There Are Illegalities and Illegalities

The recent attacks on Iran raise multiple concerns: strategic, political, and legal.  Curmie thinks the raids were stupid and sincerely hopes they’ll prove as disastrous for the Trump regime as they already have for the nation’s standing as a promoter of peace.  But what he really wants to talk about is that last item: were they legal?

There are two independent facets to that question.  The first is the one that’s been noised about by a good share of the left-leaning press: that Trump lacked Congressional approval and that the assault was therefore illegal.  Curmie thinks so, but there’s a little wiggle room.  It all boils down to what the War Powers Act actually was intended to do… and to what it says, which may be different things.  Neither Congress nor SCOTUS has seen fit to clarify the terms.

The obvious intent was to allow the President, as Commander-in-Chief, to respond to exigencies: imminent threats, that sort of thing.  The Trump administration can’t seem to get its story straight about what prompted this particular action, which is why Curmie is more than a little suspicious that these shenanigans aren’t entirely on the up-and-up.  Did we go along with this because Israel was going to do it, anyway, as Marco Rubio first argued?  Or was it something else, since he subsequently denied saying what he’s on tape saying?  Was it to stop Iran’s nuclear program, the one that was supposedly “obliterated” last year?  Or to respond to an Iranian threat that’s presumably been imminent for <checks notes> 47 years?  Curmie raises a skeptical eyebrow.

Whatever squishiness there might be in the wording of the War Powers Act, Curmie is pretty much convinced that yes, this was illegal.  The response from Trumpian apologists has been to accuse Democrats of hypocrisy because they were perfectly willing to allow President Obama to bomb Libya back in 2011, casually omitting the fact the two incidents are pretty much parallel: a POTUS of one party uses what may or may not be legitimate authority to execute a military mission, and the other party starts screaming about illegality, even unconstitutionality.  Are the Democrats being two-faced?  Of course they are!  Are the Republicans just as bad?  Yep.

But Curmie hears the GOP sycophants wondering “where was all this liberal concern for restricting the power of the presidency in such cases when Obama was in office?”  Right here, is where.  Here’s the central paragraph of what Curmie wrote 15 years ago:

The administration’s case, one which ignored the objections of Jeh C. Johnson, the Pentagon general counsel, and of Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, is founded on three independent premises, none of which stand up to much scrutiny. The first is that an offensive mission involving drone attacks, sustained bombing, and occasional casualties doesn’t really constitute “hostilities.” The second is that, despite the fact that participation in a NATO-run, UN-sanctioned, mission to protect civilians has morphed into an aggressive attack on Colonel Qaddafi’s compound, the military and geo-political missions have not merged. The third is the apparent assertion that since the mission has taken longer than expected (and that’s never happened before, right?), we should really only be looking at how long the campaign was supposed to last. Add to that the extreme rarity of any White House over-riding the opinion of the Office of Legal Counsel, and the Obama administration has a mess on its hands… or perhaps on its shoes, because they’ve really stepped in something.

Moving on to the second part of the critique of present-day hostilities.  Let’s talk about bombing that elementary school in Minab, killing scores of little girls aged 7-12, which according to the best information we have, was perpetrated by American forces.  This is about as clear a violation of international law, not to mention common decency, as it’s possible to imagine.  It is unmistakably a war crime.  Yes, Gentle Reader, mistakes happen: “fog of war” and all that.  Bullshit.  At best, this was a manifestation of breathtaking recklessness and incompetence.  At worst, it was such an intentional infliction of pain and suffering on young girls that you’d think it was ordered by one of those pervs whose name keeps appearing in the Epstein files.  Oh… wait…

What’s the excuse?  Why aren’t the so-called journalists asking how such an atrocity can happen?  Were we just lobbing bombs into populated areas with no regard for what or who might be on the receiving end?  Was the reported death of Ayatollah Khameini therefore just blind luck?  After all, if you can target a particular area to attack, you can similarly identify a different area not to attack.  Or did some idiot like Pete Hegseth decide to demonstrate his manliness by asserting his absolute authority over a bunch of elementary schoolers.  They might have been in math class, learning about Arabic numerals, after all.  Another explanation is that this was a “precise targeting”: the school building used to be an Islamic Revolutionary Guard Corps (IRGC) base, you see.  Ya might wanna check that shit out next time...

When the Chinese embassy in Belgrade was bombed by American forces in 1999, President Clinton apologized to the Chinese President Jiang Zemin promptly and profusely, claiming that the incident was accidental.  Given that there was no rational reason to attack the embassy, Clinton was probably telling the truth, even if the Chinese tried to spin the story to their geopolitical advantage.  There’s no reason to bomb an elementary school in Iran in 2026, either.  The difference between the events is two-fold.  First, Clinton, unlike Trump, was willing to admit to a mistake, and even to take responsibility for something that is extremely unlikely to have been under his direct control.  Secondly, whereas Bill Clinton is hardly an exemplar of truth-telling, his sanity has never been in question.

There are reports that Iran was negotiating with the US when the attacks occurred.  Perhaps that’s true; perhaps it’s leftie spin (or worse).  But there is no question that the logistics of the mission, from choosing targets to strategies for removing Americans from sites likely to be struck by the inevitable retaliation (“get on a commercial plane at your own expense at an airport that’s closed” isn’t terribly helpful advice), were an absolute disaster.  That’s what happens when you choose cabinet members based on sycophancy rather than relevant experience, intelligence, or… you know… competence.

We can hope that the Iranian people will soon be better off, that the military exercise will achieve its purported goal.  It’s not likely, given the history of other attempts at regime change, but it’s not impossible.  It is also possible that new evidence will emerge that will exonerate the US military, but there is something of the boy who cried “wolf” at play here.  What reasonably intelligent person would believe anything this administration says after its serial prevarications about ICE operations?  

Indeed, the two things that will linger in Curmie’s mind for a very long time indeed are the loss of any remaining remnant of American honor or integrity in international relations… and the nagging feeling that de facto Commander-in-Chief of the US military is Bibi Netanyahu.

Toddlers as Their Own Counsel: A Great Idea, Right?

Immigration policy—specifically the policy of separating children from their families—has made a lot of headlines of late. Who knows, perhaps the seemingly inhumane treatment of those who show up at the (especially southern) border of the country might, to steal a line from Robert Shenkkan’s recent play Building the Wall, legitimately prompt the question “who would want to come here now?”. But this essay isn’t about the arguments—ethical or pragmatic—in favor of or opposed to this strategy.

Rather, it’s about the meme you see on the left and its implications. An FOC recently posted this on her Facebook page. To be honest, despite Curmie’s antipathy for all things Trumpian, a statement this transcendently idiotic just didn’t seem possible. Surely Judge Weil couldn’t announce himself less fit for public office if he stripped naked, covered himself in caramel sauce and whipped cream, climbed into the bed of a pickup truck and belted out “I’m a Moron” to the essentially unsingable tune of “I’m a Jayhawk,” the fight song of Curmie’s beloved doctoral alma mater. It just couldn’t be true, right? Or perhaps he simply misspoke and shouldn’t be held accountable for a slip of the tongue (Cf. Barack Obama doesn’t really think there are 57 states).

