David K. Shipler's Blog, page 13

By David K. Shipler                              Two days after his inauguration in January 2017, President Trump imposed a hiring freeze on the federal government. Within four months, the Centers for Disease Control had 700 vacancies that handicapped infectious disease prevention and control, and impeded aid to localities for emergency readiness. High-level positions in science and policy went unfilled.                Since then, every Trump budget has sought to slash the CDC’s budget: by 17 percent for fiscal year 2018, by 20 percent for fiscal year 2019, 20 percent for fiscal 2020, and even now—amid the coronavirus—by 15% for fiscal 2021. This after Trump in 2018 dissolved the National Security Council’s global health security team, which existed to manage precisely the kind of outbreak we are now experiencing.                This might seem odd for a germaphobe like Trump. But it fits neatly into the destructive agenda of the extreme right-wing radicals who have taken over the Republican Party, who aim for the “deconstruction of the administrative state,” in the words of Trump’s former chief strategist, Steve Bannon.                More aggressively than any other Republican administration, Trump’s has emasculated regulatory departments, moved to shred decades of environmental and worker-safety regulations, shredded enforcement of consumer protection and anti-discrimination laws, and tried to tear bigger holes in the social safety net.     In addition, Trump, Vice President Pence, and other officials have made sure to plant legions of unqualified political appointees in the upper ranks of multiple agencies, producing a perfect storm of  neglect and incompetence. This becomes a self-fulfilling prophecy by discrediting government as less significant and less effective, which feeds a spiral of discontent and alienation about “Washington” and government in general. The conservative agenda of shrinking the public sector thereby gains public support.     The Republicans’ aspirations flow into most aspects of American life that touch ordinary folks. In his State of the Union Address this year, Trump repeatedly derided “failing government schools,” as if to wish their disappearance instead of funding their improvement. The hallmark of  Republicanism is the resistance to a larger government role in paying for health care, in reducing fossil fuels to combat global warming, in protecting impoverished families from homelessness and hunger, and on and on into myriad areas of what can be called the common good.     Of course, conservative Republicans see nothing wrong with government getting very big when it comes to subsidizing such corporate interests as oil and gas, or with government getting very intrusive when it comes to a woman’s body and her constitutional right to end a pregnancy. Republicans have been content to abandon their fiscal conservatism by cutting business taxes and running up the deficit to harmful levels. And Trump’s conservatism takes a holiday at his resort of Mar-a-Lago when it charges the Secret Service and other officials high fees that go from the taxpayers’ pockets right into his.     But when some catastrophe like the coronavirus pandemic appears, government suddenly looks essential, not only for the substantive action that it can take, but also for the reassurance that it can give through solid, steady, competent, credible leadership. Trump, the perpetual liar and shameless braggart, cannot provide that confidence. His position as president amplifies his ignorance and his danger—as when he said approvingly that sick people could keep going to work.      So his volatile, uninformed fakery has rattled the markets much more than they would have been legitimately spooked by the real economic consequences of the pandemic. His record of governmental destruction has confronted the superb professionals at the CDC with more challenges than they would have faced in any event. The administration's saving grace at the moment is Pence, who comes across as well grounded and sensible. That gain is lost whenever Trump opens his mouth.      In the end, will the Republicans’ wrecking ball be stopped by a bunch of microbes? By November, how many voters will have come to recognize Trump’s colossal failure as both manager and policymaker? How many will finally see through his habit of scapegoating as he points the finger of blame at others?     It’s been wisely observed that citizens care a lot about their health and their money. We shall see.

Judging by polls and interviews, a large minority of Americans have been gullible enough to believe President Trump when he has boasted of big breakthroughs in resolving the trade war with China, the hot war with the Taliban, the twilight war between Israel and the Palestinians, the risk of nuclear war with North Korea, and the disadvantageous trade relations with Mexico and Canada. In reality, the “deals” he has touted are either non-existent (North Korea), one-sided and fanciful (Israel), wishful thinking (the Taliban), or marginal adjustments (China, Mexico, and Canada).                Let’s take them one by one, beginning with the latest.                The War in Afghanistan. To his credit, Trump has consistently sought to withdraw US troops from the endless war, a politically popular position. And he has tried to do it with dignity. His negotiator, Zalmay Khalilzad, is a savvy American diplomat of Afghan origin who displayed painstaking persistence in gradually bringing the Taliban along. The heart of the bilateral deal is a U.S. troop withdrawal over 14 months in exchange for a prohibition on the Taliban giving sanctuary to jihadists, as it did to al-Qaeda before 9/11.But the administration also failed to include the Afghan government in the talks. That would have complicated negotiations, probably pushing them past the American elections. The resulting agreement was fragile and began to shred days after being signed. The Afghan government refused to abide by the provision to release five thousand Taliban prisoners. The Taliban responded by refusing to begin peace talks before the release. The Taliban then attacked an Afghan army checkpoint, and the U.S responded with an air strike on Taliban forces. Far from bringing a settlement to the country, the agreement looks like a fig leaf to cover a U.S. withdrawal for Trump’s political benefit.Israel and the Palestinians. Here, too, a key player in the conflict was excluded from discussion or consideration, which seems to be a pattern in Trump’s methodology. By moving the U.S. embassy to the disputed city of Jerusalem, endorsing Israel’s annexation of the Golan Heights, and declaring Israel’s Jewish settlements in the West Bank legal, Trump guaranteed Palestinian leaders’ hostility and distrust. They abandoned their regard for the U.S. as a mediator and refused to deal with Jared Kushner, Trump’s son-in-law, who was put in charge of formulating what Trump called “the deal of the century.”But the lengthy document is not a deal. It is just a dictation of desires. It is not the product of any negotiation—except perhaps behind the scenes between the Trump administration and the Israeli government of Binyamin Netanyahu. Its calls for Israeli annexation of Jewish settlements and the Jordan Valley, and for a Palestinian state on scattered fragments of land, infuriates the ardent Palestinian nationalists who want a coherent swath of territory. That also draws objections from the extreme Israeli right, which opposes Palestinian statehood, wants to annex all of the West Bank, and rejects the concept of Jewish settlements in disconnected enclaves.The plan focuses on Israel’s legitimate security concerns and would create a demilitarized Palestinian state whose airspace would be controlled by Israel. But it contains scarcely a word about the Palestinians’ security, which is frequently bulldozed by the Israeli army and teams of vigilante settlers.In the Palestinians’ interest, the plan contains a long, detailed list of grants, loans, and other funding for extensive economic, educational, and infrastructure development. All that would benefit Palestinians economically, and an argument can be made for the Palestinian leadership to negotiate with an eye toward those benefits. But Trump can’t make that happen. If you stick your finger in someone’s eye, it’s hard for him to see you clearly as a friend.Trade With China. Trump has a knack for creating a problem and then solving it—or pretending to. When he imposed tariffs on China, and China retaliated, Trump dumped compensation on U.S. farmers who were hurt, lied at rallies that Americans were not the ones paying the import duties, and finally signed what he called a “big, beautiful monster” of a deal as the first phase of what is supposedly going to be a larger trade agreement. An Indiana farmer was quoted in The New York Times as saying, “Instead of giving all the money to China, now we’re going to get some of it back. He had the guts to stand up to these other countries.”Well, not quite. The trade war hurt American manufacturing, which lost 12,000 factory jobs in December alone, continuing a decline in Ohio and other industrial states. From Midwestern soybean farmers to Maine lobstermen, the damage to a Chinese market that had been carefully built up over many years will not vanish instantly. Business hates uncertainty, which is exactly what Trump’s bludgeoning approach injected into what had been dependable Chinese purchases from the U.S. Nothing in his deal restores long-term dependability. Trade specialists deride as unrealistic Trump’s claim that the agreement will lead China to raise its U.S. farm purchases to $50 billion annually, and to an overall total of $200-billion to include oil, gas, drugs, planes, and services. That pledge lasts only two years, and the agreement’s wording is vague enough that Chinese Vice Premier Liu He was able to hedge after signing, saying that Chinese purchases would be “based on the market demand in China.” That is expected to drop sharply because of the economic downturn from the coronavirus quarantines.The agreement also ignores one of the biggest problems in the trade relationship: Chinese subsidies of its manufacturers of steel, solar panel, and other key goods. And it excludes cybersecurity issues.  