The MEK’s delisting campaign is funded by a fluid and enigmatic network of support groups based in the United States. According to an MEK leader, these groups are funded by money from around the world, which they deliberately shield from U.S. authorities. These domestic groups book and pay for their VIP speakers through speaker agencies, which in turn pay the speakers directly and take a fee for arranging appearances. That way, the speakers themselves don’t technically accept money from the community groups. If they did, they might discover what their speaker agents surely know: That most of the groups are run by ordinary, middle-class Iranian Americans working out of their homes — people who seem unlikely to have an extra few hundred thousand dollars laying around to pay speaker fees and book five-star hotels to bolster the MEK’s cause.

The speakers are just the type of national-security heavyweights a plaintiff terrorist organization needs. In addition to those named above, the commissioned figureheads include Obama’s recently-departed National Security Adviser Gen. James Jones; former Bush Homeland Security Secretary Tom Ridge; onetime State Department Counselor Philip Zelikow and former CIA directors Porter Goss and James R. Woolsey.

Retired military officers are popular — former NATO Supreme Allied Commander Gen. Wesley K. Clark and former Commander in Chief of United States Central Command Gen. Anthony Zinni have both addressed MEK groups. Yet more speakers appear to have been chosen for their deep political ties, such as former New York City Mayor Rudy Giuliani, former New Mexico Gov. and U.N. Ambassador Bill Richardson, former Bush White House Chief of Staff Andy Card, former Indiana Sen. Evan Bayh and former 9/11 Commission Chairman Lee Hamilton.

Oh, and Howard Dean.

Now, giving speeches on behalf of a group that is officially designated as a terrorist organization by the State Department is apparently not considered “material” support of terrorism (perhaps because the terrorists are actually supporting Dean et al.?) Greenwald (link above) however, lists a few things that are considered material support by the U.S. government:

A Staten Island satellite TV salesman in 2009 wassentenced to five years in federal prison merely for including a Hezbollah TV channel as part of the satellite package he sold to customers; a Massachusetts resident, Tarek Mehanna, is being prosecuted now ”for posting pro-jihadist material on the internet”; a 24-year-old Pakistani legal resident living in Virginia, Jubair Ahmad, was indicted last September for uploading a 5-minute video to YouTube that was highly critical of U.S. actions in the Muslim world, an allegedly criminal act simply because prosecutors claim he discussed the video in advance with the son of a leader of a designated Terrorist organization (Lashkar-e-Tayyiba); a Saudi Arabian graduate student, Sami Omar al-Hussayen, was prosecuted simply for maintaining a website with links “to groups that praised suicide bombings in Chechnya and in Israel” and “jihadist” sites that solicited donations for extremist groups (he was ultimately acquitted); and last July, a 22-year-old former Penn State student and son of an instructor at the school, Emerson Winfield Begolly, was indicted for — in the FBI’s words — “repeatedly using the Internet to promote violent jihad against Americans” by posting comments on a “jihadist” Internet forum including “a comment online that praised the shootings” at a Marine Corps base, action which former Obama lawyer Marty Lederman said “does not at first glance appear to be different from the sort of advocacy of unlawful conduct that is entitled to substantial First Amendment protection.”

So remember that kids; the First Amendment only comes into play when you’re being paid to speak on someone’s behalf.

We must also remember, as Daniel Larison helpfully points out, that terrorism is only TERRORISM (and not “terrorism”) when it’s being conducted by someone we don’t like against someone we do like. When it’s by someone we do like against someone we don’t like, then it’s…not terrorism:

…Israeli state sponsorship of a terrorist group is acceptable because it’s in a good cause. Tobin assures us that this is not just any old cynical “ends justify the means” argument. No, according to him this is “an entirely defensible strategy in which a vicious and tyrannical government’s foes become legitimate allies in what is for all intents and purposes a war.” Never mind that it is “for all intents and purposes a war” because the Israeli government is supporting acts of terrorism against Iranian civilians. Tobin is saying that it would be “immoral” not to partner with a terrorist group to kill Iranian scientists.

In related depressing matters, a plurality of Americans believe that we are justified in attacking Iran to prevent Iran’s acquisition of a nuclear weapon. A plurality isn’t a majority, but it wouldn’t surprise me if that number has crept up and will continue to creep up as we here more and more about the “danger” of Iran in the media, and as more political figures make hay out the issue to score points in the election season. All this makes sense intuitively, but step back for a moment and just marvel at our astonishing and casual arrogance. Following an entirely unjustified and failed war in Iraq, and in the midst of a difficult and unresolved war in Afghanistan, and with our economy in a delicate and uncertain recovery, there is a large percentage of Americans who think that the wisdom of striking Iran is inarguable. The consequences don’t merit consideration, it is beneath us to consider whether there are non-violent alternatives to ending Iran’s nuclear program, and to consider whether we even have the moral right to strike Iran, and kill hundreds or thousands of Iranians over weapons that will almost certainly never be used against us, is practically un-American. Honestly, it makes me wonder what it must be like to live in a country that doesn’t think (or, God forbid, doesn’t even have the option) to solve its national security issues with force.

Iran’s objectives for weaponizing (were they to do so) –becoming a stronger regional force and deterring a conventional military attack–would be better addressed diplomatically. Unlike a military strike, deft diplomacy could move Tehran to cooperate with the International Atomic Energy Association. While this would allow Iranian enrichment activity to continue, it is the best way to ensure Iran does not arm. In other words, destroying nuclear facilities would address the symptoms while worsening the underlying disease. In order to prevent Iran from weaponizing, U.S. policymakers will need to address Tehran’s motives.

