April 2013

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Rags and Bones

by Jonathan Wallace jw@bway.net

The Pope's resignation

I respected him for being the first Pope in many hundreds of years to resign, rather than cling to power long beyond his sell-by date as most humans would. I think he correctly recognized he is running an ungovernable institution, a skyscraper collapsing in slow motion. I distinguish the Vatican hierarchy from the basic tenets of Catholic religion and Christianity, in the sense that I believe that Jesus (as Dostoyevsky suggested in "Grand Inquisitor") would be quite shocked by the things an organization exercising temporal power has done in his name. Suffice it to say that the Vatican's positions on ordination of women and on the position of gay people in society are hopelessly bigoted; its views on birth control antiquated and dangerous; and the burgeoning molestation scandal symptomatic of the fact that, in its wrongheadedness, the Church is not able even to obey its underlying rule-set which includes chastity, humility, and respect.

The new Pope

The new Pope is just like the old one politically. Treated with the same reverent and bemused tolerance our journalists always extend the crazy and formerly murderous Catholic hierarchy, the newspaper coverage barely mentions his suspected involvement with the killer Argentian generals in the time of the "dirty war". A prelate who tolerated killers is now responsible for deciding what to do about pedophiles. That's just great.

It also means that the Catholic church will, for at least ten more years, remain stubborn on birth control, same sex marriage, women as priests.

And celibacy. Hard to imagine how there will be a Catholic hierarchy in two hundred years if the trend continues.


An article in the TImes for March 5 analyzes the use of the word "floodgates" in Supreme Court arguments and decisions since 1908. Certain Justices have expressed concern that a particular decision would "open the floodgates" of litigation, overwhelming courts and the Court itself. For example (this is a common one) allowing prisoners to return to court to establish their "actual innocence" years after they have exhausted all their procedural rights and the last legal deadlines have passed.

I had a personal experience with this recently. I can't give more details because the case is still pending, but a judge denied a motion I made in a criminal case and expressed concern that, if he granted it, a lot more people would be in his courtroom asking for the same thing.

The problem with this is that justice is supposed to be rendered within the four corners of a case. I win or lose based on whether I carry my burden of proof, establish my client's entitlement to relief. No scenario is just in which a court says, "You should win, but you lose instead because I am afraid there will be a lot more of this litigation." Or looks to any other external set of facts to take away a result the client deserves and has earned.

If you think about it, there does not appear to be any moral distinction between saying, "You lose because ts too expensive if you win" and statements such as "You lose because its inconvenient to Donald Trump", or Mayor Bloomberg, or President Obama or whomever--"if you win." In either case, an external consideration is trumping justice.

Much of the time, the expected floods don't materialize anyway. If they do, its usually a symptom there are other problems with the system. For example, if a lot of the people in prison are "actually innocent", wrongfully convicted (which, by the way, I believe to be true), there's something irretrievably fucked up about the system. we should be worrying about that, not about the "flood" of innocent people trying to get out.

So referencing the "floodgates" as an argument against granting relief is a stunningly immoral statement, and completely inconsistent with the responsibilities and ethics of being a judge.

Lauding NYPD

The Times is a very strange animal, a newspaper which unlike most others, purports to hew to very high intellectual and moral standards, considering everything carefully, avoiding cliches and kneejerks, and always pursuing chimerical "neutrality". Yet the paper is a completely mixed bag, in which articles on the very same subject will vary between those which know the score and complete white-washes.

The Times has covered a lot of NYPD lying, cheating, stealing and killing over the years, and is better positioned than anyone to know there are some really bad cops mixed in with the good ones. And the paper is also not ignorant of the civil liberties implications--it has covered the "stop and frisk" controversy quite intelligently.

So I was surprised to see an article in the March 5 edition which read like an NYPD press release, describing a program under which the cops effectively stalk teenagers they believe are gang members but who are not suspected of any crime, as a deterrent to keep them on the straight and narrow.

You would think this article would have included a quote from NYCLU or NLG about the constitutionality of this approach, but there was none.

Horrible speech

An ex-New York City cop, Gilberto Valle, is on trial right now for allegedly plotting to kidnap, rape, kill and eat women. His attorney is mounting what seems to me to be a very able First Amendment defense, that her client did nothing more than engage in very "ugly conversations" on the Internet. Since the prosecution may come up short on evidence that he took any real-world action to translate his day-dream into a reality, the question becomes potentially acute as to the extent to which really Horrible Speech is protected by the First Amendment.

