September 2009

Top of This issue Currrent issue

Rags and Bones

A monthly column by Jonathan Wallace


The Republicans resort very readily to disturbingly thuggish tactics, as we saw in the mob violence during the 200 election. Now the demagogues are rousing the stupid to go out and disrupt Democratic Congressfolk’s town hall meetings on health care, shout them down and hang them in effigy. Not only is this kind of thing remarkably undemocratic and anti-free speech, and downright scary in a democracy. It also reveals the brainwashed nature of the people who go out and scream when Glenn Beck tells them to: many of them doubtless are struggling with health coverage issues themselves, as are we all. How many could honestly say, “I would rather die of untreated heart disease, then let the government take care of me”?

Sink or swim

An article in the Times about formerly middle class people living under a bridge in Rhode Island was quite striking. This has been followed up by interviews with people living in shelters while they look to get back into private housing and jobs in their former fields in insurance and real estate. Some may be blocked because employers are increasingly doing credit checks to determine if someone is employable. If you get far enough into the mire, nobody will offer you a job to help you get out.

The conservative-libertarian view on all this is quite simple. The world is an ocean and sometimes the waves get rather high. Some people will swim, and others will sink beneath the waves and never be seen again. This is normal and should be permitted to happen; it was ever thus.

It makes you wonder, exactly what is the social contract? Some of us would say, it is that we all form a raft together, so the fewest possible drown. The conservative-libertarian answer seems to be: you agree not to commit violence against me while you sink. If a drowning person demands, “What have you given me in return?” the answer seems to be, “The opportunity to swim.” Sometimes the answer is given by a strong swimmer who refuses to put his hand out, but in other cases, the person thus responding is actually standing on the shoulders of the drowning man.

Liars and tools

A Republican senator adds a clause to health care legislation encouraging the discussion of end of life solutions such as hospice. Right wing blow-hards such as Sarah Palin and the radio and cable TV bloviators maliciously interpret this to mean that there will be “death panels” telling you its time to kill Grandma. And lonely listeners with hard-scrabble lives are pleased to be important for a moment, by coming out at the bloviators’ behest and shouting down legislators at Town Hall meetings. It’s a time-dishonored tactic, used through-out history: such lies launched the Children’s Crusade, the Spanish American war, the rise of the Nazi party, and the conflict in Vietnam, among many others. Like the mobs which forcibly prevented a Florida recount in 2000, these groups of mainly working class people, being roused to fight against something they badly need, affordable health care, are also profoundly anti-democratic, using the threat of force to end discourse and make sure the debate does not end in an honest consensus.

,-Arthur Helton

I’ve been meaning to eulogize this man for a long time. In 1982, newly in solo practice and with a lot of free time on my hands, I responded to an appeal from the Lawyers’ Committee for Human Rights for volunteer attorneys to represent Haitian refugees. Arthur led that effort. He impressed me very much because he was highly intelligent and knowledgeable but lacked the least bit of arrogance I expected even in lawyers with much lower profiles than he had. He was humble and unfailingly helpful; several times when I had problems I got him on the phone personally, and he was never in a hurry but took as much time as I needed to sort things out. Some years before, in law school, I had helped a professor interview lawyers in the nonprofit world, and they fell into two categories: those who were just as self-involved as their private counterparts, and the sad sack ones who worked in that world because they could not do any better. Arthur was neither. I always thought he was one of the best human beings I ever met. Most lawyers, even law professors, are bad teachers who can barely conceal their perception that anyone who needs help is an idiot. Arthur was so patient he was almost a saint in my eyes. In 2003, working on refugee issues for the Council on Foreign Relations, he was killed in the suicide bombing of the UN facility at the Canal Hotel in Baghdad, which also killed UN special representative Sérgio Vieira de Mello.

Invention of religion by the near-sighted

I have a theory that religion was invented by near-sighted people. I mean this literally, not metaphorically.

In prehistoric times, a near-sighted individual could be of no possible use to the tribe. I imagine such people sooner or later woke up one morning to find that everyone else had left them alone, to die slowly as they failed to hunt and gather enough food to survive, or to successfully defend against predators. The dumb near-sighted all died over time, but the intelligent near-sighted figured out they could make themselves indispensable to the tribe by inventing origin myths and deities who must be propitiated through the intervention of the near-sighted individual. From that day to this,, intelligence and the need for glasses have become inextricably bound to one another.

Private prisons

One of the all time bad ideas is the privatization of prisons. Private prisons seem to have all the problems of public ones—ill educated, burnt out, violent guards, a lack of interest in rehabilitation or even modes of prevention to keep prisoners from brutalizing and killing one another—plus a whole new set of problems introduced by the profit motive. Private prisons have an incentive to cut corners, feed prisoners substandard food, and avoid providing medical care.

