What Obama Should’ve Said

October 4, 2012

OK.  So the commentators seem to be saying that Romney won last night’s debate.  I’m not so sure.  If he did, it’s only because Obama didn’t press him hard enough on things like how he’s going to reduce the deficit while making huge increases in military spending and dropping the tax rates on both corporations and high-income individuals.  I know, he says he’ll reduce loopholes and exemptions, but unless he’s talking about eliminating the mortgage interest deduction, state & local taxes deduction, and medical expense deductions [starts to sound like making the alternative minimum tax apply to everyone] it’s hard to see how he’ll get deficit reduction.

My big beef with Obama, though, was when Romney dinged him on his alternative energy program.  Obama just let it slide past, even after Romney poured fuel on the fire [so to speak] by talking about how he thinks the country should be burning more “clean coal’.  Never mind that the very idea of “clean coal” is almost a contradiction in terms (maybe not entirely, in terms of conventional air pollutants, although the technology is not anywhere close to there yet).  What Obama shudda, cudda come back with, though, was a strong defense of moving America’s energy production into the 21st century, rather than back to the 19th.  Oil and gas technology goes back to the dawn of the 20th century, and coal goes back to the 18th century.

In fact, if you think about it, burning coal is shamelessly wasteful.  Here we’ve got an enormous resource of almost pure carbon — the basic source of all organic chemicals, which includes many of the products we depend upon on a daily basis.  Right now, a lot of those compounds are made from petroleum, which we mostly import.  Wouldn’t it make sense to be putting our coal resources into manufacturing the organic compounds we now make from petroleum, and putting research dollars into how to do that efficiently, effectively, and economically, rather than burning it up into CO2 and atmospheric pollutants?

Wouldn’t it also make sense, given that climate change is real [why didn’t he challenge Romney on that!?] to push for new and better ways to produce energy, and save the carbon in coal for when we figure out how to use it in efficient forms of energy production like fuel cells (where we can perhaps capture and sequester any GHG products produced?)   Seems to me Obama missed a chance to show Romney up and put himself forward as someone who’s thinking about the future rather than the past.

But, what do I know?  I’m just an “average citizen”, not a spin doctor.


November 2012 Election Comments

October 4, 2012

OK.  I got my sample ballot & voter information booklet in the mail, and I’m sure the absentee ballots are going out shortly, so it looks like it’s time to give my usual rundown of candidates and issues.  as usual, I give my standard disclosures and disclaimers.  [Hey, what do you expect, I’m a lawyer!]  These are obviously just my own personal opinions, and while I have read through candidate statements and ballot arguments (and in some cases, the text of the measure as well), and have talked to some of the candidates personally, I don’t claim to be an expert on evaluating candidates or ballot measures.  Well, I guess I can claim some expertise on the latter, having helped to write a few local measures.  That having been said, HERE WE GO!


Obviously, the two major choices are Romney and Obama.  Between those two, for me Obama is the obvious choice.  I’m not anywhere close to entirely happy with Obama and how he’s run the country the past four years.  Our foreign policy is still far too militaristic (although lightyears ahead of where it was under George W), Obamacare is a sorry substitute for the single-payer healthcare we ought to have, and, as Paul Krugman has said innumerable times, Obama’s economic policy is anemic compared to what’s needed to pull us out of our current doldrums.  [However, he does have the excuse that with the Republican majority in the house, nothing can be done in the legislative arena.]  BTW, see my separate post critiquing Obama’s performance in the first debate.

All that having been said,  I think that, DEPENDING ON WHERE YOU LIVE, you should take a serious look at some of the third party candidates.  With that, I will once again recite  Ivins’ Rule, named for Molly Ivins, the late Texas [don’t hold that against her] political commentator.  The basic rule is, regardless of what your state or locality allows, don’t vote early unless you absolutely have to.  Wait until, at the earliest, a week before election day, and then look at what the polling results are FOR YOUR STATE.  Because we have the electoral college system, each state is its own election [exception — in Maine, each congressional district is its own election].  Regardless of what’s happening in the national polls, what really matters is who wins a plurality of the vote in each individual state.  Except for Maine, that candidate get ALL that state’s electoral votes for president.

