Saturday, August 18, 2018

Some Bodies Matter More Than Others: The Judith Butler Thing

This week I started an online petition calling for Judith Butler to resign as president-elect of the Modern Language Association. If you're a member or past member of MLA, I'd invite you to sign it and to share it as widely as you are comfortable doing. Here is a letter to the Chronicle of Higher Education making a similar case.

I started this petition because Butler and a bunch of other leading scholars sent a letter to NYU to intervene in a Title IX investigation in which a professor had been found responsible for sexually harassing a graduate student. [NOTE: Link opens Word document.] The case had already been adjudicated, and the verdict was in. Butler and various other big-shots were trying to lean on NYU to minimize the harasser's punishment. They should all know better. But what sets Butler's action apart is not just she was the first signature on the letter but that she explicitly signed as:

Judith Butler, Maxine Elliot Professor, Department of Comparative Literature, University of California, Berkeley, President-Elect, Modern Language Association (2020)

The last part is the biggest problem for me. Because the point of including that title is to add more clout to Butler's signature. That letter is about marshaling clout on the abuser's behalf. And it is beyond outrageous to use the Modern Language Association's collective authority to try to protect a senior scholar who's abused a junior one.

The other signatories of that letter have embarrassed themselves, maybe disgraced themselves. But they were not explicitly speaking as the leader of a major scholarly organization. Butler was. And that makes it impossible for her to lead that organization effectively after this.

I have no particular connection to this case. I don't know the victim, or the harasser, or Butler. I am an obscure scholar, rather than a star like Butler and her co-signatories. I am just a concerned bystander: a member of the MLA who has grown tired of the endless excuses made for sexual harassment in our profession. I heard too many of those excuses when I was a graduate student and couldn't speak up without ending my own career. Now I'm far enough along to have tenure and be safe from reprisal, but perhaps not so far along that I've completely forgotten how this looks from the bottom. If you're another scholar who's tired of the excuse-making and wagon-circling, please sign.

Most of the attention this case has gotten has been about the role-reversal angle, because in the accused harasser is a woman and the harassed student is a man. That's extremely rare. The vast majority of academic sexual harassment cases involve male professors harassing female students. There's also an unhealthy share of male students being harassed by other men and female students being harassed by other women. (For what it's worth, the victim in the NYU case is a gay man, a traditional target of harassment.) Female professors harassing men is not something that never happens, but it's very unusual, because that particular abuse of power turns out to be harder to get away with than the others.

But the gender switch didn't affect Butler et al.'s letter in the slightest. It slavishly follows the establishment playbook used to get male harassers off the hook. It talks about how brilliant and important the harasser is, it talks about what a great person the harasser is socially, threatens the university with blowback if they dare to punish the offender, and personally attacks the harasser's victim. It's the familiar structural problem of professors abusing doctoral students (who are extremely professionally dependent upon their dissertation director, and therefore extremely vulnerable to harassment) and then trying to use their pull to escape consequences. Meet the new boss, same as the old boss.

Many people have various beefs with Butler that I don't. Some people are hostile to feminism, and want to use this incident to discredit feminism. Some people are hostile to literary theory, and want to discredit theory. Some people are hostile to Butler over the boycott-Israel movement, and would like to see her discredited ... you get the idea. I don't share any of those agendas.

Judith Butler is very smart. Her work is useful. I've taught it to students, and would teach it again, this instance of bad behavior notwithstanding. Literary theory is useful and valuable. Feminism is great. And I have no position on the boycott and anti-boycott movements; I am much more interested in the fight against sexual harassment in the academy. The MLA should fight to protect its junior members. If it won't, it doesn't matter to me what resolutions the organization does or doesn't pass.

Nor do I think for a second that feminism itself is discredited by this incident. Butler, and the other high-powered feminists who signed that letter, are not the only smart feminists in the world, and you can find lots of feminists fiercely objecting to their behavior.

Men harassing female students is by far the biggest problem here. But you can't end that problem while giving the rare women who harass men a pass. Yes, women have much less power in the academy than men, and still face enormous misogyny. And that is exactly why letting an occasional powerful woman off the hook will make it impossible to stop men's abuses.

