May 2017

Pirates of the Caribbean, an Arab Proverb, George Santayana, Donald Trump, Lolita and Game of Thrones: Oh My.

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Do the Facts Matter?

In the world of Pirates of the Caribbean, perhaps not so much. The Verge's review points out the woeful continuity problems that plague the current number of the series, Salazar's Revenge
But does it matter? If you haven't seen any of the previous films, perhaps not: the fans' conclusion is that the story is self-contained and entertaining. As to the lack of continuity, why worry?
An Arab proverb says, "If no one saw it, it didn't happen." In today's connected world this proverb would seem to be devalued, but that is not the case. In a world where privacy is aspirational and cameras ubiquitous, the lack of video proves the Holy Grail of criminal defense lawyers, the principle that absence of evidence equals evidence of absence. 
History, George Santayana said, repeats. But if Arthur was a legend, does it make a difference that Henry VIII was real? Protestantism would have flourished without him, but perhaps not so vigorously. Ireland remained steadfastly Catholic. But you could just as well claim that all of this was merely an occurrence of the flowering of the new gods and that our history stands not upon Rome and Western Europe but Valeria and the Seven Kingdoms. Either way, does it matter as you run to catch the bus?
The End of Eddy by French bestselling writer Edouard Louis is--what exactly? The French call it autofiction, a term not well known on this side of the Manche. American writer and Francophile Edmund White notes that autofiction "joins realist precision to confessional disclosure." When Louis was attacked by the French press, according to the Los Angeles Review of Books, 

"The book tipped off a storm of controversy in the French press, with some critics accusing Louis of vilifying a town and fabricating elements of his account. In response, he published photographs on his blog documenting his decrepit house and his childhood weight gain."

Wait a minute. Is Louis' book fiction or not? Memoir or not? Imagine if Nabokov had profferred a photograph of Humbert and Lola when his publisher had threatened to call 911. "Do the facts matter?' Noam Chomsky once famously asked. 
Apparently, not so much. Or maybe they do. Still, when asked, is this book truth or fiction? Is it A or B? Sometimes the best answer is "C."
What does Trump have to do with all this? Trump claimed that Obama wiretapped his building in New York. Denunciations and denials were immediately heard. As it turns out, no wiretap of Trump's building had occurred under Title 18 of the U.S. Code. This is a fact. 
But it is not the whole story. One of the consequences of having secret courts, like you do in the United States, is that you can never really tell what they are up to. As it turns out, there was a Foreign Intelligence Surveillance Court ordered interception targeting at least some persons at Trump's building. 
Wiretap? No. 
Interception? Yes.
But in both cases the government was listening in. 
This is why those who claim there was no wiretap are absolutely correct. And those who claim that the government was listening in are also correct. 
Sometimes the answer is indeed, "C."

The Verge review:
LARB Review:

And then of course, there is Triptych:

Trump, Nixon, Bandar Bush and South Florida Golfers: Oh my.

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First, it was gang-up on Trump when he said that the Obama administration wiretapped his building. When I heard that, I thought, OK, maybe not a Title 18 wiretap, but given all of Trump's international connections, they've got to be listening. Sure enough, it turns out that there were Foreign Intelligence targets in the building, a FISL court order had been obtained, and they were indeed listening in. Trump, not being a lawyer, used imprecise language. But he wasn't off the mark. 

