My Country, With Liberty and Justice for All

He calls it “The United States of Mass Shootings”

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“Democracy,” by Langston Hughes (1949)

Democracy will not come
Today, this year
Nor ever
Through compromise and fear.

I have as much right
As the other fellow has
To stand
On my two feet
And own the land.

I tire so of hearing people say,
Let things take their course.
Tomorrow is another day.
I do not need my freedom when I’m dead.

I cannot live on tomorrow’s bread.
Freedom
Is a strong seed
Planted
In a great need.

I live here, too.
I want freedom
Just as you.

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No Rights Violated on Mulberry Street

[Update below]

Yesterday I started to write an e-mail, rewrote it a time or two, and finally sent it to the trash — I decided not to send it. I thought better of the message. Did I ‘cancel’ myself? ‘Censor myself’? So Fox News (and many others) would seem to have it this week in the Seuss Affair.

Along the same lines, Garrison Keillor’s Writer’s Almanac had this fun fact on Saturday: “[Gabriel García] Márquez allowed most of his novels to be adapted into films, with the notable exception of One Hundred Years of Solitude. He offered the rights to a producer once on the condition that they “film the entire book, but only release one chapter — two minutes long — each year, for 100 years.” Did Marquez violate his free speech rights by refusing to sell the rights to his most famous book? No, he simply did as he pleased within his rights. He didn’t have to answer to anyone for refusing to have the novel filmed.

The Doctor Seuss Foundation is the legitimate owner of the rights to Dr. Seuss’s books. The author left the rights to his books in his will. They now act for him. Their decision to remove some of his books from publication is well within their rights. Authors regularly burn manuscripts they don’t want to see the light of day. Sometimes they consign them to trunks. That’s not a violation of anyone’s rights. And no one should think authors have acted improperly if they want to be judged only on the works they do choose to have published. Late in life an author may withdraw a book from publication, no longer pleased with it — no longer thinking it shows them at their best. That withdrawal is not a violation of anyone’s rights. When authors die, they can designate someone to act for them about such matters, as Seuss did.

I hear someone unexpectedly coming through my front door. I take out a loaded pistol from the front hall table drawer. Just as I see who the intruder is, I put down the gun, unfired, realizing the intruder was a neighbor come to feed the cat, confused about what days I asked him to do so. In that episode, did I diss the Second Amendment? Hardly. It was my gun. I might have been within my rights to use it. I’m glad I didn’t because it would have been a tragic result. Instead, I acted responsibly, within my rights.

Rights give you latitude to do as you please. You are still morally obliged to act responsibly in the exercise of those rights. Even if someone else wishes you’d done something different (published the book, shot the gun), they can only be disappointed. They have no right to believe that somebody did somebody else wrong.

Fox News is showing its ignorance — or much more likely showing that it cares not one whit about the truth of things but only looking to get people upset.

[Update March 9, 2021. While I was writing this yesterday, I was wondering whether I should say more about copyright law in the United States, something in which I was immersed when I was at the American Council of Learned Societies in the 1990s. People who want their Seuss (and all of their Seuss) might perhaps prefer that the length of copyright were shorter — that works were released from copyright into the public domain sooner than they are at present. Currently a copyright lasts until the end of the creator’s life plus 70 years. That means Theodore Geisel’s work (Dr. Seuss’s) won’t enter the public domain until 2061. At that point, anyone will be able to make Dr. Seuss’s books available by publishing or copying them, but not until then without permission of the rights holder.

In a wonderful post today, Matt Yglesias goes there, and in considerably more depth than anything I imagined. Lengthy, but well worth the read. The original term of copyright, by the way, was 14 years with an option to renew for 14 years — a maximum of 28 years. If that were still the term of copyright (it can be extended by federal legislation), Seuss’s works would have entered the public domain in 2019.]

