Unpublished Op-Ed

Mark Kleiman and I wrote this in February 2017, but never had it published. I thought that it might be worth posting at this time.

Some Words of Advice for Federal Employees

Receiving directives inconsistent with good government – if not worse – creates one of the most difficult situations a civil servant can face. As former Justice Department staffers, we have some advice to offer Federal employees when such situations arise, as they seem likely to do often under the current regime.

1.       When told to implement a policy that is counter to statute, regulation, or the stated and authorized goals of the agency, take good notes; such directives rarely come in writing. Then go back to your office and write down your understanding of the recommended policy, making sure you have correctly described what you were told. Then send that account as a memo to your superior.

2.       Whether or not you receive a reply, follow up with a detailed list of issues and concerns, both pro and con, involved with proposed policy or action. Describe them in full context and cite the relevant legislation, executive orders, and constitutional issues. Send that, too, up the chain of command.

3.       You may also be at the receiving end of threats or other problematic situations that are meant to intimidate you. Write a memo to yourself and share it with a trusted friend as soon as possible, to establish a time line.

4.       Do not use your office phone or computer (or cell phone while in the office) for personal reasons, least of all to complain about these situations, as this may open you up to attack. If your agency expects you to be available for phone calls and text messages around the clock, get a cell phone that you use only for official business. You might want to use a text messaging app that encrypts the message, and ask your recipients to do the same.

5. Maintain a contemporaneous, written log on a ruled ledger with a sewn binding, so removal of any page will show. Enter every meeting, call, and significant email on successive lines in ink, leaving no spaces. Fill in any space on the right with a slash, so nothing can be added. Note the date, time, attendees, subject, and conclusions. Absent minutes, no one else will remember what happened a day later, so your record will become dispositive. This approach, laborious though it is, can provide valuable protection for anyone from a GS-1 to a cabinet officer.

6. If you decide to talk to a reporter, get the ground rules clear first. “On background” means you can’t be identified, but your agency can; “deep background” means that even your agency isn’t mentioned.  Any communication to the press about official business not previously cleared by your agency’s public information office will probably put you out of bounds; consider whether you’re willing to take the consequences. If you’re later asked about whether you were the source of a story, either tell the truth (and be prepared to find a new job) or refuse to answer.

There are already reports that White House Chief Strategist Steve Bannon has taken steps to erase the paper trail behind various Executive Orders. All the more reason for career civil servants and the political appointees more loyal to the country than to the ruling cabal to make as much of a record as possible.

Michael Maltz is Emeritus Professor of Criminal Justice and of Information & Decision Sciences at the University of Illinois at Chicago. He was a research analyst with the National Institute of Law Enforcement and Criminal Justice during the Nixon administration and had to deal with some questionable directives.

Mark Kleiman was Professor of Public Policy at the New York University Marron Institute of Urban Management. He served as Director of Policy and Management Analysis for the Criminal Division in the Carter and Reagan Administrations, never receiving an improper order.

Language gaps

I have been reflecting on two traditional habits of our media that have become not only dysfunctional but actively destructive.  First, reporting on Trump as though he is a basically serious person.  The press is, slowly, getting better about nailing Trump for lying, and using the word. Old habits die hard, and the habit of treating the discourse of a US president as being considerable, and assuming conventional links among utterance, belief, and intention is one of those. But it’s not working, because those links are broken in Trump’s case.

When someone says something, in any serious context, we take the utterance as some sort of forecast of behavior.  “Drive me around in my car and I’ll pay you $X” is a commitment, maybe enforceable in court; “I love you” uttered by anyone not a complete cad isn’t as firm an assurance of future behavior, but normal people take it as at least not meaning “I don’t care about you” or “Actually I love someone else”, and normal people say it, or don’t, knowing that.  People can change their minds, but the general rule applies,  especially for public figures and leaders: what you say is and is seen to be predictive of your future behavior. A colleague of mine said what it means to a Jew to be Bar Mitzvah is that you are now responsible to what you say.

Accordingly, presidential discourse has always been reportable as spoken: data that is predictive (not perfectly) of consequential actions. However flacks and commentators spin it, we have taken presidents’ words as considerable.   It’s time to stop what has become a mechanistic charade: we have a president whose speech, whether about values, beliefs, or promised action,  only predicts his behavior accidentally. He reneges on flat commitments like promises to give to veterans’ causes, to invest in infrastructure, and ‘deals’ like the one last fall about immigration.  He is relentlessly, doggedly ignorant about absolutely everything, so his statements of fact are not even hopes and wishes, but short-run chum for his most hateful base, whatever he thinks a rally audience wants to hear. When Trump’s rallies, tweets, and press events are broadcast the way a normal president’s events used to be, and when his environmental policies are presented as though the fact assertions they rest on are on this side of the line between knowledge and witchcraft, they are flatly misrepresented. “Trump said X today” is simply not the same kind of report as it would be regarding the utterance of a responsible adult; tradition is a poor guide now. “Trump said X” means “the last person (or rally crowd) who flattered Trump in his presence, or his latest instructions from Putin, told him to say X” and little more.


