WAMC: Commentators Stephen E. Gottlieb



Now on Air
Up Next
Now on Air
Up Next
Stephen E. Gottlieb

June 30, 2009: Court Stabs Integration in Ricci v. DeStefano

The Supreme Court has decided that New Haven could not throw out the firemen's exam because no African-American and only two Hispanic-American test takers passed the test. According to the Court it wasn't discriminatory because the test wasn't intended to be discriminatory.

Unfortunately it is easy to whitewash real discrimination by saying "he didn't mean it" – a formula we all learned as kids. And the Supreme Court has been very consistent in saying no, they didn't mean it, in situations in which the intention to discriminate was obvious. Perhaps just as unfortunate, the only way to check the hypocrisy of denying the obvious, is to look at what is obvious. But now that's gone.

The Court wants us to believe that there are right and wrong ways of dealing with segregation and discrimination. In fact this Court has turned its wrath on every way of dealing with the problem for the past two decades. It blocked enforcement of anti-discrimination laws by imposing requirements for proving intent that insulated the most blatant forms of discrimination from legal redress. It blocked even the most mild forms of affirmative action and voluntary efforts to bring us together. And it has been finding parts of a growing list of anti-discrimination laws unconstitutional. Chief Justice Roberts says it is a sordid business to divide us by race – it is indeed a sordid business to prevent Americans from bridging that divide.

It seems to many that we have been dealing with segregation since 1954 and now it's time to get back to normal and stop worrying about integrating America.

Actually that's wrong on both ends. Integration has been an issue in America since the founding. Nineteenth century public schools were explicitly designed to bring Americans together by class, national origin and gender. To sustain an effective armed force, the military grappled with integrating Americans across national origin and native language almost as long. By the turn of the twentieth century, business was not only reaching out to customers of all kinds but developing programs to bring together an increasingly diverse immigrant work force. Their efforts were not conceived with time limits. Unity required more than lip service. Americans knew that republican government depended on coming to grips with our common humanity. So we have been dealing with integration for a long time - just not with regard to race..

The view that we have been wiping out discrimination ever since 1954 is also wrong. The goal of racial integration has been undermined since Brown v. Board, by explicit federal policy. It is well documented that federal agencies refused to guarantee loans and discouraged banks from making housing loans to blacks at the very same time that other federal, state and local agencies were busily involved in building highways to the new suburbs. Guess what that did to school integration.

To make things worse, so-called "urban renewal" tore down black neighborhoods where the working poor had established, functioning communities, and replaced them with high rise and dangerous housing units wherever we whites decided to put them. Banks, with federal encouragement, redlined the changing inner cities, condemning them to deepening poverty and despair.

So while some blacks managed to climb on the new interracial ladder created in the wake of Brown, others found the climb to a decent living ever more difficult – and segregated. The Court doesn't call it segregation because the housing and lending decisions weren't made by school authorities. But just drive around and see the wilful blindness of the Court's majority.

So the Court compounds the error. By accusing everyone who tries to build bridges of conscious racism, the Court manages to protect the divisions among us that most of America wants to tear down. Truly its justice has been blind – blind to American traditions that have helped make this the great country many of us think should be our birthright.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

June 23, 2009: Sotomayor's Resignation from a Women's Club

Judge Sotomayor's resignation from a women's club is the result of the typical conservative failure either to understand or support the fight against discrimination. Saying that women or blacks cannot get together to support each other because we have insisted that whites and men admit women and blacks is like saying that with the score 89-0 we'll all play fair from now on.

Women's clubs were formed for the obvious and entirely appropriate reason that women were starting from behind and needed a way to get into the game. We celebrate the ways that Irish, Italians, Jews, Poles, Germans and others resorted to self-help when they came to these shores. But women, blacks and Hispanics, against whom discrimination has lasted much longer in this country, are to be forbidden self-help. These conservatives criticize blacks who do not give back to their communities. But when women and minorities try to give back, to help others behind them, these so-called "fair minded conservatives" turn on them for racism or sexism.

The game is simpler and much more sinister than their rhetoric makes it appear. What has happened is that conservatives have learned to manipulate the language of equality to stop the process of equalization. These conservatives are fighting to retain what they think are their privileges against the possibility that their privileges will henceforth actually have to depend on their qualities, not the ways that they have learned to keep people out, to prevent people from access to the training and the experience and especially the contacts that ultimately make assimilation possible. They hide behind the language of treating everyone equally when in fact they are dealing from a stacked deck.

Let me take you back to 1953 before Brown v. Board was decided, before the momentous decision that required desegregation of public schools in the United States. The Court had already decided that blacks could not be denied an integrated instate graduate or professional school education, access to a previously white law school or medical college, even if the state offered instead to pay the student's tuition to the best schools in the country so long as they were somewhere else. Harvard, fine, that's in Boston. But the Court said not good enough. Nor could the state create a parallel university with all the same professors but in a separate campus – same quality but separate – separate but equal as the expression goes. Of course nothing had been equal in the past but as the legal challenges of the NAACP picked up steam, the southern states started promising to make up for lost time and in a hurry.

No thanks, the Court said. Part of what would be missing was intangible – the opportunity to get to know people with whom these young men and women would have to work or contend with, or for the law students, the judges they would have to appear before. They wouldn't have the chance to make the friendships and form the contacts on which careers are based. Long before Brown, the Court had already made it clear that separate was inherently unequal – for very practical reasons.

But recognizing that women and blacks did not have access to these contacts, conservatives decided they'd squeeze the bottleneck as tight as possible – few without those experiences and contacts would figure out how to succeed at the white man's game and white male privileges would survive. Women, blacks, Hispanics and others decided to make up for what they hadn't experienced by organizing clubs to pass on how to handle their opportunities.

So the decision of Judge Sotomayor that I regret is not the decision to join a women's club. It is the decision to resign, to close one channel of passing on the keys to success. By the way, I have a daughter who is about to start teaching at the college level, and a twenty-one month old granddaughter who learns at a prodigious rate. You go gals.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

June 18, 2009: Hillel and the NY Senate

Around two thousand years ago a great Jewish Rabbi said
If I am only for myself,
Who am I?
If I am not for myself,
Who will be for me?

Looking at what has been happening at the New York State Senate through the lens of Hillel's words leads me to a somewhat more nuanced and tolerant reaction to what has been going on.

We Americans tend to be all or nothing kinds of folk. We think of people as either good or bad and if people are bad, throw the so-and-so's out, lock em up, get rid of them. If people are selfish, proud, ambitious for themselves, then they cannot be servants of the people too. Except of course we are worshipping what does not, indeed cannot exist. Politicians cannot be unambitious or modest. And they have to look out for themselves.

But those faults, and they certainly are faults whenever politicians let those desires get out of control, are not inconsistent with a real potential for good work too. Only God and the Devil are good and evil through and through.

So we should not be surprised to find that the two men who have thrown the state Senate into turmoil have done things that we can all approve, have worked for causes larger than themselves. And I think the untold story here is the maturation of the Puerto Rican community in New York. They're asking through these two men for a piece of the action. Just as the black community and all of us who have worked so long for civil rights have been celebrating the election and savvy of our first African-American president, and the rise of our first African-American New York Governor, embattled though he is, the Puerto Rican community sees itself as entitled too. These may be the wrong guys. But we didn't pick them.

Of course many of us wanted something different. Some of us want to wait until the 2010 elections so the Democrats can control redistricting. Others are upset because the turmoil comes at a bad time for our particular agendas. As it happens, I wrote one of the two senators about an issue that I knew he cared about in the past, trying to find a way to bring the civil liberties issues to the successful conclusion we envisioned so recently. So, yes, I'm one of those discomforted by the upheaval.

And yes, both men have done bad things in their personal lives and ethics. Neither is entitled to a pass on that score. But politics is about competing agendas. The mark of a good politician is to be able to handle those competing claims. And there's no need to see each other as devils.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

June 16, 2009: The Iranian Election

The struggle over what is obviously a stolen election in Iran reminds me of a conversation I had with an Iranian student in Shiraz in the mid-1960s. Shiraz is in the province of Pars, and only about 25 miles from the ancient capital of Persepolis, the center of the ancient Persian empire. This student was telling me that the Shah's father had his own grandfather killed. And he immediately assured me that he would have done the same thing because his grandfather was an enemy of the Shah.

The Iranians can be a thoroughly charming, warm and caring people. I remember many of the people I knew over there with great fondness and respect. But the Iranians have endured centuries of brutality at the hands of a succession of rulers, some foreign, some home grown, some protected by western powers, that have left deep scars.

When an Iranian means to promise that he or she will do something, they say, in farsi, "on my eyes", a reference to the mogul rulers who gouged out people's eyes for disobedience. On my eyes.

Americans argue about whether we should teach our children the history of other peoples as if knowledge will destroy their patriotism. Ignorance can destroy our country. History matters regardless of whether we are aware of it.

The Iranians had one good chance for democracy, in the early 1950s. They had free elections, and a democratically chosen Prime Minister. Political scientists tell us that one of the most important indicators of the likelihood of a democratic future is the length of a democratic past. They might have built one.

Iran had been occupied by England and the U.S. in World War II. The two countries coordinated to control Iran's oil. Iran had a border with the Soviet Union, clearly the superpower in the region. And it had a Prime Minister who tried to be conciliatory to the Russians.

But the Eisenhower Administration decided that was unacceptable, and that the Prime Minister was too far to the left, so a coup was engineered in the American Embassy in Tehran. Americans didn't know or didn't remember but no Iranian forgot. We are still paying for that one mistake more than half a century ago and will likely continue paying for some time. Foreign policy is about understanding the nationalism of other people, not just celebrating American virtues. We turn aside in ignorance but we pay the penalty regardless.

I think the only things that can save the Iranian people and us, is for the Iranian military or the Iranian clergy to fight among themselves. Many democracies have emerged out of the conflict among dictatorial rulers. But short of internal dissolution among the leadership, I fear for the people who may count on the forbearance of the rulers as they come out into the streets.

Thirty one years ago a lovely Iranian professor was a house guest of ours when we lived in West Virginia. We last heard from her when she was desperately trying to get her brother out of the country. I have not been able to get word of her since, and I've been too scared for her to write her, if she and her husband are still alive. There were demonstrations then too, and I'm sure the two of them were in those demonstrations. And the authorities, though they called themselves religious, were no kinder than the mogul rulers.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

May 19, 2009: Javaid Iqbal and the Bill of Rights

Many of us believe this is a free country because of our Bill of Rights. Tyrants and dictators cannot do what they do to so many unfortunate people of this world. The Constitution and the courts would stop them, and keep us free.

There is controversy over whether the Obama Administration should prosecute those who authorized torture and brutality. But plaintiffs with their own private attorneys have been going to Court trying to find justice, appealing to those people who sit on the Supreme Court and whose very title is "Justice."

Javaid Iqbal, is Pakistani, a Muslim, who has never been accused or charged with any terrorist activities although he pled guilty to an immigration charge and was returned to Pakistan. As Iqbal's case went to the Supreme Court, the question was whether it should be dismissed on the pleadings without discovery or trial.

Here is some of what Iqbal told the courts. On January 8, 2002 he was then taken to a room where 15 officers were waiting for him. Several picked Iqbal up, threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room. The officers screamed at Iqbal, that he was a "terrorist" and a "Muslim." Iqbal was then taken – shackled and chained around his arms, legs and waist, bleeding from his mouth and nose – to a maximum security prison.

As the District Court summarized the complaint, Iqbal and a co-plaintiff were "(1) kept in solitary... (2) prohibited from leaving their cells ... more than one hour each day with few exceptions; (3) verbally and physically abused; (4) routinely subjected to humiliating and unnecessary strip and body-cavity searches, (5) denied access to basic medical care; (6) denied access to legal counsel; (7) denied adequate exercise and nutrition; (8) housed in small cells where the lights were left on almost 24 hours a day; (9) deliberately subjected to air conditioning during the winter months and heat during the summer months; (10) deprived of adequate bedding or personal hygiene items; and (11) ... deprived of adequate food, ... [so that] Iqbal lost over 40 pounds (and suffers from persistent digestive problems)."

None of this, we now know, has been an aberration. Across the world people have been mistreated in the name of the United States out of the very playbooks of the regimes we most despise. And as we have learned, these were not merely isolated instances of officers out of control. Instead this attack on the system of justice has been organized at the top.

All this can be true, said the Supreme Court. But there is an alphabet of immunities to protect the perpetrators. The Court said Iqbal's allegations against former Attorney General Ashcroft and former FBI Director Mueller weren't "plausible", so Iqbal could be denied a chance to prove it. Those in charge could not be sued for the behavior of those under them. And they could not be sued for discrimination for setting up a program which treated all Muslims in custody as if they had already been convicted of heinous crimes – which Iqbal and many others like him never were or would be. Not "plausible" despite years of painful revelations.

So does anything differentiate the majority on this Court from the kept courts of foreign kleptocracies and dictators, putting party and connections above law and justice, fostering a culture of impunity by those with power or connections? There were no immunities available to protect President Clinton when Paula Jones' lawyers went on a fishing expedition to see if they could trap Clinton into a lie, any lie, to protect himself from their inquiries into his private faults. But immunities abound to protect those who violate the most basic liberties. According to these officeholders there is nothing wrong with discrimination so long as it is practiced by the right people. Bush v. Gore was not an aberration.

The protections we have learned to believe in are mere paper promises when the Court feels free to pick and choose who is entitled. We had better get rid of the notion that the Constitution and the Bill of Rights protect our democracy. Not as long as this Court sits.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

May 12, 2009: David Souter

David Souter has announced his retirement from the U.S. Supreme Court where he served for nearly two decades.

