Saturday, January 14, 2017

Tal Becker's Theory of Justice to Prolong the Status Quo in Israel/Palestine

Dr. Tal Becker/Hartman Institute photo
Wednesday evening, January 10, 2017, Dr. Tal Becker came to Temple Sherith Israel in San Francisco to speak of justice. This was the third in a series of talks conceived by the New Israel Fund in collaboration with the Shalom Hartman Institute of North America aimed at sparking inter-generational dialogue about Israel. About 120 of the usual suspects showed up: retired synagogue denizens, greying secularists with time on their hands, interested in all thing Israel, and a small handful of earnest young people in their 20’ and 30’s.

Becker has fought in the trenches of the struggle for justice between Jewish Israelis and Palestinians.  He is a fellow at the Shalom Hartman Institute in Jerusalem, but he also serves as principal deputy legal adviser to the Israeli Ministry of Foreign Affairs. He was a senior member of the Israeli peace negotiation team during the last round of talks led by Secretary of State John Kerry, and was a lead negotiator at the Annapolis peace talks. He has served as director of the international law department of the Israeli Foreign Ministry and he has served as counsel to Israel’s UN mission in New York. He has advised the Israeli Defense Forces on international law. His positions, by implication, have required him to be a vigorous defender of the status quo. “My resume is not as strong as it looks: all my efforts at fashioning peace with the Palestinians have been failures,” he said to inappropriately loud applause from one attendee.

Becker came to explain his theory of justice for the status quo. 

Three Competing Models of Justice

We all have different conceptions of what justice means, said Becker. From a Jewish perspective, there are three models, he said: 1) justice as entitlement; 2) justice as co-existence; and 3) justice as identifying with the victim. He presented three stories from Genesis to illustrate.

1. Abraham purchases a burial plot for Sarah (Genesis 23:1-20). When Sarah died in Kiriath-arba (Hebron) Abraham wanted to purchase the cave of Machpelah, together with the field in which it stood, and all the trees anywhere within the confines of that field. Abraham made an ostentatious showing of wanting to pay market rate for the field—to own it in the regular course. It is one of three records of purchase in the bible, the other being the Temple Mount, and Joseph’s burial ground.

The building that covers the "Cave of the Patriarchs"
at Machpelah, Hebron/Wayne Styles photo

This model of justice, says Becker, asks who has a rightful claim? Justice is to grant the just claim. Hebron, the Temple Mount, the West Bank, all of it belongs to the Jews because they have the rightful claim. Not only was the land given to them by God in his covenants with Abraham and Moses, there is a rightful deed of purchase for places like Hebron, the Temple Mount, and Joseph’s tomb. That, and the Jews won it fair and square in a defensive war in 1967. The land belongs to the Jews because they have the rightful claim.

This claim of entitlement is the justice championed by many of the settlers and their supporters. See, e.g. here, and here, and here. The land was promised to the Jews, purchased by them, and won in war, and justice demands that they have it. And, of course, Hamas has a mirror image of this justice claim which says all the land belongs to the Palestinians. See e.g. here.

Separation of Abraham and Lot
Wenceslas Hollar (1607-1677)
2. Abraham and Lot compete for resources (Genesis 13: 1-18). Abraham and Lot came up out of Egypt wealthy in silver, cattle, and gold. Their flocks and herds were so numerous that the land could not support both tribes and they came into conflict. So Abraham sensibly said to Lot: “Let there be no strife between you and me, between my herdsmen and yours, for we are kinsmen.” And they agreed to separate, Lot moving into the valley of the Jordan and Abraham moving to Hebron. It’s a model of justice as co-existence, says Becker. This model of justice does not care what the technical entitlement claims are when it comes to dividing the land; what matters is how to make a space for all; what’s required is for Jews and Palestinians to live in peace even if that means giving up or compromising rightful claims.

3. Abraham pleading with God to spare Sodom and Gomorrah for the sake of the innocent (Genesis 18:17-33).  God is set to destroy Sodom and Gomorrah in order to clear the land for Abraham. And because they are wicked. But sin seems like a pretext. Still, it’s a pretext that both God and Abraham latch onto. “Will you sweep away the innocent with the guilty,” pleads Abraham. And God relents: he won’t do it if there are 50 innocents. Abraham begins to bargain down the Lord: “What if fifty innocent should lack five,” he says, finally getting God to agree he won't do it if there is a minion of ten innocents.

It’s a model of justice as championing the victim, says Becker. “Don’t look at entitlement, don’t let peace (getting along) be determinative, focus on the victim and come to his aid. That’s justice!”  And, of course, there is an additional implication in the story: it seems to say, focus on the “innocent victim.” The flip side of this is there weren’t 10 innocents in Sodom and Gomorrah so they deserved to be destroyed. It sets the stage for lots of inventive arguments about victimhood and guilt and innocence and just deserts. As Becker quipped about an altercation between his two young children: “It all started when she hit me back!”

The Point of Striving 

In Genesis Rabba 8:5 the angels are having an argument with God about whether he should create mankind, or not. “Do it,” said one, because man will dispense acts of loving kindness; “don’t do it,” said another, because man will be full of lies. [It will all lead to Donald Trump!] One said “do it” because man will perform acts of justice; and another said “don’t do it” because man will be full of strife.

