The Case Against ‘Too Big to Fail’

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It is a brisk October morning in Flushing. Rachel Karas, like every other Flushing 18 year old, is driving to school. She is a senior, and although the morning rout she has taken practically all her life hasn’t changed, the rout itself has. Rachel used to be driven down a more crowded road. She used to see kids running around the yard sprinkler, while their parents sat outside and read the paper before work, just outside the tinted windows. The sounds of dogs barking everywhere, and bird feeders attracting the gentle sounds of humming birds, defined the quaint Michigan suburb. Now, Rachel drives by more foreclosure signs than traffic lights. “Foreclosure doesn’t affect just people who couldn’t pay their mortgages,” Rachel says. “It affects everyone.”

If there were any benefits to be salvaged from the 2008 Global Financial Crisis, a stark improvement of the national economic lexicon would have to be one of them. Before 2008, if you weren’t receiving a multi-million dollar bonus for Christmas, you simply weren’t using phrases such as “credit default swap.”

Another term, people rarely used before 2008 is “too big to fail.” And if only people did, for it is a word that destroys lives, lives such as many of Rachel’s friends, the good people of Flushing, Michigan. Corporations that are too big to fail increases the likelihood of an economic crisis, has the potential to hold the taxpayer and the government basically for ransom, and limits free enterprise. It is on those grounds that it is in the best interest of the United States and its people to prohibit companies from growing too big to fail and break up the ones that do, or put our economic prosperity and democratic tradition at grave risk.

Senator Bernie Sanders of Vermont, introduced a bill to the senate called The Too Big to Fail, Too Big to Exist Act of 2009 that defined the term too big to fail as “any entity that has grown so large that its failure would have a catastrophic effect on the stability of either the financial system or the United States economy without substantial Government assistance (Stein).” Avery different definition than how the phrase was understood pre 2008.

“Too big to fail” was a phrase that used to refer to companies that were literally perceived to be too big to fail. Companies that had funds so diversified and so tied up in every crevasse of the economy that they came to represent such a substantial and stable portion of our economic system, their collapse seemed impossible. Yet in reality, these companies were as too big to fail, as the Titanic was unsinkable, and like the Titanic, resulted in the destruction of innocent lives and families.

This leads us back to Rachel. It’s hard to imagine, giant investment firms all the way on the east coast can alter a small town like Flushing. But it drastically can. It all begins with a bit of deregulation and a mortgage.

About a decade ago, three Republican senators named Gramm, Leach and Bliley, unveiled the Financial Services Modernization Act of 1999 (Gramm). After callously being signed into law by a president, desperately wanting to appear middle of the road, Bill Clinton shamed the New Deal and nailed one of President Franklin Delano Roosevelt’s crowning legislative achievements into the coffin.

The Financial Services Modernization Act of 1999 repealed the Glass-Steagall Act of 1933 (Gramm). What this means is that until 1999, it was against the law for a commercial bank, an insurance company and or an investment bank to combine. This essentially stopped any company from becoming “too big to fail.” By repealing the act, “Gramm-Leach-Bliley in turn gave bankers what they had craved all along: unfettered ability to mingle banks and brokerages and watch them grow, grow, grow (Serchuk).” This gave rise to the hegemony of firms like Citigroup, AIG and Lehman Brothers.

In fact, lending that terminology to companies like Lehman Brothers and AIG aided in their collapse by causing a moral hazard. Since these firms knew that in the unlikelihood of their collapse the United States government would be left with no choice but to bail them out. They had no incentives to take precautions when making risky investments. If the investments paid off, huge profits, if they did not, it would be the taxpayer who picks up the gambling debt. Heads Wall Street wins, tails, the people lose.

During the 1990s, there was a massive push to get people into homes. Housing prices were on the rise. The mentality was even if you can’t afford a house now, take out a mortgage, buy it, and when the price of your home rises, refinance your mortgage and make money. Allen Greenspan, chairman of the Federal Reserve at the time, basically said that your house was like your own personal bank (Warning).

“When I was little, there were new people all the time,” Rachel seemed to remember fondly. “Now people are fleeing their homes.” This is where the mortgage comes in.

When one buys a house, one typically takes out a mortgage. After the repeal of Glass-Steagall, the bank that lends you the mortgage can then sell that mortgage to an investment firm, who then gets the return from the interest rate. But the investment bank wants more, so they borrow a lot of money from a Wall Street firm such as AIG or Lehman Brothers to buy bundles of mortgages packed together by the bank lenders (

Everyone is making a lot of money because at this time it is rare for someone to default on their mortgage. When someone does, the bank repossesses the property. That property has risen in value so when the bank sells it, they still make a profit.

But what happens is that investment firms start to compete furiously for mortgages and banks keep making money off of them so they offer up more and more, and to get more mortgages, they eventually have to lower their loaning standards to the point where all you really need is a pulse to get a loan. Sometimes not even. The lowering of loan standards got so bad that there was a case in Ohio, where 23 dead guys were approved for mortgages (Blumberg).

Eventually so many people were in houses the demand went down, and when the demand went down, house prices went down. When that happened, all the un-loan-worthy homeowners started to rapidly default on their mortgages causing the homes of everyone around to go down in value. Now investment firms cannot pay Wall Street back the money they leveraged to pay for all the mortgages and huge, giant, “too big to fail firms,” start to collapse ( All this could have been avoided if Glass-Steagall act still remained on the law books.

There are two very serious misconceptions about the housing crisis. The first is that no one saw it coming. The second is that only the irrespirable got hurt by it.

The claim that these investment firms never expected the housing market to burst is false. The eight senators who voted against the Financial Services Modernization Act of 1999 saw it coming. In fact Senator Byron Dorgan even said “I want to sound a warning call today about this legislation. I think this legislation is just fundamentally terrible (Stein).” He later went on to make further statements practically predicting the collapse of the financial market.

Financial Service firms, such as Goldman Sachs placed bets on when it would happen. In this way they were able to make huge short term profits before the bubble burst, then profit some more once it did and then have all the bad investments made along the way be subsidized by the government.

