Saturday morning northeast Ohio came to a standstill to watch judge John O’Donnell’s live reading of his verdict in the Michael Brelo trial. (Background here.). I’ve uploaded an OCR copy of the verdict here if you’d like to read it for yourself. I was fairly astonished at this portion (pp. 20-1):
Despite not being convinced of which shot it was, I have found beyond a reasonable doubt that Brelo fired a shot that by itself would have caused Russell’s death. But proof of voluntary manslaughter requires a finding, beyond a reasonable doubt, either that his shot alone actually caused the death or that it was the “straw that broke the camel’s back,” to use Justice Scalia’s locution, combined with other non-lethal wounds. Dr. Wiens opined that each of the four wounds was fatal if suffered alone and she described all of them as antemortem, i.e. pre-death….In other words, any one of the four caused the death, and not necessarily the first to hit Russell, since the time from injury to cessation of life varied depending on the wound.
Ultimately, Dr. Wiens could not offer an opinion on which antemortem wound caused death first, leaving me as the finder of fact to guess at which of the four undoubtedly deadly bullets caused the “cessation of life.” Guessing and being convinced beyond a reasonable doubt are incompatible. Brelo’s deadly shot would have caused the cessation of life if none of the other three were fired, but they were and that fact precludes finding beyond a reasonable doubt that Russell would have lived “but for” Brelo’s single lethal shot.
Because three unequivocally fatal wounds were caused by one, two or three other people besides Brelo, and because I am unable to find beyond a reasonable doubt which shot caused the cessation of Russell’s life, I find on count one, the voluntary manslaughter of Timothy Russell, that the essential element of causation has not been proved beyond a reasonable doubt.
Not being a legal scholar, I had been unaware of this particular bit of jurisprudence. From a layman’s point of view, I would have thought the law would take the opposite position: that if multiple people fired fatal shots, each one of them would be liable for the death. If they all fired shots just prior to death and the law only considers it manslaughter if and only if a single person fired a fatal shot, then the sensible response is for everyone to empty their clips. Doing so increases the odds of more than one person firing fatally, in which case everyone gets acquitted.
It also makes it sensible for everyone to make sure they are armed to the teeth, and to fire all of their bullets in response as well. Timothy Russell and Malissa Williams were unarmed. But once you know the law’s stance on fatal shots, it only makes sense to pack as much heat as you can and use every last bit of it in order to give yourself a fighting chance. That’s particularly true if a car backfiring or police officer firing will be taken as reasonable belief that the suspects themselves are armed and firing. While that kind of shooting gallery might be the NRA’s wet dream, I don’t think most people would regard it as very desirable.
Endorsing such a wild state of affairs means, then, that O’Donnell’s approach to the verdict was not a strictly legal one - it was political as well. He chose an arch-conservative judge to buttress his reasoning. While that is perfectly legitimate - he was citing a Supreme Court justice and not a shouting head from Fox News - it certainly gives an indication where his sympathies lie. He could have instead looked to a centrist or liberal. Given how Scalia’s logic inevitably led to such a curious outcome in this case, he also could have cited it in order to specifically reject it. New case law gets created precisely by challenging precedent. Perhaps Scalia did not anticipate his reasoning leading to the kind of outcome the Brelo trial ended with, and he may have been willing to revisit it.
O’Donnell chose not to do any of that, though. He took the quote and treated it as binding. Which again: that’s legitimate. But it’s also something that one does when one agrees with the reasoning - and that in turn is an expression of one’s political position. O’Donnell didn’t make his ruling in a vacuum, and it wasn’t the result of a detached and objective review. Like all decisions, it reflects his biases and predispositions. It was made in a context, and that is how we should understand it. If, having done so, some observers conclude there’s a thumb on the scales of justice, well, it would be hard to blame them.
In the last week there have been two controversies involving social media and academics. Since they involved different ends of the political spectrum, though, they seemed to get considered independently of each other. First, Duke professor Jerry Hough used his Facebook account to share some thoughts on a New York Times editorial titled How Racism Doomed Baltimore (sample: “Virtually every black has a strange new name that symbolizes their lack of desire for integration.”)
