized workplaces which disagree with the union leadership. This is Lochner v New York level right wing judicial activism

But it is nothing compared to what a court with Kennedy replaced by another justice similar to Gorsuch, Alito or Thomas. That court would almost certainly overturn Roe v Wade, probably declare affirmative action unconstitutional, and quite possibly reverse the gay marriage decision.

The vast majority of Democratic Senators who have spoken have said they won’t confirm a justice in this congress but will insist on a delay until senators elected November 2018 are seated. They note McConnell’s argument against considering Garland and quote, among other things, a tweet of his.

There are only 49 Democratic Senators. They need two Republicans (or one if McCain misses the vote). They also need Democrats up for re-election in red states to resist. Already Senator Donnelly of Indiana has begun to semi-break with Senate Democratic leadership. I’m sure the vast majority of Democrats will do what they can to block confirmation. It is possible that there will be two or three Republicans will agree. Sen Flake of Arizona already announced he is blocking judicial confirmations over tariffs and Cuba. A supreme court nomination is completely different, but Flake hates Trump and is not running for re-election. Sens Collins and Murkowski are pro-choice. The might block an anti-abortion nominee. Democratic victory is not likely but it is possible.

But this raises another issue. Yesterday it seemed much more likely than not that Republicans will have a majority in the next Senate. There are very few Republican seats up for election (the map is worse for the Democrats than any Senate map has been for any party in living memory). Republicans also always argue (often correctly) that recent events improve their political chances. In particular, they can count on conservatives (who might have sat out the election) voting against Roe V Wade.

This is relevant to strategy, because if Democratic Senators reduce their re-election chances by obstructing the confirmation, and then Republicans have a majority again, they will have paid a political cost for no gain.

On the other hand (I finally get to the point if any of this post) I think there are two important reasons that the crisis might help Democrats win the Senate. First, for decades there have been more single issue pro-life voters than single issue pro-choice voters, because Roe V Wade was there and seemed secure. Solid majorities support Roe v Wade. Now that it is clearly in great danger, it is likely that many pro Roe V Wage voters will vote on that issue alone so long as there is an open seat on the Supreme Court. Abortion is an issue in which a passionate minority has more political impact than a complacent majority. The pro Roe V Wade majority won’t be complacent anymore.

But I think there is another issue which might hurt Republicans even more. There is an absurd case in which red state attorneys general argue that the ACA is now unconstitutional after being modified by the Republican tax cut bill. The Trump Justice Department refuses to defend the ACA and says that protections for people with pre-existing conditions are now unconstitutional. This was already a huge gift to Democrats. Gigantic majorities support the protections. Voters are extremely focused on health care. On health care, they already trusted Democrats much more than Republicans. Lawyers say the plaintiffs’ arguments are nonsense, but it is very easy to argue that, since Trump agrees with the plaintiffs, he will will nominate a justice who will side with them. I would guess that Roberts would then save the ACA again, but I wouldn’t bet on it, and I don’t think voters concerned about pre-existing conditions would either.

It is possible to link the struggle over the Supreme Court to the struggle to protect people with pre-existing conditions. In fact, the Justice Department has undeniably linked the issues. This issue could determine control of the Senate, but it is more likely to be decisive if there is an open seat. Vote for the Democrat to protect people with pre-existing conditions from judges who legislate from the bench is a pretty strong argument (I almost typed “good slogan” but it is too long).

In particular, one of the most vulnerable Democratic Senators, Claire McCaskill (D-MO) is running against the state attorney general who is one of the crazy plaintiffs. She has already stressed this. Arguing that voters better not elect a Senator eager to confirm a justice who will delcare pre-existing condition protections unconstitutional strikes me as about the best campaign strategy I can remember.

So I think obstruction is the best way for Democrats to address both the vital issue of the supreme court and the important issue of the next Senate. It sure seems that the vast majority of Democratic Senators (who know and understand much more than I do) agree.

Update: Senator Schumer was 2 hours ahead of me (it’s his job).

Will Republicans & @realDonaldTrump nominate & vote for someone who will preserve protections for people w/ preexisting conditions, or will they support a justice who will put health insurance companies over patients, or put the federal government between a woman & her doctor?

