Jonathan P. Baird

For those who have followed the slow motion train wreck that is the Republican presidential race, there is a surreal quality to much of the policy discussion. Like gray clouds going by, noxious ideas contrary to the public interest are regularly floated. Nowhere is this better illustrated than in the routine denunciation of federal government regulation. It is and has been the mantra of all the Republican presidential candidates.

Typically, they will say regulations are strangling business and sucking the life blood from capitalism. The current leader in the Republican field, Donald Trump, promises to abolish the Environmental Protection Agency (EPA).

The other contender, Senator Ted Cruz, is equally hostile to regulation. Cruz is on record favoring repeal of all federal climate change regulations in the United States. He wants to gut the Clean Air Act. He also wants to eliminate the newly created Consumer Financial Protection Bureau, designed to prevent another subprime meltdown.

For Republicans, conservatives, and libertarians, federal government regulation is a manifestation of the hated nanny state. Their approach has been to pursue emasculation of federal regulation. At the same time, they have pushed states to be in charge of things like enforcing drinking water standards.

But then, along came the Flint Michigan water crisis. No recent event more directly shows the absurdity of the Republican position on rolling back federal government regulation. Flint powerfully shows the necessity for strong consumer protection everywhere in the country. Sadly, there could be multiple Flints out there.

An estimated 9000 children under age 6 in the Flint area have been exposed to toxic levels of lead from corrosive drinking water flowing through the city’s water pipes. There are also other heavy metals and carcinogens in that water. That is like poisoning a generation. I think it is fair to say that all others in Flint who were drinking, bathing, showering , cooking with, and using the water have not exactly been benefited. Flint residents are having many adverse health consequences.

Lead is a known neurotoxin. It can silently damage developing brains impairing cognitive function and it can also slow growth. It has caused hair loss, skin irritation and rashes, and vomiting. The skin rashes have been widespread with Flint residents’ skin burning and peeling off. Many people in Flint have shockingly had their hair falling out in clumps.

Research has shown that even exposure to low levels of lead can profoundly affect childrens’ functioning. Lead exposure has been linked to learning disabilities, limited attention span, problems with fine motor coordination and violent behavior. Lead is a cumulative poison.

Because Flint’s water has been infested with bacteria, the city has poured chlorine into the water. That created a cancerous chemical called trihalomethane. Flint also has experienced an outbreak of Legionnaires’ disease, caused by a water-borne bacteria, killing 10 people and sickening many.

Flint was already an impoverished community. About 57% of Flint’s 99,000 residents are black and 40% live in poverty. Since the beginning of the water crisis, Flint residents have been protesting the water but they were ignored by the powers-that-be. You don’t have to be a political genius to know this would never happen in an affluent white community.

So how did it happen that Flint’s water got so poisoned? An appointee of Republican governor Rick Snyder , the emergency manager, decided to unhook the people of Flint from their fresh water drinking source, Lake Huron, in 2013 and substitute water from the polluted Flint River. Flint had been using Lake Huron water for 50 years before the switch. The reason was simple: to save money.

Pumping water out of the Flint River was free. Flint had been in terrible financial straits and Snyder’s emergency manager was all about cutting costs. He believed he could save $5 million a year by changing the water supply. He ignored the fact that the Flint River was tainted by farm runoff, sewage, and decades of industrial effluent.

Almost immediately, Flint residents began complaining about discolored and foul-smelling water. The water was yellow and smelled like a sewer. They were not the only ones who complained. Shortly after Flint switched water sources, General Motors’ executives told Governor Snyder that the Flint River water was causing their car parts to corrode when being washed on the assembly line. Snyder spent $440,000 and rehooked GM back to the fresh water from Lake Huron. However, Governor Snyder ignored the repeated complaints from Flint’s residents. The lead and other heavy metal exposure continued for 17 months.

