I've been following the North Korea/Sony Pictures hacking from a distance. I'm interested partly because computer security is professionally important to me. Not that my servers are likely to be targets of high-level, high-profile attacks, of course--but incidents like these show why things like strong passwords and security measures are important, which makes it easier to convince my clients of that.
But mostly this has been interesting because of the hackers' release of inside emails. I'm a big fan of the Jeopardy! game show, so seeing that Alex Trebek wasn't happy about having to retape the end of a Kids Week episode because he made one of the contestants cry and run off stage with an insensitive comment--that was hilarious.1
1 Trebek is notably ham-handed, often cruel, in his contestant interviews and other comments through the game. In fact, he's one of the ruder Canadians I've ever seen, or at least he comes across that way.
Of course, what seemed like a pleasant game got a bit more serious when the hackers began to threaten attacks on theaters that dared to show The Interview. That's not something to mess around with, particularly in view of a fairly recent mass shooting at a movie theater.2
2 I'm referring, of course, to the July 20, 2012, shooting at a movie theater in Aurora, Colo., carried out by James Eagan Holmes. Holmes is scheduled to go to trial in January in a case in which he offered to plead guilty to avoid the death penalty; the prosecutors declined the offer.
I think we can all agree that the North Koreans could stand to grow thicker skin. This is not the first time a film has portrayed them in the crazy light they choose to throw on themselves, and it will almost certainly not be the last. And I think we can all agree that threatening terror attacks on movie theaters isn't acceptable under any circumstances.
It was weak-willed of Sony to pull the picture from distribution, but I doubt very much this was an expression of fear so much as it was a calculated move to save money. With none of the five major theater chains agreeing to screen the film, Sony would be left with the independent theater market (many of which would likely refuse to show the film as well) and direct-to-video option. But Sony carries insurance on its major productions. If the film is a total loss, Sony can file a claim. If Sony simply has trouble selling the film in distribution, that's not a covered loss, and Sony gets nothing.
I support the right of these filmmakers to make whatever film they want. There have certainly been films and other media about fictional assassination attempts on actual leaders. One that comes to mind is "The Day of the Jackal," a brilliant 1973 film about an attempt on the life of Charles de Gaulle (based on an equally brilliant 1971 novel by Frederick Forsythe). Of course, de Gaulle survives the attempt in the story, and there were elements of an actual attempt on de Gaulle's life that were adapted into the otherwise fictional story.
I wonder, however, whether The Interview isn't just a bit too much on the nose. What would we think about a foreign film that depicts the grisly assassination of the actual American President? While I'm certain there would be a small teabagging segment of our population that would cheer on such a film, it might well provoke outrage, and maybe even condemnation from our government.
For that reason, films that deal with the fictional assassination of a world leader usually fictionalize the leader as well. Would The Interview have been a less funny, or less compelling, or less marketable film if the target of the assassination attempt were a different, fictional leader of North Korea? I don't know. I haven't even seen the film as it was made. Maybe it's central to the film that it's Kim Jong-Un and not some other Kim who gets offed in the end. Or maybe the North Koreans would be just as upset. Maybe my raising this question is just an instance of victim-blaming.
My point, I suppose, is that it doesn't hurt to talk about these things, just as it doesn't hurt to expose even dangerous ideas to the marketplace. As longtime readers know, I'm a big fan of Louis Brandeis, who told us famously that sunlight is the best disinfectant.3
3 Brandeis wrote that well after the introduction of Lysol, so I feel confident that he didn't mean it literally.
Moreover, this project had to get multiple green lights at Sony, from people who presumably were aware of the storyline, even if they hadn't read the script. If you're going to make that decision, then you should have the courage to own it even when there's a stiff wind in your face. So color me unimpressed by Sony's capitulation. If North Korea can't take it, that's on them. Beef up security, target a proportional response, whatever--but release the film and take your lumps. North Korean censors don't get a say in what gets shown in American movie houses.
Sunday, December 21, 2014
Wednesday, December 17, 2014
Torture: Why it matters
Yesterday in Peshawar, Pakistan, six gunmen, affiliates of the militant group Tehrik-i-Taliban Pakistan, stormed the Army Public School, a mixed-gender school mostly for the children of military officers, and killed at least 132 schoolchildren and nine staff members. Some reports indicate that at least some of the staff members were burned alive.
This is a heinous act that has been met with nearly universal condemnation.