On the positive side, the accord relaxes certain Chinese inspection and licensing rules that impeded imports of American seafood, poultry, meat, animal feed, and dairy products. It also takes a stab at stopping China’s theft of intellectual property by barring counterfeiting and copying pharmaceutical patents. It ends the requirement that to operate in China, American companies must form joint ventures that transfer technology and trade secrets. This is an excellent provision if observed.The trouble is, enforcement will be difficult, because both countries have eschewed the neutral, international mechanisms contained in earlier trade agreements. This one creates a Chinese-American dispute office, whose solutions can be appealed higher in each government. But if no resolution is found, the whole deal is scrapped and the war of tariffs resumes.Trade With Canada and Mexico. After railing against what he called “the NAFTA nightmare,” Trump fixated on his slogan, “Promises Made, Promises Kept.” So he tweaked the 25-year-old North American Free Trade Agreement, overstated the changes, and gave it a new name, the USMCA, the United States-Mexico- Canada Agreement. Some of the revisions most beneficial to workers were inserted at the insistence of the Democratic majority in the House.The agreement gradually raises from 62.5 percent to 75 percent the content of a vehicle that has to be made in North America to avoid U.S. tariffs, a nominal improvement, since cars can still be assembled in Mexico. In addition, to escape duty, cars must have 40 to 45 percent of their parts made in factories paying at least $16 an hour. But that’s an average, so managers getting high pay can distort the figures. And the $16 won’t rise with inflation.Side letters attached to NAFTA are now part of the main agreement: the right to organize unions, for example, and prohibitions of forced labor, which Mexico agreed to enact into law. The question is how effective enforcement will be.Other adjustments include slightly improved American and Canadian access to each other’s dairy markets, and this blockbuster: Stores in British Columbia are now barred from selling local wines only, and must offer American wines as well. Another change raises to 70 years, from 50, the protection of copyrights, including criminal penalties for the theft of trade secrets, and there’s a bevy of provisions that weren’t relevant before the internet, including a ban on duties on electronic transmissions—but also a problematic protection of social media platforms against lawsuits over user content.These are mostly improvements, just not quite the grand scrapping of NAFTA that Trump promised.A Nuclear North Korea. Trump’s exaggerated confidence in his personal ability to persuade by embarrassing flattery was on display during his meetings with North Korean dictator Kim Jong-un. At a political rally in West Virginia, he told the roaring crowd that “we fell in love—no, really. He wrote me beautiful letters.” At another point, he claimed to have obtained a pledge from Kim for a “complete, verifiable, and irreversible denuclearization.” To some supporters at Trump rallies, this boast translated into certainty as they told reporters that peace with North Korea was one of Trump’s accomplishments.Is Trump as credulous himself, or is he just starring in an unreality show? Whichever it is, the national security interests are not served. Kim has taken Trump and his supporters for a ride, especially in the ruse of theatrically demolishing a nuclear test site just before one of their meetings.If Trump ever listened to specialists who have deep experience with a country or an issue, he would have recognized this as no great concession, since the country’s nuclear program could advance without new tests, the site could be reopened, or testing could be done elsewhere. In any event, missile tests have continued, and the Trump-Kim love affair seems to have ended.Trump's eagerness for international deals would be admirable if he knew how to make them and could see the difference between a substantive success and a mirage. He is betting that enough of the electorate can't tell the difference either. 

By David K. Shipler
                Michael Bloomberg’s tone-deaf paralysis in the Las Vegas debate puts a boldface question mark behind the growing assumption among many Democrats that only he can defeat President Trump in November. One debate fiasco might matter little in the end, given that many more people are seeing the flood of Bloomberg TV and internet ads. And maybe he’ll do better next time. Still, 19.7 million viewers watched his first. But if he gets the nomination, voters will see him extensively, out from behind his screen of commercials. He could use a serious makeover.                His advantage is his money: his generous philanthropy on the liberal side of such issues as gun control and climate change, his decisive contributions to Democratic candidates, the networks of loyalty that he has purchased in cities throughout the country, and his extensive campaign organization. He knows how to direct his dollars effectively, and his ex-Republican centrism will surely appeal to moderate Republicans who are disaffected with Trump.                Yet voter turnout is crucial, and that depends largely on a candidate’s appealing demeanor, vision, and forward-looking agenda. Trump has built a wall of zealotry. To break through it, a Democratic opponent needs a surge of young and minority citizens moved by passion and belief, plus a middle-spectrum of voters in swing states. Right now, Bloomberg looks like nothing more than the candidate of last resort. That’s not enough to drive enough people to the polls.There is a sharp hunger in the land for decency. There is a thirst for honesty, candor, authenticity—all traits that Trump supporters mistakenly attribute to the president. Depending on which citizens you ask, the country is impatient for reform and afraid of it, welcoming and resentful of demographic diversity, idealistic and cynical about politics in America.                Whatever common ground can be found among those contradictions is the platform from which a Trump defeat can be launched. Call it a New Patriotism, a summons to a pragmatic, hard-nosed mobilization of America’s finest qualities and dreams. Is it sufficient for voters to admire a candidate’s brainpower or agree on policy? Not quite, it seems. Support requires “I like, not I.Q.,” Mark Shields noted on the PBS NewsHour. Likable, Bloomberg is not—at least not yet.                Fortunately for him, some of his vulnerabilities coincide with some of Trump’s: misogyny and racial stereotyping in particular. In a more rational world, Trump would have no credibility attacking him for those faults; he and his surrogates will surely do so anyway. So voters who care would have to weigh Bloomberg’s transgressions against Trump’s. It should be no contest—Trump’s are much more egregious.But in this highly charged era, nuance and relativity fade. Change is dismissed as impossible. People are condemned to categories without escape. Bloomberg’s stop-and-frisk policing, his coarse and cruel sexual remarks to female employees, and his refusal in the debate to release women from non-disclosure agreements so they can speak freely are stains that won’t be scrubbed off without a novel effort. He took a good step Friday by announcing that three women accusers would be released from those gag orders.                 On stage, he was clueless. Surely he expected the questions. Surely, as has been reported, he was prepped and advised beforehand. But he didn’t even have scripted answers, much less a compassionate instinct for understanding the strong currents of concern that are coursing through the country he wants to lead.                He displayed little conceptual thinking, no vision except defeating Trump (a worthy cause, of course), and no ability to project an inspiring personality through the cold lens of the television camera. In that, he was no match for Bernie Sanders, who excites a leftwing segment of Democrats even as he worries the rest, who are certain he would lose a general election. Bloomberg turns off that critical left. Given the high cause of defeating Trump, many might hold their noses and vote for Bloomberg anyway. But how many?                It would be refreshing if a politician who did people wrong in the past knew how to disclose and discuss his faults, education, and evolution. Bloomberg’s gestures of apology have been shallow. While he has not been accused of physical sexual assault, he ought to be acknowledging that words in the workplace can be a kind of assault, especially coming from a boss. It would be refreshing if a politician confronted his racial prejudices and described whatever learning and realization he has acquired. If he has taken a journey in attitudes and behavior, it would be healthy for the rest of the country if he mapped the path in the open.So far, though, Bloomberg does not appear to be that sort of politician. If he’s not introspective about himself, he cannot lead the nation into the introspection it needs on race and gender. And then, how large would that crucial black and Latino turnout be for him?                Furthermore, his cavalier evasion of a key constitutional protection deserves scrutiny. His policing practice of stopping pedestrians in minority neighborhoods to pat them down for guns—with no “reasonable suspicion” that they were armed, as the Supreme Court’s case law requires—resembled the tactics I witnessed in Washington, D.C. during many late nights traveling with a gun unit of the Metropolitan Police Department researching a book, The Rights of the People: How Our Search for Safety Invades Our Liberties.Dozens of people were searched to little effect, since hardly any guns were found. In warm weather, young black men were so used to being frisked without cause that when uniformed cops approached, the men pulled up their shirts without being asked to show that they had no pistols in their belts. Imagine the uproar if white pedestrians were randomly stopped and searched.                The violation is not only racial, although that is its main effect. The problem lies also in its disregard for the Fourth Amendment, a centerpiece of our treasured Bill of Rights. Amy Klobuchar, a former prosecutor, alluded to this recently, but the words “Fourth Amendment” have hardly ever appeared in the flood of news reporting on the controversy.                Bloomberg has admitted that stop-and-frisk was wrong. But it is not a confession sufficient in scope to the constitutional offense. Note the pivotal use of the word “secure” in the Fourth Amendment. While Bloomberg cited security from guns and crime as a rationale for violating the rights of innocent New Yorkers on the streets, the Framers saw security in another light.                The Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”                Decades ago, Justice Robert H. Jackson sounded this warning: “Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.”  We need a candidate and a president who understands this, or at least—in Bloomberg’s case—can explain how he has come to understand it, if he has.