It will never be the case that women in the academy are allowed a set of privileges that men are not. Men will always get away with at least as much as women, and almost always more. There is no achievable future in which women can still harass students but men cannot. Social privilege doesn't work that way. (By the same principle, there is no achievable future in which queer faculty can get away with sexual harassment but straight faculty can't.) If you preserve the old excuses and dodges for a handful of abusive women, abusive men will keep running wild.

Precisely because the number of female abusers is so small compared to the number of female victims, gender-neutral enforcement of Title IX rules still represents an enormous win for women. Holding a small number or powerful women accountable is a small price to pay for protecting thousands, and it is literally thousands, of less powerful women.

Remember, abusers can't do it alone. They rely on enablers, and in academia the enablers have been extremely reliable. We talk about the abusers themselves and the administrators trying to make problems go away quietly. But the real infrastructure of abuse is provided by colleagues. Sexual harassment flourishes in our profession because the rest of us run interference. We look the other way. We hope the rumors aren't true. We give colleagues the benefit of the doubt, but give their victims only doubt. We write letters of support. We have a friendly word with the Dean. Or we just keep our head down and stay out of it, as if staying out were an act of neutrality. Abusers flourish in our field because of our collective connivance, because of what we do but most of all what we fail to do. As a dearly-missed professor once said to me about a case of sexual abuse in my old graduate department, "These are supposed to be enlightened guys, but they stick together like the fucking mafia." It's not any one criminal act that's the problem. It's the ongoing structure of conspiracy. And women, as well as men, have helped to protect the abusers.

The abuser in the NYU case is one person who harmed another. The letter trying to get that abuser out of punishment is an institutionalized response aimed at enabling future abuses. Protesting against one instance of punishment is only a means to the larger end of preserving senior faculty's privilege of impunity. That is what needs to end. No more letters to the deans pleading for harassers. No more lending our reputations to wrongdoers' cause. Judith Butler wasn't just standing up for one colleague in trouble. She was standing up for an old, corrupt, and long-standing way of doing business. The time for doing business that way is over. We should never look back.

cross-posted from Dagblog. All comments welcome there, not here.

Wednesday, July 25, 2018

The International League of Dark Money

Donald Trump and Vladimir Putin are bent on destroying the peaceful international order that the United States built after World War II. They're hostile to the World Trade Organization, NATO, you name it. But Trump is not the only complicit American here. Because Trump and Putin are champions are a very different, more lawless international order, which many wealthy Americans participate in and derive benefit from: the international league of dark money.

Whatever else does or doesn't bind Trump and Putin, they're united by their dependence upon international money laundering, which moves large amounts of cash across borders in disguised transactions. Putin's oligarchs routinely move their dirty money into the West through shady means, and Trump's real estate business has become heavily dependent on Russian customers whose money should not be examined too closely. The Trump Organization may not actually launder money, but they accept a lot of well-fluffed money straight out of the laundry room. Both Trump and Putin have strong vested interests in keeping the dark money flowing and keeping it out of sight.

They're not alone. There is a robust international infrastructure of shell companies, off-shore banks, and shady middlemen devoted to moving money around while disguising where it comes from. This is especially convenient for people who can't admit where how they got that money or even that they have it. Money laundering allows corrupt government officials in Russia or Nigeria to spend their graft in the West. It allows organized criminals to spend their profits from drugs, gun-running, and human trafficking. And it allows international terrorists to fund operations overseas. So there are strong reasons for the world community, working through the post-WWII international order, to close the flow of laundered money down.

Without access to money laundering, big-time criminals would not be able to use most of their ill-gotten money, because to spend it they would need to explain where they got it. Without access to money laundering, money stolen by corrupt officials could only be spent in the same country those officials help to impoverish. Without money laundering, terrorists could not support sleeper cells in foreign countries or fly volunteers to battle areas. A world where every bank transaction was transparent and on the level would be a better and safer place.

But the money-laundering infrastructure also enables tax evasion. (I mean, no one launders money so they can pay taxes on it.) And many wealthy and prominent people in America and the rest of the developed West use their legal resources to evade taxes. They use shelters and shell companies and foundations to avoid paying their full share of the tax burden, to pass on multi-million-dollar inheritances tax free, and to disguise some of the ways they spend their money. Take a look at the Panama Papers some time, which opens to a window on a single law firm's efforts to get around tax laws for its clients. You see both Russian oligarchs and Western celebrities and politicians, including a former British Prime Minister, in those pages. Lots of nominally law-abiding people rely on offshore accounts and tax havens and largely fictitious legal entities to keep from paying taxes like the rest of us. Closing down the money-laundering system on criminals and terrorists would also close down the tax-evasion system on otherwise legitimate rich people. After all, they're the same system.