In response to this news, a man I respect a great deal--a prominent lawyer who has fought for the civil rights of disfavored minorities, a defender of progressive causes--offered a comment that juxtaposed this event with last week's report on American torture--er, "enhanced interrogation techniques"--during the Bush administration.
He asked--and I'll paraphrase him a bit here, just to keep it G-rated--why exactly he was supposed to care if some of these guys get tortured.
It's an interesting question.
It's an entirely human emotional reaction to regard with indifference, if not delight, when bad things happen to bad people. When Jeffrey Dahmer, who raped, killed, dismembered, and in some cases ate 17 people, was beaten to death in prison, I don't recall there being much of an outcry for prison security reform. So it's not surprising that people wouldn't much care that Khalid Sheikh Mohammed was repeatedly waterboarded, considering that he was the organizational mastermind behind the 9/11/01 attacks that killed nearly 3,000 people.
If you take it a step further, there are lots of folks who believe that the CIA's torture program helped to keep the country safer by producing actionable intelligence against planned attacks. I think that ship has sailed. As the Senate report indicates, the imposition of torture techniques probably impeded the gathering of actionable intelligence by producing false information in some cases and by steeling the prisoners against cooperation in others. John McCain, who would know about these things (having been a torture victim himself), says that torture doesn't work. Unfortunately, there are lots of people whose opinions are shaped by a 24 fantasy of a ticking clock and an impending disaster being thwarted by torture. That's not real.
If you start from a place where there are at least some people caught up in these techniques who deserved to suffer, and maybe die, it's easy to end up not caring about what happens to them.
I don't particularly care about the ones who have harmed us.
Just as I don't particularly care, per se, about the lives of the people whom we execute for crimes.
I find myself not caring about them at all. And I don't care what happens to the gunmen who killed schoolchildren in Peshawar.
And yet, it's not about what happens to them.
It is about what happens to us. It is about what torture turns us into. And that is something about which we ought to care a great deal.
I don't believe that this is a Christian nation. (It's not. It's a nation where persons of all religious beliefs, or of no belief, are welcome to worship or not worship as they choose, but where a clear majority adhere to some flavor of Christianity.) But if we need guidance on how truly to be a Christian nation, we could easily start with the words of Jesus Christ:
(As you might imagine, though I generally agree with those words, an appeal to authority isn't enough for me.)
Why should we care? Ultimately, it comes down to credibility.
I love this country. This is a great nation for many reasons: our freedom, our individuality, our diversity, our dedication to justice, our egalitarianism. We have not always lived up to the standards we set for ourselves. Sometimes our failures have been spectacular. But we keep trying. And in setting those standards, we provide light to humanity, showing that it is possible to be good and just, and to prosper in spite of, if not because of, our dedication to the principles that differentiate us from most other nations.
Torture is inconsistent with those principles.
When we act unapologetically in ways that are inconsistent with our core values regarding human rights, we lose our credibility to speak about human rights. If we allow exceptions to the principle that no one is above the law, we lose our credibility to urge other nations to establish justice for all of their citizens.
Even when we fail to live up to our high standards, we maintain credibility by taking corrective action.
Here are three basic truths.
First, what we did was torture, no matter what euphemisms we invented to justify our actions. The specific acts we undertook constitute torture by any reasonable definition. This is not a situation for technicalities or narrow legal constructions; our principles are at stake.
Second, torture is a wrongful act, regardless of the motives. It is, of course, a violation of our obligations under the Geneva Conventions and under the UN Convention Against Torture. But it's not just that it's a violation of international law. Those treaties exist because of a greater truth, that civilization demands that we restrain ourselves from the worst human instincts. Therefore, what we did was wrongful, and because it was wrongful, all of those responsible for it should be held accountable, regardless of position. We have a reasonable mechanism for investigating these crimes and for bringing those responsible for them to justice. Our credibility to ourselves and to the world demands that this be done. Moreover, our approach to this must be fearless in the face of complaints that doing so jeopardizes our national security or diminishes our prestige. To the contrary, our national security is jeopardized by not demanding justice; our prestige is tarnished by our failure to act.
Third, torture is a useless act. Even if you believe that torture is "on the table" as an instrument of national defense, and somehow not a violation of our core principles and our treaty obligations, torture is nonetheless useless, because it does not produce actionable intelligence that cannot be obtained via other means. This is something I've known for a long time, for the simple reason that if torture had produced actionable intelligence, those officials who have advocated for it--Dick Cheney, I'm looking at you in particular--would have fallen over themselves in a race to give all the details about how it worked where other techniques failed.* We would know who talked, what they said, and how we acted based on that intelligence to stop an attack. That never happened.