— Chuck Schumer (@SenSchumer) June 27, 2018

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“I have rarely seen so much inconsistency and even hypocrisy from the Supreme Court as in its decision to uphold President Trump’s travel ban.”

On the Colorado SCOTUS Decision

A few weeks ago, the court found that members of the Colorado Civil Rights Commission had expressed impermissible hostility to religion because of relatively mild statements that every business in Colorado should serve all customers regardless of the owner’s religion, and that terrible things have been done in world history in the name of religion. By contrast, the court in upholding the travel ban essentially ignored repeated statements from Trump and his top advisors that he wanted to ban Muslims from coming to the United States.”
The president initially promulgated the travel ban by executive order on Jan. 27, 2017. It suspended immigration from seven countries for a period of 90 days and suspended the refugee program for a period of 120 days. It had an exception for those who were from minority religions in these countries. The seven countries shared three things in common: All were more than 90% Muslim, Trump had no economic investments in any of them, and none ever had been linked to terrorist activity in the United States.”

On the Travel Ban Scotus Decision

“Of even greater significance is the court’s contention that great judicial deference must be paid to the president in immigration policies, and that his actions will be upheld so long as they are supported by a conceivable legitimate purpose. With this premise, the court made irrelevant all the statements Trump and his advisors made about their desire for, as candidate Trump put it, a “total and complete shutdown of Muslims entering the United States.” The government’s claim that there is a national security justification for the ban is all that mattered. The dissenting justices in the travel ban case rightly analogize the majority’s ruling to the Supreme Court’s infamous decision in Korematsu vs. United States, which upheld the internment of Japanese Americans during World War II. Both policies were based on prejudice, not national security. In 1944, there was no evidence linking Japanese Americans to any threat to the country; there is now no evidence linking immigrants or visitors from the designated travel ban countries to terrorism. Although Roberts’ majority opinion repudiated Korematsu, the court ignored its crucial lesson.

Korematsu and now Trump vs. Hawaii represent the false assumption that danger to the nation can be determined by a person’s nationality or country of residence. In the United States, dangerousness should never be determined by race, ethnicity, national origin or country of residence. The Supreme Court ignored that fundamental American principle and created a precedent that gives the president vast powers to discriminate. It may be a victory for President Trump, but it is a huge loss for the Constitution and the rule of law.” Erwin Chemerinksy

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The ACLU’s Ría Tabacco Mar reviewed a recent SCOTUS decision in the NYT. South Dakota is being allowed to murder a man rather than commit him to a life time of hell in a natural life sentence . Charles Rhines was convicted of murdering a man while robbing a Dunkin Donut store he used to work at and was fired from a couple of weeks earlier.

The jury in deciding Charles Rhines fate in deliberation sent questions to the judge asking;

Would Rhines have a cellmate? Would he be allowed to “create a group of followers or admirers”? Would he be allowed to “have conjugal visits”? They apologized if any of the questions were “inappropriate,” but indicated that they were important to their decision-making.

The judge declined to answer, telling the jurors everything they needed to know was already in the jury instructions they’d received.

Eight hours of deliberation later and the jury sentenced Charles Rhines to death. It was not until 2016, when the newly appointed federal capital defenders found the jury note and restarted the appeals process and they interviewed the jurors learning what can be described as a preconceived bias of the jury towards Charles Rhines because he was gay.

One juror said Rhines was gay “and thought that he should not be able to spend his life with men in prison.” A second recalled another juror making a comment “sentencing Rhines to life in prison would be sending him where he wants to go.” A third said “there was lots of discussion of homosexuality” in the jury room. Another juror said, “There was a lot of expressed disgust. This is a farming community. There were a lot of folks who were like, Ew, I can’t believe that.” All of which is not pertinent to the sentencing. The jury sentenced Charles Rhines to death because he was gay and not because he murdered someone.

