ymeskhout
10mo ago
There Are No Amendments In Islam
Sarah Haider writes a compelling analysis of the odd political re/alignment you see playing out today between Christians and Muslims on social issues:
Similar scuffles are taking place in Canada, and around the world conservative Christians are locking arms with Muslims in their opposition to the inclusion of gender and orientation in classroom materials. Some are applauding this new brotherhood of Abraham, and hoping that this heralds a change in the winds.
There's really nothing surprising about this alliance at the object-level. What religious Christians and Muslims believe about how society should be structured in regards to promiscuity, sexual modesty, and traditional family structures have long been near-impossible to tell apart. The overlap also bleeds into superficial similarities about isolated rural ranchers defending their traditional way of life from outside influences, while openly carrying their firearms to their places of worship (am I talking about the Taliban or...?).
Sarah is correct that the modern alliance between liberal progressives and Muslims was a marriage of convenience that took advantage of some unusual culture war circumstances, but it's a tryst that was bound to fray apart given the fundamental policy disagreements. One of the efforts to keep the bandwagon held together comes from what Sarah terms Muslims in Name Only (MINOs):
If Muslims decide to be more vocal about their opposition to leftist social agenda, they will find that MINOs will be invited to speak over them, and will succeed in drowning them out. We will be treated to a barrage of ludicrous op-eds that posit Islam as a LGBT friendly religion ("How Muhammad Was The First Queer Activist", etc) as well as profiles of camera-friendly gay Muslims who claim to find no contradictions between "their Islam" and homosexuality. The more intelligent among the MINOs might attempt to put a more theological spin on it with a few cherry-picked quotes from hadith or the Quran, or perhaps bring in some historical flavor by blaming colonizers for anti-gay legislation in the Middle East. "True Islam", it will be revealed, is a religion of Peace and #Pride.
I was raised Muslim but abandoned it as an atheist a long time ago, and this passage is particularly painful for how real it is. The discordant discourse above has largely been operating in parallel and disconnected tracks. On one side you get a bevy of purportedly "Muslim" activists announcing that Islam can mean whatever you want it to mean, and actual Muslim religious scholars responding with The Fuck?:
By a decree from God, sexual relations are permitted within the bounds of marriage, and marriage can only occur between a man and a woman. In the Quran, God explicitly condemns sexual relations with the same sex (see, e.g., Quran, al-Nisā': 16, al-A'rāf: 80–83, and al-Naml: 55–58). Moreover, premarital and extramarital sexual acts are prohibited in Islam. As God explains, "Do not go near fornication. It is truly an immoral deed and a terrible way [to behave]" (Quran, al-Isrā': 32). These aspects of Islam are unambiguously established in the Quran, the teachings of Prophet Muhammad (peace be upon him), and a chain of scholarly tradition spanning fourteen centuries. As a result, they have gained the status of religious consensus (ijmā') and are recognized as integral components of the faith known to the general body of Muslims.
As an atheist I have all sorts of complaints about all religions, but the attempts to rehabilitate Islam's image to better fit liberal sensibilities are pernicious for their particular dishonesty. Because one of the few good things I'll say about Islam is to praise its unusual commitment towards scriptural fidelity.
In case you didn't know, Islam was founded around 600 AD explicitly as the final entry in the Abrahamic religion trilogy. Islam was not presented as an alternative to Judaism and Christianity, rather it was heralded as the true and uncorrupted version of those creeds. According to Islamic lore, Allah (literally just the Arabic word for God) created the world and everything in it and then spent the next however many millennia trying — and implicitly failing — to convey his divine message to humans through a long succession of prophets. First man Adam was also the first prophet, and he was followed by well-known Biblical heavy-hitters like Ayyub (Job), Musa (Moses), and of course 'Isa (Jesus). The full list is unknown and unknowable but Islam assures us that every community throughout history received at least one of Allah's Verified™ messengers.
The reason Muhammad of Mecca is special in Islam is because he's Allah's final message delivery attempt. Adam was the first, and Muhammad is heralded as the "Seal of the Prophets" to underscore the finality. I won't get into exactly why god needed so many attempts to convey his message, but a common point of criticism from Muslims about past attempts (such as Christianity) is that god's message was corrupted and lost through misguided translation attempts. I say this as a Muslim apostate with no stake in the debate but the concern over the Bible's reliability seems uncontroversially true to me given the inherent limitations of translation, and the resulting myriad of competing versions. After centuries of debating whether the in John 1:1 was intended to be a definite or indefinite article from the original Greek, I can see why someone would be too traumatized by the prospect of any translation attempt.
To their credit, early Muslim scholars appear to have taken this mistranslation concern very seriously. All of Muhammad's revelations were collected over time by his followers and, after his death in 632 AD, were compiled into a single book known as the Quran. Islamic theology insists that the Quran is the literal word of Allah which means it has never been modified. Given the religious motivations at play, it's natural to be skeptical of such a claim but it does appear to be solidly supported by the archeological evidence available, with the oldest Quranic manuscripts radiocarbon dated to between 568 and 645 AD and matching what we have available. The commitment to the divine inviolability of the Quran is also reflected in the expectation that, everywhere from America to Indonesia, all practicing Muslims are required to learn and recite passages in the original Arabic. Translations of the Quran exist of course, but reluctantly so and intended solely as a study aid.
The Quran is the central commanding text, but below it are hadiths — a sporadic collection of stories, speeches, and anecdotes attributed to Muhammad and a significant source for how to live the Good Muslim Life (covering topics such as when to assalamualaikum your bros, whether cats are cool, or how to wash oneself before praying). Unlike the Quran, hadiths are not seen as direct guidance from Allah. Instead, their reliability as a guiding lodestar is obsessively assessed in proportion to their authenticity. So some hadiths will be accepted as controlling authorities because they're heavily corroborated by reliable narrators, while others get dismissed because they're fourth-hand accounts on a weird topic and with a dodgy chain of transmission.
The point is, given the obsession over the lineage of the Quran and *hadiths, *it's no surprise that Muslims today come across as especially zealous about following their deen. There's no leeway to fall back on mealy-mouthed "Living Quran" rationalizations for why only some aspects of Islam should be obeyed but not others.
Islam's etymology is about unquestioning submission to authority, purportedly only to god's authority but that's a hard demarcation to keep in mind when political and religious power is near-impossible to disentangle within Muslim countries. Its focus on the eternal afterlife for doling out rewards for devotion endowed me with a fatalistic perspective about my temporary earthly existence at a formative time where I was still grappling with immigrating to the US. My depressed ass then couldn't wait to hurry up and die — an overwhelming desire to to get it over with already so that can experience the promised happiness at last. I left Islam because it's a regressive and stifling bundle of superstitions, ill-suited to living out a fulfilling existence. In consideration of the billions today living under its penumbra, I wish it wasn't so, but that sentiment is not enough to change reality.
I'm comfortable saying that the MINOs who self-appoint themselves as the religion's modern rehabilitators are blatantly lying. If I had to guess at their motives, it probably has something to do with the fact that being a member of a religious minority is too valuable an emblem within the Progressive Stack of oppressed identities to give up completely. For Islam to be the religion least amenable to revisionism does not matter when it's put up against such an irresistible force.
Does Trump sue just to fundraise?
Throughout the early history of the American legal system, if you wanted to sue anyone in court you had to follow this arcane and inconsistent labyrinth of common law pleading rules. What we today generically call "lawsuits" were pointlessly split up into "actions at law" or "bills in equity" or whatever, all of which had different pedantic rules depending on the jurisdiction you're in (for a long time, federal courts dealing with state law had to apply procedural rules that were in effect at the time the state joined the Union). When the Federal Rules of Civil Procedure were first created in 1938, the intent was to get rid of the stodgy traditional requirements in favor of something comparatively more informal. As reflected in Rule 8, all you really need to file a lawsuit is a "a short and plain statement of the claim showing that the pleader is entitled to relief" in your complaint.
This "permissive" paradigm was put to the test in front of the same guy who was responsible for writing those new rules, Judge Charles E. Clark. The 1944 case Dioguardi v. Durning is a fun read, and involves a handwritten lawsuit filed by a guy with a very questionable grasp on the English language complaining about a customs official seizing "tonic" bottles "of great value" imported from Italy. Clark ruled that "however inartistically they may be stated" the guy was clear enough to meet the new pleading standards. For a more modern example from a much more complicated case, see the complaint that was filed in the Tesla Securities lawsuit (I know nothing about this case, just picked it at random for an example). Despite the complex subject matter and the number of people involved, the complaint is only 58 pages and is structured logically enough to make it relatively easy to follow. It establishes why the court should hear the case, some background facts, and then articulates in clear detail who harmed who and why the court should do something about it.
In contrast, compare the lawsuit that Lance Armstrong filed against the U.S. Anti-Doping Agency in 2012. The Judge took one look at the PDF, saw that it was 80 pages long, and promptly dismissed it with a "I ain't reading all that" ruling:
Armstrong's complaint is far from short, spanning eighty pages and containing 261 numbered paragraphs, many of which have multiple subparts. Worse, the bulk of these paragraphs contain "allegations" that are wholly irrelevant to Armstrong's claims and which, the Court must presume, were included solely to increase media coverage of this case, and to incite public opinion against Defendants. See, e.g., Compl. [#1] ¶ 10 ("USADA's kangaroo court proceeding would violate due process even if USADA had jurisdiction to pursue its charges against Mr. Armstrong."). Indeed, vast swaths of the complaint could be removed entirely, and most of the remaining paragraphs substantially reduced, without the loss of any legally relevant information. Nor are Armstrong's claims "plain": although his causes of action are, thankfully, clearly enumerated, the excessive preceding rhetoric makes it difficult to relate them to any particular factual support. This Court is not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants, by sifting through eighty mostly unnecessary pages in search of the few kernels of factual material relevant to his claims.
Since lawsuits are already a vehicle to air grievances, it's understandable when clients/lawyers try to sneak in as many parting shots as possible. Lawsuits are endowed with an aura of gravity and seriousness that a bare press release or op-ed outlining the same grievances would lack. Unless things get *too *egregious, there's not a whole lot a judges can do to stop the practice of trying to disguise a press release under a legitimate lawsuit costume.
Back in March of last year, Trump filed a wide-ranging 108-page lawsuit against Hillary Clinton and several dozen other defendants. You can read the entire lawsuit yourself here but the basic allegation is defamation over claims/insinuations that Trump colluded with Russia during the 2016 election. The complaint was later "amended" in June to include yet more defendants, and ballooned to 193 pages in the process.
The Trump v. Clinton et al lawsuit eventually got dismissed last September. For a full accounting as to why you can read the 65-page opinion but the short summary is the lawsuit was a confusing constellation of disconnected political grievances Trump had smooshed together into a laundry list of allegations that could not conceivably be supported by any existing law. For example, Trump's lawyer Alina Habba alleged malicious prosecution without a prosecution, alleged RICO violations without predicate offenses, alleged obstruction of justice without a judicial proceeding, cited directly to reports that contradicted their claims, and on and on. None of these problems are supposed to be common knowledge, but it is *very *basic stuff any lawyer filing a federal lawsuit should either know or research before they step foot on a rake. But when the defendants in this case pointed out the problems, Habba's response was to just double down instead of correct them. My favorite tidbit was when they justified why one of the 30+ defendants, a New York resident, was being sued in a Florida court (even federal courts need personal jurisdiction established) by claiming that defendant should've known that the false information they were spreading would end up in Florida, and also that they "knew that Florida is a state in the United States which was an important one."
When someone is served with any lawsuit, they have an obligation to respond or risk losing the entire case by default. In very rare circumstances (namely with handwritten complaints from prisoners with nothing better to do), a lawsuit is so patently bogus that a defendant can sit on their laurels doing nothing, confident it will get dismissed without them having to lift a finger. Before Trump's lawsuit was dismissed, a veritable legal machinery from the 30+ individuals/corporations sued whirred into action, ginning up an eye-watering amount of billable hours in the process to investigate and respond to the allegations. The judge in this case was seriously annoyed by all this and on Thursday she imposed sanctions by ordering Habba and Trump to pay everyone's legal bills, totalling almost $938,000. You can read the 46-page opinion here.
I've written before about pretextual excuses, such as when NYC *claimed *their employee vaccine mandate was for public health reasons, but then implemented exceptions that were inconsistent with their lofty claim. I argued it's reasonable to conclude NYC was lying. Similarly, Habba may claim as a lawyer that her lawsuit was to pursue valid legal remedies on behalf of her client, but when her efforts are completely inconsistent with that goal, it's perfectly reasonable to conclude she's lying. If valid legal remedies was the real goal of the suit, even someone like me --- with no experience civil litigation --- can contemplate trivial changes which would have significantly improved its success (most obviously don't wait past the statute of limitations, don't try to sue 31 different entities all at once, don't try to sue in a court that lacks jurisdiction, don't try to sue fictitious entities, etc.). So if that wasn't the real goal, what was?
The judge in this case strongly suspects the real purpose of the (bogus) lawsuit was to use it as a vehicle for fundraising. The vast scope of characters sued matches with this explanation because while a disparate cast of defendants legally frustrated the lawsuit in the courtroom, it does make for a better headline when soliciting donations (Clinton! Adam Schiff! James Comey! Lisa Page! Peter Strzok!). Trump has a pattern of filing frivolous lawsuits (like suing the Pulitzer Prize Board for defamation for awarding NYT and WaPo) and then following up with "breaking news alerts" soliciting donations for his Save America PAC, so the timing matches up. The fundraising efforts appear to be working well, with the PAC having about $70 million on hand as of last fall.
The sanction this judge imposed is the highest by far imposed on any of Trump's attorneys. It's possible this is a coincidence, but the day after the sanctions, Trump voluntarily dismissed the lawsuit he filed in Florida (??) against New York's Attorney General. I'm assuming the judge hopes the $1 million penalty will discourage further waste of time for the courts and other potential defendants, but the fundraising mechanism I described feeds itself. The higher the sanction imposed, the more urgent the breaking news alert begging for money will be.
=edited
Much of the criminal justice systems operates on an assumption (or rather, an aspiration) that prosecutors and law enforcement should be trusted to carry out their duties honestly. While I don't believe this assumption is worth much, it's the reality we live in given the limited avenues for redress available. For one, prosecutors and judges have absolute immunity for misconduct, and law enforcement has qualified immunity for misconduct (which, practically speaking is basically absolute immunity with a few extra steps Edit: as @Gdanning mentions here, I significantly overstated the equivalence here). If you get fucked over by any of them, tough luck. Two, law enforcement has a close working relationship with prosecutors, and most judges are former prosecutors. Because of how the adversarial system is structured, there's a systemic bias against ruling in favor of defendants' (read: criminal's) rights. This is especially a problem when you consider that literally the only source of search and seizure precedent comes by definition from criminals asking a court to ignore damning evidence because it was illegally seized.
I just described a system where the levers of power are held by a fairly cloistered group of people, and it all skews heavily on the side against the meek defendant. There are indeed some attempts to artificially inject fairness into the system. Because civil lawsuits are assumed (not always reasonably) to involve two opposing parties on roughly equivalent footing, the evidentiary standard there is preponderance, which is basically 50% plus one. But for criminal trials, where it's the full weight of the government bearing down on a single person, it's beyond a reasonable doubt, which is basically you better goddamn be real fucking sure. Another difference pertinent for this post is what would be referred to as Brady obligations, where prosecutors are obligated to turn over every evidence which might be helpful to the defendant (who, unlike a civil litigant, has no equivalent obligation to the other side).
For the most part, verifying that a prosecutor has met their Brady obligations is near-impossible. Prosecutors are considered part of law enforcement, and they naturally have access to an entire universe of information which the other side will never see (for example, details about ongoing investigations which would tip off the subjects if it was revealed prematurely) so whether or not they've turned over every Brady material is an exercise in trust. I have to trust that the prosecutors aren't lying, and that they reviewed all the evidence they have and made a fair assessment on whether or not it's exculpatory. This is why virtually every Brady scandal involves exculpatory evidence that came to light accidentally. A fuck-up, in other words.
And oh man was there ever a fuck-up.
This happened this week during the jury trial of Ethan Nordean, a Proud Boys leader charged with seditious conspiracy stemming from his actions in January 6th. I haven't followed his case at all, but his defense attorney just filed this banger of a notice regarding the testimony of FBI agent Nicole Miller. As a government witness, Miller has an obligation to turn over any written statements she made regarding the subject of her testimony (this is known as a Jencks obligation). FBI agents use an instant messaging system called Lync, and Miller handed over a spreadsheet with 25 rows of Lync messages. Miller testified that this was her entire Jencks obligations, and she denied withholding any messages about Nordean's conspiracy charges, denied withholding any messages about whether anyone listened in on attorney-client calls, and denied withholding any messages about whether any reports (dear heavens) were falsified. And so forth. Miller just said no, absolutely not, no way.
Normally this is where the story would end, except Nordean's attorney revealed that the spreadsheet Miller had sent contained about a thousand hidden Excel rows, many of which absolutely one hundred percent directly contradicted Miller's testimony. For example, there were messages about:
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An agent asking Miller to edit a confidential informant report to remove mentioning the agent was present
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An agent reviewing attorney-client communication about trial strategy
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Agents openly expressing doubt about a Proud Boys leader's involvement in a conspiracy
And so on.
