The Nation
Decriminalize the Game: A Solution to Baseball’s Drug Wars
Alex Rodriguez. (Reuters)
If you want to know what’s wrong with Major League Baseball, look no further than today’s top headlines. In what has been described as “the largest [Performance Enhancing Drug scandal] in American sports history,” at least twenty Major League Baseball players now face significant suspensions for PED use. Included in the guilty-until-proven-innocent public parade are Yankee albatross Alex Rodriguez and the man Buster Olney is calling “the Lance Armstrong of baseball,” Milwaukee Brewers star Ryan Braun. (The latter is in reference to Braun’s Shermanesque denials over the last two years that he ever imbibed in pharmaceutical help, not his ability to master the Pyrenees.)
MLB has leaked the names of the accused because it have confidence in its source. His name is Anthony “Tony” Bosch and he is the former director of Biogenesis, a now shuttered South Florida “anti-aging clinic.” Tony Bosch is not a doctor nor does he play one on TV. He did, however, have a roster of “patients” whom he allegedly supplied with all manner of banned substances. MLB was in the process of suing Biogensis when the near-bankrupt Bosch, unable to afford a proper legal defense, chose to turn over every scrawled receipt, hand-written ledger and appointment book to MLB officials. In return, they have reportedly pledged to stop their civil suit and use their political clout to halt the Justice Department’s forthcoming criminal indictment.
Forget your personal feelings about whether you like or dislike A-Rod or whether you think these players are worse than Pol Pot for “cheating the game.” Forget if you’re convinced there is no greater evil than a pill that helps an adult professional athlete heal from injuries or work out with greater efficiency. Forget it all and consider the disturbing audacity of what Major League Baseball just accomplished: a powerful private corporation has used its political connections with the Justice Department as well as the power of its own purse to squeeze a weaker business to disclose confidential medical records. America!
If that doesn’t bother you, perhaps this will. According to Major League Baseball’s collective bargaining agreement with the player’s union, the league can impose a fifty-game suspension for a first PED offense, 100 games for a second offense and a lifetime ban for a third. In this case, according to sources, the league will be pursuing 100 game suspensions for every player deemed guilty on the basis that it’s really two offenses in one. Their mere connection to Bosch is one strike, and any previous denial that they were connected to Bosch—in other words, lying to MLB officials—constitutes a second. Yes, you don’t even have to fail a drug test. You just need to be around drugs and make statements that Commissioner Bud Selig unilaterally determines to be a lie. It’s like a kid’s baseball book co-written by Mike Lupica and George Orwell.
This should be calling the entire system into question, but many baseball writers are instead already writing paeans to Bud Selig’s tough justice. ESPN’s Jayson Stark wrote, “If Tony Bosch sings the song that baseball firmly believes he’s about to sing, some of the biggest names in this sport could pay a monstrous price. And the aftershocks will be rattling baseball’s Richter Scale for generations to come.”
This is not an earthquake. Instead it will be death by 10,000 paper cuts. The union will protest the idea that there could ever be two suspensions for one offense and appeals will drag on for years. The only thing “rattling” in future generations will be the skeletons of what once comprised the fan-base of this sport.
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I love baseball and it’s tragic to watch it self-devour, so here is my own humble advice about a different way to handle this. Steroids and all PEDs need to be seen as an issue of public health, not crime and punishment. If seen as an issue of public health, the scandal here would not be that a group of players may have used PEDs. The scandal would be that they had to visit a skuzzy, unregulated “clinic” not run by medical professionals to get their drugs. Instead of criminalization, educate all players about the harmful effects of long-term PED use when not under a doctor’s supervision. Have medical officials make the policy and determine what PEDs help a person heal faster—an admirable quality in a medicine, no?—and what shouldn’t be a part of any training regimen. Centralize distribution under the umbrella of MLB so it doesn’t become an arms race of which teams get the best doctors and the best drugs. Then, players could take advantage of the most effective new medicines and MLB would be removing the process out of the shadows where the Tony Bosch types of the world hold sway. They also then have an ethical basis for testing and rehabilitation when use crosses the line into abuse.
This solution won’t please the purists who revere a game that never existed. It won’t please the anti-steroid furies who think that the behavior of children are determined in Pavlovian fashion by the actions of Major League Baseball players. It certainly won’t please baseball’s owners who like a system where fleecing cities out of millions in tax money isn’t cheating but taking a pill to workout longer is. It would, however, finally, at long last, take the game out of the courts, off the front pages, and put it back on the field. Bud Selig isn’t Eliot Ness and Ryan Braun isn’t Al Capone. It’s time to stop the madness and decriminalize the game.
This week, Walmart’s board of corporate tycoons will converge on Bentonville for the company’s annual shareholder meeting. Read Josh Eidelson’s exposé.
Always Low Wages: Meet the Billionaires Who Run Walmart
Shoppers at a Walmart Store in Chicago. Reuters/John Gress
This week Walmart shareholders will gather in the retail giant’s Arkansas backyard and re-elect a board of directors charged with guiding the company over the coming years. Walmart’s board—rife with billionaires and industry titans—has recently become a lightning rod for company critics. During their lengthy and high-profile business careers, several board members have faced allegations—from worker exploitation to financial malfeasance—that parallel those facing Walmart itself.
Over the past year, labor activists have targeted board members with dossiers on the Internet and protests around the country, from a hunger strike and vigil by guest workers outside Michele Burns’s New York mansion, to demonstrators placed along the route of a Bay Area marathon to shout messages at Greg Penner as he ran towards the finish line. Over the past week, striking retail workers from the union-backed group OUR Walmart have staged a series of board-focused protests, including one at Yahoo! CEO Marissa Mayer’s Palo Alto mansion, and another outside her penthouse atop the San Francisco Four Seasons hotel.
While Walmart’s shareholder meeting won’t kick off until Friday, strikers are already in town. This week they’ll try to win over some of the workers flown to Arkansas by management, and to draw shareholders’ and reporters’ attention to OUR Walmart’s allegations of illegal retaliation and their demands regarding Walmart’s working conditions. They’ll also work to shine light on recent company controversies regarding reported bribery in Mexico and factory deaths in Bangladesh.