After much reflection God created man, and he did so for selfish reasons, says Becker. God who is whole and perfect and has perfect Truth, and perfect Justice, and perfect Wisdom, nevertheless lacked something: he lacked imperfection. He lacked the ability to strive for Truth and Justice and Beauty and Peace and Wisdom. Having perfect Truth and Justice and Beauty and Peace, and Wisdom, God lacked the desire for these things. We take for granted what we have, we don’t desire it, we don’t strive for it.

And there is something valuable and beautiful in desire and striving towards Truth and Justice and Beauty and Peace and Wisdom. By striving for these things in our imperfect ways, and because we can never realize these goals fully, we complete God, said Becker. Or at least that is what Rabbis Simon, Hanina, Hilkiah, Huna, and Phinehas were getting at in Genesis Rabba. It’s a beautiful vision. 

Driving the Point Home 

And Justice is like that, all striving and not achieving, said Becker.

“Pursuit of justice is by definition a flawed exercise; it is the pursuit of something that can never be achieved. We do most harm when we think we are those who can bring a complete justice. What we need to do when we think about justice in Jewish terms, is to recognize that there are these competing voices of justice: justice as entitlement, as getting along, as being the champion of the victim, and each of them needs to be carried at the same time. And each of them needs to suffer the other.  And we should never delude ourselves with their achievement; we just need to pursue them. All of the competing claims of justice need to have a claim on you and temper your arguments.”

“Justice is not an outcome, it’s an orientation,” said Becker. We must remember that often, when we insist on our own conception of justice to the exclusion of others, we create an injustice. And that much is surely correct.

But to suffer the maximalist settler claims alongside the maximalist Palestinian claims does not seem helpful. Becker’s three models of justice are an explanatory tool for understanding the dynamics and psychology of conflict, but what’s missing is a theory of what makes a just state, or states.

The “entitlement” model leads to competing maximalist claims; the “champion the victim” model leads to endless arguments about who is victim, who is perpetrator (who is virtuous and who is sinful). The Abraham/Lot co-existence model of justice can easily turn into a Rodney King “Why can’t we all just get along” caricature. What’s missing from Becker’s talk last Wednesday are actual values that transcend group identity.

Entitlement is a claim, not an ideal. Victimhood is claimed status, not an ideal. And compromise to get along without reference to independent ideals, some shared values, seems empty and unstable.

As Jon Stewart observed to Charlie Rose shortly after our recent election: America has struggled over its identity since its founding. Are we a country of ideals (equality for all, due process of law for all, liberty and justice for all) or are we some kind of white ethnic state. This identity struggle was visible at the heart of our recent election. But we do have stakes in the ground—ideals to strive for. They are embedded in our constitution. They are firm.

There are stakes in the ground in the Israel/Palestine conflict beyond Becker’s three models too. Here are two visions with different champions: 1) a multi-ethnic, multi-religion state that extends an equal voice, vote, opportunity, and protection of the laws to everyone between the river and the sea; or 2) some type of confederation between a multi-ethnic Hebrew Republic and a multi-ethnic Palestinian Authority with open borders as envisioned by Dov Waxman and Dahlia Scheindlin. These models are not subject to Becker's temperance rule. If we have an actual vision of justice, we can go all in. 

In listening to Becker, I did not hear a theory of justice we can go all in for. I heard fluidity designed to excuse the status quo, and to enable prolongation of the status quo in Israel/Palestine. Becker does, after all, work for Benjamin Netanyahu. 

Follow me on Twitter @RolandNikles

Wednesday, January 11, 2017

The Nepotism of Donald Trump: In and Out of Government

Jerod Kushner/source unknown
This past week President Trump has appointed his son-in-law, Jared Kushner, as a senior White House adviser. There is also talk that Trump wants to involve his daughter Ivanka and one or more of his sons in the administration. Is that bad? Is it allowed?

The Life Blood of Closely Held Businesses 

Nepotism, of course, is the life blood of family businesses. My wife's family were all doctors at Kaiser in Northern California.  Not nepotism exactly, but surely more than coincidence.  They are  excellent people and have contributed greatly to their organization. My sister and broter-in-law work in a family business (his side of the family). They are energetic and competent entrepreneurs. They earn their keep. My cousins in Switzerland own a family business, a hotel in the mountains. They are in the fifth generation. They are industrious and responsible people.

Nothing wrong with this kind of nepotism that I can see. If you own the business you can run it for the benefit of your family as you will.

Many of my construction company and developer clients work in closely held family businesses. One of these is a multi-billion dollar venture. Sons and daughters don't get to run these businesses unless they are qualified. Parents often have higher expectations of their off-spring than they might have of regular employees. And, in the final analysis, offspring and in-laws usually need to prove their mettle in order to succeed. They must earn their stripes.

Not to say that nepotism in closely held businesses doesn't have its down-side.

It is joyless to be stuck with a spoiled, under-performing, over-entitled scion in any venture. Parents might keep or promote underperforming kids just because they are family. Family members may get paid more than others similarly situated, fostering resentments. Family ties might keep competent people from rising in an organization, harming the organization. Nepotism undermines organizations when family members are promoted over others with more merit. Still, if you own it and you want to run it into the ground by enabling your lazy, incompetent family members to rest on your laurels... knock yourself out.

With publicly held corporations, not Trump's situation, we frown on nepotism. Publicly traded corporations are owned by the shareholders, and for this reason most publicly held corporations have rules prohibiting nepotism by corporate management. Management needs to hire the best talent at the best price for the benefit of shareholders: when they hire family there is, at minimum, the suspicion that this may not be the case.