It was this vicious cycle of logic and perpetual greed that not only caused the financial crisis but actually increased the size of major too big to fail companies. Bank of America’s combined assets grew by 138% since the crisis (Cho). In the first quarter of 2009, Goldman Sachs earned $1.8 billion dollar profit. As opposed to the $ .8 billion it earned in the third quarter of 2008 and the $2.1 billion it lost in the forth quarter (Barr).

The claim that only those responsible, the risk taking firms and the people who should not have taken out loans they could not pay back, were hurt by the crisis can be dis-proven by Rachel’s story. Her parents are in good financial standing, always paid the mortgage on time. But those who defaulted on their loans around her caused her family’s property value to go down. As property values decrease and people flee their homes, the town’s property tax revenue is dealt a huge blow and cuts must be made to compensate. The quality of public works and maintenance worsens and the neighborhood appeal worsens with it.

The only school district in the area is forced to make serious cuts and lay off teachers. Rachel’s mother, who has a master’s degree in education, now can’t get a job and their family cannot move because they cannot afford to sell their house, because of the decrease in its property value. Thus the innocent circumstantially suffers at hands of a level of greed and irresponsibility far outside the realm of control.

The moral hazard, too big to fail companies vindictively take advantage of poses a threat to United States democracy. These institutions become so large and so deeply engrained into the fabric of American society that when the gambles they take start to bring them down, they can literally hold our economy at ransom for the money they need.

These CEOs and bankers were not elected or appointed and yet have significant leverage over the success of the nation. We are forced to cater to their needs or risk losing our jobs, our homes or any possibility of economic prosperity. It has gotten to the point where these firms literally hold our money hostage. It’s not democracy, it’s economic slavery.

What is most frightening with this reality is that in modern American culture, where children are basically taught from elementary school on, that capitalism is the supreme system, that greed is good, the poor are lazy, and the American dream is being able to afford a private jet with enough room to fit your hummer, many of us see nothing wrong with these business practices. In fact the higher ups are often admired and hailed for their financial genius. Yet what the average capitalist advocating American fails to see is “too big to fail” firms actually establish a socialist system. But it is socialism of the worst kind, socialism for the rich and cold, unforgiving capitalism for the poor.

During the housing crisis, the wealth of every individual in the Untied States needed to be redistributed to all the banks and investment firms that were loaded with toxic assets and involved in mortgaged back securities, in order to keep them from going under. Yet on the flip side the hundreds of thousands of Americans who had their homes foreclosed upon as a result of their recklessness were left to pick themselves up by their bootstraps. In the first four months of 2008, 156,463 families had their homes repossessed, and that number kept steadily rising as the crisis persisted (Christie). From the financial crisis to now, that number has jumped to over one million (Collins).

What is most tragic is the fact that it would have been cheaper for the American people to bailout all the families who lost their homes then the multi billion dollar corporations who screwed them over. $800 billion could have easily paid for the mortgages of one million homes. That is why too big to fail forces us to socialize the losses of the rich and let them capitalize on the gains. The people in return receive nothing.

Too big to fail firms limit free enterprise. Because they make up such a large portion of the financial industry, they often merge, buy up smaller banks and companies or force them to go under. The fewer the financial companies and the bigger they are, the more of the wealth they control. So when financial firms start to get wrapped in a cycle of risky investments and go under, and they control such a large portion of the economy, everybody suffers.

A strong economy is a diverse one. Preventing corporations from growing too big to fail would mean there would be more finical institutions, making less risky investments, given rise to a stronger middle class. Right now there is a very wide class disparity. Before the financial crisis the top 20% of the US population controlled 93% of the wealth. The last time the concentration of wealth was that high was right before the Great Depression (Domhoff). When the concentration of wealth is in the hands of the many, the risk is pooled and the economy is more stable as a result.

Since the 2008 financial crisis, there has been no significant change in the way Wall Street is regulated. No bill has yet been passed. In fact, the actions the US government took in containing the crisis, although necessary, without proper reform to come swiftly after, shows Wall Street that we will always be ready to pick up there tab when they make risky investments. Therefore, once again, leaving no incentive for them to make careful ones.

It was once a crime for financial institutions to grow too big to fail and it ought to be again. If congress brought back Glass-Steagall, it would show Wall Street that the people of the United States don’t take kindly to having their livelihoods gambled with. Rachel Karas and her family do not take kindly to being gambled with. Her, her neighbors, the American people are not assets, are not investments, but hard working and sound individuals, trying to make their way in our free society. Bringing back such legislation, legislation that President Roosevelt deemed essential in repairing the damage caused by the Great Depression, would now serve to eliminate the leverage corporations have over the American people, and we will be a more secure and prosperous nation for it.



Works Cited

Barr, Collin. “Goldman Posts a Huge Profit – Apr. 13, 2009.” CNN Money. 14 Apr. 2009. Web. 08 Apr. 2010. <;.

Blumberg, Alex, and Adam Davidson, dirs. “The Giant Pool of Money.” This American Life. NPR. Chicago, Illinois. 09 May 2008.

Blumberg, Alex, and Adam Davidson, dirs. “Another Frightening Show About the Economy.” This American Life. NPR. Chicago, Illinois. 3 Oct. 2008.

Cho, David. “Banks ‘Too Big to Fail’ Have Grown Even Bigger –” Washington Post, 28 Aug. 2009. Web. 08 Apr. 2010. <;.

Christie, Les. “Foreclosures Spike 112%, with No End in Sight – Apr. 29, 2008.” CNN Money. 29 Apr. 2009. Web. 08 Apr. 2010. <;.

Collins, Jeff. “1 Million U.S. Homes Lost to Foreclosure since 2008.” Mortgage Insider. The Orange County Register, 8 Mar. 2009. Web. 07 Apr. 2010. <;.

Domhoff, William. “Who Rules America: Wealth, Income, and Power.” Sociology.usc. University of California Santa Cruze, Feb. 2010. Web. 08 Apr. 2010. <;.