Friday’s meeting also follows a quarterly earnings report that drew some less-than-glowing headlines in major outlets (New York Times: “Wal-Mart Sales Go Cold, and Its Shares Feel the Chill”; USA Today: “Wal-Mart 1Q profits, revenue disappoint”; Los Angeles Times: “Wal-Mart reports weak 1st-quarter sales, blames weather, tax issues”). The United Food & Commercial Workers union seized on the earnings report as the latest sign of trouble at Walmart, along with New York Times and Bloomberg articles suggesting understaffing is driving away customers, and the announced departures of three board members and two executive vice presidents.
Meanwhile, Walmart has recently touted the launch of its plan to hire 100,000 veterans over five years; the expansion of a conservation partnership with the National Fish and Wildlife Foundation; and a tally of over $1 billion in charitable donations (counting cash and in-kind contributions) in the previous fiscal year. The company did not respond to requests for comment for this story.
In a May 27 e-mail to The Nation, spokesperson Brooke Buchanan called the shareholder meeting “a celebration of our 2.2 million associates who work hard every day so people around the world can live better.” Buchanan said OUR Walmart “is comprised of a few number of people, most of whom aren’t even associates and don’t represent the views of our associates.”
I’ll be reporting from Arkansas this week—watch this space for updates starting Thursday. But first, here’s The Nation’s guide to the seventeen current members of Walmart’s board, and some of the controversies they’ve encountered.
The Waltons
Jim Walton: chairman and CEO of Arvest Bank Group
S. Robson (“Rob”) Walton: Walmart Board chairman
Gregory Penner: founder and general partner at Madrone Capital Partners, a firm investing Walton money
Three members of the Walmart Board are members of the Walton family—relatives of Sam Walton, the company’s late, iconic founder, whose business philosophy is often touted by the company’s defenders and critics alike. Sam’s son Rob Walton is the board’s chairman.
Members of the family together control just over half of the company’s stock, and they take up four of the top ten slots on Forbes’s list of the wealthiest Americans. Forbes pegged the family’s net worth at $120 billion last October. Based on Federal Reserve data, the Economic Policy Institute’s Josh Bivens found that the Walton family has as much wealth as the bottom 41.5 percent of US families combined. (That figure factors in the negative net worth of close to 13 million families—no doubt including some of Walmart’s 1.4 million US employees.)
The Waltons aren’t just sitting on that cash. As individuals and through their Walton Family Foundation, they’ve given generously to a range of causes. That includes long-standing support for individuals and organizations out, in the words of the foundation, to “infuse competitive pressure into America’s K-12 education system.” Last year, Alice Walton put $1.7 million behind the successful effort to pass a pro–charter school bill in Washington state. In April, three weeks after the release of a confidential memo renewed scrutiny over cheating during Michelle Rhee’s tenure as DC schools chancellor, the Waltons’ foundation announced an $8 million grant to her advocacy group StudentsFirst.
There’s more where that came from. In an e-mail to supporters reported by the Arkansas Times in January, the Walton Family Foundation’s executive director Buddy Philpot wrote, “Our board and staff are proud of how we’ve helped cultivate today’s education reform movement by investing more than $1 billion in initiatives that expand parental choice and equal opportunity in education.” (Yes, that’s billion with a “b.”) The same message pledged that the foundation’s board would “expand its leadership role in education reform” in 2013. Philpot wrote that “several Walton family members are increasing their individual engagement in both philanthropic and political endeavors related to improving K-12 education,” and thus “the family will be expanding its staff capacity to guide and manage its increasing role in education reform.”
(Meanwhile, Walmart itself sponsored a CBS concert promoting the film Won’t Back Down, which celebrates the anti-union law known as “parent trigger.”)
Walton cash backs other conservative causes. Board member Jim Walton provided the majority of the financial support ($75,000) for an Arkansas ballot initiative banning couples who lived together and were not legally married from becoming adoptive or foster parents, according to the National Institute on Money in State Politics. (The initiative, which a prominent supporter called an effort to “blunt the gay agenda,” was passed by voters but overturned in court.)
Last October, the UFCW’s Making Change at Walmart campaign slammed Jim Walton on its website for donating $500 to the campaign of Arkansas State Representative Loy Mauch, a member of the League of the South, which advocates secession. Jim Walton then wrote to Mauch to request his money back, saying that he had donated “because of your support for education reform in Arkansas” but that he had since “learned about some of your views on other issues with which I disagree.” In response, Making Change at Walmart noted that Mauch’s past statements on education included letters to the editor in 2006 saying that “Public education is one of the 10 planks of the Communist Manifesto” and that “Public education was forced upon the South during Reconstruction to complete the aim of the radical socialists, which was to destroy Southern conservatism.”
Meanwhile, the Wisconsin Center for Investigative Journalism found that in the state’s 2010 legislative elections, which swept in the majorities that passed a raft of right-wing bills, Walton family members made up six out of the top fifteen individual donors to the winning candidates (that includes board members Jim Walton and Greg Penner, Sam Walton’s son-in-law). And the Walton Family Foundation was listed, along with Walmart, as a “Chairman”-level sponsor of a 2011 meeting of the conservative American Legislative Exchange Council (ALEC). While Walmart announced that it was cutting ties to ALEC following pressure from activists in 2012, the Walton Family Foundation has announced no such move.
In 2011, Greg Penner and two other finance professionals created a PAC called Govern for California, whose declared priorities include changes to public employee pensions and prison sentencing. Govern for California backed former Teach for America official Brian Johnson’s unsuccessful campaign for a California assembly seat “as an education reformer”; Greg’s wife Carrie Penner also donated to Johnson, and gave $222,000 between 2011 and 2012 to the independent expenditure committee of a California education reform group that supported him. Although GFC calls for “raising revenues if and when needed,” Penner donated $250,000 in 2006 to oppose a ballot initiative that would have raised taxes on the wealthy in order to fund universal preschool for California’s 4-year-olds.
While Walmart is the Waltons’ biggest business, it’s not their only venture to court controversy. Greg Penner is a founder and managing director of Madrone Capital Partners, a firm investing Walton money. (According to an investor summary by the financial research company PrivCo, Madrone “primarily manages the Walton Family’s investments in growth private companies”; the private equity firm DT Capital touts its ties to “Madrone Capital in the US, the investment entity for members of the Walton family.”) Madrone has invested in—and Penner is one of five board members of—Baidu, China’s top domestic search engine, which was started with money invested by the firm Peninsula Capital while Penner was a general partner there.