I'm certainly excited to see how Miller tries to get out of this vise. My assumption is that the prosecutor will dismiss charges against Nordean in a feeble attempt to make this go away (or a judge can do it for them, which is what happened with the Bundy ranchers).
It's certainly fucking funny that an FBI agent tried hiding Excel rows thinking they were deleted (this is known as the peek-a-boo fallacy). More seriously, FBI agents are acting this brazenly even though they're well aware how much public scrutiny is directed towards J6 cases. I think one can reasonably assume they'd have even fewer scruples in cases involving defendants no one gives a shit about.
Some jurisdictions (starting with North Carolina in 2004) have what's called an open-file discovery rule where everything in the case file (no matter how banal) is provided to the defendant by default. Tucker Carlson got access to and released footage of Jacob Chansley (aka QAnon shaman who was sentenced to 41 months in prison) calmly walking inside the capitol, which appears to contradict his charging documents. More relevantly, Chansley's attorney apparently never got that footage before. I assume the government will now argue that the footage they kept hidden wasn't that exculpatory but really, that should always be up to the defense attorney to decide.
Of course, even if open-file became the norm, law enforcement will get wise not to put incriminating statements on paper (hot tip: when doing FOIA requests, pay attention to any email or text that asks to speak on the phone about a sensitive subject). So beyond open-file discovery, I'd also keep riding my other cute little hobby horses and argue this is another reason to jettison qualified/absolute immunity. Anyone disagree?
ymeskhout
1yr ago
Back in the 2020's polarizing summer of rage, there was a moment of outrage that was uncharacteristically unifying: The Smithsonian's "White Culture" infographic.
As I wrote at the time, the lessons imparted by this purportedly "anti-racist" infographic are virtually indistinguishable from what real life white supremacists would argue. The List immediately offended everyone and the Smithsonian quickly walked back, claiming it was misunderstood.
Fast forward to a few days ago when Ryan Grim published an exclusive interview with Tema Okun, the original creator of The List, claiming that everyone got it "all wrong." If the goal was to get me to click well it fucking worked because I listened to the entire podcast episode and...I have no idea in what way Okun's work was at all misinterpreted or otherwise gotten "wrong".
Let's start at the beginning. I previously tried to track down The List's origin but gave up after I only found xeroxed pamphlets. Turns out that Okun wrote The List in a fit of frustration, without any research whatsoever:
I went to a meeting and it was a very frustrating and horrible meeting. And I came home and I sat in front of the computer. And the article literally came through me onto the computer. It was not researched. I didn't sit down and deliberate. It just came through me. And I've never had that experience with my writing, before or since.
So she just pulled this out of thin air, but notice what she considers as validation that she was onto something (emphasis mine):
The tragic relevance of the list was reinforced a few years later when I was co-facilitating a workshop at a national conference of progressive attorneys and law students. We asked participants to work in small groups, looking for ways in which these characteristics show up in their personal and organizational lives. Asked to report, one young student spoke for her group, sharing that the list represents all the characteristics taught by law schools as essential to success in the profession. And that's exactly the point -- our institutions not only value these characteristics, they to some extent require them and constantly reproduce them in order to benefit from them, which is why they are so prevalent in our culture and institutions.
The burning question on my mind throughout, a curiosity Grim apparently does not share, is what makes any of this part of "white" culture? They finally try to address a concrete example, sort of, when they discuss how "urgency" as a value of "white culture" is lampooned. Grim sets the stage by citing examples of how The List is weaponized by bad actors seeking an excuse to shirk at work (e.g. "deadlines are white culture"). But as proof that urgency is a value of white culture, Okun cites a non-sequitur story about how some lawyers at a legal nonprofit got distracted from a anti-racist workshop to address an activist's arrest. The conceit on display here is jaw dropping, Okun is literally complaining about an emergency interrupting* her own anti-racist workshop*:
And when we as facilitators tried to say: Can we take a pause, and just sit down together and figure out what we're going to do in a way that meets this dynamic that we've just been talking about? The answer was: No, we don't have time, we can't possibly do that, we don't have time, no, no, no.
So in the middle of a workshop meant to help and support them to deal with the ways in which their culture was perpetuating racism, they were unable to stop. And that's what I mean by There's just the sense that things are so urgent, we can't possibly pause for anything. So we lose the ability to pause for anything. And people get run over in that situation. And it just keeps things in place.
I don't know if I'm stating the obvious here, but nothing about this tells us that "urgency" is bad per se, let alone how any of it is a value of "white culture" specifically. It seems at least possible that the activist's arrest was more important than her training, even from the narrow perspective of "perpetuating racism", but Okun appears incapable of entertaining that idea.
Ryan Grim is not someone I would have recognized as wary of critiquing leftist shibboleths, but I have no explanation for the uncharacteristic lack of pushback he displayed throughout the interview with Tema Okun. If anyone was looking for evidence that the DEI industry is and has been a sham with self-perpetuation as its primary measure of success, Okun's own words are the rotary excavator digging its hole.
New York City has been ordered to reinstate with back-pay city employees who were fired for refusing to get the covid-19 vaccine. When I first encountered this story, the quote that was bandied from the judge was "Being vaccinated does not prevent an individual from contracting or transmitting Covid-19" and my initial impression was of a fringe anti-vax judge. But the judge meant this literally, as in "the vaccine is not 100% effective" and what he writes in the decision is much more nuanced and generally in support of vaccination.
I am not philosophically opposed to vaccine mandates. Vaccines are easily one of the greatest inventions of mankind, and I don't find it unreasonable to impose a cost on individuals to the extent it can potentially mitigate negative externalities. I'm also not someone who opposes other public health mandates in general, and I was OK with mask mandates for the most part, up until we had widely available vaccines. What never made sense to me was the incoherent overall set of rules. For example, some time around mid-2021, my gym instituted a vaccine passport system whereby you could show proof of vaccination and thereafter be able to work out without a mask. I was totally fine with this system, especially since it was a private entity finding a way to accomodate the needs of a varied clientele. A few months later however, the government ordered all gyms to require masks no matter what and I was fucking pissed. I had to now wear a mask at the gym despite being surrounded by vaccinated people, but meanwhile I could go maskless for several hours at a time at restaurants surrounded by unknown quantities. It didn't make any sense, and it just needlessly burned up whatever credibility public health authorities had. I made the same point at the height of the BLM protests/riots, when social distancing magically didn't matter anymore.
So back to New York City, in October 2021 the city ordered all public employees to be vaccinated. The judge in this case found the order to be "arbitrary and capricious" largely because of how nonsensical the implementation was. If the purpose of the mandate is to increase vaccination with the goal to decrease the spread of a deadly contagion, why exempt certain professions like athletes, artists, and performers? And why allow city employees who are appealing the mandate to continue working full-time as their appeal is pending?
The term "pretextual" comes up sometimes in legal contexts, and it's where a false reason is provided as a bid to hide the true motivations of an action. For example, a cop can say they stopped a vehicle only because the car was speeding, but their true motivation for the stop is to create an opportunity to investigate something else entirely. In Whren v. United States, SCOTUS unanimously decided that pretextual traffic stops were legal (they call them "mixed-motive stops" which is lol) and to date Washington and New Mexico are the only states that prohibit the practice. Because it is virtually impossible to perfectly comply with traffic rules at all times, the practical effect of allowing pretextual stops is that a cop can pull over basically any car they want to. They just need to watch them long enough.
New York City may claim their goal is purely public health related, but it's perfectly reasonable to be skeptical of their stated reasons when the implementation does not align with their goals. The judge in this case wrote:
The vaccination mandate for City employees was not just about safety and public he alth; it was about compliance. If it was about safety and public health, unvaccinated workers would have been placed on leave the moment the order was issued. If it was about safety and public health, the Health Commissioner would have issued city-wide mandates for vaccination for all residents.
Perhaps they can overcome this suspicion by providing a damn good reason for how art protects against transmission, or how pursuing an appeal makes one less contagious, but I have not been able to find one. In the absence of a good reason, I can conclude their stated goal is pretextual. Despite their claims otherwise, it's obvious that the stated goal of public health was not always an overriding priority. The city was apparently willing to let the Very Important Goal be subsumed by comparatively trivial concerns, like not pissing off Very Important People in the entertainment industry. So next time New York City or similar claims they are doing something in furtherance of public health, it's reasonable to assume they're lying until you see evidence otherwise. If the public trusts these bodies less, they can blame themselves.
ymeskhout
7mo ago
Public Pretenders
The difference between a public defender and a private attorney can often be measured not in skill, but in pinstripes.
The defendant had dropped a rhetorical bomb in court. He lobbed the grenade of all insults. He called his attorney (may Allah forgive me for repeating this) a public pretender. The courtroom's sparse decorations afforded plenty of space for the silence to permeate. The room was almost empty as they were basically done with that morning's calendar. Early too, which meant the judge had some time to fuck around.
The judge adopted the familiar tenor of a police interrogation — the verbal equivalent of a slow-moving suffocation. He turned to the so-called public defender and started asking him questions.
"Mister Weber...did you even go to law school?"
"Yes Your Honor."
"Well...are you even licensed to practice in this state?"
"Yes Your Honor."
The judge was hamming it up with the weight of a Shakespearean monologue and the public defender did his best to stifle his laughter, just enough to utter out a coherently monotone answer. The judge continued, savoring every liminal pause for dramatic effect.
"Mister Weber...I need you to answer this next question truthfully...are you — are you a real lawyer?"
This was the final Yes Your Honor, what finally broke the tension. The judge's demeanor visibly relaxed and he shifted back in his dais. He turned back to the defendant and said "Thank you very much for bringing this serious accusation to my attention, but I am relieved to find out that Mr. Weber is indeed a real attorney and is not just pretending to be."
Oh yes the defendant was being blatantly fucked with, but the artificial gravitas was a sufficiently plausible deniability shield to keep him guessing. Besides, what the fuck was he going to do anyway? Pull a rhyming dictionary out of his ass and look up another entry for defender? Maybe next time he can come to court prepared with a more original barb than calling his attorney a public pretender.
Make Me Feel Mighty Real
Money is what makes it real. Which is why I, a public defender, am fake as fuck. I am free of charge. I am the budget option. I am also functionally the default.
Choosing to navigate the legal field without an attorney — also known as "rawdogging it" in the parlance[1] — doesn't usually work out very well for reasons I previously wrote about. And yet, the modern public defense system exists entirely because of a handwritten appeal to the Supreme Court scrawled out on prison stationary. Easily history's most successful pro se filing. Gideon v. Wainwright is why if the government finds itself primed to shove you through the prosecution grinder, they are at least magnanimous enough to give you an attorney. They'll even go so far as to foot the bill if your ass is broke as fuck. Noblesse oblige is not totally dead!
But how good is this default, really? It's Complicated™.
Anyone seeking to examine the criminal justice system by comparing public defenders with privately retained attorneys will find themselves stymied by the fact that public defenders basically are the system. Any poor schmuck (notice I didn't say blameless) unfortunate enough to capture the attention of our nation's indefatigable law enforcement apparatus is almost by definition financially destitute, and that's all you need to qualify for the free option. How much of a shit a jurisdiction gives about people [nose scrunched up in disgust] accused of a crime will vary, and this will be reflected in detail within boring public finance documents. But regardless of that variance, courtrooms are brimming with such a glut of indigent defendants that when the BJS looked into this decades ago, they found that roughly 80% of state felony defendants were represented by a public defender. Point at any random spec of meat pushed through the grinder and you can reasonably assume a public defender is chained along for the ride.[2]
Another confounder is that many public defenders are...private attorneys.[3] Some towns are way too small to have a dedicated agency with full-time government employees, so they farm out indigent defense to local attorneys who can periodically step in as needed on a contractual basis. Even big cities with gargantuan public defense departments rely heavily on private attorneys as gravel to fill in the gaps left by conflict of interest recusal (something like an entire agency withdrawing from a case because one of their lawyers had previously represented the victim or something) or just when they're over-capacity. At the federal level, private attorneys take up about 40% of public defense cases. Every private criminal defense attorney I know takes on public defense cases as a supplement to their paying clients. No need to advertise your services or chase after the inevitable unpaid invoice when the local government takes care of both problems.
The overwhelming majority of criminal defense is not financially sustainable, and would not exist without the constant injection of taxpayer money. The reason for this discrepancy is obvious. Rare is the criminal defendant who has enough of their shit together to afford a defense attorney at market rate. As authentic as Better Call Saul! was overall in its depiction of criminal defense life (and I can't praise the show enough on that front) the idea that Saul Goodman could financially sustain a criminal defense practice by marketing to the dregs of society was pure fantasy. I once had a client stab a dude in broad daylight, in front of a dozen witnesses, slightly fewer surveillance cameras, and screamed his own name in the process. This is not a dude with the temperament to get a regular paycheck every two weeks. Financial security (either directly or as a confounding variable) also gives you the respectability, influence, and resources to shield any potentially criminal behavior away from the prying eyes of law enforcement. Money is great, and I highly recommend having it.
All this to say that any attorney working in criminal defense is necessarily working with a skewed clientele pot. Without some adroit specialization, there is no cash to wring out of this crowd. The options are limited for carving out a private practice that doesn't feed at the public defense contract trough. Some freak attorneys do so by launching their stature to the stratosphere, high enough to sustain a steady living off big-ticket celebrity defendants. The more realistic solution is to be selective in your fishing, pursuing only the practice areas most likely to deliver on the narrow Venn diagram slice of "accused of a crime" and "has money". A reliable eddy for this approach is to be boring as fuck and dedicate yourself almost exclusively to drunk driving cases.
Sartorially Deficient Efficiency Machines
I got my start at a public defense agency and while we did indeed have caseloads stacked high to the ceiling, this doesn't tell you the full story. For one, the benefits of functionally being part of the system means you can spread some fixed costs across several clients (e.g. handling dozens of clients during a single morning calendar). The other part is that public defenders naturally become machines of raw unbridled efficiency.
You can usually easily tell them apart from their privately-funded aristocratic colleagues. One of the best public defenders I know wears the exact same cringe-inducing blazer to court, with the sleeves nearly a foot too long drooping over his hands like a monk's robe. He doesn't give a shit though as he's pared down his repertoire of tools down to the bones, leaving behind only the things that will actually make a difference for his client's cases.
The sheer volume of cases also comes with some supernatural scrying abilities. The prosecutor's office we worked with handled thousands of cases, and they used internal plea deal standards to maintain some semblance of uniformity across the thousands of cases they handled. Their (at times robotic) devotion to fairness chafed at the idea of giving two similarly situated defendants vastly different plea deals. And while they never shared those internal standards with us, all it required was churning through a few dozen cases before the standards became obvious to anyone paying attention.
For DUIs, the biggest factor was blood alcohol concentration. The scale public defenders operated at made it trivial to figure out the BAC threshold for getting a one level reduction in the charges, or even two levels if you were lucky. We also knew which factors could tip the scales for edge cases (Practice Tip: crashing into a trailer home and narrowly hitting a sleeping twelve year-old is Very Bad).
We used a checklist to quickly triage our never-ending DUI caseload. Tell me just a handful of details about a case and I can predict its ultimate conclusion with startingly accuracy. Most of our cases were obvious enough that they were on auto-pilot to a predictable plea deal conclusion, and we could then focus our attention on the edge cases that were most liable to topple over. With the volume of cases I had, the median DUI misdemeanor probably took me maybe two or three hours of work total, including all the time spent in court waiting. This was all boring, tedious, and predictable work.
Besides all that, I got to know all the player's tics. Jennifer the court clerk was a total sweetheart, and she was the one I should talk to if I need to overset on an already full morning calendar. Brett the prosecutor really did not like repeat offenders, so I continued those cases until he finished his rotation and I had to deal with someone different. And you memorize the judges especially. I had a client who was summoned to court because her drug treatment provider kicked her out for "contraband". I assumed that meant she brought drugs to rehab, but turns out the "contraband" was just a cell phone. Before the court even knew what was going on, she had re-enrolled voluntarily and completed a month of inpatient treatment. When she told me all this I figured it was a shoo-in for the judge to impose no sanctions. I said "You were proactive, which is something this judge really appreciates. Also, the judge absolutely hates the prosecutor on this morning, so this hearing should be a cakewalk." Five minutes into the hearing, the judge was yelling at the prosecutor already. My client and I exchanged knowing glances, and she marveled at my divination.
Private attorneys knew we had a finger on the pulse, and we were often asked for input. Sometimes it was something as banal as asking for a temperature check on a judge right before sentencing. By far the most jaw-droppingly alarming was when a client walked into the courtroom about to plead guilty to a DUI. His attorney paused at the door where I happened to be loitering and asked me "Hey my client is a green card holder and he's going to plead guilty to a marijuana DUI. That's not a big deal is it?" That could've been a catastrophe, to the extent you consider immediate deportation to be a big deal.
America's Universal Crime
There's a reason DUIs come up frequently in my writing — they're the bread and butter of misdemeanor criminal court and what virtually all defense attorneys cut their baby teeth on.
Americans love drinking. Americans also love driving. If you're concerned about this concatenation, worry not commie scum because the third branch in this triumvirate is another perennial American favorite: an unrelenting police force. Hands wiped, problem solved.