Continue reading “Language gaps”

The treason debate

The founding fathers set down a very specific definition of treason, partly because of a history of British monarchs beheading people with whom they were personally displeased for one reason or another on treason charges. Especially back when state, nation, and government were not well distinguished, nettling the king was easily treated as a capital crime.

Since adoption of the constitution, the legal, technical, operational definition of treason in the US has involved a (i) foreign (ii) enemy, and an enemy is a party with which we are at war.  Not just competing for arms sales or disliking for human rights violations or even mutually rattling nuclear weapons: at war.

OK, it’s technically wrong to accuse Trump of treason, at least in the sense that he might face a sentence from a court for his behavior; James Risen has a deep dive into this question here.  But we really need another word for what Trump is doing. I find it incontrovertibly evident, more than a year into the administration’s term, that Putin has a collar and leash on him and his calling a lot of shots. Trump’s inability to say a bad word, or even throw a teeny bit of shade at him, satisfy me as evidence of a financial chokehold, blackmail evidence of personal or financial behavior, or something else (or all of the above), and that he is basically a Putin stooge (whatever other revolting qualities he presents) fits comfortably with the news of Russian assistance to his election coming out today.

Is Russia an enemy? OK, maybe we need another word, but Putin doesn’t just want to sell more natural gas than we do, or even prevent Russians from listening to hip-hop: he wishes us ill, and the primary expression of this wish is that he has done everything he can to saddle us with a deliberately ignorant, racist, kleptocratic, mendacious, incompetent whose principal pleasures are being adulated and hurting the weak and unfortunate, and who has salted the government with liars, cheats, deliberate saboteurs like Pruitt and Devos, and completely incompetent bozos.

Some words have simultaneously a common, conversational but well-understood and serviceable, meaning and a specific, narrower, technical one in particular contexts. A vehicle is anything that rolls and carries people or stuff, including a riding lawnmower, but also a machine operating on the public ways and subject to traffic rules. My students can conspire to organize a surprise party for me, and conspiracy  is also a sharply defined criminal offense. I’m ready to (i) recognize treason as acting affirmatively against the welfare of one’s country in cooperation with, or in the service of, foreign interests, and at the same time the particular crime delineated in the constitution, and (ii) to characterize the governance of the Trump administration as treasonous in the first sense. If anyone has another word for that, the comment section is open.

Cross-border election meddling and “whataboutism”

The Russian government intervened, overtly and covertly,  in the 2016 U.S. elections to damage Hillary Clinton and help Donald Trump. Whether the primary goal of that activity was actually to elect Trump, or instead merely to weaken Clinton in the event of her expected victory, isn’t really an answerable question.

The obvious things to say about this are:

  1. That was a wicked thing for Putin & Co. to do.
  2. Encouraging that help, accepting it, exploiting it, and subsequently covering it up was and is a wicked thing for Trump & Co. to do. It should mark everyone who engages in it and defends it as profoundly disloyal, and make all of them political pariahs.

The defenders of Putin and Trump make four responses: Continue reading “Cross-border election meddling and “whataboutism””

Kiwi election

The New Zealand election: cheap, efficient, and rational

I happen to be in New Zealand just now, and the Kiwis went to the polls last Saturday (September 23). The right-of-centre National Party won a near-majority of seats and only needs to secure two more votes from the minor parties to form another government. I actually predicted this, but didn’t get around to posting before. You can trust RBC bloggers implicitly, right? Right?

A few points for Americans, Brits and other outsiders.

An electoral system designed by adults
New Zealand has a unicameral parliament, filled by the “mixed-member proportional” system, aka “Additional Member”. This gives electors a dual vote for party and constituency candidate. The 71 constituency MPs are topped up from party lists to give proportionality. It’s the sort of scheme you get if you ask dispassionate Vulcans to suggest something, which is more or less how the Germans got it, and later the devolved assemblies for Scotland, Wales and London. So you tend to get moderate coalition governments. (The disadvantage is that you give too much leverage to small parties that can often act as kingmakers, instead of freezing them out completely as FPTP does.) All four of the main parties have been in and out of government in the last decade. Even the populist, anti-immigration “New Zealand First” party is a very genteel version of the type. Can you see the Front National, UKIP or Trump’s GOP including in their health policy a proposal to “increase longitudinal data collection in health like a perinatal database”? That’s as wonkish as the stuff HRC was sneered at for.