I'm still trying to determine what General Flynn's crime was. Failing to register as a government agent? Lying to someone? If he lied to a federal investigator, he's in deep trouble. You can ask his former colleague General Petraeus or Martha Stewart. The fact that he had contact with "the Russians" as national security director doesn't bother me at all--that's his job. I would hope that he had contacts with them.
So let's say Trump says to Comey, "lay off Flynn. If you persist I'll pardon him anyway." Doesn't Trump have the right to say that? How is that obstruction of justice? You don't have to wait for a conviction to pardon. Look at Ford's pardon of Nixon, or Nixon's pardon of POW's for any violations of the UCMJ committed while in North Vietnamese custody. 
Why all the fake outrage about Trump's meeting with the Russian ambassador? I would hope that they would be in contact. Similarly, if Trump can work out an arrangement with Putin that leads to a diminution of tensions in the Ukraine or Syria, I'm all for it. What's wrong with that? Most leaders of foreign governments have the U.S. Ambassador on speed dial. Was there any outrage about "Bandar Bush?" No. So what's up with this Russian-phobia?
And where did the information about the content of Trump's meeting with the Russian ambassador come from, the substance of the claim that Trump leaked classified information? From Israel. I'm not going to pile on Israel, but let's say it had come from, say, Ecuador. There would have been outrage and demands for an investigation as to how Ecuador had learned about these private discussions. Instead, there's nothing and the Wall Street Journal, the paper that broke the story, doesn't even mention Israel's involvement until other media sources do. How did Israel know? If Israel knew, why didn't our intelligence services know? It's a hall of mirrors. 
It's almost as if the anti-Trump forces are doing their best to restart the Cold War. The Russians hacked Hillary and gave Trump the election--where's the evidence? The Russians are bad. Putin is a murderer. Look how he's backing Assad. While we, with our ally Al Qaeda, fight Assad. Oh, wait. How did that happen? 
I am not a Trump supporter. My complaints against Trump's performance in the White House come from another direction altogether, and are, I believe, much more serious than blaming everything on the bad old Russians. 
Trump is a 70-something South Florida country club golfer. This is a species of which I have some familiarity. That he is spending so much time on the course? Not surprising. This is what these characters do. That he seems to change course so quickly? Again, not surprising. Usually these characters believe that anything spoken during a game of golf is somehow more worthy than when spoken elsewhere, and a personal relationship forged between the 1st tee and the 18th hole is worth almost more than any other. And the last thing you heard, especially if you heard it on the golf course, is probably true. Yesterday's position matters not. Xi Jinping's visit to Mar al Lago was a master stroke on his part.\note After the golfing weekend, Trump changed his policy on China completely. If you want to predict what will happen during the next four years, dust off those Ping irons and keep your ears to the South Florida country club ground. \note
Meanwhile, the Republicans are tearing down health care, making the exact same mistakes that were made when Obamacare was enacted by instituting untried programs with no idea as to whether they will work in fact and destroying the goal of universal coverage by permitting insurance companies to offer healthcare only to the healthy. Senator McConnell said that his colleagues were surprised when only 20 or so States formed insurance exchanges under Obamacare. They had assumed that all fifty states would jump for joy at the opportunity. And why weren't President Ford's "All Savers" certificates a success? Because neither politics nor law can overrule the invisible hand of supply and demand.
The belief that Trump is in trouble means only an over-reliance on the same media outlets that predicted Hillary Clinton's triumph.
Noam Chomsky stated the other day that the real revelation of the election was that, had it not been for Democratic party corruption, Bernie Sanders would have been the nominee. Can you imagine Trump in a debate with Sanders? It would be President Sanders today. 
\note: A one-stroke penalty for the unintentional pun. The Chinese government at best only tolerates the game, and the last important Chinese official to openly play spent many years under house arrest.
\note: Promotional consideration paid by Ping Golf Equipment, S.A. de C.V.