In addition to normalizing economic relations, Washington could reintegrate Iran into the international community, push for Iran’s entrance into the World Trade Organization, and provide security support to compensate for the lost deterrence capability. More meetings with Iran won’t generate a good campaign slogan for Obama, but bargaining has worked.

In 2003, Libya opened up its nuclear program to IAEA inspectors in exchange for full reintegration into the international community and normalization of economic relations. NATO intervention following the 2011 Libyan uprising, and subsequent ousting of Qadaffi, might not have been possible had Tripoli succeeded in weaponizing. Several other countries, including South Africa and Brazil, gave up their programs peacefully with a mix of incentives and international pressure. There is no guarantee, given the current rift between sitting President Mahmoud Ahmadinejad and Supreme Leader Ali Khamenei as well as the lessons Tehran’s leadership likely drew from Qaddafi’s abandonment of Libya’s weapons program, that Iranians would be receptive. But we will never know until we try.

She also notes that unfortunately, like Vali Nasr, that little of this is viable in an election year. That does not mean however that a strike on Iran, by us or Israel, is necessarily inevitable, or that it must happen prior to the elections. If we can get through the rest of the year, a re-elected Obama might be willing to give this effort another go once it becomes apparent that sanctions will not force Iran to abandon it’s nuclear program. One can hope at least.

It’s one of the enduring mysteries of the war on terrorism: What will become of the al-Qaida leaders and operatives who fled into Iran after 9/11 and have been detained there for years?

Their fate has long been a blindspot for U.S. intelligence. Recently, however, some al-Qaida figures have quietly made their way out of Iran, raising the prospect that the country is loosening its grip on the terror group so it can replenish its ranks, former and current U.S. intelligence officials say.

This movement could indicate that Iran is re-examining its murky relationship with al-Qaida at a time when the U.S. is stepping up drone attacks in Pakistan and weakening the group’s leadership. Any influx of manpower could hand al-Qaida a boost in morale and expertise and threaten to disrupt stability in the region.

The lawsuit is over the banks’ use of MERS, the Mortgage Electronic Registration System the industry created in the mid-1990s to track the ownership and servicing of residential mortgage loans.

Schneiderman claims the system is plagued by inaccuracies. The lawsuit also names MERS and its parent as defendants.

“The mortgage industry created MERS to allow financial institutions to evade county recording fees, avoid the need to publicly record mortgage transfers and facilitate the rapid sale and securitization of mortgages en masse,” Schneiderman said.

Schneiderman’s lawsuit claims that banks saved $2 billion in recording fees by using MERS.

The suit also said the use of MERS resulted in the filing of improper NY foreclosures and created “confusion and uncertainty” over property ownership interests.

NY joins a host of entities which have sued MERS (including our own Dallas County.) Yet I believe it’s safe to say that most people still are not familiar with MERS, or the role it played in greasing the wheels for the orgy of securitization that helped to blow up the economy when the housing bubble began to burst in 2006. Pro Public has a pretty good background it published last year when stories about MERS popped up in the NY Times and the Washington Post:

MERS is a confidential electronic registry that banks helped create in 1997 in order to keep track of mortgage paperwork. As we noted in our primer on the foreclosure scandal players, MERS saved the banks time and money by providing a private, electronic alternative to the public system used by local government recorders. By using the MERS registry, they largely avoided the recording fees.

Local government offices play important roles in recording changes in land ownership, the same way they record births, marriages, and other essential records. Having a public entity holding onto original documents is handy, after all—for instance, if you can’t find your marriage license, you can request a copy from the county you were married in. Or if you need those documents authenticated, the government can help do that too.

But for Fannie Mae, Freddie Mac and the banks, the local government recorders weren’t speedy enough—especially as the mortgage industry moved into the business of securitization, or bundling and selling mortgages. To facilitate securitization, they created MERS, a private database that relied on its members to enter data about mortgage transfers on their own.

MERS is an odd beast. One law professor likens it to the Roman two-faced God Janus:

No deity better symbolizes what financiers hoped to create when they founded the Mortgage Electronic Registration System (MERS). MERS sits as a dichotomous, enigmatic gatekeeper on the vestibule of our nation’s complex and turbulent mortgage finance industry.  Financiers invoked MERS’s name at the beginning of millions of subprime and exotic mortgage loan transactions and again invoke its name as they attempt to terminate so many of these loans through foreclosure.  Like Janus, MERS is two-faced: impenetrably claiming to both own mortgages and act as an agent for others who also claim ownership

The legal theory behind MERS rests on the intricacies of property and agency law, but in essence MERS positions itself as the “owner” of a mortgage or a deed of trust for the purposes of filing in local land offices. Then, hidden away in offices and servers, the banks which hold the beneficial interest in the note and the deed of trust or mortgage (meaning, the right to be paid) quietly go about transferring deeds and notes amongst themselves as they see fit, indicating the transfer by merely updating MERS’ records and thus avoiding the need to record any of these transfer of interest as required by state law. Not only does this allow banks and other deed and mortgage holders to avoid recordation fees as mentioned above, it has allowed them to escape transparency regarding their ownership interest (at least until they or their proxy MERS is forced to establish standing in court.)