Nope. This drivel escaped Weil’s mouth in the course of a deposition before a federal court. According to the Washington Post story that broke this news,

Ahilan Arulanantham, deputy legal director at the ACLU of Southern California and the attorney who questioned Weil in the deposition, said he initially thought the judge had misspoken, “because what he said was so outrageous. As I asked further questions, he obviously meant what he said.”

Wow. Weil, part of whose job is to teach other judges how to handle such cases (!), subsequently declared, “I’ve taught immigration law literally to 3-year-olds and 4-year-olds.” Okay, no doubt about it, this guy is nuttier than squirrel turds. Curmie shook his head in disbelief that even the Trump DOJ would hire someone so obviously inept. A check on the DOJ website confirms that his official title is Assistant Chief Immigration Judge.

Oops! Problem! Weil made these outrageous claims while Obama was still President, and indeed was appointed during the Obama administration. And while it is true that Loretta Lynch (AG at the time of Weil’s most public stupidity) and Jeff Sessions are among the worst cabinet-level appointees in recent history, one would have thought that even they might have seen what a buffoon Weil is. Apparently not.

Let’s face, most adults wouldn’t stand a chance of getting a fair hearing without a lawyer, and these are little kids who quite probably don’t speak English and are being asked some pretty complicated questions by an intimidating stranger. Curmie does not assume that every asylum-seeker has a case, but the fact is that the world is often a nasty place, and even children are often in danger. Think of Herod’s massacre of the innocents, or the fates of the Trojan prince Astyanax, or the princes in the Tower under Richard III; brutality towards children to further a political cause is not a modern invention. But what are the odds that a child with a legitimate plea would receive justice in this arcane world?

Here’s a little more from that article in the Post:

At such hearings, children face the same types of immigration charges as adults, ranging from entering the country illegally to overstaying their visas. The children—most of whom cannot speak English and must use government-provided interpreters—are generally asked questions by judges such as when they arrived in the United States and whether they faced persecution in their home countries, according to court documents and immigration attorneys.

But the questions can easily trip up children with no lawyers, the attorneys said. A judge may ask, for example, if the child wants to leave the country voluntarily or would rather be ordered deported. If the child chooses either option, he or she cannot apply for other forms of immigration relief such as asylum in the United States.

Yeah, a three-year old can see that trap coming, right, Judge Weil?

The DOJ didn’t deny that Weil’s assertion was utterly absurd, but they tried to distance themselves from the fallout:

Lauren Alder Reid, a spokeswoman for the department’s Executive Office for Immigration Review, said in a statement: “At no time has the Department indicated that 3 and 4 year olds are capable of representing themselves. Jack Weil was speaking in a personal capacity and his statements, therefore, do not necessarily [emphasis Curmie’s] represent the views of EOIR or the Department of Justice.”

Sure. That’s why Weil appeared as an expert witness, called by the DOJ. Were Curmie of a cynical disposition (perish the thought!), he might suspect a lack of total candor. Judge Weil’s sorry ass should be fired for embarrassing the entire DOJ, “personal capacity” or not.

And that’s really the key. Just tell us the truth. Yesterday, Curmie requested an article published in a Swedish professional journal through his university library’s inter-library loan office. The request was cancelled almost immediately, with a note that the article is only available in Swedish. Curmie is willing to bet next month’s mortgage payment that the article (as opposed to the journal) is indeed in English: the title is in English, the subject matter is an English-language play, the author was an English-speaking Canadian who had enough stature in the field that she didn’t need to work in another language (if indeed she was even capable of doing so). Tell me the truth: finding this article is going to be too much work and you very well might not be able to meet my deadline (I’m presenting the paper in three weeks’ time). Don’t tell me something I’m 99% certain is a lie.

Similarly, Curmie gets it that, according to current law, the DOJ is under no legal obligation to provide lawyers for children charged with violating immigration laws, and that the cost to do so would be considerable: a lot less than the Obama administration’s predilection for drone strikes in western Asia, or the Trump administration’s tax cut for the stinking rich, but considerable, nonetheless. So say that: “There is no requirement that legal representation be provided for these children, and in our opinion the cost to the American taxpayer outweighs the advantages to providing legal counsel to foreign nationals.” There are those on the left who might bitch about that statement—Curmie would probably be one of them—but it’s at least a comprehensible argument. Don’t feed us nonsense about how a non-English-speaking 3-year-old can hold his or her own in an immigration hearing.

Weil’s silly pronouncement drew a fair bit of criticism early on, including from three former DOJ judges—Bruce J. Einhorn, Eliza Klein, and Lory D. Rosenberg—who wrote in a brief filed in the U.S. Court of Appeals for the 9th Circuit that “A typical three-year-old cannot tie her shoes, count to 100, peel a banana, or be trusted not to swallow marbles.” Somehow Curmie suspects that these former judges doubt that the little girl in question would be just fine serving as her own counsel in an immigration case conducted in a language she doesn’t understand.

As such furors do, however, this one died down, and there was little more said about it for two years, until John Oliver, of all people, resurrected the story this April Fool’s Day: ironic timing for a very serious discussion. Describing “a critical, potentially life and death, process,” Oliver argued that “sadly, the system is a complete mess.” He then played clips of several legitimate authorities, closing with Judge Dana Leigh Marks of the National Association of Immigration Judges, who opines that “in essence, we’re doing death-penalty cases in a traffic court setting.” Yeah, that kind of gets your attention, doesn’t it?

Noting that the civil nature of immigration courts means that the government is not required to supply a lawyer to those who cannot afford one (indeed, only 37% of immigrants have counsel), Oliver urges his listeners to “think of an immigration hearing like surgery. You can try and do it yourself, but if you ever want to seeing your fucking family again, maybe try and get a professional to help you.” As for the children, as young as two years old (there’s a recent case of a 1-year-old), representing themselves, Oliver says:

That’s just clearly ridiculous. Because you cannot let a two-year-old be unsupervised in court. You can’t even let a two-year-old be unsupervised in a bouncy castle. They’re going to come out covered in glitter, holding a broken beer bottle and a dead bird. How did they get them in there? Who knows? The point is they can’t be left alone for a second, and that bird has already been in their mouth. It just has. You have to deal with that reality.

For the record, Oliver has a two-year-old son; he knows whereof he speaks. To Judge Weil’s claim to have taught immigration law to three- and four-year-olds—“It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done,” Oliver responds “No, it can’t! You can’t teach immigration law to the three-year-old. You can’t even explain to a child that age that Elmo isn’t his best friend.” By the way, check out the “mock trials” starting at 6:54 and 7:53 of the video linked above. Those little girls are both freaking adorable, but you will forgive Curmie for suggesting that perhaps they are not quite ready to represent themselves in a court case that might literally have life-and-death consequences, even if they do have an advantage over the majority of immigrants in that English is their native language.

