Chicken, Egg and Due Process of Law

If you consider, more or less at once, two recent media subjects about young American men abroad, you will most certainly suffer disorientation such that you cannot see your moral compass – if you have one. Certainly, you cannot quickly conclude from what you see and hear that those conducting the debate are American.

Edward Joseph Snowden, at age twenty nine, allegedly walked away from his job as a defense department contractor with gazillions of American intelligence secrets. He managed to get to Hong Kong and from there to Moscow, where he is now living while Russian authorities are ignoring United States demands that he be extradited back to this country for prosecution. It is the Government’s belief that Snowden has committed serious crimes and damaged American security interests.

Snowden first revealed what he had done to journalist Glen Greenwald, then at London’s Guardian newspaper. Greenwald remained in touch with Snowden and has served to trumpet the claim that Snowden is a hero for exposing the pervasive and widespread spying by the United States National Security Administration. Many on what might be called the American left enthusiastically endorse the notion that Snowden is a latter day Daniel Ellsberg – a patriotic hero. Indeed, many have suggested that Snowden be granted amnesty from the crimes he is alleged to have committed. Snowden has now released statements in which he insists that his disclosures were in the national interest and Greenwald has published a book that apparently details that claim.

Bowe Bergdahl is just a year or so younger than Snowden, but is an American soldier who was held captive by a sect of the Taliban in Afghanistan for five years. Bergdahl was released as part of a trade for five supposed terrorists being held at the American prison at Guantanamo Bay, Cuba. At this writing, Bergdahl has not made a public statement, appeared publicly or through a spokesperson – he’s apparently under medical and/or psychiatric care and has been since being turned over on the plains of Afghanistan.

Although initially happy with the release of Bergdahl, the Republicans in Congress have done a complete turnaround and are savagely critical of the release of Bergdahl because (a) the White House failed to notify Congress in advance of its intent to exchange five inmates from Guantanamo, and (b) the released inmates are so dangerous that their release could never justify the recovery of an American soldier. Additional criticism of the exchange arises because of the claim by some – mostly those with whom he served at the time of his capture by the Taliban – that Bergdahl didn’t deserve to be recovered or considered a hero because he left was a deserter or, at least, he criminally left his post in a war zone.

The common element in both these stories is the mad, noisy and endless declarations that appear in the media concluding the right or wrong of either man’s position without any consideration for due process of law. That dearth leaves the field open to speculation as to whether either man is a cowardly criminal.

Unsworn opinion testimony is not admissible as evidence in an American court of law, unless as an admission against the interest of the speaker. What that means is that we cannot reasonably reach a conclusion about the cowardice, bravery or guilt or innocence of either man based on anyone’s unsworn opinion. To be sure, reducing the question of either man’s guilt or innocence to such mundane procedures as a trial would eliminate the means by which many a bloviator makes his living, but it would serve this Country and both men much better than what is going on.

Each of these situations presents a serious moral and legal question that has to be resolved within the context of justice as we understand that notion. Can a man escape criminal prosecution if his crime was to expose criminal government conduct? Yes, there are statutes that say he can. The question becomes whether in fact that is what he did. Was he qualified to make the decision that the materials he disclosed were not so damaging to our defense that, when weighed against the public’s right to know, he should be excused?

Congress has this essentially un-American view of inmates at Guantanamo Bay, i.e. they are guilty until someone proves them innocent. They are not entitled to a trial. Certainly, they must remain incarcerated until they die. That position seems to have determined much of Republican thinking – to the extent there is thinking at all.

This ignoring of due process never comes to any good. Either we are a successful democracy or we are another random autocracy that provides rights and freedom based on status and wealth. If we are not the democracy we claim to be we ignore due process and become a scourge for our hypocrisy.

Snowden does not deserve to be considered a hero until he submits his claims to due process of law. Bowe Bergdahl does not deserve to considered a deserter until and unless someone charges him and proves that he is.


Posted in Bergdahl, Due Process, Greenwald, Guantanamo Bay, Snowden | Comments closed


If you vote in the coming election and you vote for the Democratic candidate, there is a real chance we can save the world – if only a chance. If you don’t vote, then you may as well be voting for a Republican. Here’s what that means:

1. Continued obstruction of the government of Barack Obama – appointments not confirmed, agencies not funded, legislation not acted on or filibustered.

2. Contempt for the Office of the President, for the choice of the people of the United States and for anyone that makes rational choices based on science and logic.

3. Failure to enact anything and wasting time and money: voting four dozen times to repeal the Affordable Care Act, holding meaningless ‘hearings’ on supposed IRS targeting conservative groups and the tragedy in Benghazi.