You have not experienced the unique essence of America until you are drunk as hell at a strip mall parking lot at 2AM, locked out of the Applebee's that just closed for the night, your designated driver friend nowhere to be seen, and with the only legal option to get to your house in the suburbs being a $70 Uber ride. Prime setting to chance it. No surprise then that out of the ten million or so criminal arrests that happen every year in this country, 10% are just DUIs, more than all violent crimes combined. Drunk driving is one of the most intersectional of crimes. Rich and poor alike, this is the universal criminal temptation.
When someone is arrested for drunk driving, they get handcuffed, their vehicle is towed away into the abyss, and they might spend a few hours in jail if they're particularly unruly or the cop is in a shitty mood. When they're released from the precinct into the cold morning hours, they're handed a gift bag with some terrifying paperwork informing them DUIs are punishable by up to three hundred and sixty four days in jail. That's just the statutory maximum that never (almost, we'll get to that) gets imposed, but they don't know that, so naturally they panic. They panic and google.
I've written before about how useless I am, and I am especially useless with DUI cases. DUI cases are so boring because of how straightforward they usually are. They were drunk. They were driving. And more often than not, they admitted their drinking to the cop that saw them using their car to recreate a crochet weaving pattern across multiple lanes of traffic. Despite these lopsided conditions, establishing someone's guilt through the constitutionally-mandated public jury trial avenue remains a pain in the ass for the system — way too expensive, takes way too long, and [gasp] might not actually work if the jury doesn't buy the government's story. The prosecutor takes the tack of "it sure would be super if you saved us the hassle and just admitted you're guilty." (No, history doesn't repeat itself, why do you ask?) and they incentive this outcome with plea deal offers that are entirely within their discretion. At least ninety-four percent of defendants take them up on it.
Keeping the assembly line humming was most of our job. We negotiated plea deals in whatever crevices in the courthouse building we could spare. Sometimes the prosecutors would find a spare jury room and set up shop there with their laptops, and all the defense attorneys (private and public alike) would crowd inside and wait in line to talk about the merits of their case. The open air atmosphere inside that room was chummy, but we also would witness negotiations happening transparently in real time.
One private attorney seemed particularly attentive to his appearance, and was that day glamorously adorned with a pinstripe suit and a lumbering gold watch that seemed uncomfortably heavy. When it was Pinstripes' turn in the pit, his pitch to the prosecutor was as succinct as the insider's lingo could sustain: "No priors, no aggravators, and the blow is in the low teens. Negligent amendment?" The prosecutor was nodding along and flipping through their notes and pulled out a template form to memorialize the deal. No surprise given the circumstances, I could've secured the same deal in my sleep for any of my clients.
But if you can swap in virtually any attorney into the slot without affecting the outcome, how would any individual attorney stand out from the rest? Theoretically a private attorney can devote their craft and grind away to become the best goddamn DUI lawyer to ever roam the land, but the infinitely more efficient approach to standing out is just by dialing up the marketing. They play the search engine optimization game and dump a thesaurus' worth of synonyms for the "I got a DUI and I'm not poor" query to capture those panic-stricken google searches. Their billboards are conveniently located near every major highway exit, with a photo crossing their arms to showcase how hard they'll fight the cops for you. One law firm required their attorneys to show up to court in a muscle car splattered with letters as tall as a toddler spelling out "DUI?" along with the firm's phone number. The specter of up to three hundred and sixty four days in jail ricocheting inside a client's head is all the sales closing you need to rack up a five to ten thousand dollar retainer. Three hours of my time as a public defender was a windfall to a private attorney lucky enough to snag a client with money.
Pricey Asymmetry
Outside of the courtroom and outside of the negotiation room, there were the hallways. The courthouse building was old enough to lack the luxury of private conference rooms, so every attorney would find an empty spot on the hallway pews to have a "confidential" meeting with their client. There was an unspoken code of honor not to eavesdrop, one which even the court marshals and deputies earnestly respected, but sometimes you can't help but overhear.
Pinstripes came out of the negotiation room, holding that basic bitch Negligent Amendment plea offer in his hands. His client was sitting in a pew, anxiously fidgeting.
"The prosecutors gave me hell for your case, but I put those sons-of-bitches through the ringer until they caved! They're willing to offer you that negligent reduction we talked about."
The sigh of relief from the client felt like it was forced out by bellows. He visibly relaxed, managed to crack a smile, presumably relieved he was finally allowed to drop the emotional rucksack he'd been carting around.
A necessary throat-clearing: an attorney's competence and commendability is not at all predicated on either their practice area or the source of their compensation. Pinstripes was a competent attorney. He delivered on effective representation, and his client was fully satisfied with the resolution. Pinstripes may have been exaggerating his own contributions, but he was under no formal obligation to notify his client of any cheaper competitors. All I point out here is how different circumstances can lead to different incentives. Mr. Monk Sleeves above had over the years whittled himself away into a finely-honed and effective apparatus, devoid of any extraneous adornments. It didn't matter how stupid his sleeves looked, he was still going to be appointed to clients. Privately retained attorneys face a different set of incentives. They need the hand that pays to feel good about the transaction and so have every incentive to exaggerate their efforts. The fact that their client has money to pay them very likely means they've never been in trouble before, never needed a lawyer before, and never had to face the bore end of a judge before. The paying client is unlikely to get arrested again, and even if he did he never would attain the bird's eye view of the system necessary to evaluate Pinstripe's comparative utility. Classic information asymmetry.
Can money help tip the needle? Yes, of course, sometimes, and typically only when gargantuan sums are levied. OJ Simpson had the means and motivation to throw loot at objectively hopeless needle in a haystack endeavors. For DUIs, I knew of one case where the guy blew a 0.12% BAC (not that bad by my caseload's standard) and managed to get acquitted after sinking about $20,000 to fly in three different nationally-recognized breath test experts to testify at his trial in podunk district court.
But most of the time, no. The primary benefit of money is as a paradoxical prophylactic — the fact that you have it is a very good indicator you won't need to use it.
364 Days
I'll end with one last story. If someone is still in jail by the first appearance hearing, the court assumes they are indigent and expects the public defender's office to handle it unless a private attorney told them otherwise. I scanned through the dozens of cases on my jail calendar docket and quickly triaged them based on a brief skim of the docket and police reports. One guy stood out to me as uniquely fucked. It was a DUI, of course, except he was already on probation for a third DUI with the same court. Nothing within the police report raised any evidentiary red flags, this was a plain vanilla clean case as far as I could tell. I saw through the Matrix and read the green letters directly, and they spelled Doom.
Seated on the molded plastic chairs the jail uses as he wore some ill-fitting Crocs, I delivered my grim prognosis, appropriately qualified given my limited vantage point. I advised him not to bail out, as the money would vanish within the coffers of a bail bondsman and only provide a vanishingly temporary reprieve from jail. Spending several thousand dollars to be out for a few weeks didn't seem worth it to me, but I reminded him it was his and his family's choice to make.
The next time I saw him was in court, and he was not wearing jail scrubs with Crocs. I walked up to talk to him but before I could get a word in, he cut me off brusquely and flat-out declared he didn't me because he had retained private counsel. All delivered with the haughty cadence that would make a Royalist blush. I shrugged and moved on to my next entry. With him having bailed out and hiring a private attorney, his expenses were steadily mounting.
What the judge eventually did with his case was highly unusual, but not at all surprising to me, given my scrying ability. He plead guilty, because of course, and the judge was so fed up with his repeat offenses that she didn't even bother giving him a probation period to right his wrongs, just imposed and closed. He was sentenced to the maximum three-hundred and sixty four days, to this day the only time I ever saw it happen. His lawyer could've been a pillow and nothing would have been different.
I must confess schadenfreude. Despite my own feelings about the carceral state, someone else's liberty is a small price to pay for gratifying my own ego and affirming my prognostications.
If you're in trouble with the law, do your best to qualify for a public defender. They may not always have pinstripes, but they know the system and the players inside and out. The Constitution guarantees your right to change your mind at any point after, but there's no harm in test-driving the budget option first. You might get to the same destination, just with a lot more money in your wallet.
[1] I made this up.
[2] The number of methodological issues inherent in comparing public defenders and private attorneys is way too long to get into here.
[3] For those who are curious, this is me. I got my start working for a public agency but then opened my own private practice. So I'm technically a private attorney, but one whose caseload is 100% indigent defense. It's much simpler and still accurate to just call myself a public defender, and no I will not change my Tinder bio.
ymeskhout
1yr ago
Part 2 [continued from above]
Maybe now's a good time to talk about how corrupt Morocco is. Not only can you bribe cops, bureaucrats, judges, officials, whoever to make problems go away, it's expected of you to make anything happen. Because corruption is, by definition, surreptitious and thus difficult to observe and measure directly, the best evidence normally available are studies like the Corruption Perception Index, which rely on subjective reporting. On that ranking, Morocco places eighty-seventh out of 180 countries for honesty. But perception doesn't tell us the full story on corruption, so I want to take this opportunity to cite what is perhaps my favorite economics study, based solely on its ingenious methodology.
Diplomats enjoy legal immunity, and for a while this extended even to banalities like parking tickets. Researchers examined the pattern of parking violations of United Nations diplomats working in Manhattan and used it to construct a plausible heuristic for each country's social norms for corruption — the idea being that a history either of no violations or no unpaid tickets (despite the lack of legal penalties) would indicate a low propensity for corruption. By the unpaid tickets standard, Morocco ranked #13 in the world for corruption.
This illustrates the other way the legal system is functionally bifurcated: money. The ban on unmarried couples staying in hotels is one of the laws that, at least on paper, applies equally both to Moroccans and foreigners. But officials know not to do something as idiotic as enforcing fornication prohibitions on dumbfounded white people just there to hashtag-Marrakesh and, most importantly, spend money. Everyone knows not to kill the golden goose of tourism, but equally as important is not to slut-shame it either.
Similarly, Muslims — which all Moroccans are legally assumed to be unless officially denoted otherwise — are purportedly prohibited from purchasing alcohol of any kind in Morocco, and yet this decree is flagrantly and openly violated every day. Alcohol bodegas are found on almost every corner, and none of the proprietors inquire about the Shahadah at the point of sale. Same with Moroccans rich enough to eat at a restaurant — they're presumed to be secular enough to be trusted to peruse the wine list. Either way, there's enough lucre to grease the wheels and keep the coppers at bay.
The economist Bruce Yandle coined the term "Bootleggers and Baptists" to describe a type of regulatory capture. Baptists are the ones pure of heart, who want to ban alcohol for moral reasons. Bootleggers are the profiteers, who want to ban alcohol for their pecuniary benefit because they have a competitive advantage working within an illicit market. The ones who want to uphold the law work synergistically (if unintentionally) with the ones seeking to break it for profit. The movement to repeal Morocco's hotel law has made some progress, but it has also been hit by pushback from Baptists and Bootleggers alike. The Baptists are ever concerned about the youth's downward trajectory into degeneracy, and anxious about transforming the Kingdom's hotels into functional brothels (which, given the lack of hook-up venues, is not an unreasonable concern). The Bootleggers are hoteliers who benefit from the "double-booking" trick and government officials reluctant to give up a source of extorted bribery. Meanwhile, the loopholes built into the system mean that the law really only applies to the poors, so who cares?
I'll end with a story an aunt relayed to me, which perfectly illustrates the bizarre amalgam of business-as-usual corruption within Moroccan law enforcement.
My aunt was driving with her friend to another city, miles away from her home. A cop pulled her over for speeding. The traffic code is enforced under penalty of a fine, with the money paid directly to the officer (I know, it's nuts). If you don't happen to have the money on hand, not a problem — they'll just confiscate your actual driver license and hold it at the local Sûreté Nationale bureau until you can come back with the funds.
Problem number one: My aunt did not have enough to pay the full traffic fine amount, the functional equivalent of about $40, and having her license confiscated this far away from her home would be an enormous hassle. While the cop was away, her passenger helpfully suggested offering a $10 bribe to the officer. But problem number two: My aunt had only a $20 bill, with no way to make change. Ten dollars would be a perfectly appropriate amount for a bribe, but getting only a 50% discount on the traffic fine felt like an awful bargain.
The cop heard all this. He popped up and said, "I have change for a twenty." My aunt kept her license that night.
Defamation Bear Trap
The legal field is filled with ad-hoc quirky legal doctrines. These are often spawned from a vexed judge somewhere thinking "that ain't right" and just making up a rule to avoid an outcome they find distasteful. This is how an exploding bottle of Coca-Cola transformed the field of product liability, or how courts made cops read from a cue card after they got tired of determining whether a confession was coerced, or even how an astronomy metaphor established a constitutional right to condoms. None of these doctrines are necessarily mandated by any black letter law; they're hand-wavy ideas that exist because they sort of made sense to someone in power.
I've dabbled in my fair share of hand-wavy ideas, for example when I argued that defendants have slash should have a constitutional right to lie (if you squint and read between the lines enough). Defamation law is not my legal wheelhouse but when I first heard about Bill Cosby being sued by his accusers solely for denying the rape allegations against him, I definitely had one of those "that ain't right" moments. My naive assumption was that a quirky legal doctrine already existed (weaved from stray fibers of the 5th and...whatever other amendment you have lying around) which allowed people to deny heinous accusations.
I was wrong and slightly right. Given how contentious the adversarial legal system can get, there is indeed the medieval-era legal doctrine of "Litigation Privilege" which creates a safe space bubble where lawyers and parties can talk shit about each other without worrying about a defamation lawsuit. The justification here is that while defamation is bad, discouraging a litigant's zeal in fighting their case is even worse. Like any other cool doctrine that grants common people absolute immunity from something, this one has limits requiring any potentially defamatory remarks to have an intimate nexus with imminent or ongoing litigation.
It's was an obvious argument for Trump to make when Jean Carroll sued him for defamation for calling her a liar after she called him a rapist (following?). A federal judge rejected Trump's arguments on the grounds that his statements were too far removed from the hallowed marble halls of a courthouse. Generally if you want this doctrine's protection, your safest bet is to keep your shit-talking in open court or at least on papers you file in court. While the ruling against Trump is legally sound according to precedent, this is another instance where I disagree based on policy grounds.
Though I'm a free speech maximalist, I nevertheless support the overall concept of defamation law. Avoiding legal liability in this realm is generally not that hard; just don't make shit up about someone or (even safer) don't talk about them period. But what happens when someone shines the spotlight on you by accusing you of odious behavior from decades prior?
Assuming the allegations are true but you deny them anyways, presumably the accuser would have suffered from the odious act much more than for being called a liar. If so, seeking redress for the original harmful act is the logical avenue for any remedies. The (false) denial is a sideshow, and denial is generally what everyone would expect anyways.
But assuming the allegations are false, what then? The natural inclination is also to deny, except you're in a legal bind. Any denial necessarily implies that the accuser is lying. So either you stay silent and suffer the consequences, or you try to defend yourself and risk getting dragged into court for impugning your accuser's reputation.
My inclination is that if you're accused of anything, you should be able to levy a full-throated denial without having to worry about a defamation lawsuit coming down the pipes. You didn't start this fight, your accuser did, and it's patently unfair to now also have to worry about collateral liability while simultaneously trying to defend your honor. Without an expansion of the "Litigation Privilege" or something like it to cover these circumstances, we create the incentive to conjure up a defamation action out of thin air. The only ingredients you need are to levy an accusation and wait for your target's inevitable protest. That ain't right.
ymeskhout
1yr ago
From Quillette, an MIT professor describes the outraged reaction from fellow philosophers when he argued that a woman is an adult human female.
Back in 2019 Alex Byrne wrote one of my favorite essays on the incoherence of gender identity and as far as I can tell no one has managed to offer a solid refutation. Byrne follows up by discussing the difficulties he's had in getting a chapter and a book published on the topic, and his travails are equal parts infuriating and hilarious. For example, consider how a fellow colleague was treated once the crowd got wind that her book might be a bit too critical:
The imminent publication of Holly Lawford-Smith's Gender-Critical Feminism was announced that same month, and almost immediately no less than two petitions of complaint appeared, one from the OUP USA Guild (the union representing the New York staff of OUP), and the other from "members of the international scholarly community" with some connection to OUP. The latter petition expressed the scholars' "profound disappointment" at OUP's forthcoming publication of Lawford-Smith's book, and suggested various "measures the press could undertake to offset the harm done by the publication of this work." OUP needed to confess to a mortal sin and repent. None of the scholars had read the book that they so confidently denounced (since no copy of the book was available for them to read), but this is a mere detail.
This trend of protesting a book before anyone even reads it will never stop being funny to me. Byrne expected his book to go through several revisions and by his account he was happy to accomodate feedback. His reviewers, though, were not:
Publishers often commission reviews of a manuscript from (anonymous) experts in the relevant field, and I had to go through that time-consuming process yet again. It was also rather risky, since—as by now you are well aware—the experts in the philosophy of sex and gender tend to brook no dissent. Responding to the (hopeful) publisher’s question, “Will it make for an outstanding book in your view, or simply a work of average quality?”, one expert wrote: “Neither. It is of extremely poor quality.” Another question: “What would you highlight as the ONE feature about this book that might make you recommend it over other titles available?” “None. It shouldn’t be published.” Lastly: “Is there anything superfluous that could be left out?” “Everything—see above.”