Avoiding state recordation laws out of convenience is bad enough, but it might be excusable if in fact MERS could claim to be able to establish definitive ownership of a beneficial interest in a piece of property. But they can’t. As explained in both the Pro Publica article and the law review article I cite above, MERS has a horrendous track record. Bank members are not legally required to keep MERS electronic records updated, MERS barely asks them too, and really has  no incentive to do so until they’re lawyers find themselves in court trying to explain why their client has standing to foreclose on a mortgage.

The very legality of MERS remains an open question. You may recall from my earlier post that the law firm Covington & Burling drafted a legal memo in 2004 that MERS has cited to establish the legality of their system of electronic recordation. That memo addresses the legality of MERS in a very limited manner, and hardly establishes that MERS would be in accordance with recordation statutes of the 50 states. The fact of the matter is that MERS skirts the requirements of property law that has developed over a period of centuries, starting in the United Kingdom and continuing here. Courts have begun addressing the matter; MERS has lost some cases, and won others (they have a worse track record in Federal bankruptcy courts than they do in state courts.) But without question, it will be years before enough courts have weighed in to say in what manner MERS is permitted to operate in each state, and many more years after that before we might see substantial reform in this process.

Judges are of course required to interpret state and Federal law to the best of their abilities, but the big picture is simply this: MERS was established by large banks to facilitate the mortgage securitization process and to avoid the fees and inconvenience that is typically associated with the recordation process. In doing so it has upended centuries of property law, and done so in service of a cause-mass mortgage securitization-that itself proved to be the downfall of our economy. The only reason MERS has survived as long as it has is because most foreclosures are done by rote by both the foreclosing party and the judge signing off on the foreclosure, and the number of homeowners able to contest MERS (or the authority of banks in general) are a tiny, tiny minority. Were these parties each represented by counsel prepared to challenge the standing of MERS to bring suit to foreclose, this system would’ve cracked like an egg by now. Effective lobbying and the sheer scale of the foreclosure mess serve to keep MERS out of the crosshairs of state and Federal legislators, for now at least.

 Lead plaintiff Ernest Michael Bakenie claims that Chase’s “pattern and practice of playing ‘hide-and-seek’ with debtors, judges and other bankruptcy players” bore rich fruit: that Chase secured motions for relief of stay and proofs of claim in 95 percent of its cases.
“Through the use of fabricated assignments, endorsements and affidavits that purport to transfer deeds of trust, notes and the rights to all monies due under the terms of tens of thousands of non-negotiable promissory notes (the ‘MLNs’); Chase has demonstrated a pattern and practice of playing ‘hide-and-seek’ with debtors, judges and other bankruptcy players,” the complaint states.
“Chase intentionally conceals the identity of the true parties in interest entitled to enforce the tens of tens of thousands of residential non-negotiable promissory notes (the ‘MLNs’) for its own financial benefit, at the expense of the class and to the detriment of the integrity of the bankruptcy system.”

The suit goes on to allege that Chase used a network of attorneys to file more than 7,000 motions for relief (the process by which the stay is lifted against secured property so that foreclosure can proceed during a pending bankruptcy) and that attorneys were rewarded for how quickly they could get orders lifting the stay.

At issue in nearly all of these cases is the question of whether the foreclosing party, be it bank, servicer or MERS, the mortgage recording service, actually has legal title to the property and thus the right to foreclose. Explaining this issue requires more time or space than I have here, but if you’re looking for a pretty good explanation of the basics, the text of the recent complaint filed by Dallas County against MERS is a fairly decent primer.

Many of the allegations of bad behavior are in the context of civil court. Although there have been numerous individual decisions against the banks and servicers in bankruptcy court, this is the first case I’m aware of that alleges bad behavior across thousands of cases in multiple bankruptcy court districts. Bankruptcy adds another layer to it; in the civil cases, a variety of state laws apply that may or may not make such behavior criminal in nature. But in at least some of these cases, JP Morgan Chase would have relied on documents filed alongside a proof of claim in a bankruptcy case, and Federal bankruptcy law provides for criminal penalties for the filing of a false or fraudulent claim.  Filing false documents that purport to give you standing to foreclose such as a falsified mortgage assignment or note, is without question what is contemplated by this admonition. Yet somehow, despite that fact that it has been demonstrated that banks and servicers knowingly filed false documents, to my knowledge no bank or servicer has been charged with fraud for filing false documents attendant to a bankruptcy proof of claim. If you’re wondering why that’s so unusual, I suggest you try filing a fraudalent claim in someone’s bankruptcy case and see how long it takes before the FBI is giving you a phone call.

So why have banks for the most part (with rare exceptions) avoided criminal penalties, let alone some sort of Federal investigation given how widespread allegations of fraud are?  Well, on that topic:

 U.S. Attorney General Eric Holder and Lanny Breuer, head of the Justice Department’s criminal division, were partners for years at a Washington law firm that represented a Who’s Who of big banks and other companies at the center of alleged foreclosure fraud, a Reuters inquiry shows.

The firm, Covington & Burling, is one of Washington’s biggest white shoe law firms. Law professors and other federal ethics experts said that federal conflict of interest rules required Holder and Breuer to recuse themselves from any Justice Department decisions relating to law firm clients they personally had done work for.

Both the Justice Department and Covington declined to say if either official had personally worked on matters for the big mortgage industry clients. Justice Department spokeswoman Tracy Schmaler said Holder and Breuer had complied fully with conflict of interest regulations, but she declined to say if they had recused themselves from any matters related to the former clients.

