Sunday, June 28, 2015

Anatomy of the Supreme Court's Decision on Gay Marriage

Anatomy of the Supreme Court's Decision on Gay Marriage

Anatomy of the Creation of a Fundamental Right
The Supreme Court's Decision on Gay Marriage

By Dan Riker
June 28, 2015

"Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations."

-- Justice Anthony Kennedy, June 26, 2015

The Supreme Court's decision in Obergefeld et al v. Hodges, Director Ohio Department of Health, et, al, June 26, 2015 is a landmark in American legal history. An entirely new fundamental right, same-sex marriage, was recognized by the 5-4 majority and made the law of the United States.

This case illustrates the deep divides in legal, social, religious and political philosophy in the United States that have existed since the founding of the nation and still are with us, and which arise almost every time there is a controversy over the rights of citizens and the roles of government and the courts.

What is the proper way to interpret the Constitution? Should the Supreme Court be limited to saying what the law is, not what it should be? Is the Court limited to explicit rights and powers granted by the Constitution, or can it infer that new rights can arise from application of those explicit rights to circumstances not contemplated by the framers? How much weight should the Court give to prevailing social and religious values that may be in conflict with an asserted new right? When there is a conflict, which should have priority, the new right, or the right of the free exercise of religion? Should the Court defer to the political process to resolve a conflict over rights? If the asserted right does not involve any power granted to the federal government in the Constitution, should the decision to recognize that right reside with the states? 

The Constitution guarantees a number of basic rights to all American citizens, with most of the important ones in the Bill of the Rights, the first 10 Amendments that were adopted shortly after the Constitution was ratified. The most notable are the rights of freedom of religion, speech, and the press, the right to near arms, protection against unreasonable searches ands seizures, the rights to a speedy trial, due process and protection against cruel and unusual punishments. In some of the later amendments, slavery was outlawed, citizenship was defined, citizens were granted due process and equal protection under both federal and state laws, women were granted the right to vote, the income tax was approved, the election of U.S. Senators was taken away from state legislatures and given to the public, the sale of alcoholic beverages was outlawed and 13 years later that ban was repealed, Presidents were limited to two terms in office, a more detailed and specific succession to the Presidency in case of the death or disability of the President than existed in the Constitution was provided, the voting age was set at 18, and the Poll Tax was outlawed.

Once ratified, amendments become part of the Constitution with the same force and effect as any other provision. The framers expected there would be many amendments to the Constitution, but in 226 years there have been only 27. An amendment requires approval by two thirds of both houses of Congress, as well as three-fourths of the states, and such approval became much harder to obtain as more states entered the Union.

However, in the 1803 case of Marbury v. Madison, the Supreme Court established itself as the final arbiter for interpretation of the Constitution, a power that is not specifically granted the Court in the Constitution. The Court several times since then has reaffirmed that power and no significant effort ever has been mounted in Congress to change that, either by law, or by amendment to the Constitution.

The Supreme Court's assumption of the power to interpret the Constitution provided an easier method than the amendment process to challenge acts of Congress and the states, and to create new rights not specified in the Constitution. Subsequently, on a number of occasions, the Supreme Court has recognized that rights not specified in the Constitution can be implied from those that are.

 - The Court ruled that racially segregated schools violated the 14th Amendment's guarantee of equal protection
- It ruled that the protections of defendants in the Bill of Rights mean that illegally obtained evidence cannot be used against them, that the accused have the right to counsel, that if they cannot afford a lawyer, one will be provided free of charge, that they cannot be compelled to testify against themselves, and that if they are suspects in a crime they must be apprised of these rights. 
- It ruled that school prayer violated the 1st Amendment's prohibition of establishing religion.
-  It ruled that as a result of the various specific individual rights in the Constitution there is an implied fundamental right of privacy and restrictions on the use of contraceptives and sodomy laws violate that right.
-  It has ruled that marriage is a fundamental right and that restrictions on inter-racial marriage, and several other limitations on who could get married, were unconstitutional.
-  It ruled that the right of privacy also includes the right of women to have abortions, with some restrictions.
- It has held that fundamental rights do not depend on approval by the voters.
- The Court ruled that the "Defense of Marriage Act," which denied federal benefits to legally married same-sex couples was unconstitutional as a violation of the 5th Amendment's guarantee of due process, and in the same case it let stand a California Supreme Court decision that its state's ban on same-sex marriage, approved by the voters in a referendum, was unconstitutional. That case, United States v. Windsor, authored by Justice Anthony Kennedy in 2013 set the stage for this term's decision, also authored by Kennedy.

In this case, the two questions the Supreme Court agreed to address involved the application of the 14th Amendment, the key provisions of which are:

 "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The two questions were:

Whether the 14th Amendment requires a state to license a marriage between two people of the same sex? and,

Whether the 14th Amendment requires a state to recognize a same sex marriage licensed and performed in a state which does grant that right?

The majority of the Court decided that the answer to both questions is yes.

In the majority decision Kennedy set the stage by reviewing the importance of marriage in history, how it has changed - in some cases very fundamentally - but how those changes have not made it any less important. In fact, its contemporary significance is a major basis of the Court's decision. He wrote:

"(I)t is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their
respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment."

He reviewed how attitudes and laws regarding homosexuality have changed and that in recent years gays have become more integrated into and accepted by modern society, with some states recognizing gay marriage or civil unions and permitting gay couples to adopt children. In effect, in contemporary America, except for their sexual preference that prevents them from marrying one another in many states, gays are no different from all other citizens.

He then pointed out a fact, ignored by the dissenters, that the Court relied in part on a considerable body of case law that developed in recent years involving sane-sex marriage, and that with only a couple of exceptions, all the federal district and appellate courts as well as state appeals courts have ruled that prohibition of gay marriage is unconstitutional.

As a result of court decisions and decisions by voters and state legislatures, nearly half the states recognize same-sex marriage. At the same time many states had made it very clear they would not recognize it. Thus, a situation existed whereby a legally married same-sex couple, because of job relocations, or other necessity, could find themselves having to move to a state where their marriage was not recognized, something that could put them, and maybe their adopted children, at considerable jeopardy. Kennedy makes the point that resolution of this question was urgent, and was necessary now rather than waiting for whatever was going to happen with the political process because people were being harmed now by the restrictions on same-sex marriage.

Kennedy then stated the fundamental principles that guided the decision, that also illuminate the genius of the Constitution and its framers and show why that document has so successfully endured and remains so relevant and powerful today.