4. Unrelenting assault on women’s rights by draconian state enactments.

5. Devious ways to obstruct black and Latino citizens in the exercise of their right to vote.

6. Refusal to address the repeated misuse of guns and their threat to public safety.

7. Disloyalty to the nation by refusing to fund the Government and precipitating shutdowns and threatening to do it again, costing the taxpayer billions.

8. Denial that global climate change is a scientific fact and refusing to take steps to slow it as extreme weather takes a heavy toll of the Nation’s economy and well-being.

9. Craven submission to the money of the very rich regardless of the public interest.

10. Pursuit of policies that strip the country of well paid jobs, coercing working people from joining together in trade unions, and suppression of wages.

11. Restricting higher education to those who can pay for it .

For the American system to work, for any form of democracy to survive the barbaric strategies of the Republican Party, that party must be forced off its course. The only way we, the People, can do that is to vote against them. When we assure history that the hateful policies pursued by the Republican Party are not acceptable, we can proceed to the solution of problems of governance that in turn assure a safe and secure way of life. Our path to that assurance is marked by the exercise of the only power we have left – our vote.

Anyone who fails to vote for a Democratic candidate in this coming election is selling out his fellow citizens. There is no acceptable rationalization for anything else. The treachery of the GOP is not subject to question. How do you describe threatening the credit of the United States to avoid a tax increase for the wealthy? Is there some rational explanation for denying that the climate is changing and that change threatens severe and extensive catastrophe from one end of the country to the other?

The price we pay for what is left of our democracy is the exercise of the franchise with as much intelligence as we can muster. “Intelligent voting” cannot include voting for any Republican  or refusing to vote at all. All of us – every one of us – must rise up off our duff, suck in the air we may someday lose and vote for the Democrat. There has to be accountability,


Posted in MIDTERM ELECTION, REPUBLICAN TREASON, SAVE THE WORLD, Uncategorized | Comments closed

Not Just a Safety Defect

When I took the case that became Adams/Esparza v General Motors, filed and tried in the San Francisco Superior Court in 1983, General Motors was the largest manufacturing company in the world. Today, it is a limping behemoth just emerging from bankruptcy following a generous bailout from the United States Government. What I found was going on inside the company in the late1970s turns out to be what was still going on in 2002 and after the bankruptcy.

When, as reported in the New York Times on its March 25 front page, GM engineers attended a meeting in May of 2009 where it was conclusively determined that an ignition defect existed in hundreds of thousands of cars and the company denied the fact for years thereafter, then we are dealing with something other than arrogant incompetence. We are, I am afraid, looking at an inevitable consequence of our devotion to the corporate model and its building block of greed.

As a veteran several years of General Motors safety defect litigation, I find the stories of the ignition defect both seriously disturbing and in need of some context. This essay addresses the need for context because the story is so disturbing.

GM manufactured and sold nine million pickup trucks from the model year 1973 through 1987. It was the only pickup manufacturer that placed its fuel tanks outside the vehicle’s frame rails and just inside the sheet metal of the body. The Chief Engineer on the truck at the time of the design’s initiation, Earl Stepp, testified that the peculiar placement of the fuel tank was really intended to allow for the uniform installation of two twenty gallon tanks – one on each side, outside the frame rail. It was, he said, a response to the requests from GM marketing for more fuel capacity and safety enineeringwas not a consideration.
The peculiarity of Stepp’s design was not only that it was different from that of other truck makers, but also because it clearly violated GM’s internal fuel tank design safety standard that was established and published internally long before Mr. Stepp took over as the Chief Engineer. The problem was that the fuel tank, containing the destructive energy of roughly twenty sticks of dynamite, was exposed to likely collision forces. In the ordinary side-impact, the incoming vehicle or light pole or whatever would easily crush the body’s sheet metal and then proceed to crush the tank itself against the frame rail resulting in a burst or a tear. The fuel is then released in a spray and the spray is the most volatile form of gasoline – it will likely ignite and the result is very often a firestorm. This was not a matter of sophisticated engineering.

As a measure of the severity of the defect, the Fatal Accident Reporting System ( FARS) properly searched, produces a number on which it is reasonable to rely as fatalities caused by the defect. That number, in the case of the GM pickup fuel tanks exceeded 870 by the time I stopped counting in about the year 2000. That makes that defect the worst in American automotive history.