* I would wager money I couldn't afford to lose that if you caught these people in an honest moment--which is admittedly difficult--they would concede that they did it mostly because they wanted to do it, not because it was helpful to any particular objective other than self-gratification.
The good news is that it's not too late. We can show that we are better than this. These people can be brought to justice. They can be charged and tried, and if convicted, they can be put in jail. It is hard to think of anything that would be a more worthwhile use of our tax dollars, than to show that this is still the America we were promised. But making it happen will take good people with the backbone for justice. And on that point, though I'm hopeful, I'm not holding my breath.
This is a heinous act that has been met with nearly universal condemnation.
In response to this news, a man I respect a great deal--a prominent lawyer who has fought for the civil rights of disfavored minorities, a defender of progressive causes--offered a comment that juxtaposed this event with last week's report on American torture--er, "enhanced interrogation techniques"--during the Bush administration.
He asked--and I'll paraphrase him a bit here, just to keep it G-rated--why exactly he was supposed to care if some of these guys get tortured.
It's an interesting question.
It's an entirely human emotional reaction to regard with indifference, if not delight, when bad things happen to bad people. When Jeffrey Dahmer, who raped, killed, dismembered, and in some cases ate 17 people, was beaten to death in prison, I don't recall there being much of an outcry for prison security reform. So it's not surprising that people wouldn't much care that Khalid Sheikh Mohammed was repeatedly waterboarded, considering that he was the organizational mastermind behind the 9/11/01 attacks that killed nearly 3,000 people.
If you take it a step further, there are lots of folks who believe that the CIA's torture program helped to keep the country safer by producing actionable intelligence against planned attacks. I think that ship has sailed. As the Senate report indicates, the imposition of torture techniques probably impeded the gathering of actionable intelligence by producing false information in some cases and by steeling the prisoners against cooperation in others. John McCain, who would know about these things (having been a torture victim himself), says that torture doesn't work. Unfortunately, there are lots of people whose opinions are shaped by a 24 fantasy of a ticking clock and an impending disaster being thwarted by torture. That's not real.
If you start from a place where there are at least some people caught up in these techniques who deserved to suffer, and maybe die, it's easy to end up not caring about what happens to them.
I don't particularly care about the ones who have harmed us.
Just as I don't particularly care, per se, about the lives of the people whom we execute for crimes.
I find myself not caring about them at all. And I don't care what happens to the gunmen who killed schoolchildren in Peshawar.
And yet, it's not about what happens to them.
It is about what happens to us. It is about what torture turns us into. And that is something about which we ought to care a great deal.
I don't believe that this is a Christian nation. (It's not. It's a nation where persons of all religious beliefs, or of no belief, are welcome to worship or not worship as they choose, but where a clear majority adhere to some flavor of Christianity.) But if we need guidance on how truly to be a Christian nation, we could easily start with the words of Jesus Christ:
27 But to you who are listening I say: Love your enemies, do good to those who hate you, 28 bless those who curse you, pray for those who mistreat you. 29 If someone slaps you on one cheek, turn to them the other also. If someone takes your coat, do not withhold your shirt from them. 30 Give to everyone who asks you, and if anyone takes what belongs to you, do not demand it back. 31 Do to others as you would have them do to you.
32 “If you love those who love you, what credit is that to you? Even sinners love those who love them. 33 And if you do good to those who are good to you, what credit is that to you? Even sinners do that. 34 And if you lend to those from whom you expect repayment, what credit is that to you? Even sinners lend to sinners, expecting to be repaid in full. 35 But love your enemies, do good to them, and lend to them without expecting to get anything back. Then your reward will be great, and you will be children of the Most High, because he is kind to the ungrateful and wicked. 36 Be merciful, just as your Father is merciful.Luke 6:27-36 (NIV). You can go read the rest of that chapter, or the rest of Luke, to check if you like, but I assure you, nowhere did Jesus say, "Except where it's necessary to keep your fellow citizens safe."
(As you might imagine, though I generally agree with those words, an appeal to authority isn't enough for me.)
Why should we care? Ultimately, it comes down to credibility.
I love this country. This is a great nation for many reasons: our freedom, our individuality, our diversity, our dedication to justice, our egalitarianism. We have not always lived up to the standards we set for ourselves. Sometimes our failures have been spectacular. But we keep trying. And in setting those standards, we provide light to humanity, showing that it is possible to be good and just, and to prosper in spite of, if not because of, our dedication to the principles that differentiate us from most other nations.
