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Presidential Candidates and Foreign Policy – posted 11/15/2015 and published in the Concord Monitor on 11/20/2015
This piece appeared on the Concord Monitor on 11/20/2015 under the title “Foreign Disasters”.
As the various presidential candidates make their case for why each would make the best president, I have been struck by how little they have had to say about American foreign policy. This is partly understandable because domestic policy is a primary concern for voters. They want to know what the candidates will do about jobs, the economy, the environment, education and health care.
Still, I find the absence of any original discussion on foreign policy a potentially worrisome sign. Mention of the word “terrorism” provokes knee-jerk, bellicose reaction. Instead of critical analysis, there is macho posturing. Attacks like those that just happened in Paris lead to anger – not thought.
Candidates simply try to look tough. The image they want to project is that, if given the opportunity, they will face down and take down any perceived opponent of American interests, anywhere. American interests are defined to include the whole world.
Looking broadly at the last 50 years of American foreign policy, I think there is a pattern of non-recognition of mistakes made leading to repetition of the same or similar mistakes. I am reminded of the famous Albert Einstein quote: “Insanity: doing the same thing over and over again and expecting different results.”
Wars, as in Iraq and Vietnam, were fought for bad or stupid reasons. Justifications offered were pitiful. At the same time, money gets heaped on the Pentagon and the military-industrial complex hugely expands, including a massive growth of private contractors. Out of these wars, thousands of American lives were ended or ruined. Soldiers return home damaged, disturbed, and traumatized.
There is no accounting for the damage done and no assessment of whether the wars were worth it. We blunder forward into the next war and the next. In her excellent book, They Were Soldiers, Ann Jones looks at the catastrophic damage done to our soldiers by the wars in Iraq and Afghanistan. Politicians who want to put boots on the ground in Iraq or Syria now are glossing over the heavy cost already paid. They are too cavalier about the lives of other peoples’ children.
It is hard not to think that all the talk about honoring our veterans is lip service. After the experience of the last 14 years, the idea of sending more to die in Iraq or Syria is a pointless waste. It was delusional and arrogant to think we were going to turn the Middle East around. So many veterans have returned and are still returning with troubles that will last a lifetime. Their care here and their future prospects are often highly problematic and that is a nice way to put it. So many veterans fall between the cracks of the system and they are simply forgotten.
I don’t think either the war in Iraq or the war in Vietnam were worth it. Both wars were sold on the basis of lies. In the case of Iraq it was lies about the weapons of mass destruction. In Vietnam, it was the phony domino theory. However with the exception of Bernie Sanders, I don’t see candidates in either party drawing these conclusions. Both parties remain wedded to the war machine and have an inadequate critique of our excessive militarism.
The history I have mentioned suggests America needs a more modest foreign policy and an appreciation of limits. It also suggests that diplomacy has been underutilized. One thing that was striking about President Obama’s deal with Iran was how long it has been since we have seen a positive example of diplomacy. War has been a first resort, not a last resort, and the consequences have harmed America.
I would suggest that there are other ways to fight violent jihadi extremists than sending troops to the Middle East. The brutal terrorist acts of the Islamic State and Al Qaeda need to be interdicted and prevented. They need to be ideologically undermined and they need to be pursued criminally. We do need to look closely and better understand why so many young people feel an affinity for such a despicable organization as the Islamic State. We need to win the war of ideas so that young people see the Islamic State for what it is: anti-human, murderous, totalitarian, and anti-modern. Since the Islamic State is an international entity, we need to cooperate with allies to figure the best ways to stop them. The project of preventing sponsors of radical jihadism from extending their influence should bring many nations together.
We should have learned by now that we cannot be the world’s policeman although we act like we are. Having the over 800 military bases we have around the world can lead to a wrong-headed over-reliance on military options. Realistically, America does not have the money or troops for interventions everywhere. Also we need to acknowledge that more often than not over the last 50 years, our interventions have done far more harm than good.
I would mention two historians, Andrew Bacevich and the late Chalmers Johnson, who argued the points I am making. Both have argued for a narrower conception of American interest. Rather than a strategy of open-ended global war where we could be fighting in almost any country, Bacevich and Johnson argued against that type of grandiosity. Bacevich particularly cites the George W. Bush presidency. Bush set out to transform the Islamic world. From the perspective of over a decade later, we can see what a costly misjudgment that war turned out to be.
Part of the pattern is that we destroy and then we destabilize. We take down dictators but then there is no plan for what comes next. Witness Iraq and Libya. Into the vacuum steps the Islamic State. We are the unwitting architects of the Islamic State. It must be emphasized that without our intervention, there would have been no Islamic State.
Even worse, we are also the unwitting provider of arms for the Islamic State. When the Iraqi Army has fled from battles, as it seems to do frequently, it has left behind huge caches of weapons and vehicles which were then expropriated. An example is when the Iraqi Army abandoned its second largest city, Mosul, in June 2014, ISIS acquired 2300 American-made humvees that were left behind. We should not be arming our opponents.
Critics who question these failed policies are tagged as isolationists and they are dismissed. I would suggest that the purveyors of the conventional wisdom which led us to the Iraq quagmire are the ones who should be dismissed. Their track record should be obvious to all.
There are so many questions that need to be asked that are not getting asked. Here are five:
- How do we maintain an alive and vital Fourth Amendment protection against search and seizure in an era of demonstrated mass surveillance overreach?
- Are drone assassinations authorized by the president legal?
- Should we have a secret court, the Foreign Intelligence Surveillance Court, known as the FISA court, making secret law based on secret proceedings with no adversarial process, when we know that court sides with the government 99% of the time?
- Is the practice of torture, black sites, and rendition consistent with American values?
- How much does the rapid growth of the military-industrial-surveillance complex since 9/11, which is invested in war as a profit-making business, drive our foreign policy?
I also think the candidates should be seriously addressing climate change and abolition of nuclear weapons. It is pretty late in the day to be bringing this up, especially with climate change. Precious little has been said about either in the Republican and Democratic debates.
Bacevich writes that there is a long-standing American foreign policy tradition that harkens back to George Washington and John Quincy Adams. In his farewell address Washington warned against foreign entanglements. Adams said, ‘The United States does not go abroad, in search of monsters to destroy”. Bacevich says:
“The proper aim of American statecraft… is not to redeem humankind or to prescribe some specific world order, nor to police the planet by force of arms. Its purpose is to permit Americans to avail themselves of the right to self-determination as they seek to create at home a “more perfect union”.”
We have been led astray by presidents who saw their mission as combating evil and remaking the world. I would suggest that defending the United States and its vital interests should be our goal. We need a less grandiose and more clear-headed assessment of what those vital interests are. In the presidential campaign, I have not heard that debate.
Coming to terms with the Indonesian genocide – posted 11/1/2015 and published in the Concord Monitor on 11/8/2015
This piece appeared in the Concord Monitor on 11/8/2015 under the title “Hidden Genocide”.
If asked where genocide occurred in the 20th century, I expect most politically informed people would answer Europe under the Nazis, Cambodia with the Khmer Rouge, and possibly Rwanda. Some might mention the Armenian genocide or the mass murders in the Soviet Union under Stalin. I doubt people would think of the genocide in Indonesia. It is the hidden genocide.