There are two dueling conceptions of what the First Amendment is for (there are more than that, but two which are important for my purposes right now). One is an Athenian and very limited concept, that we all have to be able to speak freely to run our joint enterprise (Athens or America) together. This conception is broad enough to cover Occupy Wall Street protestors but would give no comfort to Officer Valle. The other is what I call the Mill-ian concept, after John Stuart Mill, that the First Amendment protects an individual right to bloom or wither, the full individual freedom to pursue lines of thought, Horrible or Noble, for so far as they will lead us, so long as we don't harm another human being. This is the conception on which Valle is relying.

This is of particular importance to me right now, because even though I like to think that "nothing human is alien to me", I feel intense disgust towards Valle's fantasies. A significant test of one's conception of freedom of speech is the extent to which you acknowledge it applies to speech you personally find disgusting.

Our U.S. concept of freedom of speech is more a Mill-ian concept, granting protection to content, literary and otherwise, which includes quite grotesque and violent fantasies. There is not much of a difference in essence between Valle's emails and some of the grosser moments in the novel "Hannibal" (with its brain-eating scene). The distinction, that Valle was typing at his kitchen table at midnight and that Thomas Harris received a huge advance for a novel published by a mainstream publisher, is irrelevant. If Harris has First Amendment protection for disturbing fantasies, so does Valle.

I have a secondary consideration, which is prosecutorial inflation, the process (applied also against Aaron Swartz, about whom I wrote here recently) of constantly hyping small crimes into great ones, and non-crimes into crimes. Conspiracy cases are especially prone to error, because once you have shown the efforts defendants went to, to communicate surreptitiously with one another, its easy to lose sight of the fact that their goal was actually legal. Any court decision which whacks a prosecutor across the nose with a rolled up newspaper, to encourage more moderate behavior next time, is a worthy one.

Drones and assassination

Here is a 2001 Washington Post article which traces the history of U.S. attitudes towards assassination.

Presidents Carter and Reagan both issued executive orders prohibiting CIA involvement in murder, after some embarrassing disclosures in the 1970's. That uncompromising moral position has continuously eroded, even in the Clinton administration, and become all but meaningless today. All that has really changed is that, back in the day, when the CIA got outed, the president would disclaim responsibility and leave the agency hanging out to dry. Today, a sadder, wiser agency insists on being able to pin responsibility on the Oval Office. Shades of "The Godfather" and Michael Corleone demanding to know "who gave the order?".

As I have said a number of times recently, there is no moral distinction between a drone strike and a bullet to the head in a Paris cafe. Responding that "there is no other way to fight Al Qaeda without an immense expenditure of life" is a practical argument, which does not really answer a moral one. This comes up a lot in public policy issues, where, for example, someone might try to counter the argument the death penalty is moral by answering it is too expensive. In such cases, we are talking past each other. We ought to spend some time, despite the efficiency and practicality of drone strikes, thinking about what we are doing morally, whom we are becoming.

Technology and change

I went into a Verizon store and asked for a battery for my Droid X, and they don't have any and can't even order them. Because, the technology, is, you know, so five minutes ago. I keep saying it, but when will we treat Internet-abled technology as if it were an appliance? You should be able to get parts for a washing machine or a refrigerator for ten years or so after you buy it. The pace of innovation, the idea you should have a new phone every year, is exhausting.

Verizon was, however, offering a drone aircraft with its own digital camera for spying on sun-bathing neighbors. Brave new world.

Drones redux

And it gets weirder. Now the administration is refusing to say it would never use drones on American soil. If we can kill people in Yemen, why not San Francisco? Its just a matter of time. Defining the targets and presenting them to the public as non-human was more than half the battle.

A New York trial

Bravo for the President--haven't said that in a while--for bringing a top Al Qaeda lieutenant to trial in the federal criminal system in New York City, instead of condemning another soul to Guantanamo, as some on the right would still have him do.

On the other hand, the guy in question is described as a "propagandist" without an operational role, raising the possibility that he is being prosecuted for distasteful speech that would be First Amendment-protected if uttered by an American.

First Sale and E-Books

I can buy a copy of "The Hobbit" new, read it and sell it right away to whomever I please. This is the "first sale" doctrine in copyright. It has never been applied to ebooks, which in effect you rent or license.

I have been writing since the 1990's about the importance of reasoning by analogy where technology is concerned. First Amendment law apply to electronic works because they are closely analogous to works on paper. But you can't have it both ways: an ebook can't be a book for free speech purposes and some other entity for purposes of the First Sale Doctrine.

As a matter of simple economic fairness, I should be allowed to sell an Ebook just as I can a paper book. There's no other result which makes sense, unless the driving policy of American law is support of corporate greed.