Torture is inconsistent with those principles.
When we act unapologetically in ways that are inconsistent with our core values regarding human rights, we lose our credibility to speak about human rights. If we allow exceptions to the principle that no one is above the law, we lose our credibility to urge other nations to establish justice for all of their citizens.
Even when we fail to live up to our high standards, we maintain credibility by taking corrective action.
Here are three basic truths.
First, what we did was torture, no matter what euphemisms we invented to justify our actions. The specific acts we undertook constitute torture by any reasonable definition. This is not a situation for technicalities or narrow legal constructions; our principles are at stake.
Second, torture is a wrongful act, regardless of the motives. It is, of course, a violation of our obligations under the Geneva Conventions and under the UN Convention Against Torture. But it's not just that it's a violation of international law. Those treaties exist because of a greater truth, that civilization demands that we restrain ourselves from the worst human instincts. Therefore, what we did was wrongful, and because it was wrongful, all of those responsible for it should be held accountable, regardless of position. We have a reasonable mechanism for investigating these crimes and for bringing those responsible for them to justice. Our credibility to ourselves and to the world demands that this be done. Moreover, our approach to this must be fearless in the face of complaints that doing so jeopardizes our national security or diminishes our prestige. To the contrary, our national security is jeopardized by not demanding justice; our prestige is tarnished by our failure to act.
Third, torture is a useless act. Even if you believe that torture is "on the table" as an instrument of national defense, and somehow not a violation of our core principles and our treaty obligations, torture is nonetheless useless, because it does not produce actionable intelligence that cannot be obtained via other means. This is something I've known for a long time, for the simple reason that if torture had produced actionable intelligence, those officials who have advocated for it--Dick Cheney, I'm looking at you in particular--would have fallen over themselves in a race to give all the details about how it worked where other techniques failed.* We would know who talked, what they said, and how we acted based on that intelligence to stop an attack. That never happened.
* I would wager money I couldn't afford to lose that if you caught these people in an honest moment--which is admittedly difficult--they would concede that they did it mostly because they wanted to do it, not because it was helpful to any particular objective other than self-gratification.
The good news is that it's not too late. We can show that we are better than this. These people can be brought to justice. They can be charged and tried, and if convicted, they can be put in jail. It is hard to think of anything that would be a more worthwhile use of our tax dollars, than to show that this is still the America we were promised. But making it happen will take good people with the backbone for justice. And on that point, though I'm hopeful, I'm not holding my breath.
Thursday, December 11, 2014
Just who do you want to be?
Two pieces of news from earlier this week left me a bit discouraged.
As a liberal, I'm used to being discouraged by the pace of progress. It's a hazard of the ideology. Things never get better as quickly as I'd like.
But I've been particularly discouraged this week by the narrow victory of the bigoted campaign to repeal the Fayetteville civil rights ordinance that provided a small measure of protection to a greatly expanded range of disfavored minorities against discrimination in accommodations and commerce.
Some people don't like it when I call names, but I have to regard this campaign as being composed of bigots. What else do we call it when a person--and I use that term loosely--wants to make it easier to deny people equal access to the marketplace solely because they are different from the majority?
The Fayetteville Chamber of Commerce, led by Steve Clark, the disgraced former Arkansas attorney general whose political career ended when he was convicted of stealing money from the people of Arkansas by using his state credit card for personal expenses, was a staunch advocate for repeal. The Chamber argued that regulations like this ordinance were burdensome to businesses and would make it less likely for new businesses to invest in Fayetteville.
The truth is that this sort of thing falls under what Lou Holtz referred to as the "do-right rule." It's not burdensome to do the right thing by meeting your customers on their own terms. To use one example, if you're a pastry chef who specializes in wedding cakes, and someone wants to buy one of your cakes, you sell them one of your cakes. If they happen to be a gay couple, you sell them one of your cakes. If your religious convictions are so significant to you that you feel compelled to try to control their behavior through not selling them a cake, you need to find a new line of work that doesn't involve discriminating against people because they don't fit your morality.
Of course, the Chamber wasn't the only group advancing bigotry. Several conservative church groups went hysterical on the issue of bathroom access for transgendered people.
