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Thursday, February 25, 2010

"Don't Worry About It"

The words were spoken by Army Air Corps Lieutenant Kermit A. Tyler, who had been assigned to oversee a radar installation on Oahu.

On the morning of December 7, 1941, the operator reported to Lt. Tyler that he observed "blips" indicating a large number of aircraft 130 miles away and approaching the island. Having been alerted to expect 50 U.S. B-17's to arrive that morning, Tyler (who had little experience involving radar) told the operator, "Don’t worry about it."

Of course, history was about to crash down upon Lt. Tyler’s head. The blips turned out to be about 180 Japanese planes.

Tyler was exonerated of any negligence by several hearings conducted after the event, and went on to prove his heroism as a pilot, retiring in 1961 as a Lt. Colonel. He died recently at age 96.

It seems to me that Tyler’s mistake was to assume that the simplest explanation was correct. Based on the information at hand, he chose the conclusion that was far more likely. In philosophy and science, this choice is ratified by reference to a concept known as "Occam’s razor."

It is still accepted as a logical guideline for scientists, although the proven exceptions are so numerous, and laced with such dire consequences, that it is practically useless as a rule of thumb.

It is human nature to prefer the simplest explanation of things to more complex solutions. But my experience in the law has shown me the danger of simple minded thinking and reliance on common sense to decide proof of guilt.

These dangerous assumptions falsely support the reliability of confessions, eyewitness testimony, police officer veracity, expert opinions, and a multitude of legal fictions - such as the reliability of so-called "dying declarations" and other hearsay exceptions, all of which lead to injustices galore.

At any rate, Tyler’s suggestion has gone down in history along with other remarks that soon proved ironic.

George Armstrong Custer’s specific words preceding the massacre he stumbled into have never been authenticated, but it is tempting to assume that he said something that comics over the years have put into his mouth something like: "C’mon, boys, let’s wipe out those darned Injuns."

These incidents are variants of the so-called "famous last words" that are subject of many biographies.

Historians love to find nuggets of wit and wisdom among such tidbits, especially deathbed insights, confessions (not just of guilt but expressions of faith by atheists), hints of an afterlife ("I see the light ...").

But the phrase, "famous last words," also connote the "oops" moment. I will mention two that I found to be particularly ironic.

H.G. Wells was noted as a futurist, who, along with the Frenchman, Jules Verne, made his living predicting future events. However, it is reported that on his deathbed, his prescience failed him. His last words were "Go away. I’m all right."

Wells’ final error probably did not change the outcome of his story. But other last words have done so.

Terry Kath, a guitarist and founding member of the rock group Chicago, put a gun to his head. When a friend showed concern, Kath reportedly showed that the magazine was empty, saying "Don’t worry it’s not loaded."

He pulled the trigger and discovered a bit too late that a cartridge had been left in the chamber.

Among actors, rock performers, and other risk takers, fatal games with guns is not unknown, but Kath’s voiced assertion makes his oops moment special.

Saturday, February 20, 2010

Principled Centrist Revisited

Last year I published a post based on an essay I originally wrote in the 1990's. I updated it to apply the ideas stated to Obama. I tried to fit him into the traditional mold of the "principled centrist," a tradition which included the best presidents in our history: notably Washington, Lincoln, F.D.R. It also encompassed some failures.

Bill Clinton's presidency showed how difficult it is for a centrist to govern in this era. With the pervasive sniping of 24/7 media critics, ideological and cultural polarization that approaches the sectional suspicions preceding the Civil War, and the absence of public consensus about any particular crisis, the ability of even the most charismatic president to lead is doubtful.

I am re-printing the essay again because it seems that its points are still pertinent to the political climate today.

Like many of my peers in the late 1960's, I entered a law career with a radicalized illusion that I could shake up The Establishment from within. But early in my career as a public defender, I became persuaded that idealists made lousy lawyers.

Viewing a case as "a cause" led to ineffective advocacy for the individuals who were our clients. Railing against "the system" was a losing strategy; tweaking it to make it work led to some success. To work from within demanded adherence to core principles - like those expressed in the Bill of Rights, but also a rational sense of moderation. Seeing the flaws of radical ideologies of Left and Right, I came to think of myself as a principled centrist.

The flaw of this philosophy is that it can easily lead to indecision, timidity, and a loss of confidence. Weak compromises are tempting when the risks are great. Uncertainty leads to failure and depression.