Glass, and Steagall. “The Glass-Steagall Act A.k.a. The Banking Act of 1933.” Internet Archive. Web. 08 Apr. 2010. <;.

Gramm, Leach, and Bliley. “S. 900 [106th].” Tracking the U.S. Congress. 9 Nov. 1999. Web. 08 Apr. 2010. <;.

“Gramm-Leach-Bliley Act of 1999.” United States Senate Committee on Banking, Housing and Urban Affairs. 1 Nov. 1999. Web. 08 Apr. 2010. <;.

Jarvis, Jonathan. “The Short and Simple Story of the Credit Crisis.” The Crisis of Credit Visualized. 17 Feb. 2009. Web. 08 Apr. 2010. <;.

Kirk, Michael. “FRONTLINE: The Warning.” PBS. 20 Oct. 2009. Web. 08 Apr. 2010. <;.

Serchuk, David. “Glass-Steagall Fans Are Not Fools.” The Huffington Post. 2 Apr. 2010. Web. 08 Apr. 2010. <;.

Stein, Sam. “Glass-Steagall Act: The Senators And Economists Who Got It Right.” The Huffington Post. 11 May 2009. Web. 07 Apr. 2010. <;.



Indy Freedom Final: On Democracy

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The whole of the twentieth century is categorized by determining the best form of government. In the end, democracy won out. Today, representative democracies are considered the most legitimate form of government. Yet the notion of democracy is not as new as one might think. Ever since the ancient times, philosophers and thinkers have written extensively on defining democracy. They have vehemently debated what constitutes one and whether it is the best form of government for the benefit of citizens.  Views on democracy are widely varied and span thousands of years. Three philosophers who have contributed much to this ongoing raging discussion are Plato, John Locke, and Karl Marx.

Plato carried out his life in the dwellings of the Ancient Greek democracy known as Athens. Athens has been somewhat of an inspiration for many modern democracies today. Yet when Plato wrote The Republic he expressed a profound cynicism and contempt for the system. Bear in mind, he wrote during the aftermath of Athens’ crushing defeat against the military oligarch of Sparta during the Peloponnesian war.

Plato categorizes people based on the hierarchy of their soul. He believes the soul is divided into three parts: knowledge, spirit, and appetite. Philosophers, such as himself, place most importance on knowledge and truth seeking, therefore are the most fit and least corrupt people to rule over a state. The wealthy, honorable and courageous are the most spirited and end up ruling over oligarchies and those who place importance on appetite govern democracies.

For Plato, organization of the soul is a microcosm for the state. Democracies are governed by appetite. He believes this is the second worst form of government.  Democracy places too much emphasis on equality. Plato believes the notion of equality is silly and dangerous. All pursuits of appetite are entitled and equal. One’s desire to cure cancer is as equal and respected as one’s desire to break a world record in eating the most hotdogs.

Plato writes that this aspect of democracy inevitably leads to the worst form of government, which is tyranny. If in the democracy one’s appetite is power, one will do all that is necessary to obtain it in absolute form. He takes control by any means.  For him, the ends always justify the means. He turns the democracy into a state that is ruled both by his love of power and fear of losing power. The tyrant is paranoid and isolated. He is in control of the sacred and the profane.

Generations pass and the world shifts from ancient times to the period known as the enlightenment. It is in this period where John Locke makes his major contribution to democratic theory. Locke is considered by many to be the father of modern political philosophy. This is also called liberalism.

The liberal has fundamental disagreements with the ancients. Where ancient philosophers believe that lives are fated, notions such as justice are absolute and not everyone is equal, liberals believe that man is in control of its own destiny, that there should be emphasis on progress and that, at least in the state of nature and public life, we are all equal.

Locke is a proponent of the idea that humans are endowed with certain inalienable rights. These include, but are not limited to, the right to self preservation, pursuit of desires, freedom of worship, the right to subdue and cultivate the earth, and the right to protect property. These rights exist in the state of nature, which is a world without government. The human capacity for reason is what protects these rights in the natural state. The issue that emerges is that in the state of nature reason is not guaranteed. Locke believes that people must consent to a governing body that respects and enforces these rights. Government, for Locke, is guaranteed reason.

Locke describes two ways in which people consent to government. Government is set up through popular sovereignty, the nature of democracy. After the government is set up, those who are born into it consent tacitly. There is a representative body that creates laws. Laws must be consistent with natural laws and are designed to protect freedoms. They are a check and balance to ensure that people’s pursuit of desires do not conflict and inhibit the pursuits of others. People are free in all areas where there is an absence of law. Laws must only be created when they are necessary, therefore the representative body is not constantly in session.

The executive, however, is constant. It is the job of the executive to enforce and interpret the laws made by the representative body. The executive also holds the right to punish those who violate the laws. This is the basis for the set ups of most modern democratic governments.

Locke gives rise to the concept of paradigms. One is the separation of church and state. The state deals with the protection of life and rights while the church deals with the salving of souls and the afterlife. Locke believes that no one can know the true religion, so the state must tolerate all of them and religions must tolerate each other. Locke believes that the only two groups who are incapable of this kind of toleration are Catholics and Atheists. He writes that Catholics cannot honor the political body because the agenda of the pope contradicts and supersedes the state. Locke feels that due to the absence of religion, Atheists have no incentive to honor contracts and the consent of government.

The other paradigm is that of the public and private. Man is equal in the state of nature and like in most modern democracies, equal under the law and in public life. However man is not meant to be equal in private life and ownership. Locke was a very wealthy man and desires a government that is determined to protect wealth and property. Man owns what he has applied labor too and that must not be infringed or taken away. Locke believes the best way to distribute resources in a democracy is through a free market based on currency, in other words, a capitalist society.

A few hundred years after the enlightenment comes the industrial revolution. During this time, the United States is a powerful representative democracy. Its founders used the basis of Locke’s ideas to write its constitution and set up its government. The US is also one of the most successful capitalist and industrialized competing powers in the world. The country has generated a substantial amount of wealth and innovations enjoyed by its citizens. The United States is basically the embodiment of Locke’s principles and philosophies. This is also the time in which Karl Marx lays down a philosophy of his own.