Apparently these groups are concerned that people who are anatomically male but who dress or appear as female will use this ordinance gain access to female-only restrooms. I have not spent much time in ladies' rooms, but the one thing that I perceive to differentiate ladies' rooms from men's rooms is that there don't seem to be many opportunities to inspect the genitals of people who visit ladies' rooms. (Some, if not most, men's rooms include urinals that lack dividers between, so I suppose it's possible to sneak a peek if you're so motivated, but pretty much every ladies' room has stalls for privacy.) In any event, I would expect that the authorities would have no problem addressing a situation in which someone wantonly displayed his/her naughty bits inappropriately. Beyond that, how would you ever know what equipment a person in the restroom was sporting?
What this boils down to is a situation in which a narrow majority of voters thought it would be a good idea to leave disfavored minorities without any recourse against discrimination. I can't imagine any motivation to take that position than that you want to be able to discriminate, and that makes you a bigot.
The other thing that disappointed me this week was the information released in the Senate Intelligence Committee's report on the CIA's so-called "enhanced interrogation techniques." I will have more to say about that. I'm still collecting my thoughts. I will say that there is very little in the report that's qualitatively surprising (we knew they were doing this kind of thing, even if we didn't know how much or how bad).
These two things, which don't appear to have much to do with each other, really do force us to ask the same question. Just who, exactly, do we want to be? What kind of place do we want to live in? What kind of country do we want? We get to pick, which is a great thing, but boy, it's a scary thing when you see some of the choices we've made lately.
As a liberal, I'm used to being discouraged by the pace of progress. It's a hazard of the ideology. Things never get better as quickly as I'd like.
But I've been particularly discouraged this week by the narrow victory of the bigoted campaign to repeal the Fayetteville civil rights ordinance that provided a small measure of protection to a greatly expanded range of disfavored minorities against discrimination in accommodations and commerce.
Some people don't like it when I call names, but I have to regard this campaign as being composed of bigots. What else do we call it when a person--and I use that term loosely--wants to make it easier to deny people equal access to the marketplace solely because they are different from the majority?
The Fayetteville Chamber of Commerce, led by Steve Clark, the disgraced former Arkansas attorney general whose political career ended when he was convicted of stealing money from the people of Arkansas by using his state credit card for personal expenses, was a staunch advocate for repeal. The Chamber argued that regulations like this ordinance were burdensome to businesses and would make it less likely for new businesses to invest in Fayetteville.
The truth is that this sort of thing falls under what Lou Holtz referred to as the "do-right rule." It's not burdensome to do the right thing by meeting your customers on their own terms. To use one example, if you're a pastry chef who specializes in wedding cakes, and someone wants to buy one of your cakes, you sell them one of your cakes. If they happen to be a gay couple, you sell them one of your cakes. If your religious convictions are so significant to you that you feel compelled to try to control their behavior through not selling them a cake, you need to find a new line of work that doesn't involve discriminating against people because they don't fit your morality.
Of course, the Chamber wasn't the only group advancing bigotry. Several conservative church groups went hysterical on the issue of bathroom access for transgendered people.
Apparently these groups are concerned that people who are anatomically male but who dress or appear as female will use this ordinance gain access to female-only restrooms. I have not spent much time in ladies' rooms, but the one thing that I perceive to differentiate ladies' rooms from men's rooms is that there don't seem to be many opportunities to inspect the genitals of people who visit ladies' rooms. (Some, if not most, men's rooms include urinals that lack dividers between, so I suppose it's possible to sneak a peek if you're so motivated, but pretty much every ladies' room has stalls for privacy.) In any event, I would expect that the authorities would have no problem addressing a situation in which someone wantonly displayed his/her naughty bits inappropriately. Beyond that, how would you ever know what equipment a person in the restroom was sporting?
What this boils down to is a situation in which a narrow majority of voters thought it would be a good idea to leave disfavored minorities without any recourse against discrimination. I can't imagine any motivation to take that position than that you want to be able to discriminate, and that makes you a bigot.
The other thing that disappointed me this week was the information released in the Senate Intelligence Committee's report on the CIA's so-called "enhanced interrogation techniques." I will have more to say about that. I'm still collecting my thoughts. I will say that there is very little in the report that's qualitatively surprising (we knew they were doing this kind of thing, even if we didn't know how much or how bad).
These two things, which don't appear to have much to do with each other, really do force us to ask the same question. Just who, exactly, do we want to be? What kind of place do we want to live in? What kind of country do we want? We get to pick, which is a great thing, but boy, it's a scary thing when you see some of the choices we've made lately.
Thursday, December 4, 2014
I can't breathe
Eric Garner is dead.