A 2006 Human Rights Watch report found that Baidu results for several politically sensitive terms “were heavily censored in comparison to other search engine results, without a notice that censorship had taken place.” In a 2011 letter, Dick Durbin, the Senate’s second-ranking Democrat, wrote to Baidu’s CEO “to express my serious concerns about your company’s censorship of the internet”; he noted that the company “reportedly received the ‘China Internet Self-Discipline Award’ from the Chinese government.”
Madrone is also invested in DMB Pacific Ventures, a real estate company whose Redwood City Saltworks project—originally planned to build homes on 1,400 acres of Bay Area salt ponds—sparked local controversy. Following opposition from environmentalists, and uncertainty regarding whether the federal government would subject the plan to Clean Water Act and Rivers and Harbors Act restrictions, DMB withdrew its proposal last year. The project’s website now says that the company is “working on a revised and ‘scaled-back’ project.”
In addition to Walmart’s board, where he chairs the Technology and eCommerce committee, Penner sits on the boards of Teach for America, the (opposite-sex only) online dating service eHarmony, Hyatt Hotels and The Charter Growth Fund, a nonprofit that invests in charter schools. Hyatt has faced coordinated strikes and a national boycott by the hotel union UNITE HERE (my former employer) over allegations of union-busting and unsafe conditions for housekeepers. Reached by e-mail, a Hyatt spokesperson touted the company’s “great workplace environment” and “outstanding safety record,” and accused the union of attempting “to pressure Hyatt into imposing unionization on its non-union associates.” (Hyatt heir and former board member Penny Pritzker was recently nominated to serve in President Obama’s cabinet, where she’d join former Walmart Foundation President Sylvia Mathews Burwell.)
Walmart, the Walton Family Foundation, Baidu and Greg Penner (contacted via voicemail at his Madrone Capital Partners office) did not respond to requests for comment.
The CEOs
James Breyer: Breyer Capital CEO and Accel Partners partner (departing)
M. Michele Burns: CEO and executive director of the Retirement Policy Center (departing)
Roger Corbett: former CEO of Woolworths Limited
Douglas Daft: former Coca-Cola CEO
Mike Duke: Walmart president and CEO
Marissa Mayer: Yahoo! CEO and president
Steven Reinemund: former PepsiCo CEO; dean of business at Wake Forest University
H. Lee Scott Jr.: former Walmart CEO
Arne Sorenson: Marriott President and CEO (departing)
Christopher Williams: Williams Capital Group CEO
Linda Wolf: former Leo Burnett chairman and CEO
Two-thirds of Walmart’s current board members—twelve out of seventeen—are current or former CEOs (that includes Arvest Bank’s Jim Walton) . Between them, the CEOs on the board helm or helmed five name-brand US companies (Coke, Pepsi, Yahoo!, Marriott and of course Walmart), an ad agency, an investment fund, an investment bank, the top retailer in Australia and a consulting firm’s retirement think tank.
The board includes former Walmart CEO H. Lee Scott, who helmed the company during the comparatively weak labor protests of the 2000’s, and current CEO Mike Duke, who succeeded him in 2009 (after stepping down at Walmart, Scott became an operating partner at Solamere Capital, Tagg Romney’s private equity firm). Last year, The New York Times reported that, despite "a wealth of evidence," "Wal-Mart's leaders shut down" an internal investigation of the allegations, and "authorities were not notified." In response, the Justice Department and congressional Democrats launched investigations into the company, and in January, congressional Democrats released e-mails showing Duke being personally informed of bribery allegations involving Walmart de Mexico as early as 2005, while he was serving as a Walmart vice chairman responsible for Walmart International.
It’s unclear how long Duke will stay in his post—citing “a person close to the situation,” Bloomberg Businessweek reported May 7 that Walmart could name a successor “in the coming months.” Walmart’s proxy statement pegs Duke’s total compensation for the last fiscal year at $20,693,545.
Board member Douglas Daft served as CEO of Coca-Cola from 2000 to 2004. Like Walmart today, Coca-Cola on Daft’s watch faced protests over labor conditions in its international supply chain: students and labor activists targeted Daft over alleged complicity in the violent repression of organizing by workers in bottling plants in Colombia. Following a 2004 fact-finding trip to Colombia, a delegation led by New York City Councilman Hiram Monserrate issued a harsh assessment: “The company denies any involvement in the threats, assassinations, kidnappings and other terror tactics, but its failure to protect its workers even on company property, its refusal to investigate persistent allegations of payoffs to paramilitary leaders by plant managers, and its unwillingness to share documentation that might demonstrate otherwise leads the delegation to the conclusion that Coca-Cola is complicit in the human rights abuses of its workers in Colombia.”
Reached by e-mail, a Coca-Cola spokesperson said, “The allegations by the anti-Coke campaign activists are simply not true” and that “two different judicial inquiries in Colombia…found no evidence to support the allegations that bottler management conspired to intimidate or threaten trade unionists.” She noted that “these allegations were the thrust of a lawsuit filed in 2001 against The Coca-Cola company in a U.S. District Court in Miami; the company was dismissed as a defendant in 2003.”
Like some of the controversies facing Walmart, the most serious allegation against Board Member Linda Wolf involved the limits of subcontracting. In 2004, one year before Wolf departed as CEO of the ad agency Leo Burnett, the US Army sued the company for allegedly overbilling the government by $20 million. The suit alleged that the company defrauded the government by claiming wholly owned subsidiaries of the company were in fact subcontractors. CBS reported that then–Chief Financial Officer Eric Martinez ordered an audit, but—according to the lawsuit—was fired by Wolf before he could conduct it. Leo Burnett settled the lawsuit for $15.5 million in 2009. Wolf chairs the Walmart board’s Compensation, Nominating and Governance Committee.
