American "Capitalism" (it 'ain't quite capitalism) and the Health Care Debate

The health care debate (more on that soon) got me thinking a little about the whole capitalism/socialism thing. And my conclusion is...I wish I was a full-time comedian (no, I'm not even a part-time comedian, but I should be - you know I got jokes!), because this debate has so much ridiculous material. The central thrust is that Obama and the advocates of health care reform, or I should say, reform of his kind, are threatening to take the U.S. health care system and paint it socialist. In general, the Know-Nothings (what I call the Republicans who pretty openly shun knowledge, which, sadly, is quite a few of them) use the socialist label pretty often anytime there is any sort of discussion about corporate responsibility, progressive tax reform, etc. Well, their argument is full of holes, anyway (not surprising from know-nothings), but they seem to gloss over a major issue - America has had a lot of socialism in it, and I argue, not in a good way, either.

Okay, lets try to keep this simple, and not turn into a long-ranging discussion on political economy, etc. (which I couldn't do, anyway). A basic selling point of capitalism is that a free market pushes innovation at a greater pace than a controlled market. By making firms compete against each other, you not only theoretically get better products, you also get lower prices - everybody wants to win in the marketplace, so they make better products than the next guy, and then sell it for less. On a theoretical level, I'll say that I personally tend to favor the incentives of a free market.

So, you're thinking to yourself, this is kind of what America is based on, right? Isn't this system the basis of our economy? Isn't this one of the main points of contrast between us and the Soviet Union in the Cold War? Well...sort of. See, the problem with all of this is, we're not exactly a capitalistic society. Not for the big boys, at least. And the health care debate reminded me of that.

What am I talking about here? Simple...if America was truly a capitalistic society, it would not protect its large firms, which are among the largest and most powerful in the world, anyway. We do not have infant industries in any stretch of the imagination. The US, if truly adherent to capitalism, would limit tariffs. We would not shield these companies in any way - the whole point is to use global competition to create better products, right? Well, that's where we fall short on a lot of levels. We do indeed protect a lot of our industries. Not all, of course, but there are quite a few corporate tax loopholes, corporate welfare, and other forms of financial protection for some of our biggest firms.

So, when Bill Maher laments that America doesn't make anything anymore, there's a reason for that...we cover our industries collective behinds to a point that they don't have to compete so hard in the global economy. This hurts innovation, competitive prices, etc. Hence, we no longer lead in producing "stuff". And some of this has other real consequences, too. For instance, our protection of the textile industry here really hurts Pakistan, which can't really penetrate US markets because of this fact. Now, if Pakistani textiles could get in, they would do pretty well and generate some wealth for Pakistan, no small thing considering the major economic issues the country is experiencing, which are undoubtedly playing a big role in larger security issues. This would also push our own textile industry to get their act together as well.

Now, on the other hand, when it comes to a massive comparative advantage, we are pure capitalism, baby! Iraq is the most obvious example of this, and we see this type of thing when US aid gets distributed to other countries. Part of the condition is to open their markets to the US/buy US products with the aid money. What happened in Iraq was one of the more disgusting examples of this. Iraq, post-war, was obviously a mess (and it still is). In terms of its economy, what it really needed was a more socialistic approach. There was no way its industries could compete with foreign firms. Of course, this kind of approach didn't fly with US capitalism promotion abroad. Bremer wrote in laws that opened Iraq for foreign business early in the occupation, and not surprisingly, foreign firms came in and wiped the floor with native industries. Hooray capitalism! This kind of thing has happened quite frequently, though maybe not to the degree of the CPA in Iraq. Andrew Bacevich, a noted military and US foreign policy historian, talked about the concept a bit, referring to it as economic imperialism, something a lot of people missed during the Clinton years. We made many across the world "liberalize" their economies, which isn't bad at all, but we often insisted that they open up their markets fully, as opposed to nurturing some of their own native industries, which ended up being a major win for us. I realize this kind of goes in between imperialism and foreign capitalism, but I'm just trying to illustrate the point of open markets here.

This has some similarities to the economics of European colonialism. It's not the same, but there's a lot of overlap. Europe, coming off its Industrial Revolution, needed markets to sell these goods in, as well as markets to buy cheap raw materials. Hello, Middle East and Africa. European powers came in, made deals with rulers to open the markets, and did a killing. But wait...didn't I say earlier that global competition is necessary to improve industries? If so, doesn't that make all this foreign capitalism okay? Well...not exactly. When I talk about keeping open markets, etc., I'm talking about cases where the countries have somewhat similar economies. So, the domestic country has a chance to compete with the foreign one. This is not quite so applicable for countries with true infant industries, which need time to grow to a point where they can compete with global firms. The US, for instance, obviously has a huge economy, and should be able to try and compete with European, Russian, and Gulf companies, whereas a war-torn Iraq, which had been depleted by years of sanctions, had no chance in hell of competing with US firms.