If you think I’m out on a limb on this one, making unfair suppositions about the free market, check out the latest revelations about immigration detention. According to the New York Times for August 18, 2009, p. A10, the Obama administration has just revised the list of immigration detainees who died in federal custody in the last six years upwards, to 104, adding names to a list that was given to Congress in the spring.

One of these was Felix Rodriguez-Torres, a 36 year old man who died of testicular cancer at a for profit jail run by Corrections Corporation of America, after an apparent failure to diagnose and treat his condition. According to an August 21 New York Times report, “By mid-December, a fellow detainee told the man's relatives, Mr. Rodriguez lay pleading for help on the floor of his cell, unable to move.” An earlier NYT article, on April 3, states that of the then revealed 92 deaths in detention, 32 occurred in facilities run by private companies, and 18 of those in facilities run by the Corrections Corporation. These include Boubacar Bah, 52, who died of a “brain hemorrhage, fractured skull” at the company’s facility in Elizabeth, N.J. According to a Times article on May 5, 2008, Mr. Bah was “shackled and pinned to the floor of the medical unit as he moaned and vomited, then left in a disciplinary cell for more than 13 hours, despite repeated notations that he was unresponsive and intermittently foaming at the mouth.”

This is not an uncommon story. Rather than pay for transportation and medical care, administrators and guards in private prisons have an incentive to claim that inmates are faking ailments. Another major provider, Geo, formerly Wackenhut Corporation, has been sued “for failing to provide adequate medical attention to inmates outsourced from Washington, DC, to the Rivers Correctional Institute, located in North Carolina and overseen by GEO through a contract with the federal Bureau of Prisons. That same year, Idaho state authorities removed 125 inmates from a GEO prison after an investigation—spurred by the suicide of a detainee at the facility—revealed poor staff training and healthcare.” Report at , which also states:

“Pretty immediately when people started going to Rivers we started to get letters about how bad the healthcare was, and just how people were really scared of dying there,” said Deborah Golden, an attorney with the DC Prisoners Project, a group that is representing inmates in the legal case against GEO. One inmate named in the report, Keith Mathis, claims he was denied medical treatment for a cavity until the tooth became infected and caused an open ulcer on his face that eventually “burst open,” requiring surgery and three days hospitalization.

“The more we looked into the situation the more we realized it was a systemic problem,” said Golden. “I suspect that it’s a pattern all over. When you try to run prisons as money makers what you do is cut back on the most expensive thing you can, which is medication and medical care.”

We wouldn’t tolerate cows or chickens being treated the way prisoners are by these private companies. It is time to end these contracts.

In the Times for August 26 is a report that Corrections Corporations employees in a Kentucky women's prison stand accused of numerous rapes of prisoners. Hawaii is pulling all of its inmates out of the prison and bringing them back home to avoid more abuse.

Scalia the sociopath

When I started the Ethical Spectacle in 1995, I wrote in the mission statement that one of my goals was “Examining what commonly used words and phrases really mean, as contrasted to what they appear to mean.” Since then, parsing unusual statements which the speakers thought were very ordinary, has been one of my great pleasures. Among the most remarkable quotes I have seen in the fifteen years I have been doing this appears in the New York Times for August 18, 2009. It is Justice Scalia, dissenting from a Supreme Court order directing a federal court to examine a death row prisoner’s claim of innocence brought directly to the high court by habeas corpus. The case involves a man who was convicted solely on the testimony of witnesses who have now mostly recanted and alleged police intimidation; the sole remaining witness who has not recanted is said by others to be the actual killer. Twenty-seven former prosecutors and judges filed an amicus brief asking the court to correct a miscarriage of justice and prevent the execution of an innocent man. Scalia said:

“This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

This is a wonderful example of someone who believes he is uttering an everyday truth, while revealing much more than he intended to about his own thoughts and beliefs. There are two interpretations of this one sentence, depending on how you take the quotes around “actually”. Both interpretations reveal Scalia is shockingly carefree about the life and death of prisoners.

Scalia’s statement either means:

  1. There is no constitutional prohibition on executing the innocent, so long as they had a fair trial; OR

  2. There are no innocent prisoners in habeas proceedings (if the word “actually” in quotes is intended to have a sarcastic implication that guilty prisoners are scamming naïve habeas courts).

I would be thrilled if someone would ask Scalia if he would endorse his own statement without placing the quotes around “actually”. In either case, I think this statement confirms my long standing suspicion that Scalia is a sociopath, in the sense that he fundamentally does not care who lives or dies or even if justice is done, so long as the forms are observed.