Trump and Putin want a world where legal and financial accountability stops at every border, where moving money overseas moves it out of the authorities' sight forever. The existing maze of international loopholes, which already allows tens of billions of secret dollars to flow through anonymous bank accounts, is still too transparent for them. So they want to destroy any lawful international agencies which might have the tools to close down the dark money. They want a world without effective international institutions, because only international institutions can effectively fight money laundering.

But you will find plenty of well-placed Americans and Europeans who don't want international financial controls, either. They want their shell companies and make-believe charitable foundations and secret accounts in the Caymans. They might not care much for Putin. They might detest the jihadists or the Mafia or the Crips. But they won't support the steps necessary to close down Putin or the Crips, because that would mean closing down other businesses that they actually own. It is just one of the many ways that elements of our ruling class are complicit in Russia's attacks on this country.

cross-posted from Dagblog; please comment there, not here

On the

Sunday, June 10, 2018

What Kim Jong-Un Wants

What does Kim Jong-Un want from this week's summit from President Trump? More than anything else, he wants what he has always wanted, like his father and grandfather before him: to split the U.S. off from its allies South Korea and Japan. The worst part is, he is already getting what he wants.

Now, I am not in any way an expert on Korea. But no Korea experts are involved, or apparently allowed to participate, in Trump's North Korea summit. Trump himself has openly refused to prepare for this summit, raving about how his first impression of Kim's body language will tell him everything he needs. [Pro tip: if you are planning to make a crucial strategic decision based on an adversary's body language, do not let the adversary know that. Too late, I understand.] That I know more about Kim Jong-Un's goals than the President of the United States is a scandal. I'm just a random person who tends to remember what he reads in the newspaper.

One of North Korea's longstanding diplomatic goals, maybe on a tactical level their most important goal, has been bilateral peace talks with the United States, meaning two-way talks, just us and them. The United States has refused, insisting since the George W. Bush administration on six-way talks instead. And for many years, we did participate in those six-way talks, refusing North Korea's requests for one-on-one sidebars. Our official reason for demanding six-way talks has been that if the North Koreans are building nuclear weapons, all of North Korea's neighbors need a seat at the table. I mean, that's true enough.

The six-party talks from 2003 to 2009 involved the U.S., North Korea, Russia, China, South Korea, and Japan. Why would we insist on the presence on Russia and China, who aren't always particularly helpful to us? Because we refused to be in a room with North Korea without South Korea and Japan there. The North Koreans could bring their friends, because we weren't showing up without ours. If North Korea wanted to talk to us, they have to talk to our regional allies, too. Because we were never hanging Japan and South Korea out to dry. That was our longstanding, bipartisan position.

Trump's two-way summit gives the North Koreans what they have long wanted: a chance to deal with us separately from the South Koreans. Just giving them that is a major concession. A lot of people have focused on the fact that giving them a presidential-level meeting is also a massive gift, and that the normal plan would be for Kim to have to earn a face-to-face with POTUS by giving concessions and having a deal almost done. But any meeting with the North Koreans that doesn't involve the South Koreans is an even bigger concession, maybe the biggest.

Kim Jong-Un wants, more than anything, to get the United States out of his potential sphere of influence. Because what he ultimately wants is South Korea. He doesn't want to negotiate peaceful reunification. He wants to unify Korea by taking the rest of it over, and the thousands of American troops in South Korea make that impossible. If he could do that without a shooting war, negotiating reunification on his terms by using the threat of military force, I think he would. But he may also like his chances in a straight military rematch with South Korea. But he knows he can't fight us. He wants us to leave, so he can use his military muscle on South Korea (and, secondarily, to intimidate Japan). This is why there was a flare-up a few weeks ago after regularly scheduled joint drills between the U.S. and South Korean military. Kim hates that most of all.