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What Went Wrong at the Capitol? Status of the Investigation

[Updated Below]

Since January 6, I’ve been following the investigation of what went wrong at the Capitol (see earlier posts here, here and here). How could a group of insurrectionists, supporters of Donald Trump, succeed in delaying the counting of electoral votes and almost succeed in thwarting the election of a new President? We still don’t know answers to the most important questions, but some clarity has emerged. This is simply an update. We will learn more, I hope and expect.

As Rohini Kurup and Benjamin Wittes make clear in a post on Lawfare, there are two important wings to the investigation: Was January 6 an Intelligence Failure, a Police Failure or Both? They argue that it was primarily an intelligence failure:

In testimony before the Senate Homeland Security Committee and the Senate Rules Committee, [top Capitol security] officials argued that police were well prepared for the events the intelligence assessment led them to expect. They were not prepared, by contrast, for the events that took place, which the intelligence agencies did not anticipate.

They wrote this before FBI Director Christopher Wray testified before the Senate Judiciary Committee. Tia Sewell and Benjamin Wittes provide a useful summary, also on Lawfare, of what we heard from Wray. He defended the work of the FBI and other intelligence agencies by pointing to raw intelligence that was provided to Capitol security officials in a variety of forms before the event. Sewell and Wittes are especially disappointed in the quality of the questioning by Senators from both parties: The Questions That FBI Director Christopher Wray Wasn’t Asked.

Wray stressed the number of open investigations the FBI has regarding white extremist groups, but was not pressed by any Senator about “the FBI’s almost total lack of visibility into the planning for Jan. 6.” I can certainly agree with that. I’m no FBI agent, but I knew that the event was worth watching live as it occurred. I knew something was going to happen. Why didn’t the FBI know what and by whom?

Sewell and Wittes also point to a second question Wray was never asked: whether there is ‘implicit bias’ in how the FBI assesses possible security threats. “[T]here is a question about whether the FBI’s culture is as sensitive to the dangers that can flow from the of violent fulminations of conservative white men as it to the dangers of similar fulminations from Islamist extremists.”

Clearly there is more to be learned about the intelligence failure, because there certainly was a failure of intelligence. We don’t know why, especially whether there was any intentionality to that failure. If the FBI had raw intelligence on the coming event and the target was the Congress and the Vice President, why wasn’t this lifted up in a more dramatic and pointed fashion to the security forces. Wray and his deputy both acknowledged that they hadn’t read the summaries that were passed along to Capitol security forces until after the event. No one was providing focus or emphasis. Why?

All this does not mean there was not also a police failure. While Capitol police and Metro DC police acted admirably for the most part, they were overwhelmed. And reinforcements were not provided. Testimony from the commanding general of the D.C. National Guard to the Senate committees was especially shocking. Here’s a summary from the Washington Post:

Maj. Gen. William J. Walker didn’t pull any punches in detailing what he called “unusual” Pentagon restrictions that hamstrung his ability to provide emergency assistance. He laid out a timeline that began at 1:49 p.m. with a frantic phone call from the then-head of the Capitol Police reporting a “dire emergency” with the breach of the security perimeter by hostile rioters and requesting immediate assistance. Maj. Gen. Walker promptly alerted Army leadership, but said he encountered resistance from officials worried about the “optics” of sending in troops. He said he didn’t receive authorization to send forces to the Capitol until 5:08 p.m.

That is, a delay of three hours and 19 minutes while the nation’s citizens watched the siege on live television. We need to know who made what decisions and when that day (and before that day). Does the responsibility lie with Pentagon officials appointed by Donald Trump? Does it lie with Donald Trump himself. Donald Trump had taken a solemn oath to “preserve, protect and defend the Constitution of the United States.” On that day, he failed to fulfill his oath of office. (Marcy Wheeler on Empty Wheel raises some good questions.)

We need sworn testimony. Then-acting Defense Secretary Chris Miller was not the person who testified. We need to hear directly from him. Instead, he sent Robert Salesses, a Deputy Assistant Secretary for Homeland Defense Integration and Defense Support of Civil Authorities.