The Model of Selfless Government Service

And with public office, as Trump will hopefully learn, things are very different. Public officials don't own government: they are trustees for the public good. There is no board of directors to look out for the voters, as there might be for shareholders in a publicly traded corporation. All we have is the law and the courts.

The word "nepotism" derives from the latin for "nephew." It alludes to the practice of medieval popes who appointed nephews as cardinals in order to cement family dynasties over the papacy. The Borgias dominated politics and the church in Italy in the 15th and 16th centuries. It's an example of nepotism gone bad.

Nepotism in public office naturally leads to corruption. Think of Saddam Hussein and his sons in Iraq; Qaddafi and his sons in Lybia; the Assad clan in Syria. Ulysses S. Grant (president 1869-1877) appointed his cousin Silas A. Hudson as minister to Guatemala, his brother-in-law Reverend M.J. Cramer as consul at Leipzig, another brother-in-law, James F. Casey, as Collector of Customs in New Orleans, Louisiana, a third brother-in-law, Frederick Dent, as White House usher. Casey enriched himself by stealing customs fees and Dent enriched himself by selling insider information.  According to Wikipedia, 40 Grant relatives prospered financially by leveraging his position as President.

A consular position in Guatemala (in 1870) seems harmless enough. Yet we don't want our elected officials handing out public perks to family and friends. Even if the service provided is competent and earnest, allowing family and friends to enrich themselves from their relationship to elected officials is not healthy for democracy: it undermines competence and merit, it results in government not getting good value, it consolidates and creates family power and dynasties that can be abused.

It undermines trust in government.

We award public works projects through a competitive and open process not only because it provides the best value, but because we feel all businesses similarly situated should have the same opportunity to compete for government business. Government business belongs to the people, it does not belong to elected public officials to hand out as favors to friends and family.

Our ideal is selfless government service for the public good. It's Jefferson's vision of Roman republican virtue: the most competent landholding citizen leader assuming command of the army in time of war for the public good, only to humbly retreat to private life as soon as the need subsides.

In our era of career politicians, where politicians parlay political careers into fortunes through subsequent lobbying or speech-giving, our motives and incentives for public service are not always so pure. Prohibiting elected representatives from handing out jobs, perks, and business to family and friends is one way to keep self-dealing in check. It's a nod to our idealism.

Nepotism undermines government structures because family members, no matter their experience or station, may be perceived as having the ear of the family member who hired them, and having disproportionate influence stemming from family ties instead of merit. It causes resentment. It undermines morale. It undermines clear lines of authority.

For all these reasons, most states have laws prohibiting nepotism. Federal agencies have rules against nepotism. And in December 1967 Congress passed a law to prevent it.

When president John F. Kennedy appointed his brother (Robert Kennedy) as attorney general and his brother in law (Sargent Shriver) to head the Peace Corps, there was an uproar.  The New York Times was very critical of Robert Kennedy's appointment as attorney general: “It is simply not good enough to name a bright young political manager, no matter how bright or how young or how personally loyal, to a major post in government.”  The Nation called it "the greatest example of nepotism this land has ever seen."

Seven years later Congress passed a law prohibiting any officer (including the president) from appointing a family member in any agency in which he or she is serving. The law can be found at 5 U.S.C 3110. But Rep. Neal Smith (D-Iowa), who sponsored the bill, denied he was motivated by the Kennedy appointment and said he was concerned about a culture in the U.S. Postal Service of placing wives on the payrolls in small rural offices around the country.

Does the Anti-Nepotism Law prohibit Trump from Appointing his Family Members?

Kathleen Clark, a government ethics expert at Washington University believes these family appointments would pretty clearly violate the anti-nepotism law. See Washington Post 1/10/17.

Here is the relevant part of the law (5 U.S.C. 3110):
(a) For the purpose of this section—(1)“agency” means—(A) an Executive agency;....(2) “public official” means an officer (including the President...)... in whom is vested the authority ... to appoint, employ, promote, or advance individuals... in an agency; and (3) “relative” means, ... an individual who is related to the public official as ... son, daughter, ... son-in-law..... 
(b) A public official may not appoint ... any individual who is a relative of the public a civilian position in the agency in which he is serving. 
(c) An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury.
The president is explicitly mentioned as one of the "public officials" bound by the law. By its plain meaning, this statute would seem to prohibit Trump from appointing his son-in-law, his daughter, or his sons from working in the White House, or in any other executive branch agency.

But when it comes to the law, bad facts make bad law, and things are not always so clear....

Association of American Physicians and Surgeons v. Hillary Clinton 

As we know, after John Kennedy, Bobby Kennedy, and Sergeant Shriver (which predated the statute), and before Trump and his kids, there was Bill and Hillary. In January 1993 (i.e. after the anti-nepotism statute was in effect) Bill Clinton, as president, established a task force on national health care and he put Hillary in charge of this task force. The task force was directed to draft health reform legislation and to submit this legislation to Congress within 100 days of the administration taking office.

Just like Jared Kushner's appointment now, this drew legal scrutiny then.

The issue presented by the case was whether the Clinton task force meetings were subject to the notice and open meeting requirements of the Federal Advisory Committee Act. The FACA was aimed at reigning in the proliferation of numerous advisory committees staffed by industry lobbyists and other individuals not employed full time by the government. Any committee staffed by such persons, Congress said, has to provide notice of its meetings and conduct its meetings in public. 

