Split Responsibility

Please give me your undivided attention. Huh? What does that mean? If the phone rings, don’t answer it? I a text ping tells you someone is trying to reach you, ignore it? If someone rings your doorbell, pretend they aren’t there? We know what happens when attention is divided, as almost always is, when someone is driving a car. Virtually all traffic laws make it unlawful to text and drive, to hold a mobile phone to your ear as you turn the steering wheel. Notwithstanding the sensors, automatic braking systems, adaptive cruise control and automated warning tones, the number of accidents from “distracted driving” – mostly from drivers engaging with those compelling smart phones – are still rising.

What is distracted driving? Just “device irresponsibility”? How about: Listening to talk radio and getting agitated? Listening to hot music and singing along, just listening to soft music and relaxing? Sipping coffee or nibbling on a doughnut? Checking/adjusting make-up? Looking at Waze or the car’s navigation system? Luddite-map reading? Arguing with a passenger? Looky-looing? Correcting junior’s misbehaving in the back seat? Using hands-free Bluetooth cell phone to negotiate a business deal during rush hour?

But as we slowly move to a world where human drivers are being replaced by “Otto Pilot,” where cars of the future might not even have steering wheels, exactly where does the responsibility for safety lie? Even if we are able to use this technology vastly to reduce accidents, we know that there will be accidents. The computer manufacturer? Still the driver/owner of the car? To a new insurance schema that makes it a third party problem? Our entire legal system has yet to adapt to this obvious quagmire. I don’t even want to address what might happen if a malicious power were to hack into the overall system intentionally to cause accidents. And what about that ugly transition that is likely to last for decades as overlapping technologies coexist in ugly disharmony.

As states allow driverless cars to ply their streets to develop that technology, we are in a particularly awkward period. Most such “permissions to test” require that a real person be at the controls “just in case.” But is that really an effective practice? Think about the recent crash when such a “manned” Tesla, operating fully automatically, still plowed into a Culver City fire truck on California’s notorious 405 freeway (above picture). A human driver sitting in a car on autopilot. Crash!

There are folks who are beginning to question the value of a human back-up during such autopilot tests. The January 27^th Los Angeles Times explains: “Researchers with deep experience in human-machine interaction say it’s folly to think that won’t cause problems. Even if the human-robot team-up leads to safer roads on average, plenty of drivers will abuse the relationship, intentionally or not, and events like Monday’s [1/22] crash will make the news.

“‘There’s something we used to call split responsibility,’ said Hod Lipson, director of Columbia University’s Creative Machines Lab. ‘If you give the same responsibility to two people, they each will feel safe to drop the ball. Nobody has to be 100%, and that’s a dangerous thing.’… That’s also true for humans sharing tasks with robots, he said.

“Engineering researchers in the psychology department at the University of Utah are studying whether semiautonomous driving technology will make things better or worse… During the experiments, people are put in semiautonomous driving simulators to measure their reaction times when something goes wrong. When subjects were distracted, average reaction time in the simulator almost doubled, researcher Kelly Funkhouser said…. The longer the subjects remained ‘cognitively disengaged,’ the longer their reaction times got. Some fell asleep.” Hmmm… back to the drawing board. But “it” is still happening. Slowly but surely.

The fact remains that automated driving systems are much more reliable that rely on sober human drivers. But that has to be of little comfort to someone sitting in a fully automated car that is heading for an obvious accident… when there is no manual override to stop it. That is the fear of lots of people, particular middle aged and older, when they are asked to put their trust in something that they are used to controlling but over which they do not have control. As infrastructure crumbles without repair or fails to expand to accommodate great usage, automation might be the only way to make it all work… so get used to it!

I’m Peter Dekom, and I am one of those folks that likes to drive… so I have to get used to it too!