Of course, there is nothing wrong with harsh criticism; I have doled out plenty of that myself. Maybe my book deserves it. But a reviewer is expected to give reasons for her verdict—that helps both the author and the publisher. If I had made, as the reviewer said, “sweeping claims” that are “often false,” or had “seriously misunderstood” arguments on the other side, it would be a simple matter to give examples. But the reviewer supplied none: not a single quotation, page number, or chapter reference. From my experience publishing in this particular area of philosophy, this lack of engagement was par for the course. In fact, I found the reviewer’s hyperbolic report reassuring: if I had made mistakes, at least they were not easy to identify.
"What is wrong with my argument?"
"Everything."
"Can you be more specific?"
"Just all of it, it's just bad."
This is the kind of sophistry one would expect from random online arguments, and I'm sure you can identity similar instances even in this very forum. The take-away I'm generally left with is that Byrne's interlocutors are an amalgamation of intellectually fragile individuals. Conclusory statements rather than specifics are a transparent indication that you are aware your arguments will crumble when exposed to a light breeze. Protesting rather than arguing are a transparent indication that you are unable to defend your ideas on their own merits.
All this seems painfully obvious to me as an outsider, and I'm baffled why anyone engages in this ablution pantomime. Who could it possibly convince?
Freddie DeBoer recently put out a banger of a post called "A Conversation About Crime" about the absolute intellectual void behind the "defund the police" movement. The whole thing is worth reading in full, but I'll include the parting shot here:
Look, I’m gonna level with you here. Like the vast majority of leftists who have been minted since Occupy Wall Street, my principles, values, and policy preferences don’t stem from a coherent set of moral values, developed into an ideology, which then suggests preferred policies. At all. That requires a lot of reading and I’m busy organizing black tie fundraisers at work and bringing Kayleigh and Dakota to fencing practice. I just don’t have the time. So my politics have been bolted together in a horribly awkward process of absorbing which opinions are least likely to get me screamed at by an online activist or mocked by a podcaster. My politics are therefore really a kind of self-defensive pastiche, an odd Frankensteining of traditional leftist rhetoric and vocabulary from Ivy League humanities departments I don’t understand. I quote Marx, but I got the quote from Tumblr. I cite Gloria Anzaldua, but only because someone on TikTok did it first. I support defunding the police because in 2020, when the social and professional consequences for appearing not to accept social justice norms were enormous, that was the safest place for me to hide. I maintain a vague attachment to police and prison abolition because that still appears to be the safest place for me to hide. I vote Democrat but/and call myself a socialist because that is the safest place for me to hide. I’m not a bad person; I want freedom and equality. I want good things for everyone. But politics scare and confuse me. I just can’t stand to lose face, so I have to present all of my terribly confused ideals with maximum superficial confidence. If you probe any of my specific beliefs with minimal force, they will collapse, as those “beliefs” are simply instruments of social manipulation. I can’t take my kid to the Prospect Park carousel and tell the other parents that I don’t support police abolition. It would damage my brand and I can’t have that. And that contradiction you detected, where I support maximum forgiveness for crime but no forgiveness at all for being offensive? For me, that’s no contradiction at all. Those beliefs are not part of a functioning and internally-consistent political system but a potpourri of deracinated slogans that protect me from headaches I don’t need. I never wanted to be a leftist. I just wanted to take my justifiable but inchoate feelings of dissatisfaction with the way things are and wrap them up into part of the narrative that I tell other people about myself, the narrative that I’m a kind good worthwhile enlightened person. And hey, in college that even got me popularity/a scholarship/pussy! Now I’m an adult and I have things to protect, and well-meaning but fundamentally unserious activists have created an incentive structure that mandates that I pretend to a) understand what “social justice” means and b) have the slightest interest in working to get it. I just want to chip away at my student loan debt and not get my company’s Slack turned against me. I need my job/I need my reputation/I need to not have potential Bumble dates see anything controversial when they Google me. Can you throw me a bone? Neither I nor 99% of the self-identified socialists in this country believe that there is any chance whatsoever that we’ll ever take power, and honestly, you’re harshing our vibe. So can you please fuck off and let us hide behind the BLM signs that have been yellowing in our windows for three years?
I wrote for Singal-Minded (non-paywalled) on the topic of PayPal suspending accounts for what appear to be politically motivated reasons. I describe my experience with PayPal suspending my own account a few years ago, and how I managed to get it back:
I called, emailed, and waited on hold, but never got a straight answer from PayPal’s customer service drones. They endlessly repeated that I had violated PayPal’s acceptable use policy as if it were some mantra. If I asked for any detail whatsoever, their response had the tone of a schoolteacher frustrated at having to explain repeatedly to the same kid that crayons should not be shoved up one’s nose. I knew what I did to get my account deleted, apparently. If I wanted to hear it from them, I’d need a court order.
I took inventory of my options.
Here is what I did not have: money in the account, any serious reliance on it, or any wisp of nostalgia for the 14 years we shared.
Here is what I did have: too much free time and a whole heap of pettiness to propel things forward.
So I made a crazy decision. I read PayPal’s User Agreement.
PayPal, like many other companies, have a mandatory arbitration clause in their user agreements that require you to "agree" to waive your right to sue them in court if you have a dispute. I took PayPal up on the offer to settle our shit via arbitration but we never got that far because they quickly caved. I was prompted to write about all this after I met Colin Wright and offered to help him deal with his own PayPal bullshit. From my perspective, he refused my help but nevertheless kept writing opeds about the issue and soliciting donations. I heavily insinuated that he was intentionally holding on to his victimhood status as a grifting strategy. Turns out, I was wrong.
Colin has brought up the issue publicly multiple times since then (writing about it in Quillette and the New York Post for example), but he never responded to my email until I reached out to him for comment on this piece. He did share correspondence with me where prominent free speech attorneys told him, in an apparent contradiction to my claims, that he had no viable legal recourse to getting his account reinstated. I had transmogrified into a gadfly in his mentions, heavily implying Colin was intentionally choosing not to solve the problem, but I was off-base with my insinuation. Colin was bombarded with countless random people (besides just me) offering their one weird trick to solve the problem, and he had no reason to believe any of them knew something that experienced advocates did not. Colin has now initiated dispute resolution with PayPal using the steps I gave him, and I’m intensely curious to see how it will play out.
As best as I can tell, virtually nobody thinks to try to address the issue of politically-motivated corporate censorship with the tools already available to them. Not even FIRE talked about arbitration dispute resolution. This leads me to think this a low-hanging fruit counter-attack that's just ripe for the taking.
Edit: I found out about another instance of someone taking a company to arbitration and winning. See also the hacker news thread, esp. thathndude's posts where they explain how hiring an attorney (even one that doesn't do anything) can result in absurdly higher settlements.
ymeskhout
1yr ago
You might recall that an adjunct professor was let go from Hamline University after a Muslim student complained about a depiction of the prophet Muhammad shown in class. The immediate responses were not terribly surprising to me. Given past incidents, I assumed that college administrators would have an interest towards affirming the student's complaint, no matter how unreasonable it was. This panned out, with the university president issuing a very bizarre statement where she presented non-sequiturs like:
To suggest that the university does not respect academic freedom is absurd on its face. Hamline is a liberal arts institution, the oldest in Minnesota, the first to admit women, and now led by a woman of color. To deny the precepts upon which academic freedom is based would be to undermine our foundational principles.
What do the demographics of the university president have to do with academic freedom? Fuck if I know.
Similarly, I also assumed that non-profit organizations would have an interest to bolster their profile by seizing upon the incident. This too panned out, with the local Minnesota Council on American-Islamic Relations (CAIR) chapter condemning the professor as Islamophobic. The local chapter's executive director even dismissed the fact that the professor went out of her way to add a content warning and said "In reality a trigger warning is an indication that you are going to do harm."
Since then, things have changed. First, the national CAIR organization felt the need to step in and rebuke the local chapter, and issued a (tepid) defense of the scorned professor. Then, Hamline University faculty just voted overwhelmingly (71-12) to ask the president to step down. For a defense of freedom of expression, the statement they issued is (at least on its face) pretty good.
Both of these developments surprised me, and it made me wonder whether this is a sign of a potential turning point on the topic of suppressed freedom of expression on campus.
Given...certain recent events, there might be a renewed interest in discussing what redress (if any) we might have when a prosecutor misbehaves. Billy Binion of Reason Magazine tackled one of my favorite hobby horses in a highly recommended feature article: Absolute Immunity Puts Prosecutors Above the Law
I've written about the problem of having government officials with no accountability, from the standpoint of Seattle officials deleting evidence and within the context of the doomed over-prosecution of Kyle Rittenhouse. Nobody voluntarily seeks accountability when they don't have to, and so there's nothing surprising about the state, with its purported monopoly on violence, choosing to shield one of their viceroys. If you have any interest in fixing this oversight, one of the problems you'll encounter (as I wrote in the APAB post) is how selective the outrage is. Except for the principled civil libertarians screaming into the void, no one else cares about a leopard's diet until the moment the first layer of facial epidermis is being torn off.
Let's set the scene by highlighting Binion's main example:
When a storm flooded Baton Rouge in 2016, Priscilla Lefebure took shelter with her cousin and her cousin's husband, Barrett Boeker, an assistant warden at the Louisiana State Penitentiary in Angola. During her stay at her cousin's house on the prison grounds, Lefebure later reported, Boeker raped her twice—first in front of a mirror so she would have to watch, and again days later with a foreign object.
Lefebure's allegations led to a yearslong court battle—not against her accused rapist but against District Attorney Samuel C. D'Aquilla, who seemed determined to make sure that Boeker was never indicted. As the chief prosecutor for West Feliciana Parish, which includes Angola, D'Aquilla sabotaged the case before it began.
When a grand jury considered Lefebure's charges, D'Aquilla declined to present the results of a medical exam that found bruises, redness, and irritation on Lefebure's legs, arms, and cervix. Instead, he offered a police report with his own handwritten notes, which aimed to highlight discrepancies in her story. D'Aquilla opted not to call as witnesses the two investigators on the case, the nurse who took Lefebure's rape kit, or the coroner who stored it. And he refused to meet or speak with Lefebure at all, telling local news outlets he was "uncomfortable" doing so.
After that fiasco, Lefebure sued Samuel D'Aquilla in federal court, saying Boeker falsely claimed his encounters with her were consensual and sought D'Aquilla's assistance in blocking rape charges. According to the lawsuit, D'Aquilla was happy to help. Lefebure accused D'Aquilla of violating her rights to equal protection and due process by deliberately crippling her case against Boeker.
Lefebure's lawsuit against D'Aquilla bounced around for several years before getting denied on the theory that as a prosecutor, D'Aquilla enjoyed absolute legal immunity. If you want to get away with raping someone, it's a boon to have friends in high places that can pull some levers for you. Even better if this friend can get caught pulling levers and nevertheless retain absolute legal immunity for pulling said levers.
Absolute immunity is exactly what it says on the tin, it's absolute. Even though the federal law §1983 allows a lawsuit against "every person", the courts over the years responded with a litany of "well it doesn't really mean that":
The Supreme Court announced the doctrine of absolute immunity for prosecutors in the 1976 case Imbler v. Pachtman. The Court ruled that a man who had spent years in prison could not sue a prosecutor who allegedly withheld evidence that ultimately exonerated him. The justices approvingly quoted a sentiment that Learned Hand expressed as a judge on the U.S. Court of Appeals for the 2nd Circuit in 1949: "It has been thought better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."
I have to admit there is a kernel of reasonableness within this doctrine. Attorneys can be subject to discipline by their licensing authority if it receives a complaint, and probably to nobody's surprise the two fields of law that combined generate almost half of all bar complaints are criminal law and family law (the latter is toxic for its own reasons). I've said before that my clients have almost always done the thing they're accused of, but if you take some of my more sociopathic convicts at their word, it's everyone else's fault. Of course. The only reason they got convicted is because their lawyer sucked, or the judge was biased, or the prosecutor was evil, or whatever. And so on. People sitting in prison have nothing to do, which is why almost a quarter of all federal lawsuits are filed pro se by prisoners. Bar complaints follow a similar pattern.
As a public defender, it's not a matter of if you'll get a bar complaint, but rather when and I've already had a couple myself. Theoretically, it would be dreadful to have to deal with the spectre of retaliation from unhappy defendants that Learned Hand warned about, but all my complaints were summarily dismissed without my input. There is so much garbage shoveled in by bored inmates that a fatigue miasma sets in over the entire disciplinary field. Almost nobody involves takes anything seriously, including potentially some of the meritorious ones. There goes yet another one whining about their rights being violated, sure.
When federal judge Richard Posner retired from the bench in 2017, he cited serious concerns with the deplorable way his fellow judges treated pro se lawsuits. It's that fatigue again, and according to Posner the judges came up with as many roadblocks and technicalities to ensure the definition of a line to be the shortest distance between a pro se lawsuit and the recycling bin. True to his word, he did set up an organization to offer free legal counseling to pro se litigants, only to quickly shut it down after they were drowning with overwhelming demand.
You can see an illustration of how the assembly line shredder plays out in this case out of Louisiana. In the middle of a misdemeanor trial, the judge granted a "mistrial" to help the prosecutor come back with felony charges. This is as crystal clear a textbook violation of the double jeopardy clause as you can get, but every single state appellate judge (who are also protected by absolute immunity) just kept rubber stamping 'DENIED' without providing any explanation. This defendant was lucky enough to actually have a lawyer handle his appeal and he eventually won after sitting in prison for only 840 days. On paper, 28 USC §1657 states that criminal conviction appeals must be expedited. In reality, fuck you. The federal judges on this appeal took their sweet time, and apparently saw nothing wrong with dealing with civil matters first. It's yet another criminal complaining about his rights. Ho-hum.
The reasons SCOTUS outlined in Imbler v. Pachtman in favor of giving prosecutors absolute immunity was a generalized concern that if prosecutors had to worry about personal liability, they might avoid presenting relevant evidence as a pre-emptive precaution. Further, judges dealing with post-conviction appeals might have their focus "blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment". If the way bar complaints and pro se petitions are treated today is any indication, it's not obvious to me that any floodgates would open here. The system already knows how to use a garbage can.
It's also not clear that the purported justification even matters here when the doctrine is blatantly self-serving. You can't sue judges and prosecutors for misconduct because fuck you that's why. Maybe the other reason this doctrine remains is that it's a Faustian bargain. Similar to the justifications for Qualified Immunity, occasionally putting our blindfolds on when an emissary of the sovereign commits a sin is just the price we pay for our undisturbed slumber. Our legal system promises equal treatment under the law, at least on paper. If we can't be selective about allowing only the Right People to pursue legal vindication against our esteemed pillars of the courtroom, it might potentially be used to help actual criminals. And we can't have that, can we?
ymeskhout
1yr ago
Affirmative Action or Transparency, Pick One.
In the hierarchy of court systems, lower-level courts (typically referred to as trial courts or district courts) handle the dirty work of sifting through an ass-load of witness testimonies, pretrial hearings, exhibit litigation, etc. across what can amount to months or even decades of lawfights. For context, one of my felony criminal trials took about 4 days of testimony and generated about 1000 pages in transcripts. A civil trial with well-heeled and sophisticated litigants is going to kill way more trees.
Normally, appellate courts (such as SCOTUS) don't want to concern themselves with the nitty gritty detail of what exactly was said at every hearing of every trial. Generally speaking, appellate courts will only deal with questions of law rather than of facts, so if they're going to get anything at all, appellate courts want a tidy streamlined package of only the bare minimum information they'd need to answer the limited questions in front of them.
Public trials are one of the bedrocks of the American legal system. Even if you're not directly involved, the presumption for any legal case is one of transparency and the exceptions are limited. During a trial, jurors are expected to come to a decision based solely on what was admitted into evidence in front of them, and so whenever the parties have to discuss whether the jurors are allowed to see anything, this naturally has to be done outside of the presence of the jury (known as a "sidebar"). Keeping the jury out of the loop is routine, but lasts only until their job is done, and sidebar conversations are absolutely still part of the open record.
The only other shroud used by the court system is sealing. The most common applications, such as redacting bank account information or social security numbers, are banal and trivial to justify. At least on paper, if a court is going to seal anything, it must make a determination that there is an "overriding interest" requiring secrecy that trumps the presumption of openness. But in practice, parties routinely ask the court to seal either dockets, and sometimes even ask to seal the motions to seal (Eugene Volokh has done heroic work on this front, watching dockets across the country like a hawk and regularly filing successful motions to unseal).
The big affirmative action case before SCOTUS at the moment involves a lawsuit against Harvard for anti-Asian discrimination. SCOTUS made the unusual step of requesting everything from the trial court. The only reason this would happen is if SCOTUS has a reason to think they're not seeing the full picture, and at least in this case it seems like the trial judge has indeed been trying to hide some skeletons. Jeannie Suk, a Harvard law professor, has been watching this case with interest and noticed that the transcripts for the multiple sidebars were automatically sealed by the judge. Suk wrote about her efforts to pry open this sealed vault and what she found hidden inside.
What was Judge Burroughs trying to hide? I eventually obtained the joke memo and the surrounding e-mails, and what I read didn’t strike me as having been worth the fight to keep them secret. But the fight itself showed that both Harvard and the court expect the public to operate on trust that their decisions are not biased—an expectation that is all the more troubling as the Supreme Court’s likely ban on using race in admissions will drive the consideration of race further underground.