Barack Obama, by education and inclination, is a principled centrist. His legal education, which suited his innate propensities, prepared him well for effective advocacy. The first attribute of the lawyerly approach is the ability to see all sides of a question. The second is the exercise of judgments based on reason and evidence rather than faith and ideology.

The term itself is an oxymoron in presidential politics. The centrist is wedded to no firm ideology that huge numbers of people can identify with. It is historically rare to satisfy enough of the people enough of the time from the middle of the road.The centrist is not an ideologue, except to moderation. Idealogues have a rigid vision, a religious faith in their righteousness. Moderation and consensus are lukewarm ideals. Neither notion stirs passion.

Ronald Reagan’s simple ideology allowed him to be certain and clear about every issue: lower taxes, secure defense, less government, American domination of foreign affairs, strict Christian morality and adherence to normative lifestyles.

A centrist cannot be sure about any of these things, is sometimes for some of them, against some at some other times. He is a relativist - his motto must be "It depends." His survival depends on compromise.

A principled centrist in American politics is, by definition, in trouble. First, he states his principles, then is forced to compromise them.

Bill Clinton’s adventure with the health care issue in the 1990's is a cautionary tale. He stated a principle: universal coverage. Eventually, he had to temporize, and was seen as weak, the inevitable risk of centrists. The result: his leadership coinage dissipated. He could not fall back on the moral leverage of ideology, had no constant constituency on left or right.

At first, it seemed that Obama had advantages Clinton never had. Times had changed. In 1993, Clinton’s "mandate for change" was tenuous at best. G.H.W. Bush had alienated a chunk of the Reagan coalition - the middle right - with higher taxes and a weak economy. Because Clinton was a "new" Democrat, based on a sensible, more conservative model, who shied from liberal doctrine, he was positioned as non-threatening. On the left, he was pictured as youthful, a JFK disciple, compassionate, with a feminist wife - a guy of the sixties, who had matured to moderate progressivism. Many "boomers" could identify with that beause they had moved that way as well.The two-faced picture was enough to gain him a slim plurality in a three way race. Perot's candidacy made it clear that the only consensus in the public mind was that government was distrusted, and that the majority of voters were slightly to the right of center.

But that is where the consensus ended. There was no singleness of mind in the public for where it wanted a president to go. There was no mandate for any particular change.

Clinton thought it was there for health care reform, fooled by the fact that he spoke about it in his speeches and he was elected. But the public was never fully committed to it, and was easily swayed by fears of expense and bureaucratic incompetence.

In this as in every other issue the people wanted reform, but didn’t want to pay for it: crime, the economy, services, campaign reform. The public was schizophrenic: apathetic and impatient at the same time.

When the Republicans reclaimed the Congress in 1994 with a severe ideological conservative agenda, it forced Clinton the centrist to waffle to the right. The lesson was clear: a centrist may only succeed as a progressive leader if the public is ready to be led and only then by a leader who is perceived as a hero without baggage.

The commentators of the time blamed Clinton for a lack of leadership. The great leader defines the issues and unifies the people behind him. That Clinton failed to do.

What he was forced to do is what a centrist does best: react to the extremes of left and right. He must be the captain of a sailing ship, tacking left and right but steering the middle. Clinton’s political acumen was such that he was able to survive well enough to be re-elected and, despite his tragic personal flaws, his presidency is now remembered as a time of peace and prosperity.

At the beginning of his term, Obama’s seemed to have an advantage: the crises caused by the failure of G.W. Bush’s failure, which is ascribed rightly to the flaw of rigid ideological governance, had forced public opinion to coalesce into a coherent consensus for change - not necessarily "radical" change, but at least, meaningful reform.

The last time that happened was in 1964, when L.B.J. took advantage of his opponent’s extreme conservatism, to form a strong coalition for social change. He succeeded in passing meaningful civil rights reform and programs that began a "war on poverty", only to self-immolate over Viet-Nam.

F.D.R. is probably the better model for Obama. F.D.R. was (and still is) perceived as a decisive leader because his motto was "do anything, but do something." He was able to take chances because the public of the time was willing to be led - almost anywhere. The times were that bad. His one principle was that government had to put people back to work.

Everything he proposed, supported, persuaded, was directed toward that goal. He had many detractors from the left and right, but he had such a convincing presence to a people desperate for charismatic leadership that he prevailed and is revered as a great leader.