So, now let’s get back to Ivins’ Rule.  When you look at your state’s polling result, the crucial question is whether the difference between Romney’s and Obama’s polling results in greater than five percent.  If either of the two is ahead by more than five percent, then barring a nuclear war or something equally calamitous, the election in your state is essentially over.  That means you can vote for whomever you want, because it won’t make any difference.  If, however the difference is less than 5%, you better choose between Obama and Romney, or you may be kicking yourself for the next  for years.  Luckily, here in California Obama’s lead is unassailable.  (I think it’s  currently over 20% statewide.)

So, if you’re lucky enough to have the luxury of voting for a minor party candidate, my suggestion would be to look seriously at Jill Stein, the Green Party candidate.  I say that not just because I’m registered as green.  From what I’ve seen of her, she’s just as smart as either of the major party candidates (she’s a Massachusetts physician), and her platform makes enormous sense — cut the defense budget, enact single-payer healthcare, promote a justice system that, as Jesse Jackson famously said, puts our money at the front end, rather than the back end – i.e., promotes restorative justice, puts the U.S. squarely at the forefront in trying to reverse climate change and promote sustainable care for our ailing planet, etc.  Of coure there’s no way she’ll get elected, but just think.  If she got 5% of the vote nationwide, even if she didn’t win a single electoral vote, wouldn’t that make a statement that there’s a significant number of people who think as she does?  Who knows, maybe a few Democrats might even start paying attention in a real way.

U.S. Senator

Again here, the choice is pretty simple, even simpler because there are no minor party candidates on the ballot.  😦  I don’t particularly like Feinstein.  She’s incredibly wishy-washy on lots of issues, and just plain bad on some, but as with Obama, she’s in a whole different league (or century) from her Republican opponent.  Unless you’re a “tea partier” [and if you are, why are you reading this blog??], you gotta vote for Feinstein.

Note – if you’re not in California, see my discussion of Ivins’ Rule above and act accordingly.

U.S. Representative

Again, given my location in the East Bay, the choice is pretty simple.  Barbara Lee has been on the right side (or perhaps I should say the left side) of just about every issue before Congress.  Her opponent waves her hands around to try to look more reasonable, but we all know that the last reasonable Republicans here in California have already left that disaster of a party.  Unless you want to go back to the gilded age where workers could, if they were lucky, get 10 cents a day for pay, vote for Lee.

If you’re in another district, re-read Ivins’ Rule again.

State Senate

Here’s another place I get to apply Ivins’ Rule.  Loni Hancock has been one of the better senators in the state senate, based on her voting record.  That’s as it should  be, she represents one of the most liberal districts in the state.  She’s going  to win this race overwhelmingly.  Since that’s the case, it’s a place you could show that you’d like some more space on the left of the ballot by voting for the Peace & Freedom Party candidate, Mary McIlroy.

State Assembly

I could just invoke Ivins’ Rule again in urging a vote for the Peace & Freedom Party candidate (Eugene Ruyle), but there’s something more at stake.  I have followed Nancy Skinner since she first ran for the assembly (when I supported her), and have been very disappointed in her performance.  Again, she represents one of the most liberal districts in the state, but she has followed in lockstep whatever the Democratic legislative leadership has told her.  Overall, she’s voted against the party leadership only 0.7% of the time.  By comparison, Hancock, while no eccentric, bucked the party leadership on 1.2% of votes, Leland Yee, from San Francisco (perhaps the only place more liberal than the East Bay), opposed Democratic leaders 2.6% of the time, and Jared Huffman, a liberal stalwart in Marin, voted differently 1.8% of the time.  Maybe Skinner just likes whatever the leadership says.  If so, that’s a disappointment in itself, because the leadership has been, in a number of cases, like its support for the high-speed rail project, just stupid.  Maybe she votes that way to “go along to get along.”  If so, that says nothing any better about her.  We deserve better.