Oliver then launches into a pretty thorough evisceration of the politicization of the immigration process and of the innumerable miscarriages of justice coming out of decisions made in haste (one appeal consisted of two questions and lasted less than a minute and a half), but those are outside the scope of Curmie’s remit today. We’ll also leave aside the question of Oliver’s consequentialism—the fact that bad things happened to an immigrant who was deported doesn’t imply that the decision to deport was inappropriate. Let us concentrate on one issue only: that the ability to understand the charges is one of the bedrock principles of any judicial system worthy of the name. (Yes, Curmie knows that immigration hearings are run by the executive branch, not the judiciary… you know what I mean.) No child whose age is a single digit can possibly do that. The immigration courts are a disaster. They were under Obama (and probably under Bush and Clinton, and…), and they certainly are now. Real, comprehensive, long-term solutions will take time, and will require greater expertise and wisdom than Curmie can offer, and a hell of a lot more than we can expect from Judge Weil or those who continue(d) to employ him.

But baby steps are possible. Providing at least adult advocates if not lawyers for literally every child in an immigration hearing would be a step. But first we have to be honest. Three-year-olds don’t “get it.” The current system cannot be allowed to continue unchanged. And Jack H. Weil doesn’t have brains enough to be a speed bump.  Curmie chooses not to speculate as to why the meme is making the rounds right now, but the problem it addresses has been around for years, and still continues.  Even if the meme was designed only to embarrass the Trump administration, it has, even if accidentally, brought some focused attention to a real issue.  So let’s fix this one.  One step at a time.

John Brennan Richly Deserves to Be Unemployed

At least he's good at something: lying is a skill, right?

Curmie started a piece today on high school yearbooks, or, rather, on four different controversies involving such publications this year. I’m going to put that essay on hold for the moment, though, to talk about the current furor over CIA Director John Brennan. Brennan, whose rise to the leadership of the agency has been aptly described by The Guardian’s Trevor Timm as “failing upwards,” was a supporter of rendition, torture, and all the other insidious Bush-era programs the Obama administration pretended for a while to oppose, all the while immunizing the worst offenders from criticism, let alone much-deserved job losses and long-term incarceration.

Brennan was floated as a possibility for the CIA’s top post when President Obama was first elected, but withdrew from contention amid a swarm of reminders of what a sinister little weasel he truly is… only to re-appear as Obama’s chief counter-terrorism advisor. In that position, he was caught lying on numerous occasions, most notably the outrageous claim that no non-combatants were killed in a year’s worth of drone strikes in Pakistan. Here’s an article about the falseness of the claim, even using the CIA’s own massaged numbers. That patently mendacious assertion was made on June 29, 2011. Analysis by New America shows a total of six strikes leading to civilian deaths, accounting for between 61 and 68 civilian fatalities in the previous year. Brennan, in short, is a liar. That’s an OK quality in a spy, I suppose, except when he’s lying to his presumed bosses: the President, Congress, and the American citizenry.

He told a bunch of other lies, too, including false information about the death of Osama bin Laden. For this record of colossal arrogance, untrustworthiness, and deceit, he was duly rewarded by President Obama with the nomination for the CIA position in January of 2013. Obama cited serial prevaricator Brennan’s “integrity and commitment ‘to the values that define us as Americans.’” Really, he did: it’s right there on the White House website.

The confirmation process was anything but smooth, with two leading Democrats—Senators Mark Udall and Ron Wyden—expressing real concerns. Republican Senator Rand Paul launched a real-live filibuster—the “Mr. Smith Goes to Washington” kind, not the candy-assed variety that has been allowed to hold sway of late—against Brennan’s nomination. After some 13 hours, the vote finally happened, with Brennan being confirmed by a less-than-overwhelming 63-34 margin.

Fast forward a year or so, to January of this year, at which point Brennan allegedly told Senate Intelligence Committee Chair Dianne Feinstein that the CIA had searched the computers of Senate staffers engaged in an oversight investigation because they feared the committee might have gained access to internal review documents they weren’t authorized to see. Senator Feinstein subsequently complained on the Senate floor in March that “The CIA did not ask the committee or its staff if the committee had access to the internal review or how we obtained it. Instead, the CIA just went and searched the committee’s computer.”

Here’s a post-facto version of Feinstein’s argument, as reported by Spencer Ackerman of The Guardian:

Feinstein, in her dramatic speech on the Senate floor in March, said the agency breached the firewall to obstruct the committee’s investigation of the agency’s torture of post-9/11 terrorism detainees, a years-long effort expected to be partially declassified in the coming days or weeks. That investigation was itself prompted by a different coverup: the destruction of videotapes of brutal interrogations by a senior official, Jose Rodriguez.
Despite that, the committee has concluded that the torture was an ineffective means of gathering intelligence on al-Qaida—contradicting years of CIA assurances it was crucial – and that the agency lied to its overseers about its value.

Feinstein’s indignation was well-placed, not least because there are precious few documents that ought to be kept from an oversight committee. But, Gentle Reader, I urge you to look at what Brennan was asserting, remembering that this is the best-case scenario for the CIA’s public image and credibility. He’s saying that the reason the CIA took the outrageous action of searching Congressional computers is that the world’s allegedly most sophisticated spy organization doesn’t know how to keep documents out of the hands of people who shouldn’t have access to them. Mr. Brennan had his choice: he could admit to a series of felonies, or to having the crime-fighting abilities and general competence of Inspector Clouseau on a bad day.

Of course, he took another option: righteous dudgeon. He—to use the phrase of The Hill’s Alexander Bolton “[waged] an aggressive counter-attack,” rolling his eyes and claiming that “nothing could be further from the truth” than Feinstein’s charges. He continued, “I mean, we wouldn’t do that. I mean, that’s just beyond the scope of reason.” He was lying, of course. You could tell that because he’s John Brennan, his lips were moving, and words were being formed. And he probably picked the wrong adversary: Senator Feinstein is well-respected on the hill, in part because even political rivals like Senator Lindsey Graham say she “is somebody who’s not prone to say wild things.”

And so now it emerges that what we knew all along—that if John Brennan says it, it’s probably not true—turns out to have been proven by the CIA’s own investigation. Yes, the CIA was spying on the very people charged with overseeing their activities. Yes, Brennan is either less trustworthy than the proverbial fox guarding the henhouse or dumber than a stack of burnt toast. Who knew, right? Other than anyone who was paying the slightest bit of attention, that is.

So now he’s issued a private apology and seems ready to continue to be the same prevaricating jackass he’s always been. Brian Hughes (article linked above), however, writes:

“Brennan is either a liar or incompetent—or maybe both,” one senior Democratic Senate aide told the Washington Examiner. “No, I don’t think the White House can expect us to give him the benefit of the doubt here.”

Two Democratic Senators—Mark Udall and Martin Heinrich—have already called for Brennan’s ouster; don’t be surprised if there are further demands from both sides of the aisle: Senators Graham, McCain and Wyden all come to mind as possibilities.  Others will join if there’s already enough blood in the water. Yet somehow the Obama administration itself remains convinced that Brennan is the right man for the job: “full confidence” is the President’s term.

Excuse me, waiter, but could I have an extra helping of WTF with that bullshit-burger? It’s pretty clear that the President is joining Dorothy on her trip to Oz. The only question is which of her fellow travelers he’s chosen to emulate. Is he really without a brain? How else to explain his apparent inability to perceive what’s been obvious to everyone else for months if not years? Does he lack the courage to do what’s right even if it casts doubt on his initial decision-making? Or is what he is missing heart—the human capacity to care whether justice is served, competence rewarded, and mendacity punished?