Reuters reported in December that under Holder and Breuer, the Justice Department hasn’t brought any criminal cases against big banks or other companies involved in mortgage servicing, even though copious evidence has surfaced of apparent criminal violations in foreclosure cases.

The evidence, including records from federal and state courts and local clerks’ offices around the country, shows widespread forgery, perjury, obstruction of justice, and illegal foreclosures on the homes of thousands of active-duty military personnel.

A particular concern by those pressing for an investigation is Covington’s involvement with Virginia-based MERS Corp, which runs a vast computerized registry of mortgages. Little known before the mortgage crisis hit, MERS, which stands for Mortgage Electronic Registration Systems, has been at the center of complaints about false or erroneous mortgage documents.

Court records show that Covington, in the late 1990s, provided legal opinion letters needed to create MERS on behalf of Fannie Mae, Freddie Mac, Bank of America, JP Morgan Chase and several other large banks. It was meant to speed up registration and transfers of mortgages. By 2010, MERS claimed to own about half of all mortgages in the U.S. — roughly 60 million loans.

***

It isn’t known to what extent if any Covington has continued to represent the banks and other mortgage firms since Holder and Breuer left. Covington declined to respond to questions from Reuters. A Covington spokeswoman said the firm had no comment.

Several lawyers for homeowners have said that even if Holder and Breuer haven’t violated any ethics rules, their ties to Covington create an impression of bias toward the firms’ clients, especially in the absence of any prosecutions by the Justice Department.

I don’t have any reason to believe that Holder or Breuer have purposefully declined to investigate their former employers clients.  And if they recused themselves, then certainly they’ve done nothing improper either legally or ethically. But the government recruiting from powerful firms like Covington, whose clients could easily find themselves being eyed keenly by the DOJ, necessarily creates a conflict of interest. The worst of it though is not where government employees, from Holder down, have come from. It’s where they might go once they’ve completed their government service.  Without question our government has become something of a revolving door for some of the top enforcement officials in America. In the SECs case this coziness with the Wall Street titans whom they are charged with overseeing is unseemly, corrupt and should be criminal. In the DOJ it’s merely embarrassing. In all regards, it gives one the very strong impression that our government cannot be trusted to investigate crimes committed by people they once worked with, and with whom they might work again. So instead we plug along, one small civil suit after another, with only low-level executives facing the threat of jail time.  The banks and the servicers they employs certainly would prefer to stop spending tens or hundreds of millions of dollars to settle enforcement actions and lawsuits against them, but perhaps that’s less costly than reforming their procedures when for all practical purposes they enjoy immunity from criminal law. The same of course cannot be said for the little people like us.

I am convinced that if we are to get on the right side of the world revolution, we as a nation must undergo a radical revolution of values. We must rapidly begin the shift from a “thing-oriented” society to a “person-oriented” society. When machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, materialism, and militarism are incapable of being conquered.

A true revolution of values will soon cause us to question the fairness and justice of many of our past and present policies. On the one hand we are called to play the good Samaritan on life’s roadside; but that will be only an initial act. One day we must come to see that the whole Jericho road must be transformed so that men and women will not be constantly beaten and robbed as they make their journey on life’s highway. True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring. A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will look across the seas and see individual capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries, and say: “This is not just.” It will look at our alliance with the landed gentry of Latin America and say: “This is not just.” The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just. A true revolution of values will lay hands on the world order and say of war: “This way of settling differences is not just.” This business of burning human beings with napalm, of filling our nation’s homes with orphans and widows, of injecting poisonous drugs of hate into veins of people normally humane, of sending men home from dark and bloody battlefields physically handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.

America, the richest and most powerful nation in the world, can well lead the way in this revolution of values. There is nothing, except a tragic death wish, to prevent us from reordering our priorities, so that the pursuit of peace will take precedence over the pursuit of war. There is nothing to keep us from molding a recalcitrant status quo with bruised hands until we have fashioned it into a brotherhood.

How badly we need him today.

In addition to influencing Iranian leaders directly, the official said, “another option here is that [sanctions] will create hate and discontent at the street level so that the Iranian leaders realize that they need to change their ways.”

Later on in the same article other unnamed officials hedge slightly:

A senior administration official, speaking separately, acknowledged that public discontent was a likely result of more punitive sanctions against Iran’s already faltering economy, but said that is not the direct intent.

“We have a policy that is rooted in the notion that you need to supply sufficient pressure to compel [the government] to change behavior as it’s related to their nuclear program,” this official said.

“The question is whether people in the government feel pressure from the fact that there’s public discontent,” the official said, “versus whether the sanctions themselves are intended to collapse the regime.”

A Western diplomat familiar with the policy said that it was “introducing in the cost-benefit analysis a new parameter in the calculus” of the Iranian government. “To the extent we have done that, it is not because we want to collapse the government. It is because we want the Iranian government to understand that is a possible cost in continuing the way it is,” the diplomat said, speaking on the condition of anonymity to describe the intent of the policy.

So regime change is not the goal, but it might be a consequence of the failure of the Iranian regime to change their alleged goal of acquiring a nuclear weapon.

