My July 4th Reflection

For me the contradiction of the American experience is summed up by the fact that George Washington wrote this letter to the Jewish Community of Rhode Island while holding slaves and pursing an “Indian policy” that regarded Native Americans as savages to be quelled.

As a Jewish American, I cannot forget that when my ancestors were dumped by pirates in New Amsterdam, America became the only place in the world at that time to accept Jews with no legal disabilities. After more than fifteen hundred years  in which the best Jews could hope for was “tolerance” as a matter of grace, we became citizens with rights. When George Washington wrote the letter linked to above it was still true that not a single other country in the world permitted Jews to be “citizens” with rights and freedoms exactly the same as any other citizen.

This is a thing that cannot ever be forgotten. It is one reason why I will always love America, and celebrate July 4th publicly as a holiday of pride in my American heritage.

To say all this does not wipe away or somehow ‘balance out’ the real oppressions, ranging from petty indignities to genocides, that populate American history. Nor did this official liberality mean an end to the struggle for real equality for Jews in the United States. And, just as I cannot judge impartially the virtues of the Roman Empire which destroyed the Temple and murdered and enslaved millions of Jews, I do not expect that African Americans or Native Americans who were the primary objects of national policies calculated to crush and enslave them, should share this view.

But nor do these very real evils wipe away or somehow balance against the good that was done and the recognition that all people should be equal in the eyes of the law –even when those who made this declaration and believed in it were able to rationalize their own assault on this fundamental truth.

To borrow from another great American President: “It is for us the living, rather, to be dedicated here to the unfinished work” of making the ideals of freedom and equality reality. “It is rather for us to be here dedicated to the great task remaining before us” to resolve the contradiction between word and deed.

To make the sentiments of Washington’s letter real, we must recognize our virtues and our flaws. For it is only in the recognition of our virtues can we give them power to triumph over our flaws. When we have achieved this, we will achieve the vision of Micah quoted by Washington in his letter. “And each shall sit beneath his fig tree, and his vine, and none shall make him afraid — this the mouth of the Lord has promised.”

Happy 4th

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Associated Press is shocked –SHOCKED — To Discover Government Cannot Be Trusted With Power to Spy

Dutch explorer and author Arthur Wichmann summed up the history of bungled exploration attempts of New Guinea with the phrase “Nothing learned, everything forgotten.”

I find myself thinking of this phrase in light of the revelations that the Department of Justice (DoJ) asked for, and got, two-months of phone and data records for Associated Press reporters. DoJ apparently asked for the data because it wanted to find the source of a leak that the Administration foiled an Al-Qeda plot. According to sources, the AP apparently sat on the story for several days to protect the lives of U.S. agents, but balked at further delay so the Administration could break the news itself in a press conference. AP accuses the DoJ of abusing its surveillance powers to punish AP for raining on its parade. Verizon apparently turned over the information with nary a quiver or question.

The Administration denies any knowledge of DoJ’s actions, it also denies any comparisons to Nixon, saying: “People who make these kinds of comparisons need to check their history.”

Actually, a bunch of us do and did. Which is why I say “nothing learned, everything forgotten.”

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Why The Eviction of Occupy Wall St. From Zuccotti Park Raised An Interesting First Amendment Question.

A bit off topic, but I couldn’t resist. For most folks, the question of whether the recent eviction of Occupy Wall Street (OWS) protesters from Zuccotti Park constitutes a violation of the First Amendment has very little to do with law and much to do with principle. Those opposed to the eviction note that the demonstrators were peaceful, the Mayor displayed clear animus to the protestors and their message, and that the claims of health and safety are mere pretext. Those who support the City’s actions argue that the protesters had essentially co-opted the park to the exclusion of other public uses and that the protesters were in violation of the park rules (usually eliding over the fact that the rules were adopted after OWS began) and that it is privatekly owned space in any event.

After reading the Order upholding the right of NYC and the owners of Zuccotti Park to prohibit tents and, potentially, other sleeping things such as sleeping bags, I believe this raised an interesting 1st Amendment Question for those of us who follow 1st Amendment law. Those interested in why this is actually an interesting question, rather than resolution of the question, can see more below . . .

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Forget The First Amendment, BART Messed With The Phone System. Violated CA and Federal Law.

I suppose I am, at heart, really a telecom lawyer after all. My reaction to the news that the Bay Area Rapid Transit (BART) police shut down cellphone networks in a number of stations had nothing to do with democracy, the First Amendment, Tahrir Square, etc. With all deference to the importance of these concerns, my reaction was WHAT DO YOU MEAN THESE IDIOTS MESSED WITH THE PHONE SYSTEM! From my perspective, and the perspective of traditional telecom law, BART could just as well have turned off the local central office and all this chatter about whether or not BART is a public forum is just a distraction.

