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Archive for the ‘Justice’ Category

situation USA 2 – very likely, the worst is yet to come

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The USA, over the past two and a half years, has been the object of a global ridicule and opprobrium never experienced before in its history, and it’s largely deserved. And the reason lies in a flaw in democracy pointed out by Greek philosophers, unabashed anti-democratic elitists, some 2500 years ago. Their concern was that the people could be too easily swayed by populist demagogues, individuals who, either through self-delusion or basic deceit, promised everything and delivered nothing, or worse.

There’s a famous quote, attributed to Churchill, that democracy ‘is the worst system of government, apart from all the others’. That description should be taken seriously. There’s no perfect system of government, in fact far from it. And democracy, in its purest form, is never practised anywhere. I’ve heard it said that a free press and an independent judiciary are two of the ‘pillars of democracy’. This is false. They’re in fact bulwarks against democracy. Both of these institutions are elite meritocracies. Another essential bulwark against democracy is an independent science and technology sector. If we based our acceptance of science on popular vote, we’d almost certainly still be living in caves, subsisting on the most basic requirements for survival. So let’s not worship democracy, but nor should we throw it out with the bathwater.

Democracy’s biggest saving grace is that it is inclusive. Everybody gets to have a say. One possible vote for each adult – assuming there’s no corruption of the process. In this respect, if nothing else, everybody is equal. Yet we know that no two people reflect in an ‘equal’ way, whatever that means, before casting their vote. Some are massively invested in voting, others barely at all, and their investments go in innumerable directions. Some of those directions never change, others zig-zag all over the place. And history shows, as the Greek philosophers knew well, that a licence to vote doesn’t turn anyone into a discerning voter.

The USA, it seems to me, suffers from two problems – too much democracy on the one hand, and too great a concentration of power on the other. They say that in the USA, anyone can become President. This is something Americans like to brag about. It’s not true of course, but even if it were, it wouldn’t be a positive. There appears to be no screening for such candidature. Some Americans are calling for extreme vetting of immigrants, but nobody appears to be calling for the same for Presidential candidates. You might argue that the same goes under the Westminster system of democracy, but in fact there is such a system, albeit informal, for attaining the position of Prime Minister. She must first gain the approval of her party, her team (and she can be dumped by that team at any time). In the 2016 US election, the candidate Trump by-passed the party he claimed to be a member of, and appealed entirely to the people, with a wide range of vague promises and claims about his own brilliance and effectiveness. The business cognoscenti knew well enough that Trump was a buffoon, a blowhard and a flim-flam man, but they also knew that his presidency, in being good for his own business, would be good for other businesses too, especially in the field of taxation. The Republican Party as a whole – with a number of notable exceptions – fell in line. Those who believed in minimal government recognised that Trump’s noisy incompetence would actually bring about minimal government by default, and give the governmental process a bad name, which was all fine by them. The question of ethics rarely entered into it.

As a distant watcher of what I’ve called the slow-motion train wreck of the Trump presidency, I’ve learned more than I ever thought I would know about the US presidential system, and more than I ever wanted to know about Trump himself.

For some time, Trump was nothing more than a funny name to me. My first full-on experience of him must have come from an early showing of ‘The Apprentice’, probably accidentally stumbled on through channel-hopping. I’ve never taken much interest in the business world, mea culpa. Within literally seconds, I was thinking ‘If I didn’t know better, I’d assume this was a black comedy. The host talks total gobshite, and the contestants, all actors, treat him like a deity. His very name is meant as a joke – he trumps everyone else in spite of being tasteless, boorish and pig-ignorant – and the contestants, who are put up in a monument to vulgarity called ‘Trump Tower’, swoon at all the gimcrack opulence. No better caricature of the Ugly American has ever been created’. Yet I knew that this was no caricature. Or rather, Trump was a caricature, but also a real human being.

What I didn’t know then, and what I’ve learned since his accession to the presidency, was the extent of Trump’s criminality. This has been fully revealed through a couple of New York Times stories, but I first learned about it through Sam Harris podcasts and other outlets, as well as through the words and behaviour of Trump himself, and his thuggish cronies. His use of standover men, fixers and the like has all the markings of organised crime – or somewhat disorganised crime in Trump’s case. The fact that he has gotten away with this behaviour for decades is a testament to the problems of the US justice system.

Trump became President with a minority of votes – this time revealing a problem with the federal electoral system. Claims by pundits such as Niall Ferguson that Putin’s interference in that election had a minimal effect were either naive or politically motivated. The Putin dictatorship’s actions were sophisticated and brilliantly targeted, and the subsequent response of Trump to the clear evidence of that interference should have been enough to have him thrown out of office. Another massive problem with the US federal system.

Sensible Americans are now faced with the problem of getting rid of Trump, and engaging in the root and branch reform of the disastrous system that allowed Trump’s rise to and maintenance of power. It seems, from other pundits I’ve read, that the US Presidency has experienced a kind of ‘dictatorship creep’ over the years, and this now needs to be confronted directly. The judiciary, for example needs to be fully independent, with the highest positions decided upon by judicial peers. Presidential emoluments need to be eliminated through clear, solid law. Presidential pardoning powers need to be sharply restricted, or preferably removed from the President altogether and placed in the hands of senior law officials. The presentation of all available taxation documents must be a sine qua non of presidential candidacy. If Presidents are to be directly elected – not a great idea IMHO – it should be through a first-past-the-post, one-vote-one-value system. Presidential immunity must be jettisoned, and if this interferes with the President’s role, this should scream to the American people that the President’s role is too burdensome, and that governmental power needs to be less concentrated and more distributed.

All of the preceding, and more, seems obvious to an outsider, but among Americans, brought up since infancy to believe they have the best government in the multiverse, self-criticism in this area is hard to come by. Possibly more abuse of the system by Trump and his enablers will wake Americans up to what’s needed, but I remain skeptical.