Christopher Williams’ Williams Capital Group was one of several firms to which, The New York Times noted in 1998, then–New York Comptroller Carl McCall directed state pension fund contracts after receiving campaign donations from executives. Last October, Williams Capital Group announced the opening of a new Sacramento office as part of plans to “build upon and further expand our valuable services to municipal enterprises.” In April, Making Change at Walmart wrote to Williams’s potential clients to suggest that Williams’s service as chair of the Walmart board’s auditing committee should give them pause given the company’s Mexico bribery scandal.
Perhaps the most famous CEO on Walmart’s board is Yahoo! executive Marissa Mayer, who took over the tech company last summer. Mayer has drawn a series of headlines over the past year: for her swift return to work after giving birth; for eschewing the label “feminist”; for eliminating the company’s work-from-home options; and most recently, following criticism, for increasing Yahoo!’s maternity leave.
As with the controversy over fellow tech exec Sheryl Sandberg’s book Lean In, labor activists have seized on the conversation around Mayer in an effort to draw attention to challenges facing lower-wage women in the workforce. Reached by e-mail, a Yahoo! spokesperson said the company has been “very focused on making Yahoo! the absolute best place to work,” and declined to comment on Mayer’s role on Walmart’s board, or the allegations against Walmart.
Labor-backed pressure could help explain why the Walmart board—currently seventeen members—appears about to shrink. Three of the current CEOs on the board are leaving, and Walmart’s pre-convention federal filing doesn’t list any replacements. All three of the departing members—Marriott CEO Arne Sorenson, Breyer Capital CEO James Breyer and Retirement Policy Center CEO Michele Burns—were among those targeted by labor activists for their involvement with Walmart.
In a message to shareholders in Walmart's 2013 annual report, board chairman Rob Walton noted that Marissa Mayer and Tim Flynn had joined the board over the past year, that Breyer and Burns had served on the board for over a decade and that Sorenson had recently been promoted to Marriott CEO.
In a letter to Linda Wolf and other board members prior to Walmart’s 2011 shareholder meeting, the Change to Win Investment Group (a group tied to unions currently backing organizing at Walmart) questioned Breyer’s and Burns’s listing as “independent directors” on the board. The CTW letter noted that Michele Burns then served as CEO of Mercer LLC, which Walmart had retained to consult on the company’s executive compensation; and that Jim Breyer was a partner in the venture capital firm Accel, a part owner of the social media company Kosmix, which had recently been purchased by Walmart.
When Burns was appointed as CEO of Mercer in 2006, The New York Times noted that she had “left a number of shareholders, creditors and employees at her previous employer, the Mirant Corporation, disgruntled over the amount she was paid while the company was in bankruptcy reorganization.” That included $3.6 million in severance following a year and a half in the job. Burns is currently chairing the Walmart Board’s Strategic Planning and Finance Committee; she previously chaired its Compensation, Nominating and Governance Committee.
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Like Walmart, Marriott CEO Arne Sorenson has been a steadfast opponent of organized labor, telling The Economist in 2009 that he opposed the (since failed) Employee Free Choice Act in part because non-union hotels are about 10 percent more profitable than those with unions. The same article reported that if the labor law reform passed, “Sorenson of Marriott predicts that his typical employee, a diminutive Hispanic housekeeper with shaky English, will find it hard to say no to the tall, articulate union man who turns up and asks her to sign a card.”
A spokesperson for Marsh & McLennan Companies—parent of the Retirement Policy Center and of Mercer—declined a request for comment. Breyer Capital, Leo Burnett, Williams Capital Group and Marriott did not respond to inquiries.
The Rest
James Cash Jr.: consultant and retired Harvard Business School professor
Timothy Flynn: retired KPMG International chairman
Aída Álvarez: former US Small Business Administration administrator
Of the final three board members, one is a consultant and former business school professor, one chaired an auditing company and the last, Aída Álvarez, is the chair of the Latino Community Foundation of San Francisco and the former administrator of the US Small Business Administration under Bill Clinton. Álvarez also sits on the board of Progreso Financiero, a financial services company whose investors include Madrone Capital. (The Clintons’ ties to Walmart go back decades. Hillary Clinton sat on the company’s board while Bill was governor; more recently, journalist Charles Fishman reported that ex-President Clinton held confidential meetings with then-CEO Lee Scott regarding how to make amends with the company’s critics.)
Progreso Financiero’s website touts its commitment to “achieving social good” and offering “unsecured credit to under-banked Hispanic families,” offering the chance for them to “prove that they are, in fact, ‘pre-prime’, and also very loyal, long term customers.” The LA Times reported in 2010 that “Progreso’s typical 26% interest rate, plus its $50 origination fee for loans, works out to an average annual percentage rate of 36%.” In a 2010 press release announcing Progreso’s new financing from Madrone, Madrone praised Progreso’s “innovative and socially responsible solution”; Progreso touted its new backers as “world-class investors.”
Progreso Financiero did not respond to a request for comment.
Images courtesy The Walmart 1%
Follow Josh Eidelson's blog for updates throughout the Walmart board meeting, from the back-room machinations to the protests outside.
Bradley Manning's Informant: On Adrian Lamo
Adrian Lamo climbs into a vehicle in Fort Meade, Maryland, Tuesday, December 20, 2011, after testifying at a military hearing of Army Pfc. Bradley Manning. (AP Photo/Patrick Semansky)
Pity the wretched Adrian Lamo! The genius hacker is a celebrity among the digerati and DefCon regulars, but to those of outside those circles, Lamo looks pretty much like every other police informant: a convicted felon with a history of mental illness. (Lamo was involuntarily committed just a few weeks before he was contacted by Pfc. Manning from Forward Operating Base Hammer in Iraq.) So much of what we know about Manning is from the six-day conversation between him and Lamo via instant-message chats in May of 2010 when the soldier still deployed at FOB Hammer in Iraq, the hacker at home in California. The (nearly) unexpurgated logs were published by Wired in July 2011 and they are a twenty-first-century non-fiction novella written in the abbreviated online lingo of the millennials. Manning does nearly all of the chatting: about his childhood, his life as a high school graduate on his own living out of his car in the Chicago O’Hare parking lot, his aspirations for college, what he saw and did and was asked to do but did not do in the US military and why he became a Wikileaks source.
Lamo doesn’t say much in these chatlogs. He asks questions. He listens, or seems to. By the second day of the conversation he’s turned Manning in to the authorities.