By David K. Shipler
                The most stirring statement of any witness in the House impeachment hearings last fall came from Lt. Col. Alexander Vindman of the National Security Council, who opened his testimony with thanks and reassurance to his father, who had brought his family to the United States for “refuge from authoritarian oppression” in the Soviet Union.                “My simple act of appearing here today,” Vindman declared, “would not be tolerated in many places around the world. In Russia, my act of expressing concern through the chain of command in an official and private channel would have severe personal and professional repercussions, and offering public testimony involving the president would surely cost me my life.                “I am grateful for my father’s bold act of hope 40 years ago and for the privilege of being an American citizen and public servant where I can live free of fear for my and my family’s safety. Dad, [that] I’m sitting here today in the US Capitol talking to our elected professionals is proof that you made the right decision 40 years ago to leave the Soviet Union and come here to the United States of America in search of a better life for our family. Do not worry. I will be fine for telling the truth.”                Did Colonel Vindman misread his adopted country? After honoring a subpoena and testifying under oath on President Trump’s “inappropriate” phone call with Ukrainian President Volodymyr Zelensky, Vindman got death threats so alarming that the Army and local police had to provide security. The Army considered moving his family to safety on a military base. And this week, after acquittal in his impeachment trial, an unleashed Trump had Vindman escorted out of the White House and then threatened him (by tweet) with unspecified military punishment. This was part of a widening pattern of retaliation by the Trump apparatus against impeachment witnesses and other independent thinkers in government.The United States is not the Soviet Union, of course, and it’s a good bet that Vindman would never think it was. Furthermore, invidious analogies between Trump and various forms of authoritarianism—fascism, Nazism, third-world dictatorships—are so common that they have lost their bite. So it’s important to recognize that while the American constitutional system is under immense strain by Republicans impatient with its messy checks on their power, the restraints have not yet broken.Nevertheless, to one who lived in Moscow from 1975 to 1979, there is a queasy taste of familiarity in the impulses of Trump and his Republican followers. There is a certain kind of political actor, whether Soviet or American, who cannot stand dissent and debate, who derides facts and truth, who sees all behavior through a lens of personal or ideological loyalty, and whose values extend no farther than immediate victory and the expansion of authority. In this mindset, truth-tellers are “enemies of the people,” to quote Stalin and Trump. Policy differences constitute warfare in which argument and rebuttal are not enough: Opponents must be destroyed through smears, propaganda, and retribution.These actors have no moral brakes. They wield whatever weapons the system permits.In the post-Stalinist Soviet system that I observed, the punishments for suspicions of political irreverence ranged from mild to severe: a formal denunciation by peers, a denial of promotion at work, a rejection of a coveted trip abroad, a job dismissal, a cutoff of your phone, even imprisonment or Siberian exile if your dissent was public and persistent. Certain positions—journalist, history professor, factory manager, hospital director, and the like—required membership in the Communist Party, which was highly selective and relied on proof of political reliability.In the United States, Republicans under Trump—and earlier under George W. Bush—have imposed their own kind of political orthodoxy, conducting litmus tests on applicants for government jobs in the Justice Department and other agencies that are supposed to be non-political. As I wrote in the last chapter of The Rights of the People, Bush administration “applicants were asked ideologically charged questions: ‘What is it about George W. Bush that makes you want to serve him?’ ‘Tell us about your political philosophy,’ whether you’re a ‘social conservative, fiscal conservative, [or] law and order Republican.’” Some in federal law enforcement were grilled on their views of abortion, their voting histories, and their favorite Supreme Court justices, all matters irrelevant to their jobs. Membership in the conservative Federalist Society was nearly as critical to getting hired in the Justice Department in Washington as membership in the Communist Party had been in Moscow.So the impulse for ideological purity did not begin with the Trump administration. Nor did the disdain for the rule of law. Soviet authorities constructed facades of legal-looking procedures for trying dissidents in a highly politicized judicial system. American authorities after the 9/11 attacks constructed charades of legal rationalizations to permit torture, warrantless surveillance, and imprisonment without trial. Republicans, especially under Trump, are on a mission to politicize the federal courts, and Trump derides their independence. The Soviet and Republican purposes are the same: to facilitate the machinery of the state. One difference between Moscow and Washington is that while Soviet leaders were canny and closed, Trump is clumsy and explicit. He has made no secret of his desire to have adversaries arrested—the whistleblower on Ukraine for “treason,” Vindman for “insubordination,” Hillary Clinton for just about anything. These crude slanders have not yet been translated into legal assaults, but what if he wins a second term? He has gradually purged the White House and the Justice Department of officials devoted to the constitutional principles of law and the separation of powers. As he accumulates a collection of adoring sycophants, he distills his inner circle into a concentrated toxin.Trump has been most obvious among presidents in denouncing judges, obstructing investigations (see the Mueller report), and interfering with prosecutors, as this week when he got the Justice Department to rescind its tough sentencing recommendation for his pal Roger Stone. Soviet authorities often determined sentencing behind closed doors in what Russians sardonically called “telephone justice,” a phone call between a judge and a Communist Party official. By contrast, the American judge in Stone’s case, Amy Berman Jackson, an Obama appointee, can afford to be independent; she needn’t curry favor with anyone, being too old (65) to be considered for elevation to a higher court. As the law is manipulated, so is history. Soviet archives were closed and secret, and the portrayal of history was distorted to hide wrongdoing and conform with current ideology. The Trump administration is violating federal law by destroying documents required to be filed in the National Archives. So American archives will now be incomplete, damaging historians’ work. Still, unlike the centralized Soviet Union, America’s pluralism retains diverse centers of authority, so that no single hand can dictate what citizens know of their country’s past.In some respects, the lessons of history seem to be running in reverse, at least to this old Moscow hand. History is usually touted as informing the present, explaining current events in the context of what has gone before. Now, the present is informing the past, as the Trump era illuminates authoritarian impulses in the Soviet Union and elsewhere.It used to be conventional wisdom to see longstanding Russian culture—from the czars through the Communists—at the root of Russians’ affinity for a strongman like Stalin (and now Putin) and for the compliance of Soviet citizens in the conspiracy of myths and lies and injustices. But American culture has no such tradition. Looking at the present Republican adulation of Trump, whose cult of personality would be nearly as dangerous as Stalin’s if the United States were not a constitutional democracy, we might be witnessing traits more universal in humanity than previously acknowledged.During the liberalizing era of Mikhail Gorbachev, I heard this joke in the Kremlin:First Member of Parliament: “What we need is a democracy like Sweden’s.”Second Member of Parliament: “It will never work here.”First Member: “Why not?’Second Member: “We don’t have enough Swedes.”I used to think that you could substitute “Americans” for “Swedes.” Now I’m not so sure.