Training v. experience

One of my most embarassing memories was also a valuable life lesson. Thirty years before I became an ambulance person, I took a CPR class while in law school. The instructor taught us to approach first responders and say, "I'm certified in CPR, may I be of assistance?" This was completely inane, as no medical professional ever wants to be interrupted by a random member of the public, while on the job and trying to concentrate. I know this because I tried it, a year or so later, when an ice cream truck exploded on Wall Street and people were lying in the street everywhere. The EMT looked at me as if I were mad and pushed me out of his way without saying anything, as I would have done if anyone had approached me with such an unwelcome suggestion when I wore the uniform thirty years later. The life lesson here is the huge gap between academic theory and real life experience, which I am also noticing these days in First Amendment matters, where almost none of the people telling us what the rules are have ever spent the night, as I have, in a holding cell at Police Plaza, for exercising those rights about which they are so eloquent.

Speaking of CPR

A new study suggests that families do better psychologically if they have observed CPR performed on a loved one. This conforms to impressions I had when I worked on ambulances and performed CPR on sixty people or so. Family members often helped us get access and get the patient out. In between they prayed nearby or consoled each other. I think the feeling of having been there, helped in any way possible, and borne witness is healthy. I remember just one exception, a ridiculous Park Avenue woman who put her lawyer on the phone with the paramedic to threaten to sue us if we stopped CPR.

The insight that being there, helping and witnessing is better than being excluded is equally applicable to the birth of a baby, care of any sick person, and the death of a family member. I was with my parents during their final illnesses, and I feel more accepting and serene about outcomes than if I had followed the old protocol of excluding any intense and mortal moment from view and letting it happen in a closed distant room. In fact, my mother's last words to me were, "I'm glad you're here." So am I.


The Bloomberg administration law against large caloric sodas has been temporarily enjoined by a judge. Surprisingly, civil rights groups came out in force against what they call a "paternalistic" or racist law, only to be embarrassed by revelations that the soda companies are large contributors to their cause.

Like so much else in the public debate, those who proclaim a "right" to drink a three thousand calorie soda as a matter of personal freedom leave out a significant corrollary question: who do you expect to pay for your treatment when you are old, uninsured, obese, diabetic and have heart disease? If your answer is nobody, we are fine. But if you expect my taxes to pay for your medical care, I think that just gave me and the government an interest in banning those humongous drinks.

An emergency room story

Speaking of paying for medical care (love these little segues), here's a story from the Hamptons. A local woman with what she thought was good medical insurance fell while running and broke both wrists. At the emergency room, the intake people reassured her they took her health insurance. Then arrived a $10,000 bill, for the attending who was called to see her, but did not personally accept her coverage. I had a similar experience once, when a procedure was covered but not the anesthesiologist ($1800).

This is a crazy, fucked up system and it must be fixed.

Reprinted almost without comment

Jeb Bush at the Conservative Political Action Conference:

Way too many people believe Republicans are anti-immigrant, anti-woman, anti-science, anti-gay, anti-worker.

Why would that be? Because they are.

Two thoughts about drones

1. We are using drones to monitor the Arizona border for illegal immigrants now. I think we are about a minute away from 24/7 drone surveillance of everyone in the U.S. Drones are the new security cameras; as you walk down the street or sit in your yard, there will be a drone watching you at all times.

2. We always forget that advanced technologies are merely human tools, and that anything which would be wrong for a human to do is still wrong if done by a tool. So every time you read of a drone strike, try the following thought experiment: imagine how you would feel if the report described an attack by infiltrated CIA assassins. There is no moral difference.

Government hacking

Right after September 11, I had an attack of patriotism and started looking for ways to serve my country. At 47, I was already too old to join the military, the F.B.I. or to become a cop or firefighter. I ended up working as an emergency medical technician for the next five years, the only category of first responder that had no age limit.

One thing I briefly imagined doing was approaching the appropriate government agency (which one, I wasn't sure) to suggest that, based on my experience as a dotcom exec in the '90's, I could form a team to develop software that could help locate Al Qaeda operatives. I was imagining a trojan horse within a file Qaeda people would want to share with each other, that would send back IP addresses, other location information and files from the computers on which it resided.Perhaps, at the time I thought of it, someone was already developing that product. In the ensuing years, software has been discovered on Iranian computers that does exactly this, among other things.

I was imagining we were in a period like World War II, when older people were able to bring special skills--law, medicine, encryption--to the military to help face a national emergency. But the attacks on the homeland didn't continue, and the whole affair got tangled up in the Iraq detour, as if America in 1942, instead of going after Hitler, had chosen to attack Argentina instead. Working as an EMT was very rewarding, and I was very glad I hadn't given in to the impulse to volunteer to become a spy.