So, yes, we are all about capitalism when we have a massive advantage, but not quite so much when we don't have a massive advantage. That's not really pure capitalism, you know. That's more like capitalism for our companies when its convenient, and kind-of-socialism when it's not. Which is why the cry of socialism by the Know-Nothings cracks me up. It's like, morons, otherwise known as members of Congress, we're not exactly a capitalist society! What we have, I'd argue, is the worst of both worlds. On the one hand, we have an exploitative brand of capitalism abroad that is unlikely to win us many allies, and could come back and bite us pretty bad one day. Nothing says revolutionary overthrow of a regime like massive economic strife caused by domestic industries killed by large foreign multinational corporations! Now that's what I call a bumper sticker! At home, we allow some of our industries to become more and more noncompetitive in the global economy by sheltering them with socialism...this is the place where capitalism is the most important thing, of course. And, where socialism would actually help, like providing a social safety net for the market failures that inevitably occur in capitalism (namely, the poor), we back away from it like it was the plague.

I'm not necessarily advocating either system here - like I intimated earlier, I think the incentives of capitalism are good, but I understand that it will ultimately fail when it comes to the poor and marginalized, so I think we need a more socialistic response there. All I'm trying to point out here is the hypocrisy in the use of these terms, and particularly of socialism by people who support its worst aspects for our own firms in many cases. I understand that great powers have incentives to exploit the economic system, which is in theory what we're doing, but when you shelter your own corporations, not making them earn their keep globally, I think it will come back and bite you in the long-run. And, I mean, look at Britain in the 19th century. The colonial aspect is awful, obviously, but in terms of their economy, unlike other European powers, they did actually keep an open market at home, irrespective of whether other countries did or did not reciprocate. I'd argue this played no small role in their becoming the dominant power of the time - their industries were forced to compete as opposed to being sheltered. Of course, brutal British colonialism abroad helped, too, but at least domestically, I think the British empire got the capitalism/socialism thing better than others.

The health care debate made me think about all of this because some are going after the public option with a cry that it will kill insurance companies - even though a recent report from the Congressional Budget Office (CBO) said it would do no such thing. (For the entire report, click here). Hmmm....health insurance companies have been running inefficiently for years in the US. So providing a public option plan that might run better due to (presumably) lower administrative costs is bad - how? I mean, isn't that the point of capitalism? If you have a company that has been doing a crappy job, you want a company that is doing a better job to come in for a) production purposes; and b) to get the crappy company in line or out of the game. So, lets be very clear. The argument to protect the "poor insurance companies" at the behest of millions of Americans is, in a way, an argument for socialism.

Now, I realize a public option isn't exactly the same as another health insurance company coming in and competing, but the private health system is, in some ways, an oligopoly, and I can't fathom private insurance companies becoming more efficient without competition from a plan that limits administrative costs, return on equity for shareholders, and advertising. I agree with Howard Dean in that I don't really give a damn as to whether private insurance companies get hurt by a public option, because they are doing a terrible job. We spend more on health care than any nation, but rank, depending on what evaluation tool you're looking at, as somewhere between #30 and #60 in terms of how good our health care actually is. A major reason is the private insurance companies. The most efficient private health insurance companies spend over 20% of costs on administration...you can expect that number to be halved by a public option plan, if not more. They keep about half of your premium dollars for themselves, and sometimes deny payment on claims to make more profits. They could do business better, but have no incentive to do so, since they profit from taking additional money from their customers while not paying themselves. I mean, did you pay attention to Wendell Potter's testimony to Congress in late June? Dear god. (Click here for a transcript of the testimony). If you think the insurance companies are reforming without competition, albeit from the government to keep them honest, I have some prime real estate I'd like to sell you. You're not getting a well-functioning health care system with private health companies - we've seen the results, and they've been pretty awful. Hence, the need for some competition, albeit not exactly a private firm.

So, like I said, the argument to protect the insurance companies that have done such a (sarcasm alert) wonderful job up to this point amounts to an argument to protect inefficient and, ultimately, ineffective companies, which is pretty similar to other arguments to protect our "threatened" corporations, which smells more like socialism than capitalism. It's like pulling for King Kong Bundy as the "little guy" in a fight against Al Bundy. And...here's the best part...at the same time, Obama's health care reform itself is also socialism (it's not, but whatever) that must be defeated at all costs before it destroys America. Wow. So, basically, they're trying to win on both fronts. See, I told you, great stand-up material.

We hope to have more on the actual meat of health care reform up soon on the blog

Note: I want to clarify something here - the point of this point is not to debate whether capitalism or socialism are better systems, or what precisely comprises each. Rather, I want to highlight the problematic and hypocritical nature in which these terms are being used. Like I point out, America is not exactly the bastion of the free market, so I find the socialist argument against a greater US government role (even though it isn't remotely as big as many are making it out to be) in health care to be a ridiculous argument. The government is plenty involved in plenty of our big businesses in ways that I posit may not be all that good. In health care, the government needs to be more involved, given the many problems of private health insurance. Paul Krugman and I are clearly thinking on the same wavelength, as he published a pretty good article about this today. He must have read our blog first...ha. Anyway...so that it's clear, this isn't so much a detailed analysis of capitalism versus socialism as it is an exercise to illustrate the insanity of the way the health care debate is regressing thus far.

The MJ Coverage: 1) Make it Stop, 2) What It Could and Should Have Been Like

So, we at "the Spoon" (or lack thereof) have been good about not posting anything related to the death of Michael Jackson. Well...we want some more hits on the site, so we're changing our minds! No, I'm just kidding. But seriously, tell your friends!