Helping voters vote
New Zealand is worried about the participation rate in elections: the time before it shockingly fell below 80%. Voting is not compulsory, as in Australia. USA 2016: 55%. Unlike the US, New Zealand is doing something to make voting easier. They have trialled early voting kiosks in shopping malls, covering a range of nearby constituencies. Instant registration? Naturally. Paper ballots? Naturally. There are automatic recounts and reconciliation with the electoral roll, so the definitive results take two weeks. It’s a good system, but nothing exceptional. It’s the USA that is the outlier, sticking to a worm-eaten, discriminatory, corrupt, profligate and inefficient electoral system out of Hogarth.
BTW, part of Lu’s Brazilian family have happily settled in New Zealand. They aren’t naturalized but have permanent resident rights. They were allowed to vote. And why not?

Democracy on a budget
Expenses for the seven-week campaign are capped by law. Counting the flat allowances for parties, constituency candidates, and the unequally distributed allocation for broadcasting airtime, the most the National Party at the head of the list can spend is NZ$5,091,260. The total costs of all 12 parties, many of them tiny no-hopers, must be in the area of NZ$25m, or US$18m. That’s to elect the government for a country of 4.4m people and an area similar to Colorado. The special election in Georgia for a single Congressional seat cost over $30m.

What health policy?
A big yawn. Nobody wants to change a system that’s working well. The parties put health well down the list of issues: the campaign has been about immigration, housing, transport infrastructure, and taxes. This disinterest is entirely normal. Campaigns in the UK feature the NHS, but it’s all about funding levels not the principle. Once you fix healthcare, on any one of half-a-dozen statist systems, it stays fixed. Here are the health pages on the parties’ platform websites: National Party, Labour, New Zealand First, Greens. See if you can find anything radical.

Slaughter of the innocents

Rick Snyder, the Republican governor of Michigan, set the Flint water crisis in motion by implementing his deeply-felt beliefs (I infer from his behavior, always the best evidence) that spending tax money, or exercising government regulatory power, for the benefit of poor people-especially poor black people who probably vote wrong if you let them grow up-is a moral offense.

He is also a very strong (not the strongest/rape-and-incest) abortion opponent, and we don’t have to infer, because he’s on the record about that. It turns out he and his gang of vicious, reckless, subordinates committed the biggest mass abortion episode in US history; lead in Flint’s water not only damaged thousands of little kids for life, but killed hundreds in utero.

Nice, Rick.

A week to remember

Tomorrow morning, congress will be back at work, with a dozen working days to knock off a list of tasks that would be daunting even without an infantile, grievance-besotted, Russia-crazed president throwing sand in the works, and even if its own managers didn’t have a Freedom Caucus of know-nothing ideologues hanging on its ankles, and even if Trump hadn’t just tossed it the anvil of immigration reform.  Wow.

But that’s not all; this month only (but continuing for weeks and months of political hassle), you also get Harvey recovery, and wait, if you order now, and also if you don’t, you get two or even three additional exciting climate/weather events !  “Disturbance 1” is chugging west from near Cabo Verde at 10 mph with (at this writing) an 80% chance of getting organized within five days; “Disturbance 2” is brewing up exactly where Harvey started as a little baby orange X in the southern Gulf.

Irma is shaping up to be a very interesting event, as it is now drawing a bead on the east coast of Florida, likely to sail over warm water south of the Bahamas, turn right, and run north along the coast as a 3 or a 4. Of course these projections have a wide error band, but for now, let us reflect on what Neil Frank, the former director of the National Hurricane Center spent his career warning us of about just this storm.

(1) Evacuation routes in this region mostly run north and south; roads going inland (and you have to go a ways inland to be ahead of the storm surge) are basically narrow streets that peter out quickly among the alligators.  If the storm is following the shore north from about Miami, driving along the coast is not going to help you much.

(2) Almost no-one living on this coast has ever experienced a major hurricane and has no idea what to expect. Since the last one, there’s been significant sea level rise, increased paved area, land subsidence, and lot more people. There is no real high ground in  south Florida. Whole streets in Miami flood now just from a high tide.