To provide for the integrity of the jury and what they discuss in deliberation in the jury room; there is what is known as the no-impeachment rule. It says testimony from jurors during jury deliberations may not be used to impeach a verdict during an appeal. In this case as one of Charles Rhines attorney’s Shawn Nolan argues, “the juror misconduct violated constitutional protections — so the rule should not apply.” The rule was overturned once before when considering racial prejudice in Peña-Rodriguez v. Colorado;

Miguel Angel Peña-Rodriguez was convicted of unlawful sexual conduct and harassment, two jurors came forward to tell his lawyer that another juror had made racially charged statements about Peña-Rodriguez and an alibi witness, commenting about the likelihood that Peña-Rodriguez was guilty and the witness was not credible because both were Hispanic. Peña-Rodriguez sought a new trial based on the jury misconduct, but the courts said no because of the no-impeachment rule. The U.S. Supreme Court disagreed. “A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right,” the court wrote. As such, the court concluded that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way” so that the court can consider whether the misconduct tainted the promise of a fair trial.

The Law is meant to punish “people for what they do and not who they are.”

Jurors Thought a Man Would Enjoy Prison, So They Sentenced Him to Death Jordan Smith, The Intercept, June 13, 2018

A Jury May Have Sentenced a Man to Death Because of What He Is And the Justices Don’t Care. Ría Tabacco Mar, NYT, Jume 19, 2018

author; run75441 @ Angry Bear Blog

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Healthcare Insurers Lose in Court Over Risk Corridor Funds

I have written a couple of times about Sessions, Upton, Kingston, and Republicans sabotaging the ACA Risk Corridor Program with the insertion of Section 227 in the CRomnibus Bill signed in December 2014. Not only did Senator Sessions, Representative Upton (MI), and Representative Kingston (CO) block the funding of the Risk Corridor Program; with the insertion of Section 227 by Representative Kington, they blocked any transfer of funding from other programs as well. A rehash of the results of Republican sabotage shows, it caused a rise in premiums for the unsubsidized (others were picked up), Coops to go bankrupt, and insurance companies to withdraw from the healthcare exchanges.

Today a Federal Appeals Court ruled; “the U.S. government does not owe health insurers $billions in unpaid risk-corridor funds meant to offset losses during the early years (3 years) of the Affordable Care Act exchanges.

More than three dozen insurers claimed the federal government owed them more than $8 billion in risk corridor payments. Ruling 2-1 the COA determined the payments were not necessary since Congress deemed the program had to be budget neutral after the legislation was passed.”

In other words, the court decided a different Congress and/or the administration made up of different political interests can change the intent of another Congress or Administration.

A similar Risk Corridor Program exists in the Medicare Part D program for drugs which has no life time limit and was put in place by Republicans and Bush to cover any risk which may occur from getting too many higher cost insured.

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The Detroit News story, January 2018 “What MSU Knew” details when the abuse started. For twenty years, the female athletes who engaged in the Michigan State Gymnastics program complained of Dr. Larry Nassar to university representatives. MSU President Lou Anna Simon was amongst those who were informed and had known of the 2014 Title IX complaint and police report filed against an unnamed physician.

According to university records and victim’s accounts, amongst those who knew of the abuse were athletic trainers, coaches, a university police detective, the local police and an official who is now MSU’s assistant general counsel. Larissa Boyce is believed to be the first to complain in 1997 to the head Gymnastics Coach Kathie Klages at MSU. Klages then told Larry Nasser, no one else, and advised Larissa there could be serious consequences in filing a report. A fellow female Gymnast had also confirmed she had also been touched while being treated by Nasser.

A runner, Christie Achenbach told her coach Kelli Bert about Nassar’s behavior in 1999 while seeking treatment for a hamstring injury. Christie recalled coach Kelli Bert words; “he is an Olympic doctor and he should know what he is doing.” According to Kelli Bert, she does not remember the conversation and did not know Nasser was an Olympic doctor.

Spartan softball player Tiffany Thomas Lopez went to Nassar to be treated for lower back pain. She later told MSU Trainer Lianna Hadden of Nassar’s treatment regime. Hadden advised Tiffany to talk to MSU trainer Destiny Teachnor-Hauk. Destiny told Tiffany she could file a report if she was uncomfortable; but, there may be consequences.

