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I Spy

In May 2013, Edward Snowden took a leave of absence from his job at Dell, where he was contracted to work at the National Security Agency offices in Hawaii. He told his employers he was going to the mainland United States for epilepsy treatment, but instead he flew to Hong Kong, arriving on May 20.

Snowden took with him, and released, electronic copies of some 1.7 million classified documents, including documentation of massive NSA surveillance programs, foreign and domestic. The legality of the domestic surveillance programs remains in doubt, with two federal trial-level courts dividing on the question, and no appellate rulings to date.

The NSA’s foreign surveillance programs do not raise American constitutional questions – the American constitution does not apply to foreigners living abroad. But those programs do raise political and international relations questions.

Among the more embarrassing revelations from the Snowden documents about foreign surveillance was the long-time tapping of German Chancellor Angela Merkel’s cell phone. Reuters characterized Merkel’s reaction as “frosty”:

“It’s not just about me but about every German citizen. We need to have trust in our allies and partners, and this trust must now be established once again…. I repeat that spying among friends is not at all acceptable against anyone, and that goes for every citizen in Germany.”

In Merkel’s outrage, there was an edge of Captain Renault being shocked, shocked at the gambling going on in this establishment. And sure enough, the Times reported yesterday on German spying against its NATO ally, Turkey. Now it’s the Turks’ turn to be shocked, shocked, although I’m sure there are Turks working undercover in capital cities across Europe and the Middle East.

Caught up in the spying against Turkey were conversations by then-Secretary of State Hillary Clinton, talking to Kofi Annan following his mission to Syria, and a conversation of Clinton’s successor, John Kerry, during negotiations between Israel and Palestine. Kerry lodged a complaint with the German government, although he had the grace to do so quietly, without the public bombast.

Chancellor Merkel denied that German spying on Turkey violated her rule against friends spying on friends, because her condemnation of American spying came “in a recognizable context.”

Well, that certainly explains it.


August 6 in the Sixth Circuit

On Wednesday, August 6, at 1:00 p.m., a three-judge panel of the federal Court of Appeals for the Sixth Circuit will convene in the Sixth Floor West courtroom of the Potter Stewart Courthouse in Cincinnati. The judges will hear marriage equality arguments in six cases from all four states within the Sixth Circuit – Kentucky, Michigan, Ohio and Tennessee. The judges on the panel are Martha Craig Daughtrey, a Clinton appointee, and Jeffrey Sutton and Deborah Cook, both George W. Bush appointees.

None of the three judges are especially well known, which is par for federal judges below the Supreme Court. Judge Daughtrey came to the federal bench from the Tennessee courts, where she was the first woman to serve on the Tennessee Supreme Court. She appears to have a somewhat liberal background, and in fact some Republicans opposed her nomination to the federal bench because they regarded her as a death penalty opponent.

Judge Sutton came from private practice in Ohio. He was a controversial nominee, confirmed by a close Senate vote in 2003. He has made something of a name for himself by writing conservative majority opinions for the court when it sits “en banc” – meaning the entire court, not just a three-judge panel. On the other hand, Judge Sutton was the first Republican-appointed judge to vote to uphold the Affordable Care Act’s individual mandate.

Judge Cook came from the Ohio judiciary, where she had a reputation for siding with corporate interests. Her federal judicial career has been largely free of controversial decisions. One exception was an interesting Fourth Amendment case in which she sided for the defendant and ruled for suppression of evidence seized from the defendant’s illegally rented hotel room.

I’ve previously observed that the party of appointment of a federal judge has not been a useful predictor of the judge’s vote in a marriage equality case after United States v. Windsor, when the Supreme Court struck down the Defense of Marriage Act. The pro-equality organization Freedom to Marry counts 28 marriage equality wins and no losses since Windsor.

Still, a three-judge panel with two George W. Bush appointees on it, from an appeals court dominated by conservatives, will test that theory.

The Sixth Circuit Court of Appeals will be the third court of appeals to hear marriage post-Windsor equality cases.  The Tenth Circuit struck down same-sex marriage bans in Oklahoma and Utah this summer, staying both rulings pending Supreme Court review. The Fourth Circuit heard arguments in a challenge to Virginia’s same-sex marriage ban in May, but hasn’t ruled yet.