Marx writes that all of human history is categorized by class struggle. This class struggle exists in stages. It began with master and slave, later came serf and lord, presently there is capitalist and worker. Marx and Locke are both liberals and both believe in progress. There is progress within these stages. Marx says that those who live in capitalist democracies, such as the United States, enjoy the most freedoms and best lives of all generations before them. Yet capitalism is in no way an end. It is the final stage before communism.

Marx takes issue with many of the presumptions of capitalist democracies. One in particular is the paradigm of public and private life. Marx does not believe they are consistent but rather a contradiction. The private and the public have different goals and agendas that need to be fulfilled.

This paradigm is a result of political emancipation, the progression from religious based states to democratic ones. What comes next is human emancipation or communism. Marx challenges the notion that freedom and equality is categorized by government guaranteed rights. True freedom and equality exits under communism, where there is no concept of separate states, property, and public and private life. Capitalism is the stage in which most of the wealth needed to sustain communism is produced. This is why Marx says that a democracy like the United States is the best launching point to move in that direction.

Marx writes that democracy and capitalism come out of the feudal period. Back then, the struggle was between lord and serf. There was also a ruling king. But during feudalism there existed a money making merchant class. These people were largely self made and began to question authority and arcane ideas. This is why there is great emphasis on rising above the previous generations and individual worth and gain under capitalism. Therefore those who live in democratic capitalist society are naturally questioning of government authority.

Ironically enough, the system is set up so that the working class perpetuates the authority of the capitalists on the top. They enable their own oppressors. This is a result of worker alienation. Workers are alienated from the product they produce because they do not own it and reap its rewards. They are alienated from the process due to the division of labor. They are alienated from themselves because work is no longer something they enjoy but something they must do for a wage to survive. Because they are alienated from themselves they do not see themselves in others and are thus alienated from each other, making it difficult to unite.

As it is natural for citizens of capitalist democracies to question government authority, it is natural for citizens to question self perpetuated authority once it is recognized. The goal of Marx’s writing is to help others recognize and understand this so that they can question the presumptions of capitalism. Once this happens, Marx believes the working class will rise up out of the democratic capitalist stage, which Locke has described, into the final stage of communism.

Plato, Locke and Marx all come from different times and write widely differing views on democracy. Plato says it is the second worst form of government and will devolve into tyranny. Locke says it is the best form of government and is a free market institution to ensure life, liberty and property. Marx believes that it is the current best form of government that will eventually evolve into communism, where there is no free market and property. At the end of the twentieth century, democracy may have emerged as the dominant form of government in the world, but its definition, its merits, and its benefits have been debated throughout the history of human civilization and still being debated today. Democracy may currently be the dominant form of government, but whether it is the best form still has yet to be seen.

National Security Final Paper

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U. S. Department of Justice

Office of Legal Counsel



Office of the Deputy Assistant Attorney General                                                                     Washington, D.C. 20530

April 5, 2011

President Barack Hussein Obama

The White House

Washington, D.C.

Dear President Obama,

You have requested the views of our Office concerning a re-assessment of interrogation methods outlined in the August 1, 2002 Yoo-Bybee memo regarding Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A. More specifically you have asked if the methods deemed legal by Yoo should be reinstated by the Central Intelligence Agency in order to interrogate the recently captured Nasir Abdel Karim al-Wuhayshi, also known as Abu Basir. The C.I.A. has requested authorization for the limitless use of several interrogation methods that we consider torture. We concur with the U.S.C. definition of torture. The techniques sanctioned by John Yoo and Jay Bybee as well as the ones requested by the C.I.A. is in violation of this statute. We recognize hypothetical scenarios in which violating Section 2340A could be justified. The C.I.A. does not have sufficient evidence that the United States is under imminent threat of attack or that torturing al-Wuhayshi could prevent an attack. This letter summarizes our views and explains our reasoning.


18 U.S.C. §§ 2340-2340A is extraordinarily clear in defining torture. Torture is “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control (Reading #13, p. 5).” This includes prolonged mental harm, intentional infliction of physical pain, the use of mind-altering substances and applications, and the threat of imminent death. Even threatening a detainee with torture counts as an act of torture.

The law applies to all areas within in the United States as well as “commonwealths, territories, and possessions.” This includes prisons such as the one in Guantanamo Bay. The Bush administration argued that Guantanamo Bay existed outside the jurisdiction of U.S. law in Rasul v. Bush (2004). The Supreme Court determined that the U.S. has sufficient sovereignty over Guantanamo Bay and therefore U.S. laws apply (Reading #12, p. 96). The Office of Legal Counsel concurs with this opinion.

Even if the Supreme Court ruled in favor of President Bush and Guantanamo Bay did not count as a possession of the United States, Section 2340A would still apply. Section 2340A concerns American citizens all over the world.  If an American citizen violates 2340-2340A they are liable for prosecution. This includes soldiers and intelligence officers stationed overseas.


John Yoo states that his memo’s definition of torture is in line with Section 2340A. It clearly is not. Yoo believes that severe pain must be inflicted for an interrogation technique to be considered torture. He explains that severe pain is limited too “serious physical injury, such as organ failure, impairment of bodily function, or even death.”  Yoo believes that for a technique to cause mental pain it must be sustained for months, maybe even years (Reading #13, p. 4).”

Yoo’s definition of severe pain is extreme and arbitrary. There are ways to inflict intense agony without causing or equivocating organ damage or impairing a bodily function. Under Yoo’s definition bleeding, and beatings are all perfectly legal interrogation methods.

Yoo’s definition of mental pain is also extreme and arbitrary. It fails to take into account lasting trauma Yoo’s “enhanced interrogation techniques” can cause, even if only done for a few hours. Sleep depravation for three to four days can potentially cause permanent brain damage. This is a technique the CIA is requesting to use now and that Yoo has sanctioned. Section 2340A bars drugs or procedures that can alter “the senses or the personality (Reading #13, p. 12).” Sleep deprivation can cause hallucinations, which do just that.