Which brings us back to the immediate situation. I have to admit, what has surprised me more than anything about this presidency is that Trump’s following hasn’t been reduced substantially since falling to around the 40% mark very early in his term. Clearly, his base, much-despised by Trump himself, has gained nothing from his incumbency, as opposed to the super-rich (small in number but gargantuan in power), who see through Trump but cynically support his lazy, neglectful attitude to government administration. The fact that this base is solid and easily aroused reveals a long-standing problem in America’s individualistic, mistrustful, and massively divided society. Trump is wily enough to try to take advantage of this discontent, especially as the law appears to be closing in on him. He may not have the numbers to win another election, but he is very likely to use those numbers to do as much damage to America’s much-vaunted but clearly very fragile separation of powers as he possibly can. I’m unfortunately quite convinced that the worst of the Trump presidency is yet to come.

Written by stewart henderson

May 13, 2019 at 7:30 pm

situation USA 1: Billy Barr’s memo, etc

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silly Billy

Jacinta: So we can’t get enough of the wacky world of US federal politics, maybe from a schadenfreudish perspective, since we’re not Americans and have no intention of setting foot in that mad bad sad world…

Canto: Fully of lovely people I should add. Very diverse.

Jacinta: Very, let’s leave it at that. But we’re fascinated that Trump is still trumpeting, and that the nation’s better half, actually more than half, has still not found a way to rid themselves of him. I’m very reluctant to attribute any smarts to Trump, because criminal types, in spite of many movie depictions, are rarely smart enough to avoid getting caught. Yet Trump is still at large. He’s obviously done many things right, re self-preservation, and even self-aggrandisement.

Canto: We think of criminals as dumb because they’ve been caught. That’s why we call them criminals.

Jacinta: Good point. Anyway, the slow train crash that’s US federal politics today may not be the Trump crash. He may well walk away from the wreck unscathed. The number of final scenarios from here seems virtually infinite.

Canto: So let’s jump right in. The Mueller team has produced a report, redacted to the public, but mostly available (with almost entirely unredacted summaries of each of the two volumes, on conspiracy and obstruction respectively), which we have read and which we’ve found to be extremely critical of the administration and Trump himself. We’ll be quoting from the report throughout this fun, multi-post analysis.

Jacinta: But first we want to have a look at the role being played by US Attorney-General William Barr, who’s currently standing between the Mueller Report and its reception and treatment, by Congress, by the US justice system, and by the American public.

Canto: Barr hasn’t been the A-G for long, having taken office on Valentine’s Day of 2019.

Jacinta: A loving day for Billy and Donny. Some background to the appointment. Trump nominated Barr for the position on December 7 2018, a month after the resignation of the previous A-G, Jeff Sessions. Trump, as example F of the Mueller Report’s many examples of possible or probable obstruction of justice relates, had been trying to get Sessions to either ‘unrecuse’ himself (a legal nonsense, according to many) from overseeing the Mueller Report, or to resign, throughout Sessions’ tenure in the position. Barr, who held the position of A-G back in the early nineties, was clearly aware of Trump’s frustration with Sessions and his desire for an A-G who would protect him, support him, be on his team, etc, and had sent, unsolicited, a 19-page memo, available online, which is well worth reading. You don’t have to be a lawyer to recognise the many flaws in Barr’s arguments, you simply need a good sense of logic, decency and fairness.

Barr’s memo begins badly, with the title – Re: Mueller’s ‘obstruction’ theory. The scare quotes are meant to imply that obstruction isn’t really a thing in this case, and possibly for Presidents in general. But the most telling word is ‘theory’, because, as we have seen from the report itself, and no doubt this is a feature of Mueller’s legal career, the Special Counsel doesn’t theorise much, he relies on case law and precedent, which he cites at enormous length, to hammer home his findings.

Canto: Yes, just reading the memo, the word ‘theory’ comes up in the second and third paras. I also note the use of scary words like ‘demand’, ‘threat’, ‘interrogation’ and ‘coerce his submission’, all used in reference to Mueller’s behaviour towards Trump, all piled up in the first couple of paras. It’s no wonder that some have surmised that this memo was intended for an audience of one – especially if that person hasn’t the attention span to read more than a page a month.

Jacinta: Well, Barr quickly moves to legalese, using terms like actus rea (actually actus reus) and mens rea – which mean, respectively, a criminal act, and the intent, or knowledge of guilt. What he writes in these next paragraphs is unexceptionable – he agrees that the President is bound by standard obstruction laws, and that Nixon and Bill Clinton were rightly impeached on obstruction in the form of impairment of evidence. But then he goes on to write:

Enforcing these laws against the President in no way infringes on the President’s plenary [absolute] power over law enforcement because exercising this discretion – such as his complete authority to start or stop a law enforcement proceeding – does not involve commission of any of these inherently wrongful, subversive acts.

Barr Memorandum, June 2018, p2

Canto: Hmmm, I think I see what Barr is trying for here. But first, why isn’t it jaw-dropping to grant absolute power to one person over law enforcement? Only in America, surely. The land of the individual super-hero. But what I think Barr is arguing here is that Trump’s attempt to stop a proceeding – the Mueller enquiry – was perfectly legal due to his plenary power. So, even if Putin’s Russia interfered with the 2016 election ‘in sweeping and systematic fashion’, and did so to substantially advantage Trump, and the Trump campaign knew about and welcomed that interference, it was perfectly legitimate for Trump to shut down an investigation into that interference and the Trump campaign’s response. Based on that view, all attempts to get the enquiry stopped or to change its focus were legitimate. End of story.

Jacinta: You’re getting there. And fortunately we don’t have to rely only on our own brilliant minds to critique this memo, as many lawyers have already done so. But let’s continue to go it alone for a while, and then see what others have to say. Barr admits at the outset that he’s ‘in the dark’ about many facts, yet he’s happy to speculate, claiming that ‘as far as I know’, and ‘seemingly’, this is what Mueller is actually doing – for example ‘proposing an unprecedented expansion of obstruction laws’. Again, we’re not lawyers, but I note that Mueller cites precedent many times in his report. And he doesn’t include in his examples of possible/probable obstruction the multitudinous tweets and speeches in which Trump denigrates the Special Counsel’s investigation as a witch-hunt and the Russian interference as a hoax. In a broad sense, this appears to me to be witness tampering – using the bully pulpit in the manner of dictators of the past, repeating a lie over and over until it becomes true. The witnesses here being the American public. But back to the memo. Barr homes in on USC 1512, subsection c2, which Mueller does indeed use in his report, but c2 seems to me clear-cut about obstruction, and covers many acts committed by Trump which Barr glosses over or doesn’t mention. In fact Barr seems to think that the only possibly obstructive act committed by Trump was the firing of Comey. Here is subsection c:

(c) Whoever corruptly (1) alters, destroys, mutilates or conceals a record, document or other object, or attempts to do so, with the attempt to impair the object’s integrity, or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.