Of course, the Scarecrow, Cowardly Lion and Tin Man all actually had those attributes all along. It just took the Wizard (“really a very good man, but… a very bad Wizard”), to point that everything they sought was always already present. I’d like to think that the POTUS has those qualities, too. But I’m beginning to suspect the contrary. (That’s Curmie-speak for “I’ve been pretty damned convinced for a while,” in case you were wondering.)

John Brennan has had a chance to resign. He didn’t take it. He should therefore be fired. Anyone want to bet that he will be?

I didn’t think so.

The NEA Demands Arne Duncan's Resignation; No One Cares

Yesterday, the rank and file of the National Education Association passed a resolution demanding that Secretary of Education Arne Duncan resign, not that you’d know that from any of the major news organizations: as I write this, it’s now been about 15 hours since the vote, with nary a peep from CNN, MSNBC, Fox News, the New York Times, the Washington Post, even the Chronicle of Higher Education… well, you get the idea. Hell, it didn’t even make it the NEA’s own website, although the election of new officers is right there at the top of the main page.

One would have thought that such a declaration of no confidence in the nation’s foremost education administrator from the country’s largest educational organization (3,000,000+ members) might cause at least a ripple in the national media. Nope.

There are, no doubt, a number of reasons why. For one thing, the vote came late in the afternoon, on a holiday, at the beginning of a weekend. That’s pretty much the gold standard if you want a take-out-the-trash announcement. So was it intentional, or inept? It’s hard to say. It was certainly the latter if NEA wants its resolutions to be relevant to a larger discussion of education issues. But it’s tempting to think that the leadership, which has always been a lot cozier with the reformist movement (Common Core, charter schools, etc.) than the membership has been, anticipated the possibility that they just might not be able to deflect the anger of the rank and file again, just because similar “business items” in previous years failed. So having the vote when the rest of the country was firing up the grill and waiting for the fireworks to start may have been a strategic move. I doubt it, but only because I don’t think the NEA leadership is that smart.

After all, Secretary Duncan has proved himself repeatedly to be the worst kind of arrogant, duplicitous, corporatist hack. Everyone in the education business knew that last year and the year before that and the year before that, but now we also have his remarkably tone-deaf initial response to the Vergara case in California, which essentially eliminated tenure in the public school system in that state:

For students in California and every other state, equal opportunities for learning must include the equal opportunity to be taught by a great teacher. The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices and systems that fail to identify and support our best teachers and match them with our neediest students. Today’s court decision is a mandate to fix these problems. Together, we must work to increase public confidence in public education. This decision presents an opportunity for a progressive state with a tradition of innovation to build a new framework for the teaching profession that protects students’ rights to equal educational opportunities while providing teachers the support, respect and rewarding careers they deserve. My hope is that today’s decision moves from the courtroom toward a collaborative process in California that is fair, thoughtful, practical and swift. Every state, every school district needs to have that kind of conversation. At the federal level, we are committed to encouraging and supporting that dialogue in partnership with states. At the same time, we all need to continue to address other inequities in education–including school funding, access to quality early childhood programs and school discipline.

He backpedaled a few days later, but a lot of teachers—rightly, I think—read the first statement as an indictment not only of tenure but of teachers’ unions and indeed of teachers in general. The Vergara decision was, of course, an abomination, although some of the underlying issues do need to be addressed. Duncan’s second run at saying something intelligent about the case wasn’t too bad—supporting tenure but arguing that it shouldn’t be granted after only 18 months on the job, for example—but, especially given his support of what detractors have called the GERM (Global Educational Reform Movement) movement, it was too little, too late.

So, in Curmie’s ever-so-humble opinion, Arne Duncan richly deserves to be out of a job. But that’s not really the question here. The question is why nobody cares that the NEA thinks so, too. For one thing, the resolution carries no teeth. The NEA hasn’t demanded Duncan’s job, before, but they’ve certainly passed sweeping condemnations of his job performance: Here’s a link to Valerie Strauss’s coverage of a 2011 resolution, for example. And he’s more influential in the Obama administration now than he was before those scathing critiques. The principal reason for this is encapsulated by Mike Antonucci on the Hot Air site:

This particular item was introduced in a rather odd speech from California Teachers Association president Dean Vogel, who went on about leaders needing to take responsibility for what happens under their charge. Vogel asked rhetorically “Where does the buck stop?” and concluded “The guy at the top has got to go.” Apparently the buck stopped far from the guy at the top if Arne Duncan is the cause of all this angst.

That’s it, in a nutshell. The problem isn’t Duncan (well, it isn’t just Duncan); it’s the guy who chose him, the guy who really sets policy, the guy who either didn’t demand or didn’t accept Duncan’s resignation at the end of his first term (as he did for, say, Hillary Clinton), the guy whose former mouthpieces Robert Gibbs and Ben LaBolt are now scurrying across the countryside stoking anti-tenure lawsuits.

The real problem isn’t the guy on the left; it’s the guy on the right.

The problem, in other words, is Barack Obama, who won the NEA’s endorsement in both 2008 and 2012. The NEA has never endorsed a Republican for President (they have in gubernatorial races), and Mitt Romney sure as hell wasn’t the one to break the precedent for, but they’re under no statutory obligation to endorse anyone, of course. It is more than a little telling that the Education Week piece linked at the top of this piece says that the union “had no choice but to throw its weight behind Obama” in 2012. This is, of course, unmitigated bovine feces. Yet, as I wrote about two years ago, the 2012 NEA convention had all the trappings of an Obama re-election rally, with t-shirts inscribed with Obama’s name, videos, and delegates’ being encouraged to hold “house parties” to “educate their friends about why Obama… deserves a second term.” There were even encomia to the ACA, which seems sort of out of the organization’s purview.

The NEA, in other words, can’t seem to wrap its collective head around the idea that 1). all the proclamations in the world aren’t going to get President Obama to fire Secretary Duncan or to get him to resign (as Peter Greene at Curmudgucation points out in an essay well worth reading in its entirety, it’s “[interesting] that the resolution calls for Duncan to resign rather than the President to fire him”) and 2). replacing Duncan wouldn’t mean a new direction for the Department of Education, just a new second-in-command to the same President who thought Duncan was an even vaguely appealing choice to begin with.

It may be, as Greene also notes, that there will be a message sent:

... that teachers have had it with this amateur-hour bullshit trash-and-dismantle approach to our profession and the public education that we've devoted our lives to. Let's continue to make it clear to the folks in DC that we have had it with their assault on American public education. Let's continue to make it clear to the Democratic party it's not true that they don't have to stand up for us because we'll vote for them no matter how many times they attack us. And let's continue to make it clear to NEA leadership that we expect them to represent the teachers of America, and not politicians who keep attacking them.

But that, as Greene is well aware, is both wishful thinking and long-term, at least as far as having substantive impact on national decision-making is concerned. In the here and now, the NEA has less power to influence educational policy than it has at any point in my lifetime, and an utterly ineffectual (and close) vote, clearly not sanctioned by a diffident and equivocal leadership, to remove the Secretary of Education isn’t going to strengthen their political suasion, especially since Obama, like most politicians, is not above petulant retaliation.