Meanwhile, Boston University professor Saida Grundy sent out some Tweets with her own unique take on things (“why is white america so reluctant to identify white college males as a problem population?” etc). Both were condemned for their statements, which was followed by support and defiance, then to reflections on how universities deal (poorly) with social media use by professors, along with more general pieces on free speech in the age of Twitter and Facebook.
While it’s good to take a step back and consider the broader implications of virtual firestorms like those caused by Hough and Grundy, it seems like in many cases people’s position depends on whether they agree with the statements in the first place. If they do, then it’s “provocatively fierce freedom of expression;” if not, then not so much. And that usually leads to trying to explain why the one you like is acceptable, if explosive, while the other is hate speech - a tough needle to thread.
The push to make such incidents fireable offenses or cause for institutional censure strikes me as a bad idea considering colleges are among the few remaining workplaces where freedom of expression hasn’t already gone down the drain. Having lots of people criticize a Tweet or Facebook comment is one thing. Barring threats of violence or other attacks, having lots of people say “you’re an idiot” can pretty much be filed under More Free Speech. Calling it monstering or a mob or or the like is silly. I’m sure it’s uncomfortable to get that kind of blowback, but it you’re dishing it out you have to be prepared to take it - perhaps in unexpectedly large quantities. There are all kinds of potential consequences for broadcasting your opinions for the world to hear, one of which is having a certain portion of the world respond negatively. (I write this knowing full well that I too am broadcasting my opinions for the world to hear.)
It’s possible to make very sharp points, and write with a polemical style, without generating the kind of massive, spontaneous backlash that those two did. Even if you fancy yourself a bold teller of uncomfortable truths, or a besieged lonely voice in a wilderness of political correctness, or whatever other kind of self-mythologizing works for you, there’s no affirmative requirement to piss people off. And should that happen, it doesn’t make a whole lot of sense to go into a defensive crouch either. You like tossing grenades? Great, good for you - but don’t act surprised if shrapnel starts flying your way.
As for wading into these issues, more often than not I think it’s a waste of time. Some people seem to relish getting a rise out of others and with inflammatory rhetoric. Hough and Grundy have both showed a willingness to do that elsewhere. Even if you agree with their points, how much do you want to bother with someone whose primary goal seems to be ginning up controversy? Is no one else addressing those issues in a way that doesn’t generate so much heat? If not, maybe that should tell you something. If so, why not weigh in over there instead?
For those who thrive on reaction, the worst thing you can do is help them become the outrage du jour. It only encourages them. In Hough’s case, for instance, it’s worthwhile (if dreary) to take on his “blacks won’t assimilate” argument: so what exactly are the approved names (besides Jerry) for real Americans? How does the lack of such a name indicate an unwillingness to integrate? And if patriotism can be measured by one’s name, why not take the next logical step and insist citizens only have names popular at the founding of the nation - such as Eleazar, Thaddeus or Zachariah? Why does Hough insist on using his strange new name instead of adopting an authentically integrated one?
If one has the patience, rebutting tired and discredited talking points seems much more useful. Ignoring someone who is just trying to be outrageous is also a nice option, and well-done mockery never goes out of style. But pushing for some kind of sanction only creates a First Amendment martyr. Better to just give ‘em enough rope, I say.
I’ll admit my first reaction to Seymour Hersh’s piece on the killing of Osama bin Laden was, why are we interested in this exactly? It doesn’t start out too well either. The first paragraph claims the raid was “a major factor in [Obama’s] re-election.” I must have been reading different news in the fall of 2012. I seem to recall it being mentioned a few times but it was hardly a central plank of the campaign. Moments like Mitt Romney’s 47 percent comment or the “please proceed, Governor” debate fiasco are individual moments that stand out. As for messaging, it seems like economic issues dominated. By far the most memorable commercial was the “It Was Like Building My Own Coffin” ad. So no, calling it a major factor just seems like empty hype for what follows.