Further, Barr states that, as far as he knows, Mueller isn’t accusing Trump of evidence tampering. But how far does Barr know? This is an assumption, and on the basis of that assumption he accuses Mueller of an over-reach which in any case makes no sense on the basis of a straightforward reading of c2.

Canto: Well according to Barr, c2 shouldn’t be read as standing alone, it should somehow be read in the context of 1512 c as a whole. To me, though, it clearly reads as a necessary addition to c1, which doesn’t deal adequately with all the nefarious ways and means of obstruction. Barr describes the use of c2 as allowing an ‘unbounded interpretation’ of obstruction. But the law surely requires a definition of obstruction that captures the myriad ways that obstruction can occur – myriad but at the same time obvious to any well-reasoning witness.

Jacinta: Interesting – Mueller and Barr are friends of at least 30 years’ standing, which is a worry, and this makes me imagine, and perhaps it isn’t just imagination, that Mueller is writing up his report partly in refutation of Barr’s claims. That’s based on reading just three pages of Barr, but we’re often more miffed by the criticism of friends, and blokes are such competitive bulls.

Canto: Yes but you could be onto something there. Mueller dwells at length on 1512 c2 as the basis for his obstruction analysis, as well as on the three elements that must be fulfilled to show that obstruction has occurred – obstructive act, intent, and connection to an official proceeding – and towards the end of the report (Vol 2 III. Legal defences to the application of obstruction-of-justice statutes to the President), Mueller directly addresses the issue of 1512 c2, not in response to Barr, but in response to Trump’s personal counsel. These remarks summarise the Special Counsel’s position:

In analyzing counsel ‘s statutory arguments, we concluded that the President’s proposed interpretation of Section 1512(c)(2) is contrary to the litigating position of the Department of Justice and is not supported by principles of statutory construction.

Mueller Report Vol 2, p159

Jacinta: Yes I like the report’s succinctness, with the above summary being followed by a great deal of case law, constitutional argument and so forth. Of course we’re not conversant with all the precedents and the possible constitutional nuances, but we note that these arguments – which may well be directed at rebutting Barr – are detailed and cool, lacking the sense of outrage we find in Barr, regarding over-reach and unprecedented interpretations. And they do seem to confirm our amateur understanding that 1512 c2 is intended to cover acts other than the physical destruction of evidence – and those other acts would be an open-ended set.

Canto: Yes, Barr quibbles a lot on the term ‘otherwise’ in 1512 c2, and Mueller responds to that.

Jacinta: But if we move out from the detailed law into the world of basic ethics, we should be able to recognise that Barr’s position is nothing short of appalling. He tries to argue – and he did so in the senate hearing – that it’s not obstruction if the President ‘thinks’ that the proceeding is corrupt, and so wants to shut it down. So, according to Barr, Trump’s endless claims of a witch-hunt are sufficient justification for him to dismiss the Special Counsel! That’s laughable. I mean Trump would say that, wouldn’t he? Not that this is what Trump thinks. He knows full well that he’s a career criminal. It’s what every career criminal would say when brought to justice. Duh.

Written by stewart henderson

May 4, 2019 at 7:36 pm

Trump – still watching the slo-mo train wreck

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Jacinta: Well haha, you made a prediction to me last December that Trump would be out on his highly intelligent arse by the end of this year – how’s that going?

Canto: Well after making that prediction I’ve embarked on a bit of a journey re US politics and the presidential system in particular, and as you know, what I’ve discovered has shocked me to the core. So, yes, he probably won’t be out by year’s end, but he obviously should have been, well before this. Basically, as I see it, the sensible folks of the US, the adults, are paralysed in the face of a crooked, incompetent, solipsistic pre-teen brat being elected, with less than half the votes, to the most powerful position in the most economically and militarily powerful nation on Earth. They just haven’t got the political system, the checks and balances, to deal with him, in spite of their constant braying about being ‘the world’s greatest democracy’. Still, as a number of US pundits have pointed out, he’ll be much closer to his end when this month comes to an end. And I find it all very engaging, in a morbid kind of way.

Jacinta: Well, yes, we’ve referred to it for some time as a slo-mo train wreck, and it looks like some of the more visible damage might be witnessed in the next few weeks.  

Canto: Follow the money. Which takes us to Russia. We’ve long known that Trump was saved from his bankruptcies and financial incompetence by Deutsche Bank, the Russian money-laundering bank, that he’s very secretive about those finances, and his tax returns haven’t been prised from him…

Jacinta: But the Mueller team have subpoenaed Deutsche Bank, haven’t they? Specifically for Trump’s business finances? I mean, why else?

Canto: I’ve long said that the Mueller team have such a feast of incriminating info on Trump and Russia that even the world’s greatest glutton couldn’t consume it. And there’s plenty of murky stuff available to the public, as reported in The Moscow Project, for example, and in presentations by MSNBC journalist Rachel Maddow, among others. 

Jacinta: The word ‘kompromat’ comes up a lot – compromising information or indebtedness, used to exert leverage over powerful individuals or business entities. Though I’m sure Russia-Putin never dreamed they would one day have such leverage over a US President. 

Canto: Well that’s the thing. They did dream about it, and what’s more worked to make it happen. Remember that Trump didn’t win the popular vote, he won the electoral college. And remember that the Russians interfered with that election. I haven’t looked into this in detail, but the claim made, for example, by the historian and commentator Niall Ferguson, that Russian interference in the 2016 election was negligible as to results, that claim is bullshit, I suspect. They targeted ‘purple states’, theirs was a value-for-money operation, very sophisticated. I recall reading the speaking indictment on the hacking, and noting the mention of ‘known and unknown individuals’ on the American side of that hacking. So Mueller knew then about some American conspirators, and probably knows more now. Trump goes on about ‘no collusion’, but there clearly was a conspiracy, to win the election with Russian assistance in return for removal of sanctions and god knows what else.