Ultimately, the relentless pursuit of documents by tort lawyers revealed a concerted corporate effort to keep damning secrets, even its repeated violation of the National Highway traffic Safety Act ( NHTSA) by “fudging” on required crash testing. The Secretary of Transportation, Federico Pena, issued an unprecedented report in October of 1994 which included the following fifth conclusion about the side mounted fuel tank design:

…”of crucial importance in this matter, is the evidence that GM was aware, possibly as early as the mid-1970’s but certainly by the early 1980’s, that this design made these trucks more vulnerable and that fatalities from side-impact fires were occurring. However, GM chose not alter the design for 15 years.”

Like the pickup’s fuel tank design, the ignition in these GM product appear to be “peculiar”, i.e. no other brand seems to be experiencing the disconnect associated with these GM products. Like the pickup’s fuel tank design, there is no question that GM engineers knew that the ignition switch design was defective years preceding the ultimate mea culpa of a few weeks ago.

I had, for years while I was in the midst of the litigation with GM, concluded I was dealing with a simply arrogant giant willing to cover up the incompetence of its own engineers and leadership. In that, it seemed perfectly average among corporations. Of course, that conclusion is still true but more of an explanation is needed – an explanation and some serious thought to what we do about it.

It is probably true that many organizations, public and private, function as a tribal culture. Groups within the entity evolve their own rules and loyalties, often without concern for the goals of the company or the agency. In GM’s case that tribal culture creates a clear and real danger to the public at large. The way the tribe worked at GM is that a group would follow a leader and depend on the leader for advancement. Job performance is only a minimal requirement because the tribe acted to insulate the individual from accountability so long the individual remained loyal to the tribe.

For nearly all the years that I was involved in suing GM, it was the largest manufacturer in the world and its approach to litigation reflected that fact. In the first matter I handled, Adams/Esparza v GM, GM counsel showed up at the San Francisco courthouse on the first few days of the trial in chauffeured limousines ( two of them) that carried lawyers and support staff that outnumbered me and my staff by about ten times. In that case, GM brought in full size vehicles to demonstrate the wisdom of its design and conducted a special full scale re-enactment of the subject collision – all of this in a warehouse attended by the court and the jury.

Seven years later in Woodland, California, limousines weren’t necessary. The defense forces were ensconced on two floors of an office building across the plaza from the courthouse. Every day lead counsel, his associate and four or five paralegals and younger lawyers with clerical staff pushing carts laden with boxes would march across the square as a Roman legion might have marched into some undefended European city. In the meantime, I would approach from the rented two bedroom apartment four blocks away pushing my hand truck.

Ultimately, I sought punitive damages because people kept dying and suffering unspeakable misery from burns. Ultimately, too, I would not agree to confidentiality in settlements (GM lawyers actually forced me to testify once about the amount of the settlement after the verdict in Adams/Esparza ).

It appears that in the case of the ignition defect this country cannot patiently abide the conduct of GM, maybe because it is a beneficiary of our concern for it and the communities that depend on it. We aren’t talking about a hard working company that fell on bad times because of matters beyond its control. We are, instead, confronted by an operation that encourages malfeasance.

As made clear in recently published analyses, the cover up of this defect and the existence of viable claims against the company prior to bankruptcy is a betrayal of the Nation. That’s an object lesson that greed is, in fact, not good.

Posted in General Motors, GM Bankruptcy, Ignition defect, NHTSA, Pickup Fuel Tanks, Uncategorized | Tagged , , , | Comments closed


While this appears as a blog, if “blogs” are expressions of opinion, this doesn’t qualify. I’m really looking for some discussion – some ideas about what I perceive as a problem that relates to the flow of people from one country to another, like immigration, but very different with seemingly different consequences.

From my North American west coast vantage point, I’ve seen no debate about a subject that may well be a keystone of international progress. The concern, in a nutshell, is that the USA sucks the best and the brightest from their native lands, leaving those lands without these superior human resources needed to stem the tides of poverty and ignorance. American institutions – Universities, Government agencies, technology corporations, pharmaceutical giants, hospitals – recruit, train and employ the brightest and most motivated of people from countries that are absolutely poverty stricken, e.g. India, Philippines, Pakistan, Nigeria, Mexico, Afghanistan and Palestine . Nearly all of these people stay and prosper here. Is this a good thing?

It must first of all be observed that the right to travel internationally is a highly important one. It is one mark of a civilized society. Autocratic regimes are often characterized by restrictions on travel in or out of a nation. These restrictions are a clue to the sort of state paranoia that fuels horrors like genocide.

