Thursday, June 22, 2017

John Oliver Challenges Coal Mogul To a Duel, Mogul Accepts

I was going to use a poker metaphor for this, but a reddit discussion suggested the terms I was going to use - call and raise - are problematic.

A fellow Alaskan blogger posted a youtube video the other day of John Oliver calling out a West Virginia coal king Bob Murray on a number of issues.  I thought it was brilliant the way he has mastered a technique of using humor and visuals (in the Jon Steward model) to take complex issues and explain them simply, without losing the complexity.  In this case it involved
  • Trump's hypocrisy about promising and claiming new coal jobs
  • Murray's hypocrisy over his concern about coal miner safety
  • The first amendment 

In the piece, Oliver tells us that HBO got a cease and desist order telling them to not air the segment and that Murray has sued other media, including the New York Times over something they wrote.  It all sounds very Trumpish (It will be interesting how that word will eventually be defined when it enters the Oxford dictionary).

Today we learn that the threatened law suit has been filed in West Virginia  circuit court.

Here's the offending segment.  Judge for yourself.

HBO and Time Warner have deep pockets, but it is troubling when the very rich use libel and defamation law suit threats to shut down media that criticize them.

I've been threatened twice over posts here. One post about the Alaska International Film Festival which has nothing to do with Alaska except the pictures on its website and a post office forwarding service with an Alaska address earned me a threatening letter from their attorney.  The other got me an email that threatened a law suit.

The first was a bit scary as I had to consider the costs of potential lawsuits as a price of blogging.  While I was adamant about not taking down the post, I did have some difficult days calculating what standing by my post might cost me.   I was lucky to have access to a great attorney who ended the threat with one letter, but others who were threatened by them pulled their posts.   These threats are a real danger to free speech.   Gawker was put out of business by a lawsuit.

Murray seems a lot like Trump in that he can't handle any criticism.  John Oliver does come on very strong, but I'm confident - especially since he knew a lawsuit was likely - that he can document all his claims.

Let's see how far this lawsuit gets.  In this case, the defendants have the resources to fight.  In fact, John Oliver says in the segment that he knows such a suit is coming.  My concern is for smaller media, including individual bloggers, who can be much more easily shut down by the threat of a lawsuit.

NOTE:  I've been listening and reading the news lately with an eye to the percent of articles/segments that focus on conflict.  It's clear that conflict is the bread and butter of news.  Even NPR calls their news articles 'stories.'  At last April's Alaska Press Club conference here, NPR reporter Kirk Siegler  talked about how to create a good story and he identified tension as the second factor after a strong character.

But the constant focus on conflict (or tension) leads to a distorted perception of the degree of conflict in human life compared to the cooperation.  News shows will report the car accidents each day, but not the millions of drivers who used their turn indicators, slowed down to let someone in their lane, and did all the other cooperative activities necessary for freeway drivers to negotiate their way to their destinations.  We all hear daily things like "Two people were shot to death today in a robbery."  But how many times have you heard a newscaster say, "6170 people died today of heart attacks." 

Just as stories of murders far outnumber stories of other kinds of deaths, stories of conflict hugely outweigh stories of cooperation.  And in both cases people's perceptions are grossly distorted so they think of terrorists as a far bigger threat than they really are compared to other causes of death, and to think that conflict is far more common than cooperation.  

So when I post a story like this one that does focus on conflict, I ask myself what are the reasons that this story is worth posting.  Here's what I think is important in this story:
  • Oliver's skill in presenting the facts of a complex story in a way that retains the complexity yet is compelling to viewers.  He doesn't dumb it down, he raises the level of his viewers.  It's a model to study and emulate, though without the insults.
  • The danger to free speech from very wealthy people who don't like to be criticized.  This threat of lawsuits is very real - particularly for smaller scale journalists than those at HBO.  It's a consequence of the great divide between the very rich - for whom $10 million is pocket change - and the rest of us.  

Wednesday, June 21, 2017

The Cost Of Airshows, What I Know About You, And Unobtrusive Measures

As the title suggests, I'm trying to kill three birds with one post.  But everything is connected and so I'm showing just three of the interconnected issues here.

Let's start with the cost of airshows.

I wrote a post in 2012 called Air Shows And The Cost Of Military Fuel.  I gathered what information I could and made some very general calculations.  I wasn't terribly happy with it because there were so many unknowns.  But there wasn't all that much out there and apparently still isn't since that post still regularly gets a fair number of hits from all over the world.

But as I checked StatCounter* this morning, I noticed a hit from Lockheed Corporation.  And then one from Boeing.  And another one last night from the US Senate.

click image to enlarge and focus
What I Know About You

That image above is a Photoshopped grouping of three different records from StatCounter.

StatCounter is one of many tools websites, including blogs, can use to track visitors to their sites.  I moved to StatCounter from Sitemeter after Sitemeter gave me all sorts of problems.  I suspect my regular readers got tired of my complaining and were happy when I switched and they stopped hearing about it.

Everyone who surfs the web should know about the information that is collected from them by each website they visit.  Sitemeter packaged that data about each individual visitor in a whole page that included more that StatCounter individual reports.  But StatCounter packages the info in a way that makes it faster to view and breaks out a lot more information in different reports.

But all these programs simply use the information that your computer collects on visitors and packages it in different formats.

If you click on the image, it will enlarge and focus so you can read it.  I don't get all this information from everyone.  First, I suspect there are a lot of visitors StatCounter doesn't even report.  I say this because Google Analytics says I have a lot more visitors than StatCounter reports, but it doesn't give me such detailed info on each visitor.
Also, some visitors have scrubbed their info - whether their internet provider does that, or they have done it themselves.  Another way is to use a proxy server which hides all the info.