By David K. Shipler
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.--The Fourth Amendment to the US Constitution                 The FBI, yet again, lied to the court, whose chief judge didn’t do her job properly and then excoriated the FBI. Republicans, who enacted and defended the secret system that permits such abuse, are suddenly in high dudgeon since the victim is one of their own. That’s the brief summary of the controversy over surveillance done on Carter Page, a campaign aide to Donald Trump. Whether something good comes out of the episode is an open question.  There are basically two legal ways for the government to listen to your phone calls, read your emails, search your house, and invade other areas of your private life. One is with a traditional search warrant, signed by a judge after law enforcement swears that probable cause exists to believe that certain evidence of a specific crime will be found at a particular place and time. The other is with a secret court order under the Foreign Intelligence Surveillance Act (FISA), which requires something quite different: probable cause that you are an agent of a foreign power, meaning either a government or a terrorist organization. No crime need be involved, and the standard of particularity is largely waived.                Other differences are notable. In a criminal case, the warrant is eventually disclosed and might be presented to the target at his door if he’s home as police arrive to do the search. He ultimately learns details of the searches, along with the affidavit on probable cause that the police submitted to the judge, so his defense attorney can challenge the warrant’s basis and move in court to suppress the resulting evidence. That check on law enforcement doesn’t prevent all official wrongdoing, but it helps.                 No such transparency exists in FISA warrants. Not only are they issued in secret by judges in a secret court, they are executed without notice to the target and are never disclosed unless the government chooses to use the resulting evidence in a criminal trial, and even then the affidavits themselves are usually considered classified. Occasionally the FISA material is used as a basis for an ordinary criminal warrant, but defense lawyers are usually blocked from seeing the original application.Sometimes the FISA warrants are pried into the open through a lawsuit. Or, in the case of   Carter Page, when the FBI screws up so royally that the Justice Department’s inspector general is prompted to investigate the investigators.                 It was that secret FISA system through which government aimed its powerful monitoring apparatus at Page. And it was that process that the FBI abused, according to the inspector general, Michael E. Horowitz, who uncovered 17 misstatements and omissions in the warrant applications. These were not just careless errors, and they were much more than the “gross incompetence and negligence” that Horowitz called them. They gave every appearance of being deliberate distortions aimed at strengthening investigators’ argument to the court that Page was probably a Russian agent.Nor was this incident isolated. We’ve seen it before. It seems to reflect a culture of intellectual dishonesty among investigators who are so zealous that they filter out facts that undermine their theory of a case. That has undoubtedly led to the wrongful surveillance of innocent Americans by an opaque, clandestine system. Horowitz “has already begun an audit of other FISA applications,” Charlie Savage reports in The New York Times.Significantly, a remedy exists in law that might curtail the practice, if federal judges would only use it.  That is the provision for an amicus curiae (friend of the court), an independent lawyer to defend privacy and civil liberties before the secret surveillance is approved. But judges hardly ever invite those amici into the closed hearings, and there is no indication that one was present when warrants were issued in Page’s case. In fact, according to a footnote in the Horowitz report, no hearing was even held before the chief judge of the Foreign Intelligence Surveillance Court, Rosemary Collyer, signed off on the initial application.Collyer, obviously feeling burned, has issued a public order to the FBI to shape up—specifically, to “inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.” But she takes no responsibility on herself and makes no mention of using outside lawyers to create an adversarial proceeding that might test the government’s assertions.After years of extensive surveillance following 9/11, Congress created the amicus system in the 2015 Freedom Act, requiring a pool of at least five such lawyers with security clearances to stand ready to participate in those warrant hearings. The lawyers have been named, but few have been called. Of more than 1,500 cases heard in 2016, only one amicus was appointed by a judge, none in 2017 for nearly 1,600 cases, and just nine in 2018 for 1,651 applications involving 1,833 targets, including 232 Americans.Typically, then, no competing information about the person being targeted comes before the judge, who sees only what FBI agents and Justice Department attorneys present. Eleven federal judges, appointed by the Chief Justice of the Supreme Court do rotating duty on the FISA court; each one can ask probing questions, reject applications in whole or in part, and modify orders. But the statistics aren’t reassuring: out of the 1,651 applications in 2018, only 30 were completely denied, 42 rejected in part, and 261 modified. We now know that the low rate of rejection is not because the Justice Department’s affidavits are flawless.To do the surveillance on Carter Page, the FBI had to convince the court that there was probable cause to believe that Page was an agent of a foreign power, i.e. Russia. But in making that assertion to get the original warrant and then in three renewals, officials rewrote, distorted, and omitted important facts.For example, an FBI attorney doctored an email from the CIA that might have neutralized suspicion about Page, whose past contacts with Russian intelligence officers figured in the probable-cause assertion. But it turned out that Page had been reporting to the CIA, which told the FBI that he had been “an operational contact.” That was left out of the original warrant application. To renew the warrant after it expired, an FBI lawyer altered an email from the CIA and made it read that Page was “not a source.”                 Agents hid questions about the reliability of reports from the former British spy Christopher Steele that Russia had compromising information on Trump, both financial and sexual. These formed a key basis for the warrant applications, which exaggerated Steele’s credentials—crediting him incorrectly with contributing significantly to an early criminal prosecution. The FBI also failed to inform the court that he had probably been hired indirectly by the Hillary Clinton campaign or the National Democratic Committee.The FBI’s filings did not mention that Steele’s primary source, in an FBI interview, had contradicted “multiple sections of the Steele reports, including some that were relied upon in the FISA applications,” according to Horowitz’s investigation. Nor was the court told that the source disputed Steele’s report that a “well-developed conspiracy” existed between Russia and the Trump campaign. Instead, the FBI described the source as “truthful and cooperative,” leaving the impression that the person “had corroborated the Steele reporting.” And so on.                All those defects in the applications strengthened the impression of Page as a Russian agent. He was placed under government monitoring for 11 months, in precisely what way the public does not know, because—except for the generic term “electronic surveillance”—the specific intrusions are blacked out in the inspector general’s report. Such warrants may authorize agents to plant bugs and cameras in homes and offices; sneak into houses to do secret physical searches; collect the content of phone conversations, emails, and texts; and monitor credit-card transactions, a person’s movements, and the like.                FISA was enacted in 1978 as an innovative attempt to regulate domestic intelligence-gathering in the wake of revelations that the FBI, the CIA, the Defense Intelligence Agency, and other arms of the government had been spying on Americans for their political views—on civil-rights leaders, labor leaders, anti-war activists, and others.                