Does Journalism Still Matter? – By Philip Petraglia

The world is currently all abuzz over allegations the United States has been spying on its allies. The leaders of Argentina, Brazil, France, and Germany have all expressed their outrage. These allegations are probably true. Analysts even maintain everyone is doing it and that it’s been going on for a long time. And there’s talk the British may have been assisting the Americans. But here’s the point: Why did it take a former CIA employee and NSA contractor like Edward Snowden to bring this alleged espionage to the world’s attention? Snowden, a U.S. citizen, currently enjoys temporary asylum in Russia, of all places.

There was a time, not so long ago, when the western world enjoyed the benefits of a phenomenon known as investigative journalism. This seems to have become a dying art. Let’s look at some of the benefits of investigative journalism, starting with Bob Woodward and Carl Bernstein. These two Washington Post reporters helped bring Richard Nixon down by investigating the Watergate scandal. How would Watergate have turned out had they not pursued this story with dogged determination? And then there’s the case of Daniel Ellsberg, a high ranking Pentagon official who leaked what would become known as the Pentagon Papers to the New York Times. This great American institution then published these revealing papers despite opposition from the Nixon administration. The Pentagon Papers essentially revealed how badly the Vietnam War was going for the Americans and helped turn U.S. public opinion against further U.S. involvement. It did so by exposing the dishonesty of the government in its claim the war was being won. The media was courageous enough to take on the government and not cower behind the mantle of patriotism.

So here’s my point: The media has become so sterile and timid that it’s losing relevancy. Cynics might argue the media is only concerned with ratings and selling newspapers. This may or may not be true. But what is undoubtedly true is the media’s desire to maintain good relations with government officials at any price. When did this begin? Was it once independent newspapers were swallowed up by corporate chains? Was it once newspaper towns become one paper towns? Does lack of competition lead to sterility and lack of intellectual curiosity? Do the large corporate entities that run the media basically feel that most people don’t really care about policy issues or what’s really going?

Another point many make is that the media has become intellectually lazy. Isn’t investigating whether President Bill Clinton is sleeping with Monica Lewinsky easier to cover than the morality and effectiveness of Barack Obama’s increasing use of drone attacks in Pakistan? Perhaps the media feels people are just not concerned about policy matters, and that drone attacks are too serious to cover. Serious issues might force people to think about matters that might trouble them. Better to entertain!

The role of serious investigative journalism is to inform democratic societies about what’s really going on. It’s the search for the truth. It sounds idealistic but it’s the kind of idealism we need if we’re to preserve responsible government. How else are we going to keep governments and citizens honest? It’s questionable whether the rule of law can do it alone. The media is there to help promote the rule of law, among other things. It’s what forced Richard Nixon to realize he was not above the law.

Here’s what happens when journalists don’t do their jobs. It allows a highly respected war hero and cabinet secretary like Colin Powell to go before the U.S. public and make the case for invading Iraq on the premise Saddam Hussein possessed weapons of mass destruction. None were ever found. But what if the media had questioned Powell’s assertion that the Iraqi dictator had these weapons? And what if the media had researched the repercussions of invading a volatile country divided by ethnicity, religion, and tribalism? Would not the American public have been better informed of the repercussions of invading such a tinder box?

Some will argue there was a conspiracy on the part of the media to support this invasion. But there’s a better assessment. The media seems to lack courage and intellectual curiosity. On the one hand there’s the fear of being perceived by the general public as unpatriotic. This fear likely goes back to the Vietnam era. Probably they fear losing ad revenue if seen as too controversial. Better to play it safe. But there’s a second reason. There seems to be a lack of serious intellectual curiosity about researching public issues in a deep and meaningful manner. What you get as a consequence is mediocrity and a system of reporting that can only be described as vacuous.