The Seventh Circuit will hear arguments on August 13, in cases coming from Wisconsin and Indiana. And the Ninth Circuit has arguments scheduled for September 8 in cases from Idaho and Nevada, plus a technical appeal in a case from Hawaii, which legislatively adopted marriage equality last year.

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UPDATE:  Not two hours after I posted this, the Fourth Circuit issued a 2 – 1 ruling against Virginia’s same-sex marriage ban. As the Tenth Circuit had before it, the Fourth Circuit majority found that restrictions on the fundamental constitutional right to marry are subject to “strict scrutiny,” the most demanding standard of constitutional review; and concluded that a ban on same-sex marriage cannot survive that standard.

The majority opinion was written by Judge Henry Floyd, an Obama appointee. He was joined by Judge Roger Gregory, a George W. Bush appointee. In dissent was Judge Paul Niemeyer, a George H. W. Bush appointee. Two federal courts of appeals have now spoken, and both have ruled in favor of marriage equality.

Boat People

In April 1975, as the North Vietnamese and Viet Cong closed in on Saigon, President Gerald Ford called together key officials of his administration and asked them to plan and implement an evacuation of Americans, South Vietnamese who had worked with Americans, and others from Saigon. Ultimately about 138,000 Vietnamese were evacuated, and about 130,000 of them were resettled in the United States.

Resettlement camps were set up at four military bases around the country, one of them at Fort Indiantown Gap, not far from my home town. The refugees were resettled from the military bases to all 50 states. I remember that my little town suddenly had more Vietnamese restaurants than movie theaters.

The Communist Vietnamese government initially engaged in what was called a “velvety transition.” But before long, the government started sending mass numbers of South Vietnamese to “re-education camps,” worked vigorously to stamp out all vestiges of private enterprise, and cracked down on dissent. People began to flee.

Flight escalated to exodus: in September 1978, a ship named the Southern Cross unloaded more than 1,200 Vietnamese people on an Indonesian island. The peak of the exodus was June 1979, when 59,000 Vietnamese people landed on southeast Asian shores – the Philippines, Indonesia, Malaysia, Hong Kong, Thailand, and other countries.

Although many of the initial wave of refugees traveled on large ships, southeast Asian nations started refusing landing to those larger vessels, leading subsequent waves of refugees to evade authorities by using small, overcrowded, dangerously leaky boats. The refugees became known as “boat people.”

The United Nations convened an international conference to deal with the refugee crisis, and, in July 1979, the United States and other western countries agreed to increase the number of refugees they would accept. In just four years, 623,000 Vietnamese refugees were re-settled in western countries, the majority coming to the United States, Australia, France and Canada.

I don’t remember any great American popular resistance to accepting Vietnamese refugees, either in 1975 or in the 1979 to 1982 period. I remember public officials expressing compassion – in particular, I remember the Republican governor of Iowa, Robert Ray, remarking to the effect of, “we are all boat people,” invoking America’s immigrant heritage, as well as the desperate circumstances of many of our immigrant ancestors.

In an important respect, our country has changed for the worse since the 1970s. Central American children are coming to our southern border in search of safety. Boys and girls as young as seven years old are traveling unaccompanied 1,500 miles or more to get away from gang warfare and other violence, coming to our border in hopes of saving their lives.

Their numbers are not huge – at last count, 52,000 kids had arrived since the wave began in 2012. That is almost exactly the number of American orphans adopted by American families each year; the total number of adoptions by American families per year is about 120,000. Ironically, many American families looking to adopt travel to the very same countries that these kids are fleeing, especially Guatemala.

The waves of Vietnamese refugees were perhaps more closely and obviously connected to American actions than the Central American refugees are. But make no mistake: American actions in Central America are far from blameless, including specifically as it relates to this refugee crisis. At one time or another, American interests made most Central American countries into banana republics. We installed or backed autocrats, we exploited people and resources, and we sent arms or even soldiers.