Many people detest Adrian Lamo and have tried to cast him as Iago in this story. Not me, though. Lamo’s pathetic and unlikeable, for sure, a guy who posed as a friend to Manning while shopping him to the feds—not, I suspect, out of security-minded patriotism (as he has sometimes claimed) but to cover his own ass from further prosecution. A sad wretch, and I’m not interested in burning the calories required to despise a guy who is not worth it.
Yesterday Adrian Lamo took the stand as a witness for the prosecution, who are desperate to nail Manning for the capital offense of aiding the enemy, the most serious of the twenty-two charges against the young soldier—but also the most ridiculous. Because members of Al Qaeda, like everyone else in the world with an Internet connection, had access to Wikileaks, Manning was their accomplice! (It’s a bit like prosecuting Nike for aiding the enemy if they had found a pair of vintage Air Jordans in bin Laden’s armoire.) The law on aiding the enemy is disturbingly vague: most capital crimes require a specific intent (mens rea) to commit the criminal act, it can’t be a matter of negligence or recklessness. Did Manning specifically intend to aid Al Qaeda? Not remotely, not even, from everything that we know.
But the prosecution has pushed hard for broader interpretation of the “aiding the enemy” charge—and they have largely succeeded. In pretrial hearings, Judge Denise Lind ruled that the prosecution must only prove that Manning had specific knowledge (not an intent) that his declassified documents would reach and help Al Qaeda—a lower, blurrier standard. The prosecution has come out guns blazing to pin Manning to bin Laden, and many reporters who should know better have lapped this up. (Cf. the Atlantic’s lurid and imbecilic headline, “The Thin Line between Bradley Manning and Osama Bin Laden.”)
So it was a bit of a relief when Adrian Lamo testified yesterday that Manning had never expressed any desire to harm the United States. Manning’s attorney, David Coombs, asked Lamo if the defendant had ever voiced any intent to harm the US, desecrate the flag or aid the enemy.
“Not in those words, no.”
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The prosecution is going to have a very difficult road to hoe in making the aiding the enemy charge stick.
Note: I missed Monday’s opening statements, as I was running around Manhattan doing media appearances on the quinoa circuit of left-of-center and foreign TV studios. If you want the scoop on the prosecution and defense’s opening orations, don’t waste your time with sites like MSNBC or the Atlantic, tune in to Kevin Gosztola of Firedoglake or Nathan Fuller of the Bradley Manning support network, who has covered every breath of the pretrial hearings and will be down at the Ft. Meade courthouse for the duration of its twelve to sixteen weeks. (Me, I’ll be down there next week, reporting firsthand). And thanks to the Freedom of the Press Foundation for hiring a stenographer and supplying TRANSCRIPTS of the courtroom action.
Check out Chase Madar’s last post, “Seven Myths About Bradley Manning.”
Katrina vanden Heuvel & Jeremy Scahill: Obama's Cruise Missile Liberals
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According to a news report released Wednesday morning, National Security Advisor Tom Donilon has announced his resignation and is to be replaced by US Ambassador to the United Nations (UN) Susan Rice in what is bound to be a controversial appointment. Replacing Susan Rice will be author and foreign policy expert Samantha Powers—another interesting selection on behalf of the Obama administration.
Nation editor-in-chief Katrina vanden Heuvel joins Nation national security correspondent and author of the recently-released book Dirty Wars: The World is a Battlefield on MSNBC's Morning Joe to discuss President Obama's selection and national security policies such as the drone wars that are being waged in many countries that, as Joe points out, we haven't even declared we are officially at war with.
Texas Redistricting Fight Shows Why Voting Rights Act Still Needed
The Senate Redistricting committee listens to public speakers during a hearing, Thursday, May 30, 2013, in Austin, Texas. (AP Photo/Eric Gay)
The last time Texas redrew its political maps in the middle of the decade, Texas Democrats fled to Oklahoma to protest Tom DeLay’s unprecedented power grab in 2003.
Now Texas Republicans are at it again, with Governor Rick Perry calling a special session of the legislature to certify redistricting maps that were deemed intentionally discriminatory by a federal court in Washington and modified, with modest improvements, by a district court in San Antonio last year. Republicans want to quickly ratify the interim maps drawn for 2012 by the court in San Antonio before the court has a chance to improve them for 2014 and future elections. “Republicans figured out that if the courts rule on these maps, they’re going to make them better for Latinos and African-Americans,” says Matt Angle, director of the Texas Democratic Trust.
The maps originally passed by the Texas legislature in 2011 personified how Republicans were responding to demographic change by trying to limit the power of an increasingly diverse electorate. Here’s the backstory, which I reported last year:
One of four majority-minority states, Texas grew by 4.3 million people between 2000 and 2010, two-thirds of them Hispanics and 11 percent black. As a result, the state gained four Congressional seats this cycle. Yet the number of seats to which minority voters could elect a candidate declined, from eleven to ten. As a result, Republicans will pick up three of the four new seats. “The Texas plan is by far the most extreme example of racial gerrymandering among all the redistricting proposals passed by lawmakers so far this year,” says Elisabeth MacNamara, president of the League of Women Voters.
As in the rest of the South, the new lines were drawn by white Republicans with no minority input. As the maps were drafted, Eric Opiela, counsel to the state’s Congressional Republicans, referred to key sections of the Voting Rights Act as “hocus-pocus.” Last year the Justice Department found that the state’s Congressional and Statehouse plans violated Section 5 of the VRA by “diminishing the ability of citizens of the United States, on account of race, color, or membership in a language minority group, to elect their preferred candidates of choice.” (Texas has lost more Section 5 enforcement suits than any other state.)
Only by reading the voluminous lawsuits filed against the state can one appreciate just how creative Texas Republicans had to be to so successfully dilute and suppress the state’s minority vote. According to a lawsuit filed by a host of civil rights groups, “even though Whites’ share of the population declined from 52 percent to 45 percent, they remain the majority in 70 percent of Congressional Districts.” To cite just one of many examples: in the Dallas-Fort Worth area, the Hispanic population increased by 440,898, the African-American population grew by 152,825 and the white population fell by 156,742. Yet white Republicans, a minority in the metropolis, control four of five Congressional seats. Despite declining in population, white Republicans managed to pick up two Congressional seats in the Dallas and Houston areas. In fact, whites are the minority in the state’s five largest counties but control twelve of nineteen Congressional districts.
