November 2015 Archives

Veterans Day, 2015

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       On this Veterans Day, it is important to honor all of our veterans for their service and sacrifices. Many young people will not know that, prior to World War II, this day was called Armistice Day - in honor of the "war to end all wars" - World War I. Obviously, that designation was a misnomer.
            As we sit in our comfortable offices and homes, we also need to reflect upon the terrible toll that wars inflict upon a country and its citizens. Since the founding of this Republic, more than 1,300,000 military have perished in all of the wars, here and abroad, in which this country has been involved.  In addition, the lives of the loved ones and those who have been left behind have been forever profoundly diminished and saddened.

          Since the events of September 11, 2001, this country has been continuously involved in two major misbegotten foreign adventures and a series of other counter-productive and disastrous incursions in the Middle East in which we are viewed as the invaders and in which we had little prospect of  achieving "favorable outcomes." In addition to the 6700 military whose lives were lost, thousands more have been physically injured or traumatized, and hundreds of thousands of innocents in Iraq and Afghanistan have been killed and maimed.

        When all of the accounts have been tallied and reconciled,the U.S. wars in Afghanistan and Iraq will cost taxpayers $4 trillion to $6 trillion, including medical care for wounded veterans and expensive repairs to a military depleted by more than a decade of fighting, according to a study by a Harvard University professor Linda J. Bilmes, in a report that was released in March of 2013.

    According to a another recent report prepared by the Peter G. Peterson Foundation, the United States today spends more on defense than the next 8 countries combined. "Defense spending accounts for about 20 percent of all federal spending - nearly as much as Social Security, or the combined spending for Medicare and Medicaid. The sheer size of the defense budget suggests that it should be part of any serious effort to address America's long-term fiscal challenges." The report quotes Admiral Mike Mullen, the past Chairman of the Joint Chiefs of Staff, "The single greatest threat to our national security is our debt."

           As of August 2013, despite the putative end of U.S. involvement in Iraq and the winding down of the of U.S. military presence in Afghanistan, there were approximately 1.43 million active-duty military personnel on duty in the armed forces of the U.S. States and more than 850,000 in the active duty reserves of all branches.

         For the fiscal year 2015, the U.S. Department of Defense and military-related budget is $756.4 billion. That sum includes $495.6 billion for the base budget of the Department of Defense; $85.4 billion for Overseas Contingency Funds for the wind-down of the War in Afghanistan;  $175.4 billion for defense-related agencies and functions; $65.3 for the Veterans Administration ; $42.6 billion for the State Department; 38.2 billion for  Homeland Security; $17.6 billion for FBI and Cybersecurity in the Department of Justice; and $11.7 billion for the National Nuclear Security Administration in the Department of Energy. Because of the newly announced initiative to confront ISIL, that estimate is likely to be far too conservative.

           Further, a recent "Base Structure Report" of the Department of Defense stated that "the Department's physical assets consist of As one of the Federal government's larger holders of real estate, the DOD manages a global real property portfolio hat consists of more than 557,000facilities (buildings, structures, and linear structures), located on over 5,000 sites worldwide and covering over 27.7 million acres." Most of these locations listed are within the continental United States, but 96 of them are located in U.S. territories around the globe, and 702  are situated in foreign countries.

            Currently also, the United States has active duty personnel stationed in more than 150 countries. While many of these deployments involve assignments to American embassies and special training projects overseas, the presence of U.S. active duty military personnel throughout Europe, and in Japan and Korea remains significant, sixty-nine years after the end of World War II in Europe and sixty-one years after an armistice was declared in Korea.

     More than 100,000 active-duty American military are presently assigned to these three regions, the cost of which is still largely borne by U.S. taxpayers. Because of the U.S. military shield,  the European countries, especially Germany, and Japan and South Korea have been able to invest in the modernization of their manufacturing sectors and to increase the number of their exports to the United States at a time when American manufacturing has been increasingly out-sourced to third world countries. Japan and Korea, in particular, have adopted onerous, restrictive trade policies that make it almost impossible for American automobile companies and heavy equipment manufacturers to compete successfully in those countries.

          Since conscription was ended as a result of the Vietnam War protests, and the idea of an "all-volunteer" military gained enthusiastic favor among military planners and defense contractors, ever fewer Americans have been forced to decide, from a very personal perspective, their support for foreign military adventures.

    As our professional officer corps has increasingly become composed of the children of previous officers, and the ranks of enlisted troops increasingly beckon to men and women to whom our country has extended few other options, the concept of the citizen-soldier has receded from the consciousness of most Americans. "Out-of-sight" has become "out-of-mind." For that reason, President Eisenhower's prophetic warning about the growth of the military-industrial complex has metamorphosed into our collective nightmare and has become a detriment to our ability to address urgent domestic needs. 