On July 17 of this year, while he was standing on a sidewalk in Staten Island in New York City, Garner was approached by members of the New York Police Department and confronted with the accusation that he had been selling cigarettes without a license to do so--a charge that Garner repeatedly denied.
This was apparently not the first time police officers had confronted Garner with the charge, and as anyone might do, who believes he is being unfairly singled out for mistreatment by the authorities, Garner protested.
After Garner began resisting what he considered to be harassment, four NYPD officers moved to restrain him, pushing his arms behind his back. One officer, Daniel Pantaleo, put Garner into a chokehold. That is, he crooked his elbow around Garner's neck and squeezed in an effort to block Garner's ability to breathe. Garner repeatedly cried, "I can't breathe! I can't breathe!" as he was being choked. Together, the four officers bulldogged Garner to the ground, and one officer pressed Garner's face into the concrete. Garner was handcuffed behind his back and made to lay on the ground, unconscious, while no one administered any sort of medical aid to the distressed man. Eventually he was transported to a hospital.
An hour after the incident began, Eric Garner was dead.
We know all of these things are true because a bystander captured the entire incident on video.
I am particularly sensitive to the mechanics of what happened to Eric Garner because, like Garner, I am a very large man. Garner was reported to be over 350 pounds. In the video, his body type is evident--he was muscular, but he was also very overweight, and he was not flexible. When you have that body type--and I know this because I have that body type--if someone forces your arms behind you, the pain is excruciating. Resistance to that act is completely involuntary. You will summon whatever strength you have to stop your arms from being pushed backward.
Having your arms pinned behind your back, when you have that body type, makes breathing more difficult.
When you add in that Eric Garner was only marginally able to breathe under the best of circumstances, the chokehold that Officer Pantaleo administered became deadly.
The New York Penal Code, section 125.20, defines first-degree manslaughter as having occurred when, among other things, "With intent to cause serious physical injury to another person, [the accused] causes the death of such person or of a third person."
The medical examiner ruled that the cause of Eric Garner's death was "homicide by chokehold."
But what of the intent element of a manslaughter charge? In 1985, the NYPD banned the use of chokeholds, allowing only a single exception, when the officer's life is in danger and the chokehold is the least dangerous alternative method of restraint.
In 1993, the NYPD removed the exception.
And what was the NYPD's justification for the chokehold ban? The fact that chokeholds, which cut off oxygen and blood flow to the brain, sometimes cause serious physical injury or death.
When Pantaleo put Eric Garner in a chokehold, he did so intentionally. In other words, he chose to use that technique. He had to know that what he was doing carried a significant likelihood that Eric Garner would die or be seriously injured as a result. An intentional act plus knowledge of its potential consequences implies the intent to cause those consequences.
But even if you disagree what that view of intent, when you add in that Garner repeatedly told Pantaleo that he couldn't breathe--indicating that serious injury was imminent--and Pantaleo continued to choke him, surely you can't disagree that intent was there.
Or if that's not enough, surely you can't disagree that an intentional act plus knowledge of its potential consequences implies recklessness. In second-degree manslaughter, recklessness is substituted for the intent element.
The grand jury disagreed, voting for "no true bill," i.e., no indictment.
I don't know what happened in the grand jury that was investigating Eric Garner's death.
But what I do know is that twice in the last week, state-level procedures have proven wholly inadequate to protect the rights of citizens of color against out-of-control police officers.
In Garner's case, the video is indisputable. Garner did not commit a violent crime. He was not accused or even suspected of having committed a violent crime. The NYPD's treatment of him was unreasonable and brutal, and he died.
Our Constitution guarantees to all of us the equal protection of the laws. It guarantees to all of us that our civil rights may not be infringed without the due process of law.
Eric Garner's death was mostly indistinguishable from an extrajudicial execution.
The Justice Department needs to step in. Because the State of New York has proven unwilling to do so, the officers responsible for Garner's death must be held to account in the only way that's left: with federal civil rights charges.
Until that happens, I can't breathe.
None of us can breathe.
On July 17 of this year, while he was standing on a sidewalk in Staten Island in New York City, Garner was approached by members of the New York Police Department and confronted with the accusation that he had been selling cigarettes without a license to do so--a charge that Garner repeatedly denied.
This was apparently not the first time police officers had confronted Garner with the charge, and as anyone might do, who believes he is being unfairly singled out for mistreatment by the authorities, Garner protested.