Souter has been one of only two true conservatives on the Roberts Court. He did not join the Court with an ambition to change things. He has never been a radical, insisting that he had the one true answer and prior Courts were all off the mark. As a true conservative he has been modest about his ability to engineer the future. What time had tested should be conserved.

In that sense he is a conservative in the tradition of Republicans in New England and Rockefeller Republicans in New York who remembered that their party had written the 13th, 14th and 15th Amendments and welcomed the opportunity, at long last, to enforce them. And Souter is a conservative in the time honored tradition of Edmund Burke in England who supported the American Revolution because we were protecting what had been ours, but who opposed the French Revolution because it showed no respect for tradition, and led to a reign of terror and the Napoleonic wars.

Souter would have been at home on the Burger Court. Recognizing the challenge to create a colorblind society without compromising the ideal itself, the Burger Court balanced conflicting goals and charted a middle way. By the time Souter joined it, the Rehnquist Court had substituted a principle of blindness for the dream of a colorblind society. Looking at a perfectly segregated workforce the Rehnquist Court said the company didn't really mean it so its segregation didn't count. Souter never made that mistake.

Nor did Souter greet with equanimity the possibility of executing an innocent man as some of his colleagues did and still do. Conservatives believe in fundamental values of truth, and innocence. Souter left heartless efficiency to the radicals masquerading as conservatives.

When the Rehnquist and Roberts Courts tried to scuttle the environmental movement by rewriting doctrine, Souter refused to go along, arguing that the law did not justify it and it wasn't Souter's job to impose a vision of the environment on the country. We had state and federal legislatures and agencies entrusted with that task.

And when the Rehnquist Court changed the long settled meaning of statutes to the disadvantage of workers and consumers, Souter balked at a judicial economic policy.

None of that involved Souter creating new law.

The so-called conservatives on the Rehnquist and Roberts Courts have had an equality gap – talking about equality but refusing to rule in favor of the people who need it. And they have had a right to life gap – protecting lives in utero but refusing to protect innocent lives from execution. And they have had a democracy gap – insisting that their radical forms of misinterpretation are driven by respect for the people even while refusing to count the votes or recognize any democratic rights in any branch of election law with the single exception of protecting white voters claiming they were not over-represented enough. To Souter's undying credit, he resisted all that hypocrisy and fought for enduring American values.

It's not clear whether he will eventually recede into the fog of history. We won't find ringing phrases over his name. We won't find sharp breaks in the law with his signature. Historians and scholars looking for the big events may forget him. But Souter did what judges are supposed to do, indeed what radical conservatives have claimed that judges should do – restrain themselves, preserve the law, defer to the legislature – even while those same radicals were devising ways to do just the opposite. And for that, for the patience to do the basic if unglamorous job of judging honestly and modestly, we are all in Souter's debt. He has been a true conservative on the Court, and a real patriot.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

May 5, 2009: The Second End of Reconstruction

There are two cases in front of the U.S. Supreme Court that will probably change American civil rights law radically. Four members of the Court have never been friends of civil rights law and have just been waiting for a chance to kill it. A fifth professes concern but has rarely supported it. It's hard to tell how much of a difference whatever the Court decides will make at this point. But it is not a group of people I trust for a realistic assessment of our anti-discrimination laws.

Some commentators have been arguing that we should abandon prophylactic tests to identify and prevent discrimination and just look for evidence of intentional discrimination. The problem, however, has been that it is easy to whitewash real discrimination by saying "he didn't mean it" – a formula we all learned as kids. And the Supreme Court has been very consistent in saying no, they didn't mean it, since it announced in the late 70s that the test for unconstitutional governmental discrimination would be intent, not the obvious patterns. Work force all white, but they didn't mean it. Election rules favor whites, but they didn't mean it. One searches the records in vain for a finding of intentional discrimination for about twenty years from the mid-80s when Rehnquist became Chief to just the past six years. The few recent exceptions were blatant and even so were angry split decisions.

So this Court gives me no confidence in a decent respect for equal protection of the law. The majority will mouth claims about colorblind equality but does not see discrimination when it bumps right into it and has gutted every effort to stop and prevent it. Four members of the Court have made it quite clear that while they protest about equality, they would happily go back to the days when white men could and did kick everyone around, blacks, Asians, Japanese, women, homosexuals and Native Americans – they're still doing that. That's not the America I believe in. And this is not a Court that believes in the most basic principles of decency.

After the Civil War, the era of Reconstruction lasted but a single decade before the troops were withdrawn. In that decade, Congress passed three constitutional amendments and a series of statutes. But a decade after the Civil War the Court was already finding some of those statutes unconstitutional, saying that Congress did not have the right to insist that everyone have access to places of public accommodation, restaurants, theatres and the like. White America wanted to turn aside after the horrific bloodletting of the Civil War, even though that meant that the South largely won the peace. And when white vigilantes massacred a group of blacks whose crime was trying to vote, the U.S. Supreme Court decided that there was no jurisdiction in the federal courts to try those responsible. Since no southern court or jury was willing to convict, the perpetrators went free. And the Court had authorized the reign of terror that would follow.

It wasn't instantaneous. The late C. Van Woodward described a considerable degree of interaction in the late 19th century between whites and blacks in the former rebel states. But as the century drew to a close, politicians increasingly found advantage in vicious race baiting, and a white paramilitary drove out the elected, and integrated, government of North Carolina so they could seat an all white unelected replacement. Then the reign of terror began in earnest.

Since 1986 the Rehnquist and now Roberts Court has been sending very strong signals that it will look the other way at charges of racial discrimination, discrimination in federal and state programs, discrimination in courthouses, discrimination in schools. I'd like to hope that it's too late for the race haters, that we won't turn back. But in fact enforcement of the requirement of equality in this second era of Reconstruction did not survive the Warren and Burger Courts. And Brown v. Board itself was not enforced until 1966 after the federal government started using funding for construction as a carrot for integration to support enforcement of the Court's decision. The era of actual enforcement turned out to be very short for all the bellyaching about it.

So maybe things have changed enough that the courts aren't necessary, and they had better have changed enough because the Supreme Court hasn't been willing to help for decades. This Court makes me ashamed.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

April 28, 2009: To Prosecute or Not to Prosecute?

There is an effort to press the Obama Administration to prosecute those responsible for torture and it is gaining steam among many of us who have been outraged by the former Administration's sanction for torture. I have no doubt that their behavior was unconstitutional and violated many statutes. As a purely legal matter I am convinced that high up in the ranks of the Bush Administration there were a number of guilty parties who deserve prosecution and stiff penalties for their misbehavior.

But I have many doubts about whether they should be prosecuted based on what may be the likely outcome of prosecution. One strand in the conservative movement has been based on toughness. For them, the primary goal of the criminal law has been retribution. Prosecution would come straight out of their theory.

Those of us in opposition have a very different notion of social learning. We don't buy their shoot or punish approach to all problems. Our question is what will come of prosecution and how we can create a better society. We remember that putting a few members of the Nixon Administration in prison did not end dirty tricks. Impeachment of another president for his sexual behavior didn't mark the end of sexual misbehavior.

Many of us like to say we are a peaceful country. That makes us feel good but it is not true. We didn't conquer the territory from coast to coast peacefully. We took it by force from England, Spain, Mexico and the Indians.

We're a divided nation now. For the toughs masquerading as conservatives, being gentle with adversaries just seems wimpish and unrealistic. They don't believe in soft power and they are hostile to the claim. Their response to the revelations of misbehavior is not contrition but threats about what they and their supporters will do to paralyze the political system if we dare prosecute. As things stand, the perpetrators of torture and their apologists will just figure on getting even whenever they can find their way back into power. And nothing will be learned or gained.

Prosecution works best when society is united and perpetrators can be led to understand and own up to their misbehavior. Otherwise it makes martyrs and anger. I don't think we're there yet.

Hearings or a truth commission with a broad mandate to expose what happened could be helpful. Congress will have to be involved because the media do not stick long to issues that don't involve the lawmakers themselves. Hearings could deal with false imprisonment, "extraordinary rendition", and other high level misbehavior.

Could prosecution work? Perhaps if the punishment fit the crimes – fines and community service devoted to humanitarian work – and if any lenience depended on clear and convincing evidence of contrition.

Most important is to shame the perpetrators of such un-American behavior. Indeed, the wrong that calls itself the Right described as un-American, or "pinko", many in our parents' and grandparents' generations who cared about others than just themselves, and they still label "socialist" anyone and everyone who wants to show concern for our fellow man. Our job is to make clear that they should be ashamed of themselves. They are "un-American". And yes some enterprising entrepreneurs should make a buck publishing accurate lists for everyone to know who we are dealing with and what they did. Once that point is made, further punishment and prosecution may be unnecessary.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

April 21, 2009: Prosecutorial misconduct: Eric Holder and the Supreme Court

I commented last week about the Court's conclusion that a prosecutor's office could not be sued for ignoring clear federal law that required it to provide exculpatory information to counsel for a defendant – information about the prosecution's main witness that might have spared the defendant twenty-four years in prison for a crime he did not commit.

This week I'd like to make it clear that the Court is consistent in its treatment of those who have been abused by government misconduct. They get the back of this Court's hand.

In 1964 the Navajo Indian tribe leased coal mining rights to a coal company, now Peabody Coal. The lease provided that the Secretary of the Interior would adjust the royalty rate at stated intervals. When the time approached and the Navajo Nation asked the Secretary to raise the rate, the Department had several economic studies done of the value of the high quality coal on the Navajo land, and each of those independent studies recommended that the rate should be set at approximately 20% of profits. No federal study ever recommended less.

Based on those studies, the Area Director of the Bureau of Indian Affairs wrote Peabody that the lease rate should be set at 20%. Peabody appealed. It also met with the Secretary privately and asked him to withhold his decision. The Secretary then directed the Deputy Assistant Secretary to withhold the decision, to tell the Tribe, as Justice Souter wrote, "that no decision on the merits of the adjustment was imminent ... and directing him to encourage the Tribe to shift its attention from the Area Director's appealed award of 20 percent and return to the negotiating table ...."

The result was a new lease in which the Tribe lost nearly 40% of the value of the coal.

There is no doubt that the Secretary acted improperly. The secretary had been given the responsibility of protecting the tribes. Instead he met privately with one side, what lawyers call ex parte, withheld a decision based on independent studies, and discouraged the Tribe about the prospect of an appropriate decision from his office. That cost the Tribe considerably.

The legal argument has not been about whether the Secretary acted properly or in good faith. The legal argument has been about whether the Secretary had an obligation to act in good faith toward the Tribe, whether its power over the lease involved a position of trust toward the Tribe.

The Navajo's effort to recoup what they lost through the misbehavior of the Secretary has been to our Supreme Court twice. The first time, in 2003, the Court decided that the Secretary had no obligation under a series of statutes which had been thought by most of us to put the Secretary under an obligation toward the Tribes, what lawyers call a fiduciary obligation.

The Tribe went back to the appellate court which decided that other statutes than the ones considered by the Supreme Court placed the Secretary under a duty toward the Tribe. The Court reinstated its decision in favor of the Tribe. Once again the case made its way to the U.S. Supreme Court. And once again this Court said the Secretary was under no statutory duty to the Tribe.

To paraphrase Thomas Hardy, thus did the U.S. Supreme Court finish its sport with the Navajo.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

April 14, 2009: Prosecutorial misconduct: Eric Holder and the Supreme Court

Here is what U.S. Attorney General Eric Holder said about the prosecution of the case against former Senator Ted Stevens:

"In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant. After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

"The Department's Office of Professional Responsibility will conduct a thorough review of the prosecution of this matter. This does not mean or imply that any determination has been made about the conduct of those attorneys who handled the investigation and trial of this case.

"The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis. I am proud of them and of the work they do for the American people."

Compare that with the recent decision in Van de Kamp v. Goldstein.

Thomas Lee Goldstein served twenty-four years in prison for a murder he did not commit. The prosecutor used the testimony of a jailhouse informant who claimed at trial that he had received no benefits for his testimony in this and other cases when in fact he had and had received multiple reduced sentences in return for his testimony. As the federal appellate Court explained, the U.S. Supreme Court nearly a decade before Goldstein’s trial, made it clear that “prosecutors' offices have a constitutional obligation to establish ‘procedures and regulations . . .to insure communication of all relevant information on each case [including promises made to informants in exchange for testimony in that case] to every lawyer who deals with it.’” [Goldstein v. City of Long Beach, 481 F.3d 1170, 1172 (9th Cir. Cal. 2007) quoting Giglio v. United States, 405 U.S. 150, 154 (1972).] But the prosecutor’s office in Long Beach, California simply ignored the U.S. Supreme Court.

So after winning his freedom, Goldstein sued the prosecutors in charge of that office for failing to abide by their responsibility to supervise and train their staff to get and provide the information to defense counsel and for failing to set up a filing system that would have made that information available to the prosecutor who handled the trial. Instead, Van de Kamp and his deputy ignored their obligation with the risk of sending people to a life in prison because of perjured testimony.

The U.S, Supreme Court should be the moral guardian of our Constitution.

Now here is what that August Court said: “prosecutors ... enjoy absolute immunity”, absolute immunity for failing to instruct their staffs to turn over exculpatory material, absolute immunity for refusing to set up a system which would make clear which witnesses had gotten promises or benefits for their testimony.