Two years after Tiffany’s abuse, Jennifer Rood Bedford complained to Destiny Teachnor-Hauk about being uncomfortable with Nasser’s treatment. As told by Jennifer, Hauk said “that filing a report would involve an investigation, making an accusation against Nassar, and requires a statement that I felt what Nassar did was unprofessional or criminally wrong.” Rood could not say with certainty the treatment was wrong or unprofessional.

The stories being told by female athletes stopped with those who should have been advocating for them. Larissa Boyce had hoped this would come from a female coach. Over seventeen years, Destiny Teachnor-Hauk claims she never heard a complaint about Larry Nasser. The system failed, it failed at the coach/teaching level and not with the athletes who sounded the alarm of sexual abuse at the hands of a doctor. The abuse also happened outside of the MSU system.

The first to publicly testify against Nassar about abuse outside of MSU, Kyle Stephens said he began molesting her in 1998 by exposing himself in the basement of his home. She was 6. In 2004, she told her parents who told MSU Clinical Psychologist Dr. Gary Stollak. The parents met with Nassar and Stollak. Nassar denied everything and her parents believed the doctors. A retired Dr. Stollak testified he had a stroke in 2016 and could not remember any details of the meeting.

Upon leaving the second visit for back pain with Nassar in the Spring of 2004, Brianne Randall-Gay went to local police. She told them he had touched her bare breast and put his hand between her legs. A few weeks later, police asked Randall-Gay and her parents to meet with Nassar. Randall-Gay‘s parents went without her. Nassar said and the police confirmed what she experienced was a legitimate treatment.

Doctors and the police did not believe the young women and girl’s complaints.

Lindsey Lemke is a “Sister Survivor,” the name taken by the 256 survivors of Larry Nassar’s physical sexual assault. She and the others spent the last 18 months fighting “not just for justice for Nassar;” but, they also fought for accountability, “the accountability of Michigan State University who enabled Nassar’s continued abuse” by not reacting.

April of this year found Lindsey attending a dinner at Michigan State, an Athletic Gala sponsored by the university hosts and meant to honor student athletes having a GPA of 3.0 or higher. Lindsey was happy to have a night out celebrating her athletic accomplishments. It turned to a night of frustration and anger as the host talked about the disappointment the Michigan Spartans experienced over the last 16 months because of one man. And no, they were not going to let him bring it down for the University and the remaining Sister Survivors at the university.

Lindsey grew angry as she listened to the comparison being made by the speaker about the hard time MSU was having answering questions and explaining for 16 months about Nasser’s physical sexual abuse of Lindsey and the other female athletes. As explained in The Detroit News, the abuse continued over 20 years. It continued even though Lindsey and the other athletes went to their coaches and others . . . nothing was done.

A false equivalency was being made by the speaker as if the spotlight on Michigan State was the equivalent of the sexual abuse, or worse, then what the women athletes experienced, and endured again as they told their stories in public. The speaker spoke as if there could be an equivalency to each experience endured . . . making the University’s reputation more important than the sexual abuse at the hands of a MSU employee. There was no apology being made to Lindsey Lemke or her Sister Survivors.

In the same week as the dinner and in a Jane Doe investigation, Michigan State University allowed a female witness to be identified as a complainant. This can be a violation of federal law in response to a Title IX lawsuit.

A federal lawsuit filed Monday alleges a former female student was raped by three unnamed members of the school’s basketball team in April 2015. Following that alleged assault, the woman said the school’s counseling center discouraged her from reporting, telling her to “just get yourself better.”

The university responded by posting a detailed response online, raising concerns about student privacy.

Again, MSU failed to take into regard the importance of a student’s safety, their privacy, and the care required to protect them while answering various questions and reports. MSU acts according to its own best interest at the expense of its students.

Between 1997 and 2015, young women, girls, and older women alike raised concerns about Nassar’s treatments. It started to come to a head when Amanda Thomashow filed a formal Title IX complaint about Nassar in 2014. The complaint still did not result in the removal of Nassar.

Over 20 years, Nassar abused hundreds of women while at MSU. The University, its athletic department, and it’s president would continue to deflect responsibility for not taking action. In her letter of resignation, Lou Anna K. Simon the President in charge 13 of the 20 years in her letter of resignation stated:

“I have been told it is virtually impossible to stop a determined sexual predator and pedophile, that they will go to incomprehensible lengths to keep what they do in the shadows. As tragedies are politicized, blame is inevitable. As president, it is only natural that I am the focus of this anger.”