Jeff Sessions and Xuan Loc

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Without assistance from Richard Nixon or his successor, Gerald Ford, in April, 1975, President Nguyen Van Thieu ordered the Army of the Republic of Viet Nam's 18th Division to hold the town of Xuan Loc "at all costs." There were heavy casualties on both sides, but the Division was unable to hold the town. There was now nothing between North Vietnamese Army units and Saigon, only one hundred kilometers away. The end of the Vietnam War finally came on April 30th.
The Vietnam War was not the only war fought by President Nixon. Some might say that Nixon started the War on Drugs as well. At first a minor cultural reaction, Nixon merged Harry Anslinger's Bureau of Narcotics and Dangerous Drugs with other governmental units and formed the Drug Enforcement Administration under the Department of Justice. The war was reenergized when George Bush, who needed a war--and would soon get two--complained about crack sales taking place within sight of the White House. 
Mandatory minimum sentences were legislated. Surely, these would scare people to "just say no" and leave the drug trade. Crack cocaine, which like a rose is a rose is cocaine, nevertheless merited enhanced penalties. The Sentencing Reform Act of 1987 made plea bargaining contracts of adhesion and defense lawyers superfluous. All of these measures fell most heavily on black people, just as the laws were designed to do when they were first enacted in the 1920's, when America saw prohibition, whether of drugs or alcohol, as the solution to all its problems. 
Finally, sanity started to slowly creep in. The federal government ceded more and more criminal justice enforcement to the states, where perhaps more mindful of the devastating effects on American families, the wisdom that the cure was worse than the disease had already been achieved. Some states started to decriminalize possession of small amounts of marijuana. The opponents of this decriminalization were right: it did lead to other liberalizations, thankfully.
Acknowledging the needs of older Americans whose long experiences with marijuana proved that it is no worse than alcohol, some states started to permit the distribution of marijuana as medicine, an unthinkable possibility only ten years before. Now Colorado, Washington and California have completely legalized the possession and sale of marijuana and have been joined by twenty-three other states and the District of Columbia to remove the blanket drug prohibition. In response, federal enforcement turned elsewhere, mandatory minimum sentencing was reviewed, and that strange constitutional entity, the Sentencing Reform Commission, even revised downward the penalties for crack cocaine. 
The new Attorney General, Jeff Sessions, wants none of this. This week a memorandum went out to all United States Attorneys demanding strict enforcement of these soon to be archaic drug prohibition laws. Sessions wants his Xuan Loc. He wants to defend these archaic, racist laws at all costs. No matter the billions of dollars and the devastation that these laws have caused, no matter the horrible pain that Adam Smith's invisible hand has caused Mexico due to the irressistible law of supply and demand.
Sessions' and his ilk will lose this war as well. His rescript to U.S. Attorneys will someday be seen as the last gasp of the drug war, a war that was fought to distract from the Vietnam War, to burnish George Bush's reputation, and to decimate black communities while keeping white people safe. The drug war was fought for no good reason and should be consigned to the trash can of history. 

In the absence of footnotes: not everyone remembers that Pres. George H.W. Bush was a fighter pilot in WW II and was shot down in the Pacific. Compare this to Lyndon Johnson, who had not a little to do with the Vietnam War, and who had to engineer a seat on a troop transport that briefly flew through a war zone so that he could say he had been in battle, just like Brian Williams. Early in his presidency, Bush had to deal with the so-called "wimp factor," a belief that he lacked courage or strength. The two wars mentioned are the illegal invasion of Panama (the U.S. had signed pledges not to invade and the Treaty of Neutrality) and the first Gulf War. The laws against cocaine were first passed in the 1920's and were racist in nature. Proponents told tales of black men ravaging white women while on the drug. Cocaine is defined in Title 21 as any product containing methyl benzoyl ecgonine, C17H21NO4. Both powder cocaine and crack cocaine contain this compound. "A rose is a rose is a rose" is a famous observation made by exile American writer Gertrude Stein. Harry Anslinger's BNDD was formed because J.Edgar Hoover refused to let his agents become involved in the notoriously corrupting drug trade. Anxious to get in on the action in Bush's renewed drug war, these restrictions were abandoned to facilitate the FBI's entry. Ironically, the morphine Anslinger tried to keep from Americans was needed by him during his last illness.
The Sentencing Reform Commission is an Article III, not an Article I, federal agency. The constitutionality of its existence was questioned from before its creation. The sentencing guidelines the Commission promulgated were originally obligatory and were so high that laws such as the "Drug Kingpin" statute, another failed enhancement effort, became irrelevant. The Sentencing Reform Act, passed in 1987, abolished parole for all federal crimes and required an offender to serve 85% of the sentence imposed.
BTW, apparently even though Brian Williams' helicopter wasn't shot at, other helicopters in the formation were. As far as I am concerned, this is good enough. For what a view of what nightly shelling was like in Iraq, Love and Rockets: An American Lawyer in Iraq is available on, at Barnes & Noble and wherever you buy books.