In the US Attorney’s office, Eric Holder takes responsibility.In the U.S. Supreme Court, no one takes responsibility – prosecutors can ride roughshod over innocent people, and it’s OK with this Court.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

April 7, 2009: Sharing the Work in Hard Times

I grew up passionately pro-labor. I have always felt that labor unions did a great service. I have never felt that any human organization, unions included, always did the right thing. We all get some things wrong, elect the wrong people who pursue the wrong agenda. But on balance, I think unions do an important service.

But unions also have responsibilities, and some of those are legally defined. Most of the time when regulation of one kind or another defines responsibilities, it is because someone got something wrong. Either the regulated industry or union got something wrong or the regulators did.

Unions have a duty of fair representation. That responsibility was announced because some unions didn't want to represent some of their members. Some were corrupt; some were racist. So we make it plain that unions have a responsibility toward their members, all of them.

Recently labor unions in New York have been pelting the Governor with ads berating the Governor for aspects of his budget. Apparently the Governor wanted to hold on to as much of the labor force as possible, but he wanted the existing workforce to agree to a wage freeze. Many of us have been asked to do the same. And to keep people on the job, many of us feel its only fair and cooperate with a sense of shared responsibility.

Now when many of us, union, self-employed or management complained about the financial wizards who got us into this mess taking multimillion dollar bonuses when lots of people were forced out of work because of their misbehavior, our complaints made a lot of sense. We had a right to insist that they share the pain, not get rewarded for the damage they did.

So the unions would be perfectly justified, and I would cheer them on, if they insisted that cuts in salaries or jobs should be shared – with management. But of course the Governor did that straight off.

So the unions were faced with a different choice – would they agree to a freeze so that the maximum number could stay at work, or would they force colleagues onto the streets because the favored workers got their raises?

Under the law, the unions are entitled to make that choice. But it seems to me that the guys and gals facing unemployment lines aren't being well represented in that choice. Unions have to show some statesmanship too, some willingness to spread the work and share the pain. They have every right to demand that the pains are shared. But there's a big difference between giving up a raise and losing a job. I think the unions need to reevaluate the way they represent the people who'll have to face the unemployment lines.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

March 31, 2009: The Speech Clause and the Summum Case

The Supreme Court recently decided a case dealing with a monument with the Ten Commandments on it. The monument itself was originally placed in the park by the Fraternal Order of the Eagles and was virtually identical with a Texas monument which the Supreme Court blessed a couple of years ago. But a different religious group also wanted to put a monument in the city park with some of its favorite aphorisms. The City said no and the Supreme Court said that was OK.

The case was argued and decided on free speech grounds because the establishment of religion issue was excluded early in the litigation. And that's where the decision gets most troubling.

Generally First Amendment law requires that government not play favorites, that government has no business blessing the speech of some and barring the speech of others. The government is supposed to let us all have our say without censorship or favoritism – in most circumstances. But the Court concluded that the monuments in the park were speech by the city government and not by any monument donor. The government was entitled to say whatever it wanted. So case closed.

That idea that government speech makes discrimination OK has been used before. Congress has allowed some organizations to retain their tax exemption despite substantial expenses for lobbying Congress while refusing the same tax exemption to other similarly situated groups. But the Court concluded that since Congress' favored group was saying things Congress liked, it was really a form of government speech so the favoritism was fine. The Court concluded in other cases that organizations that took government money could not speak freely even with their own money because whatever they said was government speech.

I think you get the point. Free speech law is not governing the rights of speakers. Instead the question is what the Court might decide to call government speech. But if the government can convert favoritism into government speech, there is little left to the First Amendment rule of neutrality, that government not take sides among speakers and viewpoints, little left to the rule that government does not have the option to let those it likes speak while silencing or taxing those it does not like. In effect whatever speakers say that government likes can get to be called "government speech" and calling it government speech lets the government do those speakers favors and gets the government off the hook for disfavoring the speech of others. That undermines the fundamentals of First Amendment law – under neutrality doctrine, favoritism is partiality and it is illegal; but under government speech rules favoritism is just government speech and that's just fine. So favoritism is legal and neutrality doctrine is irrelevant. That's an example of the way that courts can speak with a forked tongue, and undermine our most important rights as a free people.

The Summum case where all this came up again is small potatoes in this area. The members of the Court had no disagreement with the result on the facts of the case. But there was and should be plenty of concern about the way the Court got there.

Stevens and Ginsburg commented that "our decisions relying on the recently minted government speech doctrine to uphold government action have been of doubtful merit." And they expressed concern about where the doctrine could lead.

Justice Breyer went further, writing that "courts must apply categories such as ‘government speech' ... with an eye towards their purposes—lest we turn ‘free speech' doctrine into a jurisprudence of labels." Exactly. Justice Souter expressed "qualms" about the way that government speech doctrine could undermine Free Speech rules.

The government speech doctrine has not been used well and threatens to undermine constitutional protections for free speech by allowing government to mislabel favoritism as ownership.

The Court needs new and better leadership and direction.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

March 24, 2009: Wailing at the Wall of Separation

A couple of years ago the Supreme Court decided that a Texas monument with the Ten Commandments was OK although a Kentucky monument was not. A few weeks ago the Court upheld another city's right to a Ten Commandment monument similar to the one in Texas, although the case raised some issues not raised in the Texas case. So what happened to the wall of separation and should we regret its loss?

The original idea of the wall was to protect religion from government. It was built up during a time of considerable hostility toward public support of religion by the states. Most Americans wanted to be free of forced exactions for religion. They didn't want to support other people's faiths and they also wanted more control over their own faiths.

The wall is comforting but impossible. Government has to do lots of things for religious organizations and structures – fire, police, water, the list goes on. And everything government does for religious institutions can then allow those institutions to spend more on other functions, religious functions. So everything depends on what is treated as legitimate, what is done for all on nonreligious grounds. The underlying idea there is neutrality.

But neutrality isn't self-defining either. Is schooling neutral because it is secular and you can do anything after school about religious education that you want? Or is schooling biased because it is secular so it implies a view about religion?

Unfortunately, no theory of the religion clauses of the Constitution is logically closed or consistent – they all have characteristic black holes, risks and assumptions that make them work and make them risky.

Still, I do truly lament the wall. Most scholarship by political scientists see communal schooling where we each educate our own in our own traditions as a good way to foment problems, intolerance and interreligious violence. Many Americans express concern about the madressas, essentially Islamic religious schools which have replaced public education in some parts of the world. The concern is that those schools are set apart, unintegrated with the rest of society and the world, free to teach hatred with no check in sight.

America has championed integrated public education since the early nineteenth century – integrated originally in the vision of Horace Mann among economic classes, so it would bring rich and poor together to understand each other better, and soon we had coeducational schools bringing boys and girls together for the benefits we thought it would bring to both. Later in the century we integrated the immigrants pouring in from eastern and southern Europe to help them learn American language and culture – we called it Americanization. And in the 20th century finally we integrated schooling across racial lines, a major achievement.

Integrated by class, integrated by gender, integrated by ethnicity, integrated by faith and integrated by race – America has created public schooling to be the common experience of the great majority of Americans. Israelis and Palestinians don't go to school together and it shows in the hostilities. The same is true in much of the world. It would be dangerous to lose our American solution of common public schooling.

But most people no longer understand the wall. Instead of seeing the wall as a protection for religion, they see it as attacking and restricting religion. The good news is that people do understand neutrality and support it. Be fair, give everyone a chance, share – these ideas have meaning confirmed by polls. I want to keep the public schools public, but ideologies don't wait for my approval. At least in that vision of fairness, there is some ground for getting together on the public square.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

March 17, 2009: It's Time to Drop the Rockefeller Drug Laws

It was widely hoped that this would be the year when we could repeal the draconian Rockefeller drug laws that have been putting young people away for decades for low-level nonviolent offenses. Those who have examined the impact of these policies have concluded that they've been worse than bankrupt, they have been damaging to our society and should be ended in favor of a public health approach.

The NY Assembly passed a bill with significant reform. But the Senate appears to be backing down and looking for a face-saving compromise that will do little.

The New York Civil Liberties Union has just released a Report on The Rockefeller Drug Laws and a Call for a Public Health Approach to Drug Policy. The Report represents careful study of the best research into the impact of New York's drug laws. Full disclosure, I am on the Board of the NYCLU and though I had nothing to do with the report, I know the staff and the careful, precise way they work on projects like this.

Some of the conclusions in the NYCLU Report are:

1st that "the state continues locking up the wrong people for the wrong reasons." 2nd "the empirical evidence that demonstrates New York's mandatory-minimum drug sentencing scheme has failed. . . . It has not reduced the availability of drugs or deterred their use; it has not made us safer."

3rd "Many of those ... [convicted] have substance abuse problems, and many suffer from a range of disabilities that will not be addressed in prison."

4th "For this dysfunctional approach to criminal justice policy, New York taxpayers pay dearly."

We've been locking up the wrong people because the people we've been imprisoning were not particularly dangerous; before we put them in the NY Prison School for Crime, what most of them needed was treatment. And a variety of alternative programs which divert defendants from the prisons have in fact been much more successful.

The harsh NY scheme has failed because it has not stanched the flow of drugs, or made the streets safer. What these harsh drug laws have done is make what the drug gangs call "mules" out of younger and younger children. In other words the harsh NY scheme has actually made it worse.

And we pay a great deal for this incarceration – much more than treatment costs – more than half a billion dollars each year. And it costs more in the dislocation left behind in the homes and neighborhoods of the young men and women in state prisons. These drug laws in fact create a great deal of the problems in the ghettos that they are supposed to solve.

Everyone involved from the police through the prosecutors and the judges understands that the bulk of the drugs pass through the white community. But the drug laws are enforced on the minority community – 93% of the people doing time are minority men and women. Unless we white folk think it would be good for us if we did the same thing to our own young people when they make a mistake or become hooked on substances they shouldn't, we have no business concluding that it is OK for someone else's community. It's just as wrong for them as it would be for us. It creates permanent scars in minority communities.

I understand that conservative courts have defined discrimination as conscious and intentional discrimination, not in spite of but because of race. I've never bought that. Selective lack of concern for what happens to them is unequal treatment. To turn aside when the minority community is being victimized in this way when we would not treat our own that way is discriminatory.

I understand of course that there are jobs that depend on prisons. People are entitled to jobs. The state needs to deal with the job problem. But the need for a job can't be a justification for locking people up and throwing away the key – I trust I do not need to demonstrate the evils that can flow from that misuse of the argument for jobs.

I recommend you take a look. The report is available on the NYCLU website, www.NYCLU.org and click "Read more" and then click on the box with a picture of the Report. It's entitled The Rockefeller Drug Laws: Unjust, Irrational, Ineffective; Call for a Public Health Approach to Drug Policy.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

March 3, 2009: The Ditch, the Rail and the Empire State

It never ceases to amaze me how much bald-faced nonsense we have to endure from people who are supposed to know better.

Remember the Erie Canal? It started as Clinton's Ditch. Governor DeWitt Clinton convinced the New York legislature to appropriate $7 million in 1817 to build a waterway from the Hudson to Lake Erie. That would give New York a huge advantage against the other ports that were trying to supply the growing western lands – ports like Philadelphia and Baltimore which were already in a competition to supply Pittsburgh. Why Pittsburgh? Because the Ohio River begins in Pittsburgh. And in the early 19th century the Ohio gave access to the Northwest Territories and to the Mississippi, the Missouri, and the Gulf of Mexico. Governor Clinton had that ditch dug with government money.

The railroads followed the path of the canal. Not slavishly of course, but in general, they followed the path of all the places that had grown up because of the canal. Western New York boomed. When I was a kid, if something was manufactured, someone made it in western New York, in giant plants of GE, Kodak, Bausch & Lomb, shoe factories, glove factories, appliance makers, all made in upper New York State along the old Erie Canal corrider.

Let's be clear. All of the great cities of western New York, and all of the small towns that grew up around them, all of the communities that grew up around what are now Routes 5, 20 and I-90 among others, all of those owe their existence to the Erie Canal and the corridor it built for the rails that came later.

And that ditch was the foundation for the pre-eminence of the New York metropolitan area, and yes the wealth in Nassau and Suffolk counties too. Clinton's ditch and the transportation and industry that followed it was the economic engine of the Empire State for a century and a half.

Do we need to address whether that ditch paid for itself?

After World War II the country started a major disinvestment in rail, started to subsidize oil, highways and trucking, invested heavily in the economics of hub transit by air and truck, and gradually sucked the economic life out of our upstate cities. Much of the economic life of the country moved south and west.

Now President Obama and Governor Paterson have offered to rebuild that transportation link in high speed rail. Think about it, folks, the airlines aren't interested in old and declining small communities upstate, but the president is willing to invest in upstate New York believing that if you put the money in the right projects, government money pays dividends that last for decades.

And what we get back from Dean Skelos is this is the wrong project because it actually looks ahead. But the people of western New York don't want handouts. Skelos says the projects won't generate money soon enough. Yes the high speed trains won't run tomorrow. The tracks have to be built first. But those jobs are now. It will require people from all parts of the state to build. That's the beauty of well-constructed investment – it pays for jobs now and it builds for jobs, for communities for decades to come.

We should never be pollyannish about any investment. But this is a project that needs to be built, for green transportation and economic regeneration of New York State. And partisanship should not be allowed to get in the way.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

February 25, 2009: Household Employment Taxes

There were so many things breaking a few weeks ago that there was an issue I just didn't have time to talk about and I'd like to go back to it. At this point a number of nominees of several different administrations including the Obama Administration have withdrawn their names from consideration because they had not paid household employment taxes. That is to say, they had not paid social security taxes for a housekeeper or other domestic employee. I'm not sure of their specific situations but for most of us, that means someone who comes in once a week for a few hours. The tax itself is small. I pay New York State something under $10 a quarter in unemployment taxes and without checking the figures something like $300 a year to the federal government for social security taxes. But lots of people don't pay those taxes and some don't seem to be aware that they are supposed to.