This year marks the 50th anniversary of the Indonesian genocide. It is estimated that 500,000 to one million people died in Indonesia in 1965-1966 but the story has been buried, especially in the United States. How is it possible that a genocide could be hidden or erased from consciousness at this late date?
I think the main reason is that what happened in Indonesia in 1965 was perceived as great news and a political victory in the United States. The defeat of communists submerged the fact of their mass murder. It was the time of the Cold War and the American media did not look too closely. Genocide against a hated political movement was not seen the same as genocide against an ethnic, religious, or racial group. The murders were minimized and the victims were dehumanized.
The United Nations defines genocide as extermination of people on a large scale because of ethnic, religious, or racial reasons. It also considers the extermination of an entire political group or political movement genocide.
The 1965 story needs to be told. In the aftermath of an uprising called the September 30 Movement, General Suharto, a powerful figure in the Indonesian military, and his allies in the Indonesian Army seized control of the country. A bloodbath ensued. The Indonesian military, youth paramilitaries, and gangster-led death squads butchered massive numbers of people they perceived as opposed to a military dictatorship. The primary target group was the Indonesian Communist Party and its front organizations. However, anyone who could be accused of being an opponent of the military was swept up. That included union members, landless farmers, intellectuals, leftist artists, teachers, women activists, and the ethnic Chinese.
For those who may not know, Indonesia is a huge country. It is an archipelago in southeast Asia, comprising over 17,500 islands. It is the fourth biggest country in the world by population with over 255 million people. Up until the time of the genocide, Indonesia was led by President Sukarno, a charismatic leader who had balanced political rivals on the right and left. Sukarno was Indonesia’s first President. He had led the fight against Dutch colonialism and he was a leader of the non-aligned movement in the Third World.
Sukarno had allied with the Indonesian Communist Party which was a powerful force in the impoverished country. The Indonesian Communist Party was the largest communist party in the world outside the communist bloc countries. It had an estimated 3 million members with as many as 17 million supporters if you count front organizations. The Indonesian communists had gained popularity by leading the fight for land reform and by fighting for better conditions for the working class. At the same time, the Indonesian Army was strongly anti-communist with close ties to the United States.
Facts about the September 30 movement events that preceded the genocide remain disputed. Six of Indonesia’s most senior army generals were kidnapped and killed by a group of junior officers. While it is not clear who was behind the September 30 movement, it is clear that General Suharto used that movement as a pretext to exterminate all his perceived enemies. He then stayed in power as dictatorial leader for over 30 more years.
The genocidal killings were not of the Nazi depersonalized industrial style. There were no gas chambers. Suspects were beaten, tortured, shot, dismembered alive, garroted and beheaded in an up close and personal fashion. In his 2013 documentary, the Act of Killing, the director Joshua Oppenheimer interviews former death squad killers about how they killed. It is a hard but fascinating movie to watch. The killers remain proud of their mass murders. Hatred of the communists was whipped up on the basis that they were evil atheists, amoral and hypersexual. In the documentary, the killers described how the murder methods they saw in gangster movies inspired how they killed.
Many of the murdered victims were taken to rivers and and their bodies were dumped, left to drift out to sea. So many bodies were tossed into rivers that Indonesians stopped eating fish out of fear that the fish were consuming human flesh. Family members were never told what happened to their relatives. This was similar to what happened in Latin America back in the 1970’s when right wing militaries disappeared their opponents.
There are thousands of unopened mass graves scattered across the Indonesian archipelago. Along with the killing, hundreds of thousands were detained in prison for many years with no trial. The property and possessions of those killed were often confiscated by the killers.
In 1966, Bertrand Russell wrote “in four months, five times as many people died in Indonesia as in Vietnam in 12 years.”
A little known aspect of the genocide is the role of the United States. Much still remains unknown. Human Rights Watch has pushed unsuccessfully for years to have related U.S. government documents declassified. The reporter Kathy Kadane has documented that the United States played a significant role in the genocide by supplying the names of thousands of leftist activists, both communist and non-communist, to the Indonesian army. The lists of Indonesian Communist party leaders included over 5000 names from top echelons to village cadre. If true, this alone makes our government defacto accomplice to a mass murder.
In Kadane’s articles which appeared in major newspapers like the Boston Globe and the Washington Post in 1990, she quoted Robert J. Martens, a former member of the U.S. Embassy’s political section who was then a consultant to the State Department. Martens said,
“It really was a big help to the army. They probably killed a lot of people, and I probably have a lot of blood on my hands, but that’s not all bad. There’s a time when you have to strike hard at a decisive moment.”
According to Kadane, prior to the genocide, Martens had headed an embassy group of State Department and CIA officers that spent two years compiling the death lists that were delivered to the Indonesian army.
The United States also provided key logistical support to the Indonesian military to assist the slaughter, including jeeps and state-of-the-art radios which allowed U.S. operatives to listen in on what the Indonesian military was doing. The special radio system allowed for coordinated killing so the leadership in Jakarta could know what was happening on the islands. The radios filled a gap in army communications.
What is unique about the Indonesian genocide is that there has never been any public reckoning. Honest accounting of this history is still taboo in Indonesia. Many of the perpetrators are still in positions of power and under Indonesia law, they are immune from prosecution. Indonesia’s President, Joko Widodo, the first leader after General Suharto to have no ties to military or political elites, has refused to issue an apology to the survivors and victims’ families.
In Oppenheimer’s documentary, one of the death squad leaders says it is the victors who decide what is a war crime. That appears to be the case in Indonesia. The perpetrators are still proud of the mass murders. To date there is no Truth and Reconciliation Commission doing an investigation into what happened in 1965-1966.
The picture Oppenheimer presents of Indonesia is scary. Gangsters and paramilitary thugs operate freely, shaking down legitimate business people, shop owners and others. Corruption and graft appear to be a way of life. The population remains cowed, existing in a state of fear and silence. Those who had been associated with any type of progressive politics remain severely stigmatized. Oppenheimer describes a veritable shadow state where gangsters, paramilitaries, and the army are all beyond the law.
I would mention that Oppenheimer made an important companion documentary, The Look of Silence, released this year, that focuses more on the victims of the genocide. For those who want to learn more about these events, Oppenheimer’s documentaries are a good place to begin. Oppenheimer is no longer welcome in Indonesia.
There are current efforts toward accountability. Last December, Senator Tom Udall, Democrat of New Mexico, introduced a “Sense of the Senate Resolution” condemning the 1965-1966 atrocities in Indonesia and calling for declassification of U.S. government files about the mass killings. The resolution also encourages the Indonesian government to acknowledge the massacres and to establish a truth commission.
On November 10-13, the International People’s Tribunal on 1965 Crimes against Humanity in Indonesia will meet at the Hague. This tribunal of experts in human rights law and Asian history was established to examine the mass killings and other crimes against humanity in Indonesia. The Tribunal is an initiative of the International People’s Tribunal 1965 Foundation which was set up in 2013 by a group of victims in exile and in Indonesia, as well as human rights activists, intellectuals, artists, journalists and academics. The Tribunal follows in the tradition of the Russell Tribunal which investigated war crimes in Vietnam.