After Garner began resisting what he considered to be harassment, four NYPD officers moved to restrain him, pushing his arms behind his back. One officer, Daniel Pantaleo, put Garner into a chokehold. That is, he crooked his elbow around Garner's neck and squeezed in an effort to block Garner's ability to breathe. Garner repeatedly cried, "I can't breathe! I can't breathe!" as he was being choked. Together, the four officers bulldogged Garner to the ground, and one officer pressed Garner's face into the concrete. Garner was handcuffed behind his back and made to lay on the ground, unconscious, while no one administered any sort of medical aid to the distressed man. Eventually he was transported to a hospital.
An hour after the incident began, Eric Garner was dead.
We know all of these things are true because a bystander captured the entire incident on video.
I am particularly sensitive to the mechanics of what happened to Eric Garner because, like Garner, I am a very large man. Garner was reported to be over 350 pounds. In the video, his body type is evident--he was muscular, but he was also very overweight, and he was not flexible. When you have that body type--and I know this because I have that body type--if someone forces your arms behind you, the pain is excruciating. Resistance to that act is completely involuntary. You will summon whatever strength you have to stop your arms from being pushed backward.
Having your arms pinned behind your back, when you have that body type, makes breathing more difficult.
When you add in that Eric Garner was only marginally able to breathe under the best of circumstances, the chokehold that Officer Pantaleo administered became deadly.
The New York Penal Code, section 125.20, defines first-degree manslaughter as having occurred when, among other things, "With intent to cause serious physical injury to another person, [the accused] causes the death of such person or of a third person."
The medical examiner ruled that the cause of Eric Garner's death was "homicide by chokehold."
But what of the intent element of a manslaughter charge? In 1985, the NYPD banned the use of chokeholds, allowing only a single exception, when the officer's life is in danger and the chokehold is the least dangerous alternative method of restraint.
In 1993, the NYPD removed the exception.
And what was the NYPD's justification for the chokehold ban? The fact that chokeholds, which cut off oxygen and blood flow to the brain, sometimes cause serious physical injury or death.
When Pantaleo put Eric Garner in a chokehold, he did so intentionally. In other words, he chose to use that technique. He had to know that what he was doing carried a significant likelihood that Eric Garner would die or be seriously injured as a result. An intentional act plus knowledge of its potential consequences implies the intent to cause those consequences.
But even if you disagree what that view of intent, when you add in that Garner repeatedly told Pantaleo that he couldn't breathe--indicating that serious injury was imminent--and Pantaleo continued to choke him, surely you can't disagree that intent was there.
Or if that's not enough, surely you can't disagree that an intentional act plus knowledge of its potential consequences implies recklessness. In second-degree manslaughter, recklessness is substituted for the intent element.
The grand jury disagreed, voting for "no true bill," i.e., no indictment.
I don't know what happened in the grand jury that was investigating Eric Garner's death.
But what I do know is that twice in the last week, state-level procedures have proven wholly inadequate to protect the rights of citizens of color against out-of-control police officers.
In Garner's case, the video is indisputable. Garner did not commit a violent crime. He was not accused or even suspected of having committed a violent crime. The NYPD's treatment of him was unreasonable and brutal, and he died.
Our Constitution guarantees to all of us the equal protection of the laws. It guarantees to all of us that our civil rights may not be infringed without the due process of law.
Eric Garner's death was mostly indistinguishable from an extrajudicial execution.
The Justice Department needs to step in. Because the State of New York has proven unwilling to do so, the officers responsible for Garner's death must be held to account in the only way that's left: with federal civil rights charges.
Until that happens, I can't breathe.
None of us can breathe.
Tuesday, December 2, 2014
Race to the bottom
I spent many of my formative years in Pine Bluff, Arkansas. The Pine Bluff of my 1980s youth was already in a state of decline and decay, but it had not yet been abandoned by a white population seeking opportunity in other locations.
Although I grew up a white person in a city with a large black population, looking back, I have to admit that it was a partially segregated experience. There were black kids in my classes at school, although the persistence of "neighborhood schools"--Pine Bluff somehow avoided the busing program that marked desegregation efforts in larger cities--meant that the schools I attended there, Southwood Elementary and Oak Park Elementary, were majority-white in a city that was barely so, if at all. These schools stood in start contrast to Carver and Indiana Street, which served the "black side of town" and had few white students.
The churches, of course, were almost completely segregated. (Martin Luther King famously referred to 11 a.m. on Sunday morning as the "most segregated hour in American life.") Near the end of my tenure in Pine Bluff, there were a handful of black folks who attended the church where we were members, not without some controversy, but it was unusual.