Actual innocence (without malicious quotation marks) should trump any procedural or other consideration. If we find out people are innocent, we should free them, no matter what. It is very disturbing that there is a Supreme Court justice who does not care if the innocent are executed, or (in the most charitable possible interpretation of his words) does not believe the innocent are ever convicted in our flawed justice system.

More death penalty sociopathy

A memorable image I have described here from time to time was a diorama, displayed by the Hare Krishna, which I saw in Grand Central Station sometime in the 1970’s. A man is in the act of killing a bull with an axe. They have exchanged heads, and the man has the brutal head of the bull, while the cowering bull has the frightened face of a man.

In support of the proposition that the execution of prisoners brutalizes those who are responsible for ordering it and carrying it out, is a civil case presently being tried in Texas against Judge Sharon Keller of the Court of Criminal Appeals. As presiding judge, on September 25, 2007, she decided to close the clerk’s office at exactly 5 pm and to refuse to take an appeal which lawyers had telephoned to say was coming in some minutes late, due to computer problems. The prisoner was executed later that night.

Scalia certainly would have approved of her action, which appears to me to demonstrate the same shocking disregard for life as his statement above. The Supreme Court that morning had issued a ruling suspending lethal injections. The Texas prisoner faced that mode of execution and was in fact killed by lethal injection that night.

Given human nature and the extreme heartlessness of those tasked with administering capital punishment, the surprise here is not that Keller behaved the way she did, but that she is facing sanctions for having done so—and in Texas, which has done more to push the envelope in executing people than any other state. In Texas, for example, its legitimate to convict more than one person for firing the same bullet, based on their testimony against each other—and then to execute one or more of the convicted despite the fact that logic dictates that two people cannot pull one trigger. If Texas is really cleaning up its act, it has a lot more work to do.

Private assassins

The CIA outsourced a program to track down and assassinate Al Qaeda leaders to a private contractor, Blackwater USA (notorious for killing 17 civilians in a riot of shooting in Baghdad some years ago). It isn ‘t yet clear whether Blackhawk was brought in to help find targets or to kill them.

The CIA spent some millions of dollars but the CIA project never resulted in an attack on a single target. Then vice president Cheney told the CIA that the Blackwater contract did not have to be disclosed to Congress because (non sequitur alert) the CIA already had the authority to kill Al Qaeda. This last assertion itself is questionable, as President Ford had issued an order thirty years ago banning CIA assassinations. Today’s CIA worked around this by postulating that it wasn’t killing politicians or activists, but terrorist “soldiers’ it might otherwise meet on a field of battle.

This is classic CIA, evil and puerile at once. Money was spent, jocks were hired, undoubtedly there was much talk about modes of murder and exchange of hair-raising stories, and nothing whatever was accomplished.

Cash for clunkers

In Lee County, Florida, which is among those leading the nation in unemployment and foreclosures, local used car dealers are complaining that they are being put out of business by the cash for clunkers program. Intended to create an environmental benefit and simultaneously kickstart Detroit, the program subsidizes the purchase of new vehicles by providing federal money to those who turn in an older car with a substandard engine. The dealers can’t resell the vehicles, as they ordinarily would a trade-in, but must certify that the engines have been destroyed. According to the used car dealers, people are turning in the very vehicles that are their bread and butter, vehicles which have resale value and might have been driven by new owners for years to come. While people with strong credit are the primary customers for the new cars, people with a problematic credit history are more likely to purchase used vehicles, so if the program chokes off too much of the supply, these customers will have a much harder time finding affordable cars.

Like so many legislative decisions, the cash for clunkers program contains some hidden decision making resulting in harm to one group to benefit another. There are probably relatively few bills that don’t shaft someone. In the end, the process allocates the most harm to those groups with the least power and resources, in other words, those who are most likely to suck it up and say nothing. Cash for clunkers seems to be a classic example of this. While raising the average fuel efficiency of the vehicles on our roads is a noble goal, increasing Detroit’s sales by harming the used car dealers is not. Setting higher fuel efficiency standards would have been sufficient to assure that all lesser vehicles would eventually be replaced. Encouraging trade ins without requiring the destruction of vehicles would also have been a worthy compromise.

Meanwhile, new car dealers are dropping out of the program in droves because they are laying out the subsidies to buyers and then not getting reimbursed by the government fast enough, or in some cases, at all. The road to hell is paved with good intentions, and all that.

More on torture

New revelations about the CIA torture program: use of choking to render prisoners unconscious; threats with guns and power drills (life imitating horror flicks); threats that families will be harmed or daughters raped; the actual deaths of an unspecified number of people while being interrogated by contractors or CIA employees. Its getting even harder to tell the good guys from the bad.

The selfish elderly

Its becoming clear that a significant constituency opposing health care reform are Medicare recipients afraid their benefits will be cut. This pampered group (beneficiaries, by the way, of a highly successful American experiment in “socialized” medicine) is being stunningly uncharitable to other Americans who are suffering and dying for lack of coverage.

“Rationing” is one of the buzz words that frightens people, but as I learned in a highly fascinating Harvard Law School course taught by Professor Alan Stone thirty years ago, health care has always been rationed, like every other resource. The Medicare folk are fighting to protect a system of rationing which favors them at the expense of others. Besides, there is no concrete proof that a fairer, more inclusive system will take anything away from them. Like recent immigrants fighting to restrict new immigration, they are just looking to close a door after themselves. “I'm all right, Jack—so fuck you.”

I hate Microsoft

I am writing this on the first Macintosh I have ever owned, a notebook. I always rooted for Apple at a distance, but as a lawyer and corporate executive, always felt trapped in the Microsoft world at the desktop level (and proud to be in the Unix world at the server level).

Over the years, I was always shocked by Bill Gates' arrogance and ruthlessness, and his company's ability to drive superior products from the marketplace (such as Lotus 123) by the deployment of mediocre competitors which were more tightly integrated into the OS. On security issues alone, the failure of Microsoft in almost thirty years to make any significant progress towards closing the gaping holes which allow viruses and malware to invade and even control our computers, illustrates the ability of a company with major economic clout to force us to standardize on a really shoddy product.

I have never owned a DOS or Windows PC that did not mysteriously freeze or crash on a regular basis. Often while running proprietary Microsoft software. One computer I regularly use today always locks up after an hour or two if I have multiple Explorer windows open (just two or three of them). It then obligingly asks if I want to send a message to Microsoft with the information on the crash. I always do but wonder who is analyzing these messages.

The sad thing is that, like people who grew up in Soviet-dominated countries, after a while you become resigned to the situation and accommodate yourself to it, hopeless that anything better can be accomplished. For decades of my life, I accepted that computers lock up and need to be restarted from time to time. In the year I have owned it, my Mac has never frozen and needed to be restarted. It also is reportedly far less vulnerable to viruses than any Windows machine.

Microsoft is a glaring illustration of the fact that a free market system without government restraint leads to a monopoly, which forces us to use flawed, inferior and expensive products. The Department of Justice was very late to the game, intervening only when the Internet came along and Microsoft proposed to integrate the browser into the OS. But where is Netscape today? The triumph of Explorer, despite DOJ action, is just one more sign of the economic power Microsoft achieved in good times and bad.

The most thoughtful, ideological Libertarian I know is a software developer who hates Microsoft with a passion. I once teased him that his philosophy could be summarized as follows: the sole acceptable purpose of government is to fuck up Microsoft.

I am thinking about the evil giant today because of something which happened a few days ago. I turned on my Mac and saw a message asking if I wanted to update Microsoft Office. Naturally I said yes. I have done this several times in the year I owned the machine. I still use Word on most computers, out of years of habit and for lack of an effective alternative (where is WordStar or Wordperfect today?). This time, after the update installed, something new happened: when I tried to launch Word, I was faced by a message that my copy of Office did not have a valid key.

My used computer came with the Office applications already installed. Microsoft let me update Office several times without crippling it. I bought the laptop at a small computer store and did not receive any documentation with it. If they sold me a pirated copy of Office, shame on them; I have always been very respectful of copyright and wouldn't knowingly have bought an illegal copy.

Of course, if I own a legal copy of Office, even more shame on Microsoft. But let's assume for a moment that there is no valid key associated with my apps. I am a purchaser in good faith who has used my Mac as my main computer for a solid year. I am presently living 1100 miles away from home and the store where I got the machine. I was a couple days short of my deadline for producing the September issue of The Ethical Spectacle. And Microsoft had the temerity to reach across the Internet, onto my laptop, and cripple an application, heedless of my circumstances and what effect this action might have on my business life. Shades of the recent scandal about Amazon reaching out to Kindles in people's homes and deleting books they had purchased. If its not OK for Amazon, why would it be all right for Microsoft? Amazon apologized within days; but we have had so many decades of Microsoft behaving stupidly and brutally, we are more used to it.

Within minutes, I downloaded and installed a free and legal copy of Open Office, Sun's freeware which mirrors all Word commands. That is what I am using to write this. I also have this software on two other computers, a desktop back home and an Acer netbook I bought recently, neither of which came with Office pre-installed. I vow never again to purchase Microsoft software.