The Clinton task force held one public meeting on March 29, 1993, and subsequently met 20 times behind closed doors in April and May 1993. The task force completed its review, made its recommendations to the President, and ceased operations by May 30, 1993.

In the meantime, however, opponents of the Clinton initiative sued to be admitted to Hillary's closed-door meetings. The court concluded that the task force meetings were not subject to the notice and open meeting requirements because all of its members, including Hillary Clinton in her capacity as First Lady, qualified as a full time employee of the federal government under the FACA exception to the notice and open meeting requirement.

The plaintiffs in Association of American Physicians and Surgeons v. Clinton also argued: hey, if Hillary is a full-time officer or employee of the federal government appointed by her husband to oversee this task force, and hence exempt from FACA, isn't this then a violation of the nepotism prohibition of 5 U.S.C. 3110?

The anti-nepotism law, although it specifically mentions the President, does not include an exception for the President's spouse. The court, therefore, had to resolve whether Congress in passing the anti-nepotism law intended the statute to apply to the President's spouse. And the court concluded, no, the president's spouse is exempt from the prohibition.

In carving out an exception for the president's spouse from the nepotism law, the court pointed to the traditional supporting role of First Ladies--they have always been active in the administrations of their husbands. And the court pointed to the fact that Congress has specifically authorized the President to pay his spouse for such services as might be helpful to the president in carrying out the president's duties. 3 U.S.C. Sec. 105(e).

The presidential spouse exception for the anti-nepotism law seems uncontroversial and a proper interpretation of 5 U.S.C. 3110.

In creating this exception for the president's spouse, however, the court also questioned whether the nepotism law applied to the President at all

Here is what the court said: 
The President's implicit authority to enlist his spouse in aid of the discharge of his federal duties also undermines appellees' claim that treating the President's spouse as an officer or employee would violate the anti-nepotism provisions of 5 U.S.C. § 3110. That section prohibits any "public official" from appointing or employing a relative, such as a spouse, "in the agency in which he is serving or over which he exercises jurisdiction or control." Id. § 3110(b). Although section 3110(a)(1)(A) defines agency as "an executive agency," we doubt that Congress intended to include the White House or the Executive Office of the President. Cf. Franklin v. Massachusetts, --- U.S. ----, ----, 112 S.Ct. 2767, 2775, 120 L.Ed.2d 636 (1992) (holding that President is not "agency" for purposes of Administrative Procedure Act); Meyer, 981 F.2d at 1298 (President's advisers are not "agency" under FOIA); Armstrong v. Bush, 924 F.2d 282, 289 (D.C.Cir.1991) (President not APA "agency"). So, for example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant. Be that as it may, it is not reasonable to interpret that provision to bring it into conflict with Congress' recognition of (and apparent authorization for) the President's delegation of duties to his spouse. The anti-nepotism statute, moreover, may well bar appointment only to paid positions in government. See 5 U.S.C. § 3110(c). Thus, even if it would prevent the President from putting his spouse on the federal payroll, it does not preclude his spouse from aiding the President in the performance of his duties.
Association of American Physicians and Surgeons v. Clinton, 997 F.2d 898. 

This is dicta, says Kathleen Clark. That part of the Association of American Physicians and Surgeons case goes beyond what was needed to decide that case and thus it should have no binding effect on later courts. We look at the plain meaning of the statute, Clark says correctly. When we look at the plain wording of this statute, we must conclude: of course it applies to the president; the president is explicitly mentioned ("'Public Official' means an officer (including the President....)!" And the Executive Office of the President, including his immediate staff, the White House Staff, and the Office of Management and Budget, are usually thought of as making up an "Executive Agency."  For example,  5 U.S.C. Section 551(a) defines "agency" as any "authority of the government of the United States." 

That and $3.50 will buy you a latte at Starbucks, as they say. 

Given the above language in Association of American Physicians and Surgeons v. Clinton, it is an open question whether a court would rule Kushner's appointment illegal. People can disagree over what the correct ruling should be, or what the more likely ruling may be, but no one will know unless the issue is framed and brought before a court. How this would happen or who might bring such a case is unclear. 

In order to bring a case to challenge the Kushner appointment any plaintiff will need to demonstrate standing; i.e., a plaintiff will need to demonstrate a connection to the action and some particular harm to him or or her that the court might address. This would seem to rule out general citizenship or taxpayer standing. Who can demonstrate a real harm or impact from the appointment of Kushner as an advisor? The Democratic party? A citizen voter? A member of Congress? Legal standing is not intuitively obvious in such a case.


The Kushner appointment presents a real concern of nepotism. This concern will be greatly heightened if Trump's children also take a direct role in the administration. But there is no clear answer to whether Trump's action is illegal. The breathless way in which some media are framing the issue, that this appointment is a litmus test for whether Donald Trump "will follow the law," is wrong. See, e.g. The Forward. The legality of it is very much an open question. And whether this issue can ever be properly framed and brought to court presents complex and interesting legal issues. 

In the meantime, Kushner is a presentable young man. He instills a lot more confidence of competence and level-headedness than Donald J. Trump does. We would have been better off with Hillary, but my guess is we're better off with Kushner in the White House than not.

Monday, January 9, 2017

Jon Stewart on the Election and the "Daily Show"

Jon Stewart did not start the Daily Show, the news satire and late night talk show program. The show premiered on July 21, 1996, and Stewart took over on January 11, 1999. Under Stewart's leadership the show was strongly focused on politics and the national media. By the time Stewart stepped down (August 6, 2015) the show enjoyed 2.5 million nightly viewers. The show was a cultural phenomenon. Between 2001 and 2015 it garnered 21 Prime Time Emmy Awards.