Jacinta: Kompromat indeed. Certainly seems to explain Trump’s behaviour re Russia-Putin from before the election to now. What’s amusing is that he’s not only parroted ‘no conclusion’ endlessly, he’s also repeated the ‘no deals with Russia’ mantra ad nauseam. Pretty dumb, because it soon becomes clear that when he repeats things like that, he’s lying. 

Canto: Dumb but hey, he’s never been jailed or had to pay much of a price for his misdeeds. But let’s focus on Russia itself – or Russia-Putin as you call it (I like that combo). As you know the country is run, or rather fleeced, by a bunch of billionaire oligarchs who are Putin’s puppets, and if they don’t do his bidding they’re fleeced in turn by Putin and either jailed or forced into exile, or worse. Trump enters this network of fiends as the archetypal bumbling braggadocio. These guys love to sneer at Americans, no doubt seeing them as amateur scammers and thugs compared to themselves. And Trump is the ultimate incompetent amateur, as if created for their cynical purposes. Now, as is well known, Trump has filed for bankruptcy six times, from 1991 to 2009. It’s called Chapter 11 bankruptcy and it’s designed to enable restructuring, so Trump says he uses the system to his benefit, but of course little of what he says is true or even makes sense…

Jacinta: But surely it’s true that he hasn’t suffered much from his bankruptcies. 

Canto: That’s true, and there are obviously major flaws in US corporate law that allow him to get out from under while others apparently foot the bill. But what’s interesting is that, as American banks saw him more and more as an unstable businessman, they turned off the tap. One bank that didn’t, however, was Deutsche Bank – the Russian money-laundering bank. Not only that, Trump was increasingly interested in business relations with Russians, probably due to their lax standards. Trump Tower Toronto was largely funded through VEB, a Russian state-owned bank once chaired by Putin himself, and Russian investments into Trump real estate in the US are too numerous to list. And that takes us to more recent events. Trump and his enablers were trying to build a tower in Moscow in the run-up to the campaign. Clearly this was of interest to Russia-Putin, so again the VEB was heavily involved. Imagine if candidate Trump, who already shared many of Russia-Putin’s anti-democratic proclivities, could be installed as President,  in return for financial assistance, which would be tied to the lifting of US sanctions on Russia, and other sweetheart deals. What a coup that would be.

Jacinta: Yes, and all that is pretty well established, I mean in the public realm. But what about the law? Which laws have been broken? We both agree that impeachment stinks, so how exactly is the law going to deal with Trump and co?

Canto: Well, let’s leave aside the probable case that the Mueller team won’t have Trump arrested, due to the vast powers they’ve given their President. Let’s imagine it’s a more sensible system in which the head of state is as immediately accountable for his crimes as any other citizen. I’m not an expert on US law of course, but as often mentioned, Cohen has pled guilty to two felony offences, campaign finance violations, and has stated – obviously correctly – that they were directed by Trump. The FBI, or whoever, already knew that as they have all of Cohen’s paperwork, emails, texts, mountains of the stuff. So that’s two dead certain offences. 

Jacinta: Cohen is trying for what we know Flynn will likely get – no prison time. How does that affect Trump?

Canto: Badly. I love it that Trump is lambasting Cohen for doing the right thing, and praising Manafort and Stone for doing the wrong thing. Now all Manafort can hope for is a pardon, from a surely doomed President. 

Jacinta: So if Trump pardons Manafort and then he goes down on multiple charges – financial misdealings, conspiracy and obstruction of justice – what then?

Canto: The pardon shouldn’t be allowed to stand, and that’s another test for the US judicial system.

Jacinta: So should we try to find out the precise laws that have likely been broken? 

Canto: That may be a difficult, or at least a painstaking task. There are lawsuits pending against him however. For example there are a couple of suits against him for violating the emoluments clause of the US constitution, one by Citizens for Responsibility and Ethics in Washington (CREW), and one filed jointly by the Attorneys-General of the District of Columbia and the State of Maryland. This will be the first time the emoluments clause has been tested in court. The D C and Maryland suit was filed back in June 2017 but there has been action on it recently, with subpoenas issued just a few days ago for Trump’s financial records relating to his D C hotel. So that’s one to watch on the sidelines. But generally there will be laws relating to money laundering, conspiring with foreign entities to interfere in an election, and obstruction of justice, that will likely apply to Trump. The obstruction of justice matter, which no doubt includes lying to the FBI (but perhaps not lying about the FBI!) is unfortunately a bit vague. In any case, we just need to stop hyperventilating – or I do – and watch it all play out. I’d love to see Trump in jail, but the other side of me knows he can’t help himself, he is what he is. The real problem, as I’ve always said, isn’t really Trump but the American political system, most particularly the Presidential system. I want to see if they try to fix it, post-Trump. 

Written by stewart henderson

December 6, 2018 at 10:24 pm

on luck, and improving environments

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Trump wasn’t born here, and neither was I

I’m in the process of reading Behave, by Robert Sapolsky, a professor of neurology and biology at Stanford University, who has tried in his book to summarise, via the research literature, the seconds, then minutes, then hours, then days, then lifetimes and more, that precede any particular piece of behaviour. It’s a dense but fascinating book, which aligns with, and provides mountains of evidence for, my view that we’re far less in control of ourselves than we think.

It seems we think this because of what might be called conscious awareness of our behaviours and our decisions. This consciousness is something we sometimes mistake for control. It’s interesting that we consider it obvious that we have no control over the size of our nose or the colour of our eyes, but we have more or less complete control of our temper, appetites, desires and ambitions. 

 Humanistically speaking, this understanding about very limited control needs to have massive implications for our understanding of others. We don’t get to choose our parents, our native country or the immediate environment that most profoundly affects our early life and much of our subsequent behaviour. The flow of hormones and neurotransmitters and their regulation via genetic and epigenetic factors proceed daily, hourly, moment by moment, and all we’re aware of, essentially, is outcomes. 

A lot of people, I note, are very uncomfortable about this kind of talk. For example, many of us want to treat each other as ‘equal before the law’. But is one person ever ‘equal’ with another? We know – it’s obvious – that we’re all different. That’s how we distinguish people, by their smiles, their voices, their fingerprints, their DNA. So how can we be different and equal at the same time? Or, to turn things around, how can a legal system operate if everyone is treated as different, unique, a special case?