I Don’t Want to be Alone

How many suicides, mass shootings, new drug/alcohol addictions and other anti-social behavior stem from people feeling isolated, disconnected and many horribly different from their peers? How much human misery results from these feelings of detachment? You only have to look at the result of prisoners placed in solitary confinement to understand how damaging, often permanently, social isolation can be. The United States is one of the few nations in the world to embrace criminal solitary confinement on such a mass scale (from SuperMax prisons to administrative segregation)

Smithsonianmag.com (2/19/14) explains: “Exact numbers are hard to come by, but based on a wide swath of censuses, it’s estimated that between 80,000 and 81,000 prisoners are in some form of solitary confinement nationwide. In contrast to stereotypes of isolated prisoners as the most dangerous criminals, [Craig Haney, a psychologist at UC Santa Cruz who’s spent the last few decades studying the mental effects of the prison system] estimates that a third of isolated prisoners are mentally ill, and a disproportionate number are minorities, partly because alleged gang membership is grounds for placing a prisoner in solitary indefinitely. 

“The physical details of an isolated prisoner’s daily experience are worth examining. ‘Prisoners live in their cells, 80 square feet on average—a bit bigger than a king-sized bed. In this environment, you sleep, you eat, you defecate, you live all of your life,’ Haney said. Most prisoners spent at least 23 hours per day in this environment, devoid of stimuli (some are allowed in a yard or indoor area for an hour or less daily), and are denied physical contact on visits from friends and family, so they may go years or decades without touching another human, apart from when they’re placed in physical restraints by guards. 

“This sort of existence takes a clear toll on prisoners, according to surveys and interviews Haney and colleagues have conducted with about 500 of those in isolation from four different states. Their work indicates that most of these prisoners suffer from severe psychological stress that begins when they’re put in isolation and doesn’t subside over time.

“A majority of those surveyed experienced symptoms such as dizziness, heart palpitations, chronic depression, while 41 percent reported hallucinations, and 27 percent had suicidal thoughts—all levels significantly higher than those of the overall prison populations.  [An unrelated study] found that isolated inmates are seven times more likely to hurt or kill themselves than inmates at large. 

“These effects, Haney says, don’t only show how isolation harms inmates—they tell us that it achieves the opposite of the supposed goal of rehabilitating them for re-entry into society. ‘We are all social beings, and people who are in environments that deny the opportunity to interact in meaningful ways with others begin to lose a sense of self, of their own identity,’ he said. ‘They begin to withdraw from the little amount of social contact that they are allowed to have, because social stimulation, over time, becomes anxiety-arousing.’” But the extreme version of isolation in prisons is much more obvious than the everyday experience of hundreds of millions of people in day-to-day life.

There’s another word for in everyday society: loneliness. We see it everywhere. Teens who are different and have trouble socializing. Elderly living alone, spouses and friends died off, abandoned by family members who may live very far away. Or just too busy to spend physical time with family. We see a lack of human connectivity from disemboweled electronic communications with social media, texting and emails… no eye contact, no seeing body language, missing subtle cues that fall by the wayside in digital communications. People often do not leave their homes to go to the movies, shop, dine out or attend sporting events. They have massive access to home media and delivery services.  

The United Kingdom has figured out that loneliness is one of the biggest issues in the British Isles. The January 26 Los Angeles Times provides the details: “British Prime Minister Theresa May announced the creation of a new ministerial portfolio in her Cabinet: combating loneliness… With more than 9 million British adults reportedly experiencing chronic loneliness — and a stack of studies documenting the corrosive health effects of such social isolation — May said it was time that a high-level government official coordinate a ‘first-ever strategy’ to address the scourge.

“‘For far too many people, loneliness is the sad reality of modern life,’ May said in launching the government effort. ‘I want to confront this challenge for our society and for all of us to take action to address the loneliness endured by the elderly… and by those who have lost loved ones — people who have no one to talk to or share their thoughts and experiences with.’

“The government campaign makes the United Kingdom a pioneer in tackling a public health challenge that has emerged in an age of transient families, growing social diversity and crumbling political consensus. The Campaign to End Loneliness, a British philanthropy, says more than half of Britons older than 75 live alone. And about half a million older Britons can go a week without seeing or speaking to anyone.” 

Mirroring what we see in U.S. prisons, the impact of loneliness in society is deeply pernicious, and this hardly a secret to the American psychological and medical community: “In 2016, then-U.S. Surgeon General Vivek Murthy warned that Americans are ‘facing an epidemic of loneliness and social isolation.’ A long-running survey called the Health and Retirement Study suggests that about 28% of older Americans feel chronically lonely.