I'd also note that if you use the private browsing feature of your browser, that only hides info about what sites you visit on your own computer.  You still leave tracks at the websites you visit.

I have put this sort of info up now and then because I think most folks really have no idea of how much info they leave around while surfing the web.  And I'm often surprised at how organizations leave their names up so people can see that they have visited.  And part of me doesn't want to post things like this which may alert them and cause them to disguise their identity.  I like knowing that these visitors visit.

I'd also note that all this information - plus more - is how browsers and others make lots of money selling it to advertisers.   These are, unobtrusive measures, because most people leave these tracks without knowing.  The main way people have any clue about any of this comes from the pop-up ads we get after visiting a particular site.  If you delete the cookies, some of them will end.

Unobtrusive Measures

"Unobtrusive measures are measures that don't require the researcher to intrude in the research context. Direct and participant observation require that the researcher be physically present. This can lead the respondents to alter their behavior in order to look good in the eyes of the researcher. A questionnaire is an interruption in the natural stream of behavior. Respondents can get tired of filling out a survey or resentful of the questions asked.
Unobtrusive measurement presumably reduces the biases that result from the intrusion of the researcher or measurement instrument. However, unobtrusive measures reduce the degree the researcher has control over the type of data collected. For some constructs there may simply not be any available unobtrusive measures."
The site goes on to identify three different types of unobtrusive measures.

I mention this because these tracks that people leave on websites are a form of unobtrusive measure.  My use of it is very informal and unorganized.  Every now and then I'll suddenly get a bunch of hits for an old post and it will alert me that something is happening related to something in the post.  Once I got a bunch of hits for a post about the director of the Alaska DMV, mostly from Texas.  So I started checking and found out she'd taken a job as the head of the Texas DMV.  The counter alerted me to that.

Another time a post suddenly got a bunch of hits and it turned out a British newspaper had a puzzle and my post had one of the answers. Here's a 2009 post that chronicles that event and several others where I was alerted to something by the hits on a particular post.

So, for what it is worth, today I got three hits on this post about the cost of fuel for airshows.  Three isn't a lot of hits, but when they are from Boeing, Lockheed, and the US Senate, it suggests that perhaps someone is looking into that issue.

Now, I don't know if the visitor from, say Boeing or the US Senate, was doing this officially or it was just someone privately surfing while at work.  But given the three hits from these three I suspect there's an interesting reason.  Is a budget committee examining the costs of air shows?  Or is it something else buried in the post?  For most google searches I no longer get the actual search terms - that's something they've done to improve user security - so I don't know for sure what they were looking for.  I just know where they landed.

Tuesday, June 20, 2017

Alaska Budget Crisis - Head Tax

There's so much to write about, but not nearly as much time to do sufficient research to say something  that adds meaningfully to what others have already said.  So I'm going to keep this really focused.

Senator Click Bishop has introduced SB12 which establishes a head tax.  I had some questions about how that would work and contacted my Senator, Berta Gardner.  So I can say something with a bit of authority on this.

We used to have a head tax - I remember it being minimal, like $10 from everyone's first paycheck of the year.  But if 200,000 people got at least one paycheck a year (our population was much lower then) it would still amount to $2 million.   Sen. Bishop's bill would have several levels based on income, so it would be somewhat progressive.

However, it's only for people on a payroll.  So people with other kinds of income - pensions, rental properties, investment income, etc.  would not have to pay.  That seems blatantly unfair and why a graduated income tax is a better option.  Though I'd vote for the simplest-to-calculate income tax possible - like a percent of the federal taxes.  Minimum wage workers shouldn't have to pay if people with much larger, but unearned, incomes don't.

The one benefit of this tax is that it does include non-residents who work in Alaska.

Senator Gardner also wrote it could be part of the compromise package  if the Senate ever agrees to any new revenue.  She also said there haven't been any hearings on the bill.

Monday, June 19, 2017

LA Times Headline Jumps To Conclusions: "Cosby case deadlock reflects our cultural split" (And Side Note On Google Search Problem)

Does that deadlocked jury really reflect our cultural split?

Maybe, but since we don't know what happened in the jury room  there is so far no basis for that conclusion.  If it said, "Crosby case" (without the deadlock), I wouldn't have reacted like this.   I think it's worth calling out the headline writer and to some extent the reporter on this.  It seems a clear case of using this story as a pretext to discuss what the reporter was thinking about the case.  Not what the facts showed.  Because the only facts we have about the deadlock is that it deadlocked.

[NOTE:  I haven't figured out how to get the link to the article when I read print facsimile version of the LA Times.  So after I finished this post, I went back to get the link.  It gave me a different online version of the article which has a completely different headline.  Had I read this headline, I never would have written this post:
"One night, two stories: In the Bill Cosby saga of sex, race, celebrity and alleged assault, even the jury couldn't agree on the truth"
Online headline writers have more space to use than print headline writers.  But my point about the print headline is still valid.  I'm glad to see the online headline writer was more careful.  And since you'll get the other headline at the link, here's a screenshot of what I saw first:]

Here's the beginning of the article:

NORRISTOWN, Pa. — The dozen jurors in the Bill Cosby sexual assault trial spanned a diverse demographic range: white men in their 20s and 30s, middle-aged African Americans, elderly white women.
With that diversity also came deadlock. On its sixth day of deliberations, the jury found itself unable to render a verdict — like so much of this country, unable to find consensus on charged questions of race, age, power and gender."
I'd also note that reporters are not usually the ones who write the headlines, though this sentence seems to give the headline writer the needed prompt:
"The jurors did not speak with reporters, but their inability to reach a verdict, after more than 100 hours of testimony and deliberations in this suburban Philadelphia courtroom, brought home how divided opinions are about Cosby — and about a lot more."
Before we can reach this conclusion, we need to know a few things:

1.   How many jurors vote for guilty and how many for not-guilty?
  • If only one or two jurors held out, then their deadlock doesn't represent "our cultural split."  11 -1 or 10-2 are huge majorities.  I was on a jury where one woman refused to find the young woman defendant guilty of drunk driving because, as she told us, it could have been her daughter.  It's easy to imagine a juror who's had sex with a drunk friend identifying himself in the same situation, using the same sort of personal logic to say 'not guilty.'  
  • If more jurors held out, and the debate focused on whether the plaintiff consented and/or whether Cosby was the victim of race discrimination, then perhaps the headline would be justified. Or not.   And if the debate was about reasonable doubt  (and the article says the deadlocked jury asked for a definition of that term) then it really might have been just that and not particularly reflective of cultural splits.  I'm assuming, for example, that the number of other accusers, who say they were assaulted the same way and who have not filed law suits, was not allowed into the trial.

There are lots of reasons juries deadlock.  One juror may so irritate another juror that the second just won't go along with whatever the first one decides.  Or a juror feels strongly that government is screwing over people.  We don't even know, in this case, whether the majority was for not-guilty or guilty.

[A Note On Juries.    I did try to find studies on why juries deadlock.  This revealed a problem with google's search algorithm - the first ten pages were almost completely about the Cosby case, nothing generic about deadlocked juries, and nothing about why they deadlock.

I did find one book The Jury Under Fire: Myth, Controversy, and Reform  by Brian H. Bornstein and Edie Greene.  Google got me to page 73 which discussed how jury size (12 or 6 jurors) affected deliberations and how the unanimous vote rule (as opposed to using a majority vote) affected decisions.  It also mentioned that only two states - Oregon and Louisiana have majority rule, but they require at 10 jurors in some kinds of cases and 11 in murder cases.  It also cited some numbers:  2% of federal trials and 4-5% of state trials result in hung juries.  There were also some caveats because most studies of juries are done on mock juries not real ones.]

[A Further Note on Google and Hung Juries.  Before posting this, I decided to try a different browser.  I used Bing.  And bingo (sorry), I got better results than with google.  Here are the reasons for hung juries from one study

This covers only 46 cases and presumably none with the kind of celebrity buzz as the Cosby trial.  I'd say 'cultural split' might fit in 'dysfunctional process'  or 'unknown.'

A study by the National Center for State Courts found:
"In examining the data, researchers found one or more of the following traits consistent in a hung jury compared to one that reaches a verdict:
• weak evidence
• problematic deliberations
• jurors’ perception of unfairness"
"Cultural split' might fit into the last two categories.  We just don't know what happened.

My point?  Even with reputable media, we need to be ever watchful that the facts support the conclusions.   Here I think the story reflects what the reporter thinks about the case, not about the hung jury.  When the article was posted we didn't know any more about the jury than it was deadlocked.  (I couch it that way, because I don't know if any of the jurors have said anything publicly as I write this.   Using Google and  Bing I can't find anything about a juror talking to anyone about the details of the split or the issues that caused the split.)

Saturday, June 17, 2017

"Every time Trump has broken a window, GOP leaders have obediently swept up the glass."

Some articles I found worth reading.

1.  From the LA Times:

"Every time Trump has broken a window, GOP leaders have obediently swept up the glass, if sometimes after some initial grumbling. Their deference could explain why Trump might imagine Republicans would ultimately defend him even if he fired special counsel Robert S. Mueller III, as he’s reportedly considered this week."
As I've said before, this is like watching a car racing toward the cliff in slow motion.  Slowly Republicans in Congress - at least in the Senate - are going to figure out that the short term benefits of having a so-called Republican in the White House do not outweigh the long term harm of having Trump in the White House.

2.  From the New York Times, a long article about Kris Kobach, a smart guy whose moral reasoning seems particularly warped.   His mission is to pass the most restrictive voter registration laws possible to keep non-whites from voting.  He did that as Kansas Secretary of State and now he's the "vice chairman of a new Presidential Advisory Commission on Election Integrity to be led by Vice President Mike Pence."  This guy uses up a lot of the ACLU's resources.

Raspail's The Camp of the Saints is also mentioned in the article.  Fits in well with the Bannon crowd.
"At the A.C.L.U. hearing, Kobach argued that his restrictive measures were justified by the high stakes. 'We are preventing noncitizens from voting in elections,' he said. “And when a few noncitizens vote, those can swing a close election.'”
And when a lot of citizens are prevented from voting, those can swing less close elections.

When I read about people like this my mind screams, "WHY????"   Why does his brain work this way?  Is there something about his brain chemistry that's different from most people?  Was he picked on as a kid?  Maybe that difference caused him to be picked on.  There are lots and lots of other possible explanations.  Figuring out these things - rather than just dismissing him as evil or whatever else - is what will move us along as a species.

3.  Mapping Police Violence

I'm not sure what you'll get since the link goes to the main page, which I assume changes.  But the website tracks blacks and whites killed by police.  The statistics are shocking and surprising.  It's all about graphics and data.  A number of different displays.  And there's a link to download their database.