Well, in a sense, we already do this, with respect to the law. No two bank robberies, or rapes, or murders are the same, and the judiciary must be highly attuned to the differences when applying punishments. Nowadays, and increasingly, the mental state of the offender – particularly at the time of the offence, if that can be ascertained – is considered when sentencing.  And this is surely a good thing. 

The question here is, considering the exponential growth of our neurophysiological knowledge in the 21st century, and its bearing on our understanding of every kind of negative or positive behaviour we engage in, how can we harness that knowledge to improve outcomes and move from a punitive approach to bad behaviours to something more constructive?

Of course, it’s one thing to identify the release or suppression of glucocorticoids, for example, and its effect on person x’s cognitive faculties, it’s entirely another thing to effect a remedy. And to what effect? To make everyone docile, ‘happy’ and law-abiding? To have another go at eugenics, this time involving far more than just genes? 

One of the points constantly hammered home in Sapolsky’s book is the effect of environment on everything that goes on inside us, so that, for example, genes aren’t quite as determinative as we once thought. Here are some key points from his chapter on genes (with apologies about unexplained terms such as epigenetic, transcription and transposons):

a. Genes are not autonomous agents commanding biological events.

b. Instead genes are regulated by the environment, with environment consisting of everything from events inside the cell to the universe.

c. Much of your DNA turns environmental influences into gene transcription, rather than coding for genes themselves; moreover, evolution is heavily about changing regulation of gene transcription, rather than genes themselves.

d. Epigenetics can allow environmental effects to be lifelong, or even multigenerational.

e. And thanks to transposons, neurons contain a mosaic of different genomes. 

And genes are only one component of the array of forces that influence or control our behaviour. We know, or course, about how Phineas Gage-type accidents and brain tumours can alter behaviour, but many other effects on the brain can alter our behaviour without us and others knowing too much about it. These include stress, malnutrition, and long-term cultural and religious influences which permanently affect our attitudes to, for example, women, other species and the food we eat. Domestic violence, drug use, political affiliations, educational outcomes and sexual affinities are all more inter-generational than we’re generally prepared to admit. 

The first thing we need to do is be aware of all this in our judgment of others, and even of ourselves. There’s just so much luck involved in being who we are. We could’ve been more or less ‘good-looking’ than we are -according to the standards of the culture around us – and this would’ve affected the way we’ve been treated throughout our whole lives. We could’ve been born richer or poorer, with more or less dysfunctional parents, taller or shorter, more or less mentally agile, more or less immune to the pathogens that surround us. On and on and on we could go, even to an extreme degree. We could’ve been born in Algeria, Argentina or Azerbaijan. We could’ve been born in 1912, 1412 or 512, or 150,000 years ago. We could’ve been born a mongoose, a mouse or a mosquito. It’s all luck, whether good or bad is up to us to decide, but probably not worth speculating about as we have no choice but to make the best of what we are.

What we do have is consciousness or awareness of what we are. And with that consciousness we can speculate, as we as a species always have, on how to make the best of ourselves, given that we’re the most socially constructed mammalian species on the planet, and for that reason the most successful, measured by population, spread across the globe, and what we’ve done for ourselves in terms of social evolution – our science, our technology, our laws and our politics.  

That’s where humanism comes in, for me. Since we know that ‘there but for the randomness of luck go I’, it surely follows that we should sympathise with those whose luck hasn’t been as lucky as our own, and strive to improve the lot of those less fortunate. Safe havens, educational opportunities, decent wages, human rights, clean environments, social networks – we know what’s required for people to thrive. Yet we focus, I think, too much on punishment. We punish people for trying to improve their family’s situation – or to avoid obliteration – by seeking refuge in safer, richer, healthier places. We punish them for seeking solace in drugs because their circumstances are too overwhelming to deal with. We punish them for momentary and one-off lapses of concentration that have had dire consequences. Of course it has always been thus, and I think we’re improving, though very unevenly across the globe. And the best way to improve is by more knowing. And more understanding of the consequences of that knowledge. 

Currently, it seems to me, we’re punishing people too much for doing what impoverished, damaged, desperate people do to survive. It’s understandable, perhaps, in our increasingly individualist world. How dare someone bother me for handouts. It’s not my fault that x has fucked up his life. Bring back capital punishment for paedophiles. People smugglers are the lowest form of human life. Etc etc – mostly from people who don’t have a clue what it’s like to be those people. Because their life is so different, through no fault, or cause, of their own. 

So to me the message is clear. Out lives would be better if others’ lives were better – if we could give others the opportunities, the health, the security and the smarts that we have, and if we could have all of those advantages that they have. I suppose that’s kind of impossible, but it’s better than blaming and punishing, and feeling superior. We’re not, we’re just lucky. Ot not. 


Written by stewart henderson

December 4, 2018 at 2:22 pm

another look at free will, with thanks to Robert Sapolsky

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Ah poor old Aynnie – from guru to laughing stock within a couple of gens

Having recently had a brief conversation about free will, I’ve decided to look at the matter again. Fact is, it’s been playing on my mind. I know this is a very old chestnut in philosophy, renewed somewhat by neurologists recently, and I know that far more informed minds than mine have devoted oodles of time and energy to it, but my conversation was with someone with no philosophical or neurological background who simply found the idea of our having no free will, no autonomy, no ‘say’ whatever in our lives, frankly ludicrous. Free will, after all, was what made our lives worth living. It gives us our dignity, our self-respect, our pride in our achievements, our sense of shame or disappointment at having made bad or unworthy decisions. To deny us our free will would deny us….  far far too much.

My previous piece on the matter might be worth a look (having just reread it, it’s not bad), but it seems to me the conundrum can be made clear by thinking in two intuitively obvious but entirely contradictory ways. First, of course we have free will, which we demonstrate with a thousand voluntary decisions made every day – what to wear, what to eat, what to watch, what to read, whether to disagree or hold our tongue, whether to turn right or left in our daily walk, etc etc. Second, of course we don’t have free will – student A can’t learn English as quickly and effectively as student B, no matter how well you teach her; this student has a natural ability to excel at every sport, that one is eternally clumsy and uncoordinated; this girl is shy and withdrawn, that one’s a noisy show-off, etc etc.