Yoo believes that waterboarding does not violate Section 2340A. He would argue that it does not cause severe pain. Waterboarding does not impair a bodily function, nor does it result in organ damage. Waterboarding is simulated drowning. In many cases the detainee believes he will drown unless the interrogator intervenes. Section 2340A explicitly says that threatening a detainee with imminent death is torture (Reading #13, p. 6). Section 2340A could not be more clear on this. Waterboarding is torture.


Yoo takes the time to spin Section 2340A to legally justify the actions the CIA, the military and the Bush Administration wanted to take against detainees. He goes on to say that even if the administration violates Section 2340A it would not matter. John Yoo argues that Article II of the Constitution establish the president as the “Commander in Chief (Reading #13, p. 19).” Yoo interprets this to mean that he can define the scope of his own wartime powers. The president can decide when there is a war, what he needs to do to win the war and how he would like to treat detainees and prisoners of war. Yoo believes that laws passed outside the Executive Branch that set parameters on what can be done in the context of war, including Section 2340A violate the president’s constitutional authority.

This argument holds no ground. Precedent has often recognized limitations to presidential powers in regards to war and foreign affairs. United States v. Curtiss-Wright Export Corp (1936) showed that Congress has the power to direct the president to enforce arm embargos of foreign countries (Reading #12, p. 109). In the Ex Parte Milligan (1866) Case Lincoln was not allowed to try a captured Confederate under a military tribunal because he was captured where civilian courts were still operating (Reading #5, p. 1). The Supreme Court ruled that in Rasul v. Bush (2004) detainees at Guantanamo Bay were entitled to habeas corpus and cannot be held indefinitely (Reading #12, p. 96). These are just a sample of cases that emphasize that the president’s wartime powers are not limitless. Yoo is wrong in thinking that it is.

The framers of the constitution did not intend for the executive’s wartime powers to be limitless. There are clear checks and balances in the constitution to ensure that it is not. Yoo writes that as Commander in Chief, the president decides when we are at war and with whom. Yet Article I of the constitution states that congress has the power to declare war. Congress also has the power to fund or not fund the military (Reading #13, p. 18). George W. Bush still sought authorization for the use of force before the invasions of Afghanistan and Iraq. That is essentially a modern day declaration of war.

The Constitution and the Supreme Court has made it clear that the president, even in wartime, is still bound by law. Therefore the Executive Branch must comply with Section 2340A.

The United States is also a participant and signer of the Geneva Conventions. In those conventions we have agreed not to torture enemy prisoners. Yoo argued that captives from the war on terror are not typical prisoners of war because it is a “new kind of war.” The war on terror requires obtaining quick result from interrogating detainees and the president can choose to sidestep the torture provision of the Geneva Convention (Reading #13, p. 2). On this point, Yoo is also wrong. In the Prize Cases during the Civil War, the Supreme Court stated that it is possible to have undeclared defacto wars. Both sides of a conflict do not have to sovereign nations for a war to exist (Reading #12, p. 19). In defacto wars, the laws of war still apply. Those taken captive by the U.S. military and the CIA in connection with the war on terror are prisoners of war and therefore the United States must comply with Section 2340A of U.S. Code and the Geneva Conventions when interrogating.


The CIA has requested authorization to use several integration techniques on Nasir al-Wuhayshi. The first is waterboarding. The CIA cannot waterboard al-Wuhayshi. Section 2340A says the threat of imminent death is torture. Waterboarding is simulated drowning and therefore violates the section.

The CIA would like to use sleep deprivation on al-Wuhayshi. Sleep deprivation can alter the senses and personality. It can cause hallucinations, paranoia and brain damage. This is barred under Section 2340A. Sleep deprivation can be interrupted as causing prolonged mental pain. The CIA cannot use sleep deprivation as an interrogation technique.

The CIA discovered that al-Wuhayshi is afraid of sharks. They requested that he be put in a tank with lemon sharks. The agency believes that lemon sharks look menacing but are harmless, unless provoked by a human. Al-Wuhayshi reaction to the sharks could easily provoke the fish. This can result in his death. There are too many unknown variables to incorporate animals in interrogation. This technique should not be authorized.

Lastly the CIA wants to deprive al-Wuhayshi of food or water for several days. They understand this could cause the body to go into shock. The CIA claims they will have doctors ready to intervene if this happens. Food and water depravation can also result in muscle spasms, convulsions and hallucinations. This technique disrupts the senses, can cause lasting bodily harm and may result in death. Food and water depravation for several days clearly violates Section 2340A.

There are a plethora of traditional legal integration techniques that are available for the CIA to use. The FBI has already obtained important information from al-Wuhayshi using traditional law enforcement techniques. There is no reason why the CIA cannot continue this progress using the same techniques.


There is a movement in the United States to reform and legalize torture. The movement draws its arguments from hypothetical scenarios in which torture is the only technique that can be employed to obtain the desired results in time. The most widely sited of these hypotheticals is the ticking time bomb scenario. A creative individual can conjure up an anecdotal hypothetical to justify the use of any policy.

Be that as it may, the Office of Legal Counsel recognizes that there are extreme scenarios such as the ticking time bomb where torture can prevent an imminent attack on American civilians. That does not mean torture techniques should be legal for all cases in connection with the war on terror. The United States should not be making broad policy based on a narrow and improbable hypothetical.

Torture can remain illegal on a board level and still be used under extreme circumstances.

An individual can be excused from a crime if it is committed to prevent a more serious crime. If someone crashes their car into a store to avoid running over a child, they can be excused from the damages to the store. If it can be proven that a terrorist attack is imminent and proven that a detainee in our            custody knows the necessary information to prevent it, interrogators can torture the prisoner. They will still be committing a crime but in order to save American lives. In Justice Black’s majority opinion of Korematsu v. United States (1944) he stated that the Japanese internment camps were constitutionally suspect but justifiable during times of “emergency and peril (Reading #8, p. 20).” The same could be said of the ticking time bomb scenario.