Flint water bills were among the highest in the nation even though the water was undrinkable, contaminated, and unusable. Many Flint residents received shut off notices for not being able to pay the water bill. They were being made to pay a premium price for poisoned water.

Federal law requires that water systems which are sent through lead pipes must contain an additive that seals the lead into the pipe and prevents it from leaching into the water. Michigan authorities knowingly chose not to do that because of the cost. The Flint River water literally corroded the entire infrastructure of Flint. Now Governor Snyder is sorry but being sorry hardly begins to address his responsibility. Flint needs to have its entire infrastructure of lead pipes removed and replaced. Time will tell but the harm inflicted is almost incalculable.

By devolving authority to the states, Congress has turned the EPA into a toothless tiger. There will, no doubt, be conservatives who try to flip blame for this fiasco primarily onto the EPA but the blame here clearly rests on Governor Snyder and state officials. That is the conclusion reached by the Flint Water Advisory Task Force, appointed by Governor Snyder, which just released its report on the water crisis. The report called the Flint water crisis “a story of government failure, intransigence, delay, inaction, and environmental injustice “.

Unfortunately, the problem of lead tainting drinking water is not isolated to Flint. On March 18, USA Today published an investigative report which showed that lead taints drinking water in hundreds of schools and daycare centers across the United States.

The USA Today report estimated that 20% of water systems nationally test above the EPA’s action level of 15 parts per billion. The federal government requires only about 10% of the nation’s schools and a tiny percent of daycares to be tested for lead.

Clean, safe water is a national problem. The real problem is that agencies like the EPA have been made too weak. That is why there is potential for many more Flint-like situations. By not regulating, we are failing the people of the Unites States and potentially exposing them to great harm. We should not be taking the purity of our tap water for granted. Many cities around the country rely on pre-World War I-era water delivery systems and treatment technology.

The Flint water crisis is a tale that recapitulates the history of consumer protection in the United States. That history is the story of specific legal and political responses to crises which generate great public outrage. You can go back 110 years to Upton Sinclair’s novel The Jungle with its expose of the horrible conditions in the meat packing industry. Outrage then lead to the creation of the Food and Drug Administration and regulation of food safety.

In the 1960’s, Ralph Nader published Unsafe at any Speed and he targeted the need for federal auto safety standards. His great work led to the creation of the National Highway Traffic Safety Administration which oversaw the creation of federal safety standards for automobiles and allowed for recall of unsafe vehicles. Nader’s efforts brought about a marked decrease in traffic fatalities per vehicle mile.

Since 1966, Nader assisted in the creation of eight major federal consumer protection laws, including the launching of federal regulatory agencies such as the Occupational Health and Safety Administration, the Environmental Protection Agency, and the Consumer Product Safety Administration. He also advocated for access to open government through the Freedom of Information Act of 1974.

I mention the history because the Flint water crisis needs to be seen in the context of the national history of consumer protection. American consumers need to be protected from unsafe products, fraud, deceptive advertising and unfair business practices.

Republican presidential candidates who want to eviscerate federal government regulation are fighting a war against consumer protection. They are in la-la land about the dark side of capitalism and our aging infrastructure.  Really, in the aftermath of the Great Recession and now Flint, consumer protection should be a widely debated topic. I would have to say though that for thirty years deregulating has been a much hotter topic than consumer protection. That needs to change.

Without consumer protection at the national level, Americans can expect to be fleeced, scammed, swindled, and victimized. There never seems to be a shortage of predatory lenders, con men, and other bad actors. For clean and safe water, we need consumer protection – not a war against it.

Maybe some readers saw this story which appeared in the Washington Post on March 9. A Jacksonville Florida woman, who was a gun rights enthusiast, was accidentally shot in the back by her 4 year old son. Before it happened, the lady had bragged on Facebook that her boy “gets jazzed up to target shoot”.

Somehow the child managed to get hold of the mother’s .45-caliber handgun that he found on the floor of her pickup truck. The child shot his mother in the back through the seat while she was driving. Fortunately, the mother lived through it.