William Fitzsimmons began working in Harvard admissions more than fifty years ago and has been the dean of admissions and financial aid since 1986. The federal official who wrote the joke memo, Thomas Hibino, worked at the Boston location of the Office for Civil Rights, eventually serving as the regional director; he retired in 2014. Earlier in his career, he had worked at the Japanese American Citizens League. After Hibino oversaw the federal investigation into Harvard’s alleged discrimination against Asian American applicants, decades ago, he and Fitzsimmons became friends, and by 2012 their exchanges included banter about lunch dates and running races together, and teasing when one opted to sleep in. But the relationship wasn’t all palling around, because Hibino was still at the federal agency regulating Harvard. In April of 2013, he wrote to Fitzsimmons, “Regarding the impact of legacy on Asian American applicants, what proportion of AA applicants are legacies and what proportion of white applicants are legacies? Of course I’m happy to talk about this if necessary!” More than anything, the e-mails reveal the coziness of the federal regulator toward the regulated entity.
On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment that he described as “really hilarious if I do say so myself!” Hibino explained, “I did it for the amusement of our team, and of course, you guys”—presumably Harvard admissions officers—“are the only others who can appreciate the humor.” The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.
Like Suk, I can't think of any possible justification to keep something like this hidden under seal. In a case about racial discrimination against Asians, it seems patently absurd to claim how Harvard officials and federal regulators pally around and openly mock Asians is somehow not relevant to the issue. It seems plain to me that the judge chose to hide it because it's embarrassing and inconvenient to Harvard. Anti-Asian bias also came up from education officials in the Thomas Jefferson High School case, where text messages plainly revealed their intent was to reduce the number of Asian students enrolled.
I'm very much against Affirmative Action policies. Although I'm not opposed in principle to remedial measures designed to narrowly target affected groups (although the amounts were pitiful, see Japanese internment compensation), painting entire groups with such a broad brush doesn't work when we have such an incoherent taxonomy of race. Beyond that, although Affirmative Action is often cited as evidence of a "woke pro-minority" institutional bias it seems just as plausible to conclude that privileged white people are hiding behind the "black and hispanic" veil as a way to disguise their motivation to avoid having to compete against Asians for the top spots (I'm open to evidence showing one way or another).
Harvard plainly wants to be able to discriminate on the basis of race. They may offer lofty justifications about why their particular kind of racial discrimination is justified or warranted or morally right, but no one is obligated to accept their statements at face-value. The fact that Harvard (with the help of a federal judge) is working so hard to avoid transparency only makes suspicion that much more warranted as a response to their actions.
ymeskhout
1yr ago
Sexual Panopticon in the Kingdom of Morocco
“Are you guys having sex in there??”
[I wrote this for Jesse Singal's newsletter in December, now unlocked for everyone]
Let's talk about sex. Specifically, let's talk about the bizarre dynamics of how sex is policed in the Islamic Kingdom that is my homeland.
Morocco's government is explicitly religious — there is no such thing as separation of Mosque and State. The constitution establishes the King as Amir al-Mu'minin, the supreme commander of the faithful. Morocco isn't alone here, as Muslim countries are notable not only for formally adopting a state religion but for regularly using government violence to enforce pious conduct among their populaces. This kind of enforcement is facilitated by a population's homogeneity — ninety-nine percent of Moroccans are Muslim and drawn from the same Arab-Berber ethnic stock. Given these factors, you might expect a very strict, orthodox version of Islam to reign, but the truth is a little more complicated.
Saudi Arabia stands out for its uniquely puritanical approach to Islam (known as Wahhabism), and for the notoriety of its religious police force (known as the mutawwa'in). The stories you've heard about Islam in general are probably true. Alcohol is haram. Pork is haram.Premarital sex is hella haram (unless you get a temporary marriage with a prostitute), and don't get me started on the premarital sex with a drunken pig hat trick. Some edicts are easier to enforce than others (say, by monitoring agricultural supply chains), but because fornication usually happens behind closed doors, the mutawwa'in schlep around Saudi Arabia's public spaces to cut off the problem at the source: ensuring no unrelated people of the opposite sex ever get a chance to interact alone. The authorities will do things like surveil entrances to shopping malls and make sure single men never set foot inside unless they're accompanied by a female relative. Any boy and girl caught on a date at a park or wherever might get forcibly escorted to the local police station. (Paradoxically, this obsession with disrupting such dyads might have the unintended consequences of making it easier for gay men to date — no one bats an eye at two dudes hanging out.)
Morocco is significantly chiller on this front. Compared to other Muslim countries, Morocco is known for being fairly relaxed — the land where women can wear bikinis to the beach and are not legally prohibited from operating motor vehicles, and where men and women freely comingle in public without the threat of being caned.
What accounts for this? It's Complicated™, but one explanation has to do with tourism. As the birthplace of Islam, Saudi Arabia welcomes millions of visitors for the Hajj — the annual pilgrimage to Mecca. Because this enormous "tourism" economy comes preinstalled, the country has long been kind of hostile to and uninterested in Western tourism (entire cities, like Mecca and Medina, are completely forbidden to non-Muslims).
In contrast, Morocco's location as one of the gateways to the Mediterranean is consistent with its long history of welcoming Western visitors (fun fact: it was the first country to recognize the newly independent United States back in 1777). Morocco often ties Egypt for first place as the most popular tourist destination in Africa, with millions of visitors every year, despite not having any pyramids. The economy's heavy reliance on tourism necessarily encourages tolerance of foreign kafirs purely as a cynical, pragmatic matter.
The puzzle about how the government can have its cake (enforce religious mores) and eat it too (don't scare the tourists) nevertheless remains. One way it tries to solve this conundrum is simply by explicitly bifurcating the legal code, with some laws carving out broad exceptions for foreigners. It's impossible to keep this laissez-faire approach exclusively quarantined just to les étrangers, and so the tolerance for secularism necessarily bleeds out somewhat.
While Morocco may lack Saudi-style Sharia SWAT teams, a distributed network of civilian snitches can step in to fill the void wherever the government's efforts at morality policing fall short. In 2016, two gay men were violently beaten by neighbors who shouted on the now-unavailable video "this is not manliness" throughout the attack. The assailants were the ones who summoned the police, who then arrested the victims for "sexual deviancy." For economic reasons, but also to avoid the impropriety of scandal, single adults in Morocco are expected to reside with their families and move out only when they get married. Studies have consistently established that the most reliable form of birth control is to live in your parents' apartment with your four siblings. And so landlords in Morocco will flat-out refuse to lease apartments to unmarried individuals, especially women, for fear of potentially bringing dishonor to their roof. Good luck finding a place to hook up with your Minder match.
"What about hotels?" you sheepishly ask. You naive fool, they're way ahead of you. The ultimate example of this public-private partnership enforcement is Article 490 of the penal code, which prohibits unmarried couples from renting hotel rooms. Anyone caught is liable to jail terms, and hotel keepers are legally required to ask for marriage certificates, with police officers checking their logs every week to ensure compliance.
I was subject to this myself. The last time I visited my homeland, I briefly stayed with my sister at a hotel. I announced myself at the front desk, and upon realizing that I, a full-blooded male with no wedding ring, was going to reside in the same room as a female who also lacked a ring, the clerk gave me a raised eyebrow. You'd think our sharing a last name would have been sufficient evidence for the front desk, but given the prevalence and acceptance of cousin marriage in this area, I was required by the keeper to provide proof of sufficient consanguinity. Season two of the masterpiece TV show Ramy portrayed the titular character confronted by Cairo hotel staff about him shacking up with his cousin (spoiler: they were indeed fucking). [I can't say enough good things about this show, and I have emphatically written my praise for its contribution toward providing "true" diversity in media.]
The encounter was surprising (and terrifying) enough that some viewers expressed incredulity at this plot point, but rest assured, it's a depiction of something very real.
A cousin of mine — male, single, unmarried, and on the aforementioned form of parental cohabitation birth control — told me his favorite method for finding a place to hook up: Arrive separately to the hotel, get two separate rooms, and sneak into the same room when the coast is clear. If somehow the double-booking scheme falls through, you can get the hotelier to look the other way with a fistful of dirhams.
Maybe now's a good time to talk about how corrupt Morocco is.
[continued below due to character limit]
ymeskhout
1yr ago
Remember Seattle's CHAZ/CHOP? After the place was cleared, a bunch of local businesses and property owners sued the city and now they all reached a settlement. One part that definitely didn't help Seattle were tens of thousands of deleted text messages:
The city of Seattle has settled a lawsuit that took aim at officials’ handling of the three-week Capitol Hill Organized Protests and further ensnared the former mayor and police chief, among others, in a scandal over thousands of deleted text messages. The Seattle City Attorney’s Office filed notice of a settlement Wednesday in U.S. District Court, just three weeks after a federal judge levied severe legal sanctions against the city for deleting texts between high-ranking officials during the protests and zone that sprung up around them, known as CHOP.
[...]
Attorneys for the more than a dozen businesses that sued the city, led by Seattle developer Hunters Capital, sent a series of letters to the city in July 2020 — after another lawsuit over the violent police response to the protests — demanding that any evidence pertaining to the city’s alleged support and encouragement of the zone’s creation be retained, according to the court docket and pleadings.
U.S. District Judge Thomas Zilly concluded last month that officials ignored the notifications, sending the so-called Hunters Capital lawsuit to trial on two of five claims and dismissing three others. In doing so, Zilly issued a blistering order that leveled crippling sanctions against the city for the deletion of tens of thousands of text messages from city phones sent between former Mayor Jenny Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and four other ranking city officials during the protests.
The judge found significant evidence that the destruction of CHOP evidence was intentional and that officials tried for months to hide the text deletions from opposing attorneys.
The Jewish Conspiracy To Change My Mind
I never had much of an opinion on the whole Israel-Palestinian affair, because — true to my brand — I avoid opining on what I know nothing about. My horrified reaction to Hamas's attacks morphed into existential despondency when I saw others cheering on the massacres with inexplicable glee. My curiosity was piqued, so I read up on the topic with the specific goal of understanding what could motivate joy as a response to carnage. I expected a heavy slog and wrenching ethical dilemmas, all submerged within murky ambiguity. Instead, I was very surprised at how lucid the delineations of the conflict were, and how lopsided the moral clarity was.
I very quickly shifted from 'ignorant agnosticism' towards generally favoring Israel's position on the matter (I can't recall ever changing my mind on an issue so dramatically). I don't want to turn this into a "midwit deludes himself into thinking he's a savant after some Wikipedia perusal" meme — I'm absolutely no expert, but I can't grasp what I'm missing.
I'll start with my opinion on various facets of the conflict, and then finish off with some theories I have for why this issue generates such implacable disagreement.
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Motte-and-Bailey: I admit, I never knew what 'Zionist' meant except as a grave denunciation yet the Zionist movement has been fairly transparent about its goals from its beginning in the 19th century. You could categorize its aim across a spectrum, simplified from least to most radical: 1) Jewish homeland somewhere,[1] 2) Jewish homeland somewhere in the Levant, and 3) Exclusive and total Jewish domination of the entire Holy Land. Both pro & anti-Zionism labels have a strategic ambiguity that can be intentionally levered by any extremist wishing to blend in the crowd. There's a similar dynamic with the Palestinian chant 'From the river to the sea', because is it calling for totally and completely erasing Israel from the map? Or is it simply advocating for a coexisting independent Palestine in both the West Bank (river) and Gaza (sea)? Whatever you want! I see the motivations for a Jewish homeland in the Levant to be sound and understandable. The scattered Jewish diaspora suffered unrelenting oppression across millenia virtually anywhere they went, culminating in some particularly nasty pogroms within the Russian Empire in the late 19th century. The general land borders the Zionists agreed upon weren't pulled out of thin air, and although the-land-formerly-known-as-Canaan exchanged bloody hands multiple times, the area historically represented the only cogent Jewish political entities to have ever existed. Zionist migration had already begun in earnest throughout the early 20th century, and the horrors of the Holocaust only further emphasized the necessity for a Jewish state.
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Palestinian Land: The area was already inhabited by Arab Muslims by the start of early Zionist migration. The Arabs too have a historical claim to the area and also benefited from being last in the very long list of adverse possession feuds. If a stranger shows up to your figurative house and suggests taking only 20% in response to your attempts to evict them, it's not unreasonable to tell them to fuck off. The Zionists had way more of a diplomatic bargaining chip after the Holocaust, but either way it wasn't unreasonable for the Arabs to reject ceding 56% of the land that was Mandatory Palestine. I don't want to frame this as a "shoulda negotiated" fable, but the practical outcome of the ensuing 1948 war resulted in the creation of Israel with about 78% of the territory. It's reasonable for any loser of a war to hold a grudge against their conquerors.
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The Nakba: The human toll of the 1948 war on the Palestinians shouldn't be diminished or overlooked. The war resulted in around 25,000 total dead and the displacement of 700,000 Palestinians, an event forever commemorated by the Arabic word for "catastrophe" — Nakba. Displacement doesn't just mean a change of address; it was a wrenching life upheaval. The Nakba led to squalid refugee camps, outbreaks of diseases like typhoid, and the erasure of villages that had stood for centuries. Material and immaterial culture — homes, orchards, community centers, dialects, local traditions— were lost, perhaps irretrievably. This was very Bad and unfortunately all too common.
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Vendetta Forever: Human history is rife with violence, often fueled by ancestral grudges. There's nothing wrong with suggesting that some blood feuds should have been abandoned long ago. Next door to Israel, the ongoing Syrian Civil War has a death toll (500k-600k dead) nearing that of the Nakba's displacement figure, alongside a global refugee crisis.[2] After 12 years of destructive stalemates, the best outcome Syrians can hope for is to solidify the current status quo; it's not plausible for any side to conclusively end the conflict without additional bloodbath. But imagine a Syrian refugee in Turkey disavowing this hypothetical ceasefire and instead pledging a lifelong vendetta — as well as the lives of all his future descendants — fixated on reclaiming his family's vineyard in Homs from Al-Assad's forces. The wounds are still fresh but steering someone away from such an insane and self-destructive fanaticism isn't unreasonable. And yet, that's not the reception Palestinian grievances from 1948 land grabs receive, despite their much older expiration date. I don't want to turn this into a catastrophe pageant competition; we can acknowledge the suffering someone's ancestors endured while also reminding those living that their unyielding attachment to past vendettas has only brought further ruin to themselves and their families. The fanatical obsession over relatively resource-barren land simply cannot be explained by just tallying up the generational wealth the expelled Palestinians lost out on; there's much more than is admitted to here (more on this later).
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Arab Humiliation: After the 1948 war, Israel's borders were left on a standstill with an armistice agreement with Egypt taking over Gaza, and Jordan grabbing the West Bank. It's tediously irrelevant to litigate the 'who started it?' chain, but Israel (along with the UK and France) did indeed invade Egypt in 1956 over the Suez Crisis, though they pulled out after a week and Egypt agreed not to block their shipping lanes through the Straits of Tiran. In 1967, Egypt, Jordan, and Syria planned a surprise invasion against Israel but instead got absolutely trounced in what was named the Six Day War. Their invasion didn't just spectacularly fail on its intended merits, but everyinvading country lost significant territory to Israel's counter-offensive (Golan Heights from Syria, West Bank from Jordan, and Gaza Strip plus the entire fucking Sinai Peninsula from Egypt). The Arab League convened three months later and doubled down on their vendetta against Israel, issuing the Three Noes Resolution against Israel: No peace, no negotiation, no recognition. Not content with their first military invasion, they tried another surprise attack six years later in 1973. The Yom Kippur War wasn't as quick, taking slightly less than three weeks to resolve in yet another Israeli victory. It's hard to overstate just how much of an existential humiliation for the Arab world this time period was. The Arabs were ostensibly blessed by Allah Himself, and fighting in their home desert turf, and yet they couldn't put a dent on the Yahud? Knowing full well they couldn't match the Jews in conventional warfare, much of the Palestinian cause shifted towards "unconventional" methods of indiscriminate rocket attacks, suicide bombings, & kidnappings. It's reasonable to discount the Arab countries' self-serving claims about being motivated by the plight of the Palestinian people,[3] because instead of assisting them directly they squandered tens of thousands of lives on foolish military adventures.
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Israel Sometimes Lies: Israel, like virtually any other government, has a history and incentives to lie about its actions. The most notable example is the 1996 Qana massacre where IDF lobbed artillery shells at a UN compound in Southern Lebanon, killing over 100 Lebanese civilians. The IDF has maintained it was all totally an accident and initially repeatedly denied they had any reconnaissance drones in the area, until serendipitous UN footage proved otherwise. In 2009, Israel initially denied ever deploying white phosphorus in Gaza, until the video evidence from journalists on the ground was too overwhelming to ignore. In the current phase of the conflict, Israel is simultaneously asserting that 1) Hamas militants were able to break through a heavily-monitored security fence and go on a rampage because of an unprecedented intelligence failure and 2) Israel has the capabilities to execute targeted strikes against Hamas leadership while minimizing civilian casualties within the urban jungles of Gaza. It's perfectly reasonable to be skeptical of any self-serving claims made by Israel absent any corroborating evidence.