State Ballot Measures

Let me start with a general statement.  California’s initiative and referendum processes are in serious need of reform.  I say that as an attorney who regularly advises local groups on their initiative and referendum battles, and knows the turf pretty well.  Between picayune requirements that make it harder and harder for grassroots campaigns to succeed, and the overwhelming force of a tidal wave of  special interest money that at this point almost totally dominates the statewide ballot measure scene, we’ve got a real mess in California.  Not only that, but because of the nature of California ballot measure law (in the state constitution, no less), if a mistake gets made with a ballot measure, it’s very likely to be permanent, or at least very long-lasting.  I’ve already made it clear in past postings that I think passing Prop. 13 was unwise.  Yes, it did some good and necessary things that the legislature was unwilling to tackle. but its left state and local government in a long-term fiscal disaster.  Likewise for the “Victims Bill of Rights”, “Three Strikes”, and term limits.  The state’s voters aren’t always smart enough to get it right on the first try, but it’s incredibly hard to revise anything the voters have done.  Maybe things enacted by the voters should automatically go back on the ballot in five years, so people get to think about it again, and competing or correcting measures can be put on at that time?

So. Rant finished.  Now on to the specifics:

30 – Jerry Brown’s tax measure – a reluctant yes.  I’m not 100% happy with it, but if it fails, the draconian school cuts are unacceptable.

31- NO!  This initiative, put on the ballot by California Forward, at first glance seems appealing, and it would indeed do some things that would improve how the legislature handles budget issues, like going to a two-year budget cycle.  HOWEVER, it makes radical changes in the relations between state and local government, including allowing local government to exempt itself from various “inconvenient” state laws and regulations, including CEQA, and potentially state labor laws.  This is a really bad idea!  Not only that, but it locks all of its changes into the state constitution, making them extremely hard to change in the future.  [See my rant above.]  A number of members of the initial taskforce pointed out the problems, but California Forward refused to budge.  They subsequently resigned.  (See ballot arguments against.)  Shame on California Forward!!

32 – NO!  A fraudulent attempt to disable labor union political activity while leaving corporate political power basically unchecked.

33- NO.  One insurance company (Mercury) makes a second attempt to tilt the playing field in its direction.

34- YES – the death penalty makes little sense as a deterrent, as public policy, or financially.

35 – No –  Human trafficking is without question a bad thing.  Whether we’re talking about actual enslavement or just the “normal” pimping and prostitution stuff.  There need to be serious consequences for those who screw over their fellow human beings.  However, this measure seems to play into the general punitive bent of three strikes and other efforts to just, “lock ’em all up and throw away the key.”  Our prison system is clear evidence that  this approach hasn’t worked and isn’t working.  Again, once something gets passed by the voters, it’s very hard to change.  This is an issue for the legislature to tackle, not the voters.

36 – YES – again, as with the death penalty, three strikes is a punitive, ineffective, and financially damaging measure.  This reform will help.

37 – YES – truth in labeling for genetically-engineered foods.  People should have a knowing choice about supporting Monsanto’s fiddling with the agricultural gene pool.  BTW, the no argument points to the measure’s enforcement against local retailers.  Unfortunately, California has no direct leverage against national food producers, only against businesses operating in California.  Enforcement against retailers is the only leverage we have against national big business.  It’s a big one, though.  If, for example, California retailers wouldn’t carry General Mills foods because they don’t own up to using genetically engineered ingredients, General Mills could lose A LOT of business.  We need to use our market share power to change the market.

38 – NO – The major alternative tax measure.  Too narrowly focused on education funding, and will impact the poor more than the rich.

39 – YES – levels the playing field for internet businesses who siphon off $$ from California without paying taxes.  Time to end the free ride.

40 – YES – For once, here was a ballot measure (redistricting reform) that was needed, and that worked. The redistricting effort was a resounding success.  Say no to Republican sour grapes!

A1 – NO – public funding for the Oakland Zoo – while zoos are a nice family amenity, I am bothered by the Oakland Zoo’s expansionistic policies, and I don’t think they should be feeding at the public trough [so to speak] when the zoo’s governing board has no public accountability for its actions.

B1 – NO!! – INDEFINITE  extension AND increase in county transportation sales tax.  Sales taxes are regressive.  This would give an unaccountable county agency permanent funding with no requirement to come back to the voters – EVER.  Their predecessor (ACTA) had to be sued to block it from spending money on a project the voters hadn’t authorized.  Would eliminate the ONLY real voter accountability this agency now has.