In 2008, we enacted a law that provided for an asylum hearing before deportation of any child from a country not bordering the United States. We enacted that law in reaction to child trafficking, one of the most despicable practices every concocted by humans.

But now it has become inconvenient to house and feed children while they wait for their hearings. So the cry has gone up to repeal the 2008 law. The cry has gone up to deport these children now, to refuse them entry at the border, to send them back into the desert they crossed to get here. The cry has gone up: “What part of ‘illegal’ don’t you understand?”, as if children need legal justification to flee for their young lives.

Many of the people letting loose these cries wave the American flag, surely one of the most insulting invocations of patriotism in recent history. Many of these folks also invoke Jesus Christ – the same Jesus Christ who demanded that his disciples “let the little children come to me”; who preached that if a man forces you to walk one mile with him, you should walk with him a second mile, and if a man steals your coat you should also give him your shirt.

Other than Native Americans, we all immigrated from somewhere else. “The law is the law” makes a nice slogan, but it also makes a convenient substitute for thought and an excuse for appalling callousness. We are indeed all boat people. Let the little children come to us.

Let the Little Children Come to Me

Murrieta, California, takes its name from two Basque sheep ranchers, the brothers Esequial and Juan Murrieta, who bought and worked 52,000 acres of meadow land in the late 1800s, roughly half-way between Los Angeles and San Diego.

Murrieta enjoyed a boomlet from 1882 to 1935, the lifetime of Murrieta’s passenger rail service, as tourists came to visit nearby hot springs. After rail service ended, Murrieta was a sleepy small town, housing just 2,200 residents as late as 1980. Then Interstate 15 was built right through Murrieta, and the population topped 100,000 by 2010.

Now a small city, Murrieta remains a conservative bastion, known for its anti-gay, anti-immigrant, anti-Muslim views. The population is 55 percent non-Hispanic white and 26 percent Hispanic, with significant African-American and Asian-American minorities. As close as it is to the Mexican border, and with California’s liberal policies on immigration, the non-Hispanic white population no doubt concerns itself about shrinking to minority status.

Murrieta is home to the Calvary Chapel Bible College, an unaccredited institution founded by the  late evangelical pastor Chuck Smith. Smith was one of those who attributed the 9/11 attacks to divine revenge for America’s tolerance of homosexuality and abortion.

Earlier, Smith had predicted that the world would end with the second coming of Christ, before the end of 1981. On the very last day of the year, New Year’s Eve 1981, Calvary Chapel held a service for the congregation to await the fulfillment of Smith’s prophecy. Of course, 1982 checked in right on schedule, but as it is ever with false prophets, Smith continued unhumbled for 30 more years.

The recent surge of unaccompanied children illegally crossing into the American southwest has been widely reported. Children caught illegally immigrating are treated differently than adults; deportation of unaccompanied children is too cruel even for American immigration policy.

But it is not too cruel for Murrieta, California. As facilities have filled, and conditions deteriorated, federal officials have begun flying and busing children to facilities elsewhere. Buses carrying 300 illegal immigrants to Murrieta were blocked Tuesday by a mob of white, flag-waving Murrietans, evidently with the full support of Murrieta’s elected leaders. In the showdown between the mob and the buses, the mob won, and the buses turned around and headed off to San Diego.

There were counter-protesters on hand, an ethnically mixed crowd preaching love and care for the children, contrasting starkly with the all-white anti-immigrant protesters, faces blazing with hate, waving the Red, White and Blue.

I obviously have no idea whether any of the protesters expected the second coming of Christ in 1981, or expect it still, but I do think many of them could pay more attention to the words of Christ his first time around.

It’s one thing for a country of immigrants to give hostile treatment to adults who come here looking for a better life. But people who want our government to stop children at our border and send them back into the desert have lost something important: they have lost empathy; they have lost compassion. Let the little children come to us.


The Tenth Shall Be First

The federal Court of Appeals for the Tenth Circuit today rejected Utah’s prohibition against same-sex marriage. After a long series of federal trial-level decisions rejecting same-sex marriage bans, this was the first federal appellate court ruling on the question since the Supreme Court struck down the Defense of Marriage Act last June. The name of the case is Kitchen v. Herbert.