The State of Michigan appointed former Governor John Engler as the interim president after former President Lou Anna K. Simon was asked to resign by the Board of Trustees. She is still being paid a $750,000 salary for one year and will return to teaching at $500,000 annually. The same Board of Trustees failed to take action in an earlier 2014 Title IX investigation complaint about Nassar is still in place. The abuse was allowed to continue. MSU maintains it did nothing wrong during that investigation the 2014 filing.

John Engler was the political choice;

“I will move forward as though my own daughters were on this campus.”

were the words Engler used to help build trust with the MSU Sister Survivors and the public.

Instead of helping to provide greater protection for MSU women and Nassar’s victims, Engler personally campaigned in the legislature against bills meant to increase the statute of limitations for victims of sex abuse and make more authority figures mandatory reporters of child sex abuse. The 15 public universities in Michigan also opposed the bills. Engler claimed Nassar’s victims were only interested in leveraging MSU and were not interested in mediation.

Engler comment raises the question of how does the one responsible for taking action mediate the results of their failure with the victim? The outcome will always be in the mediator’s best intersts.

Engler argued publicly with Rachael Denhollander, the first woman to come forward publicly with allegations against Nassar. At a Trustee’s meeting early in April, “Engler publicly threatened Kaylee Lorincz when she shared the story about his attempt to buy her silence. Kaylee Lorincz also revealed during that meeting Engler lied to her about his settlement talks with other survivors, and downplayed the sexual harassment charges against Nassar’s boss, Dean William Strampel, calling them merely a ‘slap on the butt.’”

The Board of Trustees remains in place and reiterated their support for John Engler.

It is a pattern and a practice for MSU. As Think Progress points out “sexual assault allegations against football and basketball players have been ignored or mishandled by the athletic department and administration at MSU. Investigations into allegations have been shoddy and well hidden (if they happen at all). Victims have been encouraged not to come forward with allegations against high-profile players or coaches on campus due to potential backlash or retaliation.”

The same pattern and practice was experienced by the Sister Survivors as told by them about Nassar experienced by them with the Board of Trustees and the interim President John Engler. The Department of Education’s Office for Civil Rights investigation confirmed MSU had not met multiple Title IX requirements, including notifying students of the name of the Title IX coordinator, conducting investigations within appropriate time frames, and following proper grievance procedures.

Jerry Sandusky’s sexual abuse case at Penn State received around-the-clock attention for weeks. The Sister Survivor’s case has disappeared from the public eye since MSU’s Nassar was sentenced. Attorney John Manly believes he knows why:

“I think it’s sexism, misogyny, and you know, it’s not college football, it’s gymnastics. And the audience for gymnastics doesn’t generate hundreds of millions or billions of dollars.”

Think Progress updated its initial report on Michigan State University. The law firm representing MSU sent a letter to the NCAA on May 4. The letter acknowledges Nassar, “under the guise of medical treatment, sexually assaulted at least 25 MSU student-athletes between 1997-2016, including six student-athletes since 2014, when MSU botched its Title IX investigation into Nasser’s abuse.”

The letter was sent to clarify and despite the sexual assaults that,

“no violations of NCAA rules occurred with regard to the criminal conduct of Dr. Larry Nassar, a former employee at the University.”

In spite of the many sexual abuse over 20 years, the assaults mostly occurring on the MSU campus, the deaf ear by MSU employees to female athletes, the condemnation by the Michigan state legislature of MSU for its failure to protect female athletes, and the Gymnastics Coach Kathy asking her team (including survivors of Nassar’s abuse) to sign a card of support for him after he was fired due to the allegations of sexual abuse in 2016; Michigan State University is more concerned about violations of NCAA rules and its image rather than Nassar’s female victims. There is no sympathy, morose, embarrassment when confronted with what was allowed to happen over the years. Business as usual.

The NCAA has not responded to the victims or Michigan State University.