Well, while the media frenzy has been quite preposterous over the past month (yes, they are still covering this story. Really. Go to a TV and put on one of the "news" [because there really should be quotes there] channels. Odds are, there will be an MJ-related story on within 10 minutes), its not to say there isn't a sort of legitimate reason for it. Not for quite the scale, and certainly not for the angle of the coverage, but it is not surprising, and maybe not even illegitimate, to have so much focus on Jackson. Incidentally, you absolutely should read the best piece about Michael Jackson's death on the internet, which is written by Spoon blogger [naturally] Dumi, on his own blog.

The media had an opportunity to do some really interesting work with this story. They failed. Shocking. Instead of making it a test in US journalistic lunacy, as best exhibited by the scrolling info and breaking news stories ("MJ's body moving in a car at 12 mph", "See the inside of Neverland next", "MJ to be buried", "Exclusive interview with Judge Ito on MJ", "News on North Korea at the end of the hour"), they could have: a) scaled the psychotic types of coverage down significantly, and b) used the time to reflect on a few big topics related to the death that had more meat than, I don't know, showing us the same clip of him holding his son over the balcony 20,000 times. Specifically, there were, in my opinion, three major stories here that we could have seen some thoughtful analysis on: prescription drugs, America's addiction to celebrity, and the ability for a musician to be more than a musician. The last one is what I'm most interested in addressing here, but let me touch on the first two briefly.

There was an opportunity to talk about the issue of prescription drug abuse in America, being that Michael Jackson apparently took more pills than some clinics. Not to not be cruel about some of this - I have sleeping issues myself, though I just write blog posts at 2 am instead of popping tablets, etc. - but its pretty freaking obvious the man was taking way too much stuff. And...was it him, or was he being enabled by doctors, some of whom may have ties to pharmaceutical companies? Could we discuss this issue in general? Not just doctors, but hospitals, clinics, etc. Is this relationship problematic? In some cases, maybe not. But yeah, could have been important to discuss. Also, how about the hypocrisy of drugs in America? So, I guess marijuana is a horrible, harmful, immoral drug, you should go to jail if you're in possession of it, and we should outlaw its medicinal usage, even when that usage could literally save somebody's life (because chemotherapy is not at all problematic for someone's diet or anything). On the other hand, the stuff you get from your pharmacist at CVS, which is totally not harmful if improperly (or properly) used is totally fine. Okay...you're right, there's no chance in hell the US media could have been expected to tackle drugs appropriately. But we should!

The second issue is the about "celebrity" in America. One could argue the massive amount of attention thrust at Michael Jackson for basically his whole life had something to do with some of his odder behavior, right? If we left him alone a little more often, who knows what would have happened? America is addicted to celebrity, though. It's a disgusting problem - look, some of them are, admittedly, slightly better musicians, singers, writers, and actors than me (some), but that isn't a reason to ignore damn near everything else going on. So, instead of having a serious discussion about America's celebrity issue, we got to see the problem first-hand with basically non-stop coverage of MJ. I get it, big story, but I don't need to see a helicopter landing at a hospital which will presumably carry his body repeatedly for about 20 minutes...I was trying to find out what the hell was going on in Tehran!!!

Well, those are two of the main parts of the story they could have covered, but didn't. The third was even more obvious, I think, and the least controversial of all. They sort of did do this part, though it was kind of impossible to miss. That is, the massive level of global outpouring for MJ. It was truly incredible to see so many people grieve for one dude, no? Is celebrity part of the reason? Sure. But there was something else...to grieve for someone like this, you actually had to appreciate them pretty highly. There's a reason people loved this guy, even if many kind of dogged him since 1993 or so. That was...the music. It actually did touch people and have an impact. As did the man's work itself. The sad thing is, this is an anomaly with the music scene today.

I mean...everyone was trying to claim him. You got Jamie Foxx at the BET awards (which, btw, wow...is the Klan working through BET?) saying Michael was one of theirs (African-Americans) who they lent to the world. Muslims claimed MJ had converted, much like his brother, Jermaine (who actually had - Michael might have, but it seems unlikely). They danced in the Gulf in honor of him. Everybody wanted to be associated with him. Why? Well, as Dave Chappelle put it a few years ago, "he made Thriller." Ha...no, seriously, he made some music that did touch people around the globe. Not Thriller the song itself (unless you're really into the occult, etc.), but he did take on serious topics that many people identified with. Beat It, Earth Song, They Don't Really Care About Us, Heal the World, Human Nature, Will You Be There, Man in the Mirror, We Are the World...there are quite a few of these. MJ was, at his height, a pretty powerful dude, and that he tried to make music that, as Dumi puts it, used a humanist approach to inequality. I think it was painfully clear that poverty and social injustice really bothered him, and though he didn't go all M-1 and stic.man on us (which would have been awesome!), he did use his music as a calmer vessel to address some of these problems - though later in his career, when lots of people turned on him, he did cut it loose a little easier. I mean, They Don't Really Care About Us is not a subtle song, and the two versions of the video, which were Spike Lee productions, don't really pull many punches either.

So, the music touched people. And I think that's part of why they came in droves to mourn him. But, he also gave a lot (no pedophile jokes here), especially to children. He started charities and donated a hell of a lot of time and money to causes for the poor, dispossessed, and politically weak. He didn't necessarily take a political stance on many issues, but he stood up for a lot of people. We know less about this here in the US, but around the world, Jackson was known as a legendary musician and a humanitarian, and in some places, the latter more than the former. That those two are even in the same sentence, given his musical success, says something.