The CIA has justified their request for the use of these interrogation techniques by stating that al-Wuhayshi may have information regarding future plans to attack the United States. The agency is concerned that terrorists may strike around the tenth anniversary of the September 11, 2001 attacks. CIA interrogators would need to prove in court that they know this attack is being planned and is not a theory and that torturing al-Wuhayshi is the only method at their disposal to prevent it. If the CIA cannot do that then they will have to stick with traditional law enforcement techniques or face prosecution.

Please let us know if we can be of further assistance.


     Jesse Medalia Strauss

                                     Deputy Assistant Attorney General

America’s Media Oligarch

Download Document: AmericaMediaOligarch

Ever since the framers of the constitution established the American government in 1789, it was understood by the first amendment that all Americans would have the right to access a free press. However, after recent deregulatory trends in governmental policy, major media conglomerates were given free rise to establish a system of media, which is not free but in actuality an oligopoly. Control over our vast and global media is now in the hands of a few select media conglomerates. Among these corporations are General Electric, Time Warner, News Corporation, Viacom, and The Walt Disney Company ( This centralization of media control has made it possible for these companies to heavily influence national discussion, culture, and public policy to further their monetary agenda. This growing trend in the organization of American media works against the public good in that the combined corporate drive to compete for ratings by amalgamating news and entertainment inherently misinforms and makes ignorant Americans of the events that affect our world.

Many would say there are three main categories of press in the world: state controlled press, partly free press, and a total free press. The best example of a state controlled press would be North Korea. Freedom House, which is basically an organization that monitors oppression throughout the world, describes the North Korean media as “the most repressive media environment in the world in 2008. The one-party regime owns all media, attempts to regulate all communication, and rigorously limits the ability of North Koreans to access information.” In this society all form of communication or expression is closely monitored or generated by the government. In fact the government oppression of the media is so inherent in North Korean society that in Diane Sawyer’s North Korea: Inside the Shadows, she asks North Korean school children about their favorite movies, and they all literally thought Kim Jong Ill made Toy Story.

Freedom House categorizes Bosnia as an example of a partly free state. A free press is part of their constitution and Internet access is unrestricted. However, there is a long history in the country of journalists being harassed, sometimes by government officials. “The number of threats and physical attacks against journalists increased substantially in 2008. In one incident, a member of parliament assaulted three journalists while attempting to bar them from covering an April press conference by his Party for Bosnia and Herzegovina (” A partly free press is basically a government that claims to have freedom of speech but the second a journalist goes to far, the government will take under the radar measures in an attempt to prevent a story from getting out.

In United States, the Bill of Rights establishes an independent and free acting press for the benefit of the people. However, how can the press truly be independent and free when most of everything the citizenry watches, reads, listens too, or downloads is filtered through a very select few corporations? Take General Electric for instance. General Electric actually owns NBC, The History Channel, A & E, The Biography Channel, The Crime and Investigation Network, Bravo, USA Network, SyFy, Oxygen, Universal Studios, Telemundo, Sundance, Hallmark, Hulu, The Weather Channel as well as a whole slew of local television news programs and radio stations ( Time Warner owns CNN, HBO, Cinemax, Cartoon Network, TNT, TBS, TCM, TruTV, as well as many local news networks ( Viacom takes MTV, Vh1, Spike, Comedy Central, TV Land, Noggin, Nickelodeon, BET, Logo and The N to name a few ( Walt Disney Company can boast ABC, ESPN, Lifetime, Jetix and most recently Marvel ( News Corporation own 20th Century Fox, 27 local news channels, Fox News, Fox, Fuel TV, FX, National Geographic, Speed, Stats, as well as 30 newspapers including the New York Post, Wall Street Journal and Dow Jones ( Clear Channel is the most extensive radio conglomerate in the US, owning a massive 1,100 radio stations (Campbell 137-38). In 1992, roughly twenty-four companies controlled 90% of the mass media in the United States, by 2000 that number has slumped to around 6 (Bagdikian).

Source: Understanding Media Professor Kumar

What all this means is that American media is essentially run by an oligopoly. An oligopoly is defined as “a state of limited competition, in which a market is shared by a small number of producers or sellers” (Oxford). However it wasn’t always this way. Only since the passage of the 1996 Telecommunications Act, did media companies truly began to consolidate their power. Before the act, the Federal Communications Commissions, the governmental program that is required to regulate communications, capped the number of broadcast stations one media company could own to “seven AM, seven FM, and seven TV stations nationally, and only one radio station per market (Campbell 137-38).” After the Clinton Administration passed the 1996 Act, the media oligopoly the United States lives under was finally able to firmly establish and engrain itself into the inner workings of society. There were now no restrictions on how many radio or television stations a corporation could own (Campbell). One of the many consequences of this Act is the rise of Clear Channel Communications, the corporation that is now the largest radio conglomerate in the history of man. Clear Channel began in 1972 as the modest owner of a San Antonio station. But from the time the Telecommunications Act was passed to present day, Clear Channel managed to accumulate over 1,100 radio stations (Campbell 137-38). Currently, second to Clear Channel is CBS Radio, which only own a mere 140 stations (Campbell 137-38). As a result, during the years 1995 to 2005 the number of independently owned radio stations declined by 33% (Campbell 137-38).

Like most institutions in the United States, the American news media is driven solely by profit motive, thus forgoing the obligation to report credible, balanced news that serves the best interest of the public. Instead they are heavily more focused on their ratings, thus instead of bringing factual, and worthy information into the living rooms of millions of Americans every night, they are broadcasting a plethora of celebrity gossip, political theatre, and as Jon Stewart would say, “partisan hackery.” An inevitable result of this, is crucial disinformation or out right lies being broadcasted as truth throughout the nation. A great example of this is when CNN news anchor Lou Dobbs repeatedly made claims that Obama has not produced significant proof of his American birth, even after the fact that a birth certificate was posted online ( investigated and concluded that the birth certificate met:

[“all of the requirements from the State Department for proving U.S. citizenship. Claims that the document lacks a raised seal or a signature are false. We have posted high-resolution photographs of the document as “supporting documents” to this article. Our conclusion: Obama was born in the U.S.A. just as he has always said (”]

Yet Lou Dobbs and other conservative media pundits still continued to deny Obama’s citizenship, even after the fact that it has been proven. A poll done by Research 2000 for Daily Kos concluded that 33% of Americans don’t believe or are not sure if Obama is actually an American citizen ( This belief was perpetuated by mainstream American media as possible fact.