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Orthogonal Violence: I'm not a pacifist, but anyone who decides to deploy violence as a tool should be extremely careful they're not simply succumbing towards quenching a primeval bloodthirst. Any application of violence should be oriented towards a specific goal, proportional to the objective, and carried out with humility.[4] I wrote about how the relatively bygone Punch A Nazi discourse failed all three prongs: 1) vague hypothetical that the spread of dangerous ideas will be curtailed if enough "Nazis" are punched in the face, 2) Antifa's awful target acquisition meant random Bernie supporters got metal pipes to the skull, and 3) the violence enactors were generally extremely hostile to any criticism about their tactics. Within this narrow framework[5] I'm willing to say that the suicide bombing of CIA base involved in drone strikes in Afghanistan was justified, as was the targeted assassination of the architects behind the Armenian genocide, and as were either tête-à-tête military battles or guerilla actions between Jewish and Arab forces in 1948.
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Perverse Excuses: In contrast, I find no justification for indiscriminate attacks on orthogonal targets. What exactly is the objective and how does murdering Olympic athletes, or bombing a discotheque, or bombing a pizzeria, or murdering bus passengers, or sniping a baby in a stroller get anyone closer to it? The rockets Hamas regularly launches against Israel are slap-dash affairs, jury-rigged from water pipes and common materials. There's no guidance system to speak of, and the most precise aim Hamas could hope for is [waves vaguely over the distance]. Their only practical purpose is to sow psychological trauma on a civilian population, which is as cogent of a definition for terrorism you could get. I don't believe I've encountered anyone directly defending the strategic merits of indiscriminate unguided rocket attacks, or music festival mass shootings. Instead, I see either excuses about how we outsiders shouldn't cast judgement upon the anguished and desperate actions of an oppressed populace, or affirmative declarations that "resistance" is justified through "any means necessary". Hamas leadership parrot this argument, as seen in this rare moment where Ghazi Hamad breaks into English to say that as the victims in this conflict, anything they do is by definition justified. This view is beyond heinous, because it has no bounds. It posits an insane moral outlook that once someone is anointed as sufficiently oppressed, their actions — no matter what! — are indefinitely beyond reproach or scrutiny. This is indistinguishable from how some of my domestic violence clients jettison any semblance of responsibility for their abuse, by focusing exclusively on how they were "provoked" into ripping out a chunk of their girlfriend's scalp. This is a framework I thought was too fucking stupid to entertain seriously, because the parody writes itself. We always can and must maintain the capacity to simultaneous condemn and empathize, without requiring us to plunge into the abyss of moral sociopathy. Jeffrey Dahmer's actions can't suddenly become righteous endeavors if he happened to be a Palestinian eating Israelis. And no matter how righteous a cause might be, it will never be worth having this as one of its Wikipedia pages.
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Security Dilemma: I am a proponent of 100% open borders (for both trade & people) but concede it's not a tenable position during ongoing hostilities. It's true, both Gaza and the West Bank are surrounded by formidable security barriers that require Palestinians to be subjected to intrusive, arbitrary, and often humiliating security screening, but it was largely built in response to a wave of suicide bombings during the Second Intifada. I would love to see a free flow of goods and people but any security relaxation whatsoever is immediately exploited, with children as young as 14 regularly employed into martyrdom. I have no idea what the alternative solution is supposed to be here.
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Placating the Extremists: Both sides™ of the conflict contend with warring internal strife. On the Israeli side, you have hardcore Zionists who are religiously motivated to habitate as much of the Promised Land as possible, chant "Death to Arabs", and are now forming roving gangs to dispense retributive violence in the West Bank and elsewhere. On the Palestinian side, you have Hamas and its implacable founding principles calling for the absolute and total elimination of all Jews, and a RETVRN to a worldwide caliphate. The messy logistics of coalition politics necessitates cooperating with unsavory actors lest the whole structure irreparably collapses. Any moderate who strays too far from the flock faces serious risk from the fanatics with any sizeable power, which is why Yitzhak Rabin's openness to a peace plan got him assassinated by a right-wing Jewish activist. This also explains Israel's unjustifiable & needlessly antagonist (IMO) settlement policy of sort-of-maybe-not-but-actually-yes encouraging civilian takeover of contested territory. This also explains Yasser Arafat's intransigence during the Camp David talks, refusing to provide any counter-offer after rejecting Israeli's proposal. The moderate wing of either side balances benefiting from the zealot's "enthusiasm", while also making sure not to scare the hoes (by hoes I mean the international community of course).
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Apartheid State: Given the constant sloganeering about "Apartheid" and given that Israel was founded to be an ethnostate intended to prioritize the interests of a Jewish population, I was surprised to learn about the conditions of Arab-Israelis. 21% of the population is Arab — almost all of whom are Muslim. Arab-Israelis are nominally afforded the exact same rights as any other Israeli citizen, though there remains rampant disparities in income, employment, and municipal funding. I don't want to pull a Kendi here and claim the only explanation for disparate outcomes is discrimination, because it very well could be a 'pipeline problem' that stems from the aforementioned disparities in public services, or perhaps differences much more inherent. Arabs are exempt from Israel's compulsory military service, which traditionally provides a highly-respected advancement ladder. Arab-Israelis are allowed to volunteer though this virtually never happens but the ones that do are well assimilated into Israeli society, such as the highly-celebrated Captain Amos Yarkoni. But set all that aside for now and just assume that Arab/Jewish disparities are strictly the result of incessant discrimination. It's true that Arab-Israelis earn about 60% as much income as Jewish-Israeli households, yet this roughly translates into an average daily wage of $50 for Arab-Israelis compared to $32 in the West Bank, and $13 in Gaza. I don't know how directly comparable the ratios are to individual income, but as a rough metric Israel's $54k GDP per capita is more than ten times what is available in neighboring Egypt, Lebanon, and Jordan. By any material measure, Arab-Israelis fare much better under Israeli governance than under any neighboring Arab governance.
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Decolonization Narrative: The "colonization" narrative is facile and misleading but let's assume the truth of the charge, what exactly is the complaint? I used to think the "only functioning democracy in the region" mantra was an exaggeration but no, it's true. Some Arab-Israelis even serve in parliament. If the worry is a lack of political self-determination among non-Jewish Israelis, the concern doesn't appear substantiated. Personally, political self-determination has little inherent value to me; it's useful only insofar as it helps foster governance better tailored to a community's needs and if the two aims are ever in tension, I will always prioritize material benefits (give me Hong Kong under British colonial rule over democratic India any day of the week). Israeli governance is already demonstrably vastly superior from a wealth perspective, so I don't understand the complaint lodged. I also personally would always prioritize a cosmopolitan open society over the self-determination of followers of a repressive religion, and nowhere is that schism funnier than with the unironic "Queers for Palestine". Palestinian culture has regressive aspects I have no interest in seeing replicated. Beyond economic comfort and civil freedoms, Israel has demonstrated a broader commitment to cosmopolitan multiculturalism, as illustrated by how the Temple Mount is governed. It's the former site of the destroyed Second Temple (Judaism's holiest site) which was later replaced by the Al-Aqsa Mosque (Islam's third holiest site) and despite its central importance within Jewish lore, I was surprised to find out that Israel has prohibited all Jewish prayer since its takeover of the area in 1967 after the Six Day War. The Temple Mount area is governed by a religious committee composed only of Muslims members. I can't fathom the countervailing scenario where Muslims are willing to prohibit prayers at Al-Aqsa.
Sorry for that encyclopedia up there, I had to get it out of my system. There are no doubt some valid Palestinian grievances scattered among the bloodied ashes above, but I can't shake off the conclusion that much of the unrelenting rage lobbed towards Israel is driven overwhelmingly by petty nationalistic pride, fanatical religious zealotry, or just plain ethnic bigotry. Again, I'm not saying all! Previously, I would roll my eyes at the reflexive refrain that any criticism of Israel is driven by anti-Jewish[6] bigotry. I was generally skeptical of bare allegations of bigotry in any context (as a baseline), but particularly within Israeli discourse given the potential for nationalistic motives to skew reasoning. Some of my skepticism remains warranted, but I readily admit I had seriously underestimated the ambient level of anti-Jewish bigotry.
There's been a real mask-off moment among the Pro-Palestinian movement, with no pushback against the atrocious message discipline. Shortly after Hamas' incursions, before Israel's Gaza pulverization campaign, we had crowds in Sydney with "Gas the jews!" chants. The posters of Israeli children kidnapped by Hamas continues to be irresistible bait for folks driven into an uncontrollable rage to tearing them down, and in the process showcasing their barely-veiled animosity. I feel like I'm insulting everyone's intelligence here because they're not even trying to hide it, otherwise why would anyone cite the expulsion of the Khaybar Jewish community by the Muslims in 628 CE supposedly to protest a country founded in 1948?
The early Zionists secured land through legal purchases, though the transactions were often made with absentee landlords and came as a surprise to the occupants. The Palestinian Arabs reacted with enmity towards the growing Jewish presence in the area, leading to a wave of deadly riots and revolts throughout the 1920s and 1930s. One way to describe the Palestinian reaction here is as violent anti-immigrant vigilantism fueled by racial animus. The enmity was obvious from the neighboring governments too; few instances in history rival the unequivocal refusal to even entertain negotiation or peace as a possibility, as expressed in the Khartoum Declaration. The closest historical analogue I could fathom is maybe Carthago delenda est but even that one was a warning about the threat of a geopolitical rival, not a promise to forever disavow any diplomatic entreaties.
It's funny how easily the phrase "economic anxiety" is lobbed as a punchline to skewer the notion that Trump supporters are motivated by anything except virulent racism. A couple hundred people wielding tiki torches is presented as definitive proof of America's enduring and widespread racism problem, but brays to slaughter the Yahudis is reflexively dismissed as understandable human reactions. If that's your position, the question always remains what evidence would convince you otherwise about their true motivations? If every call to arms about killing all the Jews can be justified within the oppression rubric, you now have an unfalsifiable theory that is immune from scrutiny.
There's an argument on the Palestinian "resistance" side I've seen from several sources that apes the misguided politics of Identitarian Deference. The idea being that someone's willingness to detonate a suicide vest among a crowd of people is conclusive proof of their desperation, because no rational person would do something so terminal unless they were truly pushed to the brink with no other option. In other words, their depravity is evidence of their virtue.
There are so many things wrong with this argument but what I'll focus on is its assumption of rationality, because human beings are capable of acting in all sorts of deranged ways for all sorts of reasons. We have cults whose members are subject to what is functionally elaborate mind control. We have debilitating mental illnesses that rob people's ability to tell what is real and what isn't. And of course, we have fanatical religions that can maintain a robust foothold despite indoctrinating its followers into self-obliteration.
Gaza polling is not totally reliable, but recent findings indicated tepid support for Hamas and its apocalyptic mission, clocking in only at 20%. Yet it's difficult to imagine how such a severe ideology can remain neatly contained within its own bucket. The mentality behind the Hamas militant gleefully bragging to his parents about all the Jews he killed cannot spawn out of thin air, nor could his parents' immediate emotionally-overwhelmed congratulations. The Hamas-run show Tomorrow's Pioneers aired the most deranged children's television segment I have ever seen. In one episode, children sang about how qualified they are for martyrdom (can you believe it gets worse?) and in another, the actual children of Reem Riyashi are invited to sing a song written from their perspectives, about how it's ok their mom couldn't hug them on the last day they saw her...because her arm was too busy holding a bomb.
What's the counter-argument here? Is the homicidal propaganda taken out of context? Is the claim that it's not representative? Maybe that's true, but how can you tell? It's baffling that anyone seriously believes the Palestinian cause is primarily motivated by someone's great-great-grandparent losing their farm 75 years. Al-Aqsa Mosque imagery is inextricably linked with the broader messaging. Hamas names everything after it (TV, brigades, floods, etc.), and Israel's administration of the Mosque itself remains a point of serious contention. Zealots are incentivized to garner broader support for their fanaticism by sanewashing it into palatability, and the unique amalgamation of revolutionary Marxism and Arab nationalism afforded a readily available mantle:
In this new reading, the possibility of transcendence outside history was reworked into the possibility of transcendence inside history through revolution. Salvation was secularized, and atheized, into temporal salvation brought on by a political collective will. That Islam is a philosophical totality to be achieved through national liberation and socialism, and progressive revolution against the forces of colonialism, Judaism (particularly as embodied in Israel), and reaction (embodied in conservative pro-Western Arab monarchies), became the generic message.
Longstanding land grievances get repackaged as anti-colonial struggle, and genocidal religious fanaticism gets rebranded as anti-imperialist resistance. So when we are presented with acts of extreme desperation, demanding our unquestioning empathy for their purported plight, we can decline. We have the capacity to think critically and carefully scrutinize their self-professed motivation and see if it's in accord with reality. Sometimes we are intentionally fed a misleadingly sanewashed narrative, and sometimes the behavior we're observing is not the result of rational faculties.
I did not revisit some personal interactions until recent events prompted otherwise. Whenever I visited my family back home in Morocco, no other topic generated as much acrimony as Israel. It's a common trope for home families to worry their emigrated members will be brainwashed into secularism, and bizarrely the most scrutiny I ever received from them about my life in the United States wasn't about whether I ate bacon or drank alcohol, but whether I was friends with any Jews. The Yahud aren't to be trusted, they warned, as evidenced by the fact that no Jew was ever killed on 9/11, or by the fact that Mossad created ISIS as a bid to make Arabs look bad (I'm not joking, these claims are unironically professed by several of my family members). I assumed their baffling conspiracies were the understandable byproduct of what had to be justifiable rage against Israel.
I admit deep embarrassment at how under-informed I previously was about this topic. Everything I wrote above took time obviously,[7] but it was all based on readily available sources (ChatGPT was also an amazing help in quickly filling in gaps and finding counter-arguments). My operating assumption used to be that this was all too complicated of an issue to untangle. I presume I might have been influenced by the underdog memeology of a child throwing a rock at a soldier.
I'm also willing to blame media coverage on this topic. This Vox video purporting to 'explain' Gaza is the perfect illustration of this genre of lying by omission. See how much it breezily glosses over the lead-up to the 1947 civil war:
In 1947, as the British prepared to leave they left the fate of Palestine up to a newly formed United Nations who voted to divide Palestine into a Jewish state and an Arab state. Soon, Zionist forces and militias began to forcibly expel hundreds of thousands of Palestinians from their land...
So the UN had a plan but the Jews responded by just kicking people out? Damn that's so crazy! That segue belongs in a museum somewhere, as it eviscerates decades of conspiracy theorizing about who really controls the media.
Ultimately, I find very little to sympathize with on the Palestinian cause. Except for the ongoing West Bank encroachments, I can't take any of the land grievances from 1948, 1967, or 1973 seriously; at least not seriously enough to justify the knee-deep bloodshed. I can't support any movement, no matter how righteous its cause might be, that employs sadistically orthogonal violence. I can't endorse any culture that punishes sexual and political non-conformity with forceful repression. And I want absolutely nothing to do with any ideology capable of such self-serving justifications towards its destructive fanaticism.
Despite the zealous wing in its own house, its history of covering-up its war crimes, and its ongoing settlement expansion campaign, Israel remains the obvious choice for whom to favor if I had to pick. I'm neither Jewish nor do I have any interest in a religious ethnostate, but out of the available options I'd much rather have a society that can build up material comfort enviable to its oil-laden neighbors, establish a semblance of multicultural cosmopolitanism, and provide a haven of responsive governance within a region known for its rarity.
I remain open to having my mind changed. You may attempt this in several ways, including but not limited to:
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Point out any specific factual errors or misunderstandings in anything I wrote. If you believe any of my (mostly Wikipedia) sources are too biased or otherwise unreliable, explain why and suggest alternatives.
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If you object to Zionism, specify what kind and why.
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If you believe persistent Palestinian land grievances remain warranted today, be specific about which ones (Early migrations? 1948? 1967?) and explain why. Also make sure to specify if your standard applies to all displaced people anywhere else, or if it's unique to the Palestinians'.
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If you object to how Israel deploys its military or security apparatus, specify if you disagree with their goals or with their tactics, and be specific about what they should do differently.
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If you object to my comparative preference for Israeli's model of governance and culture, be specific about which aspects of Palestinian governance/culture have superior merits.
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If you disagree with my criticism of oppression-status granting infinite moral immunity, be specific about what limiting principle you'd propose (if any).
That's it. Thank you for weathering through this with me.
Salam & Shalom.
[1] One of the earliest proposals was for Uganda of all places.
[2] Around the same time as the Nakba, the 1947 India-Pakistan Partition resulted in up to 2M dead and up to 20M displaced. It feels unconscionably perverse to flatten the sheer scale of human tragedy here into a glossed reference to "millions" but it's all the time we have.
[3] Israel's Arab neighbors have had a contentious relationship with the Palestinian cause, despite the superficial optics. Palestinian Fedayeen for example tried to overthrow the King of Jordan in 1970. When they got expelled from Jordan, they tried to use Lebanon as a staging ground for attacks against Israel, events which culminated into the protracted Lebanese Civil War. And today, Egypt still enforces its half of the Gaza blockade.
[4] Only after writing this section did I realize I basically rederived the Just War Theory.