Truthfully, I wish they did more a spotlight on people in foreign lands, especially those we might think of as not very modern or open. Why would they mourn this very Western musician? There answers could give us some real insight, and start understanding this thing a little better. We'd probably find that they appreciated his work as a humanitarian, along with his embracing and singing quite openly about vulnerability and difficulties in many of his songs.

Isn't that a far more interesting and powerful story? Its not that music can change the world...but it kind of can in some cases. And it kind of should. And at the mainstream level, it kind of doesn't at all. Instead of 20 minutes on where MJ's body is actually going to be buried, couldn't CNN,MSNBC, Fox, et. al. , talked a bit about this? This is why he was mourned so widely. I'm not comparing him to John Lennon, but its the same idea...massive numbers gathered after Lennon's murder because he was more than just a simple musician. His songs did mean something (okay, maybe not I Am the Walrus, but most of his catalog did), as did his actions. Now, I wouldn't put Jackson at Lennon's level, politically or musically (though people could debate the latter point), but his music and actions carried some serious weight.

There was a time when music did really matter, and did really connect to people, more than just sonically. Music truly did bring people together, did speak to struggles and hardships, did stand up for the marginalized, did compel us to hug one another more, did give us messages of kindness and hope...and musicians gave a damn about a lot of things that didn't have to do with nightclubs in LA, bling, or award show honors. Actually, it still does today, but that is the anomaly, not the norm. And it shouldn't be. I'm not suggesting all musicians need to do the equivalent of the moonwalk at the Motown 25 show, support 39 charities, work tirelessly for the environment or HIV/AIDS, fuse disco, R&B, and rock and roll seamlessly into an entirely new sound...but they've got to do something.

Plenty do, of course. Bruce Springsteen has built his entire career on writing music for and about common people and their times and struggles. He also took on massive issues, such as calling for self-reflection, mourning, and kindness, as opposed to violent nationalism after 9/11 with The Rising. He is also, not surprisingly, quite political - when you write about the marginalized, it's hard not to take corporate and government greed and deception personally. Pearl Jam is another example, an insanely popular band that pulls absolutely no punches in their stands. They certainly use their music as a vehicle to talk about deeper social issues, maybe best exemplified by frontman Eddie Vedder's performance of "Here's to the State". Listen to Game Theory, the Tipping Point, or Phrenology by the Roots and tell me you don't hear those as discussions of social issues. Radiohead takes plenty of swipes at things they see as problematic or insane, as does U2. That first Blackstar album sounded pretty good, but there is no doubt Kweli and Mos were striving to challenge and change the state of hip-hop, period, when they made it - and they did pretty good on that. With newcomer K'naan, we certainly get a sound that is banging (African folk + great hip-hop = incredible), but his albums really hammer into us the extreme poverty and violence of Somalia, which should give us pause about how we disregard the difficulties people have in other lands. Michael Franti's life and music are seemingly one and the same, devoted to causes of social justice and kindness, or as he would put it, just trying to stay human. Dead Prez...well, I don't even need to say anything about them, they're that serious! The Coup, Common, Neil Young....the list is pretty long. It's not that they all make every song Ohio or anything, but they write music for a lot of essentially-voiceless people, speak on serious social ills, and treat their art with the utmost respect. Now, the problem is, most of the music we have out there is mindless crap, as are the "musicians" (since I seriously wonder how many of them are actually musicians) making said music. Honestly, how much of today's popular music is really just an endless array of non-sequiturs, put together with a hook?

Part of this is due to the changing nature of commercial music - quality doesn't necessarily sell or get pushed by record labels, massive radio consolidation post-Telecommunications Act of 1996 has killed the radio (forcing some of us, like myself, to largely abandon that medium entirely)...would the Beatles have even made it today? Artists who take their art seriously and produce really remarkable work that can transcend the airwaves often struggle to get their work distributed to the masses.

Anyway...back to MJ....like I said, I think the particular content of his music, along with his work outside of the studio, tells us a lot about why there was such a widespread level of outpouring for the man. That outpouring could have been used as the framework of much of the coverage. It could have turned into an interesting discussion about the role of art and artists in society. It could have looked at a music industry that keeps giving us crap, and ask questions about why that is. There were a lot of options, most of which would have led America to a much more valuable and interesting discussion and debate than the nonsense we got. All you had to see were the numbers of people all over the world who were affected by Michael Jackson's death. Simply put, you don't get that unless there is something fascinating going on.

So, yeah, I think MJ dying was a story to cover. A big story, at that. Though, you know, we could have done with a bit more news on other topics as well. I just wish we got something more than watching ambulances driving, helicopters flying, close-up photos of EMTs trying to revive an already-dead legend, analysis from Corey Feldman and Randy Jackson...I mean, it was ridiculous. MJ mattered to a lot of people all over the globe, and for reasons that go beyond the moonwalk. His music mostly spoke of kindness, good will, and generosity, and his charity work suggested much of the same. He wasn't a saint by any means, of course (another problem - for the love of god, stop doing that! It's okay to not deify every person that dies...you don't have to throw dirt on their graves, and I think MJ's good outweighed his weird/bad by a bit, but he did not walk on water, people), and there was no reason to make him one, but if focused on what he did that made people connect with him, along with a broader discussion of art and artists in society, we could have actually had some pretty valuable coverage of his death. Maybe next time...