References:

Michigan State still doesn’t care about victims of sexual assault Lindsay Gibbs, Think Progress, March 23, 2018

Michigan State is finding new ways to victimize the survivors of Larry Nassar’s abuse Lindsay Gibbs, Think Progress, April 18, 2018

Michigan State admits Nassar sexually abused student-athletes, but says he didn’t break NCAA bylaws? Think Progress, Lindsay Gibbs, May 4, 2018

What MSU knew: 14 were warned of Nassar abuse Kim Kozlowski, The Detroit News 2018

Michigan State ‘regrets’ providing an ‘unnecessary amount of detail’ in response to Title IX lawsuit‘ MLive, April 13, 2018

run75441 @ Angry Bear Blog

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(Dan here….lifted from Robert’s Stochastic Thoughts)

A New Pareto Liberal Paradox (reposted from 2004)

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Pseudo-Equity: Further Remarks on the Politics of Mandatory Diversity Training at Evergreen

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The post entitled “Trump’s Claim Mueller Found ‘NO COLLUSION’ Is Literal Nonsense” is not up to Jon Chait’s usual standard. Trump’s claim is, of course, nonsense. Chait accurately described Trump’s typical pathetic rhetorical trick “One of President Trump’s favorite methods to defend his innocence in the Russia investigation is to claim that any piece of evidence that does not explicitly assert his guilt is in fact evidence of his innocence.” and added some high quality snark “It is exactly like saying Trump was cleared by the Warren Commission because the Warren Commission report makes no conclusion about Trump and Russia.” However, he misread the indictment.

Chait (and many many others) concedes that the indictment didn’t declare that collusion has been detected “this particular indictment probably has nothing to do with collusion. ” In fact the indictment declared that collusion has been detected. it didn’t name all of the conspirators, but the grand jury did definitely claim to know of conspirators who were not named in the indictment.

I quote (with a pdf warning and my emphasis)

From in or around 2014 to the present, Defendants knowingly and intentionally conspired with each other (and with persons known and unknown to the Grand Jury) to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016.

The indictment explicitly states that only some of the “known” conspirators have been indicted. It doesn’t say whether any of the unindicted conspirators worked for the Trump campaign, but it definitely also doesn’t say that no crimes Trump campaign workers have been detected in the investigation into internet trolling (let alone the broader investigation).

The indictment explicitly states that there are known unindicted co-conspirators. It does not address the question of whether one is, say, named Donald Trump, even within the narrow limits of the investigation of “INTERNET RESEARCH AGENCY LLC” and its employees.

I mean which word in “conspired with … persons known … to the grand jury” didn’t he understand ?

update: This post by Marcy Wheeler is incomparably better than my little post. Read it.

One point from Wheeler– a US citizen conspirator who was not indicted has been named. Richard Pinedo was not indcted because he pleaeded guilty on February 7th. The indictment can’t be construed as stating that the Grand Jury does not have probable cause to believe Americans were wittingly involved in the conspiracy. At least one definitely is known. He wasn’t indicted because he confessed.

Wheeler wrote

In the wake of that indictment, the court unsealed a February 7 plea agreement with Californian Richard Pinedo, for identity theft (basically, selling bank account numbers; the information doesn’t identify the users who purchased the bank account numbers as IRA personnel who used them to set up “American” identities, but that is clearly what happened).

update 2: I have a thought. Wheeler wrote

Plus, Mueller likely obtained cooperation from one IRA employee, the unnamed person who traveled to Atlanta in November 2014 for reconnaissance. Had that person not cooperated, he or she would have been named in the indictment.

This is probably true, but I think that I have thought of another possibility. It is possible that Atlanta traveller wasn’t indicted because he or she didn’t commit a crime. Two women were indicted for lying on their visa applications saying they were in the USA for tourism not reconnaissance. But reconnaissance isn’t a crime. It sometimes called journalism and sometimes called market research. If Atlanta traveller claimed to be a journalist, he or she is in the clear. The US government can’t decide who is and who isn’t a real journalist (just as it can’t decide who is a real clergyperson) because everyone has a first amendment right to claim to be a journalist (the first amendment doesn’t say anything about citizenship — foreigners have free press rights too). IRA wasn’t seeking classified information — they wanted to know what Americans were saying about the election. The reconnaissance was journalism which is legal except for people who lied claiming to be tourists.