There are lots of possible explanations for these seeming disparities, but the data aren't as easy to get. Is it simply more racist cops in some places?  Better police training in some places?  Different policing styles, like beat cops?  Age of the population or other factors that matter?  Stability of the population?  Lots to think about here.

Magpie Playground And Body Guards [Updated]

Parents are pretty aggressive about protecting their young, and birds are no exception.  There's a magpie nest not far from our house and now that the young can fly a bit, they've found our trees to be a great playground.  Here are two young ones.  There are several more.

The easiest way to distinguish them from the adults is there short tails.   They're starting to make quite a racket which is what got me to look out the window.    And today when I went out to get the mail, the noise got exploded as I opened the glass outer door.  

An adult got between me and one of the young ones screeching.  

Another flew down at me from the other side.  (I'm not as foolhardy as it may look.   I had the storm door for protection.)

It sat on the railing a couple of feet from me and glared.  

Meanwhile the other one found some food on the roof.  (An old mountain ash berry?) and fed it to the young one in the tree.   It's practically placing it in the young's stomach!

From a little further back, here's another shot.

And when I tried to venture out, the two adults let me know I shouldn't.  

They are such beautiful birds.  In the sun the black shines blue and green.  But no one would ever call them song birds.  More like screech birds.  Unlike the larger, all black ravens, who have a whole repertoire of amazing sounds.

[UPDATE  3:20pm:  The young ones are now in the backyard.  I can see four at the same time.   The parents are giving them space to explore, but when I opened the back door, I could hear them screeching somewhere in the background.    One on the deck.

Another in a flower bed.

And two more up in a tree.

Friday, June 16, 2017

It's Summer, A Beautiful Day, So Biked The Bird To Gird Trail And Left My Computer Behind

When they rerouted the Seward Highway many years ago from the perilous two-lane, no shoulder road that went well above the water below to a four lane road at the water's edge, the old road was revisioned into a bike trail.  And it's a wonderful six mile ride from Bird Point to the Girdwood turnoff.

The first two or so miles from Bird Point go up with great views of Turnagain Arm.  Though a number of the view points - including telescope-viewers - have cottonwood and other trees blocking the views now.  But not at this point.

Here's the rock wall on the other side of the trail.  There are lots of waterfalls along the way and I counted 18 piles of bear scat on the trail.  Later at the National Forest visitor center near the end of the trail, the lady said that yesterday one of the workers encountered a black bear.  Someone coming the other way had to zap it with bear spray before it left the trail.

Here's the trail on the way down near the Girdwood end.

And back down to road level, there's duck playground.  She wasn't happy that I stopped and hustled her brood off while I got the camera out of the backpack.    It should be a little sharper if you click on it.

Here's a July view from 2011 when the flowers were all blooming and a September view from last year.  Same trail different moods.

Thursday, June 15, 2017

A Look At Time Honored Advice For Keeping Focused On What's Important - Eye On The Ball, Follow The Money, etc.

Let's see, we've got a burning London tower, Comey and Sessions hearings, an attack on Republicans playing baseball, a new health care bill, Trump tweets . . .  And then everyone has state issues to follow - in Alaska our legislature is in a special session called by the governor because there's a stalemate between the Democratically controlled House and the Republicanly controlled Senate.  There's so much stuff flying at us, how can anyone keep track?

That's what this post is about.  I'm going to look at words of advice on how to intelligently track what's going on in a few different areas:
  • Sports - Keep Your Eye On The Ball
  • Magic - Misdirection
  • Politics -" Follow The Money" and "Watch What We Do, Not What We Say"

Do any of these help us figure out what we should do?   Let's go through each one first, then try to tease out any similarities.  

Keep your eye on the ball.   -  For players, this seems to be good advice.  From Inside Science:
"For the first time, scientists have documented the eye movement of athletes running at full speed to catch fly balls. The results are the most convincing yet to support past notions that constant eye contact is essential to a successful catch."
But for the audience, taking your eye off the ball may give you a better understanding of what's happening.

There's a well known psychological test where subjects are asked to count the number of times the white team passes the basketball.  If you've never seen this video, you should watch it now.  Really.  It's short.  Go ahead.  I'll get back to this later.

From NPR:
"Don't watch the ball. That's it. Don't watch the ball. Wait, the ball is large and orange and demands to be watched. It's a magnetic orb through which all action flows and all camera angles are oriented. True enough, but to understand and appreciate the sport, look away. If you begin to look at what the other players are doing without the ball, the sport presents itself to you differently.
You see how a player came to be open or how a defender came to thwart an offensive play - grabbing a jersey is the answer more often than you'd think. On the San Antonio Spurs, watch Pau Gasol as he muscles into position under the basket. On the Cleveland Cavaliers, when Kyrie Irving has the ball, watch LeBron. When LeBron has the ball, watch Kyrie or Kevin Love. You think to yourself, he's standing sentinel ready to fire up a three-pointer, but then he plunges towards the hoop for a rebound or to set himself up in the post."
There's also a book on the NFL called Take Your Eye Off The Ball 2.0.  I was guessing it has similar kind of advice about football, but I couldn't find anything online that actually says that.

But it's clear that if you keep your eye on the ball, you miss a lot of other things, like a team sets up plays and does its defense.  Just as in the video, where concentrating on the ball and the white team causes most folks to not even see the gorilla.

And in sports, where there is usually only one ball in play at a time, it's much easier than in politics where the myriad of issues I listed at the beginning suggests there are many metaphorical balls in play at once.