On Swimming Pools, Harvard Arrests and Flash Point Racism

For the past few weeks, my inbox has been inundated with references to Whites Only swimming pools in Philadelphia, the arrest of Henry Louis Gates and things of the like. With each subsequent email, I've been reminded "this is post-racial America" 1, 2. The type of tongue-in-cheek commentary, I imagine, is meant to elucidate the continued significance of race in America. Unfortunately, I see three issues with this: 1) these emails and posts tend to go to the choir (this is not a new point so I won't go into it), 2) these cases are extreme examples of racism and exclusion in contemporary United States, which makes them easy to dismiss for everyday people and 3) they don't demonstrate the ways that race operates perniciously beneath the surface to include some and exclude many. I do think these cases need to be highlighted so pool owners, police, and everyday people can be aware certain behaviors will not be tolerated, but they're also all to easy to disassociate from for the majority of Americans who identify with the idea of "postraciality." They're rationalized away as the actions of "a few bad apples" rather than be seen as symptoms of the national disease of racism. These incidents become flash points in the media and even talking points in our commentary on race and reality, but the issue with a flash point is that it is the lowest level at which our sensibilities around race will flare brightly, but then they quickly dim. Unfortunately, inequalities of race have not dimmed, nor should our fire to expose and fight them.




Now this is not going to be a "complain and blame" post, instead, I'd like to offer some humble suggestions (or as humble as one can be if they're writing on a blog which is kinda an egotistical thing to start with, but ya'll know what I'm saying). It is critical that we begin to talk about race in ways that expose the subtle fabric of inequality. While it's easy to explain why Skip Gates' harassment and subsequent arrest were wrong and wrongheaded, it's more difficult to explain how policies leave many innocent men and women sitting in jail or on death row due to false accusations and procedural bureaucracy. It's easy to point on the wrongness of exclusion from the Valley Swim club but it's more difficult to explain why suburban schools are almost as and sometimes more unequal than urban schools, in part due to their exclusion of Blacks from equal educational resources. It's easy to suggest that race matters when Sotomayor is berated in her confirmation hearings, but it is more difficult to explain the significance of critical race theory to understanding and interpreting the law. As scholars, as activists, and as citizens we've give up the project of relaying the complex conditions to the masses who need to be reminded not that race still matters, but the various ways that it still matters and what role all can play in racial justice.

I think it is wholly possible to take the flash point moments and deepen dialogue, but its rare that it happens. Instead, we recycle old dialogues on race and its significance when more complex racism(s) exist. The reality is that we've got to get equally complex in our discussions of the intersections of race, class, gender and sexuality (to name a few). If we are serious about "justice for all" we must update our discourse and activism. Because as Brother Malcolm said, "The White power structure is just as much interested in maintaining slavery as it was 100 years ago. Only now they use modern methods of doing so." Let's expose the modern methods as well as the old!

*footnote if you've never seen the dialogue between Malcolm X, Wyatt Tee Walker James Farmer, and Alan Morrison do yourself a favor and watch it!

**Shout out to Native Notes for being on the same page with that quote!

Preventive Detention, at What Cost?

A family vacation over Independence Day offered a poignant reminder of why, over 30 years ago, my parents sought refuge in the U.S. Fleeing the racial hostility they encountered in Britain after escaping the brutality of the Indian Subcontinent's Partition, they found in rural Missouri economic opportunity, political freedom, and small town Midwestern hospitality. Today, the specter of preventive detention calls into question whether my parents' grandchildren will enjoy the same freedom.

Warrantless domestic spying, detention without trial, torture, and excessive secrecy raised concerns across the political spectrum and fueled recent change in the White House. These policies, however, remain equally noxious under the new administration, which currently entertains proposals beyond even its predecessors' wildest plans.

We should begin by removing the beltway spin. Whether called "preventive," "indefinite," or simply "prolonged," prevention detention schemes are essentially lawless, unconstitutional, and un-American. And whether established through an executive order or an act of Congress, they would undermine—not enhance—our national security.



At root, detention without trial threatens democracy. According to NYU law professor David Golove, "The struggle for constitutional liberty," wherever people have sought it, includes "a struggle against preventive detention." Our Founders did not champion the rule of law in a vacuum. They confronted threats, including arbitrary detention, and intended the Bill of Rights to end and prevent them.

The rights to Due Process, legal representation, and to examine one's accusers, witnesses and evidence are fundamental. Beyond mere technicalities, these procedural protections are necessary to protect the innocent and lend legitimacy to judicial decisions.

Benjamin Wittes and others propose limiting these rights and detaining individuals accused of being "dangerous," based on hearsay evidence. But they overlook the central problem: accusations are unreliable.

Courts admit evidence of actual events, rather than predictions or hearsay, precisely to exclude irrelevant or unreliable information. Torture, for instance, is notorious for yielding inaccurate intelligence and forcing false confessions. Equally unreliable are individuals who identify suspects in exchange for payment, such as tribesmen who captured many Guantanamo detainees, or ex-convicts hired by the FBI to infiltrate mosques across the country.