Now picture an outdoor town hall. A lonely old senator nervously faces an absurdly angry crowd of middle-aged, white republicans who were most likely sent their by local conservative talk radio hosts to disrupt the senator carrying out his educational mission. The crowd shouts catch phrases like, “Obama is a socialist” or “we are afraid of Obama!”

Finally the Senator gets an opening. “Why are you afraid of Obama?” he asks the crowd.

One answer can be heard, “JUST WATCH GLENN BECK! (The Daily Show).”  In fact, the Fox News anchor has a segment on his show called “The Road to Socialism” where he has repeatedly made statements geared towards convincing America that Obama is determined to lead the United States on a path towards a socialist state. Statements such as “Every policy he (Obama) happens to support just, dumb, stupid luck, brings us toward socialism (,” is made regularly by Glenn Beck on his news program. This would all be fine genuine reporting if Obama actually was a socialist, however real socialist Bill Wharton said this about Obama, “The funny thing is, of course, that socialists know that Barack Obama is not one of us. Not only is he not a socialist, he may in fact not even be a liberal. Socialists understand him more as a hedge-fund Democrat — one of a generation of neoliberal politicians firmly committed to free-market policies (”

Now it is apparent that two major rival news agencies, CNN and Fox News, have both been exposed using news programs as a pulpit to engage in serious disinformation regarding our nation’s highest officials. The falsities that are being broadcast could potentially derail crucial policy or even national elections. Lou Dobbs insinuating that The President is not an American citizen and Glenn Beck reporting that he is a socialist, under normal capitalistic competitive circumstances it would make sense that rival companies would attempt to expose the other, thus proving to be more credible and demonstrating to the American consumer that they have a better service, one that will expose untruths and report facts like the news is supposed to do. However this doesn’t happen because major news networks have come to accept their oligopical sharing of the market. They have all simultaneously realized that they attract more viewers broadcasting half-truths and lies in a successful attempt to pander to the largest demographic of their audience rather than conduct any credible investigative journalism. It is in this way that the profit motives that drive major media conglomerates work completely against the public good and only serve to manipulate the masses into the continual watching of their distorted programs.

Contrary to popular belief, this is not a new revelation in the way news networks are behaving. In 1995 the New York Times reported that, “For the past decade and a half, journalism has been slowly squeezed into a smaller and smaller corner of the expanding corporations that make up the communications industry. The values and norms of journalism have been steadily eroded as corporate managers order news divisions to produce more “infotainment” programs (” In fact as early as 1967 President Lyndon B. Johnson realized that one of the best ways he can serve to educate and inform the public was to have the government establish an independent nonprofit organization that does just that. And so the Public Broadcasting Act of 1967 was passed, thus creating the Corporation for Public Broadcasting, which today also funds National Public Radio and the Public Broadcasting Service (

Upon signing the act into law President Johnson said, “The Corporation will assist stations and producers who aim for the best in broadcasting good music, in broadcasting exciting plays, and in broadcasting reports on the whole fascinating range of human activity. It will try to prove that what educates can also be exciting (” LBJ was right. Since the establishment of NPR and PBS the organizations have received a surfeit of some of the most prestigious awards in journalistic integrity. NPR alone has won 39 Peabody awards (, and PBS “received a total of 47 (emmy) nominations in 2009 — more nominations than NBC, CBS and all cable networks (” PBS won 6 news and Documentary Emmys, beating all competitors for the ninth consecutive year ( Due to the fact that they are nonprofit organizations, NPR and PBS act outside the media oligopoly, and their prestige makes clear that they are far superior when it comes to promoting the general welfare and educating, informing and serving the public good.

It is very dangerous when an industry that is as vital to the general public as news and media fall prey to the control of very few individuals who have no public obligations. When an oligopoly forms, profit motive replaces the drive for public good. This is why the government recognized that a non-profit corporation could be the only suitable back up to ensure that every American has access to credible and reliable programming. Sometimes the knowledge that you have served the good of your country can be just as powerful an incentive as billions of dollars. There is no greater testament to that fact than the many dedicated employees of the Corporation of Public Broadcasting.

Bill Kovach, former Washington bureau chief of the New York Times said in 1995, “This rush to merge mainly entertainment organizations that have news operations with companies deeply involved in doing business with the Government raises ominous questions about the future of watchdog journalism.” The ownership of the news media by few major entertainment organizations has created a climate that defeats the purpose of a free press. It has created a conflict of interest so massive that critical information fails to get reported accurately, if at all. Mainstream news is now about pandering to an audience and keeping them amused and entertained for as long as possible. This conflict of interest forces parent companies to sacrifice the general welfare of the nation for a colossal profit and directly contradicts how the founding fathers envisioned the role a free press would play in America. Despite the stronghold this oligopoly has, Americans can still receive information from nonprofit organizations such as the Corporation for Public Broadcasting who have still not lost the sprit of public service and journalistic integrity.

Works Cited

Bagdikian, Ben H. New Media Monopoly. Boston: Beacon, 2004. Print.

Beck, Glenn. “March to Socialism – Fuzzy math.” Glenn Beck Program. News Corporation, 23 Mar. 2009. Web. 11 Nov. 2009.

Billy, Wharton. “Obama’s No Socialist. I Should Know.” The Washington Post 15 Mar. 2009. Web.

Brand, Steve, prod. “North Korea: Inside the Shadows.” Primetime Live. ABC. 8 Dec. 2006. Television.

Campbell, Richard, Christopher R. Martin, and Bettina Fabos. Media & Culture: An Introduction to Mass Media. 7th ed. Boston: Bedford/ST. Martin;s, 2009. Print.

“Freedom of the Press.” 2009. Web. 10 Nov. 2009.

General Electric. Web. 11 Nov. 2009.

