Three Smart, Suspenseful Movies

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The leaves are settling, the goblins are gone, and you have a bowlful of leftover candy that you convinced yourself you would need for all the trick-or-treaters. Why not sneak those treats into a movie theater and enjoy an evening of intense suspense? I’ve reviewed three gripping new films that will send shivers down your spine. All three contain characters who face demons — of the psychological kind. All three examine the concept of choice and accountability, and all three offer unusual definitions of freedom.

Drew Goddard and Jason Blum are the new masters of suspense, lifting the genre above the slasher model of the ’80s and ’90s and the bloodfests of Quentin Tarantino to return to the psychological suspense dramas that were made in the ’50s and ’60s. Their films are characterized by sophisticated scripts, top quality cinematography and music, and lavish, almost garish, set dressing. After writing and directing 2012’s remarkable The Cabin in the Woods (see our review), Goddard explained, “The horror genre gets you in touch with our primal instincts as a people more than any other genre I can think of. It gives you this chance to sort of reflect on who we are and look at the sort of uglier side that we don't always look at, and have fun with that very thing. . . . It lends itself well to a sort of freedom.” His latest film, Bad Times at the El Royale, is an ensemble piece that does just that, taking us on a dark and stormy night to a hotel as eerie and secretive as Hitchcock’s Bates Motel.

The suspense is delicious, and the changing perspectives don’t just throw us off balance gratuitously; in some ways they recalibrate us.

The movie begins almost like a stage play; the scene, an oversized hotel room with an unnaturally wide expanse of floorspace in the middle where actors could mingle and emote, fills the screen and is as wide as a stage. A bed sits far stage right and a desk far stage left, with a small couch under the window next to the foot of the bed. A man enters, backlit through the hotel room door. He crosses stage right to the window and looks outside uneasily, then crosses downstage left to deposit his bag and crosses back to the window, where he closes the curtains furtively and finally turns on the light so he can get to work. The motions feel staged and unrealistic. That is their purpose. Nothing is going to be realistic in this movie.

Scene 2 occurs ten years later at the same hotel, circa 1968 (assuming that a particular news item on a black and white TV is meant to be a live broadcast). Several characters are gathering in the once-glamorous lobby of the rundown El Royale Hotel to check