A Few Thoughts about Publishing

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The bookselling business in the U.S. is a consignment business because of the fact of returns. There are fewer and fewer independent bookstores left; is marketing to them worth the trouble? In 1990 there were 10,000 independent camera specialty stores in the U.S.; now there are less than 250. The 10,000 number meant an automatic sale of 20,000 units whenever Nikon or Canon came out with a new model. An order for ten thousand copies means "happy days are here again" for an indie publisher-but unless you're selling in the chains or Amazon, it's not going to happen.
The association of independent bookstores has something like 500 members. Look up "bookstores that tweet": there are less than 300. This is for the whole country. Amazon has decimated this trade. Borders is gone. If you look at the independents' sites, too many try and copy Amazon--"we can special order"--but they simply can't do it that well. Who is doing well? Children's booksellers. Textbook publishers. And those who somehow have found a community niche. Books & Books in South Florida is growing, not shrinking, and they're not the only one. But they also have a coffee shop and a restaurant attached to the bookstore--like many Barnes & Noble locations. Others, like the Seminary Co-op in Chicago, are trying to forge their own path. 
The issue of distribution, I'm afraid, comes down to money for advertising. Online advertising is ineffective; print advertising is expensive. You want to send out a four color sales sheet (you need to find out what that is if you're going to be publishing books)? Color duplicating at the local Kinko's is going to run close to $1/page. You might get it cheaper elsewhere. Add $1 for first class mail (anything less ends up in the trash). Twenty five cents for the envelopes. You want them printed with a logo? Forty cents. You could make up your own labels--$25 for sheets if you want to look semi-amateurish. A real print stationery print run? Figure $250 at least. Use that stationery run to add a personalized letter. Costs quickly add up. 
You want to do a book tour? You might appear at several competing stores in a large city like New York or Chicago; but in many towns there is but one independent. Unless you're selling at least fifty books at $20/net per appearance, you're going to lose money--have you priced Motel 6's lately? And sure, it's easy to make the occasional appearance in your own city and environs, but you're not going to break out nationally if you limit yourself to that. 
This is an issue which faces not only indie publishers, but mainstream publishers as well. It wasn't that long ago that the sale of 10,000 copies of narrative fiction was all that was required to make the New York Times Bestseller list (but maybe not, you know that the list is an editorial construct and not necessarily based on sales, right? Take a look at William Peter Blatty's unsuccessful lawsuit against the NYT if you still harbor any belief in the accuracy of its lists). Many traditional publisher's mid-list authors have to struggle to get the house to promote their books. If anything, this is the biggest complaint that authors have, and its the same for both indie and traditional publishing. 
An often-forgotten sales outlet for books is libraries. Unlike bookstores, the number of libraries in the United States is in the five figures. I don't know if anyone has compiled a complete list, because many libraries are considered specialty libraries and there isn't a single association that every single library must join. Cities have libraries; counties have libraries (1800 or so in the U.S.); universities have libraries (and sometimes are so big they have library systems)--compared to bookstores, it's a big number. Nonfiction and how-to books are going to do much better in this space than in indie bookstores or chains. 
After all, given that it is completely a consignment business, it is the publisher who takes the risk. If you do get that ten thousand copy order, you are going to have to come up with the cash to finance a print run. There are banks that, assuming a pre-existing relationship, may be happy to factor your purchase orders, or introduce you to a factor, or lend on the basis of the purchase orders--but otherwise you're going to have to finance that run. If you can manufacture the books for a dollar a copy--and that is not necessarily a given--that's ten thousand in cash. Priced media mail lately? Another $2500.
Speaking of consignments, why not fill out a "national independent booksellers consignment form" and send ten copies to say, the top one hundred independent booksellers? The aforementioned Books & Books in South Florida, Tattered Cover in Denver, Quimby's in Chicago, the hallowed City Lights of San Francisco? Nope. Each one of those establishments has its own rules; there is no such thing as a national form, and if you're not a local author, many of them have no desire to carry your wares. 
You could just send copies anyway. They might throw them up on the shelves. What about getting paid? This is another complication. Write and ask about the status of the books you sent and all too often you'll be told that none sold. Even on the day when you walked into the store and paid cash for your own book, somehow no one ever bought the title. I'm not suggesting that these fine booksellers are less than ethical, but "nobuddy perfek." Consider these imperfections in the system a hidden promotion cost.
Does freedom of religion mean freedom to kill? Triptych by David Augustus Ball is available from Andalus Publishers, your local indie bookstore and Amazon.
Donald Trump is a columnist's dream. A story about Pablo Neruda in Rangoon touching on the British intelligence services will just have to wait while the panic over the dismissal of the FBI director plays out. Bill Clinton also fired the FBI director. Did you know that there is no provision in the Constitution for a federal police force? Why did the makers leave out this important constitutional office. You mean, it's not a constitutional office? Oh my...

