Monday, April 17, 2017

It can't happen here

I wonder how many Turks said that to themselves shortly before Turkish voters passed a referendum to convert Turkey from a secular democracy into a Muslim dictatorship.

As I have written so many times before, I'm not sure which is scarier, the similarities to Germany in 1933, or the fact that no one in the U.S. seems to be paying attention.

[UPDATE:] OMFG, Donald Trump called Erdogan to congratulate him on his victory!  This takes cluelessness to a whole new level.  I have no words.

David Dao did nothing wrong

I am dumbfounded that this is even in dispute any more.  Maybe an analogy will help.

Consider the following situation: you have rented an apartment.  You have signed a lease.  You have paid your first month's rent.  You have moved in.  You are putting your artwork up on the wall when there is a knock at the door.

It is Jim from the management company.  He explains to you that there has been a mixup, and they actually need your apartment to house some company employees who have just been hired and need temporary housing until they can find places of their own.  He's terribly sorry, but you will have to vacate immediately.  They will find you a new apartment as soon as possible, but for now you are out of luck.  They tried to find someone to volunteer their apartment, but no one stepped up.  So you have been randomly chosen.  Get out.  Now.

Naturally, you refuse.  You have a signed lease.  No, no, Jim explains to you, the terms of the lease allow the management company to reclaim your apartment in situations like this.  You are quite certain he's wrong about this, and it just so happens you are correct, but you are not a lawyer and the lease is long and full of legalese and sorting out whether you would prevail on the merits would take quite a bit of time.  In any case, you say to Jim, "Sorry, but this is my apartment.  I'm not going anywhere."

Jim replies, "No, this is not your apartment.  You're just a renter.  You don't own the place, the management company owns the place.  And the owner says: get out.  If you don't, I will call security to have you removed."

You still refuse to go, so Jim calls security.  Three burly guys from ACME rent-a-cop sporting badges and dark blue jackets with "POLICE" stenciled on the back show up at your door and say, "You are unlawfully trespassing on private property.  If you don't leave voluntarily you will leave us with no choice but to force you to go."  Again, you refuse, at which point they knock you senseless and drag you down the hallway.

This situation is exactly analogous to what happened to David Dao.  The only difference is that instead of an apartment, Dao was occupying an airplane seat, and instead of a lease he had a ticket.  Otherwise there is absolutely no difference.

I can think of a couple of possible objections, though it takes quite a stretch of the imagination.

1.  Such a thing would never happen to someone in their home

Such a thing has happened.  It happened to my grandparents, except that instead of Jim from the management company it was Wolfgang from the Gestapo.  (OK, I don't know if his name was Wolfgang.  But whoever it was, he (and it was a he) really was from the Gestapo.  The actual Gestapo, not some metaphorical Gestapo-like organization.)

In fact, a very similar situation actually happened to me.  It wasn't exactly the same because it was a condo, not an apartment, and we had not closed on it yet.  (In fact, to this day I have never been inside the place.)  But the bank that bought the development decided to appropriate all of the units under contract so they could turn the entire building into a hotel.  Worse, they decided not to return the down payments, instead offering to settle at 70 cents on the dollar.  It would have been a slam-dunk civil suit except for two things: the purchase contract had an arbitration clause, and the civil jurisdiction in question turns out to be thoroughly corrupt.  Unfortunately I can't be any more specific about the situation because the settlement agreement included a non-disparagement clause, so if I say anything more they could sue me, and they would probably win.  But if you really want to know, I did write up the situation in detail before I signed the agreement.  The internet probably has a copy somewhere (ahem).

2.  Airplanes are different from apartments

Really?  How?  Because they have pilots who can order you off the plane?  Apartments also have civil authorities who can order you to vacate under some circumstances (e.g. there's a fire, or the building has been declared unsafe after an earthquake).

Yes, airplane seats are smaller and more uncomfortable than most apartments (except maybe in Manhattan) and the term of the "lease" is shorter.  But I don't see what difference any of that could possibly make.

3.  ???

I'd really like to round out this list with a third example, but I am wracking my brain and I honestly can't think of any other possible objections.