And then there’s the financial crisis of 2007-2008 which many economists call the worse financial crisis since the Great Depression of the 1930s. Looking back many economists see the repeal of the Glass-Steagall Act of 1932 as one of the essential causes of this near calamity, along with monetary policies pursued by Allan Greenspan, then Chairman of the Federal Reserve. What’s troubling is how the media covered de-regulation and Greenspan’s policy of letting the “invisible hand” of the market place take charge. The media stayed away from ever seriously questioning whether de-regulation had potential risks, and why it was necessary to repeal a law that helped keep the world’s largest economy from collapsing. The real estate market was also booming and few in the media questioned whether this could lead to a potential bubble with catastrophic consequences. The media also put Greenspan on a pedestal, raising him to the level of deity. As Greenspan later admitted, the admiration he received wasn’t always merited!

So what’s in store for the future? Are we to rely primarily on self-styled “whistle blowers” with a hidden agenda? Is breaking the law the only way for democratic societies to arrive at the truth? Is the role of the media simply to re- state everything said to them at press conferences? Since most of us are fairly intelligent, we can do without this type of journalism.

The media needs to decide if it’s still relevant. Perhaps the internet will create a new form of journalism that’s more daring and geared towards investigative journalism. But the problem with the internet is its reliability. Who are these providers of news? How reliable are they? Traditional media has to reassert itself, whether in print or online, and show those in power they have something to fear.

Citizens also have a part to play. No free and democratic society can exist without a vibrant media. Citizens should pressure the government to be more open, to answer serious questions regarding important policy issues, and to make itself available to the media for cross-examination. It should be unacceptable for governments like the Harper administration in Canada to ignore the press at every opportunity. Unfortunately most citizens are apathetic on the issue of press freedom and this serves the interests of those in government seeking to keep people ignorant of what’s really going on.

In the end citizens must insist that the media pursue investigative journalism or risk becoming irrelevant. But change won’t come unless the media believes the general public truly expects the media to act as an independent source of information, and that serious issues like espionage really matters to them.

Fukuyama & The Rule of Law - By Philip Petraglia

There are many ways for a country to develop both politically and economically. What is true for all societies, however, is the importance the rule of law plays in creating a democratic and prosperous society where all citizens are treated equally. No political theorist can ever deny that liberty and democracy can only be attained once the rule of law has firmly taken hold of society.

Some also make the argument that economic prosperity cannot be attained without the rule of law. Others maintain that countries like China prove otherwise and that the jury is still out on. While this is certainly an issue open to debate, the point remains that most free and prosperous societies are based on the rule of law. Canada, the United States, and the European Union are clear examples. Many academics argue that China will never be able to take its economic prosperity to the next level without first establishing the rule of law as it’s understood and practiced in the West. Others however point to states like Singapore, Taiwan, Japan, and South Korea as examples where prosperity seems to be based more on cultural attributes like respect for hierarchy and authority than for the rule of law. And, they stress that states with the rule of law seem to suffer from income disparity, with the U.S. cited as a prime example.

Published in 2011, the “The Origins of Political Order” by Francis Fukuyama, the well-respected professor currently teaching International Relations at Stanford University, shows how the emergence of the rule of law in the West has given western civilization certain advantages over Asian and Middle Eastern countries. Born and raised in the United States and of Japanese heritage, Professor Fukuyama is neither a western imperialist enamored by western culture nor an Asian-American with an inferiority complex. But like his colleague, the late Samuel Huntington, he stresses the importance in understanding how societies with different cultures develop differently.

Professor Fukuyama starts out by illustrating how the rule of law as its understood today emerged from Europe. He points out that whereas pre-modern society fixed law on a higher authority such as divine authority, immemorial custom, or by nature, all these sources were eventually replaced by legislation or positive law. This included the notion that individuals holding power were also bound by the law, which many will argue, is the most central aspect of the rule of law. He points to the development of constitutional law as a vehicle for placing limits on the state’s power. And of course he looks at the emergence of the English Common Law which he describes as the cumulative decisions of countless judges trying to apply general rules to specific cases that brought before them. Lastly, he adds that the emergence of the rule of law was dependent on the enforcement of a strong central state seeking to apply the law across the realm at the expense of local customs.

Critical to the emergence of the rule of law in the West was the role that religion played. The Christian church created the notion of a universal community based on common faith rather than kin loyalties while the introduction of Christianity in Europe helped promote the rule of law by setting aside tribal customs. In the end, a system of courts was created across the land, along with a system of justice that required manpower, expertise, and an education system with legal specialists trained in precedent.