Like many people with sense in their heads, you might be wondering whether the possibility exists that ratcheting up sanctions might push both Iran and the United States into hostilities with each other. After all, coerced regime change can be regarded as an overtly hostile act, and the Iranian government might take measures to defend itself. Suzanne Maloney of the Brookings Institution has some concerns as well:

The Obama administration’s new sanctions signal the demise of the paradigm that had guided U.S. Iran policymaking since the 1979 revolution: the combination of pressure and persuasion. Moreover, the decision to outlaw contact with Iran’s central bank puts the United States’ tactics and its long-standing objective — a negotiated end to Iran’s nuclear ambitions — fundamentally at odds. Indeed, the United States cannot hope to bargain with a country whose economy it is trying to disrupt and destroy. As severe sanctions devastate Iran’s economy, Tehran will surely be encouraged to double down on its quest for the ultimate deterrent. So, the White House’s embrace of open-ended pressure means that it has backed itself into a policy of regime change, something Washington has little ability to influence.

She points out fundamental flaws in the tightening sanctions approach:

Skyrocketing income from oil sales over the last decade has been a welcome anomaly for Iran’s revolutionaries, but it is hardly certain that constricting that spigot will doom the regime, much less force it to capitulate on the nuclear issue. Tehran remains confident in its ability to adopt austerity as needed. In fact, blaming an international bogeyman will offer convenient cover for the regime’s own economic mismanagement.

The Obama administration has argued that “pressure works,” pointing to past reversals by the Islamic Republic, including the grudging and belated acceptance of a cease-fire to end its eight-year war with Iraq. Yet this formula disregards two critical points: first, Tehran has been under tremendous pressure to change its security policy throughout its entire post-revolutionary history, yet that policy has proved remarkably durable. Second, Iran’s major concessions have come not simply as a product of pressure but because of the declining utility of the original objective. In this instance, however, the tables are turned. The more Washington corners Tehran, the higher the value of a nuclear deterrent becomes in the eyes of the leadership.

She goes on to explain that the new approach does not necessarily mean that hostilities are inevitable; we are backing away from our military commitments in the Middle East, and Afghanistan is on the horizon (whatever the result of the seemingly unending negotiations with the Taliban turns out to be.) There is no real appetite for open conflict with Iran, certainly not in public opinion, and probably not anywhere else except among the most hawkish of our political elite.  This strategy however backs our government into a corner; we have effectively stated that Iran must abandon their nuclear weapons program for us to end our coercive efforts, and that’s a position that it’s very difficult to imagine our government stepping away from. Accepting for a moment that sanctions as an effort to coerce regime change or force Iran to abandon their nuclear weapon are doomed to fail (and they are) where does this leave us? What measure do we take when those sanctions fail, and we have demonstrable intelligence that Iran continues or is accelerating their nuclear weapons program? Worse yet, what if the Iranian government after time regards those sanctions as a threat to their survival? What measures might they be willing to take to punish us in return? What if Israel decides to take matters into their own hands, and we’re dragged into conflict as their allies?

Unfortunately, somewhere along the line our policy makers decided (without bothering to inform us of course) that a nuclear-armed Iran is completely unacceptable. Now they appear to have persuaded themselves that the most favorable outcome of a sanctions program is also the most likely outcome.  If this sounds like a familiar recipe disaster, it’s only because you’ve heard it all before.

Update: The Post has corrected the article to “clarify” the remarks of the unnamed official. Robert Wright explains why that’s probably a distinction without a difference. If you have adopted a policy of punitive sanctions for which there is no reprieve until the target nation abandons it’s unfavored behavior, and you admit that one of the goals of those sanctions is to direct public hostility toward the target nation’s government, you have implicitly adopted a goal of regime change (even if such change has almost zero chance of taking place.)

This barrier to conversation is dangerous in a nation where race and racism still matter very much. A place where black unemployment is far higher than white unemployment, where profiling and institutional racism and white privilege and myriad other forms of racism still shape so much of life in America. If we don’t need to discuss race then it’s allowed to fester and grow unchecked like an untreated malignant tumor. Race is an issue every American must care about. It’s not a black issue, it’s everyone’s issue. It’s relevant and important for whites because we all live here together and because the issue hurts everyone. If your neighbor’s house is on fire, or gets foreclosed, you have a problem. If your neighbor’s soul is on fire you have a major problem.

Only through being aware of racial disparities and talking about race can we have any chance of forward movement. Because nowadays there are many white people who are not racist, who are perhaps anti-racist, but who still benefit from white privilege without even meaning to. So you may not be racist but still receiving the spoils of racism. That still doesn’t make you racist. But it makes you part of the system and reveals why it’s also your responsibility to interrogate and examine how our society works and be aware of the biases that keep white supremacy functioning. The term “post-racial” is the enemy of communication, understanding and progress. (“Post-racial” is not at all synonymous with “post-black,” a term from the art world that explains modern black identity and the complexity of being black today and is the guiding force of my book “Who’s Afraid of Post-Blackness?”)

Race does still matter in America. It’s something that needs to be said. Race still matters. But the truth is that the issue is complex, and divisive, and maybe even painful to think about, which is three reasons why Americans don’t want to think or talk about it.

Before I expound too much further on this subject, I think it’s worthwhile to talk about what “race” and “racism” are. I think this passage from TheFreeDictionary.com does a great job of explaining exactly what the problem is with the term “race“.

Usage Note: The notion of race is nearly as problematic from a scientific point of view as it is from a social one. European physical anthropologists of the 17th and 18th centuries proposed various systems of racial classifications based on such observable characteristics as skin color, hair type, body proportions, and skull measurements, essentially codifying the perceived differences among broad geographic populations of humans. [...] The biological aspect of race is described today not in observable physical features but rather in such genetic characteristics as blood groups and metabolic processes, and the groupings indicated by these factors seldom coincide very neatly with those put forward by earlier physical anthropologists. Citing this and other pointssuch as the fact that a person who is considered black in one society might be non-Black in anothermany cultural anthropologists now consider race to be more a social or mental construct than an objective biological fact.