The Tribunal has charged Indonesia with the commission of crimes against humanity and with violations of international law. The prosecution case is based on extensive inquiry carried out by a large group of researchers. Material brought forward will include documentary evidence, witness testimonies, victim impact statements, and audio and visual materials. Among the crimes alleged are murder, enslavement, torture, sexual violence, unjust imprisonment, enforced disappearance and persecution though propaganda.
The judges of the Tribunal will examine the evidence presented by the prosecution, develop an accurate historical record and apply principles of international customary law. public international law and Indonesian law to the facts found. They plan to read their verdict in Geneva next year.
The Tribunal is not a criminal court. It has no power of enforcement but it hopes to shatter and puncture the culture of impunity around these events.
The website of the Tribunal is http://www.1965tribunal.org. Since this Tribunal has received virtually no publicity in the United States, I would encourage readers to read the indictment, which is readily accessible on the website. While much of the focus is on Indonesia, the Unites States, the United Kingdom , and Australia are also charged with knowingly aiding and assisting the State of Indonesia with commission of crimes against humanity and serious breaches of international law.
The historian Gabriel Kolko accurately summarized these events. He wrote:
“The “final solution” to the Communist problem in Indonesia was certainly one of the most barbaric acts of inhumanity in a century that has seen a great deal of it; it surely ranks as a war crime of the same type as those the Nazis perpetrated. No single American action in the period after 1945 was as bloodthirsty as its role in Indonesia, for it tried to initiate the massacre, and it did everything in its power to encourage Suharto, including equipping his killers, to see the physical liquidation of the Indonesian Communist Party was carried through to its culmination. Not a single one of its officials in Washington or Jakarta questioned the policy on either ethical or political grounds…”
History is about what we remember from the past. Some events survive in memory and some are gone into a black hole. I do think how we disappeared a genocide in which our nation is implicated deserves further consideration.
On the sixth anniversary of my sister Lisa’s death – posted 10/20/2015
I wanted to acknowledge this date, remember Lise, and offer a poem. Lise loved the poetry of Muriel Rukeyser. One cherished memory I have is going with Lise to watch Muriel Rukeyser read her poems. I particularly remember her reading Ballad of Orange and Grape. I think Lise would have liked this poem.
Poem by Muriel Rukeyser
I lived in the first century of world wars.
Most mornings I would be more or less insane,
The newspapers would arrive with their careless stories,
The news would pour out of various devices
Interrupted by attempts to sell products to the unseen.
I would call my friends on other devices;
They would be more or less mad for similar reasons.
Slowly I would get to pen and paper,
Make my poems for others unseen and unborn.
In the day I would be reminded of those men and women
Brave, setting up signals across vast distances,
Considering a nameless way of living, of almost unimagined
values.
As the lights darkened, as the lights of night brightened,
We would try to imagine them, try to find each other.
To construct peace, to make love, to reconcile
Waking with sleeping, ourselves with each other,
Ourselves with ourselves. We would try by any means
To reach the limits of ourselves, to reach beyond ourselves, To let go the means, to wake.
I lived in the first century of these wars.
Congressman Don Edwards: An American Original – posted 10/17/2015
Former Congressman Don Edwards of California passed away on October 1. The event did not get much public attention although it should have. Don Edwards was a principled and effective advocate for social justice, equal rights, and environmental protection. That is so rare in a Congressman, especially now. In our era, the most forceful congressmen don’t even believe in government. They want to shut down the government for stupid reasons.
You almost never attach the term “heroic” to a Congressman but for Don Edwards it fit. He served in Congress from 1963 to 1995. During that time, he was a fierce protector of civil rights and liberties. He also played a key role in shepherding every major civil rights bill that passed through Congress.
Even more interesting than his political accomplishments was his personal and political evolution. He switched parties in the 60’s. He went from being a Republican to becoming a progressive Democrat. In his earlier political life, he had been, admittedly, a liberal Republican, a breed that is now as extinct as the dodo bird. I think it is interesting when a political person evolves. From my experience, that type of change is unusual. It seems to me that many more people stick to the politics of their birth family.
Born in San Jose into a Republican family, he went to Stanford University and then Stanford Law School. He was a top golfer. In 1934, he reached the finals of the California State Amateur Championship. Many years later, in 1950, he teamed up with professional golfer Marty Furgol to win the Pro-Am title at the Bing Crosby National Pro-Am held at Pebble Beach.
After law school, Edwards spent two years as a special agent with the FBI. During World War II, he served as an officer in the Navy, working in naval intelligence. He then followed his grandfather and father into the family land title business.
In the 1950’s, Edwards joined the California Young Republicans and he was elected president of that organization. By the time he was first elected to the House in 1962, he had changed parties and become a Democrat. Even then, he was disillusioned with how conservative the Republican Party had become.
Early in his legislative career, he played a critical role in convincing Congress to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965. When he retired from Congress in 1995 he remarked about that time:
“It’s hard for some of you to remember…When I arrived [in Congress], black people couldn’t vote in large parts of the country, and if they did, they’d get hanged.”
About that time, Edwards also said:
“When I came here, the 11 states of the Old South practiced apartheid. There was a House Un-American Activities Committee. And the FBI was out of control threatening individual liberties.”
Edwards visited Mississippi and Alabama in 1964 where his son Leonard was working to register African-American voters. That experience had a significant effect on him. Edwards wrote Dr. King a letter in 1965 saying that his trip to Selma, Alabama showed him “the absolute necessity for immediate passage ” of the Civil Rights Act. He told King “we stand ready to support your efforts here in Washington”.
Edwards became chairman of the House Judiciary Committee’s subcommittee on Civil and Constitutional Rights. From that powerful position, he was the floor manager for many bills affecting minority rights and women’s rights. He successfully fought to extend the Voting Rights Act in 1982. At that time the Reagan Administration wanted to end the process by which states with past histories of discrimination had to have new election law “pre-cleared” by the Justice Department before they became effective. This is the same law the U.S. Supreme Court struck down in 2013 in the case of Shelby County v. Holder.
At the time, back in 1982, Edwards was quoted, saying:
“If you can’t vote, you are not a real citizen.”
Later in the 1980’s, he was arrested while protesting South African apartheid. The struggle against racism always remained close to Edwards’ heart.
Edwards had turned against the war in Vietnam and he had been the first House member to back Senator Eugene J. McCarthy’s anti-war campaign for President. That stand was controversial. It resulted in his only close re-election battle of his sixteen terms in Congress but he still won.
There are many fights in which Don Edwards engaged that deserve mention.
- he pushed the Equal Rights Amendment through the House in 1972 only to see it fall three states short of approval
- he was an effective member of the Judiciary Committee during the Watergate-era and he voted in favor of all articles of impeachment against Richard Nixon
- he played a key role in eliminating the House Un-American Activities Committee in 1975
- in 1986, he prominently opposed the nomination of William Rehnquist to become Chief Justice of the U.S. Supreme Court, citing Rehnquist’s past dismal record on the fight against racism. To quote Edwards about Rehnquist: “He is a relic of a shameful era in our history when the law was perverted into an instrument for segregating society. He should not be confirmed to our highest judicial office.”