Then the very next sentence, the third of the story, the thing that’s supposed to grab you and compel you to read on, is: it was not true that “senior generals of Pakistan’s army and Inter-Services Intelligence agency (ISI) were not told of the raid in advance.” That may be front page stuff in Pakistan, or not, who knows, but the ISI being in the loop is not the kind of thing I’ll spend much time worrying about.
The narrative didn’t exactly propel me forward - there’s a lot of inside baseball. A few items are fascinating though. For instance, Hersh claims bin Laden was no longer in command of anything of consequence. If true, that changes the story we’ve told ourselves about bin Laden’s death. As it currently stands, it was something like an act of self defence. Public enemy number one was still in operational control of a vast and implacably hostile terror network, so killing him kept him from murdering any other Americans. The trove of material found in the compound would help prevent additional deaths.
If Hersh’s reporting is correct, though, there were considerably less noble intentions at work. It wasn’t protecting the citizenry but simple revenge. He killed 3,000 of us, fuck him, we want him dead. I suspect that would still have been accepted, too. I doubt too many of his countrymen would have recoiled if Obama had said something like: “We don’t know if he’s in control of al Qaida or not, and we don’t care. This is retribution for 9/11. While it won’t bring back any of the dead, it satisfies a desire for a grim kind of justice.”
That is a very different story, though. It may be justifiable, maybe no one would blame us for wanting him dead on those grounds - but it’s hardly virtuous. And I don’t think many of us would easily give up the tone of righteousness we’ve used concerning the Global War On Terror.
So even if you have problems with the overall arc of the story, Hersh’s piece has some worthwhile bits to chew over. And typically when a big investigative piece drops, the initial reaction is collective shock as it sinks in. Then people start to digest it, poke at it, and look to either discredit or confirm it. But this piece is getting attacked right away, and in very personal terms.
Max Fisher, for example, says “[Hersh’s] reports have become less and less credible.” Among these “newer and more conspiratorial stories” is one about a military strike on Iran which never happened. Considering that imminent war with Iran is a go-to subject from Atlantic cover stories down to the neocon fever swamps, it seems a bit strange to single out Hersh for his entry in the genre.
When he finally does turn to the piece, Fisher muddies the water. Hersh claims there was no trove of intelligence material taken from the Abbottabad compound, and writes: 1. A Washington Post story purportedly summarizing some of the trove was vague and contradictory. 2. A government-contracted private research group provided translations of some of the material, and it was underwhelming and contradictory. 3. An anonymous retired official insisted the CIA did not contribute to the private research group’s effort.
Hersh doesn’t say nothing came out of Abbottabad, just nothing with the kind of relevance officials claimed. Here is Fisher’s characterization: “The intelligence ‘treasure trove’ was thus a fabrication, cooked up by the CIA after the raid to back up the American-Pakistani conspiracy” - which strongly implies Hersh reported nothing at all came from the compound. He did, though. He just questioned its relevance, as well as the provenance of some of what was claimed to come from there. That hardly strikes me as tin foil hat territory.
Overall, Fisher writes as someone who presumptively believes the government’s story. Contradictions, thin sourcing, overly generous grants of anonymity - these aren’t problems for those who pass along the official line from Washington, but for those who question it. I’m not saying Hersh should get a pass. His work absolutely should be scrutinized, and should be challenged on many of the points Fisher highlights. But that approach is used with a curious inconsistency.
It’s revealing that Fisher links to a story by another Hersh critic - one that puts the word rendition in scare quotes and notes Hersh is “writing a book on what he called the ‘Cheney-Bush years’ and saw little difference between that period and the Obama administration.” Because God forbid anyone detect institutional rot at the heart of our homeland security strategy. Whatever you do, don’t question the existing power structure. To succeed in DC you need to play the game, and stories like Hersh’s, if nothing else, make it very clear who’s on the team and who isn’t.
This week there’s been a lot of conservatives speaking out against the rioting in Baltimore; Susan of Texas picked apart Megan McArdle’s entry for just one example. They all say basically the same thing though, and in any event they aren’t as interesting for their text as their subtext.