There are reasons for that level of passive resistance that are rooted in economics, culture and history. I have a colleague who could probably trace the historic roots back to the employment of slaves as domestic servants but I'll just go back to the New Deal in the 1930s. When the Roosevelt Administration introduced Social Security, one of its political bargains was to leave out domestic employment and agricultural labor, two major areas of black employment. The culture had taken advantage of blacks for centuries and the new law perpetuated that injustice. When the law was changed later, habits had already formed.

For many, there was an additional factor that stemmed from an opposite sentiment. Many of us are simply outraged that someone who is getting by on the meager income from cleaning someone else's house has to pay taxes on it. To pay the household employment tax means that the government will also expect both social security and income taxes from the housekeeper. Many employers, like myself, actually pay the employee's share of the social security tax and the government forms provide for that. But that still leaves the housekeeper with income taxes to pay. So many of them prefer to be paid under the table so that they will not have to report it as income. And many of us who employ a housekeeper sympathize. I'm not, by the way, sympathetic with others who want to be paid under the table – there are reasons in both fairness and the services we need from our government why we all should pay our taxes. But housekeepers typically earn so little it doesn't seem fair. When the housekeeper ages, of course, the failure to report begins to take its toll because they may not be eligible for social security. There is a reason why, at long last, social security was changed to include some of the least well paid people in the country.

There's also the complexity, real or imagined, of paying the taxes. I'm a lawyer so negotiating the bureaucracy to find the right forms and set up the record keeping is something I'm supposed to be able to do, although, I confess, that anything you do as a single transaction once a year has its challenges – you don't automatically remember what you have to do or how you did it last year. But most household employers are not lawyers or accountants and they aren't going to hire one to take care of filing for a domestic employee. They are often unwilling to deal with one more tax system, so they'd rather pay under the table. Some domestic employees get around that problem by filing as self-employed and paying the self-employment tax – but then they pay what should be the employer's share.

So there are several reasons why household employment taxes trip people up. For some, not reporting is a form of passive resistance to a piece of injustice. For others it is sympathetic collusion with their employees. For others it's part of a tax revolt. Now you've heard me before make clear that I treat paying taxes as a part of our responsibility. And some of the resistance to taxation is about avoiding responsibilities. But resistance to household employment taxes is more complicated and widespread. And I'm inclined to think it should not automatically disqualify people for difficult and important public service jobs.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

February 17, 2009: The Grandchild Test

Some years ago I practiced law in Missouri. I was working for the Legal Aid Society. And I remember being at some public political meeting – I can't quite remember the details but I remember someone challenging me, "Do you pay taxes?" he demanded. Now of course that was a silly question. Anyone in America who gets paid a salary pays taxes. But the underlying point was that it's everyone for himself. It was his money or my money and the job was to hold on to it, not let anyone else get a piece of it.

Now I've never believed that I or any of us are on this earth only for ourselves. We all have roles to play in our families, our communities, our professions, our states and our country. And we skip out on those tasks at our, and everyone's peril. For me the test is our granddaughter. She's 17 months old now. She lights up our lives. And she extends our view far into the future. I have no greater need than for her to grow up healthy and happy, ready to embark on a fulfilling life. Perhaps she'll have children and perhaps we'll live to get to know her children too. Now that's something to wish for.

I recently listened to a peanut farmer talking about his grandson who loves peanut butter and jelly sandwichs and how he wants to make sure that his grandson never gets contaminated peanut butter. I've never understood how captains of industry can fight so hard against taking care of the environment. Don't they have grandchildren too? Do they think that the world can go to hell but they can put their grandchildren in some protective bubble with their money? Or are they too busy to care?

We all have our favorite ways to make the point, whether it's the golden rule, the Sermon on the Mount, or Rabbi Hillel at about the same time who asked, "If I am only for myself, who am I?" It seems to me the world would be a better place if we all took the grandchild test – will this be a better place for my grandchildren? But if it's going to be a better place for my Maggie, it's got to be a better place for your grandchild too, because no one can tell how their lives will intertwine. As John Donne told us so many years ago, "No man is an island, entire unto itself."

I think that's a piece of why the last three decades have been so disturbing to many of us. They have been about selfishness instead of caring, about me, instead of us, about protecting ourselves instead of making the world better. President Obama has been communicating to many of us on a very deep level just because he has been trying to say we are all in this together, we are our brother's, and our grandchildren's keeper. Now if we can really solve some problems, that would be wonderful

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

February 10, 2009: Why the Bailouts Aren't Working

We have been putting money in the hands of wealthy people and institutions for quite some time. Tax relief and bailouts for the wealthy haven't been working. Still pundits and congressional Republicans tell us we need to cut the spending programs more and give the money back to the people.

The bailouts aren't working because they do the wrong thing. It's hard to find good places to put money in a recession. So people try to hoard money. The last Administration spent eight years putting money in the hands of wealthy people hoping they could find good places to invest their money. Instead they chased bubbles and built fancy homes.

Now bailouts are putting still more money in their hands but they still don't know where to invest it because everything is declining.

President Richard Nixon said "We're all Keynesians now" referring to John Maynard Keynes, the great British economist. A decade later a new Republican Administration turned to Chicago School "supply-siders", who were more sympathetic to the desires of fiscal conservatives. The press followed and all we heard were supply siders. Supply siders refused to learn from Keynes and insisted that low taxes and monetary policy were sufficient to stave off depression.

Keynes had explained to a world bewildered by the Great Depression that lowering interest rates could not work because shrinking values meant much money didn=t exist any more so it couldn't be "encouraged." The coins and dollar bills continued to exist but the vicious cycle of economic decline collapsed the value of shrinking businesses. And "injecting" money into the financial industry isn't much better because few who have money have any taste for investing it - what would produce a return? They want to get out of harm's way before the downward spiral of a shrinking economy consumes their funds. So bailout money has been going into an apparently bottomless pit. Investors are desperate to protect their money, not invest it. Just as Keynes explained they would.

Keynes drew the obvious conclusion - that when the economy is shrinking, government should step in, not to engage in a quixotic effort to encourage private investment, but to do the necessary investment itself. That would strengthen consumers and the market for goods and services. That would give the financial industry reason to start investing again and trigger a positive cycle. In other words, to encourage investors, support workers, and create demand for goods and services.

There are obvious candidates for sensible public investment that will pay dividends when the bill for the growing public debt comes due.

During the Depression we built the Tennessee Valley Authority providing flood control and electrical generating capacity. Now, the country could invest in green energy projects to reduce both our petroleum dependence and our greenhouse gases. If the coming of the electric car will do any good, power production has to become green. These and projects like it could lay the groundwork for a great American resurgence just as the Roosevelt New Deal did in the 1930s. Borrowing to spend our way out of depression on productive assets will return a large payoff that could outstrip the debt instead of dragging on the economy.

Proponents of tax breaks are too tightly tied to ideas that were outmoded before they were revived. The first President Bush referred to them as "voodoo economics." He was right. Now we have to show the new President that we are ready for good economics and too smart for any more of the voodoo stuff.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

January 27, 2009: The Same Old Court

We have a new President; we have the same old Court. A few weeks ago, the Supreme Court decided that state anti-fraud rules are not blocked by the federal Labeling Act or by the Federal Trade Commission.

That was a decision about what lawyers technically call pre-emption - whether federal laws have superceded state law and block state regulation. So people who are injured by cigarette fraud can sue under state law.

The Supreme Court has not been kind to the states in decisions about pre-emption. The Roberts Court in its first three years blocked a great deal of state regulation. It changed long standing rules and by pre-emption blocked state regulation of state banks which were subsidiaries of national banks. It blocked enforcement of state usury rules by holding that the Federal Arbitration Act pre-empted suits over usury. It blocked states from prohibiting state contractors from using state funds for employer speech relating to union organizing, deciding that states were pre-empted even from controlling how their own monies were used. And it pre-empted state tort liability over medical products.

People got accustomed to saying that the Rehnquist Court favored the states because in a variety of cases it used the idea of state sovereignty to block federal legislation it didn't like. And in those cases the justices called attention to their votes in favor of states' rights by writing about federalism. Few noticed that the Rehnquist Court was not so kind to the states in other contexts. The Court used federalism to limit federal civil rights law but it used a variety of other tools to limit state civil rights actions. The common element of course was the Court's hostility to civil rights, not its support for the states.

The common denominator in the Roberts Court cases has been its hostility to regulation. And some of the regulations it blocked are related to the current financial meltdown, especially the regulation of banks and banking practices.

When he testified before the Senate about his nomination to the Court, Chief Justice Roberts parried inquiry into his judicial philosophy by saying that the job of a judge is like the umpire in a ballgame, not to play the game but only to call balls and strikes. Of course we all know that the actual strike zones called by the umps bears little relation to the strike zone defined in the rule books. The zone even changes from day to day. And savvy commentators often show us in replays how pitchers get umps to move the strike zones in their favor, so the zone isn't even the same for all the pitchers in the game.

Just so. The Court is playing the game, not just calling balls and strikes according to well-established rules. Perhaps it bodes well that the current term of Court has already seen one decision in favor of state economic regulation.

But I wouldn't bet on it. The Roberts Court turned the liability of Exxon for the huge oil spill by the Exxon Valdese in Alaskan waters into chump change for the giant company. It protected many of those who made massive economic fraud possible in cases like the Enron debacle. It has continued to empty the anti-trust laws of any of the bite they once had.

Remember singing "All I want for Christmas is my two front teeth"? Well all I want for the new year is some new justices - men and women who actually believe that justice is the goal, not just the title. And I have some candidates for who needs to step down too.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

January 20, 2009: Inauguration

We voted for whoever seemed to us likely to make the better president. For the majority of us that choice has been Barack Obama and we rest our hopes in him for the wisdom, the strength, and the skill to tackle the enormous challenges facing our country, challenges that will determine how we and our children and grandchildren will live, and for many even survive.

None of you need to be told that this is a historic day even beyond those hopes. Nearly two centuries ago the French nobleman Alexis de Tocqueville predicted both our Civil War and the Cold War. Our struggle with race was at the center of the Constitutional Convention and has warped and ended lives since the founding of the country. Obama's success is a triumph not only for him but for America and the possibility that it can rise above the racism that has held it back. For young black people, let Obama represent the hope and the dream that can drive them to successes of their own. For those of us who are included in that polyglot America called white, let Obama represent the justification of our past labors and the incentive to turn America into a society which glories in its diversity.

I grew up with the concept of brotherhood. The gender in that word has weakened the strength of what it was designed to say. When I was a small boy, before and during the Second World War, one of the most popular productions on network broadcasting was the Ballad for Americans. It was produced even at the 1940 Republican National Convention. Paul Robeson, the chocolate colored black superstar of the era, famous on stage, screen and opera, in symbolism no one could have missed, expressed that sense of brotherhood as the voice of America:
Say, will you please tell us who you are? ....
Well, I'm the everybody who's nobody,
I'm the nobody who's everybody.
What's your racket? What do you do for a living?

Well, I'm an
Engineer, musician, street cleaner, carpenter, teacher,
How about a farmer? Also.
Office clerk? Yes sir! ....
Factory worker? You said it. ....
Truck driver? Definitely!
Miner, seamstress, ditchdigger, all of them.
I am the "etceteras" and the "and so forths" that do the work.
Now hold on here, what are you trying to give us?
Are you an American?
Am I an American?
I'm just an Irish, Jewish, Italian,
French and English, Spanish, Russian, Chinese, Polish,
Scotch, Hungarian, Swedish, Finnish, Greek and Turk and Czech

And that ain't all.
I was baptized Baptist, Methodist, Congregationalist, Lutheran,
Atheist, Roman Catholic, Jewish, Presbyterian, Seventh Day Adventist,
Mormon, Quaker, Christian Scientist and lots more.
You sure are something.

Now he could also have said African and Black and added many more of the world's great faiths and places of origin.

That dream has been with us since Tom Jefferson wrote and his colleagues declared our independence. In 1939 Robeson continued:
Our country's strong, our country's young,
And her greatest songs are still unsung.....
We nobodies who are anybody believe it.
We anybodies who are everybody have no doubts....
And now you know who I am.
Who are you?
America! America!
Hallelelujah.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

January 17, 2009: The Spread of Torture in America

Over the last several days I attended a convention of law teachers. At one meeting to discuss the various challenges to the detention of people captured in the war on terror, several speakers discussed the legal status of the various Bush decisions to hold, torture and then try by military commissions a variety of people, some captured on the battlefield in Afghanistan but some captured on American soil, and many of whom were seized in ambiguous circumstances. Some have argued that the impact on American law would be small because it was war time, and there were only a few hundred captives involved.

But Prof. Judith Resnik of the Yale Law School, and a native of this area, showed the group the conditions in which tens of thousands of Americans are being held in state and federal prisons for ordinary crimes. This includes solitary confinement, with lights always on and prisoners not allowed to shield their eyes so that they can sleep, measures to prevent inmates from talking with any other human being. As the Supreme Court explained, they are *deprived of almost any environmental or sensory stimuli and of almost all human contact.* These are not conditions which rehabilitate, correct or even deter. Instead they literally drive inmates crazy, inflicting mental and physical disorders from which they cannot recover when released.

To that let me add one detail. The Supreme Court in a decision by Justice Thomas has now held that torture is not prohibited by the self-incrimination clause, as we all thought it had been ever since the Supreme Court decided Chambers v. Florida in 1940, a case which itself dealt with the brutal vestiges of slavery and racialized brutality.