J – Yes – Another bond fund infusion for Oakland schools.  I’m somewhat bothered by adding more bond debt to a school district that just emerged from a major financial crisis.  On the other hand, many Oakland schools are seriously physically deficient.  We really need to change Prop 13 to allow adequate funding for local schools, cities, and counties.  Until then, band-aid measures like this are the best we can do.

Local Candidates

If you live outside of Oakland/Alameda County, you can stop here if you want.  The rest is just for “local yokels”

AC Transit — Chris Peeples is knowledgeable and listens to the community.  I don’t agree with him 100%, but he’s a good choice.

BART Board – Rebecca Saltzman would seem the obvious pro-environment choice, but I’ve been disturbed by some of her statements in support of high-speed rail and BART extensions, which seem to indicate a knee-jerk support for extending transit even where it may not make economic sense and actually be sprawl-inducing.  I like Anthony Pegram’s candidate statement and plan to vote for him.

Oakland District One Council member:

Top three [ranked choice]  — for more detailed information, look at the write-ups in the recently-initiated Rockridge Patch, or view some youtube clips from a candidate forum:

1) Dan Kalb (knowledgeable, intelligent, pro-environment & pro-neighborhood. Lives in Rockridge.)

2) Donald Macleay (local green party member, pro-environment & pro-neighborhood.  Lives in Temescal) – Update (11/3/12) –

3)  No choice.  See below for why I can’t endorse any of the others:

I DON’T like: Len Raphael – confrontational and pro-development (although he does oppose Safeway’s College Ave. project);

Amy Lemley – knee-jerk smart growth (married to smart-growth fanatic who works at NRDC & pushed for BRT on Telegraph).  Her background is not in the broad public policy areas North Oakland needs.  I fear she’s a stalking horse for her husband, and would be too obeisant to Kernighan and Schaaf, both of whom endorse her and both of whom are aggressively pro-development.  She’s refused to take a firm position on the College Ave. Safeway project, just saying that she’d encourage negotiations.

The other candidates:

Don Link’s a nice guy and supportive on Safeway, but I worry he’d be out of his depth.  Focus is mainly on public safety

Richard Reya – his candidate statement reads very well.  He seems to be saying a lot of the right things.  BUT, it turns out that he’s the policy director for California Forward.  If that doesn’t ring a bell, go back and re-read my discussion of Prop. 31.  Sorry, but as policy director, his allowing Prop. 31 to move forward and go on the ballot shows, in my estimation, very bad judgment.  He’s also non-commital on the College Ave. Safeway project.  Not who I want representing me on the City Council!

Craig Brandt is also pushing for more police, but where’s the money going to come from???  As of late, he seems to have dropped out of the race.

At Large Council Member – Sorry, I’m afraid you’re on your own here. I can’t honestly and wholeheartedly recommend any of the choices.  Neither Kaplan nor De la Fuente have been supportive on Safeway.  De la Fuente is a dealmaker in the Perata mold.  He hopes to use the at-large seat as a stepping stone to another mayoral run.  Kaplan is, in many ways, pretty good, but she’s so focused on smart growth that she loses sight of neighborhood values.  She was the only council member to enthusiastically push Bus Rapid Transit on Telegraph despite strong community opposition.  I fear she’d favor major densification around the Rockridge BART in spite of its damaging traffic impacts.  As for the other candidates, none of them is qualified by background or experience, and Carol Tolbert has a gruesome history on North Oakland redevelopment around the Old Merritt College site — can you say corruption??

City attorney – I’m not real keen on Jane Brunner, but I’m also not excited by Barbara Parker.  I worry that she’s got the typical black Oakland establishment (e.g., Geoffrey Pete, Mary King, Bill Patterson) supporting her.  Yet Jane Brunner’s often been too much of a dealmaker.  No recommendation.  (As with judges, I think this really shouldn’t be an elected position.)

School Board – Jody London has, in my opinion, been doing OK.  The schools are in a tough place, and her opponent fought to keep Santa Fe School (in the Golden Gate area of Northwest Oakland)  open when it was an absolute disaster – probably worse than no school at all. Yes, we need to do more to help children in the poorer parts of the city, but that requires money that the district doesn’t have.  (Can you say Prop. 13?)  It also bothers me that Ms. Pecot was endorsed by the teachers union.  One wonders about the quid pro quo that may have been involved.  Teachers need fair pay, but I’ve also seen the teachers union defend poorly performing teachers just because they were active in the union.  Not how I think a school district should be run.