So maybe someone did something totally legal, can’t be indicted and wasn’t named because he or she has a right to some privacy while observing us.

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All Economists Are Bastards — Except Us

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I’m not sure this is of general interest, but I would like to argue (again) with Glenn Greenwald. In this tweet, he asks an interesting and important question

The FBI, and many Democrats, insisted vehemently that release of the Nunes Memo would endanger national security. Now that we’ve all read it, is there anyone who believes that this argument was even remotely true or honest?

Yes. This has been another episode of simple answers to simple questions. Now I will bore you by explaining at length.

1) One can’t conclude that something wasn’t endangered because, it the end, it wasn’t harmed. It is reckless to drive 150 mph drunk even if some people have done so and arrived alive. I don’t recall anyone saying that releasing the memo would certainly harm national security.

2) Importantly, the expressions of alarm (including the DOJ not FBI use of “extremely reckless”) came from people who had not seen the memo, who had requested a chance to examine it and whose requests had been denied by the committee. They didn’t know what was in the memo, but they knew it had been written by people who had access to classified information, that they didn’t know what was in the memo, and that it was proposed that it be released so everyone knew as soon as they did.

The argument that this violates normal procedures which are required to protect national security is clearly conventional — almost so conventional that it goes without saying. The procedures are followed not because every deviation has catastrophic consequences. That’t the way standard procedures are.

I don’t recall all the alarmed statements by Democrats, but many were made by Senators and such who had not been allowed to see the memo.

3) Finally releasing the memo clearly harmed US National Security. I get the impression that almost everyone but I has the impression that the memo didn’t contain information which was supposed to be kept secret (according to normal rules which are enforced on people who aren’t President or the majority of a House committee by the threat of prison).

There are two data in the memo which had been secret and which were kept secret for excellent reasons
a) October 21 2016 — the date of the application for a FISA warrant to surveil Carter Page. This was not a request for a renewal. Now, but not last week, I can infer that Page was not under FISA surveilance say in September 2016. I didn’t know that before. If I had conspired with Page on the phone during September 2016, was asked about it by the FBI and had to decide whether to lie to them, this information would be very useful to me. it is discussed only as proof that the fall 2016 FISA surveillance of Page was *not* surveillance of the Trump-Pence 2016 campaign, since he had severed all formal links with the campaign in September. But it would also be useful if there were someone who really wants to know that the FBI knows about his or her communications with Carter Page before October 21 2016.

b) The warrant was renewed at least three times. This is discussed becuase one of the requests for renewal was approved by Rod Rosenstein and because the fact that four requests were approved is strong evidence that the surveillance revealed Page’s participation in foreign intelligence efforts. But the information would be very useful to me if I had conspired on the phone with Page in December 2016. I would know that they know about it, so I would risk prison were I to lie and deny the activity.

In spy vs spy intelligence and counter-intelligence hiding all sorts of information from the other side is key. Who is being wiretapped is a closely held secret for obvious reasons. My point is that there are similar reasons to hide who has been wiretapped (including Page as was known before the memo was released) and when they were wiretapped, If one is under investigation, it very important to know what the investigators know. If one is not supposed to obstruct justice, one should not make that information public in the name of transparency.

OK so what is going on ? I think that Greenwald has become a knee jerk critique of Democrats. Also he has long had a very sincere extremely negative view of the FBI. I think his reflexive opposition to state surveillance has caused him to automatically reject arguments based on the idea that FBI investigations are sometimes in some ways socially useful.

He isn’t a consistent anarchist, but he seems to automatically oppose state power. Thus he seems to actually support complete trasnparency in investigations. This would make wire taps worthless. I think Greenwald automatically opposes them.

On the other hand, he is a brilliant lawyer. He should understand why the facts revealed in the memo had been kept secret. Almost everyone agrees with him that no secrets were revealed by the memo. I’d guess most people just don’t understand the issue. But I guess that he understands it and is so opposed to serveillance of any kind that he genuinely can’t see how anyone would see any disadvantage in hampering it.

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