In other words, the horrors of Guantanamo and Abu Ghraib cannot be so easily cabined in the far off prisons in Iraq and Guantanamo. We have been dehumanizing the entire criminal justice system. We have been so cock sure of our moral superiority to those picked up that we have developed a criminal justice system which is mired in discrimination, devoid of careful process, built on revenge, and reveling in torture, qualities that corrupt the human soul and leave us all less, not more, secure.

The Supreme Court said it might reconsider whether torture was prohibited by the due process clause, but that question is, as the Court puts it, *open.*

Since when can torture be an open question in America? What kind of a country are we becoming? A country which now empowers an American version of the Soviet gulag? A country which is mired in hate, revenge, pain and brutality? That is a very dangerous place indeed. We are teaching and passing on the elements of tyranny, where violence is acceptable and populations are treated as little more than tools of repression. Moral behavior is not so divisible that we can torture with one hand and respect human decency with the other. Legal security is not so divisible that we can act without restraint to some and promise the rest secure lives, accurate procedures and just outcomes. The very heart of America is now on the line and we must start backing away from the precipice.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

January 6, 2009: Shalom or Salaam Anyone?

My commentary two weeks ago ended with a line from a Pete Seeger song, "Pacem in Terris, Mir, Shanti, Salaam, Hey Wa." He might have added Shalom. Shalom and Salaam are respectively Hebrew and Arabic greetings, married in their common etymology, meaning peace and health, and in their opposition signifying just the opposite.

1947 was a year of mass migration and the loss of millions of lives. Hindus in large numbers left what we now call Pakistan to come to India while millions of Muslims went the other way. Pakistan and India continue to fight over Kashmir. But no one suggests reversing the migration and reopening the pain and the bloodshed of those years.

During the Second World War the west refused to admit Jewish refugees from the Nazis. Finding their way to the Middle East, Israelis revolted against Brittain, fought their Arab neighbors and proclaimed a state. But the world refused to settle the Palestinian refugees as it had refused to settle the Jews during the War. Denied the opportunity for a decent life elsewhere, Palestinian grievances were nursed until they would quite understandably risk their lives to reconquer what they had lost. Shalom and salaam, indeed.

Not very long ago I was at a gathering of Muslim students at a university in the area. I found myself in conversation with a young Palestinian man. In his view, it was perfectly acceptable for Muslims to kill Israelis, military or civilian, it made no difference. But it was not acceptable for Israel to fight back. They had no right but to stand and be killed. Muslims from other parts of the world understood my responses quite well - Pakistani Muslims and Indian Hindus had no right of redemption but should stay where they are. And human rights are universal and reciprocal - no one has an obligation to allow the murder of his or her own family without fighting back. But nothing made sense to this Palestinian except asymmetrical murder. This young man was obviously indoctrinated at his home in Palestine.

I relate that story not for the purpose of placing more blame on one side or the other - there is plenty to go around. But to indicate the consequences of letting this fester. Israel has been under the impression that time is on their side. That, I think, is nonsense. The problem keeps getting worse. Hamas seems to have a large part of the world convinced that no condemnation of its rockets is appropriate but Israel has no rights in response.

Israel says it wants peace. But after more than sixty years, it hasn't figured out that reprisals don't lead to peace. Hamas has figured out that attacks don't lead to peace. But then it doesn't want peace either.

While Israel was involved in credible negotiations with Fatah, it often seemed as if Hamas ran Israel. Anytime it looked like peace might be at hand, Hamas sent over a few rockets and the Israelis did the rest. Hamas had the buttons, knew the code and pushed when it wanted.

The current American Administration says we're a peace-loving people but couldn't bring itself to talk to anyone not up to its topsy-turvy standards. Iran seems to be Hamas' backer. But talking with Iran has become toxic for American politicians. And Hamas remains Iran's skilled and lethal proxy.

All of this suggests more tragedy in the making. There must be a better way. I pray that Barak and Hilary can find it.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

December 30, 2008: America's Freedom in the World

With the Bush Administration drawing to a close, I've been thinking about the meaning of civil liberties. We've been accustomed to thinking of civil liberties as individual rights, things only people who are in trouble need. I remember a TV anchor who asked me on air why we should provide counsel for people accused of terrorism – as if the accusation meant we had the right people and any procedural niceties were just that, decorations so we could pat ourselves on the back.

One of our friends came to this country because people in his family and in his community had been attacked and murdered by the authorities. Another came here because some of his classmates at a university in the country of his birth suddenly disappeared without a word; and because some later reappeared having obviously been tortured.

When I teach constitutional law, I try to make clear to my students the debt that modern constitutional law owes to the labor and Civil Rights movements. The rights we now claim in the criminal process were developed by courts coping with the murder, lynching and intimidation of blacks and advocates for social and economic justice by sheriffs, mobs and those in league with them. The rights to free speech we now claim were developed in part by lawyers and courts trying to protect people like Dr. Martin Luther King who were struggling to make America a better, fairer place, and trying to protect their ability to speak, march and demonstrate. American movements for racial, social and economic justice were born long before the courts started to help, but civil liberties' proudest moments were in their support for the people who worked with courage, tears and perseverance to make this a better place.

And when I think and speak about America's place in the world, it turns out that civil liberties take center stage. For all the years in which America was respected as a beacon of decency it was largely because we respected civil liberties, because we didn't think of freedom as the right to run havoc over every one else, but tried to treat every one according to fair rules, facts and thoughtful judgment. And for the time in which America has been the object of condemnation and anger, it has largely been because of our abandonment of freedom, of civil liberties, for all.

Individual rights do not well describe the role of everyone's freedom through the protections we have come to call civil liberties. These are not self-indulgent decorations but the very essence of America's ability to play an important role in the world.

In this season of gift giving and generosity, my prayer is that lady liberty can again hold her torch high with pride and the feeling that she still has important work to do.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

December 23, 2008: Of Church, State and the Holiday Season

This is a season in which some people with religious views and some civil libertarians have certain problems with each other and with what used to be called the wall of separation between church and state.

I am not going to try to represent anyone but me; and I am certainly not going to try to explain anybody to anybody else. I just want to lay out what I like.

Our son graduated from college a dozen years ago. Graduation was on a Tuesday. They called the Sunday before that Tuesday “Baccalaureate Sunday”. There wasn't room for everyone in the Chapel so they hooked up some speakers and we sat out on the lawn. Luckily it was a sunny morning although we had all been issued rain panchos in school colors for the duration of the several days of festivities.

They had a well known person give a speech which was deservedly well received. But what stuck in my mind were the students from all the great traditions of the world reading from their ancient scriptures both in the original languages and in translation, to which the students added comments of their own. One of the students read a portion of the Five Books of Moses in the original Hebrew which was familiar from my tradition. Others read in languages I could only guess at. I don't remember whether there were readings by Ethical Culturists or by Humanists; I'd like to think they were there too and taking part. But the clear message of the service was that good people come in all colors, languages and traditions; they come with lots of different beliefs about the things that humans cannot know or prove, but they share a fundamental sense of decency and caring toward each other.

That fits well in our family. I had to travel to Tehran to meet my wife – where else would I have met a North Carolina girl? We were both in the Peace Corps. And for years we celebrated Chanukah at home and Christmas with my in-laws. We had the best of all worlds. And we liked it that way.

Fundamentally we care about people because of the goodness of their hearts, and the goodness of the principles they lived by. And by the way that's pretty American too. I don't often recommend books in this commentary. But let me recommend one for this holiday season – the Autobiography of Ben Franklin. More than two centuries ago he made the same point I'm making today, in language his colleagues among the Founding Fathers would have well understood, that it's the principles about how well we treat each other, not the theological details, that really matter.

Have a very happy holiday and a warm, lovely, constructive and peaceful New Year, or as Pete Seeger once put it, “Pacem in Terris, Mir, Shanti, Salaam, Hey Wa”.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

December 16, 2008: The Credit Crisis

There has been a lot of talk about how some people took out loans and mortgages irresponsibly or borrowed too much on their charge cards. No doubt that's true for some of the people. One of the claims about irresponsibility is that people didn't read the documents they signed and didn't know what could happen under their contracts. They should have read and understood and not made the deals that allowed charge card companies to jack up their rates to the kind of interest rates charged by organized crime, that allowed lenders to change rates or call in loans even though you are fully paid up if you did anything with respect to some other transaction that this lender claimed not to like. These practices even have names like "universal default." They can easily turn solvent borrowers into homeless debtors though no fault of their own.

So let me tell you a story. Years ago we moved from New York City to West Virginia where I started my teaching career. We found a house. All that remained was the financing and closing. Our dealer arranged financing with an area bank. They mailed me forms to sign. One form said I had seen the mortgage terms. But there were no mortgage papers. So I called the bank. Oh, sorry, they'd send them. Nothing arrived. I called again. They promised to leave them for us at your broker's to see when we arrived. Of course they weren't. I found myself reading the papers for the first time at the closing.

But everyone there, my broker included, was cross with me for trying to read the documents. Having by then practiced law for a decade, I realized that some of the terms in the document they were asking me to sign were actually at the center of litigation under way in the federal courts. I insisted on talking with the bank's attorney, who as it happened I had already met. Yes he understood my concerns but there was nothing he could do.

One of those provisions said the bank could call in the entire loan at any time in their uncontrolled discretion. I was angry to say the least. But while I was fuming at the bank, my furniture was being moved in to the house. There was no time to see about other financing. I signed the form. And on the way back listened to our broker harangue me about coming to another state and interfering in the way they do business.

What I took from that experience is that people are not expected to read documents. You get the papers and you sign. And then if the lender does something outrageous, well then it's your fault because you should have read the documents. And if you do wade through the legalese, the likelihood of understanding it is small. You're lulled to sleep by innocent sounding phrases. In one of my courses my students and I went through some standard language and watched the way company lawyers had designed pleasant sounding language that gave their clients the ability to dictate and change the terms at will much to the disadvantage of customers.

There is only one sensible solution and it has nothing to do with expecting every one of us to spend all our waking hours figuring out whether the terms we are being offered by apparently legitimate businesses are filled with land mines likely to blow us off our feet at any moment. And that is to ban the outrageous practices that have made this credit crisis a scandal as well as a tragedy.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

December 9, 2008: Corruption top and bottom

Tell me if this smells. Just a few days ago a former Schenectady Police Chief pled guilty and was sentenced to two years in jail and his wife to six months. They had been charged with participating in a drug trafficking ring. You know that if some kid from the ghetto did the same thing we would essentially lock him up for life, send him to the prison school for a lifetime of crime so that we can be sure that if he ever gets out we'll bring him back for something else. Should the police chief, the guy who was supposed to be prosecuting drug rings, get off so lightly? Should we look the other way when police involvement in the drug trade threatens to, actually already has, corrupted the war on drugs? Corrupt police have incentives to carry out drug murders and frame the innocent, both to cover up what they are doing and to make it look like they are doing something. No one should take lightly police corruption, certainly not the police themselves.

But I think that most people are unaware of the consequences of our national war on drugs. The consequences are huge. Drugs have damaged our entire criminal justice system, bringing down most of the barriers our Constitution erected to protect decent, law abiding people, rich or poor. But the drive to catch the drug people has led to erosion of most civil liberties.

And the war on drugs has resulted in enormous racial discrimination. Police chiefs will tell you that they know drugs are as big in the white suburbs as the black ghettos. But they enforce the laws only in the ghettos, claiming it's easier. Actually studies have shown that there is racial discrimination at every level of the criminal justice system, from apprehension to decisions about what charges to bring, and decisions about sentencing. The result has been that minorities do about 85 percent of the time for drug offenses, far out of proportion to their involvement. And our poor communities are left largely without a male working population. When the men come out of jail they have criminal records that make it difficult or impossible to find legitimate work. And certainly the jails don't help prepare people for re-entry. They are reformatories only in name; serving only as storage.

Meanwhile the white kid is assumed to be a nice kid that has just gone wrong and we make every effort to keep him or her out of the criminal justice system. Police, prosecutors and judges all help. I'm not saying they're wrong. Most of the kids turn out decently. I'm saying that what is good for "our" kids should also be good for "their" kids. The Constitution tells us that there should not be any discrimination in the pains and penalties meted out. But the system does it continuously. Either harsh penalties are appropriate for everyone or no one.

In reality that's only the beginning of the damage done by the war on drugs. Just like the multiplier effects in economics, the multiplier effects of the abuses perpetuated by our criminal justice system are extensive. Terrorists and rogue armies the world over are financed by drug money.

It's about time that we in America start taking a hard nosed look at the War on Drugs. Maybe the War in Iraq isn't the only war that needs to end.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

December 2, 2008: Sending Messages is Not a Foreign Policy

As we prepare to inaugurate a new President and foreign policy team, it would be helpful if we as a people could gain a more sophisticated appreciation of how it is done so that we can give the new Administration the space it will need to make real progress.

American foreign policy has become a policy of sending messages. /restarted/ The president or the secretary of state speaks out about something some foreign government has done. It condemns or encourages or otherwise tries to suggest in words that somebody should do something we want them to. Then it hands the statement to the press or makes it in front of the cameras.

But Americans ought to be clear that messages like that are for American consumption. Diplomats do not do diplomacy in public. And public statements should be taken for the theater they are intended to be, to make us think that the Administration is doing this or that.

Foreigners get other more important messages: what have we done with our troops, ships, trade, exchanges and diplomats. They will be aware of the full terms of what we are trying to do, often in direct contradiction to the statements made for home consumption. Americans should be skeptical of this business of sending messages and focus instead on the realities rather than the words. Anything less is simply being taken in.