(3) From Boca Raton south is a miles-long row of high-rise condominium towers lined up along the beach like dominoes, many taller than the space between them.  They are built on sand under (i) Florida building codes and (ii) Florida local government administration. The former are not as insouciant and optimistic as the rules that put Houston under water last week, but close; the latter is not as corrupt as Louisiana’s, but, um…my father had an expression “as crooked as a dog’s hind leg” …

Frank used to predict that the storm surge will wash the sand out from under some or many of these buildings and they will tip over, perhaps into the condo tower next door. If evacuation doesn’t work, there will still be people in them.

(The governor overseeing this mess will be the deeply odious, reactionary, willfully ignorant, climate denier Rick Scott, who’s idea of Christian charity is drug tests for welfare recipients, and of responsive government is allowing Floridians to be sure their children don’t learn anything they don’t know, like evolution.)

Irma is due (according to current model runs) about next weekend; the other two, too early to tell. Oh yeah, Russiagate continues to slowly fulminate, and North Korea…oy.

The writer Saki, back at the beginning of the last century, said “the Balkans create more history than can be consumed locally.” I think current times create more news than society, or anyone in it, has the bandwidth to cope with. Or that the remaining adults in government can react to usefully.

Let Trump do his job

I’m slow to outrage, but I’ve had it with the lying, fake-news press and the deep state apparatchiks that want to keep America ungreat. The president has stepped down from the comfortable life he earned by his unmatched business skill to serve us in the corrupt swamp of politics, but does he get help? loyalty? He does not, and we had better hope he doesn’t give up on us and walk out the door in frustration.

Democrats refuse to vote for the Republican health care plan he clearly instructed Ryan and McConnell to pass; is this any way to treat your leader? They endlessly refuse to confirm appointments on the thin excuse that Trump hasn’t nominated anyone for them.  How hard is it to pass a stack of confirmations with the names left blank for use as needed?  Is this the kind of obedience we expect of our lawmakers?

Don’t even ask about Mueller.

Most outrageous recently, and the main reason I’ve just hit the wall, is the constant sabotage of Donald Vladimirovich’s ability to get marching orders from his daddy.  Putin is better looking than Trump, his women are more beautiful and more accomplished, he’s more ruthless, he’s killed more people and enriched more of his gang members, and he’s stolen way more money.  For our nation to take direction from such a leader is probably the greatest gift Trump can bestow-of course he’s gone in the tank to him; how else is he supposed to know what to do day by day?-but at every turn, some treasonous, small-minded reporters interfere with the normal channels by which orders from Moscow could flow. The secret link through the Russian Embassy Jared creatively tried to set up, the secret meeting at the G20 dinner, the meeting Don Jr., Kushner, and Manafort took with 1 2 3  4  5 Russian messengers last spring, the tireless efforts of Flynn, and more: one after the other essential tool of governance torn from workable secrecy and left to dessicate and shrivel in public sunlight. Selling the presidency to Putin was the greatest deal the Donald ever made, and we’re stepping all over it.

Trump cannot be Trump if he can’t get confidential instructions from Putin, period, end of story. This treasonous undermining of basic governance tools by the press, and the leaking deep state fifth column, has to stop.

The London high-rise fire

The inferno in London is out, mainly because the entire flammable contents of the building have burned up.  Fire hoses cannot deliver water to the upper floors of such buildings, and the ladders trucks can bring to the scene don’t reach nearly high enough. Many more deaths will be recorded-I expect a toll in the dozens-as the search for the missing continues. Police and fire brigades told people to stay in their flats and close their doors rather than escaping, and those people have been incinerated. As the structure of the building, whether concrete or steel framed, has certainly been compromised, possible collapse will make it impossible to search for bodies for quite a while. [update 14/VII: they are using drones! Nature imitating art; the Economist big drone wrapup was published last week.)

How is such a thing possible?  Well, first we should note that dying in a fire is rare and getting more so in all industrialized countries: annual fire deaths per million in the US are only about 12, and remarkably, down by two-thirds since 1979. The UK is on a similar trend and about a third safer overall. We should also note, as more information about administrative and regulatory failures dribbles out, that this was housing for poor people.

The ways to avoid fire deaths are as follows:

  1. start fewer fires
  2. faster emergency response from fire brigades
  3. buildings that resist fire spread after ignition
  4. buildings that facilitate escape
  5. proper behavior by occupants
  6. better medical care for survivors

No. 1 is the biggie, and it has to do partly with electrical codes and enforcement, but progress in recent years has mainly to do with smoking, both less smoking overall and safer cigarettes. A third of residential fires used to be caused by cigarettes, usually dropped on upholstered furniture. Cigarettes used to be laced with enough saltpeter to keep them burning if not puffed on, so the tobacco company could sell another cigarette when one left in an ashtray consumed itself; at least in the US that’s no longer true. But fire can start in many ways; see 5. below.