Our intelligence agencies, whose hearsay evidence would be admissable under some detention proposals, have proven their unreliability. Time and again, attempts to identify dangerous individuals have instead swept up innocent people, including U.S. citizens of all colors.

Most of Guantanamo Bay's hundreds of detainees have been either released or declared harmless. We have abducted law-abiding people from allied countries and outsourced their torture (Canadian Maher Arar); detained and smeared law-abiding Caucasian and Asian American citizens (attorney Brandon Mayfield and Chaplain James Yee); and tortured a U.S. citizen of Latino descent (Jose Padilla). In addition, government "watch lists" continue to cast unjustified suspicion on over a million law-abiding Americans.

Given the unreliability of intelligence sources, indefinite detention based on evidence inadmissible in federal courts would hardly enhance security. It would, however, undermine freedom and—by removing checks on executive avarice and arbitrariness—leave no one safe: under an administration hostile to dissent, an unpopular bumper sticker or dispute with a neighbor could land you in prison.

Even if hearsay evidence were reliable, the security benefits of preventive detention would be trivial. Individuals can be imprisoned by federal courts under existing laws for even providing humanitarian support to regions governed by militants—let alone actually planning terrorist attacks. The only potential "threats" addressed by preventive detention, then, are individuals accused without reliable evidence.

Whom, exactly, would these individuals be? In both the distant and recent past, America has criminalized law-abiding people for their politics (through the Alien and Sedition Acts, the Palmer raids, COINTELPRO, and the Red Scare, for example) or race, ethnicity or religion (through NSEERS, border interrogations, and Operation Frontline, for example). By expanding this shameful list—and by further eroding our international claims to defend the rule of law—preventive detention would only undermine the security of law-abiding Americans and help our enemies in their efforts to recruit foot soldiers.

Our Founders crafted the Constitution over 200 years ago to balance strong government against individual rights. Their vision has served us well through the World Wars, periods far more dangerous than ours, and is fundamentally incompatible with proposed detention schemes. For the Constitution to survive today's "war on terror," we Americans who value freedom must once again raise our voices to defend it.

Reposted from Huffington Post. Please post comments there.

America's Tortuous History with Iran

(Note: I wrote most of this about a month ago, and have tried to update it) I've avoided posting something about all that is going on in Iran for a few reasons. One, I've got to finish up a paper soon! Two, others in the blogosphere have been posting great stuff thus far, and I'm not sure what exactly I'd contribute. Three...I'm a little confused as to what I should even say. I think the opposition party probably won the election (at the very least, the results were fishy), and I certainly don't support the use of violence against protesters, but I think some U.S. leaders are taking advantage of the situation to spew sentiments against the Iranian state, as well as their "pro-freedom" nonsense. Also, I know the history between America and Iran, and minus President Truman's ability to stop a U.S. led overthrow of Prime Minister Mossadegh (which eventually happened, under President Eisenhower), the U.S. seems to have done nothing good in regards to Iran...so, what does that say about American support for Mousavi?

Okay, so here's my contribution to the discussion. I want to focus on the complicated history of American involvement in Iran, why that has had a huge impact on what preceded, and how that should (and is) impacting what the U.S. does now.

So, the basics...Iran's monarchs were hardly stellar rulers. In a key moment in history, the Shah Mozzafar al-din Shah Qajar conceded an incredible amount of control of Iranian oil to the British in 1901 - this helped the Shah pay for his rather lavish lifestyle. The deal gave him 16% of all future oil profits, along with a lump sum payment. While 16% is a lot for a single person, it isn't much for a total nation, which is where the problem grew from. That oil contract ultimately led to the Anglo-Persian Oil Company (APOC), which later became the Anglo-Iranian Oil Company (AIOC), which eventually turned into British Petroleum/Beyond Petroleum (BP), who probably have a gas station somewhere near where you live. Not only did Iran get a very minor share of the money (especially considering the fact that the oil was theirs in the first place), the British also had a bureacracy in place that made it nearly impossible for Iran to even know what APOC/AIOC profits were. Basically, they were getting ripped off.

The British made minor concessions, but ultimately, Iran still got a really short end of the stick. By the late 1940s, AIOC was making after-tax profits of around 40 million pounds...these are profits, mind you. And what was Iran's total share of money? Less than 10 million pounds. Not surprisingly, Iran wanted a fairer deal, using the US deal with Saudi Arabia (a 50-50 split) as the example. Britain refused, Iran nationalized, Britain pushed major sanctions on Iran, which ravaged their economy. The U.S. wanted the British to concede, but ultimately, the Dulles boys suceeded in framing Iranian Prime Minister Mohammed Mossadegh as a potential "communist", the U.S. opted to join British efforts and sponsor a coup in 1953 to overthrow the popular and democratically elected Mossadegh in favor of their client, Shah Mohammad Reza Pahlavi. Britain's role faded, the U.S. became the dominant power in the region, and America backed the Shah, despite his massive repression in Iran. We sold him billions of dollars in weapons, provided him billions of dollars in economic and military aid, used the CIA to train the SAVAK (essentially the Shah's thought police), looked the other way when much of the globe was decrying his obvious human rights abuses...Jimmy Carter did this as well, even though many think Carter's "human rights" agenda actually spelled the fall of the Shah. It didn't - at every key moment when Carter could have pressed the Shah to loosen his iron grip, he didn't.

