The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more than $14,294,000,000,000, outstanding at one time, subject to changes periodically made in that amount as provided by law through the congressional budget process described in Rule XLIX [1] of the Rules of the House of Representatives or as provided by section 3101A or otherwise.

31 U.S.C. § 3101(b)[1]

[OK, this is Larry and I’m back again to discuss yet another way our government might fall apart. You’re familiar, no doubt with what happens when Congress fails to appropriate money to fund one or more government activities. People have to go home. It was decided way back in the Carter Administration[2] that government employees who went to work when there were no appropriations, but weren’t “essential” to protect life or property, quite likely were committing a criminal act. What’s the crime? Why, violating the “Anti-Deficiency Act,[3]” i.e., the statute that prohibits federal employees from obligating the government to spend money when they don’t have the authority to do so. That’s what “appropriations” are: the authority to financially obligate the government.

You see, when federal employees go to work they’re automatically entitled to be paid for their time. So just by showing up they obligate the government to pay them, even when the government has no authority – no appropriations -to do so. Well, couldn’t an employee offer to work for free for a day or two, just to keep things running? No, says our government; federal employees have no authority to waive their right to be paid.[4] So they have to stay home, unless they protect life or property.

So when was that last a problem? No doubt you remember: It was 4 years ago, back when we faced a “fiscal cliff.” The “cliff” was that there were no appropriations for a time to support some government operations, and some government folks had to stay home. You’ll be happy to know that we don’t have the same situation this month. Appropriations are in place, for the most part[5]; but now we have a different problem. The problem is, when the bills come due, we [the United States] may not have the cash to pay them.]

Burgeoning Debt

How could that be? Well, because the U.S. runs a deficit every year; while it collects lots of taxes and has other revenues, it doesn’t collect enough to pay all the bills. The U.S. funds its yearly deficit by borrowing on the Treasury market. Unfortunately Congress has limited the total amount the U.S. can borrow; you can find that in the quote that begins this piece; and, once again, we’re approaching the ceiling.[6] By the way, the current ceiling isn’t $14.3 trillion; it’s higher, due to subsequent adjustments. The Treasury keeps track of these sorts of things.[7]

So what is Congress to do? Raise it again? And if so, will there ever be a point at which we can stop doing that?[8] What happens if eventually there’s just too much debt out there? When will we know that’s the case?

That’s what the argument is about. The issue was kicked over to the “Government Accountability Office” back in 2010 which, of course, duly issued a report. The GAO’s basic opinion was that the debt limit doesn’t restrict Congress’ ability to authorize spending at any level. Instead, it restricts the Treasury’s ability to pay the inevitable bills.[9] That is, it creates a series of crises followed by successive increases in the ceiling. “Meanwhile,” GAO said, its “long-term simulations show that absent policy changes, federal debt will increase continually over the next several decades.”[10]

Debt Default

So here we are, approaching the ceiling again. Perhaps it’s time to start thinking about the unthinkable. What happens if the U.S. simply doesn’t pay all of its bills? Well, that’s not a new idea. The Treasury is adamantly opposed to that kind of thing. It says: “Failing to increase the debt limit would have catastrophic economic consequences. It would cause the government to default on its legal obligations – an unprecedented event in American history. That would precipitate another financial crisis and threaten the jobs and savings of everyday Americans – putting the United States right back in a deep economic hole, just as the country is recovering from the 2008 recession.”[11]

That’s the current position of the Trump Administration, but it’s not very much different from that of its predecessors. Why do all these people reach the same conclusion? Well, at bottom it’s because they’re convinced that, if the U.S. defaults an any debt payments, of any type, that ultimately would reflect on our national credit rating – which currently is very good – causing it to be downgraded, and thereby raise the interest rate we might have to pay for future borrowings.

That wouldn’t be a problem, I suppose, if we ran a budget surplus; but we don’t; we need to borrow lots every year; and rising interest rates will simply add to the amount we borrow. I don’t know if that would lead to “another financial crisis;” it’s said that we’ve never defaulted before, so who really knows? But rising interest rates can’t be a good thing for any debtor who has to go back to his [or her] lenders.

Prioritize Payments?

So are there other options? Well, Congress thought of some. There’s the notion, for example, that perhaps we ought to stick with the current debt limit, and simply prioritize our payments according to what’s important to us. Like the middle-class person strapped for cash, we might skip the electric bill for a month and pay the car loan, or vice versa. In truth a proposal sort of like this passed the House a couple of years ago[12]. [As near as I can tell, it never made it through the Senate.] It basically exempted from the debt ceiling all principle and interest payments due on bonds (a) held by the public, or by (b) the Social Security Trust Funds. All other payments would be curtailed.[13]

The bill is interesting – especially to someone on Social Security – but all such attempts to prioritize debt payments were [and apparently are] opposed by the Treasury. In May of 2011 it said: “Adopting a policy that payments to investors should take precedence over other U.S. legal obligations would merely be default by another name, since the world would recognize it as a failure by the United States to stand behind its commitments.”[14] No doubt the same could be said about an attempt to give preference to payments under Social Security.

Coin More Money

Or perhaps Congress already has resolved the problem a different way. Four years ago we pointed out that, in addition to appropriating funds and incurring debt, Congress has the power to coin money. And, according to The Washington Post, Congress may have given one bureaucrat the power to solve our problem with the debt limit.[15]

It seems that the Treasury Secretary has authority “notwithstanding any other provision of law,” to “mint and issue platinum coins in such quantity and of such variety as the Secretary determines to be appropriate.”[16] So, problem solved: All the Treasury has to do is mint up a few such coins in the $ 1 trillion denomination, deposit them wherever it keeps valuables (perhaps in Fort Knox[17]), and offset that amount from our outstanding debt. Presto! Federal net debt lowered well below the statutory ceiling.

We’ve said this before, by the way, but not seriously. Other countries have tried to print money to get out of a fix, but haven’t had very good results.[18] No doubt we’d have the same experience if we did the same thing.

Conclusion

Sometimes I wonder if, centuries from now, future archeologists, combing through the rubble of the Great American Empire, will stop to wonder what happened, why that Great Thing eventually collapsed. Will they find we had a deadly plague, or a series of them; or a great famine, due to global warming; or a series of violent, destructive wars? Or will it be something much simpler than that. Will they find, perhaps, that we failed because we had an accounting problem, and just couldn’t control our money?

I have no idea. What do you think?

 

 

 

[1] This language appears in Title 31, Money and Finance, Subchapter III, Financial  Management, Chapter 31, Public Debt. The official online version of this part of the U.S. Code is available from the Government Publishing Office at https://www.gpo.gov/fdsys/pkg/USCODE-2010-title31/pdf/USCODE-2010-title31-subtitleIII.pdf    If you would rather try an unofficial, but reliable version, try the Cornell Law School, at https://www.law.cornell.edu/uscode/text/31/3101

[2] James Earl Carter was President of these United States from January, 1977 through January, 1981. See the Wikipedia entry at https://en.wikipedia.org/wiki/Jimmy_Carter  . That’s also when the Iranians threw out their Shah and went with the theocracy they have today. Some say the current government of Iran doesn’t like us because we supported the Shah, and sold him lots of weapons, and perhaps helped him gain power in the first place.  This blog is not about that.

[3] For a non-technical discussion, see Time, Nicks, The Man Who Invented the Government Shutdown (Oct. 09, 2013), available at http://swampland.time.com/2013/10/09/the-man-who-created-the-government-shutdown/

[4] Id. We’re looking for a copy of the old Civiletti opinion. If we find it, we’ll publish it in a later blog.

[5] Actually, that’s what I think, but I haven’t researched the matter, so I’m not offering an opinion as to whether there are appropriations currently in place to cover all government functions, or whether they are adequate for their untended purposes. That’s not what we’re discussing today.