The decision was not unanimous. Judge Paul Kelly, a George H.W. Bush appointee, would have upheld the same-sex marriage ban. Judges Carlos Lucero, a Clinton appointee, and Judge Jerome Holmes, a George W. Bush appointee, out-voted Judge Kelly.

In addition to Utah, the Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, and Wyoming. New Mexico already permits same-sex marriage, so today’s decision makes no change there. Even in the other five states, change will have to wait – the court stayed its ruling pending possible review by the U.S. Supreme Court.

The losing defendants, the governor and attorney general of Utah, have 90 days to ask the Supreme Court to consider the case. Opposition papers are then due 30 days later. The Court can decide whether to hear the case any time after that.

Although public opinion in Utah has shifted dramatically this year, and even the Mormon church has softened its opposition, a majority still oppose same-sex marriage. Therefore, unlike Pennsylvania’s Republican Governor Tom Corbett, who chose not to appeal when his state’s marriage ban was struck down, I expect that Utah’s Republican Governor Gary Herbert will appeal.

But I don’t think the Supreme Court is going to be in any hurry to consider this case. Justice Anthony Kennedy, in his majority opinion in the DOMA case, promised that the DOMA decision did not pre-determine the outcome of the same-sex marriage issue. In his dissenting opinion, Justice Antonin Scalia pilloried that disclaimer, and of course Justice Scalia was right. I think Justice Kennedy is going to want to have more than one court of appeals decision on his side before he goes there.

In any event, the Supreme Court often decides to get involved only where there is a “conflict in the circuits” – meaning different outcomes from different federal courts of appeals. Cases are already pending in five other courts of appeals – for the fourth, fifth, sixth, seventh and ninth circuits. I would expect the Supreme Court to put the Kitchen v. Herbert decision on hold for awhile, to see how some of the other courts of appeals rule.

I’ve argued that a short delay in Supreme Court review would be in the interests of marriage equality. The Court tends to enter into the big social issues only as the country is nearing consensus. I’ve pointed out that the Court did not strike down bans on interracial marriage until only 16 states still had them, and did not strike down sodomy laws until only 14 states still had them. As of now, 31 states still ban same-sex marriage.

Another Tenth Circuit case, from Oklahoma, was argued on April 17. A Virginia case was argued in the Fourth Circuit Court of Appeals on May 13. Cases from four states will be argued on August 6 in the Sixth Circuit: Kentucky, Michigan, Ohio and Tennessee. And an Idaho case is tentatively scheduled for argument in the Ninth Circuit during the week of September 8. State court litigation is also pending in a number of states.

Today’s decision was a little on the fast side for federal appeals courts – only 76 days from argument to decision. If some of the other cases take longer to decide, it could easily be January or February before the Supreme Court decides whether to consider the same-sex marriage issue. At that point, it may not be possible to get briefing done and argument scheduled in time for a decision before the Court adjourns for the summer of 2015. That would put the decision off to the the 2015 – 2016 session, which I think at least several justices will want to do, and which I think will enhance the chances for success.


Republicans Attack Another Demographic: Veterans

Angry that most veterans’ groups refused to join his call for the resignation of the head of the Department of Veterans Affairs, Republican Senator Richard Burr last week wrote a remarkable open letter to America’s veterans. He said that leaders of those veterans’ groups are “more interested in their own livelihoods and Washington connections than they are to the needs of their own members.”

Senator Burr elaborated: those leaders “appear to be more interested in defending the status quo within VA, protecting their relationships within the agency, and securing their access to the Secretary and his inner circle” than in “gaining access to care” for their members.

Today’s New York Times reported today, “The Veterans of Foreign Wars, the Disabled American Veterans and the Paralyzed Veterans of America hit back hard.” One organization promised to “inform our members and our constituents of the repeated failure to act by our elected officials” – which certainly seems like a threat to go after Senator Burr at the next electoral opportunity, which happens to be 2016. One organization pointed out that Senator Burr had actually skipped the part of the Senate hearing that included testimony from the veterans’ groups. One organization accused Senator Burr of opting for “cheap political attacks” instead of “pursuing policy solutions.” One group pointed out that its staff accounts for 47 combat deployments – underscoring the fact that Senator Burr has no military experience.