No. 2 is occurring, because fewer fires mean engine and ladder companies are less busy, and because it’s politically difficult to close unnecessary fire stations. Nearly all engine and ladder sorties in the US now are actually medical calls.

No. 3 is a matter of codes and code enforcement: hour-ratings for partitions and doors, less flammable materials, UL listing for electrical components, etc. and honest, effective inspections to be sure that’s all happening. Otherwise known as job-killing regulatory government meddling in the free market, don’t you know. Here the US is disadvantaged by traditionally building with wood rather than masonry. It’s also a matter of the most reliable, proven, life- and building-saving technology, sprinkler systems; something the Grenfell Tower seems not to have had, even in the corridors and escape routes.

No. 4 involves a variety of features. Small things like an alarm system (have you checked the batteries in your smoke detectors lately?) and quick-release locks on the bars people in poor neighborhoods put on their first-floor windows matter. For larger buildings, it’s a matter of having two escape routes from every location, and one of these has to be protected from filling with the smoke that kills more people than heat and flame; an example is the exterior fire escape we see on older buildings. I was appalled to read in the Guardian that 1970’s high-rise UK buildings of the Grenfell era had  “one escape stair which is not designed for a mass evacuation, but is designed for a small number of people to get out whose individual flats are on fire”. No; two stairs, and one has to be open to the outdoors (sometimes an interior “fire court” open to the sky) at every landing. When I was working in architects’ offices in the 70s and 80s, this was completely standard practice. It still is. If you live in a high-rise, do you know how to get to your fire stairs in the dark? If not, practice.

Twenty-four stories is a long way to walk down in the dark, afraid, aroused in the middle of the night from a sound sleep, in pajamas or nothing, especially with terrified little children. I would not live above the twelfth floor of any building. I wonder if the people enjoying the view from high up in the fifty-story condo buildings popping up in New York think about this.

No. 5 includes some training (point the fire extinguisher at the base of the flames) and occasional drills, not filling your apartment with unnecessary inflammable stuff (what doomed the partiers at the Ghost Ship in Oakland), not storing the gasoline can for your lawn mower in the same room as a water heater, staying in the kitchen when you have a frying pan on the burner, and so on. And do you know where your kitchen fire extinguisher is, and how to use it, and have you checked the pressure gauge?

Where fire comes to your house from outside, as in Mediterranean climate landscapes that burn regularly and will do so more with climate change, you have to maintain what we call “defensible space” in California, and stay on top of it as grass and brush try to grow into it.

The Japanese have a long history of living close together in wood and paper houses, and cooking indoors on open charcoal fires, but their fire death record is not much different from other industrialized countries: this is assuredly the result of learning to respect fire, and that hibachi. It’s also socially unacceptable to have a fire in Japan, an expert in fire safety told me a few years back: if you do, even a small one, you probably have to leave your home and move to another city. The FEMA study linked above notes, interestingly, that incendiary suicides inflate Japanese figures.

Every catastrophe has multiple ’causes’, so there will be lots to learn about this one as the facts come in. Whatever they are, they will include irresponsible, probably corrupt, behavior by people who should have known better.

[update 14/VI] Useful stuff is beginning to come in.  Aside from the other terrible mistakes and oversights,  it appears the exterior cladding, a Chinese aluminum/polyethylene sandwich, is so flammable that testing in Australia was suspended after the first sample practically blew up in the lab. Here’s an excellent post-incident report from a very similar fire in Australia. It has everything:  ignition by cigarette, overcrowded units, cladding carrying the fire up the outside of the building…but also working alarms, sprinklers, and proper fire stairs for evacuation. Deaths and injuries: 0.

The Counterfactual

Consider where we’d be if Hillary Clinton had won the presidency. Benghazi would be resurrected; the email scandal would have been the subject of at least two congressional investigations; any progress in terms of the policies she and the Democratic Party had espoused would not only have been ignored, but would have been scathingly addressed – and the Donald would have been shouting “Fraud!” from the hilltops.

True, we’re in a parlous situation with our current administration, but look at what has been taking place throughout the country. If anything, the republic is in better shape for having this cartoon character “running” the country. The Republican Party is in a real quandary, with essentially every one of its priorities (the wall, immigration, health care, Social Security, tax “reform”) unable to get any traction. With a Clinton administration in power, they would probably have been able to pass their legislative agenda, but it would have been subject to veto after veto, hardly endearing Clinton to the country. As it now stands, we will have to suffer through a crazy time, at least until November 2018, at which time (from my lips …) the Democrats will take back at least the Senate, and Trump will throw in the towel.