Sunday, April 16, 2017

Civil disobedience and Godwin's law

Towards the end of a spirited discussion on my last post, occasional guest-blogger and long-time reader Don wrote:

[T]he pilot of an airline telling you to get off his plane, is nothing like allowing the state to take you from your home and gas you to death simply because of the circumstances of your birth. You can resist one, and not the other, without much moral confusion. I'm ashamed at you for suggesting an equivalence.
I've thought long and hard about this, and I've decided to stand by what I originally wrote.  But Don's point is well taken, and some clarification is in order.

First, let me point out that it was actually not me who Godwinized the discussion.  It was Sean Spicer, who wrongly claimed that Bashar al Assad was worse than Hitler because "even Hitler didn't use chemical weapons on his own people," though, of course, he did.  And that was one of the two events of the day that I was writing about.

Second, I was not actually comparing anything to Hitler or the Holocaust.  I was citing my personal experience to put my position on this issue into perspective.  In a perverse accident of history, I would not be alive but for Adolf Hitler.  My grandparents all fled Germany for what was then still Palestine in the early 1930s.  They came from different parts of the country and different walks of life.  If the Nazis had not risen to power they would all have stayed in Germany and none of them would have ever met.  So I am more intimately connected to this period of history than most people.  I grew up hearing first-hand accounts of what it was like in the early days, and some aspects of those accounts are chillingly reminiscent, at least to me, of some events happening today.  That is simply a fact.

So that's my defense against Godwinizing the conversation.  I would also like to address the substance of my disagreement with Don in some more detail.

To begin with, I have not been able to find any evidence that the pilot actually ordered David Dao off the plane.  I don't know if that would actually have made any difference in the end, but it would have put a different spin on things.  A pilot on an aircraft has authority that other crew members don't.  In particular, a pilot has the authority to throw someone off the plane on his or her own initiative.  Other members of the crew do not.

Second the people who actually removed David Dao from the plane were not Chicago PD officers.  They were airport police, employees of the Chicago Department of Aviation, a civilian agency which oversees airport operations.  They do have limited authority to detain people under certain circumstances, but they were not authorized to arrest David Dao, and all three have been suspended because of their actions that day.

Third, it has been alleged that United was required by federal law to bump David Dao and the other three passengers to make room for the "must-fly" crew members.
[T]his was a must fly, a positive space situation. In layman terms, it means that a crew must be flown to an airport to man a flight in order to avoid cancellation of said flight due to crew unavailability. This is a federal DOT regulation, not an airline one. The airlines are required to do so to avoid disruption of air traffic. In other words, if there are no willing volunteers and they need seats to get a crew somewhere to avoid disruption of aviation flow, they can, will, must by federal regulation bump people for the better good of the 1000’s. Why? Because one cancelled flight has a serious domino affect in the delicate, complicated world of connections and aviation law.
This is not true (or if it is, I have not been able to identify the alleged DOT regulation that requires it).  It is true that airlines are allowed to bump passengers involuntarily to make room for required crew, but they are not required to (AFAICT).  And in fact such a requirement would make no sense.  In retrospect it is clear that United would have been better off chartering a private jet to get its employees to Louisville.  Surely doing so would not have violated any federal regulations.

Finally, at least two law professors [1][2] have published legal analyses, and both of them agree with me that United was not authorized under the terms of its own Contract of Carriage to remove David Dao from the plane.  Even United Airlines has thrown in the towel on this and is no longer claiming that its actions were defensible in any way.  So I claim vindication on that issue, and that Don owes me a beer.

All this is easy to see with the benefit of hindsight and time to analyze the situation from the comfort of our armchairs on a Monday morning.  But if we look at the situation from the perspective of the participants at the time, can Dao's refusal to deplane still be justified?  Or is, as Don maintains, such defiance of authority the first step on the slippery slope to anarchy?