Two weeks after the election Stewart sat down with Charlie Rose to reflect on the Daily Show and on the election. Stewart brings an unusual level of introspection and thoughtfulness to this interview. It's worth watching in its entirety.

Here are some highlights.

The Election did not Fundamentally Alter the Country

"This  election represents the extension of a long argument we've had from our founding: what are we? Are we an ideal or some form of ethno-state? .... [Trump's] candidacy has animated the thought that multi-ethnic democracy is impossible. ... [But, of course a multi-ethnic and multi-cultural state is] what America is by its founding, and constitutionally."  

Because of the long arc of this struggle for our identity, "We have a resilience to [it] but we have to continue to fight." 

"There is now this idea that anyone who voted for Donald Trump has to be defined by the worst of his rhetoric. I think this is a big mistake. I think our relationship status with our own worst impulses is complicated. We have to remember that the most progressive president in our history, Franklin Delano Roosevelt, also interned Asian Americans during World Ware II. We are a complicated and real people. .... This idea that [Trump voters] have given tacit approval to a dictator and a madman (is folly)." 

Controlling Culture is not Power

"This election could be a great lesson in that controlling the culture is not the same thing as power. And a viral video eviscerating racists is not the same as a grass-roots movement that seeks to have common ground with the people and create a multi-ethnic coalition that understands that other people's hierarchy of needs is not necessarily your hierarchy of needs." 

The Joys and Frustrations of Satirical Comedy

"The crux of The Daily Show paradox is in that moment you hold to account a senator whose entire identity is based on a hypocritical behavior ('I'm against this type of pork barrel politics, unless it somehow benefits me') At that moment when we nailed you, what do we have to do at that point? We let you go. It's catch and release. We have to undercut it with a laugh." 

"One of the difficulties with all this is that satire began to take the place of reality. It's been given a greater place in the discussion, and a larger role in the discourse than is warranted. And once this began to happen, you begin to wonder if it's a good thing or a bad thing. And I know it's not black and white." 

Controlling the Culture is not Political Power Redux

"For as much fun we had making fun of the Tea Party... while we were up there passing around viral videos of eviscerations, they (were busy) taking over school boards." 

"There is a comforting culture that can be mistaken for real power." 

"You have to meet force with force. [And that's not the Daily Show] We were in the subway, yelling at dead people (Patrick Swayzey in "Ghost"), raging, and noone could hear us. But if we focused everything we had, at just the right moment, we could move the can just a little bit...." 

Follow me on Twitter @RolandNikles.

Sunday, January 8, 2017

No, a Palace Guard at the White House is not American, Why do you Ask?

Trump leaving One World Trade Center
with his security team on 1/6/17
Lucas Jackson/Reuters
In 1999 Donald Trump hired a part time body guard, Keith Schiller, for his brief Presidential run with the Reform Party. He soon quit the party, saying: "So the Reform Party now includes a Klansman, Mr. Duke, a neo-Nazi, Mr. Buchanan, and a communist, Ms. Fulani. This is not company I wish to keep." NYT February 14, 2000.  Today, as President Elect, it is the company he keeps. And Schiller is still with him.

Schiller has stayed with Trump for the past 17 years. During the campaign Schiller headed a private  security force for Trump and this week Trump hired Schiller to oversee Oval Office operations. 

Schiller oversaw more than $1 million of private Trump security operations during the campaign, compared to $360,000 spent by the Clinton campaign.  See Politico. It's unique. Several experts consulted by Politico could not recall any instance when a presidential candidate maintained a separate security force past election day; on election day Secret Service security is expanded dramatically for the winner. Yet Trump's private security team "has been present at each of the seven rallies on Trump’s post-election 'Thank You Tour' and has removed protesters — sometimes roughly — at many stops," said Politico. 

No president has ever maintained his own private protection force while in office, but Schiller's appointment to an Oval Office position this week suggests Trump aims to do so. A private security force for the President, however, is a bad and dangerous idea because such a force would be beyond the control of Congress. Such a force is outside the normal governmental checks and balances; it would be accountable to no one but Donald Trump. 

It may also be illegal. The hiring of a private security force by the president would run afoul of the Anti-Deficiency Act (31 USC 1342). This statute provides that an officer or employee of the United States Government (e.g. the President) may not accept or employ services exceeding that authorized by law. "The Executive may not raise or spend funds not appropriated by explicit legislative action," explains Yale law professor Kate Stith. "Congress has a constitutional duty to limit the amount and duration of each grant of spending authority," she says. 

Jon D. Michaels, law professor at UCLA, has written at CNN about The Folly of Trump's Palace Guard. He points out that Trump's moves to bring his own security detail to the White House is consistent with his overall efforts to undermine trust in government.  "His message is clear," says Michaels: "We should not trust the feds." 

The Secret Service, however, has been in the business of protecting presidents a long time, and they are good at it. They are the "best of the best" says Michaels.  And crucially, they also have an appreciation for balancing the competing needs of serving a particular president, and serving the presidency.