The business of sending messages can get really dangerous when presidents and secretaries of state are actually trying to send messages abroad. /restarted/ The messages that are made public for American consumption are aimed at situations most of us rightly dislike. So the messages are orders and threats.

But adults, certainly in America, do not take well to orders and threats. And nations get their backs up just as individuals do. Nationalism is a major force in the world that pays no attention to the fact that presidents and many Americans think everything is about being for or against the American way of life and all good things American. Nationalism is not about who's better but about who's trespassing, who's trying to order whom around and who's treating whom with respect. Americans need to learn to condemn foreign policy by American press releases.

No matter how powerful we are, giving orders can be the worst approach to foreign policy. /restarted/ The American public's preference for a forceful foreign policy, with kitchen debates and yelling matches, messages, threats and massing of weapons, needs to change, fast. It makes enemies and squanders our advantages.

Real diplomacy is done in private, where people can actually reach agreements.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

November 25, 2008: Thanksgiving

Thanksgiving is a feel-good holiday. We should be thankful for family and friends, for the memories of those departed, and in these uncertain days, for the food we can put on our table. Every day my wife and I celebrate the newest member of our family, our granddaughter, barely a year old.

But it wouldn't be true to America's rich religious and ideological heritage to forget those who’ve paid the price of our success. Without those memories we risk the haughty pride that brings peoples down. Without those memories we risk misinterpreting events and failing to understand the legitimate concerns of other peoples. Without those memories we miss what our nation's founders understood, that we are subject to the vices of peoples everywhere – indeed the reason they created our complex constitutional system was to try to control those vices. So we need to be willing to take stock, to show each other and our Maker that we have the strength and courage to look clearly at our own behavior and to try to grow in the moral strength and courage to reach for greater wisdom.

When my wife and I visited Hannibal, Missouri, Mark Twain's home town, the Museum had everything Twain wrote except his little gem, The War Prayer. They took it down because townspeople objected. Across at the Bookstore, though, it was their best selling item. Twain's story, written during the Spanish-American War, portrayed a congregation praying for the young men about to leave for war. Twain placed a shrouded figure behind the preacher. When the preacher finished, the shrouded figure said he had the power to grant their wish, so long as they acknowledged the unexpressed wish for the horrors, death and destruction that would be inflicted on our enemies. Twain ended the story saying the villagers pronounced the shrouded figure insane because there was no sense in what he said. They were unwilling to take responsibility for their choices.

In a similar spirit, the Passover Seder is a meal of Thanksgiving, but as we tell the story of the Exodus, we remember with sorrow those who were afflicted by the plagues that we could go free.

And in that spirit it is well:
  • To remember the wealth gained at the cost of allowing others to fall into great poverty and tragedy
  • To remember the Native Americans killed defending their lands
  • To remember the Africans enslaved, segregated and subordinated here, and the Mexican lands we seized so that there would be more land for slavery
  • To remember the loyal and decent Japanese-Americans corralled in so-called Internment camps during World War II
  • To remember the immigrants exploited in sweatshops, mines, factories or as migrant labor
  • To remember the people we have fought in many foreign lands, whether because of the cruelty of their own leaders or the misjudgments of ours
  • The veterans who have come home dismembered mentally and physically, of whom too many have ended up homeless
  • And those now suffering because of three decades of deregulation
We remember them all.

Thanksgiving is a time to rejoice. But let's also remember in our prayers those who've paid a great price for our success, those who have been sacrificed when we acted on our finest and noblest instincts, and those who've been sacrificed when we did not show the wisdom that alone can justify power.

Have a good Thanksgiving and let it be an occasion for strengthening ourselves and our world.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

November 18, 2008: My Feelings About the Election

It's taken me a while to articulate my feelings about the election. When McCain conceded on election night I woke my wife with the news, then waited for President-elect Obama, I like the way that sounds, to address us all.

People in my generation became conscious in a world racked by the Nazi race war in Europe. As small boys we cheered for Jackie Robinson, then watched the movie, the Jackie Robinson Story, in horror as it detailed the taunts, attacks and threats he'd had to endure for breaking the color barrier in Major League Baseball. Our hearts were committed to the Civil Rights Movement before we were ten. There are people in the listening audience who marched with Martin Luther King or put their skulls and lives at risk in the Freedom Rides and other demonstrations. Others of us played bit parts in the Civil Rights Movement, and some of us stood less than 50 yards from King when he laid out his dream for America. This election realizes a piece of our dream. I realize that since the 1940s national roadbuilding, mortgage insurance, housing and urban renewal programs have segregated the north into white suburbs and black, and dying, cities. There's a lot left to do. Still I wanted to sing hallelujah from the rooftops.

But I've also wanted to shed tears of relief that the nightmare of the past eight years may be coming to an end. *May* because there are so many problems. First on everyone's agenda is the economic downturn. Then there are the veterans whose lives, bodies and minds have been crushed by the wars, and some of those lucky enough to come back in one piece are in danger of ending up homeless, unable to make sense of the world after spending time in hell. There are the many whose pensions, homes and businesses have been lost to the recession, scams and the cruelty of hope. There are the workers who've lost their jobs while their employers have been encouraged by tax changes to move their money and their businesses offshore. To add insult to injury the conservatives who have been running our country changed the bankruptcy laws so that ordinary Americans caught in this web of deception will be doubly punished for believing what they were told while special protections against bankruptcy are unveiled for the captains of finance. Whoever said life is fair?

Not so long ago economists told us that the safety net erected by FDR's New Deal would help to limit any slide into recession. But we took much of that apart. And the Bush Administration, so convinced that the market would always fix itself, decided that the proper market oriented solution was to add questionable bailouts to tax breaks for the same people who obviously didn't do what they were supposed to. Now wiser economists will have their hands full trying to fix an economy in full retreat. And any hope of restoring a fair deal in American life will be limited by the huge and completely unnecessary debts left by the outgoing Administration.

The dream and the hope that President-elect Obama represents will need a lot of help from all the rest of us. I wish him, and us, good luck.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

November 11, 2008: Welfare, Workfare and Frozen River

My wife and I recently saw Frozen River along with a high school classmate of mine and her husband. As we left the theater, Carl expressed some of what had struck us all. I can't quite quote him, but essentially Carl said, "Wow, that's what the poor are driven to; they were all good people but they were all desperate."

That was no surprise to me. I had spent several years in poverty law practice and I had a sense of what desperation does to people. Many of the men I represented were obviously dying from the emotional blow of joblessness. The women were more practical but not necessarily any better at getting food on the table. And I remembered Barbara Ehrenreich's experiment at living on minimum wage jobs. She found herself, and many of the adults she worked with, homeless and living in their cars, if they had one.

In the 1930s, we came to understand that market forces beyond the control of ordinary people threw many Americans out of work through no fault of their own. But more prosperous times left many who did not understand why everyone couldn't find work. America grew tired of welfare for the poor by the 1980s, when we began to trade it in for welfare for the rich.

There was another solution that New York and some other states tried - we called it workfare - essentially, the state placed people either in private jobs or in government work. Workfare was much more acceptable to many of the people who condemned welfare. But workfare was attacked by the unions which were afraid of losing jobs to lower paid workers, and by lawyers for the poor. There were indeed abuses. I remember a case in which a state worker insisted a young woman take a job as a stripper until lawyers for the poor took the welfare department to court. And workfare certainly gave bureaucrats power over people's lives that could easily be misused.

But the result was that we simply left people to their own devices in a market that was becoming increasingly inhospitable - the available jobs required more training, were harder to get to or required having a car, and unskilled jobs gradually disappeared. That was a recipe for disaster, for depressed areas to sink further into hopeless, dangerous places. And then we all reap the whirlwind. Safe streets and communities aren't free, and, as we ought to understand from watching the carnage in the Middle East, cannot be achieved merely by prosecutors throwing the legal book at people.

We have to create a world in which people can put food on the table and have reason to believe that tomorrow can be better. It's been a huge price to pay, but I hope in these hard economic times we can generate the understanding and compassion needed to find better ways of rebuilding a safety net, and let the president-elect and the new Democratic Congress know that we're ready.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

November 4, 2008: Election Day

I want to shed some tears over the mechanical voting machines we have been using in New York as long as I've been alive. It's not that I can't detect the problems. I've walked out of the voting booth and realized that I forgot one or another of the various contests or ballot questions. I am also well aware of the differences in sound. There's a different clack or cling if you pull the levers for the straight Republican or Democratic ticket. Even the individual lines have subtle differences. Someone outside the booth could figure out who I'm voting for though no one has ever offered or threatened me because of my vote.

And when all these machines were created, unscrupulous partisans found lots of ways to falsify the count. But election law and election day practices have adapted. There are now standard tests to make sure the machines return accurate counts of our votes. The machines are checked at the start and then kept under watch. As a result, we can feel relatively confident that the votes are accurately totaled - at least as long as there are poll watchers to check. And once checked, these machines are very reliable.

Following the disputed count in Florida eight years ago, Congress passed the fraudulently named Help America Vote Act known as HAVA. It should have been called the How Can We Make it Easier to Steel Elections Act. All around the country, states and counties have been buying electronic machines. We all use computers and they all seem to be very accurate. So people all over the country have assumed that computerizing the election would make it safer.

Only the people who build, program and service computers disagree. Try to find a computer engineer or programmer who thinks these new machines will be an improvement. I dare you. I've been on the website of the IEEE, which used to be known as the Institute of Electrical and Electronics Engineers, Inc. They have made it very clear that computers are a black box into which all manner of frauds can be packaged. What terrifies the computer engineers is that there is no way to check the programs in advance.

The problem goes well beyond the copyright restrictions which have allowed some of the suppliers to prevent anyone from looking at and trying to check the programs for code that would destroy the accuracy of the vote. We've all gotten used to the reality of worms, viruses, trojan horses that have threatened our computers at home and in our offices. Various fraudulent routines can be buried in the programs of these computers. They could be installed at the factory. But what the computer engineers are telling us is that there are no known ways of checking for these fraudulent pieces of code. None. You can't look at the code in the morning, watch the voting machines during the day, and be sure of the vote at night. This is not mechanical. It doesn't work like a machine.

It works according to code. And the only way to know it has gone wrong is when it's obvious. Like the computer voting machines that have lost thousands of votes or registered a multiple of the votes cast.

That's why every computer expert insists on a paper trail. That's why the computer experts tell us the best solution would be to have people mark paper ballots that can be run through off-the-shelf scanners. That way there is always a reliable paper trail against which the votes can be audited.

Barring the use of paper ballots with optical scanners, the only hope is a landslide so large that any fraud would be obvious. And the first order of business of the new Congress must be to fix H.A.V.A. before it can torpedo our democratic system.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

October 28, 2008: Two Local Debates

Albany Law School recently held a pair of candidate debates. One was for the major party candidates for Congress. We heard a businessman tell us he wanted more tax breaks for business. Big surprise. And we heard a legislator and state worker tell us he wanted to bring us all together. We've heard that before. I left that debate thinking the best reason either candidate gave us to vote for them was simply the party label - at this point in their careers neither gave us reason to believe they would add to the depth of understanding of social problems in Congress.

The other debate was between the candidates for District Attorney in Albany County. The candidates had radically different conceptions of the office. David Soares defined the objectives of his office as reducing crime and strengthening the safety and outlook of the communities that make up Albany County. He kept pointing to work his office did in conjunction with community leaders and organizations. They found ways to turn people away from crime instead of sending them to the school for crime that our prisons have become. Soares kept pointing to ways to head off crime before it happens, to change the incentives so that people have better opportunities. On another occasion, he pointed out that the kids who are selling drugs actually get very little from it so that there is an opportunity to turn them into law abiding citizens with decent entry level jobs. Soares has worked with community leaders to have guns turned in to get them out of the community where they are likely to hurt people.

Roger Cusick wanted to prosecute more people and kept attacking David Soares for that broader understanding of his office. He kept repeating that the job of the District Attorney is to prosecute people, and nothing more. The D.A. should become involved after crimes have been committed, and then send the culprits away. That's the job. There isn't anything else. And Soares should leave crime control to other agencies.

Soares came to office four years ago saying he wanted to work for the repeal of the Rockefeller Drug laws. Decades of a get tough on criminals approach had not been working. David Soares saw the flaws in that approach and wanted to try some new ideas. His approach has the backing of research that has been done in criminal justice programs all over the country which have assessed the costs of the throw-the-keys-away approach and the opportunity for new and more effective strategies.

The differences between a bureaucratic run-people-through-the-courts system and a visionary approach to fighting crime and protecting communities are stark. But there really can't be much of a debate about the objective. The major purpose of fighting crime must be safer homes and streets and happier, more productive communities. Cusick's attack on Soares for trying to get to the root of the problem rings very hollow.

David Soares' approach to fighting crime is the wave of the future. Albany has the benefit of some of the newest and best thinking about fighting crime. We should be proud of it.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

October 21, 2008: The Execution of Troy Davis

I read with shame, anger and disappointment that the U.S. Supreme Court rejected the appeal of Troy Davis. Troy is scheduled to die on October 27. It is the kind of case that makes me shudder about our legal system for handling criminal cases, and about the death penalty.

Some years ago Justice Harry Blackmun began a portion of a dissent with the words *Poor Joshua.* That must have seemed to many people like an improper injection of personal feelings in a case that should be decided *on the law.* Their position is that justice is not a principle of American law. And that judges have no obligation to pursue justice. Blackmun's position was that justice, and concern for what the law does to very real people, is and must be a part of the law. And that judges are obligated to be careful with the ways they craft the law because of what it does to real people.