- he played a big role in passing the Americans with Disabilities Act of 1990 as well as the Fair Housing Amendments Act
- he helped push through the Civil Rights Act of 1991 which expanded legal recourse for job discrimination
Edwards was an ardent environmentalist. He authored the bill that established the San Francisco Bay National Wildlife Refuge. That was the first urban national wildlife refuge in the United States. The bill preserved a wide swath of South Bay wetlands for fish, wildlife and public recreation. The refuge covered 30,000 acres and it provides a resting spot for migratory birds. There are also other wildlife preserves on the Central Coast of California that bear Edwards’ name.
Representative Zoe Lofgren, a former Edwards’ staffer and his successor in Congress, tells a story that captures Edwards’ reputation for standing up for the underdog. Congress used to routinely fire all the mostly African-American food service workers on Capitol Hill as a budget fix. The workers would appeal to Edwards for help even though he was not on the congressional committee that handled that issue. The workers knew who their friend would be.
While he remained a savvy legislator, Edwards was very respected by all for his gentlemanliness and his civility. He had strong relationships with legislators from both parties. When he retired, the late Republican Congressman Henry Hyde had this to say:
“He is relentlessly liberal but that’s not a vice. The battle for the fullest expression of civil liberties is losing a general, not a foot soldier.”
Even though Edwards had been an FBI agent, he had a contentious relationship with the former FBI Director J. Edgar Hoover. As one of his first acts in Congress, he had forced through an audit of the FBI that challenged the agency’s bookkeeping. That had not endeared him to Hoover. The Washington Post reported a funny story about the Hoover-Edwards relationship. After several years in Congress, Edwards publicly considered stepping down and not running again. That caught Hoover’s attention and he wrote a memo about Edwards’ impending departure from Congress. On the memo was a handwritten comment: “Good riddance.” it was signed with the FBI Director’s initial “H”. Somehow that document made its way to Edwards. Edwards kept a framed copy of that Hoover document in his office.
When Edwards retired at age 80, he was quoted on what he wanted at that point.
“We haven’t been able to have a dog for the last 25 years.”
Don Edwards was an American original. He served California and the nation with integrity and distinction. He set a very high standard as a legislator.
Criminalizing Poverty in New Hampshire – posted 10/4/2015 and published in the Concord Monitor on 10/7/2015
This piece appeared in the Concord Monitor on October 7, 2015 under the title “The Crime of Poverty”.
In a new investigative report, the American Civil Liberties Union (ACLU) of New Hampshire found that Circuit Court judges in our state are jailing debtors who have no ability to pay fines or fees they owe. Instead of inquiring into whether they are “willfully” failing to pay, judges are locking poor people away.
The practice is reminiscent of debtor’s prison, an institution with deep historical roots in America and England. Back in the 19th century, jailing debtors who were unable to pay a court-ordered judgment was a common legal practice. Debtors typically worked off their debt or they had to find some outside source of funds to pay off the amount owed in order to get out of jail.
Charles Dickens went through the experience of having his father and the rest of his family incarcerated in Marshalsea Debtor’s Prison when he was 12 years old. Dickens had to leave school to work in a factory to help support his family. His father’s time in the debtor’s prison was traumatic for the whole family and it had a shattering psychological impact on the young boy. Of that time, Dickens later wrote:
“… My whole nature was so penetrated with grief and humiliation…that even now, famous and caressed and happy, I often forget in my dreams that I have a dear wife and children; even that I am a man; and wander desolately back to that time of my life.”
In his work Dickens repeatedly wrote about debtor’s prison, most notably in his novel, Little Dorrit. The long shadow that family experience cast for Dickens is instructive about the human cost that is being inflicted on debtors right now.
The ACLU-NH found the practice of jailing debtors who had an inability to pay is systemic and not caused by rogue judges. In their report, they found nine judges in ten different circuit courts throughout the state jailing debtors who had no ability to pay their fines.
As pointed out by the ACLU-NH, debtor’s prison is supposed to be illegal. That law is well-established by both U.S. Supreme Court precedent and by state statute and rules. The law states that before an individual can be incarcerated for failure to pay a fine or fee, the court must meaningfully inquire into the reasons for failure to pay and it must determine that the individual is “willfully” refusing to pay despite having sufficient resources. The law prohibits courts from jailing individuals who simply cannot afford to pay.
The ACLU-NH also notes that both the federal and state constitution require representation by counsel if the judge is considering jailing for failure to pay a fine or fee in a criminal case. The ACLU-NH found that judges in New Hampshire were not conducting a meaningful ability-to-pay hearing. The word they use to describe current process was interesting – hyper-expedient. Neither were judges appointing counsel for poor people they were sending to jail.
The ACLU-NH report included several representative personal stories. In one case, Alejandra Corro, a 22-year-old single mother of two very young children, stole assorted infant clothing from Sears. She took the clothing for her children. Ms. Corro pled guilty and the court fined her $1000 with $500 suspended. The court added a $120 penalty assessment so the total owed was $620. The court authorized Ms. Corro to pay off the balance through 62 hours of community service.
Some time after that, Ms. Corro’s apartment burned. She had to move in with her mother. When she returned to court, she had only completed 20 of the required 62 hours but she stated the intention to complete the rest. Her previously appointed public defender tried to assist Ms. Corro but the court denied her request for an ability-to-pay hearing as well as her request for counsel. The court ruled that if Ms. Corro could not pay the remaining $420 she owed that day, she would be sent to Valley Street Jail in Manchester for nine days.
With the help of her public defender and the ACLU-NH, who filed an emergency petition, Ms. Corro only served one night in jail.
Another story in the report highlighted a homeless man named Dennis Suprenant who had been charged with misdemeanor conduct after a vehicle accident. Because Suprenant was indigent, he obtained a public defender to represent him on the charge. While his case was pending, the state’s Office of Cost Containment sent Suprenant notices about his non-payment of public defender attorney’s fees. Unlike some states, New Hampshire bills poor people for public defender services.
At a review hearing in February 2014, the court ordered Suprenant to pay $302.50 in its entirety by the end of the day or he had to go to jail. Suprenant’s public defender informed the court that the judge’s order would cause Suprenant to lose a job he had obtained two weeks earlier. Suprenant had, in fact, been making some positive strides in his life. He had entered drug treatment, graduated from a drug rehabilitation program, obtained his GED and started the job. The public defender argued jail would set back Suprenant to where he was before.
The judge responded by amending his order. He required Suprenant to pay all the money in his possession — $90. He then ordered that the remaining balance – $212 – be paid in less than two days. The court ordered that if the remaining $212 was not paid in two days, Suprenant was going to jail at Valley Street where he would be held until the amount was paid in full. How someone who was indigent would come up with that money while he was in jail remains a mystery.
The Public Defender and the ACLU-NH filed an emergency petition that resulted in the judge’s order being stayed.