[6] See  GAO 11-203, Debt Limit, Delays Create Debt Management Challenges and Increase Uncertainty in the Treasury Market (February 11, 2011), available at http://www.gao.gov/products/GAO-11-203 . This will be cited as “GAO -11-203 at __.”

[7] See Treasury, Debt Limit, at https://www.treasury.gov/initiatives/Pages/debtlimit.aspx ; Treasury, Monthly Statement of The Public Debt of the United States (March 31, 2017), at https://www.treasurydirect.gov/govt/reports/pd/mspd/2017/opds032017.pdf . Today the authorized debt limit, for publicly held securities and intergovernmental securities, is close to $20 trillion. The limit on publicly held debt remains at around $14.4 trillion.

[8] See GAO -11-203 at What GAO Found:The debt limit does not control or limit the ability of the federal government to run deficits or incur obligations. Rather, it is a limit on the ability to pay obligations already incurred.”

[9] See GAO-11-203 at p. 1: “The debt limit does not restrict Congress’ ability to enact spending and revenue legislation that affect the level of debt or otherwise constrain fiscal policy; it restricts the Department of the Treasury’s … authority to borrow to finance the decisions enacted by the Congress and the President.”

[10] Id.

[11] See U.S. Treasury, Debt Limit, Myth v. Fact, available at https://www.treasury.gov/initiatives/Documents/Debt%20Limit%20Myth%20v%20Fact%20FINAL.pdf

[12] See House Report No. 113-48, Full Faith and Credit Act, available at https://www.congress.gov/congressional-report/113th-congress/house-report/48/1

[13] Id. at p. 4: “The provision provides that in the event the debt of the United States Government reaches the statutory limit, the Treasury Secretary shall issue debt to the extent necessary to pay principal and interest on certain obligations as defined. Obligations for which debt shall be issued are limited to those obligations held by the public or the Social Security Trust Funds. Obligations issued pursuant to this authority are exempt from the statutory debt limit. Section 2 also requires a weekly report from the Treasury Secretary if authority under subsection 2(a) is exercised that accounts for obligations due and amounts issued.”

[14] See n. 11.

[15]See The Washington Post, Wonkblog, Matthews, Michael Castle: Unsuspecting godfather of the $1 trillion coin solution (2013/01/04), at  http://www.washingtonpost.com/blogs/wonkblog/wp/2013/01/04/michael-castle-unsuspecting-godfather-of-the-1-trillion-coin-solution/?wpisrc=nl_showdown

[16] Actually, I wasn’t able to verify this precise quote, but I found something similar at 31 U.S.C. §5112(k): “The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.” You can find 31 U.S.C. §5112 at https://www.gpo.gov/fdsys/pkg/USCODE-2011-title31/pdf/USCODE-2011-title31-subtitleIV-chap51-subchapII-sec5112.pdf

[17] For more about the Treasury’s bullion depository at Fort Knox, go to Wikipedia and search “United States Bullion Depository,” or simply click here: http://en.wikipedia.org/wiki/United_States_Bullion_Depository

[18] See CNN World, Zimbabwe to print first $100 trillion note (January 16, 2009), at http://articles.cnn.com/2009-01-16/world/zimbawe.currency_1_zimbabwe-dollar-south-african-rand-dollar-note?_s=PM:WORLD   See also the blog of 11/12/2010, The Wages of Hyperinflation, at http://elementalzoo.typepad.com/elemental-zoo/2010/11/index.html . That one deals with hyperinflation in Weimar Germany.

It is my belief that there are absolutes in our Bill of Rights, and that they were put there on purpose by men who knew what words meant and meant their prohibitions to be ‘absolute.’

Hugo Black[1]

[This is Larry, and I’m not here to talk about sociology and the law. I’ll leave that to others. But today I’ll supplement the last blog, the one by Phil, our resident philosopher, with some facts. Even in a blog it’s nice to have a few of those, isn’t it? In it Phil paraphrased a quote from Hugo Black, one of the great liberal justices of the mid-20th century Supreme Court. Unfortunately while the paraphrase was interesting, the original was nowhere to be found. Phil said he’d get back to you [us] when he found it [the original quote]. That job has fallen to me, because I know the source. You see, Justice Black said it, or something like it, on television in 1968, and I remember the program. But luckily I don’t have to rely on my aging grey cells for the details, because his wife memorialized the whole business in 1982[2].]

But before we get to that, let’s talk for a moment about the person. Hugo Black was an important judge in his day. He joined the Ku Klux Klan in his early days, but soon left it. He discussed all that business back in 1937[3] and pretty much didn’t address it again. I’ve always thought it’s a good thing when somebody who joins a radical group changes his [or her] mind. I certainly don’t think Justice Black did anything wrong by dropping out. People make mistakes, and then correct them. For sure, that’s better than doing nothing.

As a judge he was famous for having said that there are absolutes in the Bill of Rights, although he never said that the whole thing was. “[I] did not say that our entire Bill of Rights is an absolute.”[4] But he did think, for example, that the part of the First Amendment that said “Congress shall make no law respecting any establishment of religion,[5]” was pretty much that way. “Now if a man were to say this to me out on the street … I would think: Amen. Congress shall pass no law. Unless they [the Founders] just didn’t know the meaning of words. That’s what they mean to me. Certainly they mean that literally.”[6]

Justice Black took much the same approach to pornography, which he saw as unsavory and poorly defined, but still opinion speech fully protected by the First Amendment[7]; and to the accused’s right not to incriminate him[or her]self, protected by the Fifth. These decisions were unpopular with many and as a result, the Court [and Justice Black] got a lot of negative mail. Are you surprised?

Don’t be. Even today Conservatives on AM Talk Radio complain about the Fifth Amendment and how it protects an accused, and Liberals don’t seem to care for the First Amendment very much. They really detest speech that offends them, especially if it’s uttered by President Trump. Conservatives also complain about Justice Black’s Klan membership, as though that somehow vitiates all of his subsequent legal work. “Because you once belonged to a bad organization, you never can have an opinion on something important that disagrees with mine?” Interesting argument.

But enough of that! We’re still looking for the famous quote that nobody can find. Well, here it is:

When Justice Black was asked about his negative mail – i.e., about the stuff he received – he answered what could have been a softball question with precision. “Do you think, Mr. Justice, that most Americans understand the Constitution?” He said: “No.”

I think most of them do not. I think most of them are sure they do—better than the Court. People don’t know it. I get letters all the time; I get many letters. People who don’t have a good idea of grammar; they’re certainly not good letter writers, and they’re telling me that “You ought to get off the Court and—.” Some of them tell me to go to Russia. “Go back to Russia.” Well, that’s too far for me to go back since I’ve never been there. But they think they know it. And their idea is all the same. You can trace it to the same thing, doesn’t make a difference what it is, what their experience is, or why they’re mad at the Court. It’s all because each one of them believes that the Constitution prohibits that which they think should be prohibited, and it permits that which they think should be permitted.[8]

So there we have it: The famous quote that Phil couldn’t find, but paraphrased anyway. Justice Black sure didn’t mess around, did he? Make of it what you will.

[Larry is signing out and leaving the building.]

 

 

 

 

[1] See The Supreme Court Historical Society, Publications, 1982 Yearbook (2008) at Hugo Black, A Memorial Portrait, p. 120, 148 . This will be cited as Memorial Portrait at p.  __.

[2] Id.

[3] See Memorial Portrait at p. 133. He discussed it in a radio address in 1937, and decided not to “raise the topic” again. “That is the subject I do not intend to revive. The newspapers do enough of that.”

[4] See Memorial Portrait at p. 127.

[5] We use the National Archives as our source for the wording of the Constitution, its Amendments, etc. It’s accurate and free. You can find the 1st Amendment there, at https://www.archives.gov/founding-docs/bill-of-rights-transcript  The full quote is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[6] See Memorial Portrait at p. 127, 128.

[7] See n. 3.

[8] See Memorial Portrait at p. 148.