Until Sept. 11, 2001, the law might have worked pretty well. But after planes were flown into the World Trade Center and the Pentagon, Congress hastily loosened it through the Patriot Act. Where the law initially permitted sweeping surveillance only for “the purpose” of gathering foreign intelligence rather than evidence for criminal prosecution, the Patriot Act changed it to “a significant purpose.” That allowed criminal investigation to become the leading motive for acquiring secret and sweeping surveillance powers—an end run around the strict requirements of the Fourth Amendment.                Erroneous assertions in affidavits submitted to the FISA court surfaced in 2000, when the Justice Department admitted to misstatements in 75 applications after the secret court published an unusual opinion on “the troubling number of inaccurate FBI affidavits.” One agent was banned entirely from submitting affidavits, and the FBI tightened its rules—some of which were then violated in the Page case.                In 2004, after the wrongful arrest of Brandon Mayfield, an Oregon lawyer whose fingerprints were mismatched with those on a bag of detonators after trains in Spain were bombed, a lawsuit by Mayfield unearthed FISA warrants that displayed the FBI’s capacity for malicious self-delusion.                After sneaking into his house and law office, possibly planting bugs, and rifling through files protected by attorney-client privilege, FBI agents spun innocent facts into sinister “evidence.” A home computer had been used to research flights to Spain, rental housing there, and Spanish railroad schedules. Very suspicious. But those searches were merely part of his 12-year-old daughter’s school assignment to plan a fictitious vacation. A note in her journal, which agents thought was Mayfield’s, contained a criticism of US bombing in Afghanistan. A phone number in Spain was found written down: the clincher, except that it was the number of an exchange program being considered for their son.                Best of all in this gathering web of FBI fantasy was the discovery that Mayfield’s passport had expired, and there was no record of his leaving the country in the previous 10 years. This information could have been discovered without a FISA warrant, but what happened next illustrates the mindset of the investigator. He made up a scenario and swore to it in his affidavit: “Since no record of travel or travel documents have been found,” the FBI agent wrote, “it is believed that MAYFIELD may have traveled under a false or fictitious name, with false or fictitious documents.”                Based on the fingerprint mistake and the secret warrant, Mayfield was headed straight for prison. He was saved only by the Spanish National Police, which kept insisting that his fingerprint was not a match, and which finally found its real owner, the real terrorist. But his law practice was severely damaged. His lawsuit was settled by the Justice Department for $2 million of taxpayer money.                 To grasp the magnitude of our departure from founding principles, we have to go back to the beginning, that is, to the Fourth Amendment. It was drawn up as a rebuff to the British practice, under writs of assistance, to search entire villages for contraband—an odious habit that enraged colonists and helped light the fire of revolution. “A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle,” argued James Otis on behalf of Boston merchants in 1761. “This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.”                 The technology is new, but the principle is the same.

By David K. Shipler
                Nobody in American politics can beat Donald Trump at the game of coarse insults, name-calling, and personal ridicule. And nobody should try, especially Joe Biden, who needs to keep his poise of dignity and decency if he has a chance of rescuing discourse from its quagmire. Little temper tantrums and macho posturing, provoked Thursday by an Iowa voter’s unfriendly question, are not going to please citizens looking for a return to decorum.Besides, Biden’s not very good at it. An early attempt occurred back in October 2016, when Biden was campaigning for Hillary Clinton. He managed to deflect public attention from his powerful condemnation of Trump’s boast that he could grab any woman’s pussy. Biden called it “a textbook definition of sexual assault” and went on: “He said, ‘Because I’m famous, because I’m a star, because I’m, a billionaire, I can do things other people can’t.’ What a disgusting assertion for anyone to make!”The burning anger in Biden’s face said it all. Then he stepped on his own message by adding: “The press always asks me don’t I wish I were debating him. No, I wish we were in high school so I could take him behind the gym, that’s what I wish.” The partisan crowd cheered, but the more important point was swallowed by the Biden bravado, which became the focus of the news. Biden must have thought he’d scored, because he embellished in March 2018 at the University Miami: “If we were in high school I’d take him behind the gym and beat the hell out of him. . . . I’ve been in a lot of locker rooms my whole life. I’m a pretty damn good athlete. Any guy who talked that way was usually the fattest, ugliest S.O.B. in the room.”Yesterday, Biden bragged again about his physical prowess in a testy exchange with a burly, 83-year-old retired farmer who said Biden was “too old for the job” and accused him of “selling access to the president” through his son Hunter’s payments by a Ukrainian energy firm. “You’re a damn liar, man. That’s not true,” Biden replied. He offered no considered rebuttal, which would have been more effective in the face of the Republicans’ continuing smear campaign.He might have attacked the Republican propaganda machine, but instead attacked the farmer, alluding to his hefty frame. When the man said he watched a lot of television news, the former vice president retorted, “I know you do. And by the way, that’s why I’m not sedentary. . . . Look, the reason I’m running is because I’ve been around a long time and I know more than most people know, and I can get things done. That’s why I’m running. If you want to check my shape, let’s do pushups together, man. Let’s run. Let’s do anything you want to do.” The man said he wouldn’t vote for him, and Biden tried a lame wisecrack: “You’re old to vote for me.”Help!One of these days, the cunning Republicans are going to set up Biden by putting an old-looking guy in the audience, some character who works out at a real gym every day so he can call Biden’s bluff on doing pushups together. The country will see Biden huff and puff and finally give out.It’s doubtful that persuadable voters really want chest-thumping, especially in the general election, where the Democrats have to rally centrists who mourn the demise under Trump of courteous discussion and debate. Biden’s demeanor makes him appear vulnerable to manipulation.  If he is nominated and Trump is able to draw him into a trash-talking contest, with such epithets as “Sleepy Joe,” Biden will be playing on Trump’s home course against an adversary who knows every sand trap and fairway. And Trump has no moral brakes. Biden does. Trump wades in mud holes where Biden probably wouldn’t go, and wouldn’t look comfortable if he did. It’s fair to believe that Trump has acquired a solid base of support partly because he appears authentic—repulsive, but authentic—unlike the usual gallery of carefully scripted career politicians. Lying constantly, he wears candor like a disguise, enough to deceive voters who think they are seeing reality. Those who buy that image won’t go for Biden whatever he does. And if he tries to trump Trump by playing the obnoxious tough guy, he’ll look phony.Whoever becomes the Democratic nominee will face the same difficulty: how to parry Trump’s insults with the strength and wit to mobilize voters, while also representing the promise of civility and even healing. It’s a tricky line to walk, which requires a certain personality and behavior that calls to Americans’ best impulses, not to the crude hatreds that Trump has legitimized, and which have contaminated much of the country’s social landscape.                The electorate is divided along such dogmatic lines that policy choices have mostly been already made. Persuadable voters need something else: They have to like the Democratic candidate, not just the plans and programs. Insulting a skeptical voter does not make you very likeable.

