Wednesday, April 29, 2009

The Flyover Debacle: Head(s) Must Roll

Earlier this week, people in lower Manhattan and Jersey City were panicked by the sight of a jumbo jet flying at a very low altitude, apparently being pursued by a jet fighter. The airplane made a pass around the southern tip of Manhattan, near Ground Zero, making unusual turns and changes in altitude. This sight sent workers and residents from around the area into the streets, generating a rush of calls to the 9-1-1 emergency line and creating fears that another planes-as-bombs terrorist attack was underway. As it turned out, the jumbo jet was one of the planes that is sometimes used as Air Force One, and the purpose of the flight was to "update" the military's photos of the plane with New York City in the background. Incredibly, the people who approved the flight ordered the New York Police Department and other responsible entities not to tell the public in advance that this was an exercise.

If this sounds to you like a perfect example of why research organizations must, post-Milgram, consider the consequences of experiments on human subjects, you would be half right. Not telling people in the New York area that an event eerily similar to the 9/11 attacks was about to occur would qualify as something that should almost certainly be ruled out on the grounds that some forms of mental anguish must not be visited on the unsuspecting public. The problem is, when institutional review boards consider whether to allow experiments on humans, there is at least something on the other side of the ledger, something good that might come from observing the effects of an experiment on its unaware victims. Even gruesome human rights violations like the Tuskegee Experiments had a claimed justification that the results would advance our knowledge of the effects of syphilis on humans. In the New York City flyover, the justification for the event includes nothing that could even begin to suggest a benefit from secrecy. In fact, as NBC's news anchor Brian Williams points out, this could have been a very public event with broad and positive coverage, along the lines of an air show, with people coming out with their children to see Air Force One for perhaps the only time in their lives. Instead, it was treated as a secret so important that New York's authorities were threatened with the loss of federal funds if they allowed the public to know about it.

I lived in Northern New Jersey and Manhattan from summer 2003 through summer 2007, and I have had loved ones living in New York City for all of my adult life. When I lived there, the daily normalcy of life was always accompanied by the sense that something could happen at any second that would plunge the world into chaos. A power failure in Fall 2003, a Blue Angels flyover in 2006, an explosion on the Upper East Side in 2007, and other events always brought to mind one question: "Is this terrorism?" Once lodged in the psyche, the fear of another attack is not easily shaken and is quite readily stoked.

When I was a judicial clerk in 2002-03, living in Oklahoma City, I experienced a similarly panicked moment. With Oklahoma City having been the site of the second most deadly act of terrorism on U.S. soil, and with the federal courthouse where I worked being located directly across the street from the bombing site, terrorism was never far from my mind. At one point, I had been ill for a few days with the flu and thus had not been paying attention to any local news (which I tended to ignore anyway, given my temporary resident status and the demands of the clerkship). One evening, as I was trying to recover from my illness, I started to hear helicopters flying overhead. Then I heard jets, then explosions. I stumbled outside to see what was going on, and I saw my neighbors wandering about in (what appeared to me to be) similar confusion. After another few minutes of escalating sounds of chaos, I gathered my pets and went to the basement, trying to imagine what was going on, who could be attacking from the air, and how to get out of town. I have never felt so terrified.

As it turned out, this was an elaborate fireworks display that was meant to celebrate the state's equivalent of Independence Day. Even though it turned out to be a reasonably well-publicized event, I have always thought that it was a fundamental error to use military imagery in a celebration among a population that would include shut-ins who remember all too vividly the 1995 attack on the Murrah Building. My confusion might have been merely due to unique personal circumstances, but how many people are we willing to ignore in the name of a good show?

President Obama has said that there will be an investigation into this week's grotesque and incomprehensible decisions by the U.S. military. I must say that this is an instance in which Obama's famed equanimity grated on me, since he almost appeared to be amused by the whole thing. The man who authorized the debacle has taken Rumsfeldian "full responsibility" and continues to hold his job.