Democratic Self-destruction

November 2, 2010

There will, of course, be pundits by the dozens attempting to dissect today’s election results.  Obviously, a large segment of the American public was not happy with the Democrats’ record over the past two years.  Obviously also, Obama’s mantra that the Republicans drove the economy into the ditch and now they’re complaining about us trying to pull it back out didn’t really wash (or, at least, not on a national level).  What went wrong? and can the Democrats do better over the next two years?

My personal opinion is that the Democrats’ majority in Congress was really a ticking time bomb that finally blew up today.  Ever since the 1992 election, Democrats have attempted to win over “red” states by running candidates who were slightly less conservative than their Republican opponents.  The tactic was at least somewhat successful, so the Democrats had, until today, nominally impressive majorities in both the House and Senate.  However, many of those nominally-Democratic seats were held by profoundly conservative people; people who had little use for the agenda of  more liberal Democrats, and voted at least as often with the Republicans, especially on key legislation.   As a result, given the unified opposition of the Republicans, Obama and the Democratic Congressional leadership were forced to repeatedly water down their legislative initiatives in order to capture enough votes in their own party to get the legislation passed.

It is, to my mind, only poetic justice that some of the victims in today’s rout of the Democratic party were the very conservative Democrats who were most effective in obstructing Obama’s legislative agenda.  Democrats like Blanche Lincoln lost, even though  they fought against Obama at almost every turn, because why would conservative red state voters choose someone who looked like a Republican when they could, instead, vote for someone who was a Republican?

Of course, with the shift in the House majority, we’re going to have, as in 1948 with Harry Truman’s presidential campaign, a “do-nothing” Congress.  While the Republicans will control the House, they will probably not gain control of the Senate.  More importantly, the Democrats will have sufficient reliable votes in the Senate to maintain a filibuster and block Republican legislation.  Even more importantly still, Republicans will have nowhere near enough votes in the House or Senate to override the vetoes that Obama will almost certainly use against any conservative legislation the Republicans might happen to be able to push through.

If the Republicans were inclined to look for bipartisan “deals”, they might still be able to put through a watered-down Republican program, as happened during Clinton’s second term on issues such as welfare and tax reform.  However, the Republicans have themselves been pushed to the right by their Tea Party wing.  As a result, I would expect no compromises and that almost no substantive legislation will make it into law over the next two years.

At that point, what happens next will depend on what the effects of a stalled legislative agenda are, and who gets blamed for it.  If Obama is lucky, the legislation he pushed through in the last two years will have some positive effects, enough that people will start looking back on the 2008-2010 years as a time when some good things happened.  Meanwhile, if, as most economists seem to predict, the U.S. economy remains in the doldrums until 2012, Obama may be able to blame that stalled economy on the “do-nothing Congress” and run a re-election campaign based on letting Obama be Obama again by giving him the Congress he needs to do something.

If, on the other hand, the economy recovers without any further help, that may bolster the Republicans’ argument that government intervention was unnecessary and support a push to further “unleash” American capitalism by electing an anti-regulation president — dare I say, like Sarah Palin.  While I’m not an economist, I find it hard to believe that a rudderless American economy will do anything but bob around helplessly for the next two years while other countries with more effective legislative programs steam on ahead.  However, only time will tell.

We interrupt this election horserace …

October 24, 2010

With the pre-election brouhaha fast approaching a frenzy, here are a couple of articles that step back a little to look at the bigger picture.  The first, by Robert Reich (it was reprinted in today’s S.F. Chronicle), talks about something I’ve already addressed in this blog — how the wealthy are hijacking the American political system.


The second, in today’s New York Times, by The Nation contributing editor Ari Berman, talks about what might happen after the election, and how losing some of the Democrats in Congress might not be such a bad thing. 