Magic - Misdirection

From an article on the psychology of magic:
Physical misdirection is a well-known tool for the magician: he points at an object, a big gesture distracts, spectators fixate on a suddenly appearing dove. All are designed to distract from another movement that is vital for the trick.
The article goes on to make the point I was intending to make here, that we can get psychologically misdirected too.
"Psychological misdirection is much more subtle – a good example is the false solution. This is where the magician leads spectators to believe they’ve worked out how the trick is done. Once this ‘solution’ is suggested people are much less likely to notice the clues that crop up as to how it’s really done. Instead people look for confirmation that their own theory is correct. When the magician finally shows this ‘solution’ is no such thing, spectators are left even more bemused. The false solution is, therefore, not just a happy coincidence, it is used as a distraction from the real solution."
In fact, many have suggested that Trump's tweets are a form of misdirection, and politicians have always used distraction to slip through things when people were looking elsewhere.  So the real question is where should our eyes (and ears) be focused?

Let's go to a couple suggestions from the Watergate era.

"Follow The Money" 

For me, this quote goes back to Watergate and Deep Throat (the informant reporters Bernstein and Woodward????  used to confirm they were going in the right direction).  He kept telling them to 'follow the money.'  I suspect that's a lot like 'keep your eye on the ball.'   This Wikipedia entry suggests that it probably was the screenwriter's (for the film about Bernstein and Woodward, All the President's Men) shortcut of less pithy advice.

I think this is probably good advice now as well.  There are lots of flows of money to watch.  Who funds which candidates is always a good way to figure out why politicians vote the way they vote.  But the Citizens United decision makes it harder to do - which is more confirmation that following the money is important.  And there are a number of websites that help us do that, such as and open

But it's getting apparent that following Trump's money - the money he borrowed from Russian linked people to keep building after his bankruptcy and money that corporations and governments are steering toward his businesses how people are trying to document possible violations of the emoluments clause of the Constitution.  The Russian money, as one hypothesis goes,  to help determine how badly they can hurt him financially if he doesn't do their bidding. The other money, well so they can influence him as well.  We learned just the other day that there's been a huge increase in the percent of investments by shell companies in Trump real estate.

So it seems like the money is an important factor to attend to.

"Watch What We Do, Not What We Say"

Conservative commentator William Safire explained it this way in 1988:

 '''Watch what we do, not what we say,' Attorney General John Mitchell advised reporters at the start of the Nixon Administration.
Coming from the law-and-order campaign manager with the visage of a bloodhound, that epigram was interpreted as the epitome of political deceptiveness.
But his intent was to reassure blacks that, foot-dragging poses aside, the Nixon Justice Department would accomplish desegregation. John Mitchell knew that the appearance of a tilt toward white Southerners would ease the way for acceptance of steady civil rights progress for blacks, and sure enough, what he did in this area was much better than what he said."

I think this is pretty clear - what we say means little.  What we actually do is important.  Except for the code words we use to alert our base that we're talking to them.

But I need to shed a little more light on Safire's take on this.  Using examples like this isn't so easy.  Well, I could just slip it in, but the record is not as clearcut as it seems.  Should I go into all that?  I feel that I have to, even if it makes the post a little harder to get through.  But you can skip down to the conclusions if you like.   A CNN article quotes Nixon top aide, John Ehrlichman, as saying,
"'You understand what I'm saying? We knew we couldn't make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities,' Ehrlichman said. 'We could arrest their leaders. raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.' 
Ehrlichman's comment is the first time the war on drugs has been plainly characterized as a political assault designed to help Nixon win, and keep, the White House."
The article goes on to say that none of Ehrlichman's five children believe the quote because

"'We never saw or heard anything from our dad, John Ehrlichman, that was derogatory about any person of color,'" wrote Peter Ehrlichman, Tom Ehrlichman, Jan Ehrlichman, Michael Ehrlichman and Jody E. Pineda in a statement provided to CNN."
If you've seen the 2017 movie Get Out you've seen lots of examples of how even liberal whites who ostensibly support blacks in any number of ways, can still be unconsciously racist.  And the point Ehrlichman was making was that they were targeting political opponents who just happened to be black, just as North Carolina argued in their gerrymandering cases.   I'm sure that Ehrlichman's kids would also say that he wasn't racist against whites either, but most hippies were white.

The book White Rage (last chapter I believe) documents how blacks were targeted in the war on drugs as a both a way to keep them from voting and to fill the private prisons of campaign supporters.  (I thought I posted about the last chapter, but apparently I only got to Chapter 4 which does talk about how the Nixon and Reagan administrations declared racism over with desegregation and the Voting Rights Act.)


This may seem like a long way to get to the obvious, but I think it's important to always check our assumptions.  And in this particular political period, to find ways to focus on what's really important.

1.  Keeping your eye on the ball, as an observer, can cause you to miss the bigger picture - how the defense and offense are structured, where the strengths and weaknesses lie, etc.  And you could miss the gorilla in the middle of the room.  We need to keep track of the big picture and not get too bogged down in all the details.

That said, if there is a ball in politics, it's probably the money.  Watch the whole game, but pay attention to the money!

2.  Misdirection  - Just because the magician looks up, doesn't mean you should too.  It's a feint to distract you from what she's doing with her hands.  Trump's tweets are often misdirection, distracting us from the important things.  But they also do tell us something about Trump's need for constant attention and total focus on himself, his bad sleeping habits, his lack of self control.  An interesting historical tidbit that came up the Safire article cited above, was a mention of Nixon attorney general John Mitchell's wife,
"Martha's propensity to make wild phone calls during sleepless nights"
Sound familiar?  Maybe there's a new entry for the DSM here.  Or maybe it's already in there, but one would think someone would have pointed it out by now.