I do not think these stories are unusual. Other than the fact that Ms. Corro and Mr. Suprenant ultimately got counsel, their stories reflect a strong national trend. All over the country, poor people are being jailed for failure to pay an increasing array of fees and fines associated with minor offenses and their rights are routinely ignored. These collateral costs follow offenders around and make it much harder for them to turn their lives around. Advocates have been calling it the criminalization of poverty.
National Public Radio (NPR) has reported that since 2010, forty-eight states have increased criminal and civil court fees. Offenders are now being charged for a long list of government services that were once free, including ones that are constitutionally required.
NPR found at least forty-one states charge inmates room and board for prison stays. Forty-four states bill offenders for their own probation and parole supervision. In forty-nine states there is a fee for electronic bracelets monitoring offenders when they are out of jail. At least forty-three states now bill defendants for public defenders. Inmates everywhere in the U.S. are charged unreasonably high fees for telephone calls from jail. As NPR reported, these fees often add up to hundreds and sometimes thousands of dollars. NPR estimated that between 80 to 85% of inmates now leave prison owing debt for court-imposed costs, restitution, fines and fees.
While state officials commendably responded to the ACLU-NH report and expressed a commitment to ending debtor’s prison, they do not appear to be seeing the big picture. We need to consider whether it is fair and just to shift the costs of running the criminal justice system onto the backs of some very poor people. All the fees and fines imposed on them make their lives and their reentry into society much harder. The New Hampshire Legislature should adequately fund the court system so that impoverished people who have committed a crime but who want to change and improve their lives are not unjustly burdened with debt they cannot pay.
Also, it makes no economic sense to jail people who cannot afford to pay fees or fines. The cost to the state for court proceedings and for housing people in jails far exceed the amount that defendants are charged as the ACLU-NH report argued.
The deeper moral issue here is the way our society treats our poor and vulnerable people. Where is our Charles Dickens to tell their stories and to speak for them in this time and place?
Mass Deportation of the Undocumented: A Terrible, Failed Idea That Trampled Due Process – posted 9/20/2015 and published in the Concord Monitor on 9/25/2015
This piece appeared in the Concord Monitor on 9/25/2015 under the title “Dearly Deported”.
In his platform and in his speeches, Donald Trump includes the idea of deporting the eleven million undocumented people in the United States. At a recent rally in Dallas, he described the undocumented immigrants as part of a “dumping ground for the rest of the world”. He has said the majority of undocumented immigrants are criminals and violent gang members. Since Trump is the current GOP frontrunner and since polls show the idea of mass deportations is popular among Republicans, I think his idea deserves serious scrutiny.
Trump has said that as president he would deport all undocumented immigrants and then allow the “good ones” to reenter the country through an expedited process. He has said the “good ones” could live in the United States although not as citizens. Trump has not yet said how he would locate, round up, and deport the eleven million immigrants he believes must be deported. He has said it would only take eighteen months to two years to get the job done.
Trump has also said that the U.S. born children of illegal immigrants also must go. Under current law, these children are considered legal citizens.
The journalist, Jorge Ramos, has pointed out that Trump would need to deport 458, 333 immigrants per month or 15, 277 people per day to complete his plan in the projected time period. Ramos has also said that the U.S. Immigration and Customs Enforcement agency has estimated that it costs $12,500 to deport one person. Using that estimate, it would cost $137 billion to do the deportations Trump wants.
Most commentators, whether liberal or conservative, recognize that the cost of mass deportations would be prohibitively expensive. I have seen other estimates in the cost range from $285 billion to $600 billion. The price tag would include the costs of apprehension, detention, legal processing, and transportation.
The legal and constitutional issues raised are vast. Due process, equal protection, and Fourth Amendment claims jump out. If Trump does intend to deport U.S. born children of illegal immigrants, what about the Citizenship Clause of the Fourteenth Amendment? Would Trump try to deport U.S. citizen children?
Assuming he would not (which may not be the case), what would happen to those children when their parents are sent across the border? There are so many mixed immigration status families. American citizens would be put in the extremely difficult position of having to decide whether to stay in their home country, away from their families, or leave. It would be a Sophie’s choice.
And how would undocumented workers respond to the deportations? While some might go voluntarily, it is a safe bet that many would not. I would predict the desperation level would be extreme. Undocumented workers are typically among the most vulnerable and exploited workers in America. Unscrupulous employers are notorious for preying on these workers by cheating on wages, subjecting them to dangerous conditions and by ignoring worker injuries. One can only imagine what accommodations, compromises and deals undocumented workers would make to stay off the immigration authority radar screen so they could stay in the country.
Then I should mention the many undocumented immigrants who own businesses and employ others. By some estimates, hundreds of thousands of American small businesses are owned by undocumented immigrants. The business could be a restaurant, a corner convenience store, or a small construction outfit. Would these businesses just be shut down? What would happen to the assets?
If an undocumented business owner poses no threat to national security, runs his business lawfully, pays taxes, and hires American citizens, does it make sense to close that business down?
Trump’s plan almost assumes there is no Constitution or other legal authority. Millions of undocumented immigrants would assert rights that they have under current law. Even if he was serious about pursuit of mass deportations, the timeline Trump projects is la-la land. The possible legal issues are endless and they would be hard fought until the end. The legal fight-back would be aggressive and sophisticated.
Imagining the process of mass deportations is imagining a nightmare scenario. What dragnet would catch these people? Would Americans be encouraged to become stool pigeons ratting out their neighbors? Across the country, how would the immigration authorities zero in on the undocumented? Almost certainly, skin color, accent, and manner of dress would place some people at a higher risk for a stop and investigation.
For a nation of immigrants, the gestapo-like endeavor of ferreting out, arresting and deporting millions is utterly un-American and an affront to our Constitution.
What makes this even worse is that a plan similar to Trump’s has been done before and very few Americans even know about it. In an episode that goes back to the Great Depression-era years of 1929-1936, federal, state, and local authorities sanctioned policies that resulted in mass deportations of Mexicans and Mexican-American citizens. That forced return to Mexico is known as the Mexican Repatriation. Although not well known history to Anglos, the Mexican Repatriation is now widely seen as a humanitarian disaster that trampled due process.
The repatriated mostly had lived in California, Michigan, Colorado, Texas, Illinois, Ohio and New York before they were deported.
In 2006, the state of California formally apologized for its role in those deportations and expressed contrition to the deportees “for the fundamental violation of their basic civil liberties and constitutional rights during the period of illegal deportation and coerced emigration”. In 2012, the city of Los Angeles also issued a formal apology to the victims of the repatriation. The federal government has never apologized.
The history of that era is instructive. In 1929, in the aftermath of the stock market crash and 25% unemployment, President Herbert Hoover’s administration sought a scapegoat for the horrendous economy. Hoover was widely hated by masses of people for doing nothing to help everyday people who faced an awful economy. Hoover settled on the Mexicans to be a scapegoat. During the 1930’s, an estimated one million Mexicans and Mexican-Americans were deported back to Mexico. An estimated 60% of those deported were U.S. citizens.
At the time, many Americans believed that foreigners were taking jobs and services they needed. They saw the repatriation as leading to jobs for “real Americans”. There was an irony about this view. Before the 1929 Great Depression, U.S. employers, with the support of the government, had greatly encouraged Mexican migration to the United States. That migration had been seen as helpful to the economic development of the southwest. The Great Depression changed all that.