The last line is what’s really important, and that’s why I quoted that entire passage. I do want to interject though, that having earned my degree in Anthropology, I feel comfortable in stating that the idea of biological races is not accepted at all by modern anthropologists.

That returns us to the question of “What is racism?”, and the answer to that is as difficult as the answer to what “race” is. To be sure, that question itself is complicated, and probably has many answers. Generally, we say things like white, black, Hispanic or Latino, or Asian, and last (and unfortunately least) Native Americans. In general, we think we know what we mean by these words. Someone says “black” and we think of Beyonce or Shaq or 50 cent. If someone says “Hispanic” we usually jump to the conclusion that they mean Mexican, and then think of gardeners or Jennifer Lopez. And if somebody says “Native American”, well, most people other than Native Americans think of “The Crying Indian” (even though he was Sicilian). In this article though, the author speaks of “Black” and “White” (an annoying duopoly on race that ignores the rest of us, but whatever), which, in the case of the former, are people of African descent, generally brought over as slaves in the pre-Civil War era, and in the latter case as Americans of European descent, regardless of the date of immigration.

So finally, let’s get a definition of racism.  This is from Wikipedia: “Racism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term ‘racism’ is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature (i.e. which harms particular groups of people), and which is often justified by recourse to racial stereotyping or pseudo-science.” I would rather say that racism is the act of discriminating against others based on those beliefs, but that’s about the same.

This brings me to the point that the most obvious, overt kinds of racism have been driven underground. Jim Crow laws were beaten back long ago. Segregation was defeated, schools were integrated (as was the military), and the Voting Rights Act was passed to make sure that discrimination at the ballot box did not occur (not that it completely succeeded). It’s been so long since those days that many people have no memory of when America was like that.  Of course that kind of racism still survives in some forms in some places. I rarely recommend a fictional movie to explain a real issue, but I’d say watch American History X if you want to know anything about the modern “white power” movement and can’t be forced to read a book. There’s a few of those guys out there, but not so many. Does that mean racist attitudes have gone away? Not by a long shot. They just don’t come out in such obvious expressions.

One of the things that has come about because of this near-total cessation of public acts of racism is that more and more, white Americans say race isn’t an issue (and to be fair, some members of the minorities say so too). I don’t argue that all white people are secret racists. Nor does Touré. But the fact of the matter is that institutional racism does exist and that it is the beliefs and attitudes of the majority of Americans (which majority still happens to be white) that allows these institutions to exist. Let’s examine the most well-known issue, that of crime. Here are some stats from a handy guide created in 2005 (and not much has changed since then).

Although Black Americans make up only 12.7% of the U.S. population, they make up 48.2% of adults in federal, state, or local prisons and jails. According to the 1998 federal National Household Survey on Drug Abuse (NHSDA), 72% of users were White and 15% were Blacks. Despite this, Black people were arrested for drug offenses at higher rates than White people.

Among persons over age 24, Blacks (11.2%) were significantly more likely to be pulled over while driving than Whites (8.9%).

Among drivers stopped for speeding, Blacks (75.7%) and Hispanics (79.4%) were more likely than Whites (66.6%) to be ticketed.

Police were more likely to conduct a search of the vehicle and/or driver in traffic stops involving Black male drivers (15.9%) or Hispanic male drivers (14.2%), compared to White male drivers (7.9%).

Although crack and cocaine are virtually the same thing, Congress has assigned far harsher penalties to crimes involving crack, a drug primarily associated with people of color. In 1988, Congress passed a law that created a 100:1 quantity ratio between the amount of crack and powder cocaine needed to produce certain mandatory minimum sentences for trafficking and created mandatory minimum penalties for simple possession. In order to receive a five-year sentence for possession with intent to distribute for powder cocaine, a person must possess 500 grams or more. To receive a five-year sentence with crack cocaine, a person need only have 5 grams in their possession.

A prison record makes it difficult to survive economically. A first-time arrest for being convicted of a property crime leads to a 7% decline in income. People of color are more likely to be targets in the Criminal Justice System, and are more likely to be arrested and receive prison sentences. Consequently, this 7% decline in income disproportionately affects people of color.

Now, people can try to explain this away with all kinds of mumbo-jumbo. Basically, to defend these kinds of stats, you have to argue that black people are inherently more likely to be criminals than white people are. Which happens to be a racist idea, plus it isn’t true, and here’s one example of how that’s not true:

Even though the majority of crack users are White, most people imprisoned because of crack offenses are Black. Roughly two-thirds of crack cocaine users are White or Hispanic, but 84.5% of defendants convicted of crack possession in 1994 were Black, while 10.3% were White and 5.2% were Hispanic. The majority of persons charged with crack trafficking offenses in the federal system have also been African American (88.3%).

If you argue that black people are more likely to be criminals, that would be because they are more likely to be stopped by police, searched, and charged with crimes. It’s a self-fulfilling prophecy. If one were to argue that Blacks are more likely to commit criminal acts, statistically it’s kind of hard to know whether that’s true or not, based on the disparity of policing and prosecution between races. But if it were to be true, knowing that there is no basis to any ideas that black people are somehow genetically more prone to being criminals, the only possible reasons left would be environmental. And if the reasons were environmental, then the only explanation of why black people have a different environment than white people is that slavery, the Jim Crow era, and continuing racial inequality have created a different environment for black people. And if that’s the case, in the end, the fault lies at the feet of the white majority for creating and sustaining systems that penalize or victimize minorities.