           Previously published by the Washington Monthly.

By David K. Shipler
                After days of impeachment hearings in the House Intelligence Committee, the United States has emerged as a country riven by a clash between cynicism and perfectionism. Americans have grown so inured to wrongdoing that nefarious behavior won’t provoke outrage unless it violates some mythical norm of purity. And so Democrats and their witnesses have been forced to construct a backdrop of national righteousness against which President Trump can be cast in damning contrast.                That shouldn’t be necessary. Trump’s actions should be enough for impeachment and conviction. If the society had a proper ethical reflex, it would be sufficient that he tried to get a “favor” for his reelection campaign from a foreign government, Ukraine, which desperately needs American support against Russia. End of discussion.                  The United States shouldn’t have to be pictured as an unyielding advocate of global democracy and the rule of law, when we have a sordid history of doing the opposite where dictators suit us. Ukraine shouldn’t have to be given the exaggerated label “ally” when it has no such standing in any treaty. The rhetoric on foreign policy shouldn’t have to sound like a throwback to the Cold War, with Washington’s nobility poised against Moscow’s “aggression,” and a pretense that the U.S. bears no responsibility for the rising conflict with Russia.Witnesses shouldn’t have to tout their and their families’ military service to be credible, and the military shouldn’t have to be burnished as flawlessly heroic. Those testifying shouldn’t have to chronicle their devotion to public service. Those born abroad shouldn’t need to sing moving hymns of praise to America as a haven of freedom to speak and to prosper, when prosperity and even freedom, as we are seeing, do not come to all who step onto American soil.But national myths are often useful, because they set high standards to which the country should aspire. The gap between the myth and the reality is one that begs to be closed. So, when committee chairman Adam Schiff rightly seeks to protect the identity of the C.I.A. whistleblower whose report triggered the impeachment inquiry, it should remind us that many whistleblowers—especially under President Obama—suffered catastrophically. Obama didn’t publicly threaten them as traitors, as Trump has done to the unnamed person in this case, but Obama’s Justice Department prosecuted more of them under the scurrilous Espionage Act, for leaking classified information, than in all previous administrations combined. Even those who avoided criminal charges often lost their careers, their pensions, and their financial well-being.This you would not have learned by watching the impeachment hearings, where the myth of perfect whistleblower protection stood firmly against Republicans’ cynical stabs at penetrating the shield of anonymity.Similarly, the United States was pictured as blameless in the fraught U.S.-Russia relationship. As meticulous and intelligent as those professionals were in documenting Trump’s malfeasance toward Ukraine, their uncompromising posture toward Russia gave no hint of insight into Moscow’s concerns about American behavior. This lack is not the mark of sophisticated diplomacy, which relies on understanding the other side’s perceptions and motives, especially since finding common interests between the U.S. and Russia is critical to keeping the peace.Russia has an historical fear of encirclement. In this age of long-range weaponry and high-tech warfare, it seems a geopolitical anachronism. But it’s real enough to have alarmed Moscow when the United States and other Western allies expanded NATO to Russia’s borders after the Soviet Union disintegrated into 15 separate countries nearly three decades ago. The expansion broke a pledge in 1990 by Secretary of State James Baker not to expand NATO if Moscow agreed to German reunification. Within months, however, the promise was fudged and then abandoned by Baker and the administration of George H.W. Bush.NATO is a military alliance, so discomfort would be a mild term for Moscow’s reaction to broadening that umbrella to cover East European territory once in the Russian sphere—including Poland, Hungary, Romania, Bulgaria, the Czech Republic, and Slovakia—not to mention the former Soviet republics of Estonia, Latvia, and Lithuania.Moscow might have shrugged off the move as merely diluting NATO by fictionalizing its provision that regards an attack on one member as an attack on all. It seems fanciful to imagine that the U.S. would actually go to war against Russia to defend, say, Estonia, as nice a country as Estonia is. But that wasn’t the end of the possible expansion. Beginning in 2008, the U.S. and some West European allies began pressing to include the former Soviet republics of Georgia and Ukraine, prompting Russian President Vladimir Putin to warn that if Ukraine joined NATO, it would be placed on the target list of Russia’s nuclear missiles. Then, after an American-backed street revolution in 2014 ousted the elected president of Ukraine, Victor Yanukovych, Putin had enough. He annexed Crimea; sent thinly disguised Russian forces to invade eastern Ukraine; and launched proxy warfare in Ukraine’s Donbass region, which continues today. The moves provoked Washington under Trump to provide Ukraine with Javelin anti-tank missiles and other lethal weaponry, which Obama had refrained from sending. The arms are viewed as bolstering Ukraine’s military capacity, serving as a deterrent against Russia, and strengthening Kiev’s negotiating position in talks aimed at ending the fighting.It is important to see the recent history as an explanation, not an excuse, for Russia’s actions. Putin, who has lamented the breakup of the Soviet Union, appears bent on reassembling much of the Soviet empire and, in the process, threatening the post-Soviet order in Europe. He is trying to put a wounded Russia back on the world stage. That has hardened anti-Russian reflexes in every part of official Washington except the Oval Office, where Trump’s affinity for Putin remains mysteriously unexplained. Ironically, U.S. relations with Russia are worse than at any time since the Soviet Union's collapse.Reducing those tensions was not on the agenda in the impeachment hearings. Among the  witnesses, only Fiona Hill, the expert on Russia who served in Trump’s National Security Council, mixed her warnings about Moscow’s propaganda and military intrusions with a few sentences on the need to stabilize and improve the relationship. Otherwise, the hearings displayed the revived Cold-War concept that the Russian-American competition is a zero-sum game, with every Russian gain an equivalent American loss. This was necessary to alarm the public about Trump’s suspension of military aid to Ukraine, which one official called the front line against a revanchist Russia.But the zero-sum game is a highly questionable assumption, which Trump might parry were he interested enough in acquiring complex knowledge. Russia and the U.S. have overlapping interests in combating terrorism, sharing certain intelligence, calming the Middle East, and negotiating nuclear arms limitations. Those interests are not advanced by pretending that the United States is a pure as the driven snow.