H., E. H. “Dobbs repeatedly makes Obama birth certificate claims his CNN colleagues call “total bull” |.” Media Matters for America. 17 July 2009. Web. 10 Nov. 2009.

Henig, Jess .., and Joe Miller. “Born in the U.S.A.” Annenberg Public Policy Center of the University of Pennsylvania, 21 Aug. 2008. Web. 10 Nov. 2009.

Johnson, Lyndon B. “CPB: Remarks of President Lyndon B. Johnson Upon Signing the Public Broadcasting Act of 1967.” CPB: Corporation for Public Broadcasting. Lyndon Baines Johnson Library. Web. 11 Nov. 2009.

Kovach, Bill. “Big Deals, With Journalism Thrown In.” The New York Times 3 Aug. 1995. Web. 10 Nov. 2009.

“Media Reform Information Center.” Corporate Accountability Project. ActionPA. Web. 10 Nov. 2009.

National Public Radio. Web. 11 Nov. 2009.

News Corporation. Web. 10 Nov. 2009.

“Oligopoly.” New Oxford American Dictionary. Web.

Public Broadcasting Service. Web. 11 Nov. 2009.

Stewart, Jon. The Daily Show. Comedy Central. New York, New York, 10 Aug. 2009. Television.

Thrush, Glenn. “58 percent of GOP not sure/doubt Obama born in US.” Robert L. Allbritton, 31 July 2009. Web. 10 Nov. 2009.

Time Warner. Web. 10 Nov. 2009.

Viacom. Web. 11 Nov. 2009.

The Walt Disney Company and Affiliated Companies – Corporate Information. Web. 10 Nov. 2009.

Snowpocalypse Now

Download Document: Snowpocalypse Now

If you live anywhere within continental United States, you are no doubt informed of the rippling snowstorm spreading across the country. Some citizens even experiencing snow for the first time. Many Texas residents had the pleasure of receiving a whole foot of the stuff dumped on to their unsuspecting roads and houses.

In Washington, DC, we experienced the worst snowstorm in 200 years. This storm was powerful enough to shut down the roads, metro, schools and even the United States government for a whole week. This storm was so intense; the district could not start plowing until four days in, making navigation and travel excruciatingly difficult. At American University, not only were classes canceled for a week, but part of the dining hall collapsed. Luckily no one was hurt.

From a crop freeze in Florida, to record high snowfalls across the country, to the crippling of our government, people, conservative talk pundits and the sheep that blindly follow them, are starting to doubt climate change. Well, not so much doubt, they have doubted climate change ever since the airing of the trailer of Inconvenient Truth. It is more accurate to say that they are delivering the rest of world a very snowy and unwarranted “I told you so.”

At first glance, this is puzzling. Certainly an abrupt spike in weather phenomenon that is unprecedented in recent history bares some evidence that our climate is in fact changing. Scientists have stated over and over again that the shift in the Earth’s atmosphere will result in a higher frequency of storms that will become increasingly more severe.

But unfortunately we made a colossal mistake. Just as our movement started to gain momentum beyond a few local farmers and recycling freaks, and evidence of our planet’s transformation began to take real form and reach broad consensus, Al Gore coined the term “global warming.”

Environmentalists have a lot to thank Al Gore for. An Inconvenient Truth rallied and educated millions of people and forced scientists and politicians to come out and address problems facing the environment. The film lifted the cause of a few fringe environmentalists and dismally funded lobby groups up onto its shoulders and into the national stage of conversation. In those respects, the film did its job flawlessly. Al Gore got people talking about the environment, and when people talk, they get interested and want to know more.

Now the Environmental Protection Agency is operating on a budget larger than ever before, companies all over the world are spending millions of dollars investing in fuel-efficient cars and green technology. Mayor Bloomberg’s Plan NYC is going to plant a million new trees, sort through New York’s trash to find recyclables, require all schools to launch recycling programs and greenify building codes. Environmental Science is slowly becoming part of the core curriculum across the country. Environmental Filmmaking is now a major in universities everywhere. Even the set of 24 has gone green with digital scripts and carbon offsets.

A lot is being done, and the efforts of millions upon millions of people who are working as hard as they can to leave the Earth better than they found it are quite often overlooked. However, as much as we are indebted to Al Gore for legitimizing our movement, he also made a crucial mistake. Al Gore is a Democrat and unfortunately being a Democrat he is cursed with the inability to name things well.

Lets look at some of the names Republicans have come up with, The Patriot Act, a law that limited civil liberties. The Internet Freedom Act, a bill that would allow companies to control the speed and content of the Internet based on how much you pay them. The Pro Life movement has a great name, hell, even the Tea Party is kind of cleverly dubbed in its own way.

Democrats have Cap and Trade, Gas Tax, and Single Payer Healthcare System to name a few. Doesn’t have quite the same ring. Al Gore decided to call the shift in Earth’s climate global warming. There is legitimacy in that name. Sunlight is being trapped in the Earth’s atmosphere by fossil fuels, which are heating the planet up.

That doesn’t necessarily mean the weather we experience on the ground is warmer. In fact a melting ice cap will result in colder ocean temperatures. And even though the last two winters were some of the warmest on record, the fact that global warming and not climate change is the common terminology, every time Sean Hannity has to ware a coat to work he can go on TV and call Al Gore’s theory “hysterical.” The frightening thing about that is people believe him, a lot of people. Now every time the weather is colder than usual or snow falls in areas where it shouldn’t be falling, the entire green movement is undermined.The environmental movement is asking for our civilization to sacrifice a lot. The way we get around, the way we eat, our entertainment, one could say a whole culture is being called into question. We sometimes forget the scope of what we demand from our fellow citizens to save this Earth. That is why there really is no room for error. We cannot afford to have our statements taken out of context, we cannot afford to be dishonest, and we have to always remember the more disorganized we look, the more we falter, the less legitimate we appear to be.  This is a global struggle for hearts and minds. The less people are willing to take us seriously and perform the sacrifices the world desperately needs them to do everyday, the more we endanger our planet and the future generations we hope will inhabit it.