Then there was the February shooting deaths of two 15 year old girls at a Glendale Arizona high school. The police believe it was a murder-suicide. A suicide note was found. Apparently the shooter approached another 15 year old student on the day before the shooting and asked him to lend her the gun for protection. The male student gave her the gun which he obtained from his house without his parents’ knowledge or permission.

While it remains unclear, the two sophomore girls were in a romantic relationship. The girl who was the shooter had just been informed that the other girl did not love her romantically any more. The two girls both had single gunshot wounds and a weapon was found near the bodies.

I offer these stories because, unfortunately, they are not that unusual. Unintentional, accidental shootings and especially suicides comprise a significant chunk of gun deaths that happen in America every year. These deaths do not fit neatly into the narrative spun by the pro-gun lobby.

In that narrative, the good law-abiding citizens need guns to protect themselves from the bad criminals. Really the world is divided up into these two categories of people. This dichotomy leads the pro-gun lobby to argue for virtually no restrictions on the law-abiding citizens and for harsher penalties for the criminals.

The pro-gun lobby routinely argues that all gun control laws are futile because criminals are indifferent to the law. They are so sociopathic that denying access to guns will not matter because the criminals will find another way to kill if that is their goal.

In an era with mass shootings and terrorism so highlighted in the media, the narrative of the pro-gun lobby gets legs. Fear is the engine.

The problem as I see it though is that there are a huge number of shooting situations that are not fundamentally about good guys and bad guys. The world is so much more complex and multi-dimensional than a dualistic model.

The child who accidentally shoots his mother or the child who accidentally shoots another child is a scenario played out over and over. Is the child who accidentally shoots his mother a bad guy? I think not.

The public health researcher David Hemenway writes that between 1965 and 2000, more than 60,000 Americans died from unintentional firearm shootings. He writes that those 60,000 deaths are more Americans than were killed in our wars fought during the same time.

Hemenway estimates there are two to three accidental firearm deaths each day in the United States and he says that it is just the tip of the iceberg. He writes that more than 30 people are shot unintentionally everyday but do not die. Young people are the primary victims.

As for suicides, Hemenway writes that 50 people a day kill themselves with guns in the United States. In 2010 in the U.S. 19,392 people committed suicide with guns compared to 11,078 who were killed by others with guns. So gun suicides actually outnumber gun homicides almost two to one.

Hemenway says that more people kill themselves with guns than by all other methods combined including hanging, poisoning or overdose, jumping or cutting. For people who want to do themselves in, guns are the most lethal means. About 85% of suicide attempts with a firearm end in death. That is significantly higher than the rate with other suicide methods. Less than 3% of drug overdoses result in death.

Is the distraught lover or the despairing young person caught in a personally overwhelming crisis a bad person? Again I would say no. Life can deal unbearable adversities. I have always liked this Ernest Hemingway quote:

“The world breaks everyone, and afterward, some are strong at the broken places.”

Contrary to the myth that suicides are typically long-planned deeds, much empirical evidence suggests that many people in crisis act impulsively. In a moment of heightened vulnerability, the psychologically wounded person can act irretrievably.

There was an interesting 2001 study in Houston of people ages 13 to 34 who had survived a near-lethal suicide attempt. The survey asked how much time had passed between when they decided to take their lives and when they made the attempt. 23% said less than 5 minutes; 48% said less than 20 minutes; 70% said less than one hour; and 86% said less than 8 hours.

A Harvard School of Public Health study says that 9 out of 10 people who attempt suicide and survive do not go on to die by suicide later. Interventions, awareness, and denying access to lethal weapons at key moments would likely save many lives.

I know now is the time when pro-gun folks would expect me to offer the usual anti-gun remedies. There is no doubt that the easy availability of guns contributes to both unintentional shootings and suicides. Still, I would like to go in a different direction.