          War exacts a terrible toll on its perpetrators as well as its victims. We are all diminished as citizens and as human beings because of our indifference in the face of such horror. The best pledge that we can make to one another on this Veterans Day is to demand an end to our "welfare through-warfare" economy. We need to bring our troops home and support international institutions that will promote ways to create a more peaceful future for all of God's creation.

The Privatization of America

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        Once upon a time there used to be a clear distinction in the United States between the private sector and the public sector. The public sector included government all levels and the employees who worked in the public sector. The private sector included businesses and corporations that were privately owned.


 Image result for editorial cartoons about arbitration 


            Similarly, there was a clear distinction between public goods and private goods. Public goods are those services and entitlements supported by taxpayers and include public schools, the military, public safety, roads and public transportation, parks, conservation, Social Security and Medicare, to name just a few.  It was also assumed that, because they served the public interest, those services and goods they would were be considered separate and apart from the market economy even if, they provided direct and indirect benefits to the private sector.


             By contrast, in a market economy, private goods include those businesses, investments, and real estate for which the owners and shareholders are permitted to speculate and to attempt to maximize their profits and only indirectly, if at all, yield benefits to the public at large.


           Historically, government, including the judiciary, have been responsible for the protection and regulation of public goods. Government, especially the judiciary and the administrative law agencies at the federal, state and local level, and have been charged with the responsibility to ensure the equality of access of public goods to the citizens for whom they are intended.

             Earlier this week, The New York Times ran a three part series on the increasing use of private arbitration to resolve disputes. The articles are profoundly disturbing because they describe the increasing loss of access to the courts by ordinary citizens, the lack of parity in  bargaining power between those employers and corporations  who are able to impose arbitration clauses upon employees and consumers,  the lack of transparency and judicial review, and the coziness  between arbitrators and the corporations that regularly employ their services.

             The privatization of the American justice system is part of the trend since the end of the New Deal, but particularly since the advent of the Reagan eras, to privatize and gut the public sector and to turn government into an instrument to promote the interests of the 1%. Witness the proliferation in past four decades  for-profit entities that have been granted licenses and contracts to run public prisons, public schools, public transportation networks, and even to provide private operatives and services to the U.S. Department of  Defense and the CIA.     

            The continued decline in this country's investment in public goods is directly attributable to the "market-based" mythology that dominates current American political discourse. That mythology, which extolls unfettered Social Darwinism, seeks to minimize the role of government on the theory that, all evidence to the contrary, government is the enemy of prosperity. Not surprisingly, the advocates of this mythology also deny the notion of a separate public interest or choose to define it, if at all, as merely an aggregation of private interests seeking to maximize their self-interests.

             In his insightful book, What Money Can't Buy, Harvard Government Professor Michael Sandel warns that market values have begun to displace all other values in civil society. As the power of the market economy and its arbiters, through their ability to influence discourse in the public square, increasingly call the tunes to which our political leaders feel obliged to dance, human relationships, the legal system, science, and even knowledge itself have become subordinate to short-term economic concerns and preoccupations.  

            It is only in the context of such a twisted and deformed culture that the federal  and state courts could endorse the use of a private arbitration process that circumvents the equal protection of the law and deprives citizens of the right to a trial by jury that one assumes is  guaranteed by the Seventh Amendment to the U.S. Constitution. 

         When the Federal Rules of Civil Procedure were promulgated in 1938 - at the height of the New Deal - they proposed to open the doors of the federal courts and to level the playing field for all litigants. Rule 1 provided that the rules "should be construed and administered to secure the just, speedy and inexpensive determination of  every action and procedure."

         43 years later, in an age discrimination case, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), rightwing jurists in the Supreme Court began their continuing efforts to lock the doors of the federal courts to ensure that the powerful and the connected would be protected from the harm of having to defend their actions in a court of law.  The court solemnly intoned that "It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA....Although all statutory claims may not be appropriate for arbitration, '[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.'... In this regard, we note that the burden is on Gilmer to show that Congress intended to preclude a waiver of a judicial forum for ADEA claims..... If such an intention exists, it will be discoverable in the text of the ADEA, its legislative history, or an 'inherent conflict' between arbitration and the ADEA's underlying purposes. Throughout such an inquiry, it should be kept in mind that 'questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.'"

         John Adams, the draftsman of the Massachusetts constitution, declared that the "right to a trial by jury...shall be held sacred..." 
Shouldn't those who profess to be strict-constructionists, original intent advocates and conservatives now have the burden to show whose interests they now serve and why they have strayed so far from the ideas of the Founding Fathers that they profess to revere?