The criminal justice system is not the only one that treats minorities unequally. To make a long story short, the fact of the matter is that minority children tend to be left behind educationally. Of course this has to do with America’s racial history. If you look at the causes of the “Achievement Gap” between whites and blacks in America, whether directly or indirectly, they’re all because of how Whites treated Blacks in the past. Surely only the most obtuse would argue that income inequality in the past has nothing to do with continued income inequality or educational attainment.

Of course all this preceding material has been to argue that racism lives on, at the very least by perpetuating the institutions which create racial inequality. But why, if that is undeniably the case, does Touré feel the need to tell people about it? Well, there’s a phenomenon occurring which is rather recent (mainly since the 90s) in which Whites (not all, of course) have started believing that they are themselves the victims of some kind of racist agenda, which they call “reverse racism” or “reverse discrimination”, as if regular racism is defined as being only White against minority.

I found a writer who adeptly expresses exactly what’s happening here (link).

Conservatives often go crazy when anyone brings up race.  They have used their typical methods of trying to make it taboo for anyone to play what they have labeled the “race card.”   There is certainly a potential abuse that could or may have come into play on occasion.  In general, however, I think it’s underplayed.  Conservatives have been successful in scaring people away from this.  There are many black people who virtually stay away from the race issue at all costs.

Many conservatives call for a colorblind approach to government.  This, they claim, is the only true way not to be racist.  For acknowledging race in policy is just a form of racism itself, they say.  They certainly fight against things like affirmative action, but it goes much further than that.  They refuse to acknowledge issues that affect racial minorities differently than whites, and by doing so are engaging in a much more subtle form of racism in their colorblindness.

It actually goes even further than that. Conservatives actively perpetuate the idea that there is some kind of “reverse discrimination” at play in American society due to the Civil Rights laws passed in the 60s. I’ll copy a cogent passage from Reverse Discrimination: Dismantling the Myth.

Conservatives purposely use reverse discrimination discourse to create or exacerbate divisions among the American people. [...]Since the 1992 election of Bill Clinton, “many conservative ideologues have seemed less interested in condemning ‘victim talk’ than in co-opting it….Right wing leaders thus endeavor to claim the ‘benefits’ of victimization for their own constituencies. Hence the ever growing lament of the ‘angry white man,’ who complains that his self-esteem is the target of multiple attacks: amongthe most damaging of which  [is] ‘reverse discrimination’”. In this way conservatives are using identity politics for their own purposes.

I don’t think the average white American is guilty of this kind of cynical behavior; that is, actively using this language to sow seeds of division among people and between the races. But I do believe that a lot of white people are guilty of buying into the idea, as illogical as it is, that somehow Whites are suffering under the burden of being white. Despite the fact that it’s still better to be born White than any other race (or color, or ethnicity, or however you want to put it), there are Whites who insist that there is an anti-White agenda. It’s too easy to point out examples like that of Sean Hannity and Rush Limbaugh accusing Sonia Sotomayor of committing “reverse racism”. But it’s also easy to see how a lot of people feel (not necessarily the most representative people, however) in the comments that accompany the online articles pointing out how white people are whining about being victims. One survey gives actual numbers to this feeling:

The results, published in the journal Perspectives on Psychological Science, showed that on average blacks saw anti-white bias rising slightly from 1.4 in the 1950s to 1.8 today.

Blacks also perceived that racism against themselves had steeply declined from 9.7 in the 1950s to 6.1 in the 90s.

White respondents, however, saw a very different picture.

For the 2000s, 11 per cent of whites gave anti-white bias the maximum 10 out of 10 rating, compared with only two per cent of whites who did so for anti-black bias.

Whites believed that discrimination against them had increased from an average of 1.8 in the 1950s to 4.7 in the 2000s.

They concluded: ‘A flurry of legal and cultural disputes over the past decade has revealed a new race-related controversy gaining traction: an emerging belief in anti-white prejudice.

‘Whites think more progress has been made toward equality than do blacks, but whites also now believe that this progress is linked to a new inequality—at their expense.’

And of course it’s not like I haven’t known white people myself who’ve said something to the effect that they wonder why it’s ok for the other races to make fun of white people, but not for Whites to make fun of others because they truly believe that since slavery and Jim Crow (and genocide, in the case of Natives) are over, minorities are no longer in a weaker position. Or, as in the aforementioned comments, people will say something like “Well why are Black colleges ok, but not all White colleges?” One could, of course, quote statistics about how Black kids are less likely to go to college and less likely to succeed at college. One could talk about how sometimes, for groups that have been historically underserved, special efforts must be made to encourage their participation in higher education. One could talk about how there is no danger of fewer Whites ending up educated simply because they aren’t allowed into some of the 106 historically all-black colleges in the US out of the 5,578 institutions of higher education in the United States. And of course, one could mention that there are universities that just happen to be almost completely White. But as the survey I quoted and linked to discusses, apparently those whites who feel threatened feel that equality is a zero-sum game, and these kinds of stats do not allay their fears.