“The result of all this loneliness goes beyond widespread emotional distress. Research has shown that people who routinely feel lonely or cut off from friends and family are more likely to suffer high blood pressure, develop heart disease and be diagnosed with dementia. UCLA researchers have found that lonely people suffer higher levels of chronic inflammation, making them more vulnerable to a wide range of health conditions. 

“Compared with people who have strong social connections, those who acknowledge chronic feelings of loneliness are more likely to see their function decline as they age, and are 50% more likely to die prematurely... 

“As a risk factor for early mortality, loneliness’s impact is comparable to smoking 15 cigarettes a day, and greater than that of obesity, according to a by experts from Brigham Young University and the University of North Carolina at Chapel Hill.

“Unsurprisingly, social isolation greatly increases the risk for depression and the poor self-care that typically accompanies it — a vicious cycle that makes loneliness a root cause of all manner of illness. Psychologists have identified another vicious cycle: Lonely people experience brain changes that make it more difficult to form new social connections. For instance, they’re more likely to view others’ faces as threatening, making it harder for them to bond with others.

“University of Chicago psychologist John Cacioppo, who has studied loneliness and its effects for decades, said the British initiative ‘constitutes an important recognition for the significance of loneliness in people’s life.’” LA Times. For those who are busy with their lives, too busy to deal with family members suffering in isolation, concerned with higher taxes if we were too address this often cruel aspect of life, I simply ask you to think again. Spend some time with someone who craves contact but cannot get it. Care. And let those who can make a difference know that this is a priority for us all. Imagine what it is like when someone cannot connect with anyone else, either because they forgot how or never learned or simply do not have the opportunity.

I’m Peter Dekom, and I am leaving in a few minutes to visit a 92-year-old aunt.

GOP Public Enemy No 2 – The Census

You will probably get a different answer as to what one major issue keeps Republicans up at night, but scratch the surface of their worst fears, and the demographic shifts that threaten to marginalize the GOP electorate lurk beneath the surface. Older traditionalists wanting MAGA replaced by younger people raised with constant hyper-accelerating change looking to a very different vision of the future. Deeply religious older versus much less reverent young. Rural values voters overwhelmed by urban voters facing dramatically different issues (picture a rural version of gun control against those in a large city with extraordinary murder rates). White Christians versus an America that is mostly not white Christians. Tolerance and diversity vs. “it’s our country” white entitlement. Educated voters (e.g., 59% of Millennials have at least some college) vs. marginalized under-educated blue collar workers replaced by automation and serious changes in consumer demand. We are polarized with a president who seems to delight in exacerbating polarization.

The harsh reality for a populist Republican Party (with powerful rich elitist leanings), now on the verge of passing a “country club set” tax legislation that by any true economic analysis is exceptionally damaging to the nation as a whole, is that their efforts will ramp up our deficit by at least a trillion dollars with absolutely no clear offsetting benefit for “most of us.” There is nothing in that tax reform act that tells companies that their windfall must result in new jobs and capital investment. They can do whatever they want with the money, and trust me the stock market is not soaring because of all those new jobs these companies are supposed to create.

There are more jobs “officially” today, but scrape that statistic and you understand (i) people aren’t really seeing any increase in their real buying power and (ii) those folks whose skillsets have pushed them out of the work force aren’t part of those unemployment numbers. So the sole measurements of Donald Trump’s “success” are misleading unemployment numbers and that soaring stock market, which is based on that expected tax cut… and little else.

The one most basic GOP fact, underscored by the fact that the popular vote for the 2016 election favored the Democratic loser, is that the Republicans can never hold the majority of state legislators, governorships, Congressional districts and the presidency based on a strictly popular vote. Those days are over. America is over 85% urban and dramatically diverse. White traditional Christians are now a distinct minority, but without that constituency, the GOP is toast. For those liberals who believe that the Russia investigation will ultimately result in the impeachment of Donald J Trump, I must remind them that Trump’s base will never believe Trump did anything wrong and will punish any GOP member of Congress who would dare to topple their leader. And today, without that base, most Republicans could never be elected remotely to level they now enjoy. They even have to maximize the voting power of that base to keep control.