This is an interesting article because it suggests that the Democrats might profit from something the Republicans did during the Reagan years — doing some ideological “housecleaning”.  It notes that starting in 2005 [IMHO, actually well before then, going back to the Clinton years and the Democratic Leadership Conference] and led by DNC chair Howard Dean and Democratic Congressional Campaign Committee chair Rahm Emmanuel, the Democrats attempted to recruit “competitive” candidates throughout the country, including the “red” states won by GW Bush.  In order to make sure their candidates were competitive, they looked for people who would fit with the red state terrain they’d be campaigning in.  As a result, Congress received an influx of so-called “blue dog” Democrats — Democrats who hewed to a center-right perspective and voted with the Republicans at least as often as with their fellow Democrats.  It was these blue dogs who watered down Obama’s healthcare reform and financial reform packages, who stymied global warming legislation, and who have contributed to having many Obama appointments stuck waiting for Congressional approval.  In short, the blue dogs have become almost as big an obstacle to the Democratic Congressional agenda as the Republicans.  Further, as Democrats, they hold leadership positions, allowing them to be more effective in their opposition than most Republicans.

While the Democrats will undoubtedly lose seats in both the House and Senate this November, a lot of those seats will be blue dog seats.  So, we’ll have Republicans instead of Republicans masquerading as Democrats.  That may not make a lot of difference.  In fact, as Berman points out, it may actually help the Democrats if it allows them to become more unified and pointed in their legislative program.  So, come November 3rd, before you start shouting that the sky has fallen, it may make sense to take a deep breath, wait a few months, and see how the new Congress shakes out.  Who knows, maybe it’ll be the Republicans’ turn to be saddled with some blue dogs?

On Torture, the Constitution, and the Exclusionary Rule

May 22, 2009

I’m going to shift gears today from my recent series of posts and talk about something that has nothing to do with elections or California politics.  Instead, I’m going to discuss the question of what to do with the prisoners currently being housed at the “GITMO” — The Guantanamo prison facility built to house terrorism suspects.

President Obama has proposed dividing the GITMO prisoners into five categories, each with a different proposed treatment.  To cut to the chase, I agree with Obama about four of his five categories, but I take strong exception to how he proposes to deal with the fifth category.

The easiest category to address is those prisoners who apparently did nothing wrong — other than being at the wrong place at the wrong time.  Those prisoners should be promptly released.  They should also (although Obama hasn’t proposed this) be paid generous compensation for their wrongful imprisonment and be offered the formal apology of the U.S. government for its misdeed in holding them these many years without good cause.

A second category, at the other end of the spectrum, is those for whom there is good evidence supporting criminal prosecution on terrorism or other criminal charges.  They need to be brought to the U.S. and quickly brought to trial, with the full protections accorded by the U.S. Constitution.  Hopefully, justice will be done.

The third category is those for whom there is strong evidence of illegal acts of war.  They need to be treated as prisoners of war and tried under the military justice system, although again with the proper Constitutional protections afforded by that system.

A fourth category is those who committed no offense under U.S. law, but appear to have committed criminal acts properly addressed by another country’s justice system.  Unless there is good evidence that trial by that country would amount to unwarranted persecution, those prisoners should be promptly extradited to the appropriate country and brought to trial there. 

Finally, there’s one last, and highly controversial, category — those for whom there is good evidence of criminal offenses, including terrorism, but some of the evidence necessary for conviction was obtained by the use of torture or other means that violate U.S. Constitutional rights.  President Obama has proposed that these prisoners be relegated to a kind of permanent confinement limbo — detention without trial — due to their inherent danger if released.  I find this highly problematic.  It maintains the same fiction that the President bravely spoke out against during the presidential campaign — that practical expediency can justify voiding the Constitution’s protections for individual rights.  That assertion was wrong when applied to hundreds of prisoners; it’s still just as wrong even if only applied to two or three.

The crux of the problem is the exclusionary rule.  This rule, adopted by the Warren Court in the 1950s and 1960s, says that if evidence was obtained in violation of a defendant’s constitutional rights, that evidence cannot be used to convict the defendant.  A corollary is what’s often referred to as the “fruit of the poisonous tree” doctrine.  That rule says that not only is the improperly-obtained evidence excluded; so is any evidence developed based on the excluded evidence.  A classic example would be a murder suspect who’s interrogated without informing him of his Miranda (Fifth Amendment) rights.  If the suspect, during that interrogation, tells the police where he hid the murder weapon, not only his admission but also the murder weapon itself would be excluded from use as evidence.   The Supreme Court explained that part of the rule’s purpose was prophylactic — to deter police from being tempted to use improper techniques by denying them the “fruit” of such improper and unconstitutional actions.