President Hoover’s Labor Secretary, William A. Doak, helped to engineer the mass deportations. Doak had immigration officers scour the country for illegals. His immigration officers raided union halls, dances, social clubs and other Mexican enclaves.
The repatriation made a mockery of any legal process. Intimidation was the general rule. Immigration officials armed with guns and batons conducted sweeps looking for suspects of Mexican ancestry. When suspects were found, they were usually arrested without any arrest warrant. Often, they were denied counsel. Deportation hearings were conducted inside city or county jails. The immigration officer acted as interpreter, accuser, judge and jury. Not comprehending their rights, some volunteered to self-deport.
The norm was that no legal record or judicial transcript of these hearings were kept. Even if an immigrant invoked the desire for counsel, that privilege was left to the discretion of the immigration official. There is evidence that Mexicans were misled and enticed to leave the country by being told they would be able to return later when that promise was false.
The repatriation broke up many families. Thousands of children who had lived in the United States their entire lives and who could not speak Spanish were sent to Mexico to live for the rest of their lives. In many cases, those who were deported never saw their family members again.
Considering the current discussion about mass deportation prompted by Trump, I find it amazing how little awareness there is about our buried experience with Mexican repatriation. There is a reason Gore Vidal used to talk about the United States of Amnesia. Americans have a bad history with forgetting. We have a blind spot with Latino history. While there is more awareness of historical crimes committed against Native Americans and African Americans, the crimes committed against Latinos have been hidden away. I think the Mexican repatriation is a perfect example.
There is a cluelessness and utter lack of historical awareness in Trump’s plan. He does not seem to know his idea was tried before in the 1930’s with disastrous results. Also, he needs to be called out on lies. Whatever people think about illegal immigrants, the overwhelming majority are not criminals or violent gang members. Most are looking for a better life and economic opportunity. That is something immigrants have always done coming to America.
Comprehensive immigration reform, including a path to citizenship for the undocumented, is a far superior approach to Trump’s. Trump has indulged in hateful demagoguery and his ideas around mass deportations need to be utterly rejected.
Leave the Fourteenth Amendment Alone: The Republican Presidential Candidates and Birthright Citizenship – posted 9/6/2015
I must say I was surprised when I saw that illegal immigration was going to be a defining issue for Republican presidential candidates. After losing the Latino vote so decisively in 2008 and 2012 (McCain got 31% in 2008 and Romney got 28% in 2012), conventional wisdom had predicted the Republicans would moderate and support some version of comprehensive immigration reform, including a path to citizenship for the undocumented.
Conventional wisdom was wrong. Latino outreach does not appear to be on the Republican agenda. Not only have they not moderated, the Republicans have doubled down and pushed in a more extreme, nativist direction. Their candidates, most notably Donald Trump, have advocated a mass deportation of the eleven million undocumented, building a 2000 mile impenetrable wall on our southern border, rescinding the Executive Order on the DREAM act, and tripling the number of immigration agents.
We have also heard proposals like Chris Christie’s who suggested tracking non-citizens like FedEx courier packages.Then there is Scott Walker’s idea to build a wall on our Northern border with Canada.
Most radically, Trump has proposed ending birthright citizenship for so-called anchor babies. He has been joined ideologically in this endeavor by Scott Walker, Rand Paul, Lindsey Graham, Bobby Jindal and Rick Santorum, among others. Trump says that birthright citizenship remains the biggest magnet for illegal immigrants.
Birthright citizenship refers to a person’s acquisition of United States citizenship by virtue of the circumstances of their birth in the country.
Ending birthright citizenship would require addressing the Fourteenth Amendment of the U.S. Constitution, whether by court challenge or by constitutional amendment. The Fourteenth Amendment plainly states, in part,:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Since the adoption of the Fourteenth Amendment to the Constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by this Citizenship Clause.
At the risk of being called a loser by Trump fans, I admit that I find the idea of politicians’ monkeying with the Fourteenth Amendment a sickening prospect. One hundred and fifty years later, I don’t think it needs their “improvements”.
The Fourteenth Amendment is not any old amendment. The Civil War was fought over this amendment. There is much blood behind it. The Fourteenth Amendment negated the infamous Dred Scott decision of 1857 which held that neither slaves nor their descendants could ever become citizens. It is not an exaggeration to say that the Fourteenth Amendment is the best reflection of our fundamental national commitment to fairness.
Immigration restrictionists have latched on to the phrase “subject to the jurisdiction” to say that the Framers intended to exclude the children of illegal aliens from the protection of the Citizenship Clause. While no one can pretend to divine the intent of the Framers, I would submit that interpretation is highly unlikely.
A heavy preponderance of legal scholarship supports the proposition that the ratification debates taken as a whole indicate that the Fourteenth Amendment was designed to extend citizenship to all people born in the United States regardless of the race, ethnicity, or alienage of their parents.
I would particularly cite the work of historian, Garrett Epps, the author of Democracy Reborn, a fascinating history of the Fourteenth Amendment and the fight for equal rights in post-Civil War America. Epps has written:
“After the crime of slavery, the framers of the Fourteenth Amendment wanted to create a new nation in which there would be no sub-humans, no inferior caste that could be sold on to plantations or herded into camps. The citizenship clause is a key part of the structure they built. There are some scholars who disagree, but mostly they are not “the top”. Most of the anti-birthright “evidence” is phony.”
Epps points out the incongruity that passionate anti-slavery thinkers who devised the Citizenship Clause as a means of overruling Dred Scott would have any intention to create a new class of non-citizens lacking all rights. Context is important and Epps believes the Framers were very tuned in to migration controversies of the era. During the Civil War years, the U.S. population increased by four million people – most of them immigrants.
In that era, immigration restrictionists complained about gypsies and the Chinese. Epps says the Framers knew what they were doing and they intended to address both the matter of the former slaves and immigrants in drafting the Fourteenth Amendment. They wanted to put citizenship above the politics and prejudices of any given era.
In this connection, I would be remiss if I did not mention a little known but extremely relevant U.S. Supreme Court decision decided in 1898. The case, United States v. Wong Kim Ark, speaks directly to those complaining about anchor babies today. Wong Kim Ark, the son of Chinese parents, was born in San Francisco in 1873. His parents were not citizens and they moved back to China after his birth,
Wong Kim Ark became a test case when he returned to the U.S. from China, sought readmission into the country, and was refused. This was not his first return trip back to the U.S.. Wong Kim Ark sued, challenging the government’s refusal to recognize his citizenship.
This was an era of vicious racism directed against the Chinese who had been scapegoated, in part, because of a bad economy. Humiliating, berating, harassing, beating and murdering of Chinese was so commonplace that newspapers seldom bothered to print the stories. A less told story is the frequent lynching of Chinese workers that occurred in the West. In California, mob violence directed against Chinese people was not uncommon.
In the late 19th century, Congress passed a Chinese Exclusion Act which prohibited all immigration of Chinese laborers. The Exclusion Act also prohibited immigrants from China from becoming naturalized U.S. citizens. Violators faced up to 10 years’ imprisonment, plus deportation. I would note that, along with the Chinese, exclusion policies extended to the Japanese and Filipinos.