Not every gun reform is about taking away precious guns which seem to be more loved than life itself. Many reforms do not implicate the Second Amendment. I would suggest that people on both sides of the polarized debate could come together in ways they have not in the past.

For example, states could adopt stronger laws to prevent children from accessing unsecured guns. On the positive, New Hampshire already has a chapter in its criminal code about negligent storage of firearms. Many states lack this. Congress could also increase funding for public health research on children injured and killed in unintentional shootings.

There is a sad lack of research on guns and suicide. Just like public health researchers studied cigarettes and lung cancer, we could at least try and obtain accurate data about guns and suicide.

The lack of such public health data is not an accident. Since 1996, the U.S. Center for Disease Control and Prevention has been prohibited from doing firearm research. Firearms are the last consumer product manufactured in the United States that is not subject to federal health and safety regulation.

Getting good data on gun-related topics should not be that controversial. It is hard to imagine that anyone would oppose learning more about what mental health treatment would be most effective against suicide as well as what practical steps could reduce the incidence of suicide by gun. It should be clear that what we have done to date has not resulted in decline in unintentional shootings or suicides. We need strong and effective fact-based public health policies that significantly reduce gun death and injury.

It is not anti-gun to want to talk about public health problems related to guns. Public health is about living with guns – not dying from them.

Once again, the detention facility at Guantanamo has reemerged as a partisan issue. President Obama wants to fulfill his 2008 campaign pledge and close Guantanamo. Republicans remain opposed and desire a continuation of the prison camp. They do not want those held at Guantanamo transferred to maximum security prisons in the United States.

The opponents of Guantanamo closure raise the spectre of Isis or Al Qaeda attacks on supermax prisons in the United States where the terrorist prisoners might be held.

The problem with this narrative is how much is left out. Focusing on Guantanamo as a Democratic versus Republican debate misses the historical context of the place as well as deeper related issues.

A deeper perspective needs to look at how the United States gained possession of territory that is part of another country. The story of how Guantanamo became an American possession deserves attention.

It is a story that is a throwback to an earlier era of great power colonialism and gunboat diplomacy. In that era, great powers competed to carve up the Third World and its resources, including the Caribbean and Latin America. Going back to the Monroe Doctrine, the United States, like all the other major colonial empires, had an interest in promoting and protecting its business interests overseas. Part of the effort was the establishment of military bases to advance the American empire.

Guantanamo, the oldest existing American naval base outside the United States, is an expression of our own imperialism. While I expect it would be politically unpopular to say so, a just result would be returning Guantanamo to Cuba. Guantanamo is, quite obviously, part of Cuba. As relations warm between Cuba and the United States, I fully expect some future American administration will return the base. Guantanamo is an unneeded imperialist relic.

The United States gained control of Guantanamo in 1898 when Cubans rose up against the Spanish who then controlled Cuba. Siding with the Cubans, the United States, after vanquishing the Spanish, forced Cuba to accept the Platt Amendment into its constitution. The Platt Amendment granted the United States the right to intervene freely in Cuban affairs, including access to naval bases. The marines would land in Cuba in 1906, 1912, 1917 and 1920 to exercise those rights.

The Cubans were adamantly opposed to the Platt Amendment. For those looking to understand some of the historical reasons for the Cuban revolution, I would look at how the Platt Amendment humiliated Cuba. The Cubans rightly feared the amendment would turn them into a vassal people.

The United States essentially delivered an ultimatum to the Cubans: incorporate the Platt Amendment into your constitution or we will not withdraw our troops on the island. In spite of this affront to their sovereignty, the Cubans reluctantly bowed to the greater power in 1901.

In 1903, the United States made a further agreement with Cuba which gave the U.S. 45 square miles of land and water for the naval base that was to become Guantanamo. Under the deal, the United States was to pay Cuba rent of $2000 a year. There was no time limit specified.

In 1934, President Franklin Roosevelt made the lease permanent. Guantanamo was leased for both coaling and naval purposes. The United States later upped the amount it paid for the lease to $4085 a month.