He wrote that under the Due Process Clause of the 14th Amendment, "fundamental liberties" protected by the clause include not just those in the Bill of Rights but also "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs." He then wrote:

            "The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. SeeLawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.

            "The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed."

Kennedy then sets forth "four principles and traditions" to show that  "the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples." Those four principles are:

- Based on the decisions outlawing restrictions on inter-racial marriage and other limitations on the right to marry, "the right to personal choice regarding marriage is inherent in the concept of individual autonomy," and thus there is an  "abiding connection between marriage and liberty."

-  The second principle, based on the case that outlawed limitations on married couples' rights to use contraceptives, "is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals."  Furthermore, Kennedy wrote that while an earlier case that invalidated restrictions on homosexuality "confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty."

- The third principle underlying the Court's position that marriage is a fundamental right is that marriage "safeguards children and families," and this now is relevant to same-sex couples because many states permit gays to adopt children. If same-sex couples are denied the right to marry they and their adopted children do not receive the tangible and intangible benefits available to opposite-sex married couples and their children.

- The fourth principle is that marriage is "a keystone of our social order," and state governments recognizing this offer married couples a wide range of material and legal benefits not available to the unmarried. Kennedy wrote:

"The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage."

In response to the argument that same-sex marriage has no precedent and is counter to the global practice that has existed forever, Kennedy wrote:

"If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach... The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."

The majority opinion comes under some criticism in the dissents for somewhat foggy reasoning, in particular in the way it applies and links the equal protection and due process clauses of the 14th Amendment. And it is not the first time Kennedy's reasoning in a case has been criticized. He has gotten enormous criticism from liberals for his decision in the Citizens United case that held that restrictions on corporate contributions to political campaigns violated their first amendment rights, and which has resulted in a great deal of mischief in politics. However, in this case, whatever fogginess there is may be in the structure of the writing, rather than the content.

This is how Kennedy ties the two together:

"The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right."

And he wrote:

"In Lawrence the Court acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See 539 U. S., at 575. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State.

Which leads to his conclusion:

This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

During the time the Court is considering a decision, the justices share their opinions with one another, and each has an opportunity to revise or change his or her opinion as well as making additions or changes to the main opinion and the dissents. The published decision includes the main opinion and any dissents, often with cross references among them, especially when there is sharp disagreement as there was in this case.

Chief Justice John Roberts vehemently, but politely, dissents and his dissent is joined by the other three conservative justices, Antonin Scalia, Samuel Alito and Clarence Thomas, each of whom also wrote separate dissents.

The essences of the lengthy Roberts dissent are that the Court has exceeded its authority by making law rather than interpreting it, that since there is no mention in the Constitution of marriage, how it is governed is a right of the states, and that there is no basis from the rights guaranteed by the Constitution upon which a right of same-sex marriage can be inferred. Kennedy clearly addressed those concerns in his opinion, but those differences of judicial and legal philosophy are likely to continue.

Roberts' criticism of the Court for being too aggressive is somewhat disingenuous because two years ago he was the author of the opinion that crippled much of the Voting Rights Act. He substituted his opinion that these restrictions on state election law changes were no longer necessary for that of Congress that had repeatedly renewed the Act by enormous vote margins. Apparently, whether it is proper to be aggressive depends on whether the rights of citizens are being expanded, or contracted. He also turned out to be wrong about the need for the Act because shortly after the decision a number of states took steps to restrict voting rights.

He also chastises the Court for not giving greater weight to the tradition of marriage as a union between a man and woman. And he raises the question whether changing the definition of marriage may open the door to much more unorthodox marriages.

Scalia has a hissy fit in his dissent, calling the Court's decision a "putsch" and a danger to democracy. He is outranged that the Court has removed the decision from the political process, which he believes was properly addressing the issue. He also doesn't think there is any Constitutional basis for the decision.

Kennedy's pointed rejection of Scalia's signature approach to constitutional interpretation may also have played a part in his rather intemperate dissent.

Scalia has had enormous influence on how the Constitution is interpreted, repeatedly advocating, in opinions and dissents, as well as in public appearances, the idea of original intent, that the way to interpret what the Constitution means is to determine to the extent possible what the framers really intended. This theory has become widely accepted and has been the subject of considerable legal and historical analysis. The framers most likely would be mystified by Scalia's approach because they viewed their document as flawed and requiring a great deal of future manipulation. The vagueness of some portions of the Constitution was entirely intentional.

Kennedy clearly rejected the Scalia theory when he wrote, "History and tradition guide and discipline this inquiry but do not set its outer boundaries," and, "rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."

Alito's dissent argues that much greater weight should be given to the tradition that marriage is between a man and a woman, but that the decision whether to recognize same-sex marriage should be left to the states.

Clarence Thomas' dissent has generated the greatest amount of comment because of a very bizarre statement of his that "slaves did not lose their dignity when they became slaves." It is part of his attack on the Court's use of the term "dignity," which is not a legally-defined term and thus has no independent legal meaning.

However, the bulk of his dissent is based on his extremely narrow interpretation of the word "liberty" as it is used in the 14th Amendment. Quoting from two versions of the Magna Carta of 1215 and from the 17th Century English philosopher, John Locke, who significantly influenced the framers of the Constitution, he argues that "liberty" refers only to the lack of physical restraint. Thus, he maintains, the Court's reliance on the infringement of the liberty of same-sex couples is entirely improper and wrong as a matter of legal interpretation. This is a pet peeve of his, as he has raised it in the past. He has a great fear that more rights will be inferred from the 14th Amendment because of the misinterpretation of the word liberty.

Kennedy clearly rejected this theory - and reinforced his rejection of Scalia's - when he wrote "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."

Thomas also argues the absurdity that if a right is put to a vote and rejected by the majority of the voters, those demanding the right have received their "liberty," at least all the liberty to which they are entitled. He seems to not understand the basic concept of liberty, how it can be different for every individual, and that if it is defined by others, not only is it not liberty, it can be tyranny.

He seems oblivious to the fact that the Magna Carta started the process of the recognition of new rights of the people, new forms of "liberty," and that the entire development and preservation of democratic government has involved a steady process of recognizing new rights of citizens as the need has arisen. The process often is difficult, and frequently violence has resulted when there has been resistance to the adoption of new rights. But the nation has been made stronger and peoples from everywhere have been united as Americans because of the promise of liberty, of equality of opportunity, and the "American Dream," the idea that every person will have a fair chance to improve his or her life in whatever reasonable way that person desires. That is the essence of liberty and it is dramatically different from a lack of physical restraint.