Bear in mind that in F.D.R.'s era, "charismatic leadership" in the form of dictatorships were preferred by mainstream political theorists to democracy, which seemed in the period between the World Wars, to have failed. Today, there is an echo of that era --- extreme fear caused by economic collapse and democratic institutions unable to ameliorate the crises --- China seen as a paragon of successful governance ---as many had perceived Italy of the 1920's and Germany of the 1930's.

FDR revived the democratic system because he was able to form a consensus from huge chunks of the public: union members -- in a time of solidly unified, active and powerful unions, Southern poor, the unemployed --- 25% unemployment in the depths of the depression ---and the educated un-rich.

At the start, the Obama constituency seemed to be similarly broad: the educated and hopeful young, aspiring Hispanics and proud African-Americans, depressed boomers. Those who voted for him, adding to his landslide and coattails, were also a significant number who were not committed to any "change" except that which threw the rascals out.

Like F.D.R., Obama benefitted from a bankrupt and disillusioned opposition party. The fatal flaw of ideological and faith based governance is that when exposed as false by incontrovertible evidence it collapses.

The strength of principled centrism is that its flexibility and foundation of moderation and reliance on evidence permit fine-tuning alterations without conceding defeat.

Parenthetically: in the view of many historians, FDR’s policies failed to end the Depression because they were not radical enough. His centrism was a flaw, led to inconsistent contradictory policies. He wavered from his initial policy of governmental activism, caving to budget balancing contraction of spending, overly fearful of the political consequences of huge deficits. He was saved by the war which reinvigorated the broad consensus and commitment to action.

Now, Obama, faced with apparent dissatisfaction by a vocal minority to his policies, has to decide whether to reclaim the centrist ground by accepting compromise, or to retreat to the right by abandoning any progressive agenda, or to try to forge a new coalition on the left to push through an aggressive program.

Obama, the principled centrist, walks the dangerous tightrope, his only net is his legal background, which, I hope, will permit him to find his way through analysis of facts, collection of evidence pro and con, and submitting all potential policies to thorough logic based argument before moving.

Friday, February 19, 2010

Remorse is a funny thing ...

"The only thing you owe the public is a good performance." H. Bogart.

"I am deeply sorry for my irresponsible and selfish behavior I engaged in.I know people want to find out how I could be so selfish and so foolish." T. Woods.

T. Woods has a string of outstanding performances in his chosen field, which is golf. Let's get that straight. Golf. Not religion, politics, ethics, oratory. It is golf talent that has made him celebrated, envied, and vulnerable to attack for hubris.

He is also living proof of a central principle of Borenstein's Law - the counter intuitive truth that human beings can be counted on to act against their own best interests - sometimes to the point of self-destruction.

This Law applies to anyone, from the most sociopathic criminal to the highest achieving powerful people on earth.

Here's how Tiger phrased it:

"I knew my actions were wrong, but I convinced myself that normal rules didn’t apply. I never thought about who I was hurting. Instead, I thought only about myself. I ran straight through the boundaries that a married couple should live by. I thought I could get away with whatever I wanted to. I felt that I had worked hard my entire life and deserved to enjoy all the temptations around me. I felt I was entitled. Thanks to money and fame, I didn’t have to go far to find them."

Now, Mr. Woods has exemplified another lesson I have learned in almost forty years of defending people accused of wrongdoing:

No expression of remorse can ever satisfy everyone.

There are ramifications of this fact.
The transgressor is usually in a no-win posture.
Failure to express remorse for bad conduct is seen as aggravating, but expressions of remorse are usually suspiciously self-serving.

"Sincerity" is completely subjective and tentative. Bill Clinton apologized with the same "sincere" voice he had used to deny guilt under oath months before.

Cynical responses such as "he wouldn't be sorry if he hadn't been caught" are earned by the initial deception.

The reaction to "I'm sorry" has as much to do with the listener's attitude as the transgressor's. People whose faith in another's goodness is shattered by revelations of transgression are usually hurt and angry.

The media does not have the "right" to know all the facts about everybody's life, even so-called "public figures." The First Amendment does not demand that people who want to sell products must give power over their lives to commercial media, whose primary purpose is to profit from celebrities rather than to provide information people need to form a better world.

Sunday, February 07, 2010

Monday, February 01, 2010

Stop me before I think again ...

In mid-thought ...