The first way of thinking comes largely from self-observation, the second comes largely from observing others (if only others were as free to be like us as we are). And it seems to me that most relationship breakdowns come from 1) not allowing the other to be ‘free’ to be themselves, or 2) not recognising the other’s lack of freedom to change. Take your pick.

So I’ve just read Robert Sapolsky’s take on free will in his book Behave, and it strengthens me in my ‘free will is a myth’ conviction. Sapolsky somewhat mocks the free will advocates with the notion of an uncaused homunculus inside the brain that does the deciding with more or less good sense. The point is that ‘compatibilism’ can’t possibly make sense. How do you sensibly define ‘free will’ within a determinist framework? Is this compatibilism just a product of the eternal complexity of the human brain? We can’t tease out the chain of causal events, therefore free will? So if at some future date we were able to tease out those connections, free will would evaporate? As Sapolsky points out, we are much further along at understanding the parts of the prefrontal cortex and the neuronal pathways into and out of it, and research increases exponentially. Far enough along to realise how extraordinarily far we have to go. 

One way of thinking of the absurdity of the self-deciding self is to wonder when this decider evolved. Is it in dogs? Is it in mosquitos? The probable response would be that dogs have a partial or diminished free will, mosquitos much less so, if at all. As if free will was an epiphenomen of complexity. But complexity is just complexity, there seems no point in adding free will to it. 

But perhaps we should take a look at the best arguments we can find for compatibilism or any other position that advocates free will. Joachim Krueger presents five arguments on the Psychology Today website, though he’s not convinced by any of them. The second argument relates to consciousness (a fuzzy concept avoided by most neurologists I’ve read) and volition, a tricky concept that Krueger defines as ‘will’ but not free will. Yes, there are decisions we make, which we may weigh up in our minds, to take an overseas holiday or spend a day at the beach, and they are entirely voluntary, not externally coerced – at least to our minds. However, that doesn’t make them free, outside the causal chain. But presumably compatibilists will agree – they are wedded to determinism after all. So they must have to define freedom in a different way. I’ve yet to find any definition that works for the compatibilist.

There’s also a whiff of desperation in trying to connect free will with quantum indeterminacy, as some have done. Having read Life at the edge, by Jim Al-Khalili and Johnjoe McFadden, which examines the possibilities of quantum effects at the biological level, I’m certainly open to the science on this, but I can’t see how it would apply at the macro level of human decision-making. And this macro level is generally far more ‘unconscious’ than we have previously believed, which is another way of saying that, with the growth of neurology (and my previous mention of exponential growth in this field is no exaggeration), the mapping of neurological activity, the research into neurotransmission and general brain chemistry, the concept of ‘consciousness’ has largely been ignored, perhaps because it resembles too much the homunculus that Sapolsky mocks. 

As Sapolsky quite urgently points out, this question of free will and individual responsibility is far from being the fun and almost frolicsome philosophical conundrum that some have seemed to suggest. It has major implications for the law, and for crime and punishment. For example, there are legal discussions in the USA, one of the few ‘civilised’ nations that still execute people, as to the IQ level above which you’re smart enough to be executed, and how that IQ is to be measured. This legal and semi-neurological issue affects a significant percentage of those on death row. A significant percentage of the same people have been shown to have damage to the prefrontal cortex. How much damage? How did this affect the commission of the crime? Neurologists may not be able to answer this question today, but future neurologists might. 

So, for me, the central issue in the free will debate is the term ‘free’. Let’s look at how Marvin Edwards describes it in his blog post ‘Free will skepticism: an incoherent notion’. I’ve had a bit of a to-and-fro with Marvin – check out the comments section on my previous post on the topic, referenced below. His definition is very basic. For a will, or perhaps I should say a decision, to be free it has to be void of ‘undue influences’. That’s it. And yet he’s an out and out determinist, agreeing that if we could account for all the ‘influences’, or causal operants, affecting a person’s decision, we could perfectly predict that decision in advance. So it is obvious to Marvin that free will and determinism are perfectly compatible.

That’s it, I say again. That’s the entire substance of the argument. It all hangs on this idea of ‘undue influence’, an idea apparently taken from standard philosophical definitions of free will. Presumably a ‘due influence’ is one that comes from ‘the self’ and so is ‘free’. But this is an incoherent notion, to borrow Marvin’s phrase. Again it runs up against Sapolsky’s homunculus, an uncaused decider living inside the brain, aka ‘the self’. Here’s what Sapolsky has to say about the kind of compatibilism Marvin is advocating for, which he (Sapolsky) calls ‘mitigated free will’, a term taken from his colleague Joshua Greene. It’s a long quote, but well worth transcribing, as it captures my own skepticism as exactly as anything I’ve read:

Here’s how I’ve always pictured mitigated free will:

There’s the brain – neurons, synapses, neurotransmitters, receptors, brain-specific transcription factors, epigenetic effects, gene transpositions during neurogenesis. Aspects of brain function can be influenced by someone’s prenatal environment, genes, and hormones, whether their parents were authoritarian or their culture egalitarian, whether they witnessed violence in childhood, when they had breakfast. It’s the whole shebang, all of this book.

And then, separate from that, in a concrete bunker tucked away in the brain, sits a little man (or woman, or agendered individual), a homunculus at a control panel. The homunculus is made of a mixture of nanochips, old vacuum tubes, crinkly ancient parchment, stalactites of your mother’s admonishing voice, streaks of brimstone, rivets made out of gumption. In other words, not squishy biological brain yuck.

And the homunculus sits there controlling behaviour. There are some things outside its purview – seizures blow the homunculus’s fuses, requiring it to reboot the system and check for damaged files. Same with alcohol, Alzheimer’s disease, a severed spinal cord, hypoglycaemic shock. 

There are domains where the homunculus and that biology stuff have worked out a détente – for example, biology is usually automatically regulating your respiration, unless you must take a deep breath before singing an aria, in which case the homunculus briefly overrides the automatic pilot.

But other than that, the homunculus makes decisions. Sure, it takes careful note of all the inputs and information from the brain, checks your hormone levels, skims the neurobiology journals, takes it all under advisement, and then, after reflecting and deliberating, decides what you do. A homunculus in your brain, but not of it, operating independently of the material rules of the universe that constitute modern science.