For that base, twisting and turning our entire legal system, who gets to vote and what that vote means, has become an existential battle. Unless Republicans can cancel out Democratic votes, marginalize diversity away from traditional Christian values, they have no shot of maintaining their current control of America. That their evangelical constituency is willing to embrace mega untaxed wealth (do camels have to pass through the “eye of a needle”), intolerance (“love thy neighbor” is relegated to four square blocks), child molesters, sitting in judgment of others (and casting the first, second and then the continuing rain of stones), a very wide use of assault weapons to kill (Thou shall stand thy ground and killing is now OK?), cops shooting blacks begging for life is just the way it is, etc., etc. tells you how desperate they are, how much they see keeping Democrats from casting meaningful ballots as essential for their survival. They hold the “right to life” anti-abortion value as their primarily and most powerful religious justification to vote for anyone who embraces that value, regardless of any other hypocritical level of moral turpitude. Anti-LGBT sentiments are just icing on that wedding cake they won’t bake.

Trump-appointee Supreme Court Justice Neil Gorsuch is their great white hope to keep the feds out of challenging gerrymandering. Should there ever be a judicial mandate to make voting districts “fair,” literally representing the constituents across each state without political discrimination, the Republican Party plunges in flames. Every attempt by Republican legislatures to impose voter restrictions (from voter IDs to setting up polling places only in white Republican neighborhoods) has been reversed by the courts… but almost every reversal by such courts has resulted in yet another attempt by those same legislatures to re-impose a slightly different version of the same voter restrictions. Oddly, those restrictions only seem to be passed by GOP-controlled legislatures. And if gerrymandering is eliminated… yeah. And they know it.

So we get to the prize, the bastion of fairness built into our entire legal system (requirements mentioned in Article 1, Section 2 of the Constitution as well as the 14^th Amendment): the U.S. Census which by law must be conducted every ten years. The resulting statistics are then the legal basis for virtually every federal policy based on population: demographic segmentation analysis (race, religion, ethnicity, etc.), Congressional districts as well as the number of representatives that each state can elect to the House, allocation of state-population-driven federal benefits and hard dollar payments, etc. And it is an open secret that any fair analysis of the U.S. population will reward diversity, urban centers and Democrats. So the GOP response, whispered in the shadows of both the GOP-controlled Congress and the White House, is that those Census results can never happen.

To reach every nook and cranny of America, even people who do not have a computer, takes an extra effort, and that extra effort to reach everybody costs money… money that Congress refuses to approve. Those distant nooks and crannies are almost all Democrats. The President appoints the head of the Census Bureau, and that executive determines how Census employees do their jobs, their priorities, and how to implement their legal mandate. There is a GOP emphasis for a quick, cheap and less-than-thorough Census. Indicators suggest that what we will see in 2020 will hardly be a fair and accurate demographic accounting. “Preparations for the count already are complicated by a sea change in the census itself: For the first time, it will be conducted largely online instead of by mail.

“But as the Census Bureau ramps up its spending and work force for the 2020 count, it is saddled with problems. Its two top administrative posts are filled by placeholders. Years of underfunding by Congress and cost overruns on the digital transition have forced the agency to pare back its preparations, including abandoning two of the three trial runs of the overhauled census process.

“Civil liberties advocates also fear that the Trump administration is injecting political considerations into the bureau, a rigidly nonpartisan agency whose population count will be the basis for redrawing congressional and state legislative districts in the early 2020s. And there is broad agreement that the administration’s aggressive enforcement of immigration policies will make it even harder to reach minorities, undocumented immigrants and others whose numbers have long been undercounted… Taken together, some experts say, those issues substantially raise the risk that the 2020 count could be flawed, disputed, or both.” New York Times, December 9^th.

It is pretty clear that the Trump administration believes it is either above the law or simply doesn’t know when the law actually applies. The U.S. Census Bureau is a part of the executive branch of government (Department of Commerce) under Donald Trump. It is equally clear that the GOP knows that any true and accurate measurement of the U.S. population will erode their voting power to the benefit of Democrats. Put those two concepts together, and guess what you can expect? Even if a Democrat is elected president in 2020, the die will have long since been cast. By law, the President cannot delay that process, so even if the new president wants to make the Census fair, he or she is powerless to do so (they can only impact policies for the 2030 Census).

I’m Peter Dekom, and welcome to the land of the purportedly free but deeply statistically manipulated.