It is common in situations where we unmask failures in government or business to demand that people lose their jobs, or at least are demoted and publicly shamed. Too often, public outrage is turned into near-vigilantism; and I certainly give President Obama credit for deflating outrage over the AIG bonuses last month, given how crazy the public (and Congressional) response had become. Investigations and full process are clearly appropriate here, and there is no reason to fire someone quickly just for the sake of firing them. Still, it would take an enormous surprise in this story for this not to be a firable offense, once the facts are in. Even good, qualified people can make career-defining errors, and this seems to be such a case, based on what we currently know. If we are ultimately told that this was simply an "unfortunate error" or some such double-talk, we will know that justice is not being served.

-- Posted by Neil H. Buchanan

11 comments:

Handy Fuse said...

"It is common in situations where we unmask failures in government or business to demand that people lose their jobs, or at least are demoted and publicly shamed. Too often, public outrage is turned into near-vigilantism; and I certainly give President Obama credit for deflating outrage over the AIG bonuses last month, given how crazy the public (and Congressional) response had become. Investigations and full process are clearly appropriate here, and there is no reason to fire someone quickly just for the sake of firing them. Still, it would take an enormous surprise in this story for this not to be a firable offense, once the facts are in. Even good, qualified people can make career-defining errors, and this seems to be such a case, based on what we currently know. If we are ultimately told that this was simply an "unfortunate error" or some such double-talk, we will know that justice is not being served."

I find your outrage over an incident that undoubtedly caused an emotion of fear in some but which--so far as I'm aware--caused at most slight harm to the public in interesting contrast with your advocacy of pardons for "those who designed, authorized, and carried out the Bush policy of abusing detainees" that was published last week in Findlaw.

I'm sure there's a subtle distinction in here somewhere.

Handy Fuse said...

My apologies for the previous comment Mr. Dorf. I note that this post was written by a Mr. Buchanan and not by you.

Neil H. Buchanan said...

As Handy Fuse belatedly noticed, it was Professor Dorf who wrote a column on FindLaw last week about torture. On this blog, Prof. Dorf described his argument as follows:

"[I]f the Obama Administration ultimately decides not to prosecute anybody for committing torture during the Bush years, the President ought to consider pardoning all those involved---and simultaneously explaining that the pardons are meant to acknowledge rather than deny wrongdoing."

In other words, the non-subtle point that Prof. Dorf made was that IF Obama decides not to prosecute, he should consider issuing pardons as part of a process by which we acknowledge that the Bush administration broke the law. (Pardons are not necessary if there is no law breaking.) Reading Prof. Dorf's comments as "advocacy of pardons for 'those who designed, authorized, and carried out the Bush policy of abusing detainees'" is, at best, misleading.

Regarding my argument, Handy Fuse belittles my "outrage over an incident that undoubtedly caused an emotion of fear in some but which--so far as I'm aware--caused at most slight harm to the public." I'll let that moral statement speak for itself.

Handy Fuse said...

Mr. Buchanan, I appreciated the point that Mr. Dorf made in his Findlaw column. But I find it difficult to concur with his conclusion (as you present it)--"IF Obama decides not to prosecute, he should consider issuing pardons as part of a process by which we acknowledge that the Bush administration broke the law. (Pardons are not necessary if there is no law breaking.)"

I am not a member of the legal profession so I suppose I must be careful here, but I will have to take exception to the notion that "Pardons are not necessary if there is no law breaking."

Pardons may be issued before there has been a determination of law breaking, as Gerald Ford demonstrated in the matter of Richard Nixon--"THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974."

This left Nixon free to go his merry way and argue that he had not in fact ever broken the law. Whether Nixon actually made such an argument in a public forum I do not know. But you may take it as a given that, in the event of a pardon, those currently in jeopardy of prosecution for torture most certainly will. And there will be no judicial or Congressional finding to contradict them.