His dissent illustrates the enormous difference in philosophy and perspective between conservatives and liberals. He, Scalia and Alito, and maybe Roberts, don't like government. They view the Constitution's protection of citizen rights mostly as protection of citizens from government. There is some truth to this.

There was considerable concern at the time the Constitution was drafted that if the national government was made too powerful, it could become as tyrannical as the English government had been. Thus, a number of protections are built into the Constitution to try to prevent that from happening, including the federalist structure of government, the checks and balances among the three branches of the federal government, the guarantee of a "republican" form of government, and the protections of individual rights built into the Bill of Rights.

However, the Constitution also contained the most radical view of citizenship that had yet been conceived. The concept of equality under law was inherited from the English, but the concept of equality of all citizens was unique to the Constitution. It has become so much a part of our culture that until recently, when it became obvious that enormous economic inequality has occurred in recent years, we seldom thought about it.

Unlike in England, the Constitution forbids titles of nobility and rank in the U.S. No special privileges can be granted to one class of citizens over another. There are no recognized classes. Bribery is one of only two enumerated crimes in the Constitution for which government officials can be impeached, the other being treason. Government favors were not to be bought, a principle that mostly is ignored in practice. But it still means that government was not intended to serve special interests, but was to represent and serve all the citizens, and also protect them. And in this age of massive multinational corporations wealthier and more powerful than many nations, government may be the only protector of human safety, health and freedom. That idea of equal treatment, or equal protection, has become one of the most important principles of the nation. But while equality of opportunity is mandated, equality of results is not.

This new idea of citizen equality fostered a basic concept of fairness, which has become a major facet of the American character. Americans hate cheaters. We all are supposed to have an equal chance. It isn't a matter of success or failure. We greatly admire success when it is perceived to have been achieved reasonably fairly. There is little sympathy for failures if they have had a fair chance. But Americans get angry when people are cheated out of their chance. And one of the most effective ways to gain support for a cause is to show that it is just, the result of unfair treatment. There was enormous support for the Civil Rights movement in the 1960s because the way blacks were treated in the South was shown to be patently unfair. However, there also was a backlash later against Great Society programs among blue collar whites in many parts of the country, many of whom were struggling financially, not just because of racism, but also because of a perception, right or wrong, that an unfair proportion of government benefits were going to blacks. That perception can be seen today in many of the targets of Republican budget-cutters.

The conservatives on the Court sometimes seem to fail to recognize that the greatness of the Court, and the reverence that so many Americans have for it, is a result of its willingness to protect minorities from the danger in a democracy of what Alexis de Tocqueville called the "tyranny of the majority."

Sometimes, no matter how unfair something is to some people, there is not sufficient popular support within the political system to correct the problem. This is where the Supreme Court has been enormously important to the advancement of human freedom. Without the Supreme Court's integrity and ethical clarity - its willingness to acknowledge the wrongness of an earlier decision by overturning it  - school segregation might never have ended, or at least not ended without much greater violence. Without the Supreme Court's determination to enforce the Bill of Rights, school prayer may have continued in public schools to violate the religious freedom of many. Without the Supreme Court's willingness to take on the opposition of so many of the major religions in the nation, women who needed, or wanted, abortions would have had to continue to travel great distances, or endanger their lives with back-alley abortionists. Unfortunately, this present Court seems unwilling to stop the current efforts of many states to sabotage that fundamental right.

But a majority of this Court did have the integrity to recognize the unfairness of the marriage laws of many states when it came to same-sex couples and that a hodge-podge of some states recognizing it and others not doing so was not going to provide the equal protection and due process that same-sex couples had a right to receive, regardless of where they lived.

And that brings up the issue of states' rights. This Court has sown a lot of mischief recently in trying to revive a concept that is grossly out of date. The Constitution is the supreme law of the land. No state law can trump a federal law. The American people are citizens of the United States, not of the states in which they reside. The entire concept of states' rights came out of the fact that originally there were 13 separate colonies and they wanted, for various reasons, including the preservation of slavery and other economic advantages, to maintain a certain amount of independence from the federal government. That original need has virtually disappeared in contemporary America where most states are enormously dependent on the federal government and where there is much less identification by many people with any particular state.

There was a time when there was much less movement among states than there is today, when communications were not instant, when travel was not so fast. But in today's world, locale is virtual. It is not uncommon today for people to live in a number of different states during the course of their lives. It some areas of the country it is not uncommon to live in one state and work in another. Electronic commerce and communications cross all boundaries inside and outside the United States. Because the right to travel is a fundamental right, it makes no sense for other fundamental rights to be treated differently by different states. Fundamental rights should be uniform across the nation. The majority of the Court acknowledged this.

In recognizing the fundamental right of same-sex marriage, and making it the law of the entire United States, the Supreme Court once again has taken the nation further along the road of progress of human freedom and liberty.

Friday, May 22, 2015

President Obama's response to a message I sent him opposing the TPP

Some time ago I sent a message to President Obama opposing the TPP and asking him to reconsider his position. I received the following email today from the White House. I have written and posted much against the TPP and in fairness, I thought I also should share the President's response:

Dear Dan:
Thank you for writing.  My Administration is pursuing a trade agenda that will place our workers, farmers, manufacturers, and businesses at the center of the 21st-century global economy—one that promotes both our interests and our values.  Trade done right is a critical part of my strategy to create jobs, spur growth, and strengthen the middle class.
With 95 percent of the world’s customers living outside our borders, our ability to access new markets is vital to our economic well-being.  The export of American-made products supports millions of jobs here at home that pay up to 18 percent more than non-export-related jobs.  And, 98 percent of the more than 300,000 companies that export are small businesses.  However, even though more American businesses are exporting than ever before, most businesses still don’t export anything—leaving an incredible amount of opportunity that can be unlocked for our middle class.  To take advantage of that opportunity and level the playing field for our workers and businesses, we’re moving forward with the most ambitious trade agenda in American history, including the Trans-Pacific Partnership.
In the Asia-Pacific region, the Trans-Pacific Partnership will knock down barriers that block American made goods and services while promoting high standards in the fastest-growing region in the world, including the strongest enforceable labor and environmental provisions of any trade agreement.
To protect our workers, the trade agreement will require countries to set a minimum wage, protect the freedom to form unions and collectively bargain, and work to end child and forced labor.  To preserve the environment, it will require countries to take tangible steps to curb wildlife trafficking, crack down on illegal logging, and prevent overfishing.  That’s why conservation organizations like the World Wildlife Fund and The Nature Conservancy agree that the enforceable provisions in the Trans-Pacific Partnership are a critical step forward for environmental protection.
Some prior trade agreements, like the North American Free Trade Agreement, or NAFTA, have not lived up to their promise.  The Trans-Pacific Partnership addresses these problems through strong enforcement mechanisms, including for the labor and environmental standards.  This means that if our trading partners, including Canada and Mexico, aren’t playing by the rules, we can hold them accountable.  The agreement also includes new rules that make sure our businesses and property owners are protected from having property taken by foreign countries, while making sure that foreign corporations can’t undermine or get around our own laws and regulations.  Because we know that unfair currency practices by some governments hurt our workers, businesses, and farmers, we are working with Congress on new tools and standards that will make it easier for us to protect American workers and firms from unfair competition.
The Trans-Pacific Partnership is also America’s opportunity to lead in the Asia-Pacific.  The alternative to this agreement is to let other powers, like China, carve up the region and drive down standards through bad trade agreements.  We cannot stay on the sidelines while China and other countries write the rules of the road.  We have to seize this opportunity to help American workers and businesses compete on a level playing field in the world’s largest markets in the decades to come.
To help us secure the benefits of the Trans-Pacific Partnership, we are working with Congress to enact Trade Promotion Authority, which allows Congress to put forward its priorities for negotiating trade agreements.  The new version of Trade Promotion Authority Congress is considering guarantees that future trade agreements, including the Trans-Pacific Partnership, will have progressive, pro-worker, and pro-environment standards.  This gives us the leverage to bring home the best possible agreements for the American people.
The new Trade Promotion Authority mandates unprecedented transparency by requiring that any trade agreement be published online for 60 days before I sign it, and Congress will then have months to review, debate, and hold hearings on the details of the agreement before they vote on it.  And while we have not yet finalized the Trans-Pacific Partnership, the current agreement is available for all members of Congress to read and review, and we have conducted over 1700 regular briefings with members of Congress on the status of the negotiations and have provided full similar briefings for labor groups, environmental groups, and other interested parties.
With a highly educated workforce, an entrepreneurial culture, strong rule of law, and abundant sources of affordable, clean energy, the United States has what’s required to be the world’s manufacturing hub.  My Administration is working every day to help businesses locate, grow, and hire here so that our businesses ship goods all over the world stamped with "Made in the U.S.A." The good news is that this is already beginning to happen—over the last few years, our manufacturers have been steadily creating jobs in the U.S. for the first time since the 1990s.  Good trade deals like the Trans-Pacific Partnership will continue that trend and ensure that jobs are not outsourced, but rather are created here at home.  We will continue to push forward on these efforts because we know that when the playing field is level, American workers and businesses don’t just compete, they win.
Again, I appreciate your message.  I am confident we can support job growth at home and boost exports while promoting our values and raising standards around the globe.
Sincerely,
Barack Obama

Thursday, May 14, 2015

The Trojan Horse in the TPP that Should Make all Americans Oppose It

Also posted on DailyKos.com and democraticunderground.com

By Dan Riker

Opponents of fast-tracking the Trans-Pacific Partnership ("TPP") won one round, but lost the second in the Senate, and now appear unable to block it there. However, the battle is far from over. Passage in the House is far less certain. And even with the Republicans compromising on some  amendments progressives want attached, perhaps the most dangerous provision of the TPP will remain untouched, a possible "Trojan Horse" that could nullify much of federal, state and local environmental and consumer protection laws and regulations.

The actual provisions of the TPP are being kept secret, with only members of Congress allowed to see them. Of course, there have been many leaks of various details. New York Attorney General Eric T. Schneiderman wrote in Politico Magazine[i] last month: "One provision of TPP would create an entirely separate system of justice: special tribunals to hear and decide claims by foreign investors that their corporate interests are being harmed by a nation that is part of the agreement. This Investor-State Dispute Settlement provision would allow large multinational corporations to sue a signatory country for actions taken by its federal, state or local elected or appointed officials that the foreign corporation claims hurt its bottom line."

Consider what this means. Major multinational corporations, many of which moved their headquarters out of the U.S. to avoid taxes, would be able to evade American federal, state and local judicial and regulatory systems that currently have authority over them.  The implications are enormously dangerous to the American democratic system of government and justice, as well to environmental, consumer and health safety. Schneiderman describes exactly what could occur:

"To put this in real terms, consider a foreign corporation, located in a country that has signed on to TPP, and which has an investment interest in the Indian Point nuclear power facility in New York’s Westchester County. Under TPP, that corporate investor could seek damages from the United States, perhaps hundreds of millions of dollars or more, for actions by the Nuclear Regulatory Commission, the New York State Department of Environmental Conservation, the Westchester Country Board of Legislators or even the local Village Board that lead to a delay in the relicensing or an increase in the operating costs of the facility."

The fast track temporarily was blocked in the Senate because supporters could not overcome the filibuster mounted by the progressives over the refusal of the Republicans to simultaneously approve three amendments to the bill that would mitigate some of the potential negative effects of the TPP. Strong arming by the White House and Mitch McConnnell compromising on the amendments led to a victory for fast tracking today. But Republican support in the House is weaker than it is in the Senate.

One of the amendments limits the ability of participating countries to manipulate their currencies. This is critically important because lowering tariffs does no good for American companies if other countries are able to manipulate their currencies to keep them worth less than the American dollar. That makes their products less expensive in the United States, thus giving them a competitive advantage over rival American products.

But none of the amendments deals with the TPP's new system of regulation that sidesteps American governmental and judicial regulation. As long as this provision remains in the TPP, the treaty, and, especially its "fast-track" should be opposed by all Americans.

That the actual provisions of the TPP are being kept secret and that this separate system of regulation is included are more than adequate reasons for Americans to be deeply suspicious of the real purposes of the TPP. It does not appear to be a real "trade" deal. It does not appear to have great benefits to the people of the United States. It appears to be the work of special corporate interests, multinational corporations already operating almost beyond government regulation. The TPP appears to be another case, a major case, of government largesse for major corporations at the expense of the people.

This is not a conservative vs. liberal issue. This should not be a Republican vs. Democrat issue. It is not an issue of federal vs. states' rights. This is an issue of preservation of the existing American federal system that provides states and local communities the powers necessary to protect themselves from hazardous behavior by corporations.

It is time for Americans to put a stop to the TPP.