Obviously, however, no one at BART thinks of cell phones as the phone system. In BART’s open letter explaining what they did and why it was cool, BART focuses on the First Amendment /public forum issue and completely skips the fact that they shut off a phone system. Mind you, I suppose I can’t blame them – much. A number of folks are asking if there is a right to cell phone service as if there were a novel question rather than something settled by decades of telecom law.

Also missed by most: this goes well beyond BART. If BART gets away with including “we can shut down cell phone service” in its tool box you can guarantee that other local law enforcement agencies will start copying this – and all for the best of reasons. Because what could possibly go wrong when you pull the plug on a critical piece of infrastructure whenever some local police chief or city council person or whoever decides they need to do something about these “flash mobs” or “rioters” or whatever? BART emphasizes the narrowness of the impact. But Montgomery County, MD, where I live, is worried about an outbreak of flash mobs of teenagers that materialize to raid local stores. Suppose they decide to start turning off the phone grid in neighborhoods they believe are “at risk?” Sure, lets just knock out phone service for a neighborhood for a few hours. What could be the harm – and it’s all in a good cause, right?

There is a reason we do not mess with the phone system, and why that doesn’t change when the phone system is wireless.  Legal reasoning below . . . .

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Whether Obama Will Fight For Public Option Is Irrelevant. The Question Is, Will We?

Chris Bowers, as usual, hits it dead on in this piece on OpenLeft. While we may despair of the Democrats lack of spine, the question is whether we are willing to stand up and fight for our principles.

Opponents of the public option are willing to make angry calls, attend rallies, spend money like water to make their point. Why shouldn’t a rational member of Congress assume that they carry the majority if we cannot muster a tenth of the enthusiasm to fight for our principles?

Donna Edwards (D-MD) spoke at America’s Future Now in June. As the audience pressed their demands she responded “Look, I’ve been to a whole bunch of Progressive retreats. I know what the demands are. The question is whether any of you will actually make calls to members of Congress to try to make this happen.”

And now we find that the Obama Administration has taken the silence of the Progressive movement as a willingness to compromise. Why are we surprised? But the question is not whether Obama is a good or bad person, a traitor, a realist, a disappointment, or anything having to do with Obama. The question is, what are we going to do. As the Bible tells us:

It is not in Heaven, that you shall say: “Who shall ascend into Heaven and bring down the Word to us that we may hear it and obey.” Nor is it over the sea, that you shall say: “Who shall go over the sea and bring back the Word that we may hear it and obey.” For the Word is near to you, it is in your mouth and in your heart for YOU TO DO. (Deut. 30:12-14 )

As always, we must rely upon ourselves, not some imagined political party. How can we be betrayed if we will not even get up off our ass to fight?

Stay tuned . . . .

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Oh, those witty JP Morgan Guys, Pissing on Little Timmy Geithner

JP Morgan Exec mocks Treasury Sec for bailout money.

To which I cannot help but respond:

I am glad Mr. Dimon is so pleasant with us;
His words and his sneer, I thank him for:
When we are next met in Congress assembled,
We will, by God’s grace, pass such a bill as
Shall send his wits into the hazard.
And we understand him well,
How he comes now with memory of wilder days,
When he did reign as Prince untouchable
And those set to guard against his excesses
Catered to his whims and kept him safe against all
Accountability that had once been law.
What wonder when, having supped so freely and so long
at public feast, that he should task us so
for daring to restrain his monstrous appetites?

So tell the pleasant prince this mock of his
Hath turn’d his balls to gun-stones; and his soul
Shall stand sore charged for the wasteful vengeance
That shall fly with them. For I swear
His jest will savour but of shallow wit,
When his colleagues weep more than ever they did laugh at it.

(With apologies to Henry V)

I do hope the folks at Treasury who fought so hard to restrain the “radical” demands that public money have some conditions attached take note of how grateful their financial sector “clients” are for their services.

Stay tuned . . . .

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John Boehner and Conservatives In Exile Make Cakes For The Queen of Heaven; New Generation Dems Prepares To Blow Trumpets and Bring Down Walls.