The other social aspect of my life in Pine Bluff centered around sports. Most of the time, I played sports through the Seabrook Youth Center--which we referred to as the Boys' Club--which was expressly a white-only organization.1 As a kid I didn't understand that, but when you're a kid, when people tell you what the rules are, you tend to follow them, or at least respect them. As an adult, I'm embarrassed to have been a part of it, but the truth is that it was the only opportunity in town, to my knowledge, so I have to be careful in my criticism.
1 At some point after I left, the club became a YMCA, which I assume ended the formal racial restrictions, but it also moved to the predominantly white southern part of town. I believe it has now dropped the YMCA affiliation.
Little League Baseball was big in Pine Bluff, and while the organization divided Greater Pine Bluff into leagues that were partially segregated in the same manner as the schools, there were black kids on my teams, and we routinely played against teams that had black players--or in some cases were all-black. I don't remember anyone ever making a big deal of any of that. The closest I ever heard anyone come to mentioning race was when a biracial boy, whose skin was brown but who had a white mother, was the target of some questions from another boy about how he could be black when his mother was white.
In 1988, when I was 12, we moved to Sheridan, which was at that time lily-white, and which still is, more or less. Sheridan differed from Pine Bluff in some important ways, but it mostly did not differ in my experience with black people, despite the fact that Sheridan is much whiter than Pine Bluff. There were a handful of black kids in the Sheridan schools, but they lived elsewhere in the geographically large district.
A few months ago, a white friend from Pine Bluff remarked about how people--like us--who have lived in a racially diverse place tend to be more able to talk intelligently about racial matters. I've turned her comments over in my mind over the last week or so. I'm not sure that my experience in Pine Bluff was particularly eye-opening as regards the lives led by black people in the same city, but there was a sort of proximity that someone who grew up in a mostly white area would not have had.
Although I grew up a white person in a city with a large black population, looking back, I have to admit that it was a partially segregated experience. There were black kids in my classes at school, although the persistence of "neighborhood schools"--Pine Bluff somehow avoided the busing program that marked desegregation efforts in larger cities--meant that the schools I attended there, Southwood Elementary and Oak Park Elementary, were majority-white in a city that was barely so, if at all. These schools stood in start contrast to Carver and Indiana Street, which served the "black side of town" and had few white students.
The churches, of course, were almost completely segregated. (Martin Luther King famously referred to 11 a.m. on Sunday morning as the "most segregated hour in American life.") Near the end of my tenure in Pine Bluff, there were a handful of black folks who attended the church where we were members, not without some controversy, but it was unusual.
The other social aspect of my life in Pine Bluff centered around sports. Most of the time, I played sports through the Seabrook Youth Center--which we referred to as the Boys' Club--which was expressly a white-only organization.1 As a kid I didn't understand that, but when you're a kid, when people tell you what the rules are, you tend to follow them, or at least respect them. As an adult, I'm embarrassed to have been a part of it, but the truth is that it was the only opportunity in town, to my knowledge, so I have to be careful in my criticism.
1 At some point after I left, the club became a YMCA, which I assume ended the formal racial restrictions, but it also moved to the predominantly white southern part of town. I believe it has now dropped the YMCA affiliation.
Little League Baseball was big in Pine Bluff, and while the organization divided Greater Pine Bluff into leagues that were partially segregated in the same manner as the schools, there were black kids on my teams, and we routinely played against teams that had black players--or in some cases were all-black. I don't remember anyone ever making a big deal of any of that. The closest I ever heard anyone come to mentioning race was when a biracial boy, whose skin was brown but who had a white mother, was the target of some questions from another boy about how he could be black when his mother was white.
In 1988, when I was 12, we moved to Sheridan, which was at that time lily-white, and which still is, more or less. Sheridan differed from Pine Bluff in some important ways, but it mostly did not differ in my experience with black people, despite the fact that Sheridan is much whiter than Pine Bluff. There were a handful of black kids in the Sheridan schools, but they lived elsewhere in the geographically large district.
A few months ago, a white friend from Pine Bluff remarked about how people--like us--who have lived in a racially diverse place tend to be more able to talk intelligently about racial matters. I've turned her comments over in my mind over the last week or so. I'm not sure that my experience in Pine Bluff was particularly eye-opening as regards the lives led by black people in the same city, but there was a sort of proximity that someone who grew up in a mostly white area would not have had.
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