[i] Eric T, Schneiderman, Don't Let TPP Gut State Laws: The partnership's potential to undermine state laws should concern Congress. Politico Magazine, April 19, 2015. http://www.politico.com/magazine/story/2015/04/trans-pacific-partnership-state-laws-117127.html#ixzz3a8JQvQGo

Monday, March 30, 2015

A New "Common Sense" Why We Need a New Progressive Movement

By Dan Riker

"There will always be conflict. There will always be competing interests that force us to engage in the hard job of governing ourselves. And so the anti-government thing strikes me as a perversity. I don't think the founding fathers would recognize it. They were constructing a government of the people....
Once we start regarding it (government) as some alien that we can't control, we're done. Democracy's done. That's the last stage of walking away from the responsibility of governing ourselves. It we can't control it, if it is going to be a purchased government, if we can't institute the reforms that are necessary, then we're done. We're done right now."
          -             David Simon, Bill Moyers & Company, Feb. 14, 2014.[i]

"The cause of America is, in a great measure, the cause of all
mankind...
"We have it in our power to begin the world over again."
-            Thomas Paine, Common Sense, 1776

 

Throughout American history there has been constant tension between two competing theories of government: the Jeffersonian vision of an agrarian democracy of semi-autonomous states with the federal government limited primarily to providing national defense; and the Hamiltonian view of a vibrant industrial nation unified by a powerful central government. By and large, the Hamiltonian view won out, but now the nation's ability to meet the challenges of the 21st Century is threatened by a resurgence of support for something approximating the Jeffersonian view.
Abraham Lincoln's statement that government should do for the people what they need done but cannot do for themselves is particularly relevant to the mass, urban, society of 320 million people of 21st Century America. But now we are embroiled in the argument over the proper role of the national government that is blocking virtually all progress toward solving contemporary problems. Indeed, we have one of our two major political parties wanting to significantly weaken the federal government by limiting its scope and reducing its functions, leaving much to private enterprise, or to the states already so financially stressed many have reduced vital services. If the Republicans prevail, what would be the outcome?
University of Oregon economist Mark Thoma provides a succinct answer:
 “(T)he private sector will not, on its own, provide the correct amounts of infrastructure, retirement security, health care spending, protection against monopoly and corruption, unemployment insurance, national defense, environmental regulation, education, food and drug safety, bank regulation, innovation, anti-trust action, safe working conditions, support of basic research, stabilization policy...”[ii]
Are these not necessary to a modern civilization? Are these what the people need to have done, but cannot do for themselves? If the private sector will not do them, or cannot do them, or should not do them, and the states cannot afford to do them, who can? The answer should be obvious, but to many it is not.
The arguments today over the proper role of the federal government in some ways seem no different from those between Jefferson and Hamilton, but there is a big difference between the opponents today. Even though Hamilton and Jefferson disagreed over the means by which it best could be achieved, those two shared with the other founders - the other authors of the American Dream - a vision of a nation that provided equality of opportunity and equality under the laws to all citizens, with no special privileges because of birth or wealth, and a nation that also protected the people from governmental violations of their basic rights, and personal freedom. 
The opponents in today’s struggle over the control and direction of the national government no longer share that vision. The Party that ended slavery no longer believes in the Constitution's concept of equality of citizenship, or even in the social contract, the fundamental basis of democracy. The wealthy and the big corporations now control the Republican Party to obtain greater wealth as well as to protect themselves against regulation and higher taxes, which are needed to solve many of the nation's problems. There is little concern for the middle class and contempt for the poor.
Many of the largest corporations exhibit the worst characteristics of capitalism. They have little loyalty to the United States, or to the communities where they are located, or to their employees, who are viewed almost the same as they were in the Gilded Age, as interchangeable parts that can be thrown away and easily replaced. They are interested only in increasing profits, as fast as possible, at almost any cost, higher and higher stock prices, and greater compensation for their senior managements.
There is a class war and the rich and the powerful are winning. As a result, the “American Dream,” a notion of equality of citizenship, opportunity and basic freedoms for all, is in great danger.
Republicans oppose all efforts to help the poor, or to restore the economic security of the middle class. They want government largesse for themselves and their backers, but none for anyone else. They are perfectly content with the fact that most of the great fortunes made in the United States now held by their most important benefactors largely are due to government largesse, and/or the corruption of American governments. They continue to press for greater government benefits for rich and powerful established interests: More mining or drilling on federal lands, or offshore; permits for pipelines; lower taxes on the rich and on corporations; government subsidies through tax loopholes and benefits; suppression of unions; restrictions on voting; and reduction of financial and environmental regulation. They even seek to make the fundamental bedrock of democracy, free public education, another source of profit for private interests.
Their height of irresponsibility is that they oppose all efforts to combat climate change. They refuse to accept the scientific evidence of climate change, and its causes, probably for two major reasons: their fossil fuel sponsors are trying to block any controls on their industry and its pollution of the environment; and some of Republicans either are religious fundamentalists, or are beholden to religious fundamentalists, who have scientific and common sense-defying views of the world, its history and its origins.
Sen. James Imhofe (R-OK), who has strong backing from the fossil fuel industry, and now heads the Senate Environment Committee, wrote a book, The Greatest Hoax: How the Global Warming Conspiracy Threatens Your Future, [iii] that was published by one of the most extreme rightwing organizations, World Net Daily, through their book subsidiary, that argues, without any proof, that the entire climate change movement is an organized hoax among thousands of scientists around the world. His principal argument against the efforts to curb climate change is that it is an interference with God's work. In 2012 he said on a radio interview program:

Well actually the Genesis 8:22 that I use in there is that ‘as long as the earth remains there will be seed time and harvest, cold and heat, winter and summer, day and night,’ my point is, God’s still up there. The arrogance of people to think that we, human beings, would be able to change what He is doing in the climate is to me outrageous.[iv]