Miller had been named Acting Secretary of Defense by President Donald Trump on November 9, 2020, following Trump’s firing of Secretary of Defense Mark Esper. Why was Esper fired so late in the Trump presidency? What direction or expectation was Miller operating under as Acting Secretary of Defense on January 6?

This event was both an intelligence failure and a police failure. That we know. What we don’t know is the degree to which government officials provided support and assistance to the insurrection by doing less than they should have — by looking away or by delaying.

Update, March 11, 2021: ProPublica asks good questions.

Update, March 16, 2021: Army initially pushed to deny District’s request for National Guard before Jan. 6 in the Washington Post. On Empty Wheel, Marcy Wheeler continues to read legal filings in the case with care (for instance), and to report other important bits of information (for example).

Update, March 18, 2021: 86 Minutes: Two Arrests Thwarted and Three Cops Disabled by “Bear Shit” posted by Marcy Wheeler on Empty Wheel.

Update, April 15, 2021: D.C. Police requested backup at least 17 times in 78 minutes during Capitol riot | Visual Forensics, Washington Post.

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Riot or Insurrection on January 6?

Much of the reporting about the January 6 event at the Capitol describes the event as a “riot.” (Here a recent LA Times story, for example; and here is a recent CBS News account.) Less often, it seems, the event is described as an “insurrection.” (Here is a recent NPR story, for example; and here is an account from Politico.) Just for good measure, here’s an account from the Dallas-Fort Worth NBC affiliate that uses both terms:

But which is it? Does it make a difference? I think it does.

A “riot” is a public disturbance, a violent disorder. It is a group of upset people losing or shedding self-control. The Cambridge English Dictionary says a riot is an occasion when a large number of people behave in a noisy, violent and uncontrolled way in public, often as a protest.” It is tumult.*

An “insurrection” is a violent uprising against an authority or government. The Cambridge English Dictionary says an insurrection is “an organized attempt by a group of people to defeat their government and take control of their country, usually by violence.”

The difference is intent and organization. In an insurrection, people have a purpose; they are not just upset. The purpose is to overthrow or overturn some established authority.

In the January 6 event, there may have been people who were at the rally at which Trump spoke who were merely upset and who made their way to the Capitol to protest. But the people made this a newsworthy event were not just upset. They had a purpose to get into the Capitol building, and to do that despite barricades, police lines, locked doors and other indications that they should not enter the building. They used violence to gain access. Once inside, their purpose was to lay hands on members of Congress and to stop the counting of electoral votes. This was not a riot. It was an insurrection.

Here’s the etymology on “riot:” riot (n.) c. 1200, “debauchery, extravagance, wanton living,” from Old French riote (12c.) “dispute, quarrel, (tedious) talk, chattering, argument, domestic strife,” also a euphemism for “sexual intercourse,” of uncertain origin. Compare Medieval Latin riota “quarrel, dispute, uproar, riot.” Perhaps from Latin rugire “to roar.” Meaning “public disturbance” is attested by late 14c.

Here’s the etymology on “insurrection:” insurrection (n) an uprising against civil authority,” early 15c., insurreccion, from Old French insurreccion or directly from Late Latin insurrectionem (nominative insurrectio) “a rising up,” noun of action from past participle stem of insurgere “to rise up” (see insurgent).

*Note: Merriam Webster gives the following definition of a riot: “(Entry 1 of 2) 1a: a violent public disorder, specificallya tumultuous disturbance of the public peace by three or more persons assembled together and acting with a common intent b: public violence, tumult, or disorder.” So the first definition does speak of intent, but this seems to be the only dictionary that carries that element.

To my ear, those involved in a riot may have a common subject about which they are upset, an event, a policy, a decision. But in the riot they are not coordinating their behavior with a common intended purpose. They are making noise, overturning things, smashing windows, and the like.

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