As for the second portion of your comment, concerning my "belittling of [your] outrage," I would ask you to recall that my comment was made in a context in which I believed at the time of writing that posts published in "Dorf on Law" were in fact written by Mr. Dorf. Thus I was pointing to a contrast in what I supposed to be his views--in which the fear engendered by the sight of a jumbo jet flying overhead should be the cause of "heads to roll" while the agents of torture should receive pardons.

I assure you, Mr. Buchanan, that I do appreciate your fear. I have felt fear--even for my life--in a number of situations, and I do not recommend the experience to anyone.

Michael C. Dorf said...

Okay, I'll take the bait. Handy Fuse suggests that it's inconsistent to think: a) the person who authorized the NYC Air Force 1 flyover should be fired (absent some really good explanation); but b) the authors of the Bush policy of abusing prisoners should be pardoned if they're not going to be prosecuted. Presumably the claim of inconsistency rests on the uncontestable proposition that torture is worse than poor judgment about unintentionally freaking people out. That proposition is indeed uncontestable, but Handy Fuse is wrong in his conclusion, and for at least three reasons.

1) As Neil notes, I said pardons might be appropriate IF there is no prosecution.

2) Even subtracting the conditional nature of my proposal, it's not inconsistent, because the authors of the Bush policy have already suffered exactly the consequences Neil advocates for the flyover-authorizer, so this is not a case of the worse actors getting more favorable treatment. Neil was not, after all, arguing that the guy who authorized the flyover should be criminally prosecuted.

3) Handy Fuse is right that it's possible to interpret an unadorned pardon as vindicating the pardonee, which is why I said that Obama's pardons, if issued, should be explicitly accompanied by a statement making clear that this is a formalization of the policy of "moving on," not a vindication of the underlying policy, which it condemns. Sure, conservative talking heads would say "they've been pardoned so they did nothing wrong," but that would be as clearly false as many of the other things such people say.

Sobek said...

"...this week's grotesque and incomprehensible decisions by the U.S. military."The decision was made by a White House staffer, Louis Caldera. Don't blame the military for Obama's staffer.

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較為潮溼的地方所以生長了許多白蟻他在網路上做了許多的搜尋的動作要的工作較佳的不一定是真的有那麼人找他們除蟲這個問題如果沒有解決即使找來搬家公司也是英雄無用武之地世界怪譚台北是一個人口聚集的地方需要台北搬家的人也特別多所謂人人都愛住在有山有水的地方自然蟲也會特別多所以除蟲就變成一個重要的工作不論年際多大都要參與我到網上的除蟲教學中心他們除了指導你們如何除蟲外更為中和地區的人服務教他們如何中和搬家這是他們在做遷習時必須學習的課題但是看到蟑螂還是會讓人想把它捉起來

奇文怪章:幾年前流行性感冒侵襲花壇鄉於是他們那邊的搬家公司就生意特別好,因為接到許多生意是要幫他載人去這樣當有人需要找除蟲時我們就可以很順利的找到我們要中和搬家了因為東西實在太多太重跟本不可能搬的動像冰箱鋼琴又找來新店搬家來幫忙只能說他們真是大力士一下子就搬完了

股市奇聞最近股票都一直漲牛市衍然形成許多賺到錢的人想要搬家到台北於是找上了台北搬家公司來幫忙搬但是東西太多他們竟然的搬但是這樣太慢等他們搬好太陽都下山了板橋搬家的老闆陳先生表示由於許多員工都是草梅族所以都沒力氣永和搬家有十多年經驗的謝經理也說他們也遇到相同的情況還有人見到老鼠當場嚇暈的真是無言以對

雅文共賞阿明是一個非常愛寫作的人他在中和搬家上班他很有心在工作的空檔都會拿出他們筆在寫作有一次因為太專心寫作忘了工作於是被老闆開除他又到另一家桃園搬家工作但是他都老毛病又犯了寫作寫到又忘了工作又被開除他就開回頭車回公司去辦理離職手續並且他把捉的十多隻小老鼠帶回家去那是他的寶貝他細心的幫他們消毒完讓他們可以快樂的生活

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