By David K. ShiplerThe latest in a series: Making America Cruel Again
                The United States might be the only country in the world where poverty is considered a moral failing—on the part of the victims, not the society. When conservatives are in charge of government, this judgment infiltrates policy. Republicans move repeatedly to twist regulations around an assumption that the poor don’t want to work and don’t make sound decisions. And when this bias affects children’s nutrition, it can cause lifelong impairment.                In the last year alone, the Trump administration has taken multiple shots at food stamps, now called SNAP (Supplemental Nutrition Assistant Program), which helped feed about 40 million people last year. The latest change, one week ago, would cut benefits by $4.5 billion over five years. Even in a booming economy, one in seven children are in families considered “food insecure,” according to the Department of Agriculture’s 2018 survey, meaning that they weren’t sure of having enough food for everyone.                Research in the rapidly advancing field of neuroscience has documented the severe biological assaults caused by inadequate nutrition during sensitive phases of brain development. Numerous studies, compiled in a lengthy National Academy of Sciences report, From Neurons to Neighborhoods, portray a devastating landscape of cognitive deficiency resulting from nutritional deprivation. The insufficiency of healthy food during a pregnant woman’s second trimester can reduce the creation of neurons, the brain’s impulse-conducting cells. Malnutrition in the third trimester restricts their maturation and retards the production of branched cells called glia. Iron is essential to promote the growth of the brain in size and the creation of the nerve-transmitting myelin sheath around the brain’s nerve fibers. The impact of iron deficiency in a baby, therefore, never disappears, even once the deficiency is eliminated. One longitudinal study that followed children from infancy through adolescence found that they scored lower “in arithmetic achievement and written expression, motor functioning, and some specific cognitive processes such as spatial memory and selective recall.”Teachers reported that such children displayed “more anxiety or depression, social problems, and attention problems.” It is no great leap of logic to see learning disabilities as one result of malnutrition, and a child who can’t do decently in school, who can’t follow half of what a teacher is saying, is more inclined to drop out.For those Republicans who are moved more by self-interest than empathy, it’s worth noting that high school dropouts earn less that those with degrees, pay less in taxes, have more serious medical problems, and are at higher risk of ending up in jail.Yet Trump’s people have sought to saddle the $68 billion-a-year SNAP program with restrictions and cuts to the monthly benefits, which now come on debit cards with declining balances, and typically last a family only two or three weeks. Certain regulations that the Trump administration has either enacted or has openly considered would treat needy Americans with suspicion and distrust. For instance:
·         Officials have considered imposing a drug-testing regime on recipients (although not on farmers who receive huge federal subsidies as part of the same legislation).·         The Agriculture Department, which administers the program, published a rule in July to eliminate states’ option to raise eligibility limits above the federal ceiling, which is 130 percent of the poverty line. Previously, states could get waivers to enroll families earning more if their housing and child-care expenses soaked up a big percentage of their income. More generous housing subsidies would help, because in many parts of the country, where rent can consume 50 percent or more of a family’s budget, the money for food gets squeezed. The comment period on the rule change ended in September; once adopted, it will cut off about 3 million recipients.·         In last week’s action, the administration effectively took away $75 in benefits from one out of every five families by recalculating how housing and utilities costs are figured.·         The Trump administration tried to tighten work requirements in this year’s budget, Congress refused, and officials have gone ahead anyway to partially evade the legislative intent. Since 1996, single able-bodied adults with no dependents, up to age 49, could get SNAP benefits for only three months in a three-year period unless they worked or were in job training at least 80 hours a month. States could waive the rule in areas with acute joblessness. Trump wanted to expand the requirement to age 59 and, more damaging, apply it to those with children over six years old. That was rejected by Republicans and Democrats in Congress. So last December the Agriculture Department did what it could administratively by making it much harder for states to get waivers. ·         In his 2019 budget, Trump proposed replacing half of a family’s cash grants with a food package of cereal, pasta, peanut butter, canned fruit and vegetables, meat, poultry, and other items deemed good for them. Sending such packages to 40 million people would have been so costly and impractical that the idea collapsed of its own weight. But the notion seems borne of a patronizing attitude toward the poor, who suffer from a disparaging stereotype that they do not act responsibly.Clinics treating childhood malnutrition see a broad array of causes. Lack of money is the centerpiece, but lack of knowledge about healthy eating can also contribute to some cases. Health providers find that some parents don’t know how to cook with relatively inexpensive ingredients. New immigrants unfamiliar with American food can be fooled by ads into thinking that Coke and Cheetos are healthy. So can Americans themselves. Lots of junk food is cheap and filling, hence the nation’s epidemic of obesity, which can be a sign of malnutrition.Supermarkets with fresh, healthy food are scarce in many low-income neighborhoods. A child’s food allergies can be baffling without the funds and information required to have a large assortment of choices on hand. Single parents doing shift work can’t keep track of what their kids are being fed by multiple caregivers. Nor do they usually have the orderly life that allows them to sit children down calmly to feed them, or have a regular family meal. In other words, childhood malnutrition is created at the confluence of problems and disabilities that magnify and reinforce one another. They must all be addressed. The cognitive impairment that results cannot be attacked by a country that keeps electing officials who entangle the safety net in a set of punitive impulses.First published by the Washington Monthly.

By David K. Shipler
                For a country ostensibly devoted to the rule of law and worshipful toward its Constitution, the United States is in a peculiar state of dishonoring both. It has a president and a supposedly conservative political party that brushes away the ingenious checks and balances that the Framers devised to restrain authority. It is politicizing its judiciary and entangling its legislature in partisan stalemates while its executive branch evades, ignores, or derides the other branches of government.This could have more than a transitory impact on the dynamics of the democratic system. In resisting the constitutional duty of Congress to monitor and limit executive behavior, Donald Trump and his acolytes are undermining a keystone of constitutional governance. The damage might turn out to be more serious than a phone call with the president of Ukraine, and more lasting than an impeachment inquiry. Conceivably, once the judicial branch gets involved, a “conservative” Supreme Court could codify curbs on the legislature’s authority to subpoena, question, and investigate administration officials. Such cases are now being litigated.How is Congress to enforce its orders? By declaring recalcitrant officials in “inherent contempt” and seeking to have them fined or arrested? That would be an extraordinary step, and nobody seems to know how it would be carried out. Otherwise, though, Congress is defied with impunity, and the system is impaired. The smooth running of government would have to be discussed in the past tense, when it relied on a basic respect for the norms of balance among the branches, when it did not conduct debates across an unyielding divide of political tribalism. The Supreme Court, which has grown increasingly partisan, cannot be depended on. It has already shown its hand by tilting toward executive power and away from the legislature. It allowed Trump to deflect Pentagon construction funds to a border wall, which was expressly denied by Congress. It permitted Trump’s dramatic, unlegislated change in asylum procedures to take effect pending litigation, requiring migrants to seek asylum a country they were passing through first, before the US. Justice Neil Gorsuch, Trump’s appointee, has hailed the separation of powers as the centerpiece of constitutional democracy. But he has a skewed view of it. In speeches and essays in connection with his new book, the examples he has given of its violation point to his hostility toward agencies in the executive branch that must, in a complex and fast-changing world, make regulations to implement the laws that Congress passes. Gorsuch’s thinking looks less like an embrace of checks and balances than a radical, “conservative” rationalization for curtailing the scope of government overall.We need to put “conservative” in quotes because it is not clear what conservatives want to conserve. Not the robust separation of powers, certainly—unless a “progressive” like Barack Obama is in the White House, in which case a Republican-controlled Congress simply obstructs, even against the president’s constitutional duty to nominate judges and justices. Not the orderly due process of implementing laws with finely tuned regulations on the environment, worker protections, pharmaceutical safety, and the like, which Trump has tried to dismantle not with considered legislation but with the flick of his pen.  “All men having power ought to be distrusted to a certain degree,” James Madison told the Constitutional Convention in 1787. He sure got it right. The separation of powers was an answer—necessary but not sufficient. As we are seeing now, the mechanism works brilliantly only if lubricated by broad commitment.Teaching university students in Moscow more than forty years ago, the visiting historian Robert Kelley tried to explain America by saying that if the United States had a state religion, it would be constitutional democracy. He didn’t think the young Soviet citizens quite understood, but Americans would have. Whatever disputes and scandals and injustices had inflicted our republic, we had found common ground in the revered gospel of the Constitution and its prescription for guiding a turbulent, pluralistic society.Trumpism has eroded that common ground. When a president acts as if he is equivalent to the state and thinks that attacks on him are attacks on the nation, he naturally sees treason behind every criticism:The press, protected by the First Amendment, is “the enemy of the people” (borrowing Stalin’s formulation to condemn the defendant to imprisonment or death).The whistle blower’s source on Ukraine, protected by law, is “close to a spy” who should be dealt with the way “we used to do in the old days when we were smart.” (One commentator thought he was alluding to being drawn and quartered, as under King George III.)The impeachment inquiry is a coup.The chairman of a House committee, following the Constitution’s mandate to hold the executive accountable, is a traitor who should be arrested.Impeachment, the Constitution’s remedy for “high crimes and misdemeanors,” would ignite “civil war.” (Is this Trump’s dark, demented call to his armed supplicants?)It would be frightening enough if these were the rantings of a deranged Mafia boss. It would be deeply worrying if they were the frantic, panicky threats of a lone, mentally disturbed president, as they  are. But they are highly dangerous because they find resonance with enough Americans to bring into question the citizenry’s support for the country’s orderly constitutional principles. Our schools are obviously failing to teach new generations the values and principles of the constitutional order.                “Our Constitution was made only for a moral and religious people,” said John Adams. “It is wholly inadequate to the government of any other.”                Putting the concern in a secular way, Judge Learned Hand in 1944 declared, “I often wonder whether we do not rest our hopes too much upon constitutions, upon law, and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no courts to save it.”

By David K. Shipler
                Former Vice President Joe Biden must have had millions of Democrats wincing during last Thursday’s debate as he fumbled his way through a pointed question on racial inequality in schools. His sentences were incomplete, his thoughts jumped around erratically. He revealed, once again, his tin ear on race.But if you distill his incoherent response—which did not directly answer the question of Americans’ obligations in the long wake of slavery—you can see that he actually identified the essence of key problems facing impoverished families and their schools. He displayed deeper understanding and proposed more solutions in a disjointed sound bite than all the other candidates combined. Here is what he said, annotated in italics:            “Well, they have to deal with the … Look, there is institutional segregation in this country. And from the time I got involved, I started dealing with that. Redlining, banks, making sure that we are in a position where--” He doesn’t finish his thought, but he is pointing to banks’ long practice of denying mortgages to blacks and “redlining” poorer neighborhoods out of consideration for loans. That has contributed to entrenched poverty and de facto segregation by community, which has meant that schools have been segregated as well, by race and income. “Look, we talk about education. I propose that what we take is those very poor schools, the Title One schools, triple the amount of money we spend from $15 to $45 billion a year.” Pumping more funds into poor schools is essential to improve kids’ life opportunities. That’s because education funding relies mostly on local property taxes, which create vast disparities in per-pupil expenditures between wealthy and poor school districts. What Biden does not say, and should, is that these difficulties, and others he mentions subsequently, afflict poor whites as well as blacks. There are public schools that don’t have enough textbooks for all students, and teachers pay out of their own pockets to photocopy chapters.“Give every single teacher a raise to the equal of … A raise of getting out of the $60,000 level.” He identifies a chronic defect of American education: low salaries for teachers, which can be remedied if taxpayers who declare how much they value children put their wallets where their mouths are.“No. 2, make sure that we bring in to the help with the stud—the teachers deal with the problems that come from home. The problems that come from home, we need… We have one school psychologist for every 1,500 kids in America today. It’s crazy. The teachers are required—I’m married to a teacher. My deceased wife is a teacher. They have every problem coming to them.” He is absolutely right about this. Teachers confront problems from home and neighborhood that they have no ability to address. One teacher in Washington, DC told me that he took Granola Bars to class for kids who come hungry. He had no resources to address food scarcity at home. Schools need not just more psychologists, but an array of counselors who can help families get services that are available from nonprofits and government agencies. Biden puts his finger on something crucial here.“Make sure that every single child does, in fact, have three, four, and five-year-olds go to school. School! Not day care, school.” He is recognizing the enormous leg up that pre-school education provides for children in improving their readiness to read and other prompts for entry into first grade. “We bring social workers into homes of parents to help them deal with how to raise their children. It’s not that they don’t want to help. They don’t know what— They don’t know what quite what to do.” Parenting is definitely an issue. Biden is on target. Most families below the poverty line are headed by single parents. They might have been badly parented themselves, and they are stressed with shift work, multiple jobs, shoddy housing, unpaid bills, and dangerous neighborhoods. Programs that send caseworkers into homes to assist find that some parents don’t even play with their kids, either because they don’t know how or because they’re frantically busy and exhausted. Again, however, this is not a function of race. In researching my book, The Working Poor, I witnessed poor parenting in certain low-income white families. It’s a point Biden should make. “Play the radio. Make sure the television—excuse me, make sure you have the record player on at night. The phone—make sure the kids hear words. A kid coming from a very poor school—er, a very poor background will hear 4 million words fewer spoken by the time they get there.” The record player got him laughed at, but he’s right that the degree of conversation at home--especially interaction with responsive adults--helps determine children’s vocabulary and fluency. The benefits and disabilities transcend race, and if Biden meant to imply that black families were less verbal, he couldn’t be more mistaken.  In fact, while his rambling answer illuminated vexing problems of poverty, it evaded the racial component. Indeed, since being called out by Senator Kamala Harris and others for opposing federally-mandated busing decades ago, Biden has failed to discuss how, or whether, his views have evolved.Linsey Davis, the ABC News moderator who posed the question Thursday, gave him the perfect chance. Saying, “I want to talk to you about inequality in schools and race,” she read his words from 1975, when “you told a reporter, ‘I don’t feel responsible for the sins of my father and grandfather. I feel responsible for what the situation is today, for the sins of my own generation, and I’ll be damned if I feel responsible to pay for what happened 300 years ago.’ You said that some 40 years ago, but as you stand here tonight, what responsibility do you think that Americans need to take to repair the legacy of slavery in our country?”It is a poignant question that still burdens the society 400 years after the first African slave was brought to these shores. Biden answered it in his way 40 years ago by differentiating between his impunity for the nation’s past and his responsibility for its present. But his own past is, one feels, not exactly his own present on this matter. On that subject, the country needs to hear from him.
This article was first published by the Washington Monthly.