3.  Follow the Money -  as I started to say in #1, Money is the 'ball' of politics.  So this is always important, just don't forget to keep it all in context.

4.  "Watch What We Do, Not What We Say"  If Safire's example of this is accurate, it's appropriate here.  "What we say" is aimed at our base and shouldn't be believed, except by them.  I think that's sort of true about Trump, except that he's got enough advisors who were spokesmen for his base's key issues, that he's at least taking some actions to do things he said he'd do.  Like building a wall, banning Muslims, killing Obamacare, pulling out of the Paris Agreement on Climate Change.  He's just turned around and dissed the House health care reform and the courts have, so far, blocked his immigration actions.  But there's a lot of damage he can do.

Without forgetting what he said, it is good to watch what he's actually doing.  I suspect he's more focused on the Trump empire than on the needs of the United States.  And Safire's benign conclusion that the Nixon administration actually helped blacks is more what they said and not what they did.  The War on Drugs was, as I cited above, a war on blacks and hippies (really anti-war folks.)  And it is only now that people are recognizing that our prison population has skyrocketed to the benefit of private prison contractors and to the detriment of everyone else.

I don't think the Trump administration is competent enough to be that deviously successful.  First of all, they aren't disguising their racism, sexism, and anti-Muslimism.  The Trump policies are front on attacks.

So I think we should both listen and watch.

Finally, I'd say, limit your Twitter and Facebook and NPR or whatever news sources you use to a reasonable amount of time each day.  Get out into nature, keep up with your exercise, and spend good time with your family and friends.  That way you can keep some balance in life and not go crazy like our president.

Tuesday, June 13, 2017

Pre-emptive Executive Privilege: Examining Committee Questions And Sessions' Answers On Why He Can't Disclose What The President Said To Him In Private

This was going to be several quick reactions to a few points that struck me at the Sessions' hearing today in the Senate Select Committee on Intelligence.  As I started this post I used the excuse of no transcripts to be a little looser than normal and to just write from memory.  But then, like I usually do when I make comments like that, I checked to see if there were transcripts yet.  I found that Politico has "running transcripts" here.  So I decided I'd just focus on the two main reasons that Sessions invoked for not answering certain questions:
1.  Executive privilege - which he acknowledged the president hadn't invoked, but claimed he was going to give the chance to do so after the fact.  
2.  An unspecified rule at DOJ that doesn't allow him to disclose what was said in his private meetings with the president.  

It turns out that Politico's running transcripts weren't complete yet.  At my first went to the site they got to Sen. Heinrich's questions and ended.  I started writing, but then saw it ended at Sen. Heinrich's questions.   When I reloaded the page it got to Sen. Manchin's questions.  The third time it got to Sen. Cotton - who read out answers for Sessions rather than ask him questions. It took longer to get through the Sen. Harris questions which I needed because she pressed him pretty hard on what 'appropriate' means and then for specific citation and copies of the rule he was citing.    The transcripts seem  pretty good, though like most transcripts there are lots of little typos, so keep that in mind.  

Pre-emptive Executive Privilige  And "A Long-Standing Policy"

First was this discussion with Sen. Warner (D-Virginia).  Here, he says he's not claiming executive privilege because that's the president's power. I'm just giving you the relevant parts.  Sessions is claiming "the communications rule" which he later explains as 'there are privileges of communications.'
SESSIONS: Mr. Chairman, I'm not able to comment on conversations with high officials within the white house. That would be a violation of the communications rule that I have to --
WARNER: Just so I can understand, is the basis of that unwilling to answer based on executive privilege?
SESSIONS: It's a long standing policy. The department of justice not to comment on conversations that the attorney general had with the president of the united States for confidential reasons that rounded in the coequal branch.
WARNER: Just so I understand, is that mean you claim executive privilege?
SESSIONS: I'm not claiming executive privilege because that's the president's power and I have no power there.
WARNER: What about conversations with other Department of Justice or White House officials about potential pardons? Not the president, sir.
SESSIONS: Without in any way suggesting I had any conversations concerning pardons, totally apart from that, there are privileges of communication within the department of justice that we share all of us do. We have a right to have full and robust debate within the Department of Justice and encourage people to speak up and argue cases on different sides. Those arguments are not -- historically we have seen they shouldn't be revealed.

Part 2 in exchange with Sen. Heinrich (D-NM)

SEN. MARTIN HEINRICH: Attorney General Sessions, has the president ever expressed his frustration to you regarding your decision to recuse yourself?
SESSIONS: Senator Heinrich, I'm not able to share with this committee private communications --
HEINRICH: You're invoking executive privilege.
SESSIONS: I'm not able to invoke executive privilege. That's the president's prerogative.
HEINRICH: My understanding is that you took an oath, you raised your right hand here today and you said that you would solemnly tell the truth, the whole truth and nothing but the truth. And now you're not answering questions. You're impeding this investigation, so my understanding of the legal standard is that you either answer the question. That's the best outcome. You say this is classified, can't answer it here. I'll answer it in closed session. That's bucket number two.
Bucket number three is to say I'm invoking executive privilege. There is no appropriateness bucket. It is not a legal standard. Can you tell me why what are these long-standing DOJ rules that protect conversations made in the executive without invoking executive privilege?