This captures perfectly, to me, the dilemma of those sorts of compatibilists who insist on determinism but. They seem more than reluctant to recognise the implications of that determinist commitment. It’s an amusing description – I love the bit about the aria – But it seems to me just right. As to the implications for our cherished sense of freedom, we can at least reflect that it has ever been thus, and it hasn’t stopped us thriving in our selfish, selfless ways. But as to the implications for those of us less fortunate in the forces that have moved us since childhood and before, that’s another story.


R Sapolsky, Behave: the biology of humans at our best and worst, Bodley Head 2017. Note especially Chapter 16, ‘Biology, the criminal justice system and free will’.

Written by stewart henderson

October 27, 2018 at 1:25 pm

Brat Cavernaugh, or the Ruling Class at play: part two

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Mitch McConnell, ruthless American conservative


In a speech to his old high school in 2015, Kavanaugh remarked smirkily that ‘what happens at Georgetown Prep stays at Georgetown Prep, that’s been a good thing for all of us..’ It’s fascinating how such a seemingly harmless piece of banter can take on much darker tones as information comes to light. For example, considering that Georgetown Prep has always been an all-boys’ school, ‘all of us’ clearly refers to only one gender, and considering that the cloud gathering over Kavanaugh now is all about his and his preppy mates’ treatment of the opposite sex, which may have at times bordered on criminality, this hiding of the truth about goings-on at the school becomes very disturbing. 

The intense focus on Kavanaugh in recent weeks has revealed someone who knows how to be evasive in a lawyerly way. The end result, before the scandalous claims began mounting up, was that Democrats and moderate Republicans, in Congress and out, had no clear idea of his views on Roe v Wade, presidential power and immunity, or any other key issue that concerned them. It can be argued that this evasiveness was a product of ‘due judiciousness’, the view that a judge can’t answer these general questions, but has to pass judgment on the facts before him in particular instances, but with so much at stake, it’s understandable that those with at least some progressive cells in their body would want a clearer picture. This has in fact been given by examinations of his record of judgements and legal opinions, which don’t provide much hope for progressives.  

More importantly, Kavanaugh’s evasiveness has been very much to the fore as allegations have come to light re his high school and university years. In the case of his most recent appearance before the judiciary committee, this evasiveness has been mixed with, and sometimes masked by, a belligerent and, in my view, self-servingly mawkish tone which I didn’t find conducive to truthfulness. Most importantly, and, I feel, decisively, he managed to avoid answering the question as to whether he would be prepared to submit to an FBI investigation. Not once but on five separate occasions when questioned on the matter. In spite of my squeamishness, I did witness him doing this on one of the cable networks, and to me it was clear what he was doing. As a person who has himself been falsely accused – of a crime even more serious than anything alleged against Kavanaugh – I know how I feel about police investigations – that they should be done as promptly and as thoroughly as humanly possible, and I would certainly have been prepared to testify to the highest authorities under oath many times over to clear my name, and was in fact desperate to do so. And since there were no witnesses to the allegation made against me, I would certainly have been happy to have any and all witnesses to testify to my character in respect of violence, or my accuser’s character in respect of truth-telling. But, being a ‘nobody’, accused by a nobody, I had to sit and by and watch the police do virtually nothing, until forced to do so, after which the case was thrown out. So Kavanaugh’s refusal to answer that question, and his obvious whitewashing of the period in question, can only be explained one way. Innocent people just don’t behave like that, unless there’s something very wrong with them. 

The fact is, Kavanaugh’s obfuscation is incredibly telling, and the majority Republicans, who have now ‘permitted’ an FBI inquiry, ‘limited in scope and time’, are still doing their best to ram through the confirmation ‘no matter what’, according to the dictum of the egregious Mitch McConnell. This is not an investigation which will probe all the facts in the case, because it is limited by a partisan party. Moreover, the recent appearance by Kavanaugh was conducted under oath, and a number of classmates have since come forward to point out that he told lies under that oath, about his drinking habits, which he massively downplayed while also talking, strangely, at length, about the pleasures of beer. He presented himself as a church-going, highly studious, sporty type whose love of beer wasn’t excessive. Classmates have come forward to say that he was very often drunk, that he was a mean drunk, a sloppy drunk and so forth, and that he therefore lied under oath, which should be immediately disqualifying. 

However, having said that, it’s likely that the FBI will not be investigating his drinking habits, they will only concern themselves, as directed, with the alleged assault or assaults. Though it isn’t entirely clear, it seems, what the FBI’s brief is. In fact, as I write, the goalposts keep shifting. The White House and Trump seemed to broaden the investigation, then the media were told, no, it would remain limited, etc, and the FBI itself seemed confused about all the mixed signals. The bureau is supposed to take its orders from the White House in this instance, which is itself a worry. Not surprisingly, Trump is now heaping praise on the FBI – at least until their findings are presented.

But to return to Kavanaugh’s final ‘testimony’. It was belligerent and evasive, but also partisan and Trumpian – blaming the Clintons for a set-up and an ambush. It’s noteworthy that Trump was critical of Kavanaugh’s performance in his first hearing, and it’s well-known that Kavanaugh had been ‘rehearsing’ his performance at the White House, so this time he did his master’s bidding and played the witch-hunt card, thus managing to be offensively belligerent and obsequious at the same time – though why he chose to play to an audience of one, when the confirmation was largely out of Trump’s hands, is anyone’s guess.