On August 28, 2012, a federal court in Washington found that Texas’s redistricting maps were “enacted with discriminatory purpose” and violated Section 5 of the Voting Rights Act. Texas Republicans not only failed to grant new power to minority voters in the state, the court found, they also took away vital economic resources from minority Democratic members of Congress.
From the opinion:
Congressman Al Green, who represents CD 9, testified that “substantial surgery” was done to his district that could not have happened by accident. The Medical Center, Astrodome, rail line, and Houston Baptist University — the “economic engines” of the district — were all removed in the enacted plan. The enacted plan also removed from CD 9 the area where Representative Green had established his district office. Likewise, Congresswoman Sheila Jackson Lee, who represents CD 18, testified that the plan removed from her district key economic generators as well as her district office. Congresswoman Eddie Bernice Johnson of CD 30 also testified that the plan removed the American Center (home of the Dallas Mavericks), the arts district, her district office, and her home from CD 30. The mapdrawers also removed the district office, the Alamo, and the Convention Center (named after the incumbent’s father), from CD 20, a Hispanic ability district.
No such surgery was performed on the districts of Anglo incumbents. In fact, every Anglo member of Congress retained his or her district office. Anglo district boundaries were redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren. And Texas never challenged evidence that only minority districts lost their economic centers by showing, for example, that the same types of changes had been made in Anglo districts.
The only explanation Texas offers for this pattern is “coincidence.” But if this was coincidence, it was a striking one indeed. It is difficult to believe that pure chance would lead to such results. The State also argues that it “attempted to accommodate unsolicited requests from a bipartisan group of lawmakers,” and that “[w]ithout hearing from the members, the mapdrawers did not know where district offices were located.” But we find this hard to believe as well. We are confident that the mapdrawers can not only draw maps but read them, and the locations of these district offices were not secret. The improbability of these events alone could well qualify as a “clear pattern, unexplainable on grounds other than race,” and lead us to infer a discriminatory purpose behind the Congressional Plan.
The interim maps drawn by three judges in San Antonio in March 2012 rectified some of the worst injustices in the legislature’s maps. The court restored a majority-minority Congressional district in South Texas and created a new one in the Dallas-Fort Worth Area. It also moved Congressional offices and major landmarks back into the districts of Democratic members of Congress, and created three additional majority-Hispanic districts in the Texas House. But the interim maps were based largely on the state’s discriminatory original maps and were drawn before the DC court had a chance to weigh in.
“There’s no question the interim maps are an improvement,” says Michael Li, a Texas redistricting expert who runs the invaluable blog txredistricting.org. “But there still are a lot of open issues that need a hard look because the maps were hastily drawn and designed to be interim, and the San Antonio court didn’t have the benefit of the DC court’s ruling, including its finding of intentional discrimination.”
Li says that based on the state’s rapid population growth, legislators should have drawn an additional majority-Hispanic Congressional seat in North Texas and a Democratic-leaning district in Austin’s Travis County, along with six to seven more state House seats with a higher minority population that are more favorable to Democrats. Between 2010 and 2011, Texas gained 687,305 new eligible voters, 83 percent of them non-white, a trend that has political analysts speculating that Texas will turn purple in the not-so-distant future. But instead of accounting for this population growth and the DC court’s findings of discrimination, Texas Republicans want to make the interim maps permanent before the San Antonio court has a chance to act in order to fortify their majorities.
Every Democrat in the state House and eleven of twelve Democrats in the Senate signed a letter to Texas Attorney General Greg Abbott opposing adoption of the interim maps. “When you overlay the evidence presented at trial with the demographic explosion that’s happened in this state and the fact that minorities are unaccountable for at significant levels, it tells me we have a lot of work to do,” says Democratic State Rep. Trey Martinez Fischer, chairman of the Mexican American Legislative Caucus.
Perhaps to appease its critics, the legislature has scheduled a series of field hearings on the redistricting maps, starting this week in Dallas. “I believe that there is the capacity to make changes to the maps,” says Martinez Fischer. “There doesn’t appear to this rampant resistance that existed two years ago in what was a hyper-partisan environment. There seems to be reasonable minds who think we should make some changes, but I’m not sure that folks have been able to come to terms with it politically.” But Matt Angle says Texas Republicans are only holding hearings now, two years after passage of the original maps, in an attempt to convince the court in any future lawsuit that they’ve complied with the Voting Rights Act. “They’re clearly sham hearings,” he says. “They made it clear, when it’s all over, that they just intend to pass the interim maps.”
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The San Antonio court signaled, in a hearing last week, that the interim maps needed further review, especially in light of the DC court’s finding of intentional discrimination, which has put Republicans on the defensive. “Whether these [legislative] hearings are a façade or we’re really going to work in a meaningful way to adopt a resolution, the court is paying close attention,” says Martinez Fischer.
Texas has joined a lawsuit before the Supreme Court arguing that Section 5 of the Voting Rights Act is unconstitutional. In reality, the state is the perfect case study for why Section 5 is still badly needed. Without Section 5, there would have been no finding of intentional discrimination from the DC court and no modified interim maps drawn quickly by the San Antonio court. Instead, the discriminatory maps enacted by the legislature in 2011 would’ve immediately become law, the court in San Antonio might’ve taken years to get involved and members of Congress would have been elected under maps that would’ve otherwise been declared unconstitutional. (Texas’s voter ID law, which was similarly blocked by a federal court, would also be in effect right now.) “Anybody who says that Section 5 has outlived its utility hasn’t looked at Texas,” says Nina Perales, director of litigation for the Mexican American Legal Defense and Educational Fund. “It has played an extraordinary role in protecting minority voters.”
UPDATE: At a Texas Republican Party meeting in Dallas on May 20, Ken Emanuelson, a local Tea Party leader, was asked, "what can Republicans do to get black people to vote?" He responded, "I’m going to be real honest with you, the Republican Party doesn’t want black people to vote if they’re going to vote 9-to-1 for Democrats.” Comments like these don't bode well for the party's minority outreach.