[5] For the love of Allah please remember that I am only assessing whether the violence is justified within the contours of bounded scenarios; I am not making any larger pronouncements about the righteousness of any side's cause.
[6] Anti-Semitism is such a misleading term as 'Semitic' is a language family, not an ethnic categorization, and includes Arabic!
[7] Many thanks to the Baileyites for their invaluable feedback.
In the thread below about the WNBA player who was sentenced for weed possession in Russia, the discussion dovetailed into how January 6th defendants are treated and a couple of people made what to me were eyebrow-raising claims. @anti_dan worried about the fact that J6 defendants could "be held without bail for wandering in", and @The_Nybbler was concerned about how "many of the "rioters" who committed no crime worse than trespassing (in some cases not even entering the building, just supposedly-forbidden parts of the grounds) are getting harsh punishments for political reasons".
As the token defense attorney who cares about criminal justice reform, both concerns piqued my attention. But as far as I can tell, the concerns are fictitious [EDIT: see notes below]. I've previously written about the difficulties inherent with collecting representative data about state crime statistics (tldr: lots of scattered jurisdictions + lack of court record transparencies), and while I've previously whinged about people here being sloppy with their claims about state crime trends, I fully appreciate the reluctance in committing to what can amount to a thesis-level research endeavor.
But it's different with the J6 prosecutions because they're all happening in a single jurisdiction with a lot of people paying attention. Information is surprisingly easy to find. Just googling "january 6th defendants database" will lead to dozens of hits.
Regarding the people held without bail just for wandering in, I did a quick google search but couldn't come up with an updated number of how many defendants are still held in jail (either with no bail or with unrealistic bail). There was a DC Appeals Court decision a while back that instructed magistrates to release people unless the government can demonstrate a specific threat. This means that anyone who is "held without bail for wandering in" would be contrary to that court's order. It's possible I missed something, but I couldn't find any evidence of this happening [EDIT: see notes below].
For the claim that "many" of the J6 defendants were facing "harsh punishments" (in fairness, this is ambiguous) for doing no worse than just trespassing, this too was easy to quickly google. This database from Politico is out of date but was at least searchable. Most of what I was familiar with for misdemeanor J6 pleas was just probation with no jail time. I plugged in "entering a restricted building" in the full table and sorted by incarceration and saw only three people got jail time (reminder that the database is incomplete) with the highest being 50 days for William Tryon. I quickly googled and easily found the guilty statement that was filed in his case. I would guess that the aggravating factors that made his case stand out was that he asked police to enter the building, was denied, tried to enter anyway, was pepper-sprayed, created an opening at another location by removing broken glass, encouraged other people to enter the building, and then confronted another line of police. He couldn't have claimed a plausible defense of "I didn't know I couldn't enter" based on those facts. Given what I know about misdemeanor sentencing, 50 days of jail for this fact pattern did not strike me as out of the norm. Maybe The_Nybbler knows about "many" other cases that I somehow missed, or perhaps they have a specific definition of "harsh punishments" which would encompass probation.
I responded to both with my concerns but neither replied. Maybe either/both have some evidence to showcase, in which case they now have another opportunity to do so (yay!). I think this is an illuminating exercise because it can shed light on our biases and how we can process information. In my last whinge on this topic, I had an enlightening exchange with adamsb6, where they initially suspected that J6 defendants were treated especially harshly. I asked some basic Bayesian questions (how many J6 defendants? what % of those were released? what % of all federal defendants are released?) and they were surprised at how off-base some of their assumptions were. This does not mean that J6 defendants are not treated especially harshly, but the exchange was instructive because it plainly demonstrated how even a conclusion arrived at in earnest can be muddied up if you are led by inaccurate premises.
I hope we can have a similarly enlightening exchange with the above examples. It's possible that both @anti_dan and @The_Nybbler 's claims are true, in which case I remain eager to see their evidence. If neither claim is true, then I would be very curious to know how they arrived at these conclusions. I anticipate that the likely issue is feeding inaccurate premises into the system, which can befall anyone and is not a personal failing. You don't always know what you don't know after all. In either case, I hope I've shed light on just how easy quickly googling shit can be (I swear I am not sponsored by the search engine company).
Edit1: @DradisPing helpfully pointed me to the case of Timothy Louis Hale-Cusanelli. As further explained in my post below, I think this is someone @anti_dan can plausibly argue was "held without bail for wandering in", but not "without them even proving that you knew it was illegal to be there".
Edit2: @JarJarJedi had a solid response and pointed out Karl Dresch and Michael Curzio to which I responded to below. Both were indeed "held without bail for wandering", although arguably they knew it was illegal to be there.
ymeskhout
7mo ago
Defunding My Mistake
Confessions of an ex-ACAB
Until about five years ago, I unironically parroted the slogan All Cops Are Bastards (ACAB) and earnestly advocated to abolish the police and prison system. I had faint inklings I might be wrong about this a long time ago, but it took a while to come to terms with its disavowal. What follows is intended to be not just a detailed account of what I used to believe but most pertinently, why. Despite being super egotistical, for whatever reason I do not experience an aversion to openly admitting mistakes I've made, and I find it very difficult to understand why others do. I've said many times before that nothing engenders someone's credibility more than when they admit error, so you definitely have my permission to view this kind of confession as a self-serving exercise (it is). Beyond my own penitence, I find it very helpful when folks engage in introspective, epistemological self-scrutiny, and I hope others are inspired to do the same.
How Did I Get There?
For decades now, I've consistently held plain vanilla libertarian policy preferences, with the only major distinction being that I've aligned myself more with the anarchists. Whereas some were content with pushing the "amount of government" lever to "little", I wanted to kick it all the way to "zero". There are many reasons I was and remain drawn to anarchist libertarianism, and chief among them was the attractively simple notion that violence is immoral and that government is violence. The problem with moral frameworks is that they can be quite infectious. To pick on one example for demonstration's sake, I notice that for many animal welfare advocates a vegan diet is heralded not just as the ideal moral choice, but also as the healthiest for humans, the least polluting, the cheapest financially, the best for soil conservation, the most water-efficient, the least labor-exploitative, et cetera & so forth. There's a risk that if you become dogmatically attached to a principled position, you're liable to be less scrutinizing when reflexively folding in other justifications. I suspect that happened to me with prisons, for example, where because I felt immediate revulsion at the thought of the state forcing someone into a cage, I was unwilling to entertain the possibility it could be justified. Ceding the ground on this particular brick was too threatening to the anarchism edifice I was so fond of.
Obviously if you advocate getting rid of the government, people naturally want to know what will replace it. Some concerns were trivial to respond to (I'm not sad about the DEA not existing anymore because drugs shouldn't be illegal to begin with), but other questions I found annoying because I admittedly had no good answer, such as what to do with criminals if the police didn't exist. I tried to find these answers. Anarchism as an umbrella ideology leans heavily to the far left and has a history of serious disagreements with fellow-travelers in Marxism. Despite that feud, anarchist thought absorbed by proxy Marxist "material conditions" critiques that blame the existence of crime on capitalism's inequalities --- a claim that continues to be widely circulated today, despite how flagrantly dumb it is. As someone who was and continues to be solidly in favor of free market economics, these critiques were like parsing an inscrutable foreign language.[1] I was in college around my most ideologically formative time and a voracious reader, but I churned through the relevant literature and found nothing convincing. Instead of noting that as a blaring red flag, I maintained the grip I had on my preferred conclusion and delegated the hard work of actually defending it to someone else. I specifically recall how Angela Davis's 2003 book Are Prisons Obsolete? (written by a famous professor! woah!) had just come out and the praise it was getting from my lefty friends. If this synopsis of the book is in any way accurate, Davis's arguments are so undercooked that it should come with a health warning. The fact that I never read the book all the following years could have been intentional, because it allowed me a convenient escape hatch: whenever pressed, I could just hide behind Davis and other purportedly super prestigious intellectuals as my security detail. Back then, I carried the incredibly naive assumption that any position held by prestigious academics couldn't be completely baseless...right?
Also pertinent is exploring why I felt so attached to something I knew I couldn't logically defend, and the simple explanation is that it was cool. Being a libertarian can be super socially isolating, especially if you live only in places overwhelmingly surrounded by leftists like I do. I navigated the social scene by prioritizing shared political values --- let's not discuss how I don't support the minimum wage, focus instead on how much I hate the police and on how much I love punk rock. That worked really well. Putting "ACAB" on my Tinder profile was an effective signaling move that dramatically improved my chances of matching with the tattooed and pierced cuties I was chasing. Announcing at a party that you are so radical that you're willing to eliminate prisons is an effective showmanship maneuver that few others have the stomach to challenge. There was plenty of social cachet motivating me to ignore niggling doubts.
How Did I Leave?
Whatever the outward facade, my position was crumbling behind it. Almost seven years ago I started working as a public defender and was inundated with hundreds of hours of police encounter footage that were completely uneventful; if anyone, it was usually my client who acted like an idiot. I've seen bodycam footage that starts with officers dropping their lunch in the precinct breakroom in order to full-on sprint toward a "shots fired" dispatch call. I've seen dipshits like the woman who attempted to flee a traffic stop while the trooper was desperately reaching for the ignition with his legs dangling out of the open car door. Despite this, the trooper treated her with impeccable professionalism once the situation was stabilized. At least about five years ago, I found myself in a conversation with a very normie liberal lawyer on the question of police/prison abolition. It was one of the first times I encountered serious pushback and I quickly realized just how woefully under-equipped I was. I distinctly remember how unpleasant the feeling was --- not from the fear of being wrong about something, but rather the fear of being found out.
There were instances where I pulled bullshit what-I-really-mean defenses of ACAB and tried to pontificate about how it's less about whether individual officers are per se "bastards", but rather how the institutional role is blah blah blah. I played similarly squirmy motte-and-bailey games with the abolition topic when I was confronted with undeniable rebuttals. I found an example from almost 10 years ago of one of my most common responses, where I'd highlight some police scandal (e.g., cops seizing more stuff through civil forfeiture than is stolen from people by burglars) and accompany it with the eminently lukewarm "on net, society might be better off without police". The argument is as abstract as it is unconvincing; soaring at an altitude too high for effective critique yet also too remote for anyone to care. Tellingly, I wouldn't and couldn't address the more pressing questions of how to deal with more serious crimes.
It was bizarre watching the discourse unfold during the 2020 BLM riots/protests. Almost overnight, the normie liberal demographic that previously was willing to push back on my inanity was now hoarse from screaming for police abolition. My younger self would've been thrilled watching the populace fully adopt radical anarchist sloganeering, but my actual self was aghast. I couldn't believe these people were speaking literally (yep!) or whether they somehow discovered the elusive magic elixir that transformed police abolition into a viable policy proposal (nope!). I'm someone who was and remains a full supporter of BLM's policy proposals, and I even defended burning down a police precinct building in Minneapolis for fuck's sake, and yet I didn't join the defund chorus.
Still, there's a noticeable bend to some of my writing from that time where I consciously mirrored some of the language du jour --- such as making a bog standard argument against mass incarceration while aping abolition language, or responding to a DTP conversation by discussing police overcompensation. I haven't changed my mind about anything I wrote there, but nevertheless it's fair to accuse me of indirectly "sanewashing" the DTP issue. I took my boring, wonky arguments and adorned them with the faintest slogan perfume. This let me carry my hobbyhorses on the attention wave, but it also contributed to rehabilitating (however slightly) the totally crazy slogan position.
Now What?
I know it sounds crazy, but I think effective law enforcement is a vital component of any well-functioning society. Tons of cops are perfectly decent people who try to do the best they can at a difficult and unenviable job. There are bad people out there who can be prevented from doing bad things only when they are physically restrained with chains and metal bars. Unless we develop some revolutionary new technology or fundamentally modify the nature of man, this is the reality we're stuck with. I still firmly believe there are loads of improvements we can make to the policing and incarceration we have, but abolishing it all is a delusional idea untethered from reality. Radical stance, I know.
Regarding the anarchist responses to the topic, the only coherent proposals I've ever encountered are from David Friedman and others on the anarcho-capitalist side (a variant thoroughly detested by left-wing anarchist thinkers who think it's an affront even to consider it "real" anarchism). Friedman's response is essentially a cyberpunk future with competing private companies offering insurance, security, and arbitration in one package. Friedman's proposal is unusually thoughtful and coherent (the bar is low) and yet still remains largely a thought exercise reliant on some generous game theory assumptions. Who knows if it will or can ever work.
In terms of lessons learned, I should first note that introspection of this kind, spanning across such a long time period, will have significant blind spots and would be particularly prone to flattering revisionism. The most obvious mistake I made was in burying those unnerving moments of doubt. Instead of running toward the fire to put it out, I did my best to tell myself there was no fire. I had already arrived at a conclusion in my mind and worked backward to find its support, and I suppressed how little I could actually find. Whether intentionally or not, I fabricated comforting explanations for why my position was right even though I couldn't directly defend it, often citing evidence that was more aspiration than reality. My ideological isolation kept me safe from almost all pushback anyways. And magnifying all of this were the social dynamics that rewarded me for keeping the horse blinders on.
I'm likely overlooking other factors of course, and there's the ever-present, gnawing worry that haunts me, whispering that I might be fundamentally mistaken about something else. Maybe I am, but hopefully I'll be better equipped to unearth it.
[1] This isn't really on point or even about crime, but to give just one example of the "vibe" I encountered from left-wing anarchists, Voltairine de Cleyre in one of her essays makes a very Kulak-esque argument about how to best guarantee freedom of speech:
Anarchism says, Make no laws whatever concerning speech, and speech will be free; so soon as you make a declaration on paper that speech shall be free, you will have a hundred lawyers proving that "freedom does not mean abuse, nor liberty license"; and they will define and define freedom out of existence. Let the guarantee of free speech be in every man's determination to use it, and we shall have no need of paper declarations.
ymeskhout
1yr ago
One of the nefarious stratagems the Democratic Party engaged in this election was to intentionally boost and generously fund far-right Republican candidates over their more moderate opponents in the Republican primaries. This potentially risky gambit was intended to allow Democratic candidates to coast to an easy victory by knocking out the moderate Republican option from the general election. This strategy was not just an after-thought, as the Dems put in a ton of resources into the effort. In Maryland for example, the Dems spent $1.2 million on Dan Cox's campaign, more than twice the money the candidate raised at that point. I thought then and still think this is dishonorable and contemptible behavior, but from a pure power play perspective, I concede it was a sound tactical decision. All six Republican candidates (3 governors, 1 senator, 2 house) targeted by this play lost the general election, five of them by double-digit margins.
It's important to emphasize that the Dems didn't force Republicans to do anything. All they did was dangle the candidate's Republican bona fides with "oh no it sure would be terrible if this person that loves Trump and still thinks the election was stolen ends up being the nominee oh no" and voters agreed with them. Given how much of a resounding success this was for the Dems, I anticipate we'll see it again in the future.
If so, can the GOP do anything to immunize itself from this effort? Should it even try to? Also, two can play at this game but is this strategy something the GOP can successfully levy? Dems have no shortage of total crazies (as Libs of TikTok can demonstrate) after all. What would that look like and what are some candidates that come to mind?
ymeskhout
1yr ago
Back in August 20 people were arrested in Florida as part of a sting operation on "voter fraud" heavily publicized by Gov. DeSantis. Each person had a felony conviction and voted, but I wrote about how each person was specifically told by election authorities that they were legally able to vote. The confusion stems from how felony voter right restoration was implemented in Florida, where the state insisted that everyone had to pay all outstanding fines while at the same time admitting it had no way of keeping track of all these fines.
A small update since then is that bodyworn video footage of the arrests has been released. The language in an arrest warrant issued by a court usually says something along the lines of "To every peace officer of blah blah, you are commanded to..." which means the decision to arrest is not discretionary. I've watched thousands of arrest videos by now and while the modal arrest is far less eventful that what the typical viral incident would have you believe, it's still an event that is inherently antagonistic. After all, the cop is placing handcuffs on you and taking you to jail, with serious retribution if you impede the process in any way.
I have never seen cops anywhere near as apologetic about an arrest as in the videos just released from Florida. They caught these people unaware outside of their homes, and as they explain the arrest warrant they pepper every sentence with "sir" and "m'am". When they explain that they're about to be handcuffed, they use "unfortunately" as a prefix. Thanks to qualified immunity along with the general deference courts give law enforcement, each cop would have had the legal authority to leg sweep each person and slam them to the ground if they displayed anything that could remotely be construed as resistance. Instead they take the time to calmly explain the process, including when they would likely be released, in a bid to secure as much of their cooperation as possible through what is understandably a distressing event for any person to go through. They're treated with astounding compassion. The people arrested start talking (of course they do), with one explaining how he was told he could legally vote, and the cop responds with "there's your defense". I've never seen a cop highlight legal defenses to the person they just arrested.
DeSantis is a Yale/Harvard educated former federal prosecutor. I would assume based on his background that he's not an idiot, and that he knows how criminal prosecutions work. If I keep my cynic hat on, DeSantis chose to make a big show of these arrests entirely as a means to appease the portion of the electorate that still believes the 2020 election was stolen and remains angry no one has gotten punished. But even so, what exactly was the follow-up supposed to be? Whatever charges one would levy against these people would require that you prove beyond a reasonable doubt that they knew they weren't allowed to vote but voted anyway, and how would any prosecutor counter the fact that election authorities approved their registration? What this does also just brings more attention to the confusing labyrinthian mess around court fines the state of Florida intentionally created as a hurdle for felons pursuing voter right restoration.