The most recent development, which seems to be Trump’s own doing, is that the FBI is being given as wide a scope as it needs. From this, I’m getting the impression that Trump is preparing to wash his hands of Kavanaugh – to throw him under that very destructive bus the Yanks keep talking about – but the GOP is definitely not. Which leaves the FBI as the piggy in the middle, with the White House giving carte blanche, and the Republican Senators, under the whip of the disgusting McConnell, saying it all has to be wrapped up by Friday (October 5). It’s an impossibly ludicrous situation. Apparently the FBI is currently busy turning away an increasing number of people who want to speak to the agency about Kavanaugh’s drunken loutishness during his college days. It’s becoming increasingly clear that Brett was then something of a lout, and is now something of a liar. All in all it’s the behaviour of that class of people I recall from my own university days – students of the moneyed professions, behaving boorishly in the bar, mixing only with their own kind, man-spreading smugly, making a moat of waste and filth around their table as they disgorged food, drink, fag-ends and assorted packaging over the course of a fun evening. The sort of people worth avoiding, for a lifetime. Everything I’ve observed about Kavanaugh recently fits that picture to a t. Having said that, having been a loutish youth over thirty years ago isn’t a crime. Pretending that you never really behaved badly isn’t either. But, on the one hand, we’re not talking about criminality, we’re talking about suitability for a particular job, a job that clearly requires great integrity (as does the job of US President, but that’s another story…). On the other hand, the possibility of a serious crime is in question, and that won’t be properly investigated, because of the determination of McConnell and the GOP. So, if the GOP manage to get him confirmed, it will destroy the credibility of their party for a long time into the future – and I believe Kavanaugh can be impeached. Though he may have to wait in line. 

Written by stewart henderson

October 3, 2018 at 2:07 pm

the battle for justice – feeling impotent

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not in Australia

So while I await the DCSI’s long-delayed decision on my clearance, I’m a little too nerve-frayed to focus on something completely other than myself, and Trump’s downfall – always an easy topic. So, until that time, I can do little more than diarise, my neologism. So I might be drifting from my case to that of the Trump, and back. On my case, I’ve spoken to a criminal lawyer, a friend of a friend, who’s agreed to help me, and as he’s also a friend of my former lawyer in the original court proceedings, he may be able to access further documentation, the stuff I’ve been trying to get hold of.

What was of more interest to me, though, was his insight into the way this state government has weighted legislation, over time, to favour the accuser over the defendant in cases of alleged sexual abuse. Some would argue this is a good thing, because it’s surely fair to say that in the past, allegations of rape for example, have not been given the full treatment they deserve, in our patriarchal society. We’re at last much more prepared to believe the women, and I agree that women very rarely lie about such things. But very rarely doesn’t mean never, and I would stick my neck out to say that children are more likely to lie about such things than adults, though again such lies are still rare. In my case, the liar was a fourteen-fifteen year old boy, whose motives I made clear to the police and to my lawyer at the time. But of course I never had my day in court, to examine the matter, such as it was.

The problem, as the lawyer put it, is that there are some zealots within the Screening Unit of DCSI, and they may be the ultimate decision makers, rather than the coal-face workers who interviewed me back in early December. That interview went well, and I came out of it feeling confident. For the first time I had something equivalent to my ‘day in court’, and I foolishly fantasised that it would all be wrapped up within a week or two, in my favour. We’re now in the twentieth week since my review lodgement, and I’m beginning to share the pessimistic views of this lawyer and of a teacher colleague – ‘these bureaucrats really hate admitting they were wrong’. Not to mention the jeopardy they’ve placed themselves in, in terms of the suffering they’ve put myself and others through, and the resentment and the desire for compensation and damages they’ve stirred up.

All of which makes me think this could become a much bigger issue, even a scandal of sorts, if only it was possible to determine how many people are involved. If there are few – and I must bear in mind that false accusations are rare – then nothing may come of it. After all, these ‘complex cases’ mentioned in the Ombudsman email may be more like borderline infractions, where the level of seriousness is in question, not whether something actually happened or not. Even so, they may have enough in common with those falsely accused for us to make common cause, in some kind of class action. Teachers, care workers and others are having their careers and reputations destroyed for questionable infractions and false allegations that happened to make it into the court system, with no recourse, because the screening unit has decided to ‘err’ on the side of caution. And considering the truly vast numbers of people being screened nowadays, even a small fraction of innocent people being done down, because of this decision that it’s acceptable to commit errors, may amount to a substantial number.

Innocent people, people who know they’re innocent, are likely to fight very very hard against a system that treats them as guilty. Especially in a case such as mine, when they have reason to feel proud of their role as a foster carer, a teacher or whatever. If there is some way I can connect with other innocent workers who are being destroyed by a systematic approach of ‘erring on the side of caution’, in a screening system with increasingly wide application in the workforce, we may be able to persuade authorities of the justice of our cause.

Interestingly, I’ve been partly inspired in this more active approach by one of the most currently prominent Trump scandals. Michael Avenatti, the lawyer for pornstar Stormy Daniels, is preparing for a major fight to permit his client to tell the truth. He’s facing the full weight of a political machine that is determined to suppress this truth, and it’s his commitment to having his client tell her story and to be judged, not only by the canaille, to speak pejoratively, but by the discerning public, that encourages me. I’ve told my story to a very few ‘strangers’, including a couple of lawyers and a panel of two employees of DCSI’s screening unit, who are clearly not the decision-makers in my case. The principal decision-makers appear to be higher-ups who are more interested in the thinnest of documents with ‘nolle prosequi’ at their head. I would dearly love to have my story, undramatic though it might be, presented on 60 Minutes for all to judge, and my accuser, if he’s still accusing, can have his say in the court of public opinion too. I would have far more faith in that court, in which at least people get to be heard by their judges, than by this secret process, ideologically driven to ‘err on the side of caution’, which means basically erring on the side of the accuser. But it’s Avenatti’s aggressive fighting spirit that impresses me. I feel that spirit within me, but of course I don’t have much of an audience to bolster me, or any forum in which to fight. Clearly I face an uphill battle to be heard by even a nano-fraction of the public, but again I’m heartened that Avenatti has gotten at least six other women, victims of Trump (Daniels isn’t quite a victim in that she seems to have willingly had a sexual relationship with the Trump, pretty vomit-inducing in itself), to add support to his lying, bullying nature. A class action of some sort might help my case, just to highlight the fact that there are false allegations out there, some of them quite egregious in their nature and their impact.

I have no real way, though, of reaching out to others in my circumstances, and as a hapless loner, I doubt if I have the wherewithal – though I think I could act effectively as a spokesperson once a group was formed. Of course, given the moral panic about child sexual abuse and given the Me Too movement, it’s not an easy time for pleading innocence and victimhood as an ’empowered male’, but we should be pushing to at least get our stories (or non-story in my case – or a story about my accuser) heard, something which was never vouchsafed me during my court process.

Written by stewart henderson

March 19, 2018 at 1:33 pm