What climate change scientists are saying is that at the present rate of increase the world's temperatures could reach a point when no actions could stop continuing warming, and at some point man could not survive on Earth. However, that does not mean that various kinds of plant life and other forms of life may not be able to live. Thus, Sen. Imhofe does not seem to realize - if he actually is being serious - that there is nothing inconsistent with what climate scientists are saying and what was written in Genesis 8:22. There is nothing in that passage that guarantees that man will survive "as long as the earth remains."
Republicans supposedly stand for conservative ideals of greater personal freedom, expanded economic opportunities, and free markets, but they are skillful in hiding the fact that they really don't. They have made millions believe the falsehood that they are the party of smaller government, lower taxes, and a stronger economy. Using the “Big Lie” technique of repeating untruths over and over until they are believed, they have been very successful in stirring up the suspicion of government that is in the DNA of Americans. They employ various techniques of “dog whistle” politics to ignite some of the nascent racism, nativism and misogynism in their base, unifying them into a major force of opposition to virtually all progressive programs, even though many of the poorer members of their base are, or would be, major beneficiaries of such programs.
Even though Republicans repeatedly describe the Democrats as the “tax and spend” party, Republicans have not been better managers of the economy than the Democrats. Republican Presidents since 1980 have increased the federal budget substantially more than the Democratic Presidents and six of the eight tax increases since 1980 occurred during Republican presidencies.
Reagan increased federal spending by 68%, from an annual budget of $678 billion in his first year to $1.143 trillion in his last. In George H.W. Bush's last year the budget had increased to $1.4 trillion, an increase of 23% in four years.  During Bill Clinton's eight years, the budget increased 32% to $1.86 trillion. Then there was George W. Bush, who managed to nearly double the budget in his eight years to $3,5 trillion, an increase of 88.9%. In Barack Obama's six years, the budget has increased only 18% to $4.2 trillion at the end of 2014.[v]
The national debt under Reagan went from $997 billion in his first year to $2.86 trillion in his last, an increase of 186%. His deficits were dramatically larger than of any President since World War II. Instead of government revenues increasing as a result of the expected stimulus to the economy that his tax cuts were supposed to cause under the theories of the supply-side economists, revenues decreased, and did not recover until near the end of his presidency, after some tax hikes.
Even though Reagan's Republican successor, George H.W. Bush, was the last Republican President to increase taxes, he still increased the national debt in four years by 54%. In his eight years of enormous mismanagement in office, George W. Bush increased the national debt by 105%. It was $5.8 trillion in his first year and $11.9 trillion in his last, and the $1.4 trillion dollar deficit in his last year was the highest one-year deficit in the nation's history, even topping inflation-adjusted deficits during World War II.
By contrast, in his eight years in office, the Democrat Bill Clinton increased the national debt by only 31% and he had budget surpluses in his last four years. Barack Obama came into office at the height of the bank crisis and financial meltdown. Despite that, the increase in the national debt in his first six years has been only 49% and he has reduced the annual deficit from George W. Bush's last year by 65% to $492 billion.
Every one of the financial crises since 1900 that caused economic chaos in the nation occurred when Republicans held the Presidency. These include the Panic of 1907 that caused a huge recession and ultimately resulted in the creation of the Federal Reserve System, the Great Crash of 1929 that caused the Great Depression, and the bank crisis of 2008 that caused the Great Recession.
Republican economic policies of the past 30 years, which encourage companies to outsource to foreign countries, caused the losses of millions of jobs, most of them good-paying middle class jobs. Their tax cuts and their opposition to tax increases have caused the national government to be deficient of the revenue it needs to provide the services it has to provide.
The economy has grown better under Democratic presidents. Republicans have held the White House for 20 of the past 33 years and during those years the national economy grew a total of 52.5%, an annual average of 2.6%. In the 13 years Democrats have held the White House, the economy grew a total of 44.9%, an annual average of 3.2%.
Most of the federal government programs that have had the greatest benefit for the greatest number of people in the United States since 1900 were initiated during three brief periods: the Progressive period from 1901 to World War I; during Franklin Roosevelt's New Deal, prior to World War II; and in the very brief time before Lyndon Johnson's presidency was destroyed by the Vietnam War in the 1960s. Most of the programs of those periods are enormously successful and popular. Most Americans today view food and drug regulation, Social Security, Medicare, Medicaid, Head Start, and many more as essential government services.
Each progressive period began as the result of a calamity. However, in each case, the conditions were ripe for change. Two of the three progressive periods were set off by Presidential assassinations, of William McKinley in 1901 and of John F. Kennedy in 1963. The election of Franklin Roosevelt in 1932 was the result the Great Crash of 1929 and the resulting Great Depression.
Each calamity brought in a dynamic leader with his political party in complete control of Congress, and each was in a position to have progressive legislation supported and passed. The programs of these th4ree progressive periods have been enormously successful and of great benefit to the vast majority of the American people.
The Nixon, Ford and Carter presidencies, between 1969 and 1981, were full of crises, scandals and economic disruption that included high oil prices, near-record inflation, and high unemployment. Government seemed incapable of coping competently with the nation's problems, and someone came along who said the New Deal and liberal ideas no longer worked, that there was another way, and, by a small popular vote margin - but a landslide in electoral votes - the people bought that argument. 
As it turned out, the radically conservative economic policies of Ronald Reagan - basically a return to the Social Darwinist “laissez-faire” policies of the Gilded Age - did not solve our problems. They made them far worse, but the extent of the damage only recently began to be fully realized. As with other periods of laissez-faire government, there was significant economic growth, but as with those other periods, the benefits of that growth went almost entirely to the rich and to the big corporations. While taxes on the rich were lowered dramatically, they actually increased on the middle class. The average hourly wage declined during Reagan's Presidency, and the huge movement of jobs out of the country began.
None of Reagan's successors significantly altered the nation's economic policies, and now we know that 30 years of these policies have hollowed out the middle class, increased poverty, created the greatest economic disparity in modern history, and weakened the economy of the nation, and, as a result, our security.
Barack Obama's slogan of "Change We Can Believe In," struck a powerful chord with millions of Americans. He did not bring the change he promised, and that has been disillusioning to many of his supporters, and has weakened the Democratic Party's appeal. But the fact that the people so clearly wanted change shows that we have reached another of those times in our history when the situation is ripe for change, and when change is necessary to our survival as a democratic capitalistic society.
The "common sense" answer to America's economic and political problems is obvious. There is only one type of government that will do what needs to be done: a progressive government. That can only come to pass if progressives take control of the Democratic Party and then win elections at all levels of government. Republicans must be driven out of office from the city council to the U.S. Senate and House of Representatives.
The opportunity exists once again, as it did in 1776, "to begin the world over again." The choice this time is better than it was in 1776. We do not have to have a violent revolution, but there is no guarantee we will not have one if the present course of the country is not altered. Peaceful change can occur, but it will take more than a political slogan, or one leader. This is not a campaign that can be fought once, in one election, with any expectation of lasting victory. A government run by progressives for an extended period of time on behalf of all the people will only come from a concentrated, long-term campaign that captures the minds and the hearts of the majority of Americans.