If the cops conducting the arrest are expressing this much skepticism about the charges, you can surmise how a random jury pool would react. These charges were patently frivolous from the very start but setting that aside they don't even make sense from the political grandstanding perspective. Bewildering.
ymeskhout
1yr ago
Fascinating article on the apparent controversy of naming a telescope after James Webb, former head of NASA throughout the 60s (content warning: NYT).
Broadly speaking, Webb is accused of anti-gay bigotry. There does not appear to be any dispute that the US government, as part of investigating federal employees who were suspected of being Communists during the red scare, also fired employees accused of being gay (estimated to be around 5k-10k total over 20 years). The origin of tying the accusation directly to Webb appears to have been borne out of a misreading:
But as the telescope neared completion, criticism flared. In 2015, Matthew Francis, a science journalist, wrote an article for Forbes titled “The Problem With Naming Observatories for Bigots.” He wrote that Mr. Webb led the anti-gay purge at the State Department and that he had testified of his contempt for gay people. He credited Dr. Prescod-Weinstein with tipping him off, and she in turn tweeted his article and attacked Mr. Webb as a “homophobe.” Those claims rested on misidentification and that portion of Mr. Francis’ article has been deleted without notice to the reader. Mr. Francis declined an interview. As Dr. Oluseyi discovered and NASA’s report confirmed, it was not Mr. Webb but a different State Department official who oversaw the purge and spoke disparagingly of gay Americans.
So someone made a claim and someone else looked into that claim and conclusively found the evidence lacking. Research isn't easy and it's reasonable to expect some mistakes, and I find nothing embarrassing or humiliating about just admitting error. But instead of just conceding their belief rested on a faulty premise, the Webb-is-a-bigot crew refused to let go of their favored conclusion and went searching for other reasons why they were right all along.
In 1953, President Dwight D. Eisenhower signed an executive order that essentially barred gay Americans from federal employment. It applied to all federal agencies and remained in effect throughout the 1960s, when Mr. Webb led NASA. In 1963, police arrested a NASA budget analyst, Clifford Norton, in an anti-gay sting in Washington. He was forced out of his job. Critics say Mr. Webb stood silent. Mr. Odom’s report for NASA, however, found no evidence Mr. Webb knew of this case in an agency of many thousands. In any event, he would have had no good option, said James Kirchick, author of Secret City: The Hidden History of Gay Washington. “It is unimaginable that a high-level functionary would have stepped in and blocked a broad federal law that applied to every agency,” he said.
And of course, people tried to come up with other reasons why a telescope should not be named after Webb:
Sarah Tuttle, an astrophysicist at the University of Washington, characterizes the question of whether Mr. Webb was a homophobe as unanswerable and a distraction. The point, she said, is that the bar should be set higher. Previous telescopes were named after physicists and astronomers — Edwin Hubble and Subrahmanyan Chandrasekhar. Why not name in that tradition? “This controversy should restart the discussion about why on earth this telescope is named after him,” said Jason Wright, a Penn State astrophysicist who signed the critics’ petition.
Things got especially dark for Oluseyi, the guy who fact-checked the original claim. First they claimed his fact-check was an ill-disguised attempt to justify historical homophobia, then rumors spread around academia of some sexual harassment and mishandling federal funds. And so on.
So that story is entertaining on its own right, but it's also an interesting examination of the best ways to respond when someone points out an error of yours. Speaking for myself as someone who jumps at the opportunity to self-label as an egotistical narcissist, it seems like adopting a regular habit of admitting mistakes is plainly self-serving. It's almost a cheat code for how well it can bolster one's credibility, and I don't understand why it's not more common.
The basic contours of being motivated to save face are obvious enough, sure, but the part that continues to be absolutely bewildering to me is that dogged stubbornness only makes you look worse! I'm guessing there must be some other benefit here (assuming, of course, people who refuse to admit error are behaving remotely rationally) but I can't understand it.
ymeskhout
3mo ago
I'm not saying it's certain they're going to go after his law school, but he's in a uniquely vulnerable position right now, with very few allies in a position to help him
I think this concern is highly exaggerated. Trace has visibility on his side, and a longstanding relationship with two prominent journalists who have shown no aversion to controversy. For what it's worth, I'd devote my full legal practice to defending him if he faces any retribution I can do something about.
ymeskhout
7mo ago
"Did you lock it?"
A common trait among my social circle used to be that everyone shared an obsession with bicycles. Few of us had or even wanted a car in the city, and having everyone on two wheels made it much easier to roam down our house party itinerary. Between all of us we had a deep well of metis to draw from; everything from which wheels to buy to the easiest way to make derailleur adjustments. We were naturally attached to our steeds and none of us wanted our bicycles to pull a disappearing act, and so we discussed ways to keep safe.
U-locks were ubiquitous and we'd warn each other of the brands that were still susceptible to the infamous pen trick. Some of us of the more paranoid variety installed locking skewers to keep expensive saddles or wheels latched in place. We'd even caution each other to check bolts anchoring bike racks to the ground, since the U-lock was useless if the whole setup could be lifted away. It wasn't possible to reach full immunity but you never need to be the fastest gazelle to escape the cheetah, just faster than the slowest one.
Naturally, if anyone ever suffered the ultimate calamity of having their ride stolen, we would ask if it was locked and how. There was nothing sadistic about our inquiries. Our questions were problem-solving endeavors saturated with sympathy; we wanted to know what went wrong precisely to help others avoid the same fate. Maybe the local thieves discovered some new exploit in our standard security apparatus, or maybe this was just an opportunistic snatch while they left their bike unlocked outside during a quick peek inside.
"If you do X, you're likely to get Y" is the format to an unremarkable factual observation. "If you leave your bike outside unlocked, you're likely to have it stolen" is just reality and, on its own, is a statement that carries no moral judgment. If the victim wasn't previously aware of this correlation, they are now, and are better equipped to evade a rerun.
The parallels to my actual point are probably getting obvious by now.
Kathleen Stock charges right into deconstructing the surprisingly enduring ritual of affixing the "victim-blaming" reprimand to any advice aimed at reducing the risk of sexual assault. Now, in case anyone needs the clarification: I believe that rape is way worse than bicycle theft. Nevertheless the principles at play here remain the same:
Still, given that rape, precisely, is so devastating, I think we have a duty to tell women about which circumstances might make their victimisation more likely, and which might make it less. To repeat --- this is not victim-blaming, nor making women responsible for violations that men choose to commit. It is more in the spirit of "forewarned is forearmed". This is how dangerous men behave, and these are the environments in which they become more dangerous. This is how you can try to reduce your risk, even if you can never eliminate it. No panacea is being offered. Nothing guarantees your safety. Still, a reduced risk is better than nothing.
Consider the victim of the unattended bike snatch again. Imparting wisdom on the implacable chain of consequences is about the most compassionate thing you could do. They can choose to accept that advice, and if it is sound then they'll be met with the disastrous outcome of...not having their bike stolen. Or they can choose to reject that advice and adhere to the mantra that instead of putting the onus on cyclists not to have their bikes stolen, we should teach thieves not to thieve. In which case, best of luck with completely overhauling the nature of man; here's hoping their bicycle budget rivals the GDP of a small country to withstand the inevitable and wholly predictable hits.
ymeskhout
1yr ago
The 11th Circuit put the whole Mar-a-Lago Special Master saga to bed last week. You can read the unanimous opinion here (for those counting, the judges were two Trump appointees and one Bush).
This outcome wasn't surprising at all, especially with how oral argument went. As background, the FBI raided Trump's home in Mar-a-Lago because they convinced a federal magistrate that they're likely to find evidence of criminal activity there. They were right on that front, and they recovered various classified/restricted documents in Trump's possession. Although it's not clear why Trump was so stubbornly enthusiastic about holding on to the documents, there doesn't seem to be much evidence thus far that the documents in question were particularly damning/dangerous, nor that he was holding on to them to sell them or whatever. Nevertheless, the warrant means the FBI lawfully (distinct from morally/ethically/correctly/whatever) seized the property pursuant to a criminal investigation.
If the government takes your shit because they had a warrant, the recourse available to you is virtually non-existent. The traditional avenue available within a criminal investigation is to wait for the indictment and then challenge the legality of the search and seizure through a suppression hearing. If you can convince a judge that the property was illegally obtained, your remedy is that the government is prohibited from using the property as evidence against you. Very often, this destroys the government's case against you and the charges get dismissed. Only after the criminal saga is over can you ask for your stuff back from the government. I routinely help my clients get their stuff back once their case is over, including things like firearms and (my favorite) a small jar of weed. Sometimes I just contact the detective directly, sometimes I need a judge to sign an order. It's routine.
But what if you want your stuff back before even an indictment? The typical answer is that you are shit out of luck, because the government is presumed to be entitled to use property they lawfully took from you. But there are some limited exceptions. In the Richey v. Smith case, an IRS special agent stopped by Richey's office and asked to examine some business records and the guy complied (no warrant, and no Miranda warnings). But after talking to an attorney, Richey changed his mind and asked for his stuff back and the IRS said they'll hand it back once they're through with them. The district court initially ruled they lacked jurisdiction to order the government to return the documents, but on appeal is where we get the "Richey four-factor test". That ruling says that courts can have what is termed "equitable jurisdiction" provided the person asking for their stuff back satisfies every factor:
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Did the government act in a "callous disregard" of the person's rights?
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Does the person have an interest in and need for the property?
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Will the person be irreparably injured by not having his property back?
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Does the person lack other legal remedies for not having his stuff?
This is what Trump was asking district court Judge Canon to do. There were several problems with this request, chief among them that unlike the Richey case, the government had a warrant for Mar-a-Lago. The other problems were that Trump's lawyers didn't even try to hint at satisfying any of the four-factor test (See starting on pg 12 of the opinion: Did the government act in a "callous disregard"? No, because they had a warrant. Does Trump need his property back? No, because Celine Dion pictures are not a priority right now. etc.). The closest Trump's lawyers got to a coherent argument was when they vaguely intimated (without saying it outright) that Trump's circumstances were special because he is a former president.
Around the 21:00 mark of oral argument, the judges asked James Trusty if any other person whose property was seized during the course of a criminal investigation would have access to the same remedy Judge Canon gave Trump, and Trusty swallowed the pill and said yes. I'm definitely in favor of having higher scrutiny levied on government search and seizure, but this would be a completely bonkers departure from the current status quo. Nobody likes having their stuff taken and being the subject of a criminal investigation! Applied consistently, the courts would be flooded with these requests and it would become near-impossible to prosecute anybody.
As the court opinion says:
In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.
As far as I can tell, James Trusty is a competent attorney with the requisite experience to litigate issues at this level but he just fell flat on his face hard. No amount of legal acumen can compensate for having a client who insists on unreasonable demands and tactics.
Clarence Thomas's Gun Control Snare
So the Bruen decision came out more than a year ago, and it has scrambled how courts deal with gun control laws.
Step back first. The way courts typically evaluate laws that putatively infringe on a constitutional right was through an analysis called strict scrutiny. Basically, take any constitutional guarantee ("Congress shall make no law...abridging the freedom of speech...") and add an "...unless it has a really good reason!" exception. This isn't an exaggeration. Courts were allowed to give the government a free pass on constitutional infringements provided the state's efforts were "narrowly tailored" and "necessary" to achieve a "compelling state interest".
But what counts as a compelling reason? Who decides which laws are narrowly tailored? It's judges, all the way down. For something like freedom of speech, there's a robust enough appreciation that you can expect a reasonable amount of skepticism among the judicial corps against efforts by the government to muzzle expression. In practice, strict scrutiny generally functioned as decently high threshold, unlike its contrasting rational basis test which practically was a free pass for the government to do whatever.
But what about topics a little more heated, like guns? Judges have been squishier and far more willing to accept the government's justifications that a given legal restrictions was "necessary". Hell, some judges even weaseled their way into ditching strict scrutiny in favor of the more permissible intermediate scrutiny. Judge VanDyke of the 9th Circuit lampooned this doormat reflex in his 2022 McDougall dissent (cleaned up):
The cases VanDyke cited illustrate the problem well. The 9th Circuit has ruled it's ok to require people to demonstrate either "good cause" or "urgency or need" to the government before they're allowed to carry a gun outside their home. Set aside whatever negative sentiments you might have about guns, and instead imagine the reaction if similar restrictions were imposed on newspaper licenses. Imagine having to convince a cop that you have "good cause" to start a blog. Constitutional guarantees are worthless if they're predicated on a government agent agreeing that your reason for exercising them is good enough.
The practice of circuit judges shrugging off challenges to gun control laws with "I don't know man this seems totally reasonable to me" went on for several years, and I can only imagine it pissed off the pro-2A wing of the Supreme Court. Sure, Trump's appointments eventually meant they had the numbers on their side and so a very favorable 2A opinion was inevitable, but a stern rebuke of "We really mean it this time!" didn't seem like it was going to work in getting the circuit courts to stop fucking around.
So when they finally got their chance, SCOTUS tried a different approach. Instead of just triple-underlining and double-highlighting the words STRICT SCRUTINY, Clarence Thomas writes the majority opinion that created a brand new analysis wholly unique to the Second Amendment: gun control laws can only be constitutionally permissible if they're consistent with "historical tradition of firearm regulation." Any law being evaluated must therefore have a historical analogue, and the closer the analogue was to the year 1791 (when 2A was ratified), the better.
I was thrilled with Bruen's result, but puzzled by its reasoning because it seemed to just recreate the circumstances that led to the "fake strict scrutiny" problem. It turns out Bruen had way more of an effect than I anticipated. Clarence Thomas is a fascinating figure in many ways, in part because he's America's most powerful black conservative, who just happens to draw direct inspiration from the black nationalism Malcolm X espoused. I have no idea if this was intentional, but Thomas laid out a beautiful carpet of caltrops that the government couldn't help but step on over and over again.
What followed Bruen was a litigation maelstrom. Government attorneys across the land scoured dusty historical tomes, in search of whatever they could get their hands on and use as justification. The first problem they ran into was there just weren't that many laws on the books around the time of the Founding, let alone laws that specifically governed firearms. Generally speaking, Americans were free to strut about town with their muskets in tow, no questions asked. The lawyers had to cast a ever-wider net to snag anything relevant, desperately expanding their search way beyond 1791 to include things like an English prohibition on "launcegays" from 1383. When they did find timely laws, they ran into a second and far more pressing problem: the laws regulating firearm possession were...awkward. Really awkward.
Judge Benitez overseeing the ongoing Duncan case ordered the state lawyers to compile a list of every single relevant law they could find, and the 56-page spreadsheet they created is incredible. It's not surprising to find governments actively disarming disfavored groups, it's another to see the arbitrariness outlined so starkly. Modern gun control critics have regularly pointed out how skewed enforcement can be, particularly along racial lines. And because Bruen requires historical analogues, lawyers defending gun control restrictions had no choice but to immerse themselves unhappily within its sordid origin story.
Numerous early laws specifically prohibited only "negroes, mulattos, or Indians" from carrying firearms (1792 Virginia law, 1791 Delaware law, 1798 Kentucky law, etc.), or specifically targeted only slaves (1804 Indiana law, 1804 Mississippi law, 1818 Missouri law, etc.). California had it out particularly for those with "Spanish and Indian blood" (aka what the law called 'Greasers') and prohibited them from possessing firearms in 1855. These are all laws favorably cited in courts today.
When tasked to defend §922(g)(3), the law that prohibits anyone who is an "unlawful user" of a controlled substance from owning a gun, government lawyers tried their best with what little they had. The closest analogues they could find were colonial laws that prohibited actively drunk people, "dangerous lunatics", or what they termed "unvirtuous citizens" from possessing a gun. And you know that's BASICALLY the same thing as preventing the occasional marijuana smoker today from ever having a gun. The judge wasn't convinced.
After languishing in a stalemate for decades, the legal precedent around gun laws has dramatically changed in very quick order thanks to Bruen. Prohibitions on drug users were struck down, a (limited) prohibition for non-violent felons was struck down, and so were prohibitions on individuals subject to domestic-violence restraining orders (for now...). Courts are normally slow to move, but these developments have happened at blazing speed, and it's only the beginning as there's still plenty of ongoing litigation.
None of this means that gun control advocates have given up, far from it! @gattsuru has extensively catalogued numerous ways anti-gun politicians and judges putting in absolutely heroic efforts to gum up the machinery, however they can. Judge VanDyke publicly accused his colleagues on the 9th Circuit of some robe & dagger procedural shenanigans putting the thumb on the scale in the Duncan case. Meanwhile, legislation of dubious constitutionality gets passed faster than it can be struck down and the NYPD is somehow approving fewer gun permits than before (maybe because their approval stamp fell behind a desk, or something?). The efforts Gattsuru highlighted are definitely a hurdle but we'll see if they're the beginning of a new stalemate, or just desperate cadaveric spasms. For now, I'm going to continue enjoying the spectacle of government lawyers arguing with a straight face to a judge that pot smokers are the historical equivalent of dangerous lunatics.
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