The problem with the Troy Davis case is that the vast majority of the witnesses have recanted their testimony. Those that did not got breaks from the prosecutors. More, there is now reason to believe we know who actually committed the crime for which Davis is scheduled to die.

His death will certainly convey the awesome power of the state and of the death penalty. What it will not convey is justice. Or the conviction that anyone in office cares about justice. Pick someone up, promise a group of witnesses you'll drop charges against them if they implicate Davis, and then these prosecutors and judges seem to think their job is done. Somehow Troy's lawyers should have convinced the jury regardless of whether the witnesses lied. It's all a game. He lost. Stop crying.

That's not a vision of law to be proud of. It makes my heart ache.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

October 14, 2008: Not for Ourselves Alone

I spent much of Thursday praying and meditating in Temple during the Jewish Day of Atonement. As our prayer book tells us, "Not for ourselves alone do we pray ... but for all (God's) children." We prayed "that our nation may be to the world an example of justice and compassion."

Years ago when we confronted the Communists in Korea, our Armed Forces studied the methods the Chinese and North Koreans used to brainwash captured soldiers. The Communists had done everything they could to leave our soldiers disoriented, desperate and psychologically defenseless. By studying their methods we hoped to prepare soldiers to resist. When we moved into Iraq and Afghanistan, we took out that playbook, removed the words indicating that these were the methods used by the Communists, and used their methods ourselves.

Despite what we have been told, many of the prisoners are innocent of any wrongdoing and could not be turned over to any fair tribunal because it would quickly be clear that we had no evidence against them, that many had been turned over by bounty hunters for personal gain, that others had been picked up entirely by mistake, that still others had simply been treated as suspect because of their nationality. Instead of compassion or concern for justice, we held on to people even though those in charge realized that they had done nothing, were not even hostile to the U.S. when they had been picked up. We put them in solitary confinement and subjected them to torture on the theory that they might know some useful tidbit. Our Administration made it a policy to practice the most vile kinds of racism and has resisted every effort to provide the most ordinary kinds of justice - charges, a hearing, a lawyer. Even now it is doing everything it can to delay allowing judges on American soil from examining any of the cases lest the total lack of reason to hold these men become obvious.

Many American lawyers have struggled to find ways to help. First they could not even find out who the prisoners were - the government said it was protecting the "privacy" of these men while they were chained in painful positions in solitary confinement unable even to talk with anyone except their inquisitors. Eventually some of their families found lawyers who knew how to find human rights lawyers in this country.

Our lawyers then were able to use ancient procedures to represent men on behalf of their families. They fought a multi-year battle winning repeatedly in a very conservative Supreme Court. But still few of the men have gotten hearings and the Administration continues to delay and disobey.

Some of my colleagues and students are working on a brief to the Supreme Court asserting that those who caused the infliction of torture on those we held prisoner should be responsible for their misbehavior. Lawyers on the staff of the ACLU, the New York Civil Liberties Union and the Center for Constitutional Rights among others have been involved in these cases for years.

Some of our countrymen apparently believe that we must choose between being tough in self-defense and being just and compassionate.

It's a choice I cannot accept. America cannot be a light to the world while behaving like ruthless totalitarians. Even if it could, I refuse to lower myself or my country to the ethics of the Communists. All of God's children are entitled to justice and compassion. That for me is the preeminent moral issue of our time.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

October 6, 2008: Campaign Slander

There's positive campaigning, negative campaigning, and slander.

Governor Palin has been saying that Obama has consorted with terrorists because a former member of the Weather Underground, which was active several decades ago, and who is now on a university faculty, served on several community boards on which Obama also served.

Virtually every lawyer knows someone who's been convicted of something. So let's ban the lawyers. That's probably true of every priest who takes confession. So let's ban the priests. And those churches that make a point of extending a hand to help rehabilitate people. And those of us went to school with someone who went to jail? Or know someone on the block or relatives who did?

I know ex-cons who have gone straight and are making very positive contributions in their communities. At law school, a future member of the Chicago 7 fixed me up with a date, a lovely young woman trying to make it in the theatre. What does that mean about me? And I too serve on a board with an ex-con. More than that, a person I respect, who has been given awards for the contribution he is making to society now. Should I shun him? I thought it was a virtue to give people a chance to reform, which of course means not shunning while they try?

In a court, you are not entitled to make statements that are irrelevant and prejudicial. Any judge worth his or her salt would angrily denounce that kind of allegation. The courts are very clear * we want to know what the parties did, not what someone else did.

What do these slanders mean for civil liberties in the event McCain and Palin are elected? The Constitution bans the corruption of blood * punishing someone for the sins of someone else in your family. But if someone in your family made a mistake and paid his or her debt to society, is government entitled to put you on a no-fly list and prevent you from traveling? If you have relatives in the old country whose leadership the U.S. decries, do you suddenly turn from refugee to pariah? If you went to school with someone who turned to crime are you also a danger to society. And if you see him on the street are you obliged to dis or taunt him at risk to yourself or can you cool it and make like no problem while going about your business? If this guilt by merely knowing or having to interact with people in the community is grounds for action against you, none of us are safe.

It was Jesus who asked who was so pure that they could cast the first stone. Now McCain and Palin insist that those who merely know and interact with someone in the community are tainted. I guess we're all guilty. No good works if it means helping people turn their lives around. No community involvement if it means having to work with the people in it.

And what does all of this mean about the character of McCain and Palin? That they're too pure to deal with people they dislike? Or that they are prepared to treat their word as worth only what it can get them. The straight-talk express is obviously nothing more than a campaign lie. And that is far more serious and disqualifying than Obama's willingness to grapple with the world and the flawed folk in it, which means all of us.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

September 30, 2008: McCain versus Diplomacy

McCain has been pounding on the theme that we have no business talking to Iran. They are the axis of evil. We are the good guys. There's nothing to talk about.

Of course no lawyer could take that position. For our clients' sake we can't refuse to talk to people we don't like or even people we believe are trying to hurt our clients. It's our job to do the talking and to look for solutions. Sometimes we discover solutions that aren't apparent at the outset, ways that we can get things done for our clients without the time and expense of lawsuits. And even when we are in lawsuits, we still have to talk to the other side. The opportunity to settle a case on advantageous terms is never over until the judgment is made and paid.

And then there is that thing called the State Department. The State Department would have nothing to do if it could not talk to countries we oppose. It's their job to open lines of communication. The problem we had in Iran in 1979 was not that we talked with the Shah, but that we avoided talking with anyone else. That's why we were blindsided by what everyone else saw.

We need to be in Iran with eyes and ears, with consuls who can see and hear and talk to lots of people. We are cutting off our noses to spite our face. But McCain just doesn't understand.

And it is helpful to understand that the Middle East is a bargaining culture. Over there we bargain for long periods over everything, a carpet, a suit, whatever. And we drink some tea. They start where we think they are being outrageous. We low ball a counter offer. Then we come back tomorrow for more tea. What McCain proposes is simple ignorance of a foreign culture and inability to take advantage of the possibilities it offers. He just doesn't understand.

It's McCain's naivete that he can't understand anything except guns. We don't need a president who never managed to outgrow backyard brawling and now wants everyone else to do his fighting for him with their lives on the line. We need a president with maturity and brains.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

September 16, 2008: McCain's energy policy

McCain, like most politicians, knows how to tell the people what they want to hear, but he seems to have no idea how to deal with the people's problems. His suggestions for global warming and energy sufficiency are simply daffy - he can't be serious.

McCain has been gaining traction with his promise to authorize more drilling for oil. At the same time he claims to agree that global warming is a problem and that we have to address it.

Global warming of course is playing a large part in shaping the hurricanes and droughts that have been plaguing us. Some thoughtful state governments are trying. A little known office in New York is trying to deal with coastal management. New York has approximately a thousand miles of sea level coastline - both sides of Long Island and the Hudson up to Albany. They understand that there will be a rise in the ocean which can no longer be held back, so they are trying to plan for it.

These are huge problems which none of us can control on our own. I suggested to an engineer in New York City that his house, at eight feet above sea level, was too close to the rising waters. He responded that if the sea level rises it will cause so much damage, drought, inundation and force so many people to move that there would be no point in his moving. I doubt most people understand how widespread and catastrophic these problems are likely to be.

Certainly McCain doesn't. Rising gas prices should certainly be met by tax relief for those least able to deal with it, and with policies designed to help people reduce their consumption of greenhouse gases.

Businesses are already economizing on transportation - growing and producing things closer to home. That means less global warming from burning oil to move things around. More and more businesses are designing green buildings to conserve energy and use the sun for heat and power. These changes are positive and they are pushed by the rise of the price of oil.

Republicans are supposed to believe in the market. I think there are lots of things wrong with markets. But even when they help, here is the Republican nominee suggesting that he would intervene to prevent the market from helping us deal with the problem.

The rise of the price of oil by itself will do too little too late. We need more thoughtful government policy, like this state's investment in coastal management. But we also need to resist squashing helpful trends.

But then it's not clear if McCain understands the problem or if he does, whether he is putting his own election ahead of the protection of the American people. Obama may not be telling us what we want to hear, but he clearly understands what has to be done.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

September 9, 2008: McCain's Daffy Economics

Sometimes I wonder if politicians have any idea what is going on. They are specialists in telling people what they want to know, but few seem to have any idea how to fix the people's problems.

McCain's suggestions for the economy are a cartoon - he can't be serious.

The country is in recession, unemployment is going up, people are losing their homes and McCain offers - a few cents off the price of gas and lots of benefits for his rich friends. That is not a program for working Americans.

Even if he got those pennies now, it would hardly address the seriousness of America's economic difficulties. But any pennies are years in the future once new holes are drilled and the oil brought to market. And tax benefits for Friends of McCain are likely to do little if anything * with the economy tanking, any extra cash is more likely to be invested in China than at home.

And as a fix for Social Security, McCain offers - the right to invest in that same tanking market. If anything should have made clear what a bad idea privatizing social security is, it is a market in which people are losing money. And now he wants to put every American in the position of trying to be an expert in the market and incur fees in the process. That's a prescription for elderly paupers, exactly what Social Security was designed to prevent. There is a reason why so many state pension systems manage the funds with care for the benefit of the retirees.

What problem is McCain trying to cure with such daffy ideas. The only conceivable answer is to get more campaign contributions to make up for the loss of the Tom Delay - lobbyist-contributor machine. Some reformer.

McCain is studying economics, a subject he has told us he knows little about, at the feet of corporate CEOs like Carli Fiorina who headed Hewlett-Packard. An economy of, by and for CEOs is what got us into this mess. Obviously he hasn't figured out what has been happening, and that the self-interested lobbying of the wealthiest people in America has not been with the interests of the vast majority of Americans at heart.

It would be nice to have a president who knows what he's talking about.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

September 2, 2008: Of Politics and Hurricanes

Three years ago, as Katrina hit New Orleans and the Gulf Coast, I put aside remarks I'd intended to make, unable to take my mind off the hurricane, and I delivered what would prove to be my biggest error as a commentator.

Americans were lucky, I told you, because a developed country like ours had governments with the knowledge and capacity to deal with natural disasters. I talked about the Weather Service, the Army Corps of Engineers and the various efforts to get people out and then help them get back on their feet. It was very different, I thought, in Indonesia and Thailand which needed foreign help to emerge from the tsunami that had only recently struck them both. My mistake was very sobering.

As Gustav took aim at the Gulf Coast, the Administration wanted to show that it can govern well, that it can handle hurricanes. Even so, it continues its mantra that government needs to do less, to get out of our way, to leave our world as little governed as it can.

That mantra of downsizing and deregulation is the mantra of anarchists, the feared leftists of an earlier age. Governing well while despising government doesn't fit together well. Some in the Administration have been learning but still miss the central contradiction. Downsizing leaves us without the resources to deal with our problems, leaves our roads and bridges ready to collapse. Downsizing and deregulation leave us in the jungle, vulnerable to natural and manmade disaster. Indeed it is man who let's nature wreak havoc on us all. Handling disasters should be ordinary government behavior, not high politics.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

August 26, 2008: Loose Cannon in the Ammunition Dump

McCain likes to present himself as the one with foreign policy experience. But right after 9/11, Senator McCain called for an invasion of Iraq and Iran.

Of course, not a shred of evidence was available suggesting that either Iraq or Iran were involved. Apparently he didn’t need to examine the facts. He was prepared to commit American soldiers to fight based on his instinct, his gut feeling. And that gut feeling has turned out to be just as unreliable as prejudices and stereotypes usually are.

This is a difficult and complex world and its problems are not resolved by a sloppy and careless march to war. ?Have enemy, will shoot.” Fighting the wrong enemy doesn’t solve real problems. Fighting the wrong enemy obliterates opportunities to make real progress.

Foreign policy that isn't carefully thought out can have disastrous results. The American Embassy in Tehran arranged a coup against a democratically selected Iranian Prime Minister in 1953. That’s not a liberal accusation; that was the proud claim of the Administration that pulled it off. The Iranians never forgot. And their seizure of our Embassy in the aftermath of the coup that unseated the Shah led to a generation of struggle between the US and Iran. That is still playing out in the world - the seizure of the Embassy turned the US and Iran into enemies, and the revolt against the US supported Shah radicalized many Muslims and gave the Iranian leadership a powerful position in the Muslim world.

Foreign policy by gut instinct is a foreign policy of ignorance, without careful planning and execution. A foreign policy by the gut is a moving target, too unreliable either for our own diplomats or for our friends.

McCain’s "experience” has taught him all the wrong lessons. He’s a maverick all right – a loose cannon in an ammunition dump.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

August 19, 2008: Is McCain a victim?