Recognizing that some professed conservatives in Congress have some trouble remembering all that “Old Testament” stuff, allow me to clarify the reference. At the end of the Book of Jeremiah, the Babylonians come and do everything Jeremiah predicted would happen if the Children of Israel didn’t stop all their idolatry and oppressing the poor and the helpless, i.e., they destroyed the Temple and took King Zedekiah and a greater part of the people into exile. After the assasination of the Jewish Governor Gedaliah, the remaining remnant of the people hit a new low and — against the express command of God as relayed through Jeremiah — flee down to Egypt. Because the people are basically total a–holes, they drag Jeremiah down with them.

Once in Egypt, God sends Jeremiah with a final prophecy in which he reviews all the times God warned the Israelites to turn away from their idolatries — notably the worship of the “Queen of Heaven” — and how each time Israel refused. God patiently moved from warnings to punishments, and still the people stubbornly refused to repent. In fact, they got worse. Now they have come down to Egypt as pathetic refugees suffering a miserable existence, and God is going to give them one last chance to learn their lesson or “He will give unto them the Bitch Slap Of His Wrath so hard they shall not knoweth whether it be Sabbath or the Day of Atonement.” To Jeremiah’s astonishment, the people give him a big “F-you! What the heck do you know anyway? You radical far left prophet you!” Rather than amend their ways and repent, they tell Jeremiah:

“It is only since we have ceased to burn incense and make offerings to the Queen of Heaven that we have known want, and died by the sword and by famine. And when we burned incense, and poured out drink offerings, and made cakes to the Queen of Heaven, were not our men then with us?”
— Jeremiah 44:18-19.

Or, in other words, the lesson the exiled Israelites learn from suffering defeat after defeat, humiliation after humiliation, is that Jeremiah can’t possibly know what he is talking about and the only way to finally win is keep doing exactly the same thing, but even more so. And, if possible, be even more obnoxious about it.

Connection back to today’s politics below . . . .

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“Jesus Was A Community Organizer, Pontious Pilate Was A Governor.”

I wish I could claim credit for what is so far my favorite campaign slogan, but it comes from this Daily Kos post. I’d like to get it on an internet button and have everyone involved in community organization display it.

In the meantime, however, I recommend this excellent piece by Joe Klien on what Barak Obama actually did as a community organizer. Then tell me again how those elitist Democrats can’t possibly understand your pain in the way that the crowd of Republican delegates and lobbyist who think that being a “community organizer” is funny.

Stay tuned . . . .

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The Difference Between Free Market Conservatives and Worshippers of the Gods of the Marketplace.

As regular readers know, I frequently deride those who continue to put their faith in a creed of deregulation despite empirical evidence that this is not suitable to all occasions as worshipers of of the “gods of the marketplace,” after the Rudyard Kipling Poem The Gods of the Copybook Heading (with a fine sense of irony that Kipling would be closer ideologically to the folks I criticize). This leads some to imagine that I am “anti-market” or “pro-regulation” or some other ideology that places process over outcome, rather than a pragmatic sort who believes that the job of public policy is to use all available tools to achieve the goals of prmoting the general welfare, securing domestic tranquility, etc., etc.

I recently came across an illustration of the difference in, of all cases, a collection of Darwin Award Winners (Darwin Awards Iv: Intelligent Design for anyone that cares). The book contains the tale of a “winner” who was a passionate anti-government type who refused to wear a seat belt in protest against mandatory seat belt laws. A car he was in in skidded and flipped over. The the driver and one passenger who were wearing seat belts survived. Our protesting friend was thrown from the car and died.

It occurred to me that this story nicely illustrates the difference between those who favor a free market approach and worshipers of the Gods of the Marketplace. A smart Libertarian may believe that the government has no right to order people to wear seat belts. But, evaluating all the evidence of how seat belts save lives, will voluntarily wear a seat belt even if not required. After all, it would be foolish to put one’s life at risk simply because the government wrongly orders people to do what you think makes good sense.

But an ideological driven soul, indifferent to empirical evidence and elevating process over substance, refuses to wear a seat belt because the government says you should, and therefore wearing a seat belt must be the wrong or inefficient result and believes it the positive duty of all anti-government believers to refuse to wear seat belts.

Now go read the dissenting statements of McDowell and Tate in the Comcast decision, the McCain Tech Policy, or any of a dozen or so speeches by elected representatives or pundits who get their economic education from reciting bumper stickers about free market economics they don’t understand. Then ask yourself, are these guys actually evaluating the evidence and accepting the result? Or are they driving with their seat belts off?

Stay tuned . . . .

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COPE-ing nicely, thank you

Throughout the public interest community, one can find much wailing an gnashing of teeth over today’s Commerce Committee mark up of the Communications Opportunity Enhancement Act of 2006 (COPE). “A Bad Day for Media Democracy” reads the headline at Save Access.