Fukuyama then moves on to discuss rule of law in civil law jurisdictions, especially in continental Europe, where the church made a crucial compromise with the state. In return for keeping jurisdiction and control over spiritual decisions, the church conceded to temporal rulers the right to exercise power in other more earthly matters. Each agreed to exercise powers in separate spheres, which would lead to the creation of the secular state and such notions as separation of church and state. As Fukuyama argues, the existence of a separate religious authority accustomed rulers to the idea that they were not the ultimate source of the law. And here he adds rests the problem for India and countries in the Middle East, where religious authorities have failed to extract themselves from the political order. In other words, unlike the situation in the West, Muslim societies were never able to separate church from state.

And what are we to make of China? China, he rightly points out, is not and never was a society based on the rule of law. The Chinese system was always about maintaining order which the state accomplished by keeping a monopoly over violence. And because it was such an enormous country, a strong central state was put in place to combat local Warlords intent on terrorizing local communities through violence and extortion. This is still the system in place as the Chinese Communist Party seeks to create and maintain a “high-quality” authoritarian system, run in a rational manner, with a complex bureaucracy capable of running the country while fighting corrupt local authorities.

Francis Fukuyama argues that the relative weakness of the rule of law is a challenge for many countries in modern times. The evidence is everywhere. It’s in authoritarian countries like Russia, democracies like India, emerging economies like China and Brazil, in third world countries (especially in Africa), and in new democracies, whether in Latin America or Eastern Europe.

The rule of law does not however, in and by itself promote justice and democracy if used to protect the interests of only a small minority as seems to be occurring in China and India. He gives as an example India where judicial appeals are used to protect the interests of the elites against the will of democratically elected governments. The absence of the rule of law can either be totally absent as in many African countries or watered down as in Russia, Asia, and the Middle East.

Legal institutions thus need to be seen as legitimate and authoritative and respected by both the people and the elites who rule over them. What happens then in established democracies like the United States when the Supreme Court, the highest court in the land, renders a decision like Citizens United, which basically makes it possible for wealthy contributors to make unlimited donations to political campaigns? Respect for the rule of law cannot be taken for granted even in established democracies.

In the end, the rule of law is indispensable for every country regardless of whether it helps lead to economic prosperity. No people will ever trade prosperity for inequality especially as people’s education and expectations rise. Authoritarian rulers across the world should remember this, whether in Muslim Saudi Arabia, Christian Russia, or Buddhist Burma.

A Fragmented Nation - By Philip Petraglia

The current shutdown of the Federal government in the United States poses a dilemma not only for the United States but for the world at large. What does it mean for the rest of the world when the planet’s largest economy is run by a dysfunctional political system? The United States is blessed with the world’s most inspiring document: the Constitution of the United States. No other constitution even comes close to approximating the brilliance of this inspiring document. At its core is the separation of powers between three branches of government: the Executive (White House); legislative (Congress) and the Judiciary, with the Supreme Court assuring that not even the most powerful leader in the world is above the law. This system more or less worked well for the past 237 years, but cracks are beginning to show.

America was never the perfect Republic that its founding fathers had envisioned. It took almost one hundred years and a bloody civil war to end slavery, and women were only give the franchise in the 20th century. Americans have also traditionally been divided by their race. And at least since the end of the nineteen fifties whites have voted for the Republican party, while African-Americans have voted for the Democrats. But this is about to get way more complicated, especially for the Republican party which risks becoming a minority party.

Let’s start with Hispanics. There are now more Hispanics than African-Americans in the U.S. Like African-Americans, most vote for the Democrats. Visible minorities now make up one third of the U.S. population, and well over two thirds vote for the Democrats. Swing states like Arizona and New Mexico that traditionally voted Republican risk becoming blue states.

Women. They make up 52% of the electorate and like visible minorities, tend to vote Democratic. Republican opposition to affirmative action and a woman’s right to an abortion have driven millions of women, especially younger women, into the democratic camp.