Recently I commented about the personal stories that play such a big part in American political campaigns. This week I want to focus on one of those stories.

The story we are constantly reminded of is that he was an American pilot shot down over Vietnam, kept as a prisoner of war in savage circumstances for several years, and that he survived. My heart goes out to him and to servicemen and -women who have paid the kind of price he did. But what is there in that victimhood that makes him a worthy president?

As a country we have become tired of many claims of victimhood. Some will conclude the country has come to its senses and others will conclude that the country has lost its heart, but no one from any political stripe argues that victimhood is a reason to believe someone is an expert at the tasks needed for running a company or running the country. At most victimhood may justify some compensatory relief, some effort to put one in the position one might have reached but for the disadvantages. But president?

OK but let's be consistent. There are lots of people in this country that spent as many years on streets with violence all around, where the most promising young people have been cut down by drive by shooting. They're victims too.

Victims for president! Yeay. And I should hand out A's by the number of hours my students study rather than the accuracy of their answers. Just please keep them away from clients. Sorry but the victim story doesn't move me at all as a qualification for high office. And by the way, the military doesn't jump rank from pilot or POW to Chief of Staff. There are all the steps in between. That's what we should be focusing on, not the story of McCain as victim. Or the assumption that since he's been in battle, he knows how to run an Army. That's just sentimental nonsense. And the McCain claim that pointing out the difference is unfair hardly shows good judgment on the part of one who would be president. Just the willingness to throw some flim flam in the eyes.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

August 12, 2008: Threats Against Iran

Have you thought about what you would do if you were in the Iranian leadership? The American president is making serious threats.

America is fighting wars on two of Iran's borders, Iraq to the West and Afghanistan to the East which lends credibility to American threats. The UN is imposing sanctions and nearby Russia has invaded Georgia. It's a dangerous world out there. What should Iran do?

Think about it. The cold war wasn't ended by threats from Ronald Reagan. It was Gorbachev's realization that Reagan, and America, weren't trying to destroy Russia, that there truly could be peace. In the absence of that conviction, Gorbachev would have had no choice. De-escalation and peace require both mutual confidence and mutual deterrence. Sabre-rattling for home town audiences makes a mess of international politics.

Iran is a very large country with a sizeable population and a modern military. No Iranian is fool enough to think they can defeat America. But they can inflict a great deal of damage. And if the president believes Iran has nuclear weapons, Iran would hardly be out of its mind to think that would protect them. An Iran without nuclear weapons is a mere pawn in Bush's geopolitical thinking. But a nuclear Iran is a nation to contend with.

And how about the threats coming from these shores. How do you react to threats? Do you back off because it's safer. Or do you respond with anger and bravado? More important, perhaps, most politicians do not believe the public will accept a politician who counsels backing down. Having lived and worked in Iran, I can tell you that Iranians are no different in that respect. Heating up the rhetoric is more likely to cause Iran to shift power to hardliners, and to cause everyone there to want to get tough with America. The difference between the way Bush treated North Korea, which had nuclear weapons, and Iraq which didn't, underscores the point from the Iranian perspective.

The more menacing this US president, the more the Iranians are likely to feel that they have to hold on to nuclear weapons. The possibility of inflicting serious damage on US interests is their strongest defense.

Iranians remember, even if few Americans do, that the Eisenhower Administration launched a successful coup d'etat against a democratically elected Iranian prime minister, and publicly took credit for it. The very real anger and distrust of American government from that coup is still playing out * even while the Iranian people tend to be very well-disposed toward unofficial American visitors.

Bush has turned down opportunities for rapprochement with Iran. The Russian occupation of part of Georgia creates another opportunity for rapprochement with Iran if Bush were willing to seize it. More likely, the best we can do is to block this president's ability to make any more Middle Eastern disasters. He's already done enough.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

August 5, 2008: Economic Nonsense in NY

Governor Paterson tells us New York has to live within its means because the economy is in recession. In other words, he's still snookered by the so-called supply siders, the voodoo economics that has become conventional, what everybody thinks they know. According to this nonsense, all taxes and all expenses are equally bad. Nothing could be further from the truth.

The Governor*s plan means that the state will speed the contraction of the New York economy. The reduction in state expenses will be multiplied as it tears through New York, taking more jobs and businesses with it. The wrong remedy at the wrong time, as we should have learned before the conservative ideologues succeeded it putting blindfolds over everyone*s eyes.

New York should be getting smarter about both taxes and expenses. The fundamental policy should be investment, in the kinds of things that will make New York a better climate for further investment by private business, that will make captains of industry want to be here, and that will make it easier for business to stay. We have seen how investment in state universities, particularly in science and math, brought investment to Tech Valley in the Capital region.

What taxes are acceptable depends on what the state does with them. We ought to be doing payback accounting for budget items * from patent shares for supported research, from services in exchange for scholarships, from new industries spun off, or from future costs prevented, instead of responding mindlessly that there is no money now. Large parts of upstate New York are almost isolated except via lengthy highway trips but New York could invest in high speed rail to take the sting out of the departure of some air carriers and help to make a cleaner, more liveable, New York.

New York could be a magnet. But we have forgotten what the nation*s founders knew, that government is not the enemy - government can be a tool to spark the economy.

The Bush Administration has been mortgaging the future for wasteful expenses that will make life much harder - the foreign policy fallout from its misadventure in Iraq and mistreatment of the detainees; the domestic fallout from taking productive young people away from their businesses, sending them to Iraq and bringing them back hurt and crippled; its insistence on protecting big oil and foreign oil producers. Borrowing to do those hurts twice - the policies hurt and the bill for our self-inflicted wounds is huge. But borrowing during downturns to expand the economy is doubly beneficial - the expenditures can help the economy in the short term by putting people to work, and in the long term by creating the conditions for further investment.

It is not the case that all expenses will help. Some are wasteful, or have their greatest effects outside New York State. And there are some legal hurdles as well. But the hallmark of sloppy thinking is the idea that since some taxes, expenses or debts are bad, then they must all be. That is self-destructive mindless nonsense.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

July 29, 2008: What we want to know about our candidates

Every candidate has to have a personal story. Obama was the son of an African immigrant and an American mother who overcame all the obstacles involved. Hilary was a woman fighting in a man's world for the top job. McCain was a POW. But what does any of that have to do with running for president?

I think there are two answers. First we want to like our presidents. Or we want to be fooled into liking them. So they have to show that they grew up like us or that they grew up with us or that they are like us - they speak our language, ride our kind of vehicle, and eat our kind of food. I've never recommended a lawyer or promoted a colleague that way and I'm not going to vote for president based on which brand of hot dogs a candidate eats. I don't want a candidate to show me he or she can do my job. I want them to be able to do their job.

I would have had very little in common with Franklin Roosevelt, a patrician with a golden spoon in his mouth and terrified of his mother.

But thank heaven my parents voted for him repeatedly. They didn't want him to be like them; they wanted him to work for them with all the intelligence and savvy he could muster. And that picture of nice guys - I suspect that anyone, anyone at all, who manages to claw his or her way to the top is going to have some traits that will not be very nice. And people's roots don't tell you where they think their bread is going to be buttered and who they are going to work with. The lessons people learn from those roots aren't automatic and the assumption that people with the same roots will think alike is nonsense that hides truth.

The second reason people, some people, like to know a candidate's story is because they think that it tells them something about their ability. But these stories are not about their professional competence; they are about how they handled very different things.

There's a learning curve in any job. And the very different things you've learned in another job don't easily carry over. In my profession, people can be very good at one kind of legal task and very poor at another. We've even created some rules of professional responsibility that require attorneys to know their limits, what they are and are not prepared to handle, and to advise clients accordingly, declining what they are not prepared to handle. The story of their background becomes ancient, and irrelevant history, once one has become a professional and developed the skills on which one will rely.

So while America seems to want to know where people have come from, I want to know where they are going. I want to know who they are working with. Who they are leaning on. What their political strategy is for success in office. And I want to know their outlook and their understanding of economics and diplomacy, not just that they ought to understand something because they were there, when they most obviously didn't learn a thing.

So give us all a break and stop the storytelling and let's get serious about the big issues.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

July 22, 2008: Mortgage Foreclosures

I regularly teach law students about the mortgage moratorium during the Great Depression. Minnesota basically told the banks to wait. It was a 5-4 decision with the four dissenters writing that the Court had dishonored one of the prohibitions in the Constitution by impairing the obligation of contracts. But economists made a different point. When the economy was working well, an individual farmer would generally succeed or fail based on how well he managed the farm. Occasional bank foreclosures did no great harm – there were plenty of opportunities to do something else. But when the market turned against them all, it dwarfed the results of well run farms. Even more important, mass foreclosures threatened a cycle of injury that would bring everyone down, the banks included. The Court decided that Minnesota was entitled to step in.

What are the implications of the decision?

One message is that it is important not to compound problems. Mass foreclosures threaten everyone beyond the ability of the Federal Reserve or anyone else to keep the economy affloat.

A second message is to avoid doing things that turn individual problems into large social ones. Over the last couple of decades our economic conservatives have done exactly that with a host of measures that have allowed banks and other financial institutions to charge usurious rates that magnify small problems and drive large numbers of people into bankruptcy and then compound the damage with ever more punitive bankruptcy rules. It turns out that fair rules protect everyone. Rules that make it hard to tell the difference between rapacious financial institutions and the Mafia threaten everyone. That same lesson is true in criminal law too, by the way – rules that sacrifice due process of law threaten everyone with incarceration and even execution, regardless of innocence.

A third message is that the deserving and the undeserving cannot be divided by class or whether people are or are not on public assistance. Actually those in control of large financial institutions get enormous amounts of public assistance in the form of favorable legal treatment and ways to reduce taxes that the rest of us don't. Misbehavior is not a class thing. It's more likely wherever there is opportunity.

We need an America where everyone is supposed to play by the rules, where it is not just the poor and hardworking who have to play by the rules while the people who can do the most damage get to object to all forms of regulation because it's bad for their business if they can't bilk the rest of us..

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

July 15, 2008: Defining the Problem

There are many "solutions" to the energy crisis – drop the gas tax, open new oil fields, make ethanol or expand wind and solar power. But they respond to very different problems.

To lower the price of oil, then drop the tax, expand exploration and open new fields – but they will add to global warming.

To raise farm income, or make it look like the politicians are doing something, promote ethanol. But to make the ethanol, farmers will use petroleum to fertilize their fields and operate their farm machinery, so it won't change oil imports much. For ordinary folk, though, it won't matter a great deal if they pay at the pump or the grocery store. Mr. and Mrs. Consumer will pay either way. To ease their pain, targeted tax relief would be more helpful than shifting their expenses among oil and groceries.

But to reduce global warming, none of that make sense. High oil prices push people toward non-petroleum based energy. That's why President Clinton tried to get a BTU tax to wean us from our dependence on coal and petroleum.

Solar and wind power and conservation would reduce global warming. They can also help India and China switch to greener technology by making those tools more economic, and they would help American companies gain a foothold in that emerging market. Solar, wind and conservation reduce the international complications of our oil dependency; dropping the gas tax would add to it.

So how do we help the ordinary folk of America while dealing with global warming? There are a number of things we can do – expand mass transit, raise the so-called café standards on cars and trucks, encourage conservation, invest in green technology like solar and wind, support research into clean and green technology and give targeted income tax cuts. Remember Jimmy Carter? He was ahead of his time on the gas crisis, as shown by the fact that subsequent administrations did not continue his policies. But Carter understood where we had to go and tried to lead the way toward conservation and clean and green technologies. The question is whether we are ready for the message.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

July 8, 2008: An October Surprise?

Is Bush planning an "October surprise"?

Some of us remember talk of an October surprise in the 1980 presidential election campaign. The fear expressed by Republicans was that Carter would get the Iranians to return the hostages before the election or take some action that would rally the country behind him. There have been allegations that the Reagan campaign competed with the Carter Administration's overtures to the Iranians in order to avoid the return of the hostages before the election. Historians will have to decide that one. But the fear of an October Surprise is a constant in American presidential politics.

Bush has been making warlike noises about Iran. And Seymour Hersh reported that Bush got an appropriation for clandestine activities in Iran. The notion is that our operatives could do enough targeted damage to provoke the Iranian government into retaliatory moves that would seem to justify going to war against them.

Hersh's suggestion is that this is unfinished business for Bush and Cheney. Against all the evidence, they cling to the notion that the Iranians are part of an axis of evil and have to be wiped away.

But there is also the possibility of an October Surprise - that by provoking the Iranians, Bush could swing the election to McCain, who would be more likely to continue his policies and less likely to probe the behavior of Administration officials.

What is particularly galling is the fact that Bush was forced to bring Pelosi and Reid in on the necessary appropriation and they accepted the purpose of the funds. Apparently they were scared that the American people would think that they were patsies in the face of America's enemies if they refused to support dollars for defense.

Politics is unavoidable in a democracy, but sacrificing principle that threatens war, death and destruction, is not acceptable. And if Bush gets an October surprise, they will have sacrificed both principle and the election. The congressional Democrats need some spine.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

Back to the Top

WAMC Newsroom Based Programs:
Midday Magazine
Vox Pop
The Legislative Gazette
The Capitol Connection
Northeast Report

Other Resources:
WAMC Commentators
NPR
BBC
Marketplace
PRI

WAMC/Northeast Public Radio, 318 Central Avenue, Albany, New York 12206
Home | Station Info | Support | Privacy Policy | EEO | Contact Us | Sitemap
Copyright © 2009 WAMC Northeast Public Radio