 

In what you see as yet … there may perhaps be no great mischief; but depend upon it, in the quarter from whence these proposed [noxious] arrangements come, there are many behind that are of a very different complexion; of these [noxious] ones are suffered to be carried, others of a noxious character will succeed without end, and will be carried likewise.

Jeremy Bentham[1]

[This is Phil, and I’m here to talk about sociology and the law, or more particularly about some recent court decisions involving President Trump, his executive orders[2] on travel to the U.S., and whether they should be blocked. I’m not a lawyer, and I’m not going to get involved in the legalities, and in any case those issues will be decided through appeals and perhaps ultimately by our Supreme Court. I’ll leave it at that.

But I am very interested in what the politicians have to say, and the pundits, because their reactions are a very different thing. Too often they’re examples of political fallacies in action. And what are political fallacies? Well, they’re what Jeremy Bentham talked about nearly 200 years ago. They are, for the most part, either outright mistakes in logic, or irrelevancies fraught with emotion, or both; but in any case are trotted out to distract us, the voters, from the real issues in play in our lives. [3] They are deceptions, not genuine arguments.

Bentham cataloged political fallacies back in the early 19th century, and he did a good job of it; but the American political animal is dangerous and inventive; and with continuous improvement over generations, the modern one has vastly improved the rhetorical weapons of our forefathers. We can thank the social media and their stogy “mainstream” counterparts for much of that. On the brighter side, some of our academics are paying close attention to this kind of thing, and have launched Bentham-like efforts to identify and catalog the new fallacies in play. One of these initiatives, combining the old with the new, currently lists 130 such techniques. [4] The list is good reading for anyone who’s interested in politics. You don’t have to accept all of it; just think about it.

If you know any sociologists, no doubt you’re aware that many things are more important than the law. There’s also what the people think about the law, how they interpret what’s going on, or in the jargon of the trade, how they socially construct[5] the reality of current events. For some folks the law may be simply irrelevant to their lives, at least until they run afoul of it. They see things differently than, perhaps, a lawyer might. Others may believe that the law permits what they want it to permit, and forbids what they think should be forbidden.[6] Neither group seems to think that it’s important to look at the law, as written, to see what it actually says.

What about politicians? Do they worry about what the law says, or about what people think it says? And how do they influence us?  By discussing the law and the facts? Or by trotting out an array of political fallacies to manipulate public opinion? Or do flexible politicians, interested in the next election, try for a combination of both?]

Again, this isn’t a legal brief. It’s more a philosophical analysis of what politicians and pundits think about the travel issue. I am the blog philosopher, after all.

  • President Trump now says he wants to interrupt the traffic flow from only six countries; that those countries have significant problems with terrorist activities; that while they are Muslim majority countries, the restrictions will apply to all people who come from those areas, not simply to Muslims; and that a more tailored approach will be taken once his administration thoroughly evaluates the actual risk posed by the current situation. Revised guidance will follow.
  • His opponents argue that his restrictions are based on religion – that his targets are Muslims; that a religious test to restrict travel is impermissible under the 1st Amendment; that while the President says that he doesn’t intend a “Muslim ban” they know it’s not true, because he advocated such a thing during the last campaign and surrounds himself with people who think the same way. Those facts “taint” even his current Executive Order. There’s no way a person biased like our President can be right about this. If we let him have his way on this temporary restriction, who knows where we will wind up? Indeed, he’s such a bigot the courts may not let him to regulate Muslim travel in any way, even though they might permit a different President to do so. He can’t be right about anything involving Muslims. Need proof? There are riots every time he gives a speech. Jewish community centers are being attacked. If this goes on we’re all doomed! And he has really strange hair.

Well, perhaps I overreacted a bit near the end. Anyway, let’s pick this stuff apart to see what’s involved.

The First Amendment

Freedom of religion isn’t a political fallacy. It’s a right guaranteed to us by our Constitution. Specifically the First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”[7] That seems pretty clear to me. Our lawmakers should remain neutral in religious matters. However, it’s also clear that Government neutrality doesn’t exempt from Government control everything that religious people might do. If cult members decide to murder nonconformists in their church basement, or to torture kittens for fun, I expect that would attract scrutiny from some government entity. I’m no lawyer but I’m also reasonably sure that human sacrifice isn’t permitted here, and we don’t murder people for blasphemy. Non-believers also have rights. As for the rest of it, I’m willing to let the courts decide what other limits on religious people, if any, are fair.

Trump Keeps Bad Company, Has Bad Motives, Has Made Prior Inconsistent Statements, Is a Bad Person, and a BIGOT!

So I introduced this piece with a quote from Jeremy Bentham which, I think, many of you found unintelligible. No worries, I understand; it takes a while to decode his prose even on a good day. So I’ll give you a translation. Don’t knock down a piece of legislation, or an Executive Order, or anything of that type by attacking the people the author knows. You have to focus on the thing itself; on the proposal, the rule, etc., and what it does; and generally such things are published, for anyone to see. Read it! If it’s a good proposal it would be stupid to knock it down simply because you don’t like the author or his friends. If it’s a bad one, why in the world would you want it to go forward, even if you like the author?

This attack is also called “guilt by association,[8]” and really is just one of the many ad hominem arguments currently in play. An ad hominem is, of course, an attack on the speaker, rather than on what he [or she] has said.  The point is to divert our attention from the arguments, probably because they’re persuasive, to some idiosyncrasy of the person making them. Politicians [or pundits] who do this generally are not very smart, or think their audience is stupid, or both. [9] At least that’s what Bentham thought.

Bentham in his day identified 6 attacks that he found particularly irksome.[10] These were the arguments that if a speaker has a bad character, bad motives, has said different things in the past, has suspicious connections, or is of the wrong religion, his [or her] proposals must be wrong.[11] Such attacks basically raise objections that are irrelevant to what’s being proposed. They’re like saying, for example:

  • “Don’t believe the speaker, because he once said something different. He changed his mind and shouldn’t do that!” Why not? I change mine, when there’s a reason to do so. What do you do? Never change? Never adjust to reality?
  • “Don’t believe the Pope on global warming, because he’s a Catholic; ignore the science he quotes, especially if it supports his position.”[12] Why would you do that, when the underlying question involves science? I’d check the science, not the Pope’s belief system

Then, of course, there’s the extreme form of the ad hominem, which is shouted name-calling. Don’t discuss the merits of expanding health care, just call anyone who wants to do that a Communist, and move on! Sounds like AM Talk Radio to me. Or you can use name-calling as a defense, rather than an attack. Simply say that, because of who you are, a woman, black, Jewish or whatever, “any and all arguments, disagreements or objections against [your] standpoint or actions are automatically racist, sexist, anti-Semitic, bigoted, discriminatory or hateful.”[13] Is that what Trump’s critics are saying about the Trump initiatives? That any action that restricts some travel by some Muslims is automatically hateful? Why is that? Because it makes them feel bad?

The Slippery Slope

What about the notion that, if Trump is allowed to stop travel here for even a short time, that will open the door to even more restrictions later. It’s best to not even get on that slippery slope. The implication here is that once we start down that path, we won’t be able to stop. Bentham says that’s ridiculous. If it’s a good idea to do an initial review, then let’s do it. Don’t refuse to look at problems, if they exist, simply because of what someone further on may propose as a solution. Deal with that issue when and if it arises.[14]

It’s not reasonable to say: “If we close Gitmo one thing will lead to another and before you know it armed terrorists will be strolling through our church doors with suicide belts proud as you please during the Sunday morning service right here in Garfield, Kansas!”[15] None of this is proved; at best it’s no more than a scenario, a speculation, and an unlikely one to boot! Right now the big problem in the U.S is the drug trade, and the leaders of that are not held in our facilities at Guantanamo Bay. If Guantanamo inmates ever posed a problem in the U.S., no doubt we would deal with them in due course.