The exclusionary rule is a very powerful and important rule.  It has done much to reform the activities of police and prosecutors.  However, courts have come to recognize a wide variety of exceptions to the exclusionary rule — situations where the exclusion of evidence isn’t warranted in spite of the Constitutional violation.  I would suggest that this last class of GITMO prisoners may warrant creation of an additional category of exception.

There’s little question that some GITMO prisoners were tortured.  There’s also little question that the evidence obtained by such torture, while potentially valuable, has reduced evidentiary value because it was obtained through torture.  Much psychological evidence shows that, under torture, a prisoner will say almost anything, including obvious falsehoods, to stop the pain.  There is, further, little question that an exclusionary rule absolutely prohibiting the use of evidence obtained during torture is a powerful deterrent to the use of torture.  Unfortunately, under the Bush Administration, it was apparently not powerful enough. 

We’re now left with a small group of prisoners who, under torture, revealed information implicating them of serious crimes.  Presumably, additional corroborating evidence has since been obtained, perhaps as the “fruit” of information obtained through torture.  The problem is that if all this evidence is excluded, there may well not be enough evidence to obtain a conviction.  Still, it’s not right or Constitutional to hold these prisoners indefinitely without allowing them the opportunity to try to prove their innocence.  What to do?

My suggestion, which would eventually have to be accepted by a court, probably the U.S. Supreme Court, would be to create a very limited and partial exception to the exclusionary rule for this situation.  To begin with, this exception would need to be retrospective only.  Its very creation would serve notice that it could not be invoked to “save” evidence obtained from future application of torture.  Second, the exception, while it would allow the introduction of evidence obtained through the unconstitutional use of torture at GITMO or other locations, would also allow the defense to introduce any and all evidence relevant to showing the questionable value of that evidence in terms of its credibility.  Third, and perhaps crucially, the exception would create a presumption that evidence obtained through torture was not credible, and the burden would be on the prosecution to show, by clear and convincing evidence, that the evidence had sufficient credibility to allow its introduction.  

Such a rule would be far from perfect, which is an important reason why its use would need to be limited to being retrospective only.  If allowed to be use in future instances, it could fatally undermine the prophylactic value of the exclusionary rule and encourage extremely dangerous abuse of the state’s police powers.  Further, the rule would also sap the value of the “poisonous fruit” doctrine, because the secondary evidence might not be directly linked to the torture, and therefore might have reasonably high credibility.  (Going back to the previous example, while the suspect’s confession might be of questionable credibility, the murder weapon, including such things as fingerprints, evidence of recent use, etc., would not share that lack of credibility.)

While the Bush administration’s actions have created a Hobson’s choice for dealing with those who underwent torture, the limited exception to the exclusionary rule that I have outlined seems far preferable to President Obama’s (and former President Bush’s) proposal of permanent unconstitutional detention.

Post-election thoughts on Obama, Prop. 8, etc.

November 8, 2008

As the euphoria of America having elected a black president starts to wear off, it is, perhaps, time to look at some of the details of last Tuesday’s election.  Here are some points to ponder:

  • Obama took clear majorities of the various non-white ethnic groups.  According to exit polling, he got roughly 95% of the black vote, over 2/3 of the hispanic vote, over 60% of the asian vote, and over two thirds of the “other minorities” vote.  voter preference by racial/ethnic identity
  • The converse of this is that McCain got 55% of the white vote.  Does this prove that whites are still racists?  Not exactly.  For one thing, 43% of white voters were ready to vote for a black president.  (The 2% difference reflects minor candidates.)  Further, not all those who voted for McCain were voting against Obama.  There are a lot of Republicans who would have supported a black Republican against a white Democrat (or a black conservative against a white liberal).  Nevertheless, it suggests that those who rejoiced that “America has finally turned the page on racism” may have been premature in breaking out the champagne.
  • Obama won handily in urban areas, split the vote in the suburbs, and lost heavily in most rural areas.  The red state/blue state dicotomy was probably an oversimplification, but there is definitely a major cultural gap in this country.  The gap also reflects itself in other voter breakdowns:  Obama won much more heavily among better educated voters; McCain won heavily among evangelical voters and opponents of abortion and gay rights; Obama won heavily among younger voters, while McCain did best among voters over age 65.  As has been noted, another generational change is underway, one perhaps of comparable significance to the generation gap of the 1960s.  I think it’s significant that McCain did best among those who were “pre-boomers”.  There was also somewhat of a dip in support for Obama among “Gen-Xers” as opposed to those born earlier and later.  Perhaps this is a long-term legacy of the Reagan years?
  • In addition to the other gaps, the gender gap is back.  Obama won handily among females, McCain did similarly well among males (especially white males).  This is not something new, and probably reflects as much as anything the greater conservatism of male voters compared to females.  Why that is?  Your guess is as good as mine.  Can one make the equation testosterone = conservatism?  (But what about Ayn Rand? Karl Marx? Margaret Thatcher? etc.)

Beyond the presidental race, the number one item here in California was the narrow victory of Proposition 8.  Huge amounts of money were spent for and against the measure.  Predictably, a lot of the pro money came from religious groups, primarily Catholics and Mormons; a lot of the anti money came from groups supporting gays and gay rights.

In the aftermath, there’s already talk of a follow-up initiative to reverse Prop. 8.  Certainly, Prop.8’s victory was narrow, and the polling seems to indicate a steady growth of tolerance towards the idea of gay marriage.  Nevertheless, I’d suggest that rather than a direct reversal, a modification might be far more successful.  Consider this, if you will, a potential example of the dialectic approach to politics.  (Thesis = Cal Supremes OK gay marriage; Antithesis = Prop. 8; Synthesis = new ballot measure.)  Another way of looking at it is an analogy to physics:  when two forces are directly opposed to one another, they tend to cancel each other out.  If, however, one force is exerted at an angle to the other force, a shift in direction occurs, and the resulting force can be considerably stronger than if the two forces were directly opposed.

Perhaps the single most important factor in Prop. 8’s victory was its support among religious groups.  Among other things, proponents claimed that churches unwilling to perform gay marriages might lose their tax-exempt status.  Also, conservative Christians felt that the Supreme Court’s decision legalizing gay marriage demeaned the value of their own religion-based marriages.

I would suggest that an interesting approach would be to simply differentiate between civil and religious marriages.  We already have both kinds.  Why not simply define civil marriage as the only kind of marriage given legal recognition in California and require that civil marriage be available to any two consenting adults?  Religions could put whatever restrictions they wanted on religious marriages in their own church; such marriages would have no legal effect.  (Naturally, this would mean that people getting a religious marriage would also need to have the marriage validated as a civil marriage.  That ought to be a simple matter to put into the new law.  Also, all existing marriages would be grandfathered in as valid civil marriages.)

By clearly distinguishing between civil and religious marriage, and specifying that California law only recognizes the former, such a measure ought to side-step most religious opposition.  No church would be required to perform, or even recognize, gay marriages.  If a gay person didn’t like being in such a church, they’d be welcome to join a different church.  (Why any gay person would want to belong to such a church is a mystery to me).  However, in accordance with the recent supreme court decision, California civil society would not differentiate based on sexual orientation in deciding who could gain the benefits of a civil marriage.

One other suggestion I’ve seen offered is to have the new initiative also take “marriage education” out of the public school curriculum.  Sex education, including education about sexual orientation, would stay in (subject to parents’ ability to opt-out for their kids).  High school education about California government would also include explaining how civil marriage works, including its being open to all.  This would address the “scary” thought (at least to some parents) of second graders being taught about gay marriage.  (Parents would still be free to teach whatever they wanted to about marriage within their own home or church.)

Seems to me a ballot measure incorporating these elements would be hard for anyone, even a Mormon, to oppose.  Maybe I’m wrong, but then maybe I’ve underestimated the extent to which support of Prop. 8 was motivated by sheer prejudice, rather than rationally supported position.  This would certainly tell us what the motivating forces were.

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