All these reasons, then, help to account for the deafening silence about the NEA’s resolution that we hear from the corporate media. That, and the fact that they’re lazy bastards who can’t be bothered to actually cover the news.

Arne Duncan Outdoes Himself

In my antepenultimate (to this) post, I described Secretary of Education Arne Duncan as “the worst cabinet member of the millennium (and yes, Curmie includes the likes of Alberto Gonzales and Donald Rumsfeld in that analysis).” It wasn’t always that way—I even praised him for his confrontation with the NCAA over graduation rates for athletes. But a). virtually anyone looks good by comparison to the NCAA, b). that was over four years ago, and c). give enough monkeys enough typewriters…

Since that good start, moreover, Duncan has managed to espouse positions which represent the worst of both political perspectives. An arrogant buffoon who has never actually taught a day in his life, Secretary Duncan manages to blend the union-busting, anti-teacher, corporatist Machiavellianism of the GOP with the top-heavy bureaucracies, nanny-state sensibilities, and documentation fetishes of the Democrats. He has become a self-styled Tsar, and President Obama has not only let him get away with it, he’s encouraged it. Obama’s education policy is probably no worse than Bush’s, but it’s no better, either, and that’s a rather scathing condemnation when you get right down to it.

Arne Duncan Attempts to Be Worst Cabinet Secretary Ever

But now comes a statement from Arne the Idiot that boggles the mind in its inanity—even by Duncan’s standards. In announcing a “major shift” in the way the government evaluates federally-funded special education programs, he declared that whereas most states are indeed in compliance with federal standards, including an “individualized education plan” for each student, “it is not enough for a state to be compliant if students can’t read or do math.” And it is certainly true that the dropout rate for students with disabilities is twice that for those without, and that two-thirds of students in special education programs perform below grade level in reading and math. Um… that’s why they’re in those programs, Ace.

Here’s the response of teacher and blogger Peter Greene, in a post aptly entitled “Quite Possibly the Stupidest Thing To Come Out of the US DOE”:

Arne Duncan announced that, shockingly, students with disabilities do poorly in school. They perform below level in both English and math. No, there aren’t any qualifiers attached to that. Arne is bothered that students with very low IQs, students with low function, students who have processing problems, students who have any number of impairments—these students are performing below grade level….

But who knows. Maybe Arne is on to something. Maybe blind students can’t see because nobody expects them to. Maybe the student a colleague had in class years ago, who was literally rolled into the room and propped up in a corner so that he could be “exposed” to band—maybe that child’s problems were just low expectations. Maybe IEPs are actually assigned randomly, for no reason at all….

We don't need IEPs—we need expectations and demands. We don’t need student support and special education programs—we need more testing. We don’t need consideration for the individual child’s needs—we just need to demand that the child get up to speed, learn things, and most of all TAKE THE DAMN TESTS. Because then, and only then, will we be able to make all student disabilities simply disappear.

This is just so stunningly, awesomely dumb, it’s hard to take in. Do they imagine that disabled students are just all faking, or that the specialists who diagnose these various problems are just making shit up for giggles?

If what we were discussing here was only that group of students with ADHD, dyslexia, or similar conditions, it might make a little sense to expect to see progress roughly equivalent to norms for students without those conditions. But no, we’re also talking about kids with developmental disorders so severe they can’t sit, talk, or hold a pencil to take one of Duncan’s precious high-stakes tests.

And now we get the capper, an utterance so mind-meltingly idiotic that it would embarrass Michele Bachmann: “We know that when students with disabilities are held to high expectations and have access to a robust curriculum, they excel.” Really, Arne, and where is the evidence for that assertion? Any evidence for that? You’re dealing with educators here, dude. You can’t just make shit up and think you can get away with it.

Despite the cringe-worthiness of Duncan's absurd assertion, the Secretary did manage not to be the stupidest person on the conference call. That dubious distinction went to Tennessee’s education commissioner, Kevin Huffman, who put forth the proposition that it is lack of testing, of those magical words “strong assessments,” that’s the real problem. Because mandated testing cures everything from Down Syndrome to celebral palsy, apparently.

Seriously, it’s difficult to imagine what it must be like in the universe these guys inhabit. Unfortunately, the fact that what Duncan, Huffman, and their fellow charlatans propose is utter nonsense doesn’t change the fact that there are serious implications associated with their delusional ravings.

First, tens of thousands of good and effective teachers will have their hard work demeaned by Duncan’s transcendent silliness. Second, schools, already facing budget crises across the country, will have to re-direct resources to accommodate this boondoggle. That means less money to pay teachers, to support libraries and technology centers, to underwrite gifted and talented programs, in short to, well, be a school. Third, since Duncan seems pathologically incapable of doing anything without attaching a threat to it (do it my way or lose your funding), he further alienates anyone who actually knows anything about education from both his own inanities and the DOE in general, and enhances the impression of Chicago-style politics run amok in the Obama administration.

Finally, whereas high-stakes testing of the regular student population is unnecessarily stressful, often incompetently administered, and frequently used as “evidence” of utter falsehoods, at least we can understand the impulse. As a university professor, I do often despair at how remarkably underprepared many of my students are when they arrive in my freshman classes. If testing actually worked (it generally doesn’t), at least we’d have some means of determining what they know and what they don’t—and, as I’ve said before, I do look at a prospective student’s ACT or SAT scores as part of my decision of how to vote on a scholarship application. (I’d never use those scores to evaluate a teacher or a school in any way, however.)

Here, though, the proposal makes no sense at all. There’s no possible way that testing disabled students could do any good at all, could provide any useful information, could in fact accomplish anything remotely positive. The only way this makes sense is if it’s some sort of elaborate ruse to get people like Curmie to say “testing of the regular student population isn’t so bad, because see how much worse it could be.” (Note: ain’t gonna happen Arne—regular high-stakes testing is still awful, even if this is worse.)

Either that, or Arne Duncan is off his meds.

If you have to tell me, it ain't so

One of Curmie’s maxims is “if you have to tell me, it ain’t so.” I find myself saying that a lot, mostly to students who don’t quite have the confidence they need, who demand rather than command respect. If you’re a director and you have to tell your cast you’re in charge, you aren’t. Same goes for a teacher in a classroom. But there are other manifestations, as well.

I saw two headlines yesterday to prove my point: “Olympic Committee Assures Gay Athletes They’ll Be Safe In Russia” and “U.S. assures Russia Snowden won't be executed or tortured.” All these assurances! Even Curmie isn’t cynical enough to believe that these proclamations mean that gay athletes won’t be safe at the Sochi Olympics this winter, or that Edward Snowden, should he be extradited back to the US, will definitely be tortured and/or killed just because Eric Holder says he won't be. But they do mean that Russia and the US share the unenviable position of having to say what shouldn’t need to be made explicit: that they’ll act like grown-ups (at least this once). Why do they need to say so? Because Russia’s treatment of gays is barbaric and the US has a recent history of torture and execution of prisoners.