Well, I’m not happy with COPE so far, but I think it turned into a good day for democracy, with better days to come. Because if you thought today was grim, you weren’t here for the absolute spanking net neutrality got in subcommittee in the beginning of April. In the week since the SavetheInternet campaign got underway, four democrats switched their votes on Net Neutrality from “anti” to “pro.” The day before mark up, the Republican chair of the House Subcommittee on Antitrust in the Judiciary Committee and their new task force on telecom declared all out war against the Commerce Committee effort to eliminate a free and open internet. The telcos, who earlier this month boasted they could get the bill past both houses and signed into law before the election recess, don’t sound nearly as confident despite today’s win.

What changed? Until the Subcommittee Spanking, folks let the tech companies do the heavy lifting and fought by the standard lobbying play book. Hill meetings, inside the beltway briefings, insider baseball, blah blah blah. Google v. Verizon, people said, and tuned out. And while the tech lobbyist worked with us public interest folks, one could not help but detect a certain — how shall I put it? — condescension and cluelessness as to how this “public interest” stuff really works. It kinda felt like posing for photo ops, while the “real” decisions about spending money on messaging and what strategies to persue and the ever-important smoke filled room meetings never involved anything as messy as the public.

And, as usual, the tech folks got spanked. Spanked real good. The kinda spanking you usually have to pay good money for if you fancy that kind of thing. Because despite having more money than the telcos and cable cos combined, the tech cos can never win using telco and cable co rules. Because the telcos and cable cos wrote the goddam rules and have played this game by this rulebook for a longer than most tech CEOs have been alive. As a result, the telcos and cable cos are very, very good at it. Meanwhile, as my friend and fellow traveller Jeff Chester at CDD observed the tech companies still can’t figure out how to play this game, or what they want to get out of it if they could figure it out. Or maybe they just like getting spanked, and miss the days when the intellectual property mafia would toast their little bottoms for them with legislation like the Digital Millenium Copyright Act.

So, while still working with the tech lobbyists etc., the folks in the public interest community finally said “Screw this. You guys may be into getting spanked, but we prefer winning. And the way you win in democracy is by busting open the process, getting people to see what’s at stake, and reminding elected officials that their job is to do what’s best for their constituents not to referee industry food fights.” And thus, through the work of Free Press, Common Cause, Moveon and a host of others, was the SavetheInternet campaign born. And when the mainstream media refused to cover the story as too technical or boring or against the interest of their parent mega-companies, 500 bloggers took up the cry. And all this free speech stuff, that the telcos and the cable cos and the memebrs of Congress ignored because it doesn’t have a trade group and you can’t quantify it in dollar terms, really worked. And more and more people are writing letters and calling members and reminding them that there’s an election this fall.

There’s a lesson here; one backed up by the utter triumph of the pro-munibroadband forces against proposed amendments to outlaw munibroadband, or even to grandfather existing state-level bans. YOU CAN’T OUTSOURCE CITIZENSHIP. You can’t let “the tech companies” or even “the consumer advocates” or anyone speak for you. Citizenship carries responsibilities that go beyond the ritual of voting every two years. But when citizens wake up and speak up, and speak to each other, they find — to their surprise — they are strong. They find they have power. And they find that being a citizen may take hard work, but it is so, so, SO much better and more satisfying than being a couch potato. As the great Jewish sage Hillel said: “If I am not for myself, who will be for me? If I am only for myself, who am I? If not me then who? If not now, when?”

Don’t get me wrong. I’m glad the tech companies are on our side. They have a lot to offer, lots of resources, and, if they decide they are tired of of playing by the old rules and getting spanked, can really help push this effort over the top. But if we as citizens let this degenerate to a fight with Google, Microsoft and Silicon Valley venture capitalists who like tech start ups on one side v. AT&T, Comcast and Wall Street analysts who like monopolies on the other, with Congress brokering a deal between the two, then we citizens lose no matter which side wins. We can, we must, speak for ourselves.

When Ben Franklin left the Constitutional Convention someone shouted to him from the crowd “Mr. Franklin, what have you given us?” He answered “A republic — IF YOU CAN KEEP IT.” The Sausage Factory of democracy is a messy business, but it’s worth it. We can either let other folks make the sausage and eat whatever shit they put in, or we can wade in and make sure it comes out alright. We lost today’s battle. But we are turning the tide in the war. And if we keep growing and going like we have in the last week, we will win.

Stay tuned . . . .

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