In spite of this very difficult political environment, the Supreme Court ruled for Wong Kim Ark, stating,
“…to hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage who have always been considered and treated as citizens of the United States.”
The Court narrowly interpreted the Citizenship Clause phrase “subject to the jurisdiction” to mean being required to obey U.S. law. Down through the years, the excluded have been a limited class of individuals who are not subject to U.S. law such as the children of ambassadors.
In considering the matter of illegal immigration now, I am struck by historical parallels with earlier waves of nativist hysteria. It is a recurring theme in American history where some ethnic group or other is blamed for failures in the economy. Targets have included Irish Catholics, German-Americans, the Chinese, the Jews, and south-eastern Europeans, among others.
Attacking birthright citizenship is just the latest incarnation of this deep-seated nativist tendency. This time around the target is Latinos. How they crashed the economy, exported good jobs from the U.S. and refused to raise wages is never explained.
In his essay, “The Paranoid Style in American Politics”, the late historian Richard Hofstadter discusses conspiratorial mindset, nativist obsession, and the tendency to manufacture self-serving facts to promote an agenda. Trump’s fantasy that the Mexican government is shipping rapists and its worst criminals to America is like an example that could have been written about by Hofstadter if he were alive today.
The horrible problem with immigration internationally right now shows the need for an American response to the problem that is both rational and compassionate. In 2015, it is sad to see a major American political party, oblivious to our history, going down such a dark direction.
Remembering Julian Bond – posted 8/23/2015 and published in the Concord Monitor on 8/29/2015
This piece appeared in the Concord Monitor on 8/29/2015 under the title, “Justice loses one of its most thoughtful warriors”.
When I think of Julian Bond, the first words that come to mind are grace, humor and wit. These are not the words you might expect for a battle-hardened, long-time civil rights activist. Bond died on August 15 from complications of vascular disease.
My initial awareness of Bond dates back to the mid-1960’s when he became nationally famous. After passage of the federal Voting Rights Act in 1964, Bond ran for the Georgia House of Representatives. At that time he was 25 years old. He had dropped out of Morehouse College to work for the Student Non-Violent Coordinating Committee also known as SNCC. Bond was SNCC’s communication director. In that capacity, he travelled around the South, organizing civil rights and voter registration drives.
In 1965, gaining 82% of the vote, Bond won election to the Georgia House. However, the Georgia House refused to seat him. A few days before Bond was scheduled to take office, he had publicly supported a SNCC press release opposing the Vietnam war. Bond also voiced support for draft resisters.
At the time, Bond’s position on the war was not winning popularity contests among white Georgia legislators. The Georgia House accused Bond of treason because of his anti-war position. By a vote of 184-12, the Georgia House denied Bond his seat and declared the seat vacated. Bond then won two follow-up special elections which had been set up to unseat him. Each time, the Georgia House refused to recognize the election results.
Bond sued and amazingly, the federal court in Georgia sided with the action of the Georgia House. Bond had to take his case all the way to the U.S. Supreme Court. In 1966, the U.S. Supreme Court ruled 9-0 for Bond, holding that the Georgia House had denied Bond’s freedom of speech. The court decision upheld Bond’s right to political office. Among others, Dr. King had publicly supported Bond. These events made Bond a national figure.
Bond was early among activists in linking prosecution of the Vietnam war with persecution of Black people at home. He explained this more fully in 1967, stating:
“My position is that things that the United States does overseas are related to its behavior toward people inside the country and that there’s a relationship between what I consider our aggressive behavior in Vietnam and the treatment of minority groups inside the United States, that taken separately, both are wrong, and taken together, they’re even wronger. I imagine that – or rather I am of the opinion that our involvement in Vietnam is wrong, it’s illegal, it’s immoral, it’s un-Christian, it’s un-Buddhist, it’s un-Jewish, it’s un-Catholic; we ought not be there; we ought to disengage ourselves; and that there will never be decent treatment for minority people in this country until we begin to concentrate on freedom and justice and equality for those at home and stop worrying about puppet dictatorships and despotic governments in Southeast Asia.”
Bond had been very affected by the murder of his SNCC colleague, Sammy Younge. Younge was the first Black college student murdered in the civil rights movement. He had been an enlisted service member in the Navy where he served two years before a medical discharge and the start of his college career. In January 1966, Younge was shot in the back of the head by a white service station attendant at a Tuskegee gas station. Younge had been trying to integrate a “Whites Only” bathroom. Later an all-white jury acquitted Younge’s murderer. Bond said he learned from Younge’s example that even if you were a veteran, they would still shoot you down if you worked for civil rights in America.
In 1968, at the infamous Chicago Democratic convention, Bond was nominated to become Vice-President. He declined the nomination as he was only 28 years old. The Constitution requires vice presidents to be 35. Supposedly, Bond always liked telling that story.
Bond went on to serve 4 terms in the Georgia House and 6 terms in the Georgia State Senate. From 1998 to 2010 he was Chairman of the NAACP. Along with Morris Dees, he helped found the Southern Poverty Law Center.
There are a number of funny stories about Julian. Ben Jealous, former CEO of the NAACP, told one such story on Amy Goodman’s show, Democracy Now!. Jealous had asked Julian about his role in the famous 1963 March on Washington. Julian responded that his job at the march was to pass out Cokes to people who were really famous. Jealous said. “So what was the high point for you?”. Julian replied, “it was when Sammy Davis Jr. looked at me, winked and snapped his finger and pointed at me and said, “You know kid, you’re cool.”
Julian did have movie star good looks. He had a debonair quality and genuine charisma. He actually hosted Saturday Night Live one time in 1977.
In a Washington Post story after Julian died, his wife, Pamela Horowitz was quoted, saying:
“He had a wonderful sense of humor. You know that got him through the serious things he dealt with all his life. He used to joke that on his tombstone, one side would say “Race man” and the other side would say ‘Easily amused’. ”
Bond had a way with words. There are many good Julian Bond quotes. Here are a few of my favorites:
“Obama is to the tea party as the moon is to werewolves.”
“Violence is black children going to school for 12 years and receiving 6 years worth of education.”
“Good things don’t come to those who wait. They come to those who agitate.”
The journalist George Curry wrote that he always remembered a poem authored by Julian:
“Look at that girl shake that thing
We can’t all be Martin Luther King.”
Bond remained an activist until the end. He was not narrow. Along with 47 other people including NASA climate scientist James Hansen, he was arrested at a 2013 White House protest against the Keystone XL tar sands pipeline. He also was a strong supporter of LGBT rights. On gay marriage, he said, “Black people, of all people, should not oppose equality and that is what gay marriage is.”
In his last public speech in May 2015 at an event entitled “Vietnam: Power of Protest Conference” Bond said the following:
“We practiced dissent then. We must practice dissent now. We must as Dr. King taught us. “move beyond prophesying of smooth patriotism to the high grounds of a firm dissent based upon the mandates of conscience and the reading of history.” As King said then, and as even more true now, “A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.”
Julian Bond was a warrior for justice who never quit. It is hard to believe he is gone. He will be missed.