Gays and Lesbians. They comprise only 5-10% of the general population but are politically active. They also have become a rallying cry for social liberals who, rightfully or wrongfully, see the issue of gay rights as a bell-weather for creating an inclusive society.

University educated Americans. Most are socially liberal, live in urban centers and vote Democratic. In contrast, socially conservative blue collar whites tend to vote Republican.

Religion. Those attending church are more likely to vote Republican. The exception are African-Americans, who remain more religious than whites. Many religious whites live in the South and continue to fight the teaching of evolution in schools. Many are also evangelical Christians.

Senior citizens. This class tends to vote Republican and are less likely to accept same sex unions, abortion rights, affirmative action, and America’s increasing racial, linguistic, and ethnic diversity.

Cool people. These are the foodies and hipsters who have reinvented America’s working class neighbourhoods, whether in Brooklyn or Chicago. They vote Democratic, tend to be more open to technology, and more mobile than their parents. They use twitter, order lattes, and generally stay away from church.

Rural versus urban. Rural voters are more prone to own guns and have serious suspicions of the Federal government. Many are socially conservative, live in white homogeneous communities, and attend church. Most are not as technologically savvy as their urban counterparts. These are by and large Republican voters.

The well healed traveller. Most Americans don’t own a passport and are not curious about the rest of the world. But a sizeable minority do travel, and are more acquainted with the Italian Riviera than they are with the country’s national parks. They tend to have a cosmopolitan outlook on life and vote Democratic

The environmentally conscious. Think Al Gore versus the states where coal mining still counts and where driving an SUV is considered a birth right. Environmentalists are seen by conservatives as foreign conspirators trying to deny Americans their right to practice the American way of life.

Technologically gifted. Internet users vote Democratic and also tend to be younger, socially liberal, more open to change and a racially mixed America. Many also tend to be libertarians on issues like free speech and the government’s right to spy on citizens, but liberal on social issues.

All of the above has not been lost on the Republican party which has masterfully used gerrymandering to create safe Republican seats in Congress. But there’s a price to pay for this. One is that these seats may not be safe forever, especially as the Hispanic and Asian communities continue to grow. The other is that it’s not a winning recipe at the national level. The alienation of the above groups will make it difficult for the Republicans to win back either the White House or the Senate. State capitals may also become out of reach. The GOP risks becoming the party of obstruction as is presently occurring. And this is definitely not what the founding fathers intended when they put the Constitution together. Their concern was with keeping a tyrannical government from emerging, rather than with rendering government impotent.

What we’re seeing then is a demographic shift of giant proportions. Like- minded people are choosing to live in counties and districts where people look and think alike. The Upper East Side of New York is predominantly white and liberal, where folks read the same paper and watch PBS, while voters in an Atlanta suburb are might more likely be white but watch Fox News and attend church. Predominantly white, in other words, but divided on social issues.

America then is not so much divided between blue states and red states as it is divided between red counties and blue counties. What then would de Tocqueville see if he came back for a brief visit? He would likely see an America divided by issues that are essentially unbridgeable. How for example, do you get a citizen who believes abortion is murder to ever compromise on such a sensitive issue? So people choose, as a consequence, to simply live alongside folks they feel at home with. This makes for a polarized nation and a segregated nation, only this time it’s not based solely on race. Segregation along racial lines still continues, but we now have this new phenomenon: white segregation based on attitudes towards social issues.

What’s remarkable about these divisions are that they don’t seem to exist elsewhere in the Western World. It’s exceptional to the United States in a way that most foreigners don’t understand or relate to. This will no doubt lead to more deadlocks in years to come. And in this scenario, there are no winners.

Towards A More Effective Supreme Court - By Philip Petraglia

The Harper government in Canada recently appointed a new judge to the Supreme Court of Canada. A specialist in Maritime Law, Marc Nadon is a francophone from Saint Jerome, Quebec, and fills one of three posts traditionally held by Quebec judges at the Supreme Court of Canada. Many are scratching their heads at this appointment, not so much with regard to his intellect as with his expertise. Exactly how important is Maritime Law to most Canadians? What percentage of cases pleaded before the Supreme Court of Canada even touch on Maritime issues?