Trump Causes Riots and Bomb Threats

This is about an old Latin maxim, post hoc, ergo propter hoc. [“After this, therefore because of it.”[16]] Trump gives speeches, and then there are riots, and threats against Jewish community centers. Therefore he caused that trouble, so he shouldn’t speak anymore! The plain truth is that the riddle of cause and effect is not solved so easily. When the rooster crows and the sun rises the rooster did not make it happen. The fact that AIDS first emerged when Disco music was popular, does not prove that Disco caused AIDS.[17] Correlation does not equal causation. If you think otherwise, you may be caught in a “classic paranoiac fallacy of attributing imaginary causality to random coincidences.”[18]

And, by the way, there’s news out there that some of the riots were staged, not spontaneous[19], and recently a crazed hacker was arrested in Israel as the person responsible for a majority of the bomb threats against Jewish community centers.[20]  How could that be? Where was Trump?

The Big Non Sequitur

Oppose Trump because his hair is awful! What’s wrong with that argument? What’s right with it? What’s the connection between the premise [Trump’s bad hair] and the conclusion [don’t vote for him!]. It makes absolutely no sense, but you heard it a lot during last year’s primaries. If you know someone who was persuaded by it, tell her she was trapped by the “deluded fallacy of offering reasons or conclusions that have no logical connection to the argument at hand.”[21] That should make your day.

Conclusion

This turned out to be a bit longer than originally intended. That happens when we get involved with political fallacies. The basic principle is simple; Jeremy Bentham had it right; “Whatever be the measure in hand, [political fallacies] are, with relation to it, irrelevant.”[22] So if you are looking at a project to build a municipal sewer system, and people tell you to vote for it because God wants it; or to vote against it because the chief proponent of it has a mistress, or there’s no scientific evidence that sewers are necessary, or it’s unnecessary because the world will end soon; then you will know, for sure, that none of them are serious. Go home and make up your own mind.

And, by the way, avoid the news coverage of Trump and his Executive Order on travel by foreigners coming here. That coverage is mostly crap!

 

[1] See Bentham & Bingham, The Book of Fallacies: From Unfinished Papers of Jeremy Bentham (Hunt, 1824, Nabu Reprint, circa 2010) at Ch. III, Fallacy of Distrust, or, What’s at the bottom?,  p. 154.  Hereafter the book will be cited as Political Fallacies at __. Nabu reprints are basically photocopies of the original, so page citations necessarily will be to the original.

[2] Which Executive Order? He’s issued quit a few. See Fox News, List of Trump’s Executive Orders  (March 06, 2017), available at http://www.foxnews.com/politics/2017/03/06/list-trumps-executive-orders.html  We’re talking about  the one of March 6, 2017,  Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States, available from the Whitehouse Press Office at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states  Some people say this one is about immigration; I say it’s short term, and about travel.

[3] See Political Fallacies at p. 359.

[4] See, e.g., University of Texas at El Paso, Williamson et al., Univ. 1301, Master List of Logical Fallacies (updated 3/17/2017), available at http://utminers.utep.edu/omwilliamson/engl1311/fallacies.htm  This list is online and in numbered paragraphs. It’s also clearly a work in progress. We’ll cite it as Master List at ¶ __.

[5] See Berger & Luckman, The Social Construction of Reality, A Treatise on the Sociology of Knowledge (1966, Anchor Books 1967). Many think of this as a classic in its field.

[6] This is a paraphrase of a comment attributed to Hugo Black, a 20th Century Supreme Court Justice. He said, roughly, that most people think the Constitution permits what they want to permit and forbids what they want to forbid. The quote is hard to authenticate, but we succeeded a few years ago. Unfortunately I can’t find the research on that. We’ve been writing these things for 7 years, don’t you know? I’ll get back to you, dear reader, when the research turns up.

[7] We use the National Archives as our source for the wording of the Constitution, its Amendments, etc. It’s accurate and free. You can find the 1st Amendment there, at https://www.archives.gov/founding-docs/bill-of-rights-transcript  The full quote is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[8] See Master List at ¶ 52.

[9] See Political Fallacies at p. 359, 360: “Upon the whole, the following are … in common to all the several arguments here distinguished by the name of fallacies: (1) Whatsoever be the measure at hand, they are, with relation to it, irrelevant … (7) on the part of those who … give utterance to them, they are indicative either of improbity or intellectual weakness, or of a contempt for the understanding of those on whose minds they are destined to operate.”

[10] See Political Fallacies at Part the Second, Fallacies of Danger, Chapter I, p. 127 – 142.

[11] Id. at 128 – 129. “The argument in its various shapes amounts to this: – In bringing forward or supporting the measure in question, the person in question entertains a bad design; therefore the measure is bad: – he is a person of bad character; therefore the measure is bad: – he is actuated by a bad motive; therefore the measure is bad: – he has fallen into inconsistencies … ; therefore the measure is bad; – he is on a footing of intimacy with this or that person, who is a man of dangerous principles and designs … therefore the measure is bad: – he bears a name [i.e., a religion] that of a former period was borne by a set of men now no more, by whom bad principles were entertained, or bad things done; therefore the measure is bad.”

[12] See also Master List at ¶ 17.

[13] See also Master List at ¶ 74.

[14] See Political Fallacies at Part the Second, Fallacies of Danger, Chapter III, p. 157: “If on this ground it be right that the measure be rejected, so ought every other measure that ever has been or can be proposed: for of no measure can anyone be sure, but that it may be followed by some other measure or measures, of which, when they make their appearance, it may be said that they are bad.”

[15] See Master List at ¶ 109. The other hypothetical given also is good: “If you two go and drink coffee together one thing will lead to another and next thing you know you’ll be pregnant and end up spending your life on welfare living in the Projects.”

[16] This is my translation. If you don’t like it, pick another. They all say about the same thing.

[17] See Master List at ¶ 94.

[18] Id.

[19] There were lots of riots when Trump was elected. See, e.g.,  USA Today, Eversley, et al., Thousands across the USA protest Trump victory (Nov. 12, 2016), available at http://www.usatoday.com/story/news/2016/11/09/anti-trump-protests-erupt-new-york-chicago/93570584/ . Lots of people think these and other riots were staged, not spontaneous.

[20] See Fox News, Friling, Israeli-American arrested in US Jewish community center bomb threats (March 23, 2017), available at http://www.foxnews.com/world/2017/03/23/israeli-man-arrested-in-us-jewish-community-center-bomb-threats.html

[21] See Master List at ¶ 78.

[22] See Political Fallacies at p. 359.

 

Viral haemorrhagic fever is a general term for a severe illness, sometimes associated with bleeding, that may be caused by a number of viruses. The term is usually applied to disease caused by Arenaviridae (Lassa fever, Junin and Machupo); Bunyaviridae (Crimean-Congo haemorrhagic fever, Rift Valley Fever, [and] Hantaan haemorrhagic fever); Filoviridae (Ebola and Marburg); and Flaviviridae (yellow fever, dengue, Omsk haemorrhagic fever, [and] Kyasanur forest disease).

World Health Organization[1]

The Good Samaritan gave Money to the Host where he had lodg’d his Patient, and said, TAKE CARE OF HIM, and what thou spendest more, I will repay thee.

Benjamin Franklin[2]

[If you’ve read this blog for very long, you know we paid a lot of attention to the Ebola outbreak of 2014 – 2015. Ebola – the version that broke out in 2014 – was and is an ugly customer, but actually it’s only one of a family of medical horrors. WHO[3] names them at the beginning of this piece, and there’s none I want in my home town [or yours, either]. Ebola’s relatives are worse even than the heroin epidemic that’s sweeping our benighted land. A user gets involved with heroin and its friends by an act of will; he [or she] takes a first dose and gets addicted. Hemorrhagic fevers [note the American spelling] jump out at us from friends and family, etc., and may infect even those who run away.