Not shockingly, the Shah's brutal authoritarian rule finally fell in the Iranian Revolution of 1979. Not surprisingly, the opposition took a strong anti-American slant. There is a lot of research that looks at post-revolution externalizing of threat i.e. in order to quiet trouble on the home front, politicians will focus their ire on the outside foe, and this clearly happened in Iran after the revolution - and, given the US role in keeping the Shah's brutal regime around, there was certainly a reason for Iranians to not be kosher with the U.S. Of course, post-revolution Iran didn't exactly turn out the way it was supposed to, either...Khomeini and the hardline clerics silenced their more liberal allies from the movement against the Shah and turned a secular authoritarian dictatorship to basically a religious authoritarian dictatorship. All the while, America remained a prime enemy.

It is a travesty that the mainstream media has not focused a decent amount of their discussion on what is happening in Iran on this past. This history matters pretty significantly, and explains some of the nuanced posturing by the Obama administration. In contrast to his policies on Pakistan and Afghanistan, I actually think Obama is doing okay on Iran. Unlike the Republicans (I don't mean all Republicans, actually, mostly the neocons, who shouldn't even count as Republicans because they are really descendants of the supposedly liberal Woodrow Wilson school of thought) who are clamoring for Obama to pick a fight with the regime in Iran over the elections, Obama seems to be taking the history into account. The second he takes a position openly supportive of Mousavi and the reformists, they are done. They suddenly become U.S. puppets (like the Shah), the resistance becomes U.S.-manufactured (like the "resistance" against Mossadegh), and Iranians will turn on them.

The reality is, this is an indigenous resistance to the regime that has been building for a long time. It isn't this sudden Twitter revolution that the U.S. media is making it out to be. Iranian scholars like Hamid Dabashi have been writing about it for years. It has absolutely nothing to do with America. Not a damn thing, okay? Obama's speech in Cairo did not inspire it in any way. The Bush administration's rhetoric about "spreading freedom" did not provide it any backbone. This is all Iran. Iranians have not been cool with their post-revolution state. They've had a hard time actually doing something about it because, yeah, its hard to get masses on the streets when you are in an authoritarian state that has few qualms with cracking some heads. This is why it was tough to mount a sustained opposition to the Shah...it was only when he went too far and pissed off too many people that things started happening. If this was an academic paper, I'd insert something about prospect theory here, but I'll leave that one alone for now. Anyway, same thing here...the election results seem very peculiar, and that may have been the straw that broke the camel's back, if you will. Thus, massive numbers in the streets. This was too much for them to take.

So, thinking America somehow has some kind of important role in all that is happening in Iran is absolutely incorrect. Interjecting ourselves into the equation will only cause more problems, because of the particular history of U.S. involvement in Iran. That's not to say we can't do anything, but it does limit (and I would argue, clarify) Obama's options. We can't openly back the opposition, because of 1953 and the Shah years. We can't take credit for what's happening because that is a disservice to Iranians and will show our incredible arrogance yet again (because, you know, America is totally the source of all dissent against enemies of freedom, or something like that...sounds like a Bush speech).

One thought I have is to use Obama's insistence on meeting with Iran without preconditions as proof of our interest in not intervening in order to maybe help the parties negotiate a solution. Obama can say, look, we're going to work with whoever is in charge (and it's going to be Ahmadinejad - I see no way Mousavi gets in power at all at this point), so that doesn't matter. Instead, we simply want a stable Iran, which means no violent crackdowns on protesters, an action that only further delegitimizes the regime. It also means, hey, lets limit the reasons for the massive protests, which is to say, let's work out a deal between the parties. That almost certainly means Ahmadinejad is going to be the President, but maybe Mousavi can be put in some key position and most importantly, some of his platform ideas can be implemented.

Truthfully, there isn't a massive difference between the two sides in terms of their political goals - Ahmadinejad wants to improve relations with the U.S., just like Mousavi. Both want Iran to continue pursuing the nuclear option. Ahmadinejad is obviously down with the current political system more than Mousavi, but again, that is something that can be discussed in negotiations. Many of the clerics are opposing the election results, and are not okay with the political involvement of Ayatollah Khamanei. Iranians are not protesting the entire system (which would be a revolution), but are protesting specific things - the results of the election, and maybe the role of the clerics [the Khamanei ones, though, not the ones in Qom, etc., who don't want the religious scholars to play politics]. Thus, its not that the entire Iranian system needs to be changed (something that would definitely not be a negotiable point if the U.S. tried to help settle things), but maybe it needs to be tinkered, as in, the clerics need to take a less political role.