National Security Council and United Nations Shakeup: Liberal Interventionists Take Over
US Ambassador Susan Rice speaks at a news conference at UN headquarters in New York. (AP Photo/Craig Ruttle)
Tom Donilon, President Obama’s national security adviser, is out, and Susan Rice is in. Along with Samantha Power, who’s taking over at the United Nations, the new Rice-Power axis will likely mean a much greater emphasis on human rights in foreign policy—which could vastly complicate US relations with Russia, China and Iran.
Serving in that post since October 2010, when he replaced former General Jim Jones, Donilon has played a critical role in shaping Obama’s foreign policy since then, usually joining Obama and Vice President Joe Biden on the relatively dovish, anti-interventionist side of the fence—often ranged against the Pentagon, the military brass, and former Secretary of State Hillary Clinton on the hawkish end. Bob Gates, the Republican centrist-hawk who was Obama’s secretary of defense—a carryover from the George W. Bush administration—famously said that Donilon would be a “disaster” if he were elevated to the post of national security adviser, because Donilon wasn’t echoing the military’s view about continually escalating the war in Afghanistan.
More recently, Donilon lined up with Obama and Biden in opposition to direct US involvement in the civil war in Syria, and Donilon reportedly backed Obama’s decision to speed the withdrawal of American forces from Afghanistan in 2013–14 and to minimize the US presence there beyond 2014.
Among Donilon’s recent important efforts have been his travels to Russia, where he tried to rebuild ties with Moscow, and China, where he helped to arrange the critical summit between Obama and President Xi Jinping of China this weekend in California.
Perhaps Donilon’s biggest blunder—or at least, his worst move—was to bring Dennis Ross, a strongly pro-Israeli hawk and ally of neoconservatives, into the White House. Several years ago, I listened to Donilon as he spoke to the Washington Institute for Near East Policy (WINEP), the Israel lobby’s chief Washington thinktank, as he praised Ross—who’s now a WINEP official, once again—and boasted that he’d helped bring Ross into Obama’s inner circle. No wonder, perhaps, that the Israel-Palestine problem is where Obama has made the least progress in any of the foreign policy challenges he faces.
But now it’s worrying, to say the least, that Susan Rice is taking over at the NSC. That’s made worse by recent reports that Obama will name Samantha Power as Rice’s successor as US ambassador to the United Nations. Both Rice and Power, though they lean liberal, are humanitarian, interventionist hawks. Both Rice and Power backed Clinton two years ago in supporting the months-long American bombardment of Libya, an action that toppled Muammar Qaddafi but ushered in chaos and a militia-dominated, semi-failed state there. They represent a dangerous flank of the liberal establishment in American foreign policy circles, interventionists who believe that every mass killing, or threatened mass killing, borders on potential genocide a la Rwanda. Both supported US bombing of Sudan during the much-inflated crisis in the western Sudanese province of Darfur, for instance, and they claimed that the military assault that Qaddafi planned against Benghazi in eastern Libya was impending genocide, when there was no evidence whatsoever that the Libyan forces were planning to anything more than recapture a city that had been seized by rebels.
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Power, who wrote A Problem from Hell: America and the Age of Genocide, is a staunch advocate for using American military power abroad in defense of human rights. She served on the NSC staff until earlier this year, as Obama’s chief human right aide.
'Cynical and Arrogant' Chris Christie Plays Gilded Age Politics in New Jersey
Chris Christie. (AP Photo/Rich Schultz)
The last time that New Jersey voters elected a Republican to the United States Senate, Richard Nixon topped the party ticket and the winning Senate candidate was Clifford Case, a proudly liberal Republican who opposed the war in Vietnam, embraced civil rights and environmental protection and frequently ran with the backing of the AFL-CIO.
Since 1972, thirteen Republicans have been nominated in thirteen elections for Senate seats—four of which had no incumbent on the November ballot—and thirteen Republicans have been defeated.
In recognition of that reality, a typically cynical Republican governor might have taken advantage of the state’s confusing and contradictory statutes to appoint a Republican successor to Democratic Senator Frank Lautenberg, who died Monday. An appointed senator could have served through the end of 2014. With Senate deliberations so shaped by arcane rules, partisan divisions and ideological positioning, an appointed rather than elected senator would have provided a boost to the Senate Republican Caucus at a potentially definitional stage in Barack Obama’s second term.
But Chris Christie is not a typically cynical Republican governor.
Chris Christie is a supremely cynical Republican governor.
How cynical? Try this:
Christie has chosen to schedule the special election to fill Lautenberg’s seat on October 16—twenty days before the regularly scheduled state election. And he’s still going to send an unelected Republican-selected senator to Washington during a critical stage in congressional deliberations.
The governor wants New Jersey, and America, to think that his scheduling of the special election is a nobly nonpartisan gesture. There is, after all, a very real prospect that come October another Democrat—perhaps Newark Mayor Cory Booker, perhaps Congressman Frank Pallone, perhaps someone else—will win another New Jersey Senate election. “I’ve decided on a special election because I firmly believe we must allow the citizens of this state to have their say,” he piously announced on Tuesday.
But don’t confuse Christie with a small “d” democrat.
He’s twisting the process to his own advantage.
The governor could have scheduled the special election on a timeline that paralleled New Jersey’s November 5 election—in which polls peg Christie as a favorite to be re-elected. That would have saved taxpayers at least $24 million dollars and a lot of confusion. Instead, notes New Jersey Working Families Alliance executive director Bill Holland, Christie has chosen to hold two general elections in a one-month period—an approach that is all but certain to confuse the electorate and suppress turnout.
“What the governor’s done will disenfranchises voters,” says Holland. “It guarantees that turnout will be low, and that those whose voices are not being heard in Washington will be heard even less.”
Christie’s move—which has angered Senate Republicans in Washington, as well as Democrats in New Jersey—was entirely self-serving.
By gaming the ill-defined process, the governor has protected himself from the prospect that Democratic voters—mobilized by the Senate contest—might stick around to vote for his determined, yet underfunded, Democratic challenger, state Senator Barbara Buono. Were Cory Booker, the most prominent African-American political figure in the state and a popular figure with young voters, on the ballot as the Democratic nominee for the Senate, the boost in turnout might well change the dynamics up and down the ballot.
Christie wasn’t willing to take that risk.