Flying Felonies: United Airlines and Form 8300

It was a bad month for United Airlines. Dr. Dao was dragged off an airplane flown by Republic Airlines, but United got the blame nonetheless. The media attacked United's passenger bumping rules, but Dr. Dao wasn't bumped for another passenger. United's frail CEO issues a "screw 'em" memo only to have it blow up in his face.

But it gets worse. United has now publicly proclaimed that it will commit federal felonies while enticing passengers with cash and later flights. No, I am not exaggerating.
Despite the fact that a) Dr. Dao wasn't bumped (that is, he wasn't removed from the flight for another passenger, but instead to make room for Republic Airlines employees; and b) the flight wasn't even operated by United, it was operated by Republic (who is also an American Airlines contractor) and finally c) the bumping compensation rules don't apply in this circumstance, nevertheless United has now empowered gate agents--it's not clear whether this applies to Republic gate agents or not--to offer the sum of up to $10,000 if the passengers consent to give up their seats for a later flight.
"That's an interesting number," I thought.
Then, United backtracked, as it has done so repeatedly in this case, and clarified that "only" $9, 950" would be offered.
That's an even more interesting number. Why?
Laws are initially proposed and targeted against the bad guys before, inevitably and eventually, they are used to target the average Joe. One of these laws, passed in the 1980's, was the Bank Secrecy Act. That law, combined with Internal Revenue Service regulations, require the filing of an IRS Form 8300 whenever a person receives $10,000 in cash. If you "structure" the transaction so that the amount is lower than $10,000 in order to avoid filing the 8300 form, well, that's a separate crime. Why would United pay $9950 instead of $10,000? There's only one reason--to avoid filing the 8300 form. Whether wittingly or unwittingly, United has now openly advertised that they will "structure" transactions in violation of federal law. In short, they will commit a federal felony to get a passenger off an airplane.
When the federal government targeted the criminal defense bar in the 1980's seeking the disclosure of client identities, few stood up for them. The ACLU was out to lunch, as were other civil liberties groups. After all, the lawyers defended "bad people." If they were defending them in court, doesn't that make them "in league" with those very same bad people? Predictably, the courts ruled that the lawyers--and oh, everybody else, including car dealers, jewelry salesmen, commercial real estate brokers, etc.--had to file the forms whenever ten large in cash passed from hand to hand. A few geniuses, too smart for their own good, had the idea that they could avoid this onerous requirement by passing an amount "just under" $10k. In United's case, it's $9950. Some think it's "safer" if they keep the figure around $9000; or even $8000. Or $7000.
It's not. It's a separate federal felony to "for the purpose of evading the reporting requirements of section 5313 (a) or 5325...structure or assist in structuring, or attempt to structure or assist in structuring." Oops.
So how can United avoid charges of aiding and abetting money laundering? It's simple: pay with a check. It is exceedingly unlikely that gate agents will have access to ten thousand dollars in cash. But for public relations purposes, United wanted to get a big splash and so claimed they would hand out cash. Someone at United--where were their attorneys??--must have had a vague notion of the $10,000 requirement, but sadly, didn't get the structuring memo. So the PR office reduced the amount and in so doing, advertised its law-breaking.
The danger here is that United's example will lead many to break the law. I would guess that the only ones who really know about the structuring rules are the bad guys--but now the average Joe will think it's OK.
After all, United does it.

For a brief read about structuring in general, see ""