Of course we’ve made a lot of progress treating Ebola, or at least the version that scared us in 2014. In spite of early missteps, that epidemic is over, at least for now. As one commentator put it: “A stuttering, uncoordinated early response, which exposed the overwhelmed public health capacity of the region and claimed the lives of thousands, was followed by one of the most successful global partnerships between foreign and local governments and multinational aid [organizations] to stem an international health crisis.”[4]  Also, as we noted last time, there’s at least one vaccine in our future. Too bad we can’t fix the heroin problem the same way.

But this blog is about Ebola, and what remains to be done. Why dwell on that? Well, because Ebola may evolve and return; and its ugly relatives are still out there. Is it possible our recent success also set a pattern for defeating them the next time they appear? If so, are we learning from our success, or simply ignoring the hemorrhagic fevers on the theory that we’ll deal with them later?]

Dangers of Ebola

Let’s talk for a bit about how dangerous Ebola was in 2014. It was very bad for humans. WHO described it as “highly infectious, rapidly fatal, with a high mortality rate ….” It “spread through direct contact with body fluids (blood, stool, vomit, saliva, urine, sperm, etc.) of an infected person,” or by contact with surfaces or equipment, including linens, contaminated by body fluids from someone who was infected.[5] WHO also said that health workers were “between 21 and 32 times more likely to be infected with Ebola than people in the general adult population.”[6] Nurses and nurses’ aides were particularly vulnerable.

A lot of people died from Ebola, but even the lucky survivors may have problems today. These include mental health issues for “survivors and other family and community members,” and, possibly related, an “increasing recognition that Ebola virus may persist in selected body compartments of survivors.” If the virus persists can a survivor reintroduce it to an area “where transmission [was] previously … eliminated?”[7] Is it any wonder that the neighbors might worry?

Recent Trends

I don’t know about you, but in 2014 I saw the world intervene massively in West Africa to treat Ebola patients and contain an epidemic. It turned out that extraordinary measures weren’t needed because the more traditional methods of treating and isolating the disease broke the epidemic first. Fair enough, I thought; but at least the facilities we built and the people we trained will improve medical care in the area. But apparently that wasn’t the case. Why? Some of the projects were completed on time, but most weren’t completed at all, in large part because they were no longer needed to fight Ebola. The disease was already in retreat. [8]

So our extraordinary efforts didn’t strengthen the medical infrastructure of the infected areas? Apparently that’s the case. A recent study in Guinea,[9] for example, shows that today mothers and children have less access to health care than they had prior to the Ebola crisis. The situation has deteriorated, not improved, at least with respect to them.

  • Child births in hospitals and subsequent visits increased markedly prior to the Ebola outbreak; then reversed during the epidemic; then reversed again when the epidemic was over, but ultimately the trends stagnated;
  • The same happened with childhood vaccinations. They trended upward prior to the epidemic, then reversed during the epidemic[10] and, in some cases, continued to decrease in the post-epidemic period[11];
  • “Most maternal and child health indicators significantly declined during the Ebola virus disease outbreak in 2014. Despite a reduction in this negative trend in the post-outbreak period, the use of essential maternal and child health services have not recovered to their pre-outbreak levels, nor are they all on a course that suggests that they will recover without targeted interventions.”[12]

So why did this happen?  Is it because the women and children of Guinea are afraid of or simply don’t trust their health care providers?  Or have the providers died or left the area because of Ebola virus disease? Or is the local health infrastructure too damaged by the epidemic to function properly? Or are more than one of these factors in play?[13]

Whatever the answer, the experts seem to agree that a lot of work needs to be done to improve health services in West Africa.  “Targeting the root causes, preventing future epidemics, and improving access to health services for the millions affected by weak public health infrastructure will require the international health community … to show unwavering commitment to the long, slow, collaborative work required for meaningful capacity building.”[14] And why should the “international community” be concerned about health and epidemics in remote places? Well, because these days epidemics are tourists; they may start in one place, but like humans they can travel just about anywhere.

Conclusion

So I think old Ben Franklin had it right. The developed world, like the Good Samaritan, should work to strengthen the health infrastructure in places like West Africa. Otherwise epidemics may pop up where folks are most unprepared to fight them, and we’ll all lose valuable time and possibly lives as a result. Help the people there now and most likely we’ll help ourselves later

At least that’s what I think. And who am I? Why Phil, the blog philosopher.

[1] The quote is from the World Health Organization [WHO]. See World Health Organization, Health Topics, Haemorrhagic Fevers, Viral, at http://www.who.int/topics/haemorrhagic_fevers_viral/en/ We’ve added some semicolons, hopefully for clarity, but have not changed the spelling of “haemorrhagic.” In the U.S., of course, we would drop the “a,” to spell it “hemorrhagic.”

[2] See Franklin, Silence Dogood, the Busy Body, and Early Writings (LOA, 1987, 2002) at p. 170, Compassion and Regard for the Sick (March 25, 1731)

[3] WHO’s official web site has lots of information on diseases worldwide. It doesn’t focus, only on Ebola. See World Health Organization, at  http://www.who.int/en/

[4] See The Lancet, Comment, Siedner & Kraemer, The end of the Ebola virus disease epidemic: has the work just begun? (February 22, 2017 (online)), available at http://thelancet.com/journals/langlo/article/PIIS2214-109X(17)30079-7/fulltext?elsca1=etoc

[5] See World Health Organization, Interim Infection Prevention and Control Guidance for Care of Patients with Suspected or Confirmed Filovirus Haemorrhagic Fever in Health-Care Settings, with Focus on Ebola (December 2015), at p. 6, available at: http://apps.who.int/iris/bitstream/10665/130596/1/WHO_HIS_SDS_2014.4_eng.pdf?ua=1&ua=1&ua=1

[6] See World Health Organization, Preliminary Report, Health Worker Ebola infections  in Guinea, Liberia and Sierra Leone (21 May 2015), available at http://apps.who.int/iris/bitstream/10665/171823/1/WHO_EVD_SDS_REPORT_2015.1_eng.pdf?ua=1

[7] See World Health Organization, Interim Guidance, Clinical care for survivors of Ebola virus disease  (April 2016 ), at p. 5, available at http://apps.who.int/iris/bitstream/10665/204235/1/WHO_EVD_OHE_PED_16.1_eng.pdf

[8] See, e.g., The Washington Post, Sieff, U.S.-built Ebola treatment centers in Liberia are nearly empty as outbreak fades (January 18, 2015), available at https://www.washingtonpost.com/world/africa/us-built-ebola-treatment-centers-in-liberia-are-nearly-empty-as-disease-fades/2015/01/18/9acc3e2c-9b52-11e4-86a3-1b56f64925f6_story.html

[9] See The Lancet, Article, Delamou et al., Effect of Ebola virus disease on maternal and child health services in Guinea: a retrospective observational cohort study (April 2017), available at http://thelancet.com/pdfs/journals/langlo/PIIS2214-109X(17)30079-7.pdf

[10] Id. “Similarly, the increasing trend in child vaccination completion during the pre-epidemic period was followed by significant immediate and trend reductions across most vaccine types”

[11] Id.  Especially vaccinations for polio, measles and yellow fever.

[12] Id.

[13] See The Lancet, Comment, Siedner & Kraemer, The end of the Ebola virus disease epidemic: has the work just begun? (February 22, 2017 (online)), available at http://thelancet.com/journals/langlo/article/PIIS2214-109X(17)30079-7/fulltext?elsca1=etoc

[14] Id.

 

False Alternatives: Formulating a problem as a choice between two [or more] alternatives, when there exist other alternatives that aren’t considered.

Sacramento State[1]

[OK, I’m in a debunking kind of mood but I don’t want to work hard, so I’ve decided to take exception to things from the Washington Post; more specifically, to the wordy rejoinders it has put out to four recent tweets from our President. You may have heard about the tweets: the ones he sent a couple of weeks ago when he accused the previous White House of wiretapping Trump Tower during the last election. He called that “Nixonian,” and said “nothing” was found.[2]

The Obama people countered, saying that (i) Trump had offered no evidence that such a thing had happened[3], and (ii) in any case, President Obama hadn’t ordered anything. The issue is out there because some believe that the Trump people are too close to the Russians, that they conspired with the Russians in the last election to undercut Hillary Clinton, and that this is a crime. There are also rumors about a FISA warrant involving the Trump campaign that may or may not have been issued.