SESSIONS: Senator, I'm protecting the president's constitutional right by not giving it away before he has a chance to review it.
HEINRICH: You can't have it both ways.
SESSIONS: And second I am telling the truth in answering your question and saying it's a long-standing policy of the department of justice to make sure that the president has full opportunity to decide these issues.
HEINRICH: Can you share those policies with us. Are they written down at the Department of Justice?
SESSIONS: I believe they are.
HEINRICH: This is the appropriateness legal standard for not answering congressional inquiries.
SESSIONS: That's my judgment that it would be inappropriate for me to answer and reveal private conversations with the president when he has not had a full opportunity to review the questions and to make a decision on whether or not to approve such an answer, one. There are also other privileges that could be invoked. One of the things deals with the investigation of the special counsel as other --
HEINRICH: We're not asking questions about that investigation. If I wanted to ask questions about that investigation, I'd ask those of Rod Rosenstein. I'm asking about your personal knowledge from this committee which has a constitutional obligation to get to the bottom of this. There are two investigations here. There is a special counsel investigation. There is also a congressional investigation, and you are obstructing that congressional delegation -- investigation by not answering these questions, and I think your silence, like the silence of Director Coats, like the silence of Admiral Rogers speaks volumes.
SESSIONS: I would say that I have consulted with senior career attorneys in the department.
HEINRICH: I suspect you have.
SESSIONS: And they believe this is consistent with my duties.

I'd note that Trump is reported as saying he wouldn't invoke executive privilege to block Comey's testimony.  But I can't find the same sort of claim about Sessions' testimony.
President Trump will not claim executive privilege to block former FBI Director James Comey from testifying before Congress later this week, the White House confirmed on Monday.
At the daily White House press briefing, Deputy Press Secretary Sarah Huckabee Sanders told reporters the president wants a “thorough investigation of facts,” in reference to Comey’s testimony before the Senate Intelligence Committee this Thursday.
But, if he really wants a 'thorough investigation of facts' one would think that not invoking executive privilege would apply to Sessions' appearance as well.

Then there's this exchange with Sen. King (I-Maine):
KING: I respect your willingness to be here. You testified a few minutes ago I'm not able to invoke executive privilege. That's up to the president. Has the president invoked executive privilege in the case of your testimony here today?
SESSIONS: He has not.
KING: Then what is the basis of your refusal to answer these questions?
SESSIONS: Senator king, the president has a constitutional --
KING: I understand that, but the president hasn't asserted that. You said you don't have the power to exert executive privilege so what is the legal basis for your refusal to answer the questions?
SESSIONS: I'm protecting the right of the president to assert it if he chooses and there may be other privileges that could apply in this circumstance.
KING: Well, I don't understand how you can have it both ways. The president can't not assert it, and you've testified that only the president can assert it and yet I just don't understand the legal basis for your refusal to answer.
SESSIONS: What we try to do, I think most cabinet officials, others that you questioned recently, officials before the committee, protect the president's right to do so. If it comes to a point where the issue is clear and there's a dispute about it, at some point the president will either assert the privilege or not or some other privilege would be asserted, but at this point I believe it's premature
KING: You're asserting a privilege.
SESSIONS: It would be premature for me to deny the president a full and intelligent choice about executive privilege.
That's not necessary at this point.
So at this point he's
1.  Saying he can't tell them what he said in private discussion with the president because he needs to reserve the president's right to invoke executive privilege
2.  And there may be other privileges (that he may not know about yet, but you can be sure his DOJ lawyers are now scouring the rules to find.)

Nobody brought up the fact that Trump waived executive privilege for Comey because he wanted to get the facts out as I mentioned just before this section on Sen. King's questions.

More King questions involving executive privilege:
KING: Did the question of the Russia investigation in the firing of James Comey come up?
SESSIONS: I cannot answer that because it was a communication by the president or if any such occurred it would be a communication that he has not waived.
KING: But he has not asserted the executive privilege.
SESSIONS: He's not exerted executive privilege.
He seems to have decided that this pre-emptive executive privilege is a better grounding than his assertion about a rule protecting his conversations with the president.  It also sounds like he did have such a conversation.  I say that because first he says I cannot answer because "it was a communication by the president."  Then he seems to catch himself and say "or if any such occurred."

Then Sen. Manchin (D- WV) asks if executive privilege would cover non-public hearings.  No, Sessions says, it's not waived in closed session.
MANCHIN: I know it's been asked of you things [I told you the transcripts had some problems], your executive privilege in protecting the president. I understand that, but also when we had Mr. Comey here, you know, he couldn't answer a lot of things in open session. He agreed to go into a closed session. Would you be able to go in a closed session? Would it change your answers to us or your ability to speak more frankly on some things we would want to know.
SESSIONS: Senator Manchin, I'm not sure. The executive privilege is not waived by going in camera or in closed session. It may be that one of the concerns is that when you have an investigation ongoing as the special counsel does, it's often very problematic to have persons, you know, not cooperating with that counsel in the conduct of the investigation, which way or may not be a factor in going into closed session.
He's using the executive privilege grounds here, not the "longstanding" DOJ rule.