Senator Burr’s view appears to be that problems at Veterans Affairs are entirely the fault of President Obama and his secretary of veterans affairs, General Eric Shinseki. But the veterans’ groups don’t see it entirely that way. The legislative director of the Paralyzed Veterans of America lays the blame on “insufficient resources that this administration and previous administrations have requested” but Congress has failed to provide. Just last February, Republicans in the Senate, including Senator Burr, successfully filibustered a Democratic effort to bolster the VA’s resources. That effort was led by Democratic Senator Bernard Sanders, who pointed out that the VA’s patient load had grown by 1.5 million in the last two to three years, 200,000 of whom suffer from post-traumatic stress disorder and traumatic brain disorders.

Critical to the debate is that today’s Republicans would love to dismantle the VA, which after all stands as surely the finest example of public health care in the United States. Republicans would love to send veterans out into the private sector to get their health care. But veterans’ organizations aren’t wild about the idea. They are concerned that the VA’s expertise in specialized medical care for spinal cord injury, blindness, amputation, brain trauma and PTSD are not easily matched in the private sector. As the legislative director of the Disabled American Veterans put it, “Simply giving a veteran a plastic card and wishing them good luck in the private sector is no substitute for a fully coordinated system of health care.”

Taking on veterans’ groups – on the Friday before Memorial Day! – seems an odd tactic for Republicans, who have for decades positioned themselves as the party that honors military service. So it’s a mark of how strongly Republicans feel about public health care that they would use the issue as a basis for an assault on groups with names like Paralyzed Veterans of America.

But I wonder if there might be another force at play. I’ve been unable to find racial demographics for veterans broken down by period of service, but I think it’s pretty clear that military service has been transformed from a white institution during World War II to a much more heavily African-American and Latino institution during the three wars in Iraq and Afghanistan. The VA’s web site compiles data that supports this.

The VA projects that the total number of veterans will drop from 23 million in 2010 to about 14.5 million on 2040. (Obviously this projection depends on some assumptions about how many new veterans we create between now and 2040.) During that time, non-Hispanic white veterans will decrease from almost 18 million to about 9.5 million. Non-Hispanic African-American veterans will also drop, but much less – from 2.6 million to 2.4 million. But Hispanic veterans will actually increase from 1.3 million to 1.7 million. Other veterans, including Asian-American, native American, and Pacific Islander, will also increase, from about 800,000 to about 900.000.

All told, the veteran population will shift from nearly 80 percent non-Hispanic white in 2010 to about 66 percent in 2040. This reflects the change in military demographics since World War II. Combined, veterans of World War II and the Korea War total less than 15 percent of the veteran population now, diminishing essentially to zero by 2040. Veterans of the Iraq and Afghanistan wars will outnumber Vietnam veterans in the next year or two, and will make up more than 55 percent of all veterans by 2040.

Today’s Tea Party-driven Republicans seem to have written off African-Americans, Latinos, Asian-Americans, lesbians and gay men, and urbanites. On Memorial Day, I wonder if Republicans are getting ready to write off America’s veterans.


Things Change: From Man Purses to Tattoos

My spouse and I just got back from two weeks in Italy. It was our fourth vacation there – I’ve spent more time in Italy than any other country except the U.S. and Canada. Italy has the artistic, architectural, cultural, culinary, oenological and historical appeal of France, without the sniffing superiority.

The last time I was in Italy was three years ago. The fad then was man purses. They were like shoulder bags, except smaller and thinner, and usually square or close to square, not rectangular. They were worn with long shoulder straps, so that the actual man purse rode at belt level on one side of the back.

It was one thing to see slender young Italian men wearing man purses, with their slim-tailored shirts and leather shoes. But the fad had crossed into Slovenia, and it was quite another thing to see strapping Slavic jocks walking around Ljubljana with man purses slung over their shoulders.

Three years later, man purses have largely disappeared. A lot of the young Italian men have bulked up with weight-lifting, which is fine. They’ve also gone for spare-no-body-part tattooing, which is less fine.