Facts are scarce, and there aren’t enough of them to make Trump or Obama look particularly guilty. Yet both argue they’re in the right, and neither will give in. Will there be an investigation, by Congress or the Department of Justice, or by both? If so, how will we, the bemused public, decide who or what’s right? Are there rules to cover wiretaps and if so, how do we know if they were [or are] followed? Will there be riots in the streets?

Actually I don’t know much about riots, except that often they seem to depend on the mood of politicians. Sometimes, perhaps, they occur just to divert our attention from, say, embarrassing facts.  But I’m a peace-maker at heart, and I’ve concluded that both sides to this particular dispute could be correct. Trump Tower may well have crawled with wiretaps last year, but most likely President Obama didn’t order them.

How do I conclude that? Especially when I admit that facts are scarce? Well, because I’ve learned something about the rules our government follows, or should follow when it wiretaps us. They’re set in our Constitution and refined by laws which, believe it or not, are fairly clear.]

By the way I’m Larry, the legal consultant to Elemental Zoo Two. Please, please dear reader; don’t mistake anything I tell you for legal advice about your individual situations. My opinions are not about you, and I’m certainly no expert on bugs and wiretaps. If you need legal advice about that kind of thing, hire a lawyer who specializes in it.

The 4th Amendment

Let’s start with the basics; that is, with the 4th Amendment to our Constitution.[4] That’s the one that [theoretically] bars our government from unreasonably searching or seizing its citizens or their private property. It says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[5]

Note the key provisions here. The government can seize people, houses, papers and effects, but government officials must have “probable cause” to do it, swear that their allegations are true, describe in detail the persons and things to be seized, and apply for a warrant. And who issues warrants? Well, judges in their courts. Not Presidents. So President Obama was right about one thing for sure. He didn’t order a search [or seizure] because legally that’s not his job. Only a judge issues warrants.

Current Practice

So who asks the court for a warrant? The President? His staff? No; that authority is delegated far below the White House. That being the case, why would a President get involved in such matters? Most, no doubt, have left that kind of thing to the specialists down the chain of command.

The basic rules are spelled out in Chapter 119 of Title 18 to the United States Code. [6] It’s fairly long, but I’ll outline the main points:

  • Who asks for a warrant? That would be any “[i]nvestigative or law enforcement officer,” i.e. “any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for [specified offenses], and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.”[7] Federal investigators, of course, have to work through the DOJ. State investigators follow their own channels. And who can authorize a wiretap [also known as an “intercept”]? That would be any “judge of competent jurisdiction.” And who are they? Federal judges in the District Courts or the Courts of Appeal; and state judges empowered to do so under state law.[8]
  • All right, no doubt there are lots of “investigative or law enforcement officers” who might want to intercept an evildoer’s messaging, but the law says they can do it only for specific crimes. And what are those crimes? Well, the list appears at 18 U.S.C. § 2516, and it’s very, very long. If I were to summarize, I’d say it includes any felony you or I might think of as serious, plus some we’ve never thought of at all. Read it and see for yourself.
  • OK, suppose I’m a state gumshoe, and I’ve got a warrant to wiretap Trump Tower because I suspect somebody there is selling drugs. [After all, it is a big building, with lots of people in it, and drugs are a problem in cities as well as in the rural areas.] So I’m listening to the tapes and I hear some Russians talking to some American about Syria or Iran. The information isn’t about drugs, but it might be important to some investigation the FBI is doing. Do I call and tell them about it?
  • The answer is: “Yes!” Chapter 119 says “[a]ny investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.”[9] In English that means if a NYC gumshoe with a proper warrant intercepts something juicy that’s off topic for the NY investigation but interesting to the FBI, he [or she] can send it over.
  • So is this proof positive that Trump Tower was probed last year for criminal matters? No, we don’t know that. But if intercepts were authorized for people in the building, and the intercepts turned up something about criminal activity in the Trump campaign, quite likely the news would have been be shared with others in law enforcement.
  • Would it also be shared with the White House? I don’t know.

Conclusion

So what’s my point? Basically it’s that the news coverage of the Trump/ Obama dispute has been way too focused. It has honed in on whether President Obama authorized wiretaps – highly unlikely – and disregarded numerous other possibilities. The real questions are:

  • How many separate investigations of Trump Tower were ongoing during the period in dispute?
  • What did they find that relates to the Trump campaign and/ or Russia?
  • Was the information shared throughout law enforcement?
  • What did White House staff know, and who on the staff knew it?

It’s time for reporters to take off their blinders, look beyond the false alternatives, and do their jobs.

 

 

 

 

 

[1] I found this definition in an article entitled Six Common Fallacies at the Sacramento State website. You can find it at http://www.csus.edu/indiv/g/gaskilld/criticalthinking/six%20common%20fallacies.htm .  The whole thing is well worth a read.

[2] I’m paraphrasing the Post’s paraphrase. See The Washington Post, Rucker, et al., Trump, Citing No Evidence, Accuses Obama of ‘Nixon/Watergate’ plot to wiretap Trump Tower (March 4, 2017), available at https://www.washingtonpost.com/news/post-politics/wp/2017/03/04/trump-accuses-obama-of-nixonwatergate-plot-to-wire-tap-trump-tower/

[3] See, e.g., The Washington Post, Dionne, Welcome to Fantasyland (Thursday, March 9, 2017) at p. A17.

[4] We prefer to reference the National Archives as our source for The Constitution, the Bill of Rights, etc. If you want to research the Bill of Rights, start with the Archives at https://www.archives.gov/founding-docs/bill-of-rights/what-does-it-say

[5] See n. 4.

[6] Chapter 119 is called Wire and Electronic Communications Interception, and Interception of Oral Communications. You can find it at the LII website hosted by Cornell University’s Law School, at https://www.law.cornell.edu/uscode/text/18/part-I/chapter-119 . The official version of Chapter 119, the one maintained by the Government Publishing Office [the “GPO”] appears at https://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap119.pdf . Chapter 119 includes 18 U.S.C. §§ 2510 – 2522. Citations to individual code sections will be in the form of 18 U.S.C. § 25__. If you’d like to see Wikipedia’s take on wiretaps, take a  look at https://en.wikipedia.org/wiki/Omnibus_Crime_Control_and_Safe_Streets_Act_of_1968

[7] See 18 U.S.C. § 2510 (7).

[8] See 18 U.S.C. § 2510 (9).

[9] See 18 U.S.C. § 2517 (1).

 

For when all is said and done, we are in the end absolutely dependent on the universe; and into sacrifices and surrenders of some sort, deliberately looked at and accepted, we are drawn and pressed as into our only permanent positions of repose … In the religious life… surrender and sacrifice are positively espoused: even unnecessary giving -up are added in order that the happiness may increase. Religion thus makes easy and felicitous what in any case is necessary; and if it be the only agency that can accomplish this result, its vital importance as a human faculty stands vindicated beyond dispute. It becomes an essential organ of our life, performing a function which no other portion of our nature can so successfully fulfill. From the merely biological point of view, so to call it, this is a conclusion to which … we shall inevitably be led, and led moreover by following the purely empirical method of demonstration …. Of the farther office of religion as a metaphysical revelation I will say nothing now.