Twelve years on, we live completely in that brave new world in which governments field secret hacker teams to fuck with each others' computers. The very defective Stuxnet virus, for which America and Israel seem to bear joint responsibility, escaped from the computers running Iranian centrifuges and infected machine control software in a variety of countries and industries. That is close to the only insight we have had into American hacker teams, but there has been a lot of fuss this year about programmers deployed by the Chinese military to invade American computers, both to steal secrets and to crash them. This included the New York Times systems after some reporting the Chinese found offensive.

We are putatively at peace with China and we shouldn't be trying to destabilize each other. Technology so often gets a moral pass, as if bombing people from airplanes (or from drones) is somehow less reprehensible than stabbing them with bayonets. Morally, though it didn't actually cause people to bleed and die, Stuxnet was like a cluster munition that, when deployed against the target, sent its bomblets all around the world to explode in friendly countries. The two moral flaws in secret government hacking: it is defective, sloppy and uncontrollable; and it is deployed against friends.


Liberal candidates for mayor are proposing creating a position of NYPD "monitor" and the Bloomberg administration and Police Commissioner are ferociously fighting back. The proposal is in fact a classic defect in planning, and actually betrays a kind of thought disorder. Something's wrong if we have to tolerate a gaping flaw in a system, and then create an external solution that can only alleviate, not cure the flaw. Its as if you couldn't manufacture a car that steered properly, and the proposed solution was to create a lock which kept you from turning the wheel more than a quarter turn. A real life example is virus software, which we have to purchase because companies with market caps of billions of dollars, employing hundreds of thousand of the world's best programmers, can't solve the problem of designing an operating system resistant to viruses.

In other words, the NYPD's problems could be solved in under a decade simply by hiring a commissioner who actually wanted to reform the force, changing the way cops are trained in the academy, ending bigoted and dishonest policies like stop and frisk and quotas for quality of life tickets which are handed out only to black and Latino people. Most importantly, institute a zero tolerance policy for police perjury. If we don't have the political will to do any of them, appointing one more civilian official without authority simply to watch the cops is not gonna do very much.


Guantanamo like everything is prey to the Second Law: a temporary facility that has now lasted eleven years, it is falling apart and needs about $150 million in upkeep and repairs. The population, now down to 125 people, is aging and will need more medical care that is not available on the island. Some of the prisoners were slated to be released years ago, and have been held because of appellate court reversals (one man committed suicide) or because its hard to find countries that can take them. Congress, which so shamefully interfered with the President's plan to close the facility, is unlikely to allocate the money necessary for upkeep or to build a geriatric care facility there. In the meantime, the administration, under the radar and out of the spotlight's glare, is successfully arresting or capturing Al Qaeda people abroad and transferring them for trial in Brooklyn or Manhattan under our criminal laws. If we had an ounce of courage, we would let the President carry out the original plan, release the innocent and transfer the others here for trial. Not to mention the fact that the existence of the facility was always a gross insult not just to the Cuban government but to the people of that country.

A thought about guns

Someone out West is shooting prosecutors and prison officials, though its not clear yet if its one shooter or if the cases are unrelated. The latest, the DA in a rural Texas County, announced his defiance after one of his deputies was murdered some months ago, and was known to carry a gun at all times. He and his wife were shot dead in their home, without apparently reaching a weapon or firing any return shots.

This raises a question I also thought about when Congresswoman Gabriel Giffords and Judge John Roll, both of whom were known to carry, were shot. Raise your hand if you believe there would be even more of this kind of thing if there were stricter gun control. If that's true, why do most mass shootings occur in places with a high concentration of weapons, not in New York City or Boston? If putting more guns into the environment fights entropy, rather than creating it, why did none of these armed people succeed in defending themselves? In hermetically sealed NRA world, guns make us safer, but in the real world how is your six or ten shot weapon going to defend you against a madman's 30 bullet clip and sacks full of reloads?

For profit drug culture

One out of five high school boys has been diagnosed with ADD and medicated with drugs like Ritalin or Adderal. These are impossible numbers. You absolutely have to believe that kids are being placed on drugs who don't need them and are suffering the consequences of dependency, anxiety and even psychotic reactions.

There are a lot of reasons for this, including our simplistic worship of chemical solutions to almost every problem, but the profit factor has to be an important driver. Drug companies still invite doctors to seminars, take them golfing and then send them patients. There is a built in incentive in the system to overprescribe. Did you know that most psychiatrists have abandoned the Freudian talk therapy business? They do more lucrative "evaluations" all day long which are an excuse for writing prescriptions for psych meds. It is a more lucrative practice than selling your time at a relatively low hourly rate.