Another change I noticed was a substantial influx of immigrants from Africa, the Middle East, and South Asia. This of course is a historic reversal for Italy, which was traditionally a country of emigrants, not immigrants – half or more of Argentines are descended from Italians, and some towns in Brazil are as much as 95 percent Italian. To this day, more than a million Americans speak Italian at home. Italians also emigrated in large numbers to Australia, Canada, France, Peru, Switzerland, Uruguay and Venezuela.

While I was in Italy, I read an estimate that 850,000 people, mostly from Africa and Syria, had gathered in Libya looking for a way across the Mediterranean to Italy. The country has seen an increase in far-right anti-immigrant sentiment, but mostly Italy continues not only to absorb the immigrants but to actively patrol the Mediterranean to rescue would-be immigrants from leaky, overcrowded boats. The government’s main beef is that the rest of Europe needs to give more than lip service to the rescue and resettlement effort.

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Although Italy only became an actual country in the mid-nineteenth century, the country progressed fairly well until World War I, which killed nearly three quarters of a million of its soldiers and bankrupted the country. Benito Mussolini’s fascist regime took power shortly thereafter, leading to a disastrous alliance with Nazi Germany. Italy was one of the deadliest fronts of the Second World War, which ended with another half-million Italian soldiers killed and the Italian economy in ruins – per capita income at the end of the war was about equal to what it had been in 1900.

Although Italy became a Republic in 1946, Italian governments have been notoriously unstable – Italy has had 63 governments in 67 years. Until the end of the 1970s, the country suffered social unrest and terrorist attacks by extremist groups like the Red Brigades. Still, aided by the Marshall Plan, the Italian economy flourished. From 1950 to 1970, a period still known as the Economic Miracle, Italy’s economy grew faster than any other in Europe. By 1985, living standards in Italy matched those in Western Europe as a whole. Italian commercial interests did well in the Balkans after the fall of the Berlin Wall, often out-competing the Germans in that region. Today, Italy has the eleventh largest economy in the world, a high standard of living, and a strong social safety net, all despite taking a bigger than average hit in the 2007 – 2008 financial meltdown.

American politicians can’t find the money to maintain American schools, roads and bridges that aren’t more than fifty years old; Italian politicians somehow find the resources to maintain whole cities that were built before Europeans put up so much as a single structure in the New World. There are parts of Italy where you can’t turn a shovel of dirt without uncovering antiquities, and somehow Italian politicians find resources sufficient both to preserve the antiquities and to build around them.

The United States has a land mass about 33 times that of Italy. It’s less than 900 miles from the tip of the toe of the boot of Italy all the way to the Austrian border, compared to more than 3,300 miles from San Diego to Presque Isle, Maine. But Italy has more than 500 miles of high-speed rail, whereas the U.S. has none – our fastest rail line is the Northeast Corridor’s Acela service, which has a maximum speed of 150 miles per hour, and an average speed under 70.

Italy opened its first high-speed rail line when Jimmy Carter was president. The best hope for American high-speed rail is that a connection from Fresno to Bakersfield will start service in 2021. By then, the Italians will have further expanded their internal high-speed rail and will be well on their way to connecting their internal network to France, Switzerland, Austria and Slovenia.

During our stay in Italy, we flew to and from Milan, and traveled by train to Florence, Pisa, Bologna, Ravenna and Rimini. At one point during the 50-minute trip from Bologna to Milan, I happened to glance up at a monitor and saw that we were moving at 297 kilometers per hour – basically three times the maximum speed on American highways.

Of course the train stations were already there before high-speed rail came, even to Italy. At the Bologna station, the high-speed tracks had to be run below the existing lines, and then passenger access routes had to be built to the new, deeper platforms – which must have increased the cost of construction considerably. Yet the Italian politicians who have run 63 governments in 67 years somehow came up with the resources to get it done, all the while propping up Pisa’s tower from tilting too far, keeping the Pantheon in spiffy shape for the tourists, and restoring every medieval and Renaissance town and basilica and museum and da Vinci fresco and Bellini painting and Michelangelo sculpture and Byzantine mosaic to nearly pristine condition.


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