OK, Gentle Reader. If you’ve been reading this blog for a while, you know what Curmie thinks of the IOC and their various minions. Almost exactly a year ago, I called the organizers of the London games “arrogant, inefficient, and venal”; a couple days later, I described their activities as “heavy-handed and frankly Stalinistic” and quoted Ken at Popehat that “The Olympic brand is about athleticism only in the sense that iTunes is about music: it is a vehicle for monetizing it.” When the IOC are the good guys in a story, the bad guys are very creepy indeed.

And, of course, they are. Vladimir Putin thinks he’s still in the KGB, and nobody in Russia has the combination of courage and clout to make him re-evaluate that position. A month ago, Putin signed into law a bill which criminalizes the “propagation” of homosexuality to children, with fines up to 100,000 rubles (about $3000) for those who use the internet or mass media to propagate homosexuality to minors. That’s about 10 weeks’ salary for the average Russian: a pretty steep price to pay for a “crime” so obviously intentionally ill-defined as to allow virtually any activity to lead to arrest… leading, of course, to prior restraint, which is the whole idea. Less than a week later, Putin tacked on another law, not merely forbidding gay Russians from adopting, but also preventing foreign adoptions of Russian children by anyone but married heterosexual couples.

In the immediate aftermath of the conviction of Pussy Riot’s Maria Alekhina, Ekaterina Samutsevich and Nadezhda Tolokonnikova, I described Putin as “both a repressive homophobe and an amoral tactician.” I stand by that description, although I still have not come to a determination as to which of those elements is dominant: is he such a homophobe that he will do anything to suppress gay rights, or does he (probably correctly) believe that he can solidify his political status by playing to his countrymen’s (and –women’s) basest prejudices? Probably a little of both. Either way, it’s not good news if you’re one of the estimated 10 million or so Russian homosexuals… or one of the 600,000 parentless Russian children.

But let’s get back to the present. Playwright/actor Harvey Fierstein (Torch Song Trilogy, among others) may exaggerate the case a little in his opinion piece in the New York Times, but he’s certainly right that:

Historically this kind of scapegoating is used by politicians to solidify their bases and draw attention away from their failing policies, and no doubt this is what’s happening in Russia. Counting on the natural backlash against the success of marriage equality around the world and recruiting support from conservative religious organizations, Mr. Putin has sallied forth into this battle, figuring that the only opposition he will face will come from the left, his favorite boogeyman.

He’s right, too, that the imminence of the Sochi games makes the Putin regime (and I do choose that term intentionally) more open to outside persuasion than it is likely to be for years to come. It would take a level of political courage we’re not likely to see from the likes of Obama or Cameron or Merkel—and certainly not from the pompous hypocrites at the IOC—to actually boycott Sochi, but certainly there are opportunities for persuasion.

I think it’s probably true that Putin and his goons will stay away from enforcing their new repressions while the assembled multitudes are gathered in Sochi and environs. This strategy of pretending to an openness and a tolerance that doesn’t in fact exist has become standard procedure for authoritarian regimes hosting international events: think of the 1980 Olympics, for example, which managed to be a success despite not only the American boycott but the widely-acknowledged sweeping up and re-location of all the undesirables—from prostitutes to alcoholic derelicts—just to get them out of sight. No, there probably won’t be any problems while the games are actually going on. Which is why we really do need to pay attention to the man behind the curtain.

My “hook” on joining these two stories together was provided by this Facebook status update by a friend (I won’t identify him further, as it was a “friends only” post):

A national section headline in today’s Los Angeles Times: “U.S. Says it will not torture Snowden.” I remember a time when such statements would not be necessary. When did we become the country that had to reassure RUSSIA we wouldn’t torture people? Would you send your kids to a school with a sign “Our teachers say they will not molest your children.”? My first question would be, why are you reassuring me about this? Has it been a problem in the past? Neo-cons can call it “enhanced interrogation” all they want and spin out the tired ‘ticking bomb’ scenario. But we are now a nation that has tortured people. I am a proud Eagle Scout, ashamed of what scouting has become; I am a proud Catholic, ashamed of my church and its protection of pedophile priests; and now I am a proud American, ashamed of what my country has become. No jokes here today, folks, just an immense sadness at this once-great country.

My friend is right, of course. We do torture people, even though all the expert testimony suggests that such tactics are less likely to achieve the desired results—accurate and useful information—than other methods. And we’ve done it to our own citizens. Just ask José Padilla.

And we do execute people. We’ve done it over 1300 times since SCOTUS lifted the moratorium on the death penalty in 1976. That works out to about one every ten days or so. Texas Governor Rick Perry has presided—if that is the term—over 261 of them. The chances that at least one of those cases resulted in the execution of an innocent man or woman approach ontological certitude. Indeed, no less than a member of the Supreme Court seems not the slightest bit concerned by that eventuality: Antonin Scalia wrote, in a dissenting opinion on the Troy Davis habeus corpus appeal in 2009, that “actual innocence” (his scare quotes) is insufficient to overturn a conviction. “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” True, Scalia was thrown out of Grinchville for being too heartless, but come on.

The chances that a good number of those executed were themselves victims of overzealous prosecutors, jury-stacking, racial bias, and/or incompetent defense attorneys, of course, is roughly equal to the likelihood that the sun will continue to rise in the east and not decide that it’s bored with that routine and try rising in the southwest for a change.

Curmie, to be sure, is ambivalent about the death penalty. As I wrote about the Troy Davis case a couple of years ago, “there are those of our species whom, to be frank, we’d be better off without.” That doesn’t mean, of course, that we ought not to be extremely circumspect in applying the ultimate punishment. And the propriety of the death penalty is not the issue here: it’s the fact of its existence.

Where Edward Snowden falls on the continuum from heroic whistle-blower to self-righteous traitor is the subject for debate, and the opinions of people whose intellect and ethics Curmie respects cover a wide spectrum on this issue. What should not be under discussion, however, is whether he should be tortured or executed. He should not, for both ethical and pragmatic reasons. Period. End of discussion. Nor will he be, I suspect, even if Russia (or some other country) extradites him. You will forgive me, however, Gentle Reader, if I’m a little less confident of that statement than I was a couple days ago. Not (merely) because Eric Holder is a serial prevaricator, but because he had to tell us.

Remember When the 4th Amendment Mattered?

Mark this date and time, because Curmie is about to say something unlikely ever to be repeated: Louie Gohmert is on the right side of a controversial issue. Yes, really. And so are Doug Lamborn, Dana Rohrabacher, Mark Sanford, and Jim Sensenbrenner. Meanwhile, Tammy Duckworth, Steve Israel, Marcy Kaptur, Jan Shakowsky, and Louise Slaughter are wrong on this one. OK, could we just have one big chorus of “WTF?”

The issue at question was an amendment sponsored by two very different Michigan Congressmen: Justin Amash (above right), a sophomore Tea Party favorite, and John Conyers (above left), an old-school Democrat who was on Richard Nixon’s enemies list a decade before Amash was born. Strange bedfellows, and all that. What Amash and Conyers agree on—if on little else—is that the Bill of Rights, specifically the 4th amendment, is a good thing. Or, given the wholesale sellout of civil liberties by power elites of both parties, perhaps “was a good thing” would be the more apt descriptor.

You remember the 4th amendment, don’t you, Gentle Reader?

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.