Maintaining a balance between the president as an individual and the presidency is critical "to the project of American constitutional government," says Michaels.
"We are, as Abraham Lincoln reminds us, a government of the people, by the people, and for the people. Such a reminder is particularly important today as the President-elect indicates a desire to remain (somewhat) involved in his business interests and expresses a particularly low tolerance for dissent and criticism. The Secret Service cannot and will not be enablers of these decidedly unpresidential predilections. The same cannot be said of private contractors."
The members of Trump's security team have been partisan campaigners. Schiller frolics on Trump's golf courses and in his steak houses. He has a two decades long relationship of personal fealty to Trump. A private security team lead by Schiller would be loyal to Trump the man--and whatever he's up to--not the presidency.

"It has already been well documented that Trump's security detail conceives of its role very differently from that of the Secret Service," says Michaels.  "Its members are campaign boosters, partisan combatants, and confidantes to a celebrity businessman who is about to be President," he says. "Even assuming these aides were as well-trained (and as well-integrated into the larger world of federal law enforcement, diplomacy, and intelligence agencies), they present themselves as approaching their responsibilities and loyalties very differently." 

A private security detail paid for by the Trump Organization, the President himself, or some wealthy donors, "may sound appealing to those clamoring for lower taxes and greater fiscal responsibility. But it is a problem," says Michaels. "Congress appropriates funds to the Executive branch with the expectation that those will be the only funds spent." As part of our system of checks and balances between Congress and the Executive, it is Congress that retains complete control over the purse strings.  "Absent this restriction," says Michaels, "the President could hire a phalanx of support staff to do more -- or different -- work than what Congress authorized, thereby creating fiefdoms of unchecked, unrivaled bureaucratic power."
"Congressional appropriations dictate the size and scope of Executive activity. Imagine, for instance, a Congress concerned that a presidential administration might go to extremes in enforcing federal immigration law. That Congress might intentionally restrict funding available to the Department of Homeland Security, limiting the latter's enforcement capabilities. Now imagine an independently wealthy Homeland Security chief committed to the zealous enforcement of immigration laws. Were that chief permitted to draw upon her personal fortune to hire hundreds of additional immigration agents, she would be thumbing her nose at Congress and the federal appropriations power."
Such unchecked spending powers would lead to unaccountable action not subject to the safeguarding checks and balances of our governmental system. An unchecked and unaccountable security force threatens to turn into a vanguard for an authoritarian security state.
"Circumvention of the Anti-Deficiency Act opens the door to truly big, scary, and unaccountable federal power. It invites a certain plutocratic tribalism, where loyalties run to benefactors (in and out of government) and where Congress loses control over the shape, reach, and complexion of government."
A president with a private palace guard is un-American. And it is illegal. Congress must remain watchful. They should not permit Keith Schiller to run a private security force from the White House that is loyal only to Trump and not the presidency or the American people.

[I ran across the Michaels article at CNN via Sasha Volokh at Volokh Conspiracy]

Follow me on Twitter @RolandNikles

Thursday, January 5, 2017

A Trip Down Market Street in San Francisco, Four Days Before the Earthquake, When America Was Great

Historically, the Ohlone peoples (speaking several related languages) inhabited an area from San Francisco, down the Silicone Valley to Monterey and the northern Salinas Valley. The Ohlone replaced older tribes living in the area since ~4,000 BCE. Before significant contact with Europeans, they were perhaps 10,000 to 20,000 strong in 1769.

That year, a Spanish exploratory party led by Don Gaspar de Portola and friar Juan Crespi discovered San Francisco Bay by land. Although the Spanish immediately recognized the bay for its great strategic significance, the area was remote and thus slow to develop. Russian fur traders colonized the area; the Spanish established a military fort, the Presidio of San Francisco at the entrance to San Francisco Bay; friar Junipero Serra established the Mission San Francisco de Asis; captain George Vancouver stopped by in 1792. But there were few people.

By 1800 the Ohlone population was reduced to 3,000. The overall population of San Francisco proper was less than a thousand. But it all changed in 1849 with the discovery of gold in the Sierras.

Among the adventurers drawn to San Francisco was the British born photographer Edward James Muggeridge (1830-1904). In 1868 a series of large photographs of Yosemite Valley made him world famous. A decade later Muggeridge made a "moving picture" of Sally Gardener, a race horse, and rider. It was a milestone in the history of film technology.

In 1902 four brothers (Harry, Herbert, Joseph and Earle Miles) established an early motion picture exchange in San Francisco. During the course of this first decade of the 20th century they chronicled events and locations in the West in more than 60 films.

On April 14, 1906, the Miles brothers strapped a film camera to the front of a trolley and recorded the  trip down Market Street that is at the top of this post. Their film shows the vibrancy and unruliness that was San Francisco four days before its great earthquake.

It was a time of the "robber barons," those great and larger than life men carving up the country for their own benefit and making America great. It was the time of Mark Twain and the spirit of Walt Whitman still lingered; it was a time of Thomas Edison and Alexander Graham Bell. It was a time before child labor laws. Women did not have the right to vote. The income tax was unconstitutional (we needed the 16th Amendment to the constitution, ratified in 1913 to get it back). And it was a time before Social Security, Medicaid, Medicare, welfare programs, or food stamps. A time before civil rights. A time before a woman's right to choose an abortion in the first two trimesters. Before Planned Parenthood. Before readily available, safe, birth control. Before environmental regulations. But America was great. It was vibrant. The streets were even worse than today.

Some want us to go back there.