I don’t know if I can come up with a decent theory as to why Whites see it as a zero-sum game. It may have to do with difficulty accepting shared power with members of another group. In in-group thinking, one’s own group must be privileged over others. This is a phenomenon that occurs even among members of the same ethnicity. It’s just that in America, this is reflected in racial terms. It can’t even be argued that this is due to the need to justify slavery morally; half the states outlawed slavery well before the Civil War, and most Southern farmers didn’t have slaves (even if they hoped to become plantation owners someday). And some people (White people) like to point out how the Irish and Italians were treated when they came over, apparently not understanding why these people became the institution, and how that is not comparable to the experience of Black Americans (or anybody else). Except perhaps among the Irish and Italians in the Northeast now, those people are considered White, even by other Whites. That hasn’t happened for other racial groups. Blacks, Hispanics, and Native Americans are still excluded from White power structures.

But if we accept the idea that these Whites see racial equality as a zero-sum game, suddenly, it makes sense why these people insist that the only way to be racism-free is to live in a color-blind world and conveniently ignore the fact that those of us who are not White tend to have a harder time succeeding in this country. To them, despite rhetoric to the contrary, we cannot all be equal. If resources and opportunities are limited, then any augmentation of one side is matched by a deduction of the other. Of course, this sounds like an overtly racist set of beliefs and practices intended to disenfranchise minorities. Honestly, to a certain extent, it is. If it wasn’t, guys like Hannity and Limbaugh wouldn’t bother talking about it. Now, I know that they play on existing fears, and they had nothing to do with the Republican party’s Southern Strategy, but obviously, if exploiting White American’s fears about minorities didn’t work, they wouldn’t bother doing it.

I know plenty of White people would read this and say, “Hey, I am not racist!” And then declare that the only way to end racism is to not acknowledge race or continuing racial disparities which are reinforced by a system that treats minorities differently. And basically, that’s the problem.

It’s hard to argue why you might oppose the death penalty even in his case. He’s irrefutably guilty. His crime is so heinous that practically no one would disagree that he deserves to die for his crime. Maybe his family will mourn his loss; just about nobody else will. And yet there are reasons why even this man should not be sentenced to death, despite the emotional satisfaction such an act might bring. I don’t trust my own eloquence to argue the point, so I’m going to bring in outside help. Xanthippas found an article that makes the case far better than I could.  Here is a long excerpt, but the entire article is definitely worth reading:

Last week, when Duane Buck’s case was on America’s docket, the most-asked questions (of me, anyway) were (to paraphrase): Why should I care about the procedural technicalities of this guy’s sentencing case when his guilt is not in doubt? Since he’s guilty of murder, how fair does his legal treatment really need to be? People of all political stripes asked the same questions. For them, Buck’s guilt evidently vitiated any need for an honest evaluation of the manner in which he was sentenced to death. Texas in 2000 conceded that Buck’s trial was impermissibly unfair? The other men similarly situated got their new trials? Who cares. The guy did it. He is getting more justice than he gave to his victims.

That last part is true. Of course, defendants like Duane Buck get more justice than their victims. That’s the whole point of our criminal justice system — and of the rule of law. That’s why we outlaw lynching, why angry mobs can’t storm jailhouses, and why we have judges. It’s why we have a Constitution. In America, we aim to give the guilty more justice than they deserve. We do so because of how that reflects upon us, not upon how it reflects upon the guilty. And when we fail to do so it says more about us than it does about the condemned. Although Let’s look just at Texas, again, for a moment.

When Gov. Perry says he believes in “our form of justice” what he is really saying is a significant majority of Texans are comfortable with a death penalty regime that has, in virtually every way, undercut the premise of Justice White’s formula in Gregg. For example, Texas is only one of seven states to have its state court judges elected via popular vote after partisan elections. The result is apatently unfair process that pretends that judges have superhuman power to separate their campaign promises with their subsequent (or their past) work on the bench. “Killing for Votes” is an apt headline, used years ago by the Death Penalty Information Center. Plenty of “room for the play of prejudices,” to use Justice Douglas’ memorable line, also would work as a headline.

A campaign promise to “be tough on crime” or to “enforce the death penalty” should disqualify a judge, Justice John Paul Stevens famously told the American Bar Association in 1996. But have you ever seen a television campaign ad in a judicial election in Texas? If so, you are probably not surprised to learn that when an earnest local judge tried to hold a meaningful hearing on capital punishment in Texas late last year, the political furor was so great it was almost immediately shut down by the Texas Court of Criminal Appeals. That court, not incidentally (and in the grand tradition of southern justice), has established itself as a local bulwark against defendants, many of them black, whose rights have been violated by trial judges, juries, prosecutors, and witnesses. “Our form of justice,” says the governor. (Andrew Cohen at The Atlantic).

And there’s the basic argument. Not only can we not ensure that the death penalty will never accidentally be imposed on an innocent man, we can’t even begin to ensure that it won’t deliberately be imposed on an innocent man. We can’t come close to guaranteeing that the so-called “justice system” will be anything like impartial, unemotional, and forthright. As a matter of fact, we know the opposite is true. No convicted man has ever been as surely innocent as Cameron Todd Willingham, and yet he was failed by every safeguard in the State of Texas that is supposed to keep innocent men from being convicted, much less put to death. Faulty evidence and faulty witnesses were believed, and even when shown to be demonstrably wrong, the system chose not to give him the benefit of the doubt.

In short, we cannot be sure that we are always going to put the wrong men to death, and I don’t know why so many people believe innocent men could not be on death row when we know very well that innocent men have been convicted more than a few times. It’s a bad system, and even if we’re not morally opposed to killing a man because he killed another man, it’s not worth it if we accidentally kill another innocent man.