Category Archives: Ranting

Freedom of Speech: Can We Take a Breath and Be More Accurate?

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There is much to talk about with the events of the last month, but I’m going to focus in on the abuse of the phrase “free speech.”

Last month the movie The Interview was roundly criticized by North Korea. This is not surprising as the point of the movie is the assassination of their leader Kim Jong Un. It was produced by Columbia Pictures (owned by Sony) and it became clear that its Christmas debut was problematic: many Americans feared seeing the movie because of threats of violence against the theaters. Because of that the film was pulled.

Almost anyone could have predicted the backlash. Threats of revenge, realistic or not, created pressure to on Sony to cancel the premier. Then another backlash caused Sony to release it and make it available for download. Many felt that Sony’s decision to block the release was an attack on free speech.

As an American I applaud the conversation but I am troubled by some of the debate. The idea of Sony’s action was attack on free speech made it seem that the decision by Sony was somehow unconstitutional.

As this discussion was quieting we read, to our horror, of the assassination in Paris at the offices of Charlie Hebdo. Charlie Hebdo is a satiric periodical that has parodied, among others, Jesus, the Pope, the prophet Mohammed, and others. Many of us find some of these images troubling and even offensive and, as a result, don’t subscribe. But a few terrorists, who claim to be Muslims, decided that these images allowed them to murder.

This, also, created a backlash where many of us expressed our support for Charlie Hebdo and satirists over the world.

I support neither North Korea nor those who killed the good people in Paris (which also included 2 police officers and 4 hostages in a neighboring Jewish market) but I don’t think these are attacks on freedom of speech. Please understand that I am, in no way, excusing or supporting these attacks.

When we think of “freedom of speech” we normally think of the Constitution and we all revere what it protects. But it protects only one thing: you cannot be arrested, prosecuted, or imprisoned for expressing your opinion. It does not protect you from the consequences of your speech. In other words, if I say something hurtful or offensive to my wife, I’m not protected from her reaction. It only means I can’t be arrested.

If I choose to view the movie or read Charlie Hebdo, I’m not celebrating freedom of speech. The Constitution has nothing to say about this. But I will be making a statement about freedom from fear. The phrase “freedom from fear” should ring a bell: In his State of the Union in 1941 President Roosevelt spoke of freedom of speech, freedom of worship, freedom from want, and freedom of fear. A few months later the artist Norman Rockwell painted his interpretation of freedom from fear onto canvas.

I celebrate both freedom of speech and freedom from fear and am grateful that I can live in a place and time where I can do both. But as a student of American Constitutional history I feel a need to make a distinction between the two. Maybe nobody except me cares about this, but these freedoms are not the same thing.

If you choose to see the movie or buy the magazine, know you are celebrating freedom from fear and not freedom of speech.

The Justice Chronicles, Volume 18: The Senate Intelligence Report on the CIA's Torture Program Shows That the Nuremberg Defense is Alive and Well

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Earlier this week the Senate Select Committee on Intelligence released a report on the CIA’s detention and interrogation program. After the events of 9/11 the CIA began, with the approval of President Bush, to gather intelligence that would allow us to find, capture, and prosecute those responsible.

Virtually everyone in the country, and indeed the world, found this appropriate. Violence should always be answered with justice. But early on it became clear that while we all agree on the goal, the Bush administration saw this as an opportunity to suspend the Constitution and ignore long held prohibitions on torture.

Over the next several years we learned about Abu Ghraib, waterboarding, Extraordinary Rendition and a host of other terms. Many of us (who wanted justice for 9/11 as much as anyone) believed that the Bush administration made unwise and illegal decisions under the guise of national security. Unfortunately the administration was clear: anyone who disagrees with us is unpatriotic and secretly hopes for the destruction of the United States.

Time and again they claimed that “enhanced interrogation” of “the worst of the worst” led them to intelligence that saved thousands of lives. Many of us were suspicious or doubtful but in the absence of information (that they refused to release) it was hard to prove.