Friday, December 30, 2016

A Jewish Resurrection of Uncle Tom

Tonight a friend directed me to a segment of Backstory Radio about  Judaism in Americawhich aired on the first night of Hanukkah. The program covers the Jewish experience in Dutch colonial New York, George Washington assuring Jews in 1790 that they were welcome and that the young nation was indeed serious about the separation of church and state, the origins of modern day Hanukkah, Jewish delis, and popular songs rendered in Yiddish.  The hosts were struck by an early Jewish presence in the South, and how incongruous and uncomfortable the institution of slavery must have appeared at Passover prior to the Civil War. This reminded me of a play we saw at the Marin Theater Company three years ago, which centers on a Seder taking place on the day of Lincoln's assassination. 

Here is my review hoisted from the vault... 

The Whipping Man
By Matthew Lopez
Produced by the Marin Theater Company 2013

Matthew Lopez’s The Whipping Man is centered on a Passover Seder celebrated by two Jewish house Negroes (Simon and John) in the ruins of their former home in Richmond Virginia on April 14, 1865.  The date is significant because it is the day of Lincoln’s assassination, just five days after the surrender of the South.  A third member joins them at this Seder table, the son of the household who returned in the middle of the night at the beginning of the play, with a shot up leg. Before lighting the Seder candles the former slaves amputate their old master's leg just below the knee with a saw to save him.  

You might ask “Jews in the South?”  Well, yes, there was a Jewish population of approximately 25,000 in 1860 in the South, and those with means owned slaves.  Southern Jewish gentry tended to congregate in the cities, which means they owned “house negroes” not “field negroes” as Malcolm X would have it.   Malcolm X didn’t approve much of house Negroes. 

Harriet Beecher Stowe’s novel Uncle Tom’s Cabin, published in serial form in 1851-1852, sold 500,000 copies world wide by 1853.  The book has been credited by some with being responsible for the election of Abraham Lincoln, and it was instrumental in fueling the abolitionist movement leading to the end of slavery in the United States in 1865.  Wikipedia's encapsulation is:  “Stowe's melodramatic story humanized the suffering of slavery for White audiences by portraying Tom as a Christlike figure who is ultimately martyred, beaten to death by a cruel master because Tom refuses to betray the whereabouts of two women who escape from slavery.”  An early (1852) anonymous reviewer of the book in the Boston abolitionist publication, The Liberator, took exception to the saintly Christian pacifist portrayal of Uncle Tom:  “Uncle Tom’s character is sketched with great power and rare religious perception. It triumphantly exemplifies the nature, tendency, and results of CHRISTIAN NON-RESISTANCE. We are curious to know whether Mrs. Stowe is a believer in the duty of non-resistance for the White man, under all possible outrage and peril, as for the Black man….”  

In 1949, James Baldwin wrote an influential essay on Uncle Tom’s Cabin, titled “Everybody’s Protest Novel,” which excoriated the novel as a political pamphlet.  Baldwin argued that protest novels are inherently sentimental, and that sentimental art is inherently dishonest.  Thereafter, it was all downhill for poor Uncle Tom who came to be a derogatory epithet for excessive subservience and acceptance of a racially defined lower-class status, to the point of collaborating with the oppressor, and being a traitor to one’s own.  It’s what resonates in Malcolm X’s characterization of the “house negro.”  

Well this play has two house Negroes: the level headed, powerful, illiterate but wise Simon; and the younger, never-do-well, thieving, intelligent, literate, self-educated, and angry John.  But neither one of them has a trace of the pejorative “Uncle Tom.”  John was a rebel and was whipped for it.  Simon is like the original “paragon of Christian virtue” Uncle Tom, except he is a paragon of Jewish virtue.  His Jewish faith is more constant in the face of disaster than Caleb’s, the prodigal soldier son of the household.  [Not the only son, but that is another story]  Simon raised both Caleb and John, and he is the most powerful of the three.  He is powerful like a good version of Samuel L. Jackson’s Stephen in Django Unchained.  He runs the show.  

If Simon’s power comes from his Judaism, John’s (and what kind of meshugganah Jewish name is that?) comes from his learning and intelligence.  He knows that the Bible commands the Israelites that they may buy slaves from “the nations that surround you, … but over your brothers the people of Israel you shall not rule, one over another ruthlessly.”  Leviticus 25: 44-46.

"Were we slaves ..., or were we Jews,"  asks John.  He has within him the seeds of the Civil Rights movement, the seeds of affirmative action.  

Simon is promised his freedom by his master, who sold his wife, and who may be dead;  but John knows that, as to Hebrew slaves, the bible commands:  “in the seventh year you must let them go free.  And when you release them, do not send them away empty-handed.  Supply them liberally from your flock, your threshing floor and your winepress. Give to them as the Lord your God has blessed you.  Remember that you were slaves in Egypt and the Lord your God redeemed you. That is why I give you this command today.”  Deuteronomy 15:12-18.  

Here is the legislative history behind all of that.  

 Gives a whole new meaning to being "on the side of the angels” don’t it?

Keep a lookout for a production of the play and let me know what you think the implications might be of this Jewish resurrection of Uncle Tom. 

For those of you in the San Francisco Bay Area, check out Marin Theater Company's upcoming production of Native Son. 

Wednesday, December 28, 2016

The Formal End of the Two-State Solution

Vote on UNSC Resolution 2334, December 23, 2016

On December 23, 2016 the United Nations Security Council passed Resolution 2334 reaffirming the world's judgment that Israel should return land taken in the June 1967 war, subject only to mutually agreed upon adjustments. It reflects a continued international commitment to a two-state solution for the Israel/Palestinian conflict. The resolution called the ongoing Israeli settlement project a flagrant violation of international law. 