Then Sen. Harris (D-CA) got to ask questions.  She was asking if he took any notes or had other written stuff that he could refresh his memory with and send them to the committee.  So now he's looking for rules that cover what documents (rather than oral communications with the president) can be disclosed.
HARRIS: Sir, will you provide the committee with the notes that you did maintain?
SESSIONS: As appropriate I will supply the committee with documents.
HARRIS: Can you please tell me what you mean when you say appropriate?
SESSIONS: I would have to consult with lawyers in the department who know the proper procedure before disclosing documents that are held within the Department of Justice. I'm not able to make that opinion today.
HARRIS: Sir, I'm sure you prepared for this hearing today and most of the questions that have been presented to you were predictable. So my question to you is did you then review with the lawyers of your department if you as the top lawyer are unaware what the law is regarding what you can share with us and what you cannot share with us, what is privileged and what is not privileged.
SESSIONS: We discussed the basic parameters of testimony. I frankly have not discussed documentary disclosure rules.
HARRIS: Will you make a commitment to this committee that you will share any written correspondence, be they your calendars, records, notes, e-mails or anything that has been reduced at any point in time in writing to this committee where legally you actually have an obligation to do so.
SESSIONS: I will commit to reviewing the rules of the department and as and when that issue is raised to respond appropriately.
But then after questions about other topics, Harris got back to the policy rule that kept Sessions citing that prevented him from answering questions:

HARRIS: And you referred to a long-standing DOJ policy. Can you tell us what policy it is you're talking about.
SESSIONS: Well, I think most cabinet people as the witnesses, you had before you earlier, those individuals declined to comment, because we're all about conversations with the president --
HARRIS: Sir, I'm just asking you about the DOJ policy you've referred to.
SESSIONS: A long-standing policy, a policy that goes beyond just the attorney general.
HARRIS: Is that policy in writing somewhere?
SESSIONS: I think so.
HARRIS: So did you not consult it before you came before this committee knowing we would ask you questions about that?
SESSIONS: Well, we talked about it. The policy is based --
HARRIS: Did you ask that it would be shown to you?
SESSIONS: The policy is based on the principle that the president --
HARRIS: Sir, I'm not asking about the principle. I'm asking when you would be asked these questions --
SESSION: Well, I'm unable to answer the quest--
HARRIS: and you would rely on that policy --
SEN. JOHN MCCAIN: Chairman --
HARRIS: Did you not ask your staff to show you the policy that would be the basis for you refusing to answer the majority --
MCCAIN: The witness should be allowed to answer the question. [I'd note he wasn't answering the question and she was redirecting him to the actual question.]
BURR: Senators will allow the chair to control the hearing. Senator Harris, let him answer.
HARRIS: Please do.
BURR: Thank you.
SESSIONS: We talked about it, and we talked about the real principle that's at stake is one that I have some appreciation for as far as having spent 15 years in the department of Justice, 12 as United States attorney, and that principle is that the Constitution provides the head of the Executive Branch certain privileges and that members -- one of them is confidentiality of communications, and it is improper for agents of any of the department -- any departments in the Executive Branch to waive that privilege without a clear approval of the President.
HARRIS: Mr. Chairman. I have asked --
SESSIONS: And that's the situation we're in.
HARRIS: I asked for a yes or no. Did you ask --
SESSIONS: The answer is yes, I consulted.
BURR: The senator's time has expired.
HARRIS: Apparently not.
So, he refused to answer her question whether he talked about the rules that governed his disclosure.  McCain jumped in to tell her to let him answer the question, though he was raising other issues and she was trying to refocus him.  She had limited time and was trying to get the answer before her time ran out.  Sessions was running out the clock.  And he did.  But she made it clear that he couldn't tell her what rule he was supposedly following.  Though now his department has time to find one.

It's interesting because to stall Sen. Harris, he spoke about principles, yet when he answered Sen. Collins  (R-Maine) on something else he said,  he doesn't discuss hypotheticals.  Principles are not hypotheticals, but the way you answer a hypothetical is to apply principles.
SESSIONS: Well, I would just say this, Senator Collins. I don't think it's appropriate to deal with those kind of hypotheticals. I have to deal in actual issues. I would respectfully not comment on that.
Harris was asking for actual rules, not principles or hypotheticals.

While he couldn't tell the committee the specific rule about confidential information that prevented his telling the committee about anything about his private conversations with the president, he was very well prepared when asked about the rules around recusal:
BURR: On March 2nd, 2017, you recused yourself in the investigation being conducted by the FBI and the Department of Justice. What are the specific reasons that you chose to recuse yourself?
SESSIONS: The specific reason, chairman, is a cfr code of federal regulations put out by the Department of Justice. Part of the Department of Justice rules and it says this. I will read from it. 28 cfr 45.2. Unless authorized, no employee shall participate in a criminal investigation or prosecution if he had a personal or political relationship with any person involved in the conduct of an investigation that goes on to say for political campaign and it says if you have a close identification with an elected official or candidate arising from service as a principal adviser, you should not participate in an investigation of that campaign. Many have suggested that my recusal is because I felt I was a subject of the investigation myself, I may have done something wrong. This is the reason I recused myself: I felt I was required to under the rules of the Department of Justice and as a leader of the Department of Justice, I should comply with the rules obviously. 
So, I think that is most if not all of the testimony on the grounds of his refusal to disclose what passed between him and the president - mainly, if I recall correctly - about what was said about the Comey firing.

Ive called what Sessions invoked 'pre-emptive executive' session, because I was thinking about how he was invoking it before the president did.  I guess we could also think about this as 'retroactive executive session' because he's giving the chance to invoke it after the hearing rather than before.

There are lots of other things to remark on about today's hearings, but this is already long enough - just focused on the reasons Sessions used to avoid answering some questions.

[UPDATE just after posting:  I found a tweet that called this "Schrödinger's Executive Privilege" and responders are adding other names for it.]