Now a normal president of the United States roped into two-way talks with the North Koreans would still not sell the South Koreans out, or the Japanese. Obama and Bush refused to hold two-way talks with Kim's government, but if they had they would have kept America's commitments to its allies clearly in mind. But those commitments have never fully entered Trump's mind. He does not value America's international commitments and instinctively dislikes them. Jis recent misbehavior at and after the G-7 summit makes that all too clear. And Trump is, unfortunately, stupid. He is more than capable of giving away Japan and South Korea's security without thinking.

In fact, he is stupid enough that he's eager to do that. He's already mouthed off about pulling all US troops out of South Korea, which would be Kim Jong-Un's geopolitical wet dream, and Trump is not smart enough to make Kim trade for that. He's talked about that as something he wants. It's like holding a summit with Fidel Castro in 1964 and suggesting, during the run-up to the meeting, that it might be easier just to get rid of Miami.

Can Trump be trusted to protect South Korea's interests? Two years into his administration, he has not appointed an ambassador to South Korea. I don't mean hasn't gotten one through the Senate. I mean, hasn't given the Senate a name. Any name. And Japan is one of the G-7 countries at which he was venting his intemperate toddler fury this week. You tell me: can a man who gets into a fight with our closest ally over milk be trusted to protect the security of our Asian allies?

Kim Jong-Un has already won. This week, he gets to find out how much he's won.

cross-posted from Dagblog. All comments welcome there, rather than here.

Friday, June 08, 2018

Zero-Sum Trump and the Chumps

I used to be close to a pair of senior citizens who'd retired from long, prosperous careers as bookies. And after a while I began to realize that, although they were both still extremely sharp, they were not especially good with money. They weren't catastrophes. They didn't go broke with bad investments. They just never did as well as they should have, almost never got the full value from a deal. They had both done very well in an illegal business, but they seemed weirdly unable to make an honest buck.

My friends saw business as a strictly zero-sum game, where they could only gain if someone else lost. The way they saw it, there was a fixed amount of money floating around the world, and you had to grab as much of other people's as you could. This is a perfectly accurate approach to betting on the third race. Gambling is a zero-sum proposition. One party loses, the other wins, and absolutely nothing of value is created. A fixed amount of money just gets redistributed. There is no such thing as a deal where everyone comes out ahead. You get ahead because someone else screws up. Every transaction is ultimately somebody's mistake.

What my older friends could not get their heads around, or on some level couldn't believe, is that there are deals that can make everyone involved richer, bargains that are wins for both sides because they create value. Plenty of perfectly honest people have trouble with this idea, too, and subscribe to the fixed-amount-of-dollars-in-the-universe idea. You can run a decent small business from basically that perspective. But our entire economy is based on the fact that new wealth continues to be created. The country as a whole gets richer. There is more money than there used to be, because there are more things for money to buy. (What people who get freaked out by the fact that money changes value don't understand is that it's about the relationship between the amount of money and the amount of things available to purchase with your money.)

Most business people who succeed on a large scale do so by looking for deals where everyone can profit, not because they're altruists but because those are deals that other people want to make. You can make money off deals where the other side also makes money, and everybody's happy, and then maybe you can use some of the profits to make more mutually-profitable bargains! Success! Capitalism! Whoo hoo! My friends had trouble seeing those deals, because, I think, they kept asking themselves which party was the sucker here, and assuming that it might be them.

The current President of the United States also subscribes to the zero-sum, fixed-amount-of-money view of business. This is really strange considering he put his name on a book called The Art of the Deal, but it's clearly true. Trump does not believe in win/win propositions. He sees the world as win/lose. It explains a lot of his business behavior, and a lot of his business setbacks. It explains, most of all, why most large New York banks will no longer lend him money. Donald Trump does not actually think about business like a businessman. He thinks about business like a con man.

His obsession with trade deficits is pure zero-sum. If you think of there being a fixed amount of trade in the world, a fixed amount of value to pass back and forth, then deficits and surpluses are all that matter. More money is going out than is coming in! Disaster! But if you think of trade as a pie that continues to grow, letting America keep taking more slices even if it runs a deficit with this country or that, then trade deficits aren't the whole story. You want there to be more international trade, not less, because you want that pie to keep growing. Trump imagines a pie whose size is fixed by immutable law, which can never get larger (wrong) or smaller (dangerously wrong), and he's fixated on trying to get a bigger slice than the next guy. And the next guy turns out to be Canada.