To protest the base, the Cuban government has refused to cash these less-than-munificent lease checks sent by the United States government as payment for Guantanamo.

Before the War on Terror, Guantanamo was not exactly a center of attention. In the early 1990’s, President George H.W. Bush decided to use Guantanamo Bay as a place to shelter Haitian refugees but really Guantanamo did not serve much purpose. It does have a deep water port and a decent airstrip but it is less important in a world of nuclear submarines, aircraft carriers and drones.

The War on Terror did, however, give Guantanamo a new purpose. After the prison was built in 2002, it became what Amnesty International has called “the gulag of our time”. It became a sort of behavioral science lab to test out psychological torture techniques on the international detainees imprisoned there.

Guantanamo transformed into a legal black hole. Being outside the sovereign territory of the U.S., the George W. Bush Administration believed that fact of geography would remove all legal protections of both American and international law. The Bush-Cheney-Rumsfeld team played out some dark fantasy of omnipotence. For many detainees, the terms “innocent” and “guilty” became passe. They reside in a Kafkaesque hell. Those who think I am exaggerating might want to check out Guantanamo Diary by Mohamedou Ould Slahi.

I do not see the current debate as fundamentally about where to place the terrorist prisoners: Guantanamo or the U.S.. That may be an immediate practical problem but for lawyers and civil libertarians, the deeper question is how we end indefinite detention without trial. As the international lawyer Philippe Sands has written, such practices violate the most fundamental principle of the English common law and all civilized legal systems. The right to habeas corpus is the cornerstone of the rule of law. Those who are held deserve, at minimum, a trial and due process.

Demagogues will scream and push the fear factor. They will assert we would possibly be releasing people they have characterized as “the worst of the worst”. They will point to examples of released terrorists who returned to the battlefield. There are such cases. But the truth is so much more nuanced.

I am reminded of the famous quote from John Adams:

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crime are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, whether I do good or whether I do evil is immaterial, for innocence itself is no protection, and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

While there once were as many as 700 people held at Guantanamo, there are now 91. A military task force of 2000 troops now watches this relatively small group. Considering just the numbers, closing Guantanamo hardly seems like it should be a big deal. We already hold a number of convicted terrorists in the United States. Our judicial and prison system is more than competent to address the small number of remaining Guantanamo prisoners, whatever the result of judicial process.

It is estimated that 40 to 50 of the remaining prisoners are hardened Al Qaeda members. Some cannot be charged because there is insufficient evidence against them or what there is has been tainted by their treatment in custody. These are the most problematic prisoners.

In the case of 34 detainees, mostly from Yemen, it has already been determined that they can be released without a security risk. However, it has been determined they cannot be returned to Yemen. A place must be found for these detainees.

One wild card that needs to be mentioned: according to a study by Seton Hall Law School, 86% of the detainees were arrested by non-American forces who were, essentially, bounty hunters. These detainees were arrested by Afghan and Pakistani mercenaries eager for the $5000 bounty on each capture. Leaflets dropped across Afghanistan had invited people to inform intelligence services to get the big prize. It is impossible to know whether some of the detainees are simply innocent victims of greedy bounty hunters.

A rational look at the Guantanamo detainees presents a vastly different view than the hysterical fantasies spun by those opposed to Guantanamo closure. In saying that, I do not minimize the threat posed by isis or Al Qaeda. It is just that a close look at Guantanamo defies what might be expected.

I would suggest that the abuse of detainees at Guantanamo and elsewhere has tremendously hurt America’s cause in the War on Terror. It is contrary to the rule of law and America’s best values. Somehow the cost of that abuse has not registered with the American public. The abuse endangers American service members and it is a useful recruiting tool for our adversaries.

The wise and late historian Chalmers Johnson once wrote a book entitled The Sorrows of Empire. Guantanamo is one of those sorrows.