William James[1]

[This is Phil, blog philosopher, and I’m here to discuss the spells, curses, etc., worked against President Trump last week and what, if anything, we should do about them. If you want to see spell-casting in action, there are lots of videos available on You Tube. For my current favorite, check out the one at: http://www.bing.com/videos/search?q=witches+attack+Trump&view=detail&mid=528875342DCE37D424BF528875342DCE37D424BF&FORM=VIRE [2]  Who threw this bag of whatever into the internet? Well, the video is supposed to be from “white witches,” i.e. from Wiccans who reject any connection with dark or evil forces. Other videos come from out-and-out Satanists, totally committed to the left-hand path.[3] The dramaturgy varies but their mutual objectives are pretty much the same. The Wiccans want to “bind” Trump and his people, so they basically can’t do anything, including feed themselves. The Satanists will settle for destroying him. This is not to say that Wiccans and Satanists are unified on all Trump issues. I don’t know many of them, or their issues, so I really can’t say].

But there was a time, before this country was founded, when witchcraft was highly illegal, and punishable by death. Exodus 22:18[4] said, “Thou shalt not suffer a witch to live,” and once upon a time folks took that as gospel; well, maybe not gospel, since it’s Old Testament, but they took it seriously. So seriously that they had teams hunting down witches in Europe, and a procedures manual to boot. That book, in case you haven’t read our earlier blogs, was called The Hammer of Witches.[5]

Witches, or sorcerers were formidable, or so it was thought. They could entice new converts; require a ‘sacrilegious avowal’ of loyalty; move people through the air; subordinate themselves to incubus demons [i.e., have sex with them]; prevent men from having sex with women; impede procreation in humans and animals; take away the male member; change humans into the shape of wild beasts; cause demons to inhabit human bodies; inflict “every kind” of illness on people; kill babies, or offer them to demons with a curse; inflict harm on domestic animals; and stir up hailstorms, rain and lightning.” [6] No wonder ordinary people were afraid!

And apparently the witch hunters were really effective, because they got lots of convictions. By one account many thousands of witches were burned in Europe, and around four thousand were hanged in England.[7] This is extraordinary, because even today we can’t do some of the things the accused back then routinely confessed to. So why were the ancient gumshoes so successful in getting witches to confess to these things? Did the free use of torture have something to do with it? The Hammer authorized and encouraged that. Would tortured people admit to just about anything just to make the torture stop? Or were those ancient witches telling the truth about secret knowledge we no longer possess?

It’s perfectly clear that the early settlers on this side of the Atlantic also took their Bible seriously. The Salem witch trials[8] of 1692 – 1693 pretty much proved that. Twenty people were executed before the trials were over, and five others died in prison.  The intelligentsia in and around Boston were fully on board with the result. Cotton Mather, for one, celebrated it: “If in the midst of the many Dissatisfaction among us, the publication of these Trials may promote such a pious Thankfulness unto God, for Justice being so far executed among us, I shall Rejoyce that God is Glorified…”[9]

But attitudes gradually changed over here, until by the mid-18th Century Benjamin Franklin openly mocked the idea of witch trials[10], and Thomas Jefferson wanted to change the laws of Virginia to prosecute witches for fraud. “All attempts to delude the people,” he proposed, “or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment or sorcery, or by pretended prophecies, [should] be punished by ducking and whipping, at the discretion of a jury, not exceeding fifteen stripes.”[11]

Of course Jefferson’s proposal was made before our nation had a Constitution, or a Bill of Rights. Today people might object to punishing witches [or Satanists] simply because of their beliefs. After all, the First Amendment[12] says our Government must be religion-neutral. It says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

 And that brings us around to William James, the psychologist from the turn of the last century who opened this piece. Professor James was of the opinion that an experience is “religious” only insofar as it draws us into “surrender and sacrifice,” and acceptance of the world as it is, rather than as we want it to be. Of course that was his opinion [or my interpretation of it]; but if he and I are correct, then Wicca and Satanism most definitely are not religions! You can tell that simply from the videos. Those people aren’t resigning themselves to anything. They’re reaching out and trying to manipulate events from a distance, to punish their enemies! They’re trying to work magic, not to pray and meditate on God’s plan.

Of course none of this is important if you agree with Thomas Jefferson that witchcraft, etc. is a fraud. But what if instead the witch hunters of yesterday were right? What if the witches really are powerful? What should the Government do? Think of it this way. Suppose there was a church in your neighborhood whose members were known radicals, and you knew they were storing small arms and other weapons in the church basement. Wouldn’t you want the Government at least to keep an eye on the situation? If witches are accumulating real powers, why exempt them from the same kind of scrutiny.

And what do I think? I’m not losing any sleep over the problem.  Jefferson was right. This witchcraft business is all claptrap. But if you think otherwise[13], you might want to take precautions.

 

 

 

.

[1] See James, The Varieties of Religious Experience, A Study in Human Nature (Longmans, Greene & C.) (11the Impression, 1905) at p. 51-52, available from Google [for free] at https://books.google.com/books/download/The_Varieties_of_Religious_Experience.pdf?id=WRkMAAAAIAAJ&hl=en&capid=AFLRE72c0MU7BkQ6ljz8coAk_SHhVyWAGlASEvfENL9H7BztE7EYRNd2XRx1HgRIOO9zuGSPDv73CwzmFNqUxki5uiVsbU8znQ&continue=https://books.google.com/books/download/The_Varieties_of_Religious_Experience.pdf%3Fid%3DWRkMAAAAIAAJ%26output%3Dpdf%26hl%3Den

[2] There’s a related one flacking a new song at http://www.independent.co.uk/arts-entertainment/music/news/lana-del-rey-witchcraft-donald-trump-new-album-song-a7600826.html

[3] See Knights Templar International, Satanists and witches launch ‘spirit war’ against Trump! So it WASN’T ‘fake news’ about Hillary and the Forces of Darkness! (March 1, 2017)   available at https://knightstemplarinternational.com/2017/02/satanists-and-witches-launch-spirit-war-against-trump-so-it-wasnt-fake-news-about-hillary-and-the-forces-of-darkness-videos-and-a-call-to-action/ Or perhaps Satanists are just totally committed to science. Sometimes I just don’t understand these things. See LA Weekly, Swan, Is a Trump Presidency the Satanic Temple’s Chance to Go Mainstream? (February 27, 2017), available at http://www.laweekly.com/arts/is-a-trump-presidency-the-satanic-temples-chance-to-go-mainstream-7975996 .

[4] Want to look it up? There are lots of online sources, among them King James Version Online, Exodus 22.18, available at https://www.kingjamesbibleonline.org/Exodus-22-18/ .

[5] The original book was written in Latin. Our Latin’s not all that good here at Elemental Zoo Two, so we use a modern translation.  See Christopher S. Mackay, The Hammer of Witches, A Complete Translation of the Malleus Maleficarum (Cambridge 2006, 2009) [hereafter cited as Hammer at p. __].

[6] See generally, Hammer, Part Two at p. 93A –147A (p. 275 -386 of the text.)

[7] See Sargant, Battle for the Mind (Doubleday, 1957) at p. 198 – 199.

[8] Want to know more about them? It’s not a pretty story. For openers check out the Wikipedia write-up on Salem witch trials at https://en.wikipedia.org/wiki/Salem_witch_trials . It’s a well covered subject, so there’s plenty to follow-up, if you want to.

[9] The quote appears in the Wikipedia entry on Cotton Mather, at https://en.wikipedia.org/wiki/Cotton_Mather

[10] See Franklin, Silence Dogood, The Busy-Body and Early Writings (LOA 1987, 2002) at A Witch Trial at Mount Holly, p. 155 – 157.