It isn’t any longer. According to an article in Vox, the Senate Select Committee on Intelligence decided to launch an investigation in March of 2009. To be fair this isn’t a coincidence: it came two months after the inauguration of President Obama. Then again many of us voted for President Obama hoping that he would stop the abuses of the Bush administration. In any case when they began their investigation it became clear that they couldn’t interview anyone from the CIA because the Department of Justice was considering criminal prosecution of those involved. Nobody from the CIA would testify out of a well placed fear that any testimony could be used against them in a criminal trial. While the Justice Department decided in 2010 not to prosecute anyone, it gave the Republican members of the committee the cover they needed to stop cooperating with the investigation and distance themselves from any findings. They are now portraying this investigation and report as one sided and partisan even though they abandoned their chance to affect it.

The Democrats on the committee continued their work and published the results here. It’s pretty devastating.

As Americans we need to ask two questions: (1) Is torture permissible?, and (2) Does it work?

As to the first question, I answer “no.” Torture is ultimately about convincing another human that he isn’t human. Torture means telling someone that he isn’t of any value outside of his ability to provide information that is valuable to the enemy. When our Vietnam Veterans spoke of being tortured they all knew that they were being coerced to give information that would injure their country in exchange for better treatment. And they took solace in the fact that the United States didn’t torture Vietnamese prisoners.

As to the second question, that answer is clearly “no.” The report is clear that any information gained was already known from another source or was gained from the prisoner before the torture began. Simply put, all the torture gave us nothing.

And yet the previous administration continues to push back against the facts. Former Vice President Dick Cheney stated on Meet the Press that he would do it again. He claimed it was justified because the Justice Department ruled those tactics permissible.

In the final word this is what troubles me most. The Bush administrated claims to rely on the opinion of the Justice Department even though they were officials Bush appointed. Everyone, from the president on down to the torturers, claimed to be following orders. This sends chills down my spine because it reminds me of the Nuremberg Defense. After World War II the surviving leaders of the Nazi party were put on trial for war crimes. They defended their actions by saying that they were “just following orders” and were not responsible for their actions. The court ruled this defense unacceptable: the defendants had a moral and legal responsibility to refuse to carry our orders that were clearly illegal.

I wish that was more widespread here. Unfortunately there was one man who stood up and called out the torture for what it was: John Kiriakou. He is now in federal prison. His inmate number is 79637-083. Had other shown his courage he might not be there and we would be a country that better lived up to its values.

The Justice Chronicles, Volume 17: Governor Brownback, We Warned You

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I’m upset that this isn’t a bigger story, but the standing Governor Sam Brownback of Kansas is in the political fight of his life. This is news because he is a Republican.

Remember this is Kansas. The state that has declared war on teaching evolution.

Four years ago Sam was elected Kansas’ governor in a landslide after a 14 year career in the U.S. Senate. Sam is a strong believer in “supply side economics” or what many of us call “trickle down economics”. Basically this economic theory claims that if we cut income taxes, especially to the richest among of us, that will stimulate the economy. The people who get to keep more of their money will invest it. Ordinary people spend more money. Small businesses, who benefit from this increase in spending, will expand and hire more workers. The money lost on the tax cuts will be offset by more money in income taxes by the people who are hired and the sales taxes paid by the people who spend more.

The best part of this model is that it both looks good and feels good. Who doesn’t want to raise revenue by cutting taxes? Here’s the problem: it doesn’t work. It’s like all the “eat whatever you want and lose weight” diets.

Four years ago Sam was elected and he promised “an experiment.” OK, I have to ask this: someone who has declared war on science is conducting an experiment? In any case he promised to cut state income taxes on small businesses and wealthy individuals and he did. Small business taxes were cut to 0% (that’s right: no taxes) and the highest individual tax bracket was cut by 24% (you can see this here). He promised that while state revenue may take an immediate hit, it will be soon made up by people and businesses who move to Kansas to take advantage of this experiment.

Did it work? No. The NPR story provides an excellent outline of what happened, but basically this is what happened: small businesses benefitted because they didn’t pay taxes but they didn’t expand because there was no increase in business. NPR spoke with Alex Harb, who owns a computer store in Wichita. He spoke about how his tax cut allowed him to purchase more products for his store, but this has not led to an increase in business. Because of this he has not opened new stores or hired more employees. He has not become a job creator.

