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The LAPD announced yesterday that after investigating 320 claims of racial profiling, not one could be sustained. The police commission is incredulous—“I find it baffling that we have these zeros.” said one commissioner. But actually, it’s not baffling at all.
The Los Angeles Times reports that the investigations concerned “allegations that officers stopped, questioned or otherwise confronted someone solely because of the person’s race.” I’m not at all baffled that none of the incidents investigated involved profiling, so defined. If profiling means stopping someone solely because of race, I’m willing to bet it almost never happens. But it’s well-documented that police do consider race—along with other factors such as age, sex, grooming, attires, demeanor, context, and behavior—when making traffic and pedestrian stops. I suspect the commissioner quoted thinks any use of race counts as “profiling”—that’s basically the position of the ACLU and other civil rights organizations. But the police, not surprisingly, employ a narrower definition.
The problem with the narrow definition is that it doesn’t encompass the problem—the police can be as biased as a lynch mob and still never “profile.” The problem with the broader definition is it hampers legitimate police methods. If the police know a racially exclusive gang is active in a certain part of town, do we really want them to ignore race entirely when patrolling there? What if the gang is on a crime spree at the time? What if they just robbed a bank and several witnesses describe them to police? At some point, the line between “profiling” and a manhunt for specific criminals, whose race is known, gets hard to draw.
As I’ve argued in my book, The Race Card, the reason racial profiling is one issue that almost everyone can agree on (we’re against it) is that no one bothers to define profiling very well. In fact, there’s almost a silent conspiracy among civil rights activists, government officials, and law enforcement to keep the definition as murky as possible. The activists demand an end to “profiling”—meaning any use of race in traffic stops; in response, police promise not to “profile”—meaning stopping people based solely on the basis of race. The activists get a symbolic victory; the police get a PR victory—nothing changes. Like an international treaty, the best way to get to a consensus is to let everyone interpret the key terms to suit themselves. Until, of course, it comes time to enforce the treaty …
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I testified yesterday on "Secret Law and the Threat to Democratic and Accountable Government" before the Senate judiciary committee's subcommittee on the Constitution. The hearing, chaired by Sen. Feingold, covered the range of the Bush administration's "secret law." I talked primarily about the terrible harm of secret (and profoundly flawed) opinions of the Office of Legal Counsel.
Briefly, I told the committee that the central question is: "May OLC issue binding legal opinions that in essence tell the president and the executive branch that they need not comply with existing laws—and then not share those opinions and that legal reasoning with Congress or the American people? I would submit that clearly ... the answer to that question must be no." "This combination—the claimed authority not to comply with the law and to do so secretly—is a terrible abuse of power, without limits and without checks. It clearly is antithetical to our constitutional democracy." (My written testimony is here.)
OLC's Deputy Assistant Attorney General John Elwood denied there was any problem (at least, not since he joined the government in late 2005—he pointedly avoided talking about the John Yoo and other memos that came before). He said that he agrees with, and OLC now follows, the 10 "Principles to Guide the Office of Legal Counsel" co-authored by me and 18 other former OLC lawyers in response to the initially leaked OLC torture opinion. I said no, from what we can tell from what's public, they don't follow them all, and they certainly didn't in the Yoo years. Elwood also sparred with Sens. Feingold and Whitehouse, who were incredulous at his claims that the Bush administration, in fact, is keeping Congress briefed and informed about OLC's legal conclusions and reasoning (even if it won't always release its opinions).
Republican ranking member Sam Brownback, Elwood, and Republican-invited witness Brad Berenson (former associate counsel to President Bush) took issue even with the term "secret law," claiming that OLC simply interprets laws for the government, and doesn't make law that governs the lives of private persons. You can well imagine the responses to that claim—government torture and spying don't affect the lives of people!—from me and the other witnesses invited by the Ds (Steven Aftergood of the Federation of American Scientists, Heidi Kitrosser of University of Minnesota Law School, and J. William Leonard, former director of the Information Security Oversight Office). (Also invited by the R's was David Rivkin.)