... Explain to me why it is so terrible that China and India, countries which contain about 2/5 of the population of the entire world, have economies that are growing at a high rate, thereby improving the welfare of their people, taking them out of poverty, making them into consumers rather than dependents. ...

... the debate over whether to Mirandize terror suspects is a sham. Miranda rules shouldn’t hamper obtaining info from suspects like the Xmas day underwear bomber ... They are fanatics - will love to talk. Also, his guilt is so obvious, it doesn’t matter whether his statements are useable against him. Miranda rules do not preclude continued questioning without advising or even if a suspect has asserted his rights. It simply makes his statements inadmissable in his trial, unless he presents a defense which contradicts his statements. Finally, his knowledge of the Al Qaeda workings is probably very limited ...

... Torrey Pines tournament proves that there is no one who will make anyone forget Tiger Woods ... the great white hope, Phil Mickelson fizzled ... the winner and those others in contention were Who He? and Who Cares?

... Meanwhile Fed disappointed all Brits and Aussies by destroying Andy Murray.

... Kobe MJ’d the Celtics with another last sec impossible shot ...

... Conventional wisdom that the New Deal failed to solve unemployment, proving failure of its big government activism was a construct of Milton Friedman (an Ayn Rand devotee). Later economists have revised thinking, pointing out that FDR got cold feet about deficits. ... There should be a lesson there for Obama, who is not unlike FDR in his lack of ideological dogma, straddling a centrist tightrope, sorting through unreliable contradictory advice, facing an uneducated, easily manipulated frightened electorate and an even more frightened Congress. See:
... My father would have explained the lagging employment stats thus: capitalists love depressions - gives them the excuse to slap labor down, damage unions, lower wages and benefits, break contracts ... Stock market loves layoffs of workers because it reduces costs, increases bottom lines. ... Capital will fight hard to prevent re-employment, mandatory benefits for workers. ...

... Obama’s skewering of the Republicans in his State of the Union speech, and later, his Q&A right in their nest was awesome as an example of how a good lawyer can use the power of argument to overcome deceit. The problem is that the voters these days do not have the patience or intelligence to hear complex explanations, even if they are rational. The sound bite generation is too deeply ingrained.

... The Supreme Court decision expanding 1st Amendment rights to corporations is merely the latest in a long line of cases that elevate the speech freedom over all of the others in the Bill of Rights... I became aware of this long ago when earlier rulings permitted reporting re. & televising criminal trials which damaged the defendant’s 6th Amendment right to a fair trial ... For a long time, the Court has denied a difference between "political speech" and "commercial speech" ... Their rationale for this has always seemed a thinly disguised excuse for favoring business and property interests over individual liberties, which is central to the conservative tradition of The Court. ... In fact, that is what the Founders intended it to be, and how it has worked for most of our history... It has been "activist" as a reactionary restraint on progressive movements in society ... control of commerce, slavery / Jim Crow / civil liberties, regulation of business ... on almost every issue the Court has been a drag ... the Warren Court, a tiny window of progressive control of the Court from @1953 - 1966 was a very rare exception, a Golden Age of civil liberties that has no other parallel in American history ...

... Way back then, I argued with friends who defended pornographers, debating which of the Bill of Rights I would die to defend ... I argued that defending the right of sleaze makers to make money from porno movies was way down on my list - considering what else was at risk at the time: anti-war protesters being shot and jailed, civil rights workers the same, coerced confessions, death penalty offenses proved by perjured testimony, planted evidence, denial of counsel. ... porn is just another form of commercial speech. ...

... Equating corporate rights with individual rights is mainstream American thinking ...

... Howard Zinn’s death again raises the debate about "neutral" or "objective" history vs. activist or argumentative perspectives ... My small contribution centers on how offended I was at discovering that the "history’ I was subjected to in my childhood was, in crucial details, distorted ... The most egregious distortions related to the genocide of native Americans ... The predominance of Southern rooted historians accounted for the mythology which elevated the romance of the ante bellum South, overestimating the greatness of Robert E. Lee and the evils of Grant and Sherman ... and most harmfully, the belief that Southern white society was unfairly victimized by Reconstruction ... Overlooking the weakness of heroes like Wilson and TR relating to race and native Americans... that the creation of the American Empire was all good ... and many more lies... all that being said, Zinn’s bias should also be considered before accepting his works ...

No more thinking ... back to work ...