[i]  Simon, journalist and creator of the HBO series, The Wire and Treme, was the subject of a two-part interview by Bill Moyers, the first part on Jan. 31, 2014 http://billmoyers.com/episode/david-simon-on-america-as-a-horror-show/ and the second part on Feb. 14, 2014, http://billmoyers.com/segment/david-simon-on-our-rigged-political-system/
[ii] Thoma, Mark. “For Obama, State of the Union Means State of the People.” The Fiscal Times, February, 12, 2013.
[iii] Imhofe, James. The Greatest Hoax: How the Global Warming Conspiracy Threatens Your Future. WND Books, 2012.
[v]  All of the figures in this section come from, or are calculated from, official federal budget data available at http://www.usfederalbudget.us/ and from http://www.whitehouse.gov/ (both last accessed on Jan. 10, 2015)

Tuesday, March 10, 2015

What would it be like to have a war with Iran? Obscenely expensive in cash and lives

It would be very refreshing, and unusually intelligent if, before the U.S. goes into another war, we know what we are getting into. With even a cursory look at what might be involved in a war with Iran it does not take military genius to see that it will be extremely painful and very costly in cash and lives with no guarantee of success. We already have suffered through this movie more than once. Do we need to do it again? This time it could be much, much worse.

The United States armed forces are vastly superior to Iran's, more than twice as large and far better equipped. Iran's air and naval forces don't even compare with the enormous firepower of America's. This is because Iran's military forces are not designed for conquest. No government of Iran, or Persia, has launched an offensive war since the Middle Ages. Their forces are designed for defense, and for that reason, Iran would be extremely difficult to defeat and occupy.

The intelligently reasoned and relatively good-humored response of the Iranians to the letter 47 Republican senators signed attempting to undermine negotiations with Iran shows that country is not in the hands of a lunatic like Saddam Hussein. However, we cannot expect them to be so polite if we bomb their nuclear sites. They will retaliate and they have the capabilities to inflict enormous damage on the region.

The United States would not be the first country to discover the difficulty of fighting the Persians. Iran is not a modern invention of Western imperialism, as are Iraq and a number of Middle Eastern countries. Its population identifies with the nation and has great pride in its history and heritage. Versions of the nation of Iran have existed for thousands of years. It is one of the oldest continuing cultures in the world. Its Persian language, Farsi, is one of the oldest languages spoken today. Seldom has the country been conquered by outside forces. The last was in the Middle Ages.

The demographics and various other statistics about Iran should make all policy-planners think very carefully about engaging this country in war. Iran would be the largest country the U.S. has fought since WWII.

The population is 80 million compared to Iraq's 30 million. Its people are 85% literate and many in urban areas are college educated. The urban areas have active middle class cultures, with western music and western food (even copycat McDonald's). Millions of Iranians have relatives in the United States. There is not nearly the hostility to the United States among the population in Iran that exists in many other Islamic countries that are "allies" of the U.S.

Iran has eight cities with populations greater than one million. Tehran is the largest, with 8.2 million. Iraq, by comparison, has only five cities with one million or more people, and the largest city, Baghdad, has a population of 5.7 million.

Iran is about the size of Alaska, with a land area of 636,000 square miles, which is about one-fifth the land area of the continental United States and more than twice the size of Texas, which has a land area of 268.000 square miles. Unlike Iraq, which is primarily desert and river watersheds, Iran is mostly high plateau and mountains. That terrain always has presented enormous difficulties to invaders.

If an all-out war breaks out that requires an invasion of Iran, consider the difficulty, the expense, and the forces required for occupation. It is four times the size of Iraq. About 200,000 soldiers were needed in Iraq and they were not nearly enough. How many more hundreds of thousands of soldiers would be needed to pacify and occupy Iran? Probably more than the U.S. has today. Without the support of many allies - and that support does not exist today - the Draft would have to be used in the U.S.

Iran is a very different country from Iraq, even though it controlled the land of Iraq for a very long time. The majority Shi'a population of Iraq is a result of the long term Iranian dominance.

The ethnic makeup of Iran is markedly different from Irag: 61% Persian, 16% Azeri, 10% Kurd, Lur 6%, Baloch, Turkmen, Turkic and Arab each 2%. Iraq is 75% Arab, 15-20% Kurd, and no other group greater than 5%.

The Shi'a sect of Islam is Iran's official religion, and 90-95% of the population are Shi'a. Sunnis represent only five to 10 percent. As a result of the U.S. conquest of Iraq, Shi'a is now the official religion there as well, but only about 60 to 65% of the population are Shi'a. Sunnis are most of the rest with very small populations of a number of other religions, including some very early Christian sects.

The dominant Shi's religion is not nearly as restrictive of women as is the conservative Sunni sects in countries like Saudi Arabia. Shi'a also is much more compatible with science and technology and modern culture. All three of the most extremist Islamic movements, ISIS, al-Qaeda and the Taliban are Sunni.

The official language of Iran is Farsi (Persian) but not everyone is fluent. About 18% speak Azeri Turkic dialects, 10% speak Kurdish and smaller percentages speak several other languages. Only about 2% speak Arabic. English is spoken by many of the educated people in the urban areas.

One of many of the problems encountered by the American military in Iraq and Afghanistan was the lack of knowledge of the languages. Many soldiers who served multiple tours of duty learned some Arabic. But it probably would be safe to say that the American military probably has very few Farsi speakers, and even fewer of the other dialects.

Iran's military forces have a dual purpose. National defense is one, and keeping the Ayatollah and the mullahs in power is the other. As a result their military forces of about 800,000 (twice the size of Saddam Hussein's military) are divided into the traditional military units and the Revolutionary Guards. The Guards have greater power because they report directly to the Supreme Leader, the Ayatollah. The Revolutionary Guards frequently have been the forces used to put down anti-government demonstrations. The military is equipped with a combined total of several thousand tanks, armored personnel carriers and artillery units.

Military forces are spread all over the country. There are more than 300 airports. Iran has an air force of several hundred planes and helicopters, some of them American made and more than 30-years old. Some they have built from Russian models. They also have drones.

There are numerous military installations along the Persian Gulf, equipped with many different kinds of rockets, some able to reach the Saudi oil fields on the other side of the Gulf, which almost certainly would be among the first casualties of a conflict. Other Iranian rockets are capable of sinking American warships, or shooting down intruding aircraft. The Iranian navy consists of hundreds of small speedboats capable of launching rockets and torpedoes. They have a small fleet of submarines, mostly mini-subs that can launch torpedoes. They have fairly sophisticated air defense capabilities, a good deal of which they purchased from Russia. They have tested ballistic missiles that may have ranges that could reach Israel.

If you read any of the several Iran-war scenarios that have been posted on-line, there is a fair amount of agreement that among the first casualties of a war with Iran will be the oil traffic through the Persian Gulf Strait of Hormuz. The Iranians have the capability of sinking enough ships in that narrow passage to block it off. That would decrease the world's oil supplies by about 20% and send oil prices into the stratosphere. Three-dollar gasoline would quickly disappear in the United States. Even though much of the U.S. oil supply now is coming from domestic sources, the pricing is done according to the world market prices. And the world market prices would multiply several times.