Rioting like that in Baltimore - in minority neighborhoods, typically sparked by some kind of injustice - inspires the right to denounce it without qualification. It’s always wrong and never achieves anything - or does so at too high a cost. Of course, rioting isn’t always wrong in their eyes. When it’s done in response to, say, a sporting event then the rioters are described euphemistically as fans or some such thing. (Cf. how white suspects get yearbook photos and are called wrestlers, black suspects get mug shots and are called, well, suspects.)
In certain special circumstances - such as when America launches a war of aggression, annihilates a country’s political infrastructure, and stands by as a state of nature emerges - rioting can even be a totally, completely understandable reaction by people who have suffered decades of injustice. Given the right situation conservatives will start talking like the worst kind of equivocating, lily-livered bleeding heart liberals. So it’s good to keep the right’s moral relativism in mind when reading their absolutist tone. What we’ve had this week has just been the wrong kind of rioting.
Even more interesting, their claim that rioting doesn’t accomplish anything is contradicted by the very fact that the commentary has been written. The right covered neither the Freddie Gray story nor the initial protests. It wasn’t until rioting broke out that they began to pay attention. It’s as though a black man having his spine mostly severed for looking at the police wrong was not sufficiently unjust for them to write about.
Nor did it prompt them to connect it to anything that might be traced back a few years, or, you know, a century or more. To be fair, they aren’t alone in this. National media tends to ignore festering but urgent issues, shine a spotlight when things start catching on fire, then go back to more, um, important issues when it’s over. The fact that CNN was more interested in the Village’s annual circle jerk than in the rapidly escalating situation in Baltimore is proof of the former. That more Pulitzers were awarded for Politifact’s 2014 lie of the year than for the unrest in Ferguson is proof of the latter.
Still, it’s very striking that the right doesn’t pay any attention to the brutal oppression many cities live under unless there is a riot, because that is a great illustration of why rioting is a considered, rational response in Baltimore. If conservative media was consistent either way - ignoring those communities all the time, even during riots; or focusing on them during both calm and turbulence - then they could credibly say rioting wouldn’t help anything at least as far as they themselves were concerned. If they could say: we’re ignoring you either way or paying attention either way, then it makes sense to say rioting won’t produce any good result.
But to do what they’re doing now sends the opposite message. We won’t pay attention unless you riot. Sure, it will be critical coverage, but readers will need context. Freddie Gray’s name is now very well known across the political spectrum. He’s been mentioned by pundits that would not have done so otherwise. Sure, it’s in the context of condemning the violence that followed or, in Brooks’ case, the service of a threadbare narrative about the breakdown of norms (for God’s sake David, just stuff all those insights into a diary and make it a book when it hits 300 pages). But people now know what happened to Freddie Gray. They didn’t until there were riots in Baltimore.
Functionally, that means rioting works. It causes political and media elites that otherwise ignore the issue of community policing to pay attention, if briefly. Would you like to know how these elites will make their own little contribution to the next riot? By ceasing to pay attention once the trial ends, by treating it like a Law and Order episode that runs credits once the verdict is read, by reporting on it in a vacuum, each new story an isolated event that somehow never forms a pattern. That’s part of what sets the stage for the next riot. It’s why the current one worked and was effective, it’s why it made a relevant political point, and it’s why the next one will too.
It doesn’t have to be that way, of course. But the alternative - sustained attention and confronting the systemic evil that causes these conditions to persist generation after generation - is too hateful for us to collectively contemplate. So riots it is then, now and going forward.
There’s one aspect of the surveillance state that I expect Congress to fix soon. Namely, putting the expiration of provisions like those in the Patriot Act - temporarily protecting America for fourteen years and counting - in lame duck “news dump” sessions at the end of the year. Because as it stands now even seemingly innocuous dates can come at inconvenient political moments.