So far, all very predictable. Here is the most surprising and promising thing about the hearing: Berenson said he agreed with my central point that we have a problem with the Bush administration violating laws in secret (though he argued, and I disagreed, that on many national security matters only Congress and not the American people need to be notified). Even more notable, Berenson also agreed with my suggestion (building on a proposal from Professor Trevor Morrison) that perhaps Congress should enact legislation to require additional reporting, so that the executive branch has to tell Congress not only when it refuses to comply with a statute, but also when it (mis)interprets a statute by relying on the constitutional-avoidance doctrine. (A standard ploy, of course, by the Bush administration is to deny that it in fact is violating statutes, but instead claim it is interpreting them in order to avoid a conflict with Bush's sweeping and plainly incorrect views of his own constitutional powers.)
Berenson's agreement with my proposal led Sen. Brownback to turn to Sen. Feingold and say he would be interested in working with him to pursue the possibility of such legislation. Stay tuned ...
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A predawn American cruise-missile strike against the central Somalia town of Dhusamareb killed between 10 and 30 persons today. Military officials said publicly that the target was "a known al-Qaida target." Confidentially, military officials told the New York Times that the target was Aden Hashi Ayro, reportedly one of al-Qaida's top operatives in Africa and the leader of an Islamist group in Somalia called the Shebab.
On a listserv this morning, one expert on armed conflict and international law questioned whether this strike portended yet another broadening September 2001 "authorization for the use of military force." I think it does, and I'm at a loss to articulate any limiting principle on the geographic, spatial, temporal, or political scope of this nation's military efforts against al-Qaida.
I'm hardly the first to say it, but this highlights an important contrast between wars against states and wars against entities like al-Qaida. With the former, there is a limiting principle on the conflict. If the state ceases to be (such as Germany or Japan at the end of WWII), the war does, too. With the latter, there seems to be no limit. As al-Qaida evolves, morphs, grows, and franchises itself, so does the war, and so does any authorization for the use of force that is tied to the definition of al-Qaida.
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Suppose you want to lose 20 pounds. You've tried a number of diets, but you are as hefty as when you started. Fortunately, a new firm called StickK has a solution. You enter a self-commitment contract, under which you promise that you will lose (say) two pounds per week for 10 weeks. Each week you step on a scale under the eye of a third party, who then reports to StickK whether you have met your goal or not. If you fail, then StickK deducts $100 from your $1,000 deposit. (You can pick other amounts.) The theory is that the prospect of losing money will block your impulse to snatch an éclair as it passes by on the dessert cart. You can also enter StickK contracts to help you stop smoking, study in school, and go to the gym.
What happens to your money? StickK doesn't keep the $100; instead, it goes to a charity such as UNICEF. But here's the problem. As you eye that banana split, it might occur to you that if you resist temptation, a school's worth of impoverished children in Burkina Faso may be deprived of a week of nutritious lunches. Could you look in the mirror again if you starved these children so that you could lose some extra pounds? Do good by doing badly: Eat the banana split and save a family! StickK's incentive contract will work best for misanthropes who shudder at the thought that their hard-earned money might help the poor.
Fortunately, StickK's founders have thought of this problem, and so they offer soft-hearted customers the choice to designate an "anti-charity," a charity that you hate. They list Americans United for Life (for pro-choicers) and NARAL Pro-Choice America Foundation (for pro-lifers). The Educational Fund To Stop Gun Violence and the NRA. The Bush Library and the Clinton Library. You get the idea. If you hate Bush, then the image of him basking in his library at your expense should stimulate the gag reflex before that chocolate bar enters your mouth. (They don't list neo-Nazis or the Ku Klux Klan. People who hate racism will have to find some other way to get rid of that spare tire.)