Fidel Castro, in the early days of his tenure in Cuba, imposed what was labeled a “diploma tax”, requiring people educated in Cuban institutions – particularly medical schools- to pay the state the equivalent of the cost of the education if they wanted to leave the country. The anti-Castros and self-righteous American bourgeois damned such a practice as an immoral restriction on the right to travel. I saw the proposal as perfectly reasonable, given the sacrifice made by the Cuban people to educate these wannabe émigré’s. It wasn’t really a restriction on travel that prevented travel.

The situation that bothers me is not exactly the same. In the most prevalent contemporary practice, the `émigré comes to this country to be educated and stays. There are other practices that recruit in the donor country and train there or elsewhere before immigrating to the US. I think that American universities actually recruit among the foreign elite, probably because such students pay their full freight, i.e. retail tuition and fees. Obviously, American technology companies actively recruit abroad. I think, but have not confirmed, that there are US Government programs that pay tuition for foreign students in American institutions of learning.

Last year, I had another in a long line of surgeries on my nose to remove basil cell cancers. The surgeon was an East Indian woman who had been born in India but raised and educated in this country. The Department of Dermatology at Kaiser Permanente in Oregon is constantly challenged to keep doctors – since moving to Oregon in 2002, I’ve had four, none for more than one visit. The Indian woman is gone – she took a job elsewhere, shortly after my surgery. The current practitioner is a first-generation Persian (Iranian).

The surgeon who performed cardiac by-pass on me in 1999 is Turkish. A vascular surgeon I consulted a few years ago is Pakistani. The proprietor of a large veterinarian hospital and clinic near my home in Portland is Pakistani. A dear friend is effectively in hospice care and all the care givers are immigrants from the Philippines. Technology entrepreneurs being interviewed in the media regarding their new American enterprise are Pakistani. A fellow touted as the next CEO of Microsoft, Satya Nadella, was born and raised in India, educated both in India ( Electronic Engineering degree) and here ( University of Wisconsin – Milwaukie for Master of Computer Science, and the University of Chicago for his MBA).

The president of PepsiCo is Indian as is the chief executive officers of several Fortune 500 companies, not to mention others that hail from Brazil and other Latin American countries. The home countries of these high flying immigrants to the United States, just to illustrate the point, have the following per capita income in current dollars: Pakistan – $1,257; India – $1,489; Turkey – $10,666; Mexico – $9,749. The per capita income of the United States is $51,749; the United Kingdom is $39,093 and, by the way, Afghanistan is $687.

The Alfred P. Sloan Foundation, a renowned source of funding for original research, announced the winners in its most recent round of awards. The announcement is a full-page advertisement in the February 18, 2014 New York Times. I took a second look at the list and, judging from just the surnames on the list, it appeared to me that most winners were either foreign born or recent arrivals. I looked more close at the award list for chemistry and Googled the names that appeared to be “foreign”. There were twenty-three in the chemistry category. I found that ten were foreign born and/or partially educated abroad. Nine of those are currently on the faculty of an American University and one with Scripps Research Institute. There may have been more, but I didn’t Google everyone on the list.

By no means does the background described above cover the objective bases necessary to draw a complete picture. These are but examples.

I keep wondering how religious zealots get control of entire populations in some places and why that doesn’t happen in others. Notwithstanding the fundamental nature of religion, people tend to be rational – not smart, but more likely to make decisions that make sense for themselves and their world. It is not rational to be or to use suicide bombers for any purpose, let alone political. It is not rational to use chemical weapons on people in your own country. There are many such irrational acts carried out in various countries in recent years ( including our own, which is another blog) that seem to be happening without voices of rational moderation.

I also wonder about the wretched poverty one sees in, as an example, Bangkok – poverty which I think has existed for generations and apparently will go on for additional generations. Starvation, filth, disease and back-breaking work would seem easy enough to eliminate, providing there is the leadership to show the way. Where is that leadership? Certainly, the competent revolutionary can arise and most likely does arise from any people. Maybe it is tougher in many places because of a passive culture or a particularly nasty despot, but it seems – at least intuitively – that such leadership exists. My suspicion is that the leadership has left and gone to America – with the encouragement and support of the Americans.

The Egyptian “revolution” also suggests that something has been removed from that society – descendants of one of humanities oldest civilizations. Egyptians suffered a bloody struggle in pursuit of a democratic government. An election was held and the Muslim Brotherhood was elected and apparently many did not like that result. So, they staged another mass revolt and persuaded the military – the entity which previously secured the peoples’ oppression – to dump the Muslim Brotherhood. For what? The revolutionaries can’t decide among themselves. An army general is about to declare himself the president. Where are the people who would understand that democracy does not mean you always get your way? Where are those who have studied western democracies and learned that peace and stability is worth the price of sacrificing a government that looks and thinks exactly like you?