It is for this answer that I invoke my heritage and answer with an unequivocal: yes, Dao's actions were justified.  There are circumstances where defying authority is the right thing to do.  This was one of them.  It is important to remember that the Holocaust ended with Jews being marched to the gas chambers, but it didn't start that way.  It started with the Nazi party winning a majority plurality of the seats in Germany's parliament in 1932.  It took another two years before the Nuremberg laws were passed, and another six before the Nazis began killing Jews in earnest.   At every step, everything the Nazis did was perfectly legal.  In no small measure because of this, and because respect for authority was (and to some extent still is) woven deeply into German culture, there was barely any resistance, neither from Jews nor gentiles.  The Warsaw Uprising in 1944 was the only notable exception, and by then, of course, it was much, much too late.

Let me be clear: I am absolutely not advocating for civil disobedience as a matter of course.  All else being equal it is better to obey the police.  But all else is not always equal, particularly if you're not a rich white male like Don and I are.  Sometimes is can be easy to forget that not everyone lives such a privileged life.  The sad fact of the matter is that the police do discriminate against people with dark skin.  (Can you seriously imagine this happening to a rich white guy? Or this?  Or this?  Or this?  Or this?)  It is easy to advocate for compliance and sorting out the legalities later when your risk of physical injury is low and you present a credible threat of being able to afford high-powered lawyers.  But for many people, compliance is tantamount to capitulation.  This may even have been true in David Dao's case.  We will never know now, but it is possible that his non-compliance was necessary in order for him to maintain his rights under the terms United's contract of carriage.  If Dao had left the plane voluntarily then United could argue that he had no cause of action for a violation of Rule 21 because he left the plane voluntarily, thereby tacitly admitting that United had the right to remove him.  It was only by resisting -- passively and peacefully, it should be well noted -- that he could maintain his right to sue.

Accepting peaceful civil disobedience is not the first step towards anarchy.  On the contrary, it is the unquestioning acceptance of authority that is the first step towards tyranny.  The decision to employ civil disobedience should never be made lightly.  But sometimes the only way to stand up for your rights is to remain seated.

Tuesday, April 11, 2017

Welcome to bizarro world

It's official: the world has gone completely insane.

Yesterday, United Airlines forcibly dragged (literally!) a man off of one of their flights because they decided that their employees were more important than their customers.  Then, instead of doing what any decent human being would have done (i.e. apologize for the obvious and egregious mistake and promise a review and overhaul of their policies and procedures) CEO Oscar Muñoz decided to throw fuel on the fire and blame the victim by labeling him "disruptive."

I wasn't going to write about that.  The twitterverse and the blogosphere seem to have that situation well in hand.  But just now Sean Spicer said that Bashar al Assad is worse than Hitler because, "Hitler didn't use gas on his own people" and it struck me that the whole world seems to have gone completely bonkers.  Excuse me, Mr. Spicer, but have you ever heard the expression, "marched off to the gas chambers?"  What exactly do you think that is referring to?  Or do you, like Hitler, not consider the people who died in the gas chambers to be "his own people" because they were Jewish or gay or handicapped or whatever excuse Hitler decided to use to label them as The Other?

So: people who refuse to relinquish an airplane seat which they have paid for and in which they are physically sitting simply because the airline wants to reclaim their product are "disruptive", and the people killed in Hitler's gas chambers weren't "his own people" despite being Germans.  (There is no question but that Hitler would have agreed with Spicer.)

The most disturbing thing about this is that neither Muñoz (oh, the irony!) nor Spicer seems to think they did anything wrong.  If they do, certainly neither one has admitted it yet.  Muñoz issued an Orwellian non-apology for "re-accommodating" the passenger, and Spicer said that he didn't mean "to lessen the horrendous nature of the Holocaust" despite the fact that that is exactly what he did.  ("I didn't mean to hurt her, officer.  But God damn, she had it coming!")

If either Spicer or Muñoz saw the full magnitude of their evil and hypocrisy they would resign and slink away into the shadows with their tails between their legs.  But of course they won't because that's not what alpha assholes do.  Alpha assholes are Always Right About Everything, and if you don't agree, well, then you're being disruptive.  You're one of Them, the enemy, the Other.

And if you think these are isolated incidents, that this attitude is not becoming pervasive in our society, that we really are going down the well marked path that mankind last began to tread in the early 20th century, then you should read this.  And keep in mind that the writer is a U.S. citizen.