This simple and direct affirmation of individual rights, like so many other Constitutional guarantees, has been eroded if not annihilated by post-9/11 hysteria, the insidious PATRIOT Act, and fear-mongering pols of both parties.

In the wake of Edward Snowden’s revelations about the extent of NSA spying into the lives of millions of people who had done precisely nothing to arouse suspicion, Amash and Conyers introduced an amendment to a defense bill. Unlike the thousands of pages of turgid legalese that often characterize legislation, this amendment, barely over 100 words, is pretty clear:

None of the funds made available by this Act may be used to execute a Foreign Intelligence Surveillance Court order pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) that does not include the following sentence: ‘‘This Order limits the collection of any tangible things (including telephone numbers dialed, telephone numbers of incoming calls, and the duration of calls) that may be authorized to be collected pursuant to this Order to those tangible things that pertain to a person who is the subject of an investigation described in section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).

In other words, you need a reason to gather private information on a law-abiding citizen. Stated otherwise, we have a right to be secure in our persons, papers, houses, and effects against unreasonable searches… That phrasing seems strangely familiar, somehow…

The amendment failed, of course, because the movers and shakers of both parties like power. All the “limited government” rhetoric on one side and the “civil liberties” aphorisms on the other are simply a load of crap for the majority of the politicians in Washington. The fact is, politicos in general like to exercise power, and they’ll defend their dubious claims to the legitimacy of these displays even in the face of obvious problems like, say, the fact that they’re freaking unconstitutional. There is consolation of sorts to be found in the narrowness of the margin, 217-205, and by the fact that party lines meant little: 57% of Democrats and 41% of Republicans voted in favor of Amash/Conyers. Indeed, the amendment would have passed if just half of the Democrats who voted against the re-authorization of the PATRIOT Act and also against this amendment had stuck to their alleged civil libertarian principles. Among those who didn’t: Nancy Pelosi, who is credited—if that’s the word—by Foreign Policy’s John Hudson with “[saving] the NSA surveillance program.” She was joined in voting for the NSA and against the people by such prominent Democrats as Steny Hoyer, Joe Kennedy, Sheila Jackson Lee, and Debbie Wasserman Schultz.

Let’s face it: Curmie voted for Obama twice, and—given the opposition—doesn’t regret those votes. But in the realm of civil liberties, the Obama administration has been absolutely as horrific as its immediate predecessor. And they did everything in their power, apparently, to prevent the amendment from even being brought to the floor. In one of the most notably ironic statements ever to emerge from a press secretary’s lips, Jay Carney actually urged defeat of the amendment because it is a “blunt approach [and] is not the product of an informed, open, or deliberative process.” As opposed to the laser-like focus and utterly transparent processes one has come to associate with NSA operations, one presumes.

Of course, the GOP leadership is just as culpable: they, too, tried to prevent a vote. And consider the list of leading Republicans who decided that neither small government nor the Constitution, hitherto their two most strident rallying cries, were quite as important as fear-driven oppression: Michele Bachmann, John Boehner, Eric Cantor, Virginia Foxx, Jeb Hensarling, Darrell Issa, Peter King, Steve King, Mike Rogers, and Paul Ryan, among others.

In short, as the New York Times reports, “Conservative Republicans leery of what they see as Obama administration abuses of power teamed up with liberal Democrats long opposed to intrusive intelligence programs. The Obama administration made common cause with the House Republican leadership to try to block it.”

Importantly, the Amash/Conyers amendment was remarkably modest in its goals: it didn’t seek to shut down NSA surveillance. It didn’t even demand that such intrusions into privacy should require a warrant (which would have been a better idea, but perhaps a bridge too far, given the curious blend of megalomania and paranoia which currently infects both parties). No: all the NSA would have needed to do was to be able to connect the dots, however tenuously, between a specific problem and a specific person before dredging up every detail of that person’s private communications. Not “probable cause”; some cause. Doesn’t seem an unreasonable hurdle. I mean, if Jim Sensenbrenner, the principal author of the PATRIOT Act, thinks we’ve traveled a little too far down the road of intrusion, perhaps—just perhaps—we ought to listen.

There’s a “Myth vs. Fact” sheet apparently coming out of Representative Amash’s office. Among its arguments:

The amendment does not defund NSA. It does not defund all NSA surveillance under the Patriot Act’s Sec. 215. It does not require a warrant for NSA to get Americans’ car reservations, hotel receipts, or telephone records. NSA does not even have to suspect that a crime has occurred. The amendment simply requires that there be a reasonable connection between the documents sought and the person under investigation. Far from blunt, the Amash-Conyers amendment is narrow and modest and is only a first step towards protecting Americans’ records from NSA surveillance….

If proponents of NSA blanket surveillance are right, if Americans lose constitutional protections when they make a call or send an e-mail, then any data stored in “the cloud” is fair game for the government without a warrant. Do we think it’s good policy to have every iPhone picture stored in iCloud subject to warrantless government confiscation? Is that reasonable?

Well, no. No, it isn’t. But the leadership of both parties seems perfectly fine with it… as long as it’s the other guy who’s being investigated.

The week’s events could represent a harbinger of things to come: a moment in time when libertarians of the left and libertarians of the right join to cast off the fusty devastation of Business as Usual in favor of a society capable of balancing legitimate national security issues with civil liberties. Or, more likely, they will simply ratchet up the iron-handed modi operandi employed by the Obamas, Pelosis, Boehners, and similar authoritarian jackasses. Keep those free-thinkers in Congress under control! Mustn’t let their interest in liberty interfere with our pet projects, after all.

Mitt Romney and the 47% Comments

I got a few hundred words written about the two Presidential candidates’ responses to the situation at the American Consulate in Benghazi earlier this month (well, that incident in particular among several). On the one hand, we had the Obama administration’s absurd claim that the crisis was created, or at least catalyzed, by a hack movie-maker whose amateurish effort had been on-line for months. On the other hand was the incompetent and narcissistic posturing of Candidate Romney, whose allegations, even had they been true (which, of course, they weren’t: this is Mitt Romney we’re talking about, after all) would have been ill-timed, ill-considered, un-presidential, and dangerous.

Before I had a chance to finish, however, came The Leak. You know the one: about how Romney can’t win the support of 47% of the population because they don’t pay taxes. A friend posted a status on his Facebook page: “So...after Mitt's Libya debacle last week, and the now-famous ‘secret tape’ release on Monday...is anybody else wondering what David Axelrod's gonna do with his third wish?” Yeah, pretty much. The scary thing is that this revelation had virtually no effect on Romney’s prospects: the bottom line is that independent voters (by which I include myself, along with other members of either party who are honestly willing to consider a candidate from across the aisle) 1). have largely already made up their minds, and 2). are voting for either Not Obama or Not Romney.

Stated otherwise, the fact that Nate Silver still gives Governor Romney a reasonable chance of winning in November (albeit that chance dropped from better than 1 in 5 to less than 1 in 6 in the couple of days it took me to write this piece) is attributable almost in its entirety to President Obama rather than to the GOP nominee himself. Obama’s positive/negative ratings throughout the campaign season—dating back to last November—have been largely even or negative… until recently, when those of us with cynical dispositions might be thinking not so much about his performance per se as how he compares to the other guy who wants the job.