Steve Bannon and Executive Privilege

As this former senior White House advisor is called under subpoena to speak with Justice Department Special Prosecutor, Robert Mueller, III, there is the specter of the President’s invoking his right of “executive privilege” to stop that interview or severely limit its scope. Today, all responses from White House staff on whether that step will be taken have been negative, and the President and his aides have instead relied on a campaign of denigrating Bannon and his credibility before he testifies. But as the date for the questioning draws near and the scope of the inquiry widens, scholars are looking at exactly what “executive privilege” means and how much the President of the United States can use that precept to avoid ugly questioning. We have been here twice in recent history: Richard Nixon in 1974 and Bill Clinton in 1998.

The seminal Supreme Court case on point was decided in 1974: United States vs. Nixon. As the Watergate scandal mounted, President Richard Nixon sought to limit what federal prosecutors were able to extract from relevant witnesses who worked as White House staff. And while this may seem long and detailed, in understanding how deeply committed the Supreme Court has been to upholding the law, I suggest that you read these excerpts from that Supreme Court Decision:

Following indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed. Rule Crim. Proc. 17 (c) for a subpoena duces tecum [a judicial requirement to bring relevant documents] for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule 17 (c) had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having rejected the President's contentions (a) that the dispute between him and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked authority to review the President's assertion of executive privilege…

[We] turn to the claim that the subpoena should be quashed because it demands "confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce." App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum.

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Id., at 177. …

Our system of government "requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." Powell v. McCormack, supra, at 549. And in Baker v. Carr, 369 U.S., at 211 , the Court stated:  "Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution."

Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government…

[Neither] the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide…

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence…

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

Writing for the January 19^th Los Angeles Times, Caleb Mason (a partner at law firm of Brown White & Osborn LLP, and a former federal prosecutor), and citing Nixon, provides an additional argument why Bannon might not otherwise qualify for that call for executive privilege: “Atty. Gen. Jeff Sessions’ [asserted] executive privilege claims during his congressional testimony regarding the president’s firing of FBI Director James B. Comey. Sessions made a classic criminal-defendant mistake when he testified at length about some conversations with the president, but selectively claimed executive privilege to refuse to answer questions about other conversations. None of the congressional committees have gone to court to compel testimony, but if a judge were to rule on Sessions’ claims, Sessions would lose. His self-serving selective disclosures waived the privilege.

“Sessions even admitted that he didn’t have the authority to claim executive privilege in the first place. If the president asserted it, Sessions would be bound by that assertion. But the president never asserted it…  Bannon is now sitting in the same chair, making the same mistakes. He probably waived any privilege claim he had by regaling ‘Fire and Fury’ author Michael Wolff, and through him the nation, with ‘significant portions of confidential communications’ — precisely the communications he now refuses to testify about. That won’t fly. ‘Public, extrajudicial disclosures constitute a waiver of the privilege for the communications or portions of communications disclosed,’ the case law says.

“But Bannon can’t assert executive privilege to begin with, because — as mentioned — it’s not his to assert. The president could assert executive privilege and formally seek to prevent Bannon and other aides from disclosing their communications with him to Congress, to Special Counsel Robert S. Mueller III, or to a grand jury. But the president has not asserted it — not for Sessions, not for Jared Kushner, not for Don, Jr., and not for Steve Bannon.” Trump would almost certainly lose his effort to assert the privilege in these circumstances. No matter how much he might claim that the undrained swamp is committed to unseat him, I suspect that relitigating this issue would force Trump to accept an order that could be tailored to open the inquiry against him wider.

The Supreme Court would literally have to reverse itself in one of the most important “separation of powers” cases in our nation’s history, and notwithstanding new Justice Neil Gorsuch’s proclivity to pick and choose which Constitutional provisions he likes and which he does not, the Court is extraordinarily unlikely to reverse or limit Nixon. While Donald Trump has shown open contempt for the Constitution, particularly his most-hated First Amendment, he would probably be decimated by the courts should he asset this privilege… and most of the nation would then have to ask, “What is he really hiding?”

I’m Peter Dekom, and we have to strive to retain the notion that the United States is a country built as a nation of laws, even as a very openly vulgar president casts doubt on the institutions that have endured and supported our system for centuries.