Another one of the scenarios that military writers have described is the possibility that Iran's allies in Palestine and Lebanon could launch an all-out ground and rocket attack on Israel. One writer calls it the "second front."  Iran has furnished Hezbollah in Lebanon with most of its armament including thousands of rockets and missiles. Hamas in Palestine had a falling out with Iran over Syria, but apparently that breach is in the process of being patched up.  In any case, it seems likely that the Iran war would not involve just the land area of Iran, but quickly could spread, with Israel in active combat with both Hamas and Hezbollah in Palestine, Lebanon and Syria.

The wild card would be Iraq, where the government is Shi'a and has close ties to Iran. In fact, Iranian forces are fighting alongside Iraq's forces against ISIS. If Iraq sided with Iran, the United States would not have access to Iraqi territory. It also seems likely that Kuwait then would become a prize target of an Iranian-Iraqi alliance

There also is the situation in Afghanistan, which shares a very long border with Iran. NATO forces are being withdrawn and only a relatively small force will be left. The Taliban has been increasing its attacks. Almost certainly they will attempt to regain control of much of the country. The U.S. could find itself fighting Iran and the Taliban at the same time, even though the two are enemies.

The Afghan government has a hostile relationship with Pakistan because it blames Pakistan for supporting the Taliban. Consequently, the Afghans have developed relationships with India. And an unstable situation in this region could exacerbate the already tense relationship between the two nuclear powers, Pakistan and India.

Iran could be the key player in resolving every conflict from India to Israel, or uniting them into all-out war that could escalate into a nuclear catastrophe. There is a great deal that needs to be thought about, and discussed, on a national level in the United States before any planes or cruise missiles are sent towards Iran.

Monday, March 9, 2015

47 Senators have committed a felony but they probably won't be prosecuted

The Republican congressional contempt for President Obama has gone beyond the point of insanity to something approaching treason. When 47 U.S. senators signed and sent a letter to "Leaders of the Islamic Republic of Iran," they may have committed a felony by violating the Logan Act, which forbids citizens from corresponding with foreign governments with the intent to influence their actions towards the United States.

The letter, first reported by Josh Rogin of Bloomberg signed personally by 47 senators, including the leadership and several potential Presidential candidates, basically urges Iran's leaders not to do an agreement with President Obama because any deal they do may not last past his presidency. The entire letter can be seen here. The only Republican senators who did not sign the letter were Senators Lamar Alexander (TN), Susan Collins (ME), Bob Corker (TN), Dan Coats (IN), Jeff Flake (AZ), Lisa Murkowski (AK), and Rob Portman (OH).

This is an unprecedented act of disloyalty to the United States by members of Congress. They are endangering a delicate negotiation with Iran that is about to reach its climax. If they are successful in torpedoing the negotiations, the result may be another major war.

 Their actions clearly violate the express terms of the Logan Act, which was first enacted in 1799, but has been reaffirmed a number of times since then. The Act (1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004), reads:

"Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both."

The Logan Act was enacted when John Adams was President during the time of the "Quasi War" with France, an undeclared conflict that lasted several years in the 1790s because the United States stopped repaying its debts to France incurred during the Revolution. The United States took the position that the debts were owed to the French royal family, not to the nation in general. The French, who were at war with Great Britain, were properly outraged by the lack of loyalty of the Americans whose victory over the British in the Revolution was due in no small measure to French military and financial support. The French attacked and seized American merchant vessels. The result was an undeclared war, fought mostly at sea, and it featured the first combat by the new U.S., Navy's soon to be legendary, USS Constitution, ("Old Ironsides").

The situation today is remarkably similar to what was going on at the time the Logan Act was enacted. There is an intense debate going on today over what American policy should be towards Iran, with powerful interests, including foreign countries, lobbying intensively inside the U.S. as Israeli Prime Minister Netanyahu did before Congress last week. At the same time, diplomats from a group of nations, including the United States, have been negotiating with Iran in an effort to get them to end their nuclear program. A deadline for an agreement is coming at the end of this month.

In the 1790s British and French interests were very active inside the U.S., including involving themselves in American politics and whipping up crowds of support. A Pennsylvania state legislator went to France and urged the French to ease up on their aggression towards the U.S. and to release the many American prisoners they held. The French did both, but the interference by a private citizen in the country's foreign policy caused this Act, named after that legislator, to be enacted. It has been the law ever since that only the President conducts foreign policy.

While questions have been raised whether the Logan Act might be unconstitutional because of the vagueness of its wording, it never has been ruled on directly. However, in a 1936 Supreme Court decision, United States v. Curtiss-Wright Export Corp that involved a different issue, Justice Sutherland wrote that the "President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it."

As recently as 2006, the Committee on Standards of Official Conduct of the United States House of Representatives wrote to members that while it questioned the Logan Act's constitutionality, the law still was in force and that it prohibited any citizen from trying to influence foreign governments in regard to "any disputes or controversies with the United  States, or to defeat the measures of the United States."

There have been many alleged violations of the Act over the years, but only one prosecution, and that one in 1803. In recent years, allegations of violating the Act were made against various prominent politicians who visited foreign countries and talked with their leaders, from Senators. George McGovern and John Sparkman to Rep. Nancy Pelosi. The State Department has taken the position that it is not a violation of the Act for public officials to have conversations with foreign leaders about issues relevant to their legislative duties.

Never has there been a clearer violation of the Act than this letter, which goes way beyond the State Department's limitation of the Act. However, it is impossible to imagine that the Senators will be prosecuted, even though they should be. What they have done is close to treason. Never before has there been an official communication from members of Congress to a foreign nation involving sensitive diplomatic negotiations being carried on by the President and the State Department.

But then there has never been a majority party in Congress as irresponsible and as disloyal to the United States as the current Republican Party. Their contempt for the President is so enormous that it has blinded them to the damage they potentially could do by writing this letter.

They well could be responsible for causing a war with Iran that could have horrible consequences far greater than any recent war. Consider all that is going on: The ISIS conquest of Syria and Iraq still raging; The Russian invasion of the Ukraine still underway, and the Europeans beginning to send in military aid; And the Taliban about to try to re-conquer Afghanistan.


A peaceful settlement with Iran could help bring ends to these other conflicts. A war with Iran will ignite a conflagration beyond anything seen since World War II. No rational, or person with the best interests of the United States at heart would try to disrupt a peaceful settlement with Iran. But that is exactly what these 47 senators have attempted to do.