Somewhat predictably, the President’s lowest ratings (42/50) occurred in December, when the posse of Republican candidates were all making headlines with their own spin on why the country was circling the bowl. The bad news for the Romney campaign—other than the fact that their candidate is Mitt Romney—is that Obama now has not merely an overall positive rating (50/44), but that for two consecutive weeks he’s hit the 50% plateau, where he hadn’t been for a very long time. Yes, the timing corresponds to that of the Democratic convention, so there’s probably a bump from that: his favorables went up 6 and his unfavorables down 3 during convention week. By contrast, Obama took a two-point favorability dip during the GOP convention—but there was no increase in his unfavorability rating, and Romney gained virtually no ground as a result.

What all this means is that Romney’s only hope is to keep the attention on Obama. I’m not sure I agree with Peggy Noonan that this is a year in which “Republicans couldn’t lose” (but are losing), but I think there’s no question that there is (or at least was) a greater opening for a GOP challenger now than there was 12 years ago, when George W. Bush was nonetheless elected. (And to my friends on the left who think Bush and his minions “stole” that election: it shouldn’t have been close enough to steal. Shut up and move on.)

Obama has had some successes that we can all agree on: the fact that Osama bin Laden and Muammar Qaddafi aren’t around anymore is a good thing. We can argue about how much credit should go to Obama, and about the downsides of those successes (further strained relationships with Pakistan, for example) but those are certainly victories that happened on his watch. The American automobile industry is in better shape now than in many years. Still, whereas many of us are glad DADT is a thing of the past, Obama’s leadership on the issue made him as many enemies as friends. Same for the Affordable Care Act, and for, in fact, the majority of what I and others might think of as accomplishments.

Moreover, the left is unsatisfied. I’m no Socialist (although I confess that I am somewhat disappointed that I have yet to be called one by an idiot right-winger), but the fact that a single-payer health system was never on the table even as a bargaining chip boggles my mind. Guantánamo is still open; DOMA is still the law of the land; Obama’s Iraq and Afghanistan policies are virtually indistinguishable from Bush’s.

More fundamentally, whereas Romney is surely disingenuous in many of his attacks on Obama’s policies—he’s hardly the first candidate to run against an incumbent with that strategy—there are some things that aren’t so good right now, and about which we can all agree. The unemployment rate, especially for minorities, and the deficit are unacceptably high. Yeah, yeah, I know: the GOP-led House won’t pass any jobs bills, and they are petulantly refusing to do what any rational person would do and raise taxes. They claim their Infallible Leader is Ronald Reagan, but it’s really Grover Norquist. I get all that, and I agree with the overwhelming majority of it. But the sign on Truman’s desk didn’t read “The buck stops with the Speaker of the House.”

Luckily for the Obama campaign, Romney is nothing if not hubristic. All he had to do following the events in Benghazi, for example, was to do precisely what he did after the shootings in Aurora: express condolences and look serious. “Much as I disagree with President Obama on many issues, I trust that all Americans blahdeblahblahblah…” Then, wait a few hours and do an interview where you’ll surely be asked about the situation. Respond by starting with sympathy and then allow as how the situation might possibly be avoided, and that you hope the rumors you’re hearing turn out to be false. Nope. He had to get out there with a statement that was rightfully interpreted as an attempt to score political points off a tragedy. Way too soon, and way too inaccurate. By the way, is anyone else a little bemused by those who grudgingly admit the “apology” was issued well before the attack, but whine that it was not taken down soon enough afterwards… after all, it’s not like those folks had anything else on their minds but updating their fucking website, right?

But, revenons à nos moutons. The Leak. Let’s stipulate two things: 1). the tape was attained through inappropriate means, and 2). what candidates—all candidates—say to supporters would probably shock and appall most of us. But this isn’t a law court. There is no evidence that the tape was edited, nor have I seen any claims from the Romney camp that it was. In other words, whereas making and distributing the tape was unethical by those who did so, using it as a means of learning more about candidate Romney by the rest of us is thoroughly reasonable.

So here’s the transcript of that now-(in)famous section:

There are 47 percent of the people who will vote for the president no matter what. All right, there are 47 percent who are with him, who are dependent upon government, who believe that they are victims, who believe that government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you name it. That that's an entitlement. And the government should give it to them. And they will vote for this president no matter what. And I mean, the president starts off with 48, 49, 48—he starts off with a huge number. These are people who pay no income tax. Forty-seven percent of Americans pay no income tax. So our message of low taxes doesn't connect. And he'll be out there talking about tax cuts for the rich. I mean that's what they sell every four years. And so my job is not to worry about those people—I'll never convince them that they should take personal responsibility and care for their lives.

Sigh. I mean, really, where to begin?

With the fact that people who pay no federal income tax still pay taxes: state and local taxes, including the notoriously regressive sales tax, property taxes (directly or indirectly: if you don’t own your home, your rent pays for the landlord’s taxes); the also regressive payroll tax (I’d say “don’t get me started on this one,” but it’s too late); various excise taxes; etc.?

With the recognition that the 47% in question is comprised substantially of active duty service personnel, students working to pay their way through school, the elderly? With the intriguing statistic that 96% of Americans (including, say, Paul Ryan) have received direct government assistance? (That’s not counting things like roads and schools and police: things from which all of us benefit.)

With the fact that the states with the highest percentage of folks not paying federal income tax are overwhelmingly red? Of the 14 states with the highest rates of non-payers, Romney will win 11, including the top 3, even in the event of an Obama blowout.

With the blithe and condescending portrayal of half the population as self-described victims unwilling or unable to take responsibility for their lives?

Or is it with the face-melting chutzpah that suggests that Romney will somehow win over 94% of the remaining 53% in order to win? Those are Josef Stalin numbers.

The claims in Romney’s speech are, in short, substantively preposterous and politically inept: not merely because, as Meghan McCain (among others) points out, you’ve got to assume that there’s a camera-toting mole somewhere in your operation, but more importantly because you’re begging for money to help you win and essentially conceding defeat at the same time. It almost makes it worse that there’s a legitimate observation under all the camel dung of Romney’s rhetoric: too many people don’t pay federal income tax, because our wealth is so unevenly distributed that nearly half the population doesn’t make enough money to have to do so.

The fact that Romney is making political arguments I disagree with will shock you, Gentle Reader, precisely as much as my suggestion that the sun will rise in the east tomorrow. But that he would be this utterly incompetent as a candidate is really mind-boggling. Because here’s the deal: either Romney actually believes the drivel he’s spewing (possible, but unlikely), or he thinks his audience doesn’t know any better (really insulting to a carefully selected hoity-toity crowd), or there’s a nudge-nudge-wink-wink schtik happening here, with the candidate and his (imminent) donors engaging in a rather disturbing coded intercourse (a term I choose quite consciously) replete with disingenuous claims which are actively twisted into a particularly nasty truthiness. I’m not sure which of these scenaria is the most disturbing.

Mitt Romney is an arrogant buffoon, a self-entitled jerk, and a pathological liar. And even after all that has become obvious to anyone paying even a modicum of attention, he’s still got about a 1 in 6 chance of becoming the leader of the free world. Not the biggest endorsement of Mr. Obama, is it?