But it seems clear now, after 50 years of Israeli occupation and settlement of the West Bank, that Israel will never voluntarily help to create a Palestinian state. Israel's vehement response to Resolution 2334 speaks volumes that the time when Israel may have been willing to "exchange land for peace" has long passed. It seems equally clear that international law is impotent to bring about a two-state-solution, and that the international community lacks resolve.

At least that's the judgment of Benjamin Netanyahu and his government. 

Israel's reaction to Resolution 2334 was apoplectic. Ahead of the vote, Prime Minister Netanyahu warned New Zealand that its support of the resolution was "a declaration of war," and after the vote, Israel withdrew its ambassador to New Zealand and barred New Zealand's ambassador to Israel. Netanyahu told his ministers on Sunday to stay away "from those countries that voted against us.” Israel's ambassador to the U.S., Ron Dermer called the Obama administration a "runaway train" for failing to veto this reaffirmation of international law principles. Netanyahu lectured John Kerry: "friends don't take friends to the security council." On Monday, Netanyahu doubled down, saying "Israel is a proud country. . . . We don't turn the other cheek. . . . . The nations of the world respect strong countries that stand up for themselves. They do not respect weak and obsequious countries that bow their heads.”  He called the U.S. abstention "a disgrace." "They betrayed us," he said. Netanyahu canceled a meeting with British Prime Minister Theresa May and a visit to Israel by the Ukrainian prime minister. Meanwhile, Israel's defense minister, Avigdor Lieberman, called an upcoming peace conference in Paris "a modern version of the Dreyfus trial."  Lieberman also ordered Israeli officials to cut all civil and diplomatic contacts with the Palestinian Authority. Education minister Naftali Bennett compared support for the resolution with “planes hitting buildings and trucks killing people in Berlin." 

It all adds up to Netanyahu and his government poking a finger in the eye of world opinion. The Israeli right that is in control of Israel doesn't care what the world thinks--they will not "exchange land for peace," they will not help create a Palestinian state, they will not stop settlements, they will not end the occupation. 

"This is just another instance of the UN ganging up on Israel," lamented Ron Dermer. But the reality is other: Israel's vehement response to Resolution 2334 amounts to a big rejection of the Palestinians and the international community. 

Here is a closer look at Resolution 2334:
The Security Council,  
Reaffirming its relevant resolutions . . . Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force, . . .  
Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem . . . . 
Expressing grave concern that continuing Israeli settlement activities are dangerously imperilling the viability of the two-State solution based on the 1967 lines, . . .  
Recalling also the obligation . . .  for the Palestinian Authority Security Forces to maintain effective operations aimed at confronting all those engaged in terror and dismantling terrorist capabilities, including the confiscation of illegal weapons, 
Condemning all acts of violence against civilians, including acts of terror, as well as all acts of provocation, incitement and destruction, 
Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders . . .  
1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, . . . constitutes a flagrant violation under international law . . .  
2. Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory. . .  
3. Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations; 
4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution . . .; 
5. Calls upon all States . . .  to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967; 
6. Calls for immediate steps to prevent all acts of violence against civilians, including acts of terror, as well as all acts of provocation and destruction, calls for accountability in this regard, and . . . for the strengthening of ongoing efforts to combat terrorism, including through existing security coordination, and to clearly condemn all acts of terrorism; 
7. Calls upon both parties to act on the basis of international law, . . .  to observe calm and restraint, and to refrain from provocative actions, incitement and inflammatory rhetoric, with the aim, inter alia, of de-escalating the situation on the ground, rebuilding trust and confidence, demonstrating through policies and actions a genuine commitment to the two-State solution, and creating the conditions necessary for promoting peace; 
8. Calls upon all parties to . . .  launch credible negotiations on all final status issues in the Middle East peace process . . . ; 
9. Urges . . . the intensification and acceleration of international and regional diplomatic efforts and support aimed at achieving, without delay a comprehensive, just and lasting peace in the Middle East on the basis of the relevant United Nations resolutions . . . and an end to the Israeli occupation that began in 1967; and underscores in this regard the importance of the ongoing efforts to advance the Arab Peace Initiative, the initiative of France for the convening of an international peace conference, the recent efforts of the Quartet, as well as the efforts of Egypt and the Russian Federation; 
10. Confirms its determination to support the parties throughout the negotiations and in the implementation of an agreement; 
11. Reaffirms its determination to examine practical ways and means to secure the full implementation of its relevant resolutions; . . . . 
What's to dislike here, unless you reject the very concept of a two-state-solution? 

“The status quo is leading toward one state, or perpetual occupation,” said John Kerry in his speech this morning. But we are past "leading toward." The moment has arrived. For the next four years Israel, it appears, will have enthusiastic support from the American administration for its one state reality and occupation. Incoming president Trump has nominated an ambassador to Israel who raises funds for West Bank settlements, who refers to the West Bank by its biblical names Judea and Samaria, who was bar mitzvahed at the Western Wall, who has spent his summers at an apartment in Jerusalem since 2002, who rejects a two-state-solution for the West Bank and Gaza, and who has described Jewish supporters of a two-state solution, as “far worse than kapos—Jews who turned in their fellow Jews in the Nazi death camps.” Under Trump's leadership, commitment to a two-state solution was removed from the Republican platform. See, e.g WSJ.

Perpetual occupation is the official policy of Israel and, in 23 days, the official policy of the United States. Resolution 2334 marks the formal end point of the two-state solution.