(Now, free trade has its problems, because it isn't just about both countries doing well. You need to take care of displaced workers inside your own country, and we haven't. But Trump is never going to fix that, because his zero-sum attitude applies to the working class, too. For the poor to do better, Trump assumes, the rich would have to do worse, in exactly the same amount, and he has no interest in that at all.)

So, Trump is going to the G-7 summit with our six most important economic allies (and not just economic allies) enraged with him. This, to a reasonable businessman, would seem bad for business. To Trump, it's good. Because in Trump's zero-sum, you-can-only-win-what-others lose world view, there are no actual allies. How could there be? If everything you gain comes out of their pocket, and everything they gain comes out of your pocket, no one can actually ever be your friend. This is stupid and short-sighted, but well. There we are.

Trump is incapable of understanding that our trade relationship with, say, France, could ever be good for both the US and France. That our trade relationship with France actually has been good for both the US and France, for more than seventy years, does not matter in this calculation. It doesn't matter to Trump that something is obviously true, because he doesn't see how it could be true, so it must not be. Are you trying to play him for a sucker?

Multiply this mistake by six, then by a hundred. Trump misunderstands every single one of our trade alliances. All of them. He sees all of our long, mutually-profitable relationships as just so many people with their hands in our pockets, which is why he hates our allies and lavishes praise on our enemies. We don't have trade deal with our enemies, so they're not taking advantage of us like, say, Canada. Trump is on the road to a pointless destructive trade war because he doesn't actually believe in capitalism. He doesn't believe in economic growth. He thinks all of that is a cover story, a scam. He does not view the world in capitalist terms. He views the world like one of the small-time mill-town bookies of my youth.

Sad to say, my retired bookie friends, much as I loved them, would probably have screwed up the G-7, too. They just could not think big enough. But to give them their due, they would never have lost money running a casino.

cross-posted from, and all comments welcome at, Dagblog

Tuesday, April 10, 2018

Don Corleone's Guide to Attorney-Client Privilege

So the President of the United States is very concerned, and very confused, about attorney-client privilege. Let me try to explain, using the example of Tom Hagen from The Godfather. Why The Godfather? Two reasons. First, I want to. Second, I have a terrible suspicion that some of Trump's misunderstanding comes from watching the Godfather movies. (He does love TV.) Trump reportedly believes any meeting that has a lawyer in the room is protected by attorney-client privilege, and oh my sweet God is that not true.

Tom Hagen, as you know, is the Corleone family's unofficially-adopted son, a lawyer who doubles as the Corleone Family's chief lawyer and its consigliere, or criminal adviser-in-chief. No real Mafia organization has ever used an attorney as consigliere. It's just a pun (consigliere means "counselor," which Americans use to address lawyers), and a bit of narrative efficiency. Puzo uses one character to do two or three different jobs (Puzo's consiglieres also do the job of Mafia underbosses) so that he has one well-developed character instead of three sketchier minor characters. But Mafia consiglieres are most definitely not attorneys.

That said, how much of what Hagen does in The Godfather would be covered by attorney-client privilege?

None of it. Basically, not a damn thing.

Now, I am not a lawyer. I am also not a racketeer. But I think I've got a basic layman's grasp of the principle involved here, which is: You are not allowed to use your law degree to commit crimes. Get real.

Criminals are allowed to have lawyers. But lawyers are not allowed to be criminals. The Crips can have an attorney. But attorneys cannot join the Crips.

What this means, in practice, is that if you are accused a crime, even if it's something you actually did, you can hire a lawyer to defend you. And that lawyer cannot tell the authorities about things you reveal while preparing your defense. Attorney-client privilege protects your conversations with your attorney because otherwise you couldn't use an attorney. (A defense lawyer who tells the prosecution incriminating things about you is worse than no lawyer at all.)

On the other hand, if you are planning a crime and you ask your lawyer to help you plan it so it will work better, that is not attorney-client privilege. That is, what's the phrase, a criminal conspiracy. In the same way, if you're committing an ongoing crime and you involve your lawyer in it, there's no privilege involved. That's not an attorney. It's an accomplice.