Not everyone will meet his or her goals, and so money will flow into charities and anti-charities. In one possible world, we should expect more protests of abortion clinics that receive more subsidies; legislatures being swarmed by armies of pro- and anti-gun people; the Bush and Clinton libraries housed in magnificent edifices (perhaps they will even have books!). Surely it is odd that StickK harnesses people's charitable impulses for the sake of their narcissistic goals, resulting in a not-for-profit arms' race that will generate social waste. Wouldn't it be simpler for StickK's owners to pocket the forfeited deposits than to encourage customers to designate charities? However, there would be a catch. StickK's owners would also have to promise not to give their profits to popular charities, as this would reduce their customers' incentives to meet their goals. If you think that StickK's shareholders will turn over your deposit to impoverished children, then you won't be able to resist that slice of cheesecake. Instead, the shareholders would need to commit themselves to extravagant overconsumption, the more repulsive, the better. It is touching to think that they would have to abandon their favorite charities and any public-spirited activism, and commit themselves to hedonistic indulgence, for the sake of their customers' well-being.
However, one can't help wondering whether StickK will prove to be a boon to right-wing charities rather than a zero-sum game between offsetting charities. Suppose that the type of person likely to sign up with StickK will be young, professional, urban, and yes, left-leaning, which means that most of the designated anti-charities will be pro-gun, pro-life, and pro-Bush. If StickK catches on, we can expect a future of thin and healthy liberals who can no longer obtain abortions, and obese, chain-smoking conservatives who can own as many guns as they want.
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The Rev. Jeremiah Wright is not your perfect, textbook pastor. He doesn't just stand at the back of the church with innocuous and uninvolved welcomes and goodbyes.
But the perfect is the enemy of the good. Barack Obama's campaign has been all about showing us how to do good in an imperfect world. How to accept each other as we are, not how we would like each other to be.
Personally, I don't believe U.S. government is killing my African-American brothers by spreading a virulent disease. Nor would I characterize the actions of the United States in Iraq, which I think deeply flawed, as terrorist. But then, I have never felt entirely comfortable with any of the explanations for the murders of John F. Kennedy or Robert Kennedy or Martin Luther King Jr. Some things are unexplained in life, and sometimes, despite all evidence, we indulge our own narratives to see us through. In her thoughtful column in the Los Angeles Times, Rosa Brooks reminds us that there are significant numbers of black Americans who, because of the Tuskegee experiments where largely black sharecroppers served as human guinea pigs in public health experimentation, do not immediately see the Rev. Wright's comments about AIDS as paranoia.
Even if Sen. Obama is not prepared to rationalize the Rev. Wright's suspicions, he should forgive him. Yes, it's important to talk about the economy and health care and ending the war, but without reconciliation with the Rev. Wright, the campaign will be off-kilter. The Obama campaign has always been more about the Christian ethic of love of neighbor than wonkish policy. Whatever voice Jeremiah Wright used in his sermons, he successfully strengthened that aspect of Barack Obama's gifted personality. To disown or to separate from Jeremiah Wright is to distance himself from himself. It can't be done, and in any event, it's politically unwise.
Some have written that Jeremiah Wright is the missing father figure in Sen. Obama's life. I'm no psychologist, but that makes sense. I know at times I have embarrassed my sons. My father, who is nearing 86 and has all the endearing and frustrating qualities of that age, at times has embarrassed me. It is what fathers and sons do. Barack Obama might have known that if his Kenyan father had not left too soon. More importantly, it would have been easier for him to recognize that only the mean-spirited or small-minded seeking political advantage would insist upon a division between father and son.
No, Sen. Obama, you don't have to distance yourself from your lifelong friend to be elected president of the United States. It is wrong for any of us to ask you to do so, and it would be a mistake for you to yield. So, call him up. Invite him out to Indiana. Kick back together with the Hoosiers, and if you have the time, stop in to see another Father—Theodore Hesburgh, C.S.C., Notre Dame's president emeritus and inspirational civil rights leader. The three of you are sharing a historic journey, and there's no good reason for anyone to sit at the back of the bus or be thrown under it.