I don't mean to dictate what needs to be negotiated, of course, and the U.S. should not do so, either. I'm just suggesting some options. What is important, of course, is that the U.S. maybe try to get all the sides together to help resolve the problem, with a commitment to not interfere. Iranians might be able to do this on their own, of course. But I'm just suggesting this as one of the only avenues of involvement Obama can really take in this case. Some U.S. political leaders who are pressing Obama to take a more active role are delusional, ignorant of the past, or both. Some, like Newt Gingrich, are now suggesting we sabotage Iran's oil and gas refineries to bring the nation to an economic crisis in order to bring down the Iranian regime. Seriously. I did not make that up. Um, Newt, so-called historian, do you know anything about what the British did to Iran in response to Mossadegh in the early 1950s? Try to destroy the Iranian economy through sanctions. You honestly think Iranians are somehow going to forget that episode, because the late 1940s and early 1950s aren't really that important in Iranian history or anything, and instead just be cool with your idea? Did you stop to think that it might, I don't know, elicit a massive level of nationalism that includes both reformers and conservatives? In fact, isn't this precisely what progressives Iranians who oppose the regime have been warning about for years? Newt, I am very happy a man with your level of insanity and your complete misreading (or, more likely, no reading) of context and history, isn't running America.

I'm not really sure what else we really can do in this case that would help the situation. It would be nice if, on their interviews, they were pressed more about this point ("Senator, I hear you, we obviously don't like the violence used by the state against the people in the streets, but aren't you aware of America's complicated past with Iran, and doesn't that history make the actions you are advocating more harmful for the Iranian state?"). More importantly, if we discussed the history more, it might show us how short-sighted and problematic interventions (like the 1953 coup, and backing the Shah when we knew he was a ruthless leader who was only inflaming Iranians) really tie our hands in the future. This is the most important lesson, in my view, to take from all this. We can't really do much with Iran right now because of our particular actions in the past. This should open a conversation into backing authoritarian regimes, relying on politicized intelligence, etc., a discussion that we crucially need to have in the open now. Iran today should be a key example of why we need to have that discussion today - but only if we start looking into our history of involvement in the country, something the media has largely ignored so far.

Torturing the Rule of Law

Sixty years ago, U.S. Supreme Court Justice Robert Jackson left Washington to pursue what he later called "the most important, enduring, and constructive work of [his] life": prosecuting international war crimes committed during WWII. Justice Jackson helped usher in a new international regime that promised to help deter human rights abuses.

Unfortunately, Jackson's achievements have proven less enduring than he hoped. Our nation continues to undermine international law by sweeping torture under the rug, with serious implications going forward.

The Nuremberg Trials established a timeless principle: individuals are criminally liable for violating fundamental human rights, even if their governments authorized those violations. Some laws, Nuremberg held, transcend those of any nation.

We have fallen a long way in so short a time. Rather than enforce international principles we once pioneered by prosecuting former officials who enabled torture, our nation today violates those principles with impunity.

President Obama's focus on the future aims to transcend the political divisions deepened by his predecessors. But setting aside the past comes at a price.

Most concretely, failing to prosecute taints the debate on other "war on terror" policies. Preventive detention schemes, infiltrations of law-abiding groups based on constitutionally protected speech or religious activities, and secret warrantless surveillance programs each entail severe threats to the Constitution. They demand public debate.

But these debates have been skewed by the inclusion of former officials who, because they remain free from investigation, also remain free to champion their discredited policies in public. Former Vice President Dick Cheney, for example, vigorously defends the Bush administration's detention policy, despite clear evidence that torture hurt America in more ways than one.

Torture harmed our international relations with even allies like Britain, which curtailed cooperation with the CIA because of inhumane detainee treatment. Moreover, as the U.S. Air Force Major whose interrogations found the leader of Al-Qaeda in Iraq has written, "Torture and abuse became Al Qaida's number one recruiting tool and cost us American lives." Criminal prosecution would place the arguments of Bush administration apologists in the context they deserve.

Other costs of avoiding prosecution are less concrete but equally severe. For instance, failing to prosecute, by definition, erodes the rule of law. Law entails the consistent application of neutral principles across differing contexts. Yet our nation tolerates vast inequalities in prosecution. Between 2006 and 2007, over 320,000 Americans received prison sentences for non-violent offenses. In sharp contrast, among the senior officials responsible for authorizing torture, none have faced even a criminal investigation -- let alone charges, prosecution or a sentence.

Hundreds of lawyers across the country recently wrote the Attorney General and Congress to explain how this unequal justice undermines the legitimacy of our legal system. They wrote, "The severity of systemic disadvantages in the criminal process grows more disturbing -- and the system's legitimacy grows less secure -- when violations of our nation's most fundamental commitments carry no consequences for potential criminals who wield political influence."

Lawyers are not the only ones challenged by this bias. Nearly 500 teachers also raised their voices, noting how lawlessness impacts students: "We teach principles about our nation's history, founding, and governance that appear simply implausible...[T]he preferential treatment of senior officials who commit heinous crimes-relative to the school-to-prison pipeline that ensnares many of their peers for relatively innocuous misbehavior-does not escape [our students'] attention."

Thousands of other concerned Americans from all 50 states, including hundreds of health professionals and interfaith religious leaders, have also observed that our country's future ability to promote human rights elsewhere turns on whether we do so here at home today. We at the Bill of Rights Defense Committee invite other concerned Americans to join their call.

The Bush administration's assault on the rule of law helped propel President Obama into office. Rather than fulfilling his politically daunting campaign promises, however, the administration has chosen expediency over equal enforcement of the law.

The President himself has suggested time and again that it is ultimately up to "We the People" to defend our interests. The struggle to restore rule of law is one we will win, but only with the passionate participation of every concerned American.

---

Reposted from Huffington Post. An earlier version of this article appeared in The August Free Press as an op-ed on June 27.