As I am writing this, I painfully realize how much many in our own Republic don’t understand democracy and, even if they do, don’t really like it ( Hedgefunder and currently leading megalomaniac Tom Perkins being a leading example). But these ‘know-nothings’ and champions of the rich do not prevail and won’t prevail until the American society is a forgotten myth. That, however, is not the present question before us.

Struggle as we do with our image and its contrast to our realities, as a nation we are repeatedly faced with a cockeyed foreign policy that has resulted in a very long line of foreign aid justifications. Much of that over the years has been motivated by the permutations of the American oil companies and their western allies and the need to secure the vast resources of the Arabian Peninsula, Valenzuela, the North Sea or Nigeria. The political result of oil companies mucking about these places to extract and keep the wealth has been destabilization ( Saudi Arabia being a stark exception). That destabilizing justifies more foreign aid and remains a constant because indigenous leaders and intellects are driving BMWs and building monster houses in Sam Mateo and Marin Counties, California. I don’t know that is true; I suspect it is.

Would American difficulties with Pakistan’s seemingly endless political chaos be more likely resolved if its intellectual elite had not emigrated to Stanford, MIT, UC or Harvard? It may be easier to answer that question if asked about Nigeria or Belarus or Indonesia.

Are indigenous American young people less capable, intellectually, than these foreign young people? Are Indian students simply better at the professional and scholarly undertakings than indigenous Americans? Is the immigrant intellectual more willing to work for less? For any position taken by an immigrant scholar, is an indigenous American being shut out of a career?

Does the influx of foreign scholars, intellectuals and business leaders into academic and fortune-five hundred institutions effectively erode the American ethos that created the institutions? If it does, is that bad?

When thinking about immigration, as I have been for many years, the impact of American immigration policy on the immigration of the scientist, graduate student, master of business often goes unstudied. It is more often about the vast bulk of worker immigration and most often about Latin Americans and cheap labor and different languages. What we decide should be the policy of this country about immigration will ultimately determine the path of our future. Should we be fashioning a method of keeping the intellectual as a citizen that is different and less demanding than keeping the truck driver, auto mechanic or the melon picker?? If we do, what does that do to such American notions as equal justice under law?

Subject to better ideas that I know exist out there, my preliminary thinking is that the immigration of a leader, an intellect or a scholar should be subject to considerations of the needs of the country in which he is born or raised.


Posted in Best and Brightest, Business Leadership, Egypt, Immigration, Intellectual, Uncategorized | Tagged , , , , | Comments closed

Cake Eating In the Twenty First Century

This morning’s outrage is reported on the front page of the New York Times: STATES CUTTING WEEKS OF AID TO THE JOBLESS. The understandable sensibility of the paper is demonstrated by the fact the headline is above the fold. The featured misery is that of a woman with a fourteen year-old son who is losing unemployment benefits after twenty weeks of being out of work. This privation is added to the reduction of food stamp benefits. It was not her fault that she lost her job, nor that she hasn’t found another – there aren’t any. Whatever she did to land in this predicament was to live in the state of North Carolina.

That state, last July, cut unemployment eligibility from seventy three weeks to twenty and reduced the amount of maximum benefits. The federal program extending long term benefits expired at the end of 2013 and Democratic efforts to revive it failed. Notwithstanding the support of local economies that unemployment insurance provides, a whole lot of people in Congress – who may not be working but who are nonetheless paid- think the people who lost their jobs are simply not looking hard enough to find another.

A similar theory is behind the refusal of a majority of House Republicans to agree to an extension of food stamps under the Farm Act. The problem is that people who don’t have enough to eat because they don’t have the income to pay for food are simply not trying hard enough to find a job. Many public minded republicans in the House are concerned that a continuation of unemployment benefits and food stamps will lead people to an addiction to poverty and a dependency on government largess. None of these social geniuses, however, have bothered to understand the hypocrisy underlying this reasoning – as an example where are the job creating projects, the education programs??

For the worker – and most of us qualify as “a worker” -is trapped in a perfect storm of economic and soul devastation. The jobs disappeared, for one reason or another, but none attributable to him. Government cutbacks in education funding have limited his chances of retraining. Congress failed to pass the Presidents Jobs bill, so the prospects of finding a job any time soon are dim. Congress refused to extend unemployment benefits and fund food stamps. The only possible relief is that Americans vote in great numbers this November and dump every Republican running for any office.

Why would we do anything else short of armed insurrection?


Posted in Food stamps, Jobs Bill, Unemployment Benefits | Comments closed