So, let's say hypothetically that Don Corleone, the Godfather, is accused late in his life of a murder he committed in his youth, in which case he can retain Tom Hagen to defend him. Hagen would not be conspiring with him; he would be defending him in exactly the way the law envisions, and they would enjoy attorney-client privilege. This would allow Don Corleone to admit, privately to Hagen, that he actually did shoot Don Fanucci to death back in the day; he wouldn't have to lie to his lawyer and pretend to be innocent. Then Hagen and Corleone could effectively strategize about what case the prosecutors might have and what evidence there might be. Hagen could ask the Don what he did with the murder weapon, and Don Corleone could tell him, so Hagen could decide how likely it was that the police had found it. (Answer: probably not.) He could ask if the Don had used accomplices who might rat him out. (Answer: no. Tessio and Clemenza suspected, but weren't involved and didn't know anything.) This isn't pretty, but it allows the accused criminal to defend himself in court. And the prosecutors could not then haul Hagen into court and force him to tell them what Corleone said about the gun. That's how attorney-client privilege works.

If on the other hand, Hagen and Don Corleone have a conversation about beheading a horse in order to intimidate a Hollywood producer, that is not an attorney serving a client. That's two gangsters conspiring to commit a crime. Hagen can't play the attorney-client privilege card.

Hagen and Don Corleone actually know this, which is why they behave like criminal conspirators rather than attorney and client. Corleone carefully gives his instructions to Hagen in private, with no witnesses and nothing written down, so there is no evidence. (The horse-beheading is presented as a kind of gangster magic trick, where we can't see either man give the order or even see when Hagen had time to communicate any instructions to confederates. "Could you have your car take me to the airport?" is the construction of an alibi.)

Later on, when Don Corleone is incapacitated, Hagen sits in on a five-person strategy meeting where at least three murders are ordered. Hagen can't claim attorney-client privilege for any of that. Passing the bar is not a license to kill. Hagen is sitting there when his foster-brother Sonny orders a disloyal subordinate named Paulie Gatto killed. If the Gatto murder ever went to trial, Hagen would not be a lawyer but a defendant. Then Hagen is part of a more involved discussion about whether and how to kill a rival mobster and his pet police captain. Hagen is not only party to that decision but party to a detailed discussion of methods. He cannot pretend attorney-client privilege here either, for a simple reason: he is committing multiple felonies.

If you're trying to solve the Sollozzo-McCluskey murders, you probably need to flip one of the five guys who were in the room when the plan happened. But a fictional detective might have some luck looking at some of the paperwork. Someone arranged for the trigger man (Michael Corleone) to go directly from the scene of the crime to a ship bound for Europe with a false passport. That means someone acquired the passport, and the boat ticket, before the murder. That's a conspiratorial act; it's done with foreknowledge of the crime, in order to abet it. It is part of the murder scheme. If Hagen purchased the passage, or the passport, through his firm, the police could raid his firm for that evidence. Attorney-client privilege would not apply.

Also, the Corleone Family clearly does a lot of boring, paperwork-based crime to run their operation. They pay off large numbers of judges and politicians. (Don Corleone is described as extraordinarily good at bribing and corrupting public officials.) They launder their illegal profits into seemingly legitimate enterprises. They evade taxes, for the inevitable reason that they cannot declare their annual income from gambling, loan-sharking, and extortion. To the extent that they do any of this through Hagen and his firm, those activities are not protected from law enforcement. They're crimes, and if the authorities in The Godfather got wind of them, Hagen's Manhatttan law office would be vulnerable to a raid by the FBI, directed by, well, by the US Attorney for the Southern District of New York, the same US Attorney's office that raided the real Michael Cohen's home and office yesterday.

Which brings us to where we are today. The FBI and Department of Justice are especially cautious about piercing attorney-client communications, and err on the side of assuming they're privileged. But attorneys whom they investigate don't have much cause to complain. Being a lawyer does not mean you're allowed to help your clients evade the law. You don't have a license to launder money. You don't get to violate tax laws for your clients, or election laws. In fact, slow down with me for this one here, you don't get to violate the law at all. Because first, it's the law, and second, you're a lawyer. You know, an officer of the court. You are even more bound to obey the law than the rest of us. But then again, what do I know? I'm not an attorney. I'm not even a crook.

cross-posted from Dagblog; please comment there, not here