Both Canada and America are constitutionally based democracies with a Supreme Court performing similar functions. Interpreting the constitution is certainly one of them. Most Canadians and Americans likely fail to understand how much decisions rendered by the highest court affects them. Let’s start with a woman’s right to an abortion. Cases like the Morgentaler decision in Canada and Roe v. Wade in the U.S. guarantee that women no longer need to seek abortions in questionable locations where their health might be severely compromised. The Supreme Courts in both countries are also continuously called to deal with issues touching on personal freedoms, criminal law, and how far governments can go in performing their functions. Supreme Court decisions touch on the rights of consumers, employers, employees, property owners, taxpayers, parents, and so on. The list is endless.

Appointing good judges takes on an enormous responsibility. In the U.S., the appointment of Supreme Court justices also takes on a political dimension, since the president chooses the candidate before eventual ratification by the Senate. This explains why people who care about social issues like affirmative action, abortion rights, and gay marriage care so much about who the next nominee is. The appointment of judges essentially determines what our respective democracies end up looking like.

Since judges are called to hear cases that touch on a variety of issues, what speciality or expertise should nominees have? Keep in mind that most cases in both countries involve debates that don’t involve left versus right issues. Early courts were called to deal with constitutional issues. This is still true and there will always be a need to have constitutional law experts on the court. But new emerging areas of law like science and technology are also important and cannot be ignored.

The law is forever evolving and new areas of law are emerging .Take for example science and technology. Many of the new cases heard by the Supreme Court touch on patents and trade- marks with regard to new forms of life. Other cases deal with technology like the internet. How many judges sitting today have a science background and how many truly understand technology and the law? Law schools in both countries tend to attract students lacking a science degree. What is needed are more candidates who have an appreciation of what it means to patent human life, especially down the road when these cases attain a certain precedence and importance that few foresaw. Can someone with a business or liberal arts degree truly understand a case touching on biotechnology issues or on internet law? Doesn’t the court need to change with the times?

Both countries appoint nine judges. Doesn’t it make sense to appoint two or three judges who have a good understanding of science and technology? You can only appoint so many experts on constitutional and criminal law. Also, and this is not to offend those who practice in these two areas of law, but any intelligent person can learn to understand most areas of law, but science and technology law requires someone with a science background which is lacking in both courts. A judge with a science background who has heard cases dealing with science issues is probably better equipped to hear a case dealing with Monsanto. So it comes down to the following: The Court needs lawyers and judges with science degrees with experience in pleading or hearing cases that have a science and technology angle. Law professors who teach in this area of the law are also welcomed.

Supreme Courts render decisions that are later followed (usually) by lower courts. Isn’t it better to start appointing judges with the proper expertise now while this emerging area is still in its infant stage? What should be avoided is having science and technology issues presided over by judges who may not necessarily understand the long term implications of their decisions.

The last ten years in the U.S. has seen an inclusion of women and minorities. Canada is different in this respect. While the court has included women, no attempt has been made to include ethnics or visible minorities. Canada’s concerns run more along linguistic lines and making sure that the country’s French speaking minority is included. Prime Minister Harper could have hit two birds with one stone had he appointed a francophone with an expertise in science and technology.

What both countries need are more science and technology experts like Lawrence Lessig, professor of law at Harvard University known for expertise on such hot item issues as ethics, internet law and computers. He is author of several books touching on computer technology and the law, and has authored countless articles and conferences on the issue.

This brings us to the issue of notoriety. Most appointees tend to be men and women anonymous to most citizens. Not many people really care about who happens to be an expert in property or contract law. But science and technology is something different. It seems to have created high profile figures like Lawrence Lessig who even non-lawyers are reading. Science and technology is an area of law that excites non-lawyers. There’s something positive in this. Future appointees will likely be less anonymous and this can only be good for democracy. Citizens need to know something about future appointees, and scholars and public figures like Lawrence Lessig leave a paper trail.

So while it may or may not be true that Marc Nadon was drafted by the Detroit Red Wings back in 1964 as he claims, the point is that his expertise is not what’s really needed at this point in the Supreme Court’s development.