[11] See Jefferson, Writings (LOA, 1984), at A Bill for Proportioning Crimes and Punishments, p. 362

[12] We use the National Archives as our source for the wording of the Constitution, its Amendments, etc. It’s accurate and free. You can find the 1st Amendment there, at https://www.archives.gov/founding-docs/bill-of-rights-transcript  The full quote is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[13] I’m not one who thinks that the people who disagree with Thomas Jefferson on this are necessarily irrational. For some respectable opinion on the other side, take a look at: the Wikipedia piece on Gabriele Amorth, the [now deceased] Vatican Exorcist, at https://en.wikipedia.org/wiki/Gabriele_Amorth ; and the 1908 Catholic Encyclopedia entry on Demonology, available at http://www.newadvent.org/cathen/04713a.htm

Wrongful disclosure of individually identifiable health information

(a) Offense

A person who knowingly and in violation of this part –(1) uses or causes to be used a unique health identifier; (2) obtains individually identifiable health information relating to an individual; or (3) discloses individually identifiable health information to another person,

shall be punished as provided by subsection (b) of this section. …

42 U.S.C. §1320d-6(a) [1]

[Our friend G. Sallust called the other day to ask one of his penetrating questions. “I’m mad as Hell,” he said “and I’d like you to find the law that’s supposed to protects us from hackers who steal our medical stuff. Isn’t there some statute, HUHUP or something like that, to protect us? Please find out ASAP.” Note that he said “please.” That’s unusual.

To understand the question you need to know more about the questioner. G. gets his healthcare courtesy of a Government agency. Basically he reports to one of their facilities whenever he needs something, and the people there [hopefully] take care of it.  Lately he’s noticed that internet cafes, etc. are beginning to pop up wherever he goes, including in government facilities, and when they’re available, he uses them to access the web. The problem is that when he searches for a connection, his computer tells him that some are “secure,” and others are not. Generally he has no access to “secure” connections because he lacks the required passwords. The computer also tells him that outsiders may be able to track his activity on “unsecure” connections.

Now, G. doesn’t really know whether “secure” connections really are – secure, that is – but he’s reasonably certain that the “unsecure” ones really aren’t. So what happens when he uses an iffy connection to tap into his medical records? These are kept in a closely-guarded highly secure network all of their own. That’s one question. The other one is: why would the agency that built said network then sponsor, or encourage its patients to hook up with an unsecure connection? Remember, an internet cafe is sponsored and/ or hosted by the facility he visits. And third, but not least, who’s liable if somebody snags G’s records out of the air while he’s working with them?

This is yet another subject where I’m not an expert. G does that regularly, i.e. asks me about areas where I have no experience. But I can read, so sometimes I come up with an answer or two. But please, please dear reader; don’t mistake anything that follows for legal advice! If you have questions about your personal situation, hire a competent lawyer and ask him [or her] for advice. I’m not in that business.]

With that said, let’s move on to G’s questions. He’s limited himself to medical records, and that’s a good thing. Lots of data is being stolen around the world, and no doubt there are lots of ways to prosecute the thieves, depending on the facts. But medical records are in a class by themselves, mostly because they’re protected by the Health Insurance Portability and Accountability Act of 1996 [HIPAA].[2]

Covered Entities

Take another look at the quote that begins this piece. HIPPA protects “individually identified” health information generated by “covered entities.” Use an individual’s unique health identifier, or obtain his or her identifiable health information, or disclose personal information to someone else, and you’re in trouble.[3] Patients, on the other hand, generally have the right to release their information to others. In our example G doesn’t want to do that.

A “covered entity” is a health plan, a health plan clearinghouse, or a health care provider who transmits health information in electronic form.[4] Medical care provided by government agencies, say to veterans or active duty military, also qualifies as a “health plan” under HIPAA.[5] G. Sallust’s records are exactly the kind HIPAA is supposed to protect, and anyone who steals them could be in trouble, if caught. Any “person” who discloses them “in violation of” the statute could be punished.

So let’s look at that. Suppose the Sallust records get out. Is G partly responsible because he was negligent, i.e., used an unsecured connection? Probably not. We like to blame the victim these days, but still we don’t excuse the burglar who burgles an unlocked house, or the car thief who drives off in an unlocked car. Both still are crimes. Why should the theft of medical data be treated differently?

Is there another way to limit the universe of people who might possibly violate HIPAA? Back when it was enacted, in 1996, attention was focused primarily on the “covered entities,” i.e., on groups that have and transmit medical data about individuals.[6] Were they the only ones regulated? That was argued for some time, but things changed in 2006 when HIPAA was amended to include as defendants people who might obtain or disclose such information “without authorization.” [7] Presumably this group is much broader than medical providers, possibly including the janitor who absconds with paperwork in the night, a doctor who speaks out of turn or, I think, even a hacker who lifts data files via an unsecured internet connection.[8]

Criminal Penalties

HIPAA provides both civil and criminal penalties for its violation. Civil penalties may be imposed by HHS; but criminal penalties are controlled by the Department of Justice. Criminal penalties run up a scale per the statute. A person who “knowingly obtains or discloses individually identifiable health information” may face a criminal penalty of

  • up to $50,000 and up to one-year imprisonment, or
  • if the wrongful conduct involves false pretenses, up to $100,000 and 5 years imprisonment, or
  • if the wrongful conduct involves the intent to sell, transfer, or use identifiable health information for commercial advantage, personal gain or malicious harm, up to $250,000 and 10 years imprisonment.[9]

That’s kind of interesting, isn’t it? If somebody distributes your “individually identifiable health information” simply to cause malicious harm, that could be worth a $250 thousand fine and/or 10 years in the pokey. Politicians beware, and campaign managers too! There may be limits even to opposition research.

Conclusion

Let’s take another look at the three questions we started with. Can one compromise a private network by accessing it through an unsecured wireless connection? I would think the answer is “yes.” Once you make your online activity visible to others, there’s no reason why the files, etc. that you send and receive would be invisible to hackers looking over your electronic shoulder. Feel free to correct me if you think I’m wrong. We’re all looking for the truth, right?

OK, let’s move on to Question 2. Why in the world would any medical group, Government or not, develop a secure records system and then encourage patients to connect with it via unsecured wireless? Is there any legitimate reason for that? I can’t really think of one. Should we just “follow the money” to see who’s benefitting? Rogue employees, hacker syndicates or who else? And finally, there’s Question 3. Who’s liable if someone snags patient records through a potentially giant security breach? Probably not the patients; at worst they’re dupes. The people who do the snatch, or trade in the records are the real culprits. They’re using someone else’s medical records “without authorization;” and they may have co-conspirators and accessories to their operation.

Let the record reflect: I don’t have direct evidence of criminality in the situations – real or hypothetical – we’ve discussed. I’m just saying, somebody should look at the possibilities.

 

[1] Note that this is a criminal provision, but not codified in Title 18. The official version is available, for free, from the Government Publishing Office at https://www.gpo.gov/  . You also can get an unofficial version from LII, hosted by the Cornell University Law School.

[2] For 42 U.S.C. §1320d-6(a), see Pub. Law 104-191, 110 Stat. 2029 (August 21. 1996), as amended.

[3] See 42 U.S.C. §1320d-6(a).

[4] See 45 CFR §160.103, Definitions, available at https://www.gpo.gov/fdsys/pkg/CFR-2011-title45-vol1/pdf/CFR-2011-title45-vol1-sec160-103.pdf

[5] Id.

[6] See, e.g., the discussion in AIS Health, DOJ Steps Up Enforcement with Indictment of “Loose Lips” Doctor, Hospital Visitor (July 15, 2011), available at http://aishealth.com/archive/hipaa0711-01F  For a lengthy summary of HIPAA privacy, see HHS.gov, Health Information Privacy, Summary of the HIPAA Privacy Rule,  available at https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html

[7] See 42 U.S.C. §1320d-6(a), second sentence: “‘For purposes of the previous sentence, a person (including an employee or other individual) shall be considered to have obtained or disclosed individually identifiable health information in violation of this part if the information is maintained by a covered entity (as defined in the HIPAA privacy regulation described in section 1180(b) (3)) and the individual obtained or disclosed such information without authorization.’”

[8] See, e.g., the discussion in AIS Health, DOJ Steps Up Enforcement with Indictment of “Loose Lips” Doctor, Hospital Visitor (July 15, 2011), available at http://aishealth.com/archive/hipaa0711-01F

[9] See 42 U.S.C. §1320d-6(b). See also HHS, HHS.gov, Health Information Privacy, at Criminal Penalties (no page #), available at https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html