Buono’s campaign described the governor’s scheduling scheme as “a cynical and arrogant decision” that will “needlessly disenfranchise voters”
And tailoring the election schedule to his advantage is just one of Christie’s offenses against democracy.
The governor—despite his declaration that “decisions that need to be made in Washington are too great to be determined by an appointee”—still plans to appoint an interim senator to fill the seat until after the October special election.
That appointee is likely to serve as a reliable member of the Senate Republican Caucus when the chamber addresses key issues ranging from the debt ceiling to trade policy to the future of Social Security and Medicare to the implementation of the Affordable Care Act. Indeed, if Christie chooses to play to the conservative base that will play an outsized role in selecting the 2016 Republican presidential nominee, his pick could make a dysfunctional Senate that much more dysfunctional.
But the worst thing about an interim senator is not the partisanship. It is the anti-democratic nature of the selection. For 120 of the most important days in the legislative calendar—perhaps more—New Jersey will be “represented” not by a senator selected by the voters but by a senator selected by one man, Chris Christie.
This is not what democracy looks like.
The Constitution absolutely bars anyone from sitting in the US House of Representatives by appointment. No seat can be filled except by a regular election or, when a vacancy occurs, by a special election. When the Constitution was amended 100 years ago this spring to establish a directly elected Senate—ending the former practice of choosing senators in the backroom legislative deals of the Gilded Age—the intention of progressive reformers was that Senate seats would be filled in the same manner as House seats.
Unfortunately, the Gilded Age hangers on identified a loophole that allowed governors to make appointments to finish the terms of senators who die or resign. Some states, such as Wisconsin, moved quickly to establish a clear system of special elections to fill vacancies. But most allowed governors to take advantage of the appointment power. And they have abused it ever since.
Dozens of senators have taken office via appointment rather than election over the past century, including ten currently sitting senators. Three senators have been appointed since the 2012 election, and Christie’s “interim” pick will push the number to four.
The appointment process is disorganized and inconsistent. Some governors appoint placeholders, others position allies—or even themselves—to run in upcoming elections. Some governors have to follow rules (in a few states they are required to appoint a member of the party of the departed senator), while others can make up the rules as they go along.
Five years ago, Senator Russ Feingold, the Democrat who then chaired the Constitution subcommittee of the Senate Judiciary Committee, joined with then–House Judiciary Committee chairman John Conyers to propose a constitutional amendment to require that all senators be elected. Under the Feingold-Conyers proposal, vacancies in the US Senate would be filled in the same manner as vacancies in the US House—by the voters in quickly called and organized special elections.
With Feingold out of the Senate, and with Conyers now in the minority in the House, there is less discussion of this reform—although some of us have raised the issue consistently since 2008, when Democratic and Republican seats have come open. The inconvenient truth is that both parties take advantage of the loophole. In February, after former Massachusetts Senator John Kerry quit to become President Obama’s secretary of state, Massachusetts Governor Deval Patrick selected a longtime aide and ally, William “Mo” Cowan, as Kerry’s interim successor.
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Cowan has served ably, and he is a Democrat filling a Democratic seat until a new senator is elected June 25. Two other appointees, South Carolina Republican Tim Scott and Hawaii Democrat Brian Schatz, will serve until after the 2014 election as unelected senators. That’s the problem that Feingold and Conyers have highlighted: as appointed senators, they have the exact same ability to advance or obstruct legislation and presidential nominations as senators who fought and won elections. And in the case of Scott and Schatz, they will do so for the better part of two years.
Appointed senators are throwbacks to a less democratic time, when the economic and political elites disregarded and disrespected the will of the people. The same goes for the gaming of election schedules to benefit governors who are seeking re-election.
Chris Christie is practicing the politics of the Gilded Age, when powerful executives dismissed electoral niceties and did as they chose.
“This governor isn’t making decisions based on what’s best for New Jersey,” says Bill Holland. “This governor has got the power, and he’s using it to take care of himself. That’s all there is to it.”
John Nichols is the author (with Robert W. McChesney) of the upcoming book Dollarocracy: How the Money and Media Election Complex Is Destroying America, which outlines a reform agenda that calls for establishing a guaranteed right to vote, getting corporate money out of politics and electing—rather than appointing—all senators.
One Way to Help the Protesters in Turkey
Riot police use teargas to disperse the crowd during an anti-government protest at Taksim Square in central Istanbul. (REUTERS/Osman Orsal)
Thousands of demonstrators in Turkey today vowed to press on with their campaign after clashing with police around Istanbul’s central Taksim Square into the early hours of the day, the fifth straight day of protests. They were joined by the Confederation of Public Workers’ Unions, which is staging a two-day strike to show solidarity with the protesters and to demand better workplace safety and higher wages.
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Turkish protesters have now taken to the popular non-profit fundraising site Indiegogo with a new campaign to build momentum on what some are calling the start of a revolution.
What if we felt the same way about Turkey as we feel about Game of Thrones? Read Michelle Dean on revolution on television and in real life.
Ralph Nader: How Big Business Has Taken Control of the US Government
What are the consequences of lifting financial regulations and allowing big businesses to accumulate power without limits? What about launching a full-scale invasion that leads to years of endless war? Some pundits echo the voices of their governments, egging them on towards their special interests. Others dissent—and later say, “I told you so.”
Former presidential candidate and Nation contributer Ralph Nader joins Amy Goodman on Democracy Now! to discuss his new book, Told You So: The Big Book of Weekly Columns, a compilation of his columns from over the years and the social marginalization of those who predict catastrophes from the beginning.
Dave Zirin: Why Does the Sports World Abide Homophobia?
After Game 6 of the Eastern Conference Finals, the NBA slapped a $75,000 fine on Indiana Pacers center Roy Hibbert for homophobic comments made to the press. “I think anybody who thinks that it’s no big deal should be cognizant of the company they’re keeping right now,” says Nation sports editor Dave Zirin, who blogged about the comments prior to Hibbert’s penalization. “I wrote the column because what I wanted to do was start a discussion that just said, this matters.” Zirin joins The Dan Patrick Show to discuss homophobia in sports, the context of Hibbert’s comments and how much the NBA thought they mattered.
—James Cersonsky
How much longer will British companies get away without paying interns? Read Jon Wiener’s take.
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