The NFL Concussion Settlement: A Very Problematic, Mixed Bag – posted on 8/16/2015
With football returning, it is a good time to revisit developments in how the NFL is handling its achilles heel – the matter of concussions and repetitive head trauma. Deflategate is a sideshow. The deeper and darker side of the NFL is its handling of the players who have suffered repeated head injuries.
When I heard that Junior Seau’s daughter, Sydney Seau, was going to talk about her father at the Pro Football Hall of Fame ceremony earlier this month, I wondered if she would talk about her father’s brain injury. The NFL just posthumously entered Junior Seau into the Hall of Fame.
Apparently, the NFL also worried about what Sydney Seau might say because she was not allowed to give a speech at the ceremony. The NFL sidelined Sydney, allowing her only a few minutes on the NFL Network. How thin-skinned can you get!
It turned out that Sydney did not plan to use her speech to discuss her father’s brain injuries. Her remarks were a very moving tribute to her father. Considering that the Pro Football Hall of Fame ceremony went on for three and a half hours, it is sad the NFL could not allow the daughter of one of its greatest players her few minutes.
Concern about image trumped all other concerns. If Sydney Seau had gone off script and inveighed against football-related brain injuries, would the sky have fallen? The NFL money machine was taking no chances. They still balk at the simple and direct message: football produces brain injuries. Money always comes first with the NFL. Troubling images must be banished.
Probably the biggest pro football news of this year’s offseason was the settlement of the federal court class action lawsuit between the NFL and thousands of former players. On April 22, 2015, Federal Judge Anita Brody granted final approval to the NFL’s concussion settlement.
However, the lawsuit is certainly not over. Judge Brody must weigh final objections to the settlement and retired players must decide whether to opt out of the class. If individual players opt out, they could pursue individual lawsuits against the NFL. The class action case will definitely go to the Third Circuit Court of Appeals.
It is hard to feel too good about the settlement. While it does provide important, much-needed relief for players who suffer from Alzheimer’s, ALS, Parkinson’s and dementia, there is a big hole in the settlement agreement. The overwhelming majority of class members will receive nothing.
That is because chronic traumatic encephalopathy or CTE, the most prominent disease affecting retired players, is not compensable under the terms of the settlement. CTE claims have an extremely narrow window. Only players who have died and were diagnosed with CTE at anytime between January 1, 2006 and the date of final approval of the settlement, April 22, 2015, can be compensated.
I suppose this is not unlike many settlement agreements. A number will get very fair compensation but the terms of the agreement for those who have or will have CTE are nothing short of disastrous. Tons of players are absolutely left out.
Attorney Paul Anderson, an expert on the NFL and concussions, described the lawsuit settlement this way:
“The NFL Concussion Litigation was initially framed as a CTE lawsuit, but as negotiations progressed it was transformed into a cognitive-disorder settlement, all-but eviscerating future awards of CTE. CTE has been described as “the industrial disease of football”. Some objectors analogized the failure to compensate CTE in this case to an asbestos settlement excluding compensation for mesothelioma.”
Without getting too technical, CTE is a neurodegenerative disease that can lead to dramatic changes in mood, behavior, and cognition. A critical indicator of CTE is the build-up in the brain of an abnormal protein called tau. Making things tricky, these changes in the brain can sometimes start years or decades after an athlete’s career is over. We know that repetitive brain trauma can trigger a flood of events leading to progressive destruction of brain tissue.
Symptoms of CTE can include irritability, depression, memory loss, mood swings and emotional lability. CTE is also connected to violence, explosivity, social isolation, drug overdoses, suicides and loss of behavioral control. The medical world has delineated four stages of CTE with dementia classified as the final stage. At present, CTE can only be diagnosed after death.
CTE causes tremendous pain and suffering for family members who watch their former world class athlete/relatives deteriorate before their eyes. Some CTE sufferers become unable to do the most basic activities of daily living like dressing, feeding, and toileting themselves.
The settlement agreement forecloses any future awards for CTE. So if a retired player dies and he is then subsequently diagnosed with CTE after he dies, he will receive zero compensation unless he can prove he was cognitively impaired. Many classic symptoms of CTE, mood and behavior difficulties, are not compensable under the agreement. The agreement remains in effect for the next 65 years.
Junior Seau is a perfect example of the type of player who would not be compensated under the agreement. The symptoms he exhibited do not fit the terms of the settlement and his family opted out. So far 200 ex-NFL players have indicated they will opt out of the settlement.
Seven retired players including Sean Morey and Alan Faneca have already filed an objection to the settlement arguing the agreement is a lousy deal for the players but a great deal for the NFL and class counsel. The players criticize class counsel for failing to do any discovery. Many wonder whether taking testimony from NFL officials and gathering documents from the league would show whether the NFL concealed the dangers of concussions from the players.
A leading Boston University researcher and neuropsychologist, Dr. Robert Stern, has criticized the agreement because of the way it handles CTE. After the agreement, Dr. Stern told the Associated Press:
“Repetitive hits to the head do not lead to Alzheimer’s disease. They lead to CTE, if anything.”
Dr. Stern has written that many former NFL players have significant changes in mood and behavior, resulting, in part, from repetitive head impacts, that have led to inability to maintain employment, homelessness, domestic abuse, divorce, substance abuse, excessive gambling, poor financial decision-making and death from accidental drug overdoses or suicide.
Dr. Stern believes that in the next five to ten years there will be an accurate, clinically accepted and FDA-approved method to diagnose CTE during life.
As probably is obvious, the science around CTE is in its infancy. With the current state of science it is difficult to prove causation of former players’ behavior and mood problems with CTE even though it is seemingly apparent. There is a provision in the settlement agreement that the parties confer at least once every ten years to determine whether adjustments to the qualifying diagnoses need to be made due to advances in science.
You do not have to be a cynic to know it is highly unlikely the NFL will voluntarily reopen the resolution of CTE cases relative to the settlement agreement. Probably the only way that will happen is if a court forces that.
I remain a football fan but I would acknowledge the nasty underside of the NFL. There is a litany of sins but I think its treatment of retired, injured players is probably the worst. Someone should write a book looking into the health issues of all the journeymen ex-players who were chewed up and spit out. Most players were not stars leading enchanted lives. It would be good to know how they are faring years after leaving the game. I think we have a very limited picture of that. I expect there is a wealth of material there.
It remains to be seen whether Judge Brody or the Third Circuit will allow the exclusion of CTE from the settlement agreement which lasts 65 years.
Relative to The Donald…- posted 8/8/2015
After hearing Donald Trump’s comments regarding Megyn Kelly, the Fox news anchor, after the first Republican debate, I am reminded of this quote which struck me as particularly apropos:
“I am ugly but I can buy for myself the most beautiful of women. Therefore I am not ugly, for the effects of ugliness – its deterrent power – is nullified by money…I am bad, dishonest, unscrupulous, stupid; but money is honored, and hence its possessor…I am brainless, but money is the real brain of all things and how then should its possessor be brainless? Besides, he can buy clever people for himself…Does not all my money, therefore, transform all my incapacities into their contrary?” Karl Marx
Jonathan P. Baird 