Barack Obama found that out in 2008 when he was in the midst of the tightest Democratic nomination contest in memory. While it was in doubt he opposed surveillance so resolutely that he threatened to filibuster over it. Then once he had the nomination he decided it wasn’t so bad after all as long as he kept a close eye on it. After he became president he realized it was actually kind of awesome.
The action is on the Republican side this time around, though party dynamics need to be taken into account. State snooping wasn’t a big issue for the GOP in 2008 because a Republican was president, which as we all know means issues like domestic spying, deficits, foreign policy and so on are politely ignored by conservatives - or at most subject to astringent harrumphing. Now that a Democrat is president it’s all a Constitutional crisis. Of course, since domestic surveillance has historically been used more systematically against the left than the right (via, “according to a report the Congressional Black Caucus” etc), much of this is just for form’s sake. But at least it’s more than nothing.
The converse is somewhat true as well: some progressives who voiced principled opposition to the surveillance state have softened that stance - and sometimes even rationalized support for it - once a Democrat won the White House. Similarly, in contrast to ostentatiously loud conservatives, progressives might seem abnormally quiet. I suspect, though, that 2008 taught a lot of progressives that senior Democrats aren’t stalwart defenders of civil liberties. Some pay lip service, but ultimately the fix is in. The whip counts get done, everything is set in place for passage, and then there will be an ineffectual show of opposition. One would have to be kind of foolish to witness all that and still trust in party leadership, no?
The heavier use of surveillance against the left means liberals have more of a stake on the issue; they just aren’t (or don’t know how to be) up in arms about it. Recent history has produced real uncertainty over how exactly they can effectively express their discontent.
Anyway, the current beneficiary of surveillance expiration dates is Rand Paul. He’s now a declared presidential candidate, so he’s saying all the right things. Earlier this month he not only thundered “the president [which one, Senator?] created this vast dragnet” but promised to unilaterally end the practice if you’ll just elect him president. (Bonus fun quote: “Your phone records are yours.” This must have been news to AT&T.)
He still has to cast votes in his day job, though, and that’s kind of a problem. Last November he pretty much singlehandedly assured the passage of the USA Freedom Act - Sam Spade had these guys pegged - on the grounds that killing reform would allow him to fight for even MOAR AND BETTER FREEDOMSES in 2015.1 OK great, so 2015 is here and the latest expiration date is now on the radar. According to the National Journal article “Paul has said he will fight to block the reauthorization,” so get ready for the charades to begin.
Here’s your basic road map for the near future. Much like Chris Dodd in 2008, Rand Paul will say all kinds of dramatic things about self-government and freedom and so on. He may even, like Dodd, threaten a filibuster because he feels so gosh darn strongly about it. Then the expiration date will loom, we will all hear about how the terrorist killers are going to murder our children in their sleep, super patriot Rand Paul will suddenly find himself unable to muster enough votes to do anything, he will dramatically introduce amendments that get voted down, and just prior to passage he will stride to the Senate floor and quote some Thomas Paine or Ben Franklin, or perhaps Neil Peart.
This isn’t leadership, it’s “leadership” - doing enough to appear active but not enough to risk success. That’s how surveillance reauthorizations happen. Those who are in an awkward position will be permitted to do just enough to fail. The wheels for passage turn quietly in the background, there’s token resistance, and in the end the thing gets done. On the plus side we’ll get to see some mild irritation from the base, watch the Cato Institute play act its disappointment, and there will be a certain amount of discomfort (to be determined by Ted Cruz). Enjoy the show, just please don’t be under any illusions in the coming weeks when you hear Rand Paul yelp about liberty.
Stay tuned for future episodes, soon to be scheduled for 3 PM on Christmas Eve.
1. It seems to have been largely forgotten that Hillary Clinton ended up voting against the FISA Amendments Act. While it came across as little more than a jab at a political rival (when has she shown up on the issue before or since?), it actually makes her a more credible civil libertarian than Paul. At least she’s cast one vote in the right direction. It probably won’t be a campaign issue, and if it is, it might put her on defense depending on how much fearmongering is happening. But as it stands right now she’s got a more substantive record on the issue, even if by accident.