Is there a downside? Amazingly the supply side/trickle down guys don’t talk about this. Kansas anticipated a drop of $300 million in revenue while the tax cuts kicked in. Alas, they saw a drop of $600 million with no end in sight. If you are wealthy Kansan or a small business owner you have more money in your pocket. But if you work for the state you’re screwed.

The town of Marquette, Kansas was so devastated by the tax cuts that they had to close their last remaining school. You can read this on the Topeka Capital-Journal website. Amazingly the loss of jobs by the school district wasn’t expected by Sam.

So how has the state done? Sam promised that his “experiment” would show that Kansas’ economy would outpace the economies of neighboring states. Has it?

No. Employment in Kansas has grown by about two percent in Kansas, which sounds fine until you recognize that, according to the NPR article, Kansas has fallen behind the national average and three of the four states that border Kansas (and they all have higher tax rates).

I found this at the web page for the Joint Economic Committee of the U.S. Senate. They track several trends, and I looked at private sector job growth since February of 2010. Kansas and its neighbors (Missouri, Oklahoma, Colorado, and Nebraska) showed these results:

  • Colorado: 12.8%
  • Oklahoma: 10.8%
  • Kansas: 6.8%
  • Nebraska: 6.1%
  • Missouri: .8%

According to this Kansas is in the middle of the pack. That’s fine except Sam promised they would leave their neighbors in the dust. Clearly he hasn’t.

The best part of this story for me is the loyalty Sam expected from his fellow Republicans. He should have recognized Republican loyalty is a synonym for jumbo shrimp. Given the opportunity they headed for safety. This story shows how 100 prominent Republicans are endorsing his Democrat opponent Paul Davis. Do you think these Republicans endorsed Davis out of principle? Neither do I. They made a political decision that their future lies in abandoning Sam after cheering him on.

Sam may win or lose, but if he wins, the people of Kansas lose.

Senator Ted Cruz: New Heights In Ignorance

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As I write this we’re in the middle of a crisis with ISIS (or ISEL or the Islamic State, or whatever). This is one of those times where I don’t envy President Obama and how he needs to respond to this threat to our safety.

One of the reasons I don’t envy him is that he needs to govern when the opposition party cares little for the health of our country, its citizens, and its descendents but instead cares only with the desire to destroy him and his party.

Today I saw that Senator Ted Cruz of Texas, who is likely going to run for President in 2016, wants to revoke the citizenship of any American citizen who joins Isis (or Isel or the Islamic State).

This is playing well with Faux News and the rest of this country’s knuckle draggers, but it’s not Constitutional. The 14th Amendment of the U.S. Constitution states that anyone born in the United States or naturalized is a citizen of this country. An article here shows that someone who is a naturalized citizen can have his citizenship revoked, but anyone who is born a citizen cannot have his (or her) citizenship revoked.

If Ted really wants this to pass he needs to amend the Constitution. It’s not an easy process (and it shouldn’t be). There are two ways to do this. The first (that has never been used) requires that two thirds of the states petition congress to call a Constitutional Convention. The problem with this method is that a convention can rewrite the entire Constitution and I don’t know anyone who wants this. It ignores the collective wisdom of the last 225 years.

The other method has been used 27 times. If two thirds of both the Senate and the House vote in favor of an amendment and three fourths of the state legislatures agree, it becomes an amendment of the Constitution.

Senator Cruz is clearly not aware that he cannot simply propose legislation to revoke the citizenship of natural born citizens. Or perhaps he does, and he is doing this as a publicity stunt. In any case, we shouldn’t stand by and allow him to do this.

It’s time to demand that our lawmakers understand the law. And it’s especially time to require anyone who wants to be President to understand the Constitution.

The Justice Chronicles Volume 15: Burwell v. Hobby Lobby: This Is Going To Cost Us

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The end of June is always an interesting time for me because I get to read a small mountain of Supreme Court opinions. I’ve generally found these opinions easy to read and it gives me a leg up on those who listen to 30 seconds of a news story on the opinion.

Far and away the opinion that has interested me the most was Burwell v. Hobby Lobby Inc.. Here is my (brief) analysis: According to the terms of the Affordable Care Act, if you are an employer you are required to provide health care to your employees (you can get tax credits if you employ only a few people). As part of this you have to provide birth control.

Hobby Lobby and a few other privately owned companies objected because they oppose abortion and feel that certain forms of birth control actually abort a fetus after conception. They filed suit against the Department of Health and Human Services and the court agreed with Hobby Lobby.

Justice Samuel Alito wrote for the 5-4 majority. He argued that if a company is privately owned by a small number of owners and they all agree that a law (in this case the Affordable Care Act) violates their core values, they are not required to violate those values. Much of this was based on the Religious Freedom and Restoration Act.

Justice Ruth Bader Ginsburg wrote the dissent. She argued that this will open a door to much greater problems. If we allow these companies to exempt themselves from laws that violate their beliefs, where do we end? What if another company finds all forms of birth control? Or a company whose beliefs on homosexuality prevent them from employing gays or lesbians?

I find Justice Ginsberg’s arguements compelling. To the extent that government has no business deciding which relgious beliefs are appropriate, we rely on people of those faiths to determine what they find offensive. And while mainstream America supports gay rights and birth control, good people of different faiths oppose them. If you are an employee of a small, privately held company, you are essentially a hostage of their beliefs even if they are not your own.

I read the opinion (I downloaded it for free on my iPad) and see a disconnect with what I’ve been reading in other outlets. The most troublind disconnect I’ve found is the impression given that these will only apply to small companies. But the opinion applies to companies with only a few owners, not employees. For example, Hobby Lobby is owned by one family, but they employ 16,000 people. Koch Industries employ 60,000. Simply put, as long as these companies don’t go public they can subject their employees to anything they want.

This wasn’t prominent in the decision, but I think this is an important issues: while Hobby Lobby and other companies are privately held, they are also incorporated. This allows the family financial protection if they go bankrupt; the creditors can only go after assets in the company and not personal assets. It seems to me, though, that these companies are trying to have it both ways. If they want protection for themselves, shouldn’t there be some protection for their employees? If these families see their companies as an extension of their own values, shouldn’t they then be compelled to “go all in” and not protect themselves?

I wonder how long it will take for the Court to see that they’ve opened a bad door.

General Shinseki: We're Not Doing Right By Him, Our Veterans, or Our Nation

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We got word yesterday that Eric Shinseki, Secretary of the VA resigned his position. While we could all see it coming, I’m sorry that more members of Congress asked a few questions before demanding his resignation.

The story began earlier this month when it was learned that employees of the VA hospital in Phoenix were falsifying appointment records. If a veteran asked for an appointment at any VA facility, he or she was supposed to get that appointment no longer than 14 days out; this was shortened from 30 days as a way to cut down on long delays in getting appointments.

Unfortunately cutting the expected wait time by 16 days didn’t change anything else. The reason for the long delays is simple: we have too many patients and too few providers. Middle managers did what they normally do when faced with an impossible deadline: they cheated. The cooked the books to make it seem that they were hitting their numbers when they weren’t.

There are a few articles worth reading on this: The Associated Press and today’s Los Angeles Times give a much more complex picture of this scandal.

I had to do a little digging for this information. It seems the 24 hour news cycle has reduced the story to this: The VA is incompetent, we need to find a scapegoat, and it’s news to go to the top: Eric Shinseki. Congress followed suit and began clamoring for Shinseki’s resignation. It finally became clear that they could clamor (and get on TV) seemingly forever, and a good and talented man fell on his sword.

The problem with the VA is much more systemic. In the last half of the 20th century we had wars in Europe, the Pacific, Korea, Vietnam, along with countless other small actions. In the first decade of our current century we’ve already seen wars in Afghanistan and Iraq. According to the AP article, the VA has seen a 17% increase in enrollments since 2009. Right now the VA carries 9,000,000 patients with 85,000,000 appointments per year. The VA web page shows 2,962 job openings and 746 of these openings are for doctors.

Simply put they haven’t been able to provide enough staff to cover the patients they are tasked to care for. That’s the problem.

Congress needs to provide adequate funding and prevent staffers from having to do this.

And as for General Shinseki, he deserves better than this. We owe him an apology.

San Diego On Fire

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If you accessed the news in any format this past week, you’ve been hearing about wildfires in San Diego. For those of us who live here, we’ve spent at least part of the week watching the news if only to know what to say to well meaning relatives and friends who think we are toast.

Every part of our country, and indeed every part of our world, brings challenges. Maybe it’s hurricanes, or earthquakes, or tornadoes, or blizzards. Here in Southern California it’s becoming wildfires. Many found their way here out of love for the weather and the false assumption that watered lawns and full taps magically appeared.

Many also falsely assumed that any fire would be put out before it costs us anything. Since I moved here in 1995 we’ve had a few years where we’ve had fires that have gone out of control. The years 2003, 2007, and now 2014 will remind me of uncontrollable fires. They will remind me that the price of a house with a spectacular view comes with the acknowledgement that a fire may begin far away but hungers for a house with a spectacular view.

Out of good luck more than anything, my home is generally pretty safe from these wildfires. But the homes of the patients I serve are not. I’ve gotten used to the process of learning about the location of the fires and determining which of my patients are in danger. I’ve gotten used to spending hours calling cell phones hoping to find where they went after getting word in the wee small hours of the morning that they have to leave. I’ve gotten used to preparing conversations with people in the last chapter of their lives who need to understand why they can’t die at home because their home no longer exists.

Is there something I can’t get used to? Yes. I can’t get used to hearing politicians who insist that dramatic changes in weather patterns are not due to our actions. I can’t get used to those who have the ability and willingness to trash the futures of our (and their) descendents because the cost of honesty is their re-elections. I can’t get used to the fact that their ambition for wealth or power is more important than anything else.

Nancy and I don’t have children. But we do have nieces and nephews. We do have neighbors, friends, and loved ones who do. We care about the world we’re giving them. We love Southern California. We love the idea that this is a part of the world that welcomed us. We grieve that this may well be a part of the world that will no longer be liveable. We grieve that, unlike our ancestors, we cannot give to the next generation better than we were given.

We don’t see the recent fires in the context of a random event. We see them as the natural result of climate change that our leaders choose to ignore. And we see the need to elect leaders who won’t do that.

Oh, and one more thing: a few days ago I had occasion to drive through one of the areas that burned. The burned areas look like the surface of the moon but I was amazed at how few homes were lost. Part of the reason is that the homeowners followed directions to keep brush away from their homes. But we also need to give a shout out to Cal Fire for their heroism in defending these homes. It’s going to be a long, hot summer and I’m grateful they are on our side.

The Los Angeles Book Festival: Really Guys? Did You Think This Through?

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For the past several years I’ve joyfully attended the Los Angels Times Book Festival. For many years it was held on the campus of UCLA but a few years ago it moved to USC. It was a weekend devoted to books, publishing, meeting authors, and just soaking up literary wisdom.

Also for the past few years I’ve gone there on a bus trip sponsored by my favorite bookstore, Warwicks here in La Jolla. A few weeks ago I learned, to my dismay, that Warwicks is cancelling the bus trip. My dismay isn’t that they are cancelling it, but why.

If you click on the “authors and performers” tab on the Book Festival page it takes you to a page that lists authors who will attend part of the festival. And then next to their name is a button to order their books through Amazon (I’m not hotlinking them. You’ll have to find them on your own). Yep, you heard it right. You can, with the click of a button, completely undercut the efforts made by Warwicks and hundreds of other independent bookstores.

I’m sure the festival will get a cut of books purchased through Amazon, and I’m sure this was a business decision. But so much of the flavor of the book festival surrounds independent bookstores and publishing houses, exactly the places Amazon is trying to kill. The festival should be promoting independents, not hastening their demise.

In fairness they later added a link to IndieBound which does benefit independent bookstores, but that still doesn’t level the field. If you click on the IndieBound tab it takes you to a page where it asks for your zipcode and gives you a list of independent bookstores in your area. If you click on Amazon it takes you to their webpage where you can order it at a deep discount and have it shipped. While it may not be the right thing to do, it is certainly the cheapest. The book I’m reading now, The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism by Doris Kearns Goodwin retails for $40.00 (and is worth every penny). You can buy it from Amazon for $22.60.

I won’t return to the festival until or unless they change this. I hope it’s not long.

February 13th: Did You Ever Wonder If a Date Is Out To Get You?

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I’m not sure why but this date is replete with events in my life. Some of them are good, but most of them are bad. In the years to come I’m thinking of just skipping this day.

On this day in 1994 my godfather died.

On this day in 1995 my grandfather died.

On this day last year my agency, San Diego Hospice died (it actually announced it was closing but spent the next month transferring patients).

Today two of my coworkers (who are co-survivors of the death of San Diego Hospice) were laid off.

On the other hand, some good things happened. Today a friend of mine celebrated 11 years of sobriety, and the daughter of my friends Mike and Dana turn 19 today.

Maybe everyone has a date like this, but it seems that February 13th is the intersection of lots of people and events in my life.

Next year I start the sleeping pills on the night of the 12th and hope to wake up on the 14th.

The Money Chronicles Volume 9: Whatever Time Warner Calls It, It's Not Customer Service

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Like many households, we get our TV content through cable, namely Time Warner Cable. We’ve been a customer of Time Warner for about 20 years. About 14 years ago we upgraded to a larger channel package, and about 10 years ago we added high speed internet. During that time the price has gone up, but we’ve made no changes in our plan in 10 years.

Last week got a letter that said our “special promotional rate” is ending and our rates will go up about 28%. But…the good news is that because we’ve been such good customers, our increase will be only 21%.

As they say on ESPN, “C’mon man!” Do they really think this is anything more than a 21% increase in our cable bill? Do they really think I’ve been enjoying a temporary promotional rate for 10 years?

We have several options other than Time Warner Cable, but I like the high speed internet and want to keep our email addresses. So the other night I did a live chat. I’m posting it here:

Nyla> Thank you for contacting Time Warner Cable. At the end of our chat you will be given the option of taking a brief sturvey. My name is Nyla and I would be happy to help you. Hi Tom! Let me access your account detaills for the same. Please allow me a moment.

Tom> Thank you Nyla. I currently get both my cable TV and my internet through Time Warner Cable. Right now I pay $96.00 per month for both. If I cancel my TV but keep the high speed internet, how much would that be?

Nyla> I understand your concern. Please allow me a moment. I see that you are having the bundled service at the discounted rates and you are planning to switch to Internet only plan in the near future. I am afraid as I do not see any new offer that can be set up on your account at his moment. However, I found a good deal of $99.99/mo for 12 months promotion. It includes all the three services as of now. I am afraid, I do not have the code to add that promotion and therefore, I am unable to confirm whether your account is eligible for this promotion. If you want I can provide you the phone number to check the eligibility and check other details available for you. Also, please note that currently your account is on extended promotion.

Tom> Yeah, that doesn’t really answer my question. How much would it be for me to get only the high speed internet access and nothing else?

Nyla> The normal rates for this bundled services are $105.99 and you are getting that at a discount of $26.00 effectively making it $79.99. As your services are bundled I cannot get the actual rates.

Tom> Why not?

Nyla> However, you are having the Standard Internet on your account. The normal rates for that alone currently are $54.99. As two services are bundled and therefore they are at discounted rates. I cannot unbundle them to see the individual charges for each.

Tom> Does that mean that if I cancel my TV cable and keep internet access, my monthly bill from you is $54.99?

Nyla> I can help you with the number to see what you might be eligible for. No.

Tom> OK, then what does it mean?

Nyla> I cannot unbundle the services to get just the Internet prices for you. There are different types of bundles available for different areas, different customers according to different plans. Due to restricted system access, I am unable to do that.

Tom> Can you connect me with someone who can?

Nyla> I request you to call the Customer Service at 1-888-892-2253. Sure. Sorry for the typo.

Tom> I’m talking with you from La Jolla, California. Just out of curiosity, where are you?

Nyla> Tom you have to call the above provided number. We are located in Western India.

Tom> OK Nyla, thank you for your time.

Nyla> Again, my name is Nyla. Thank you for chatting with Time Warner Cable. We value you as a customer and are here to assist you 24 hours a day, 7 days a week. If you would like to take a brief survey, please click on “Close” and the survey will load.

Does it appear to anyone else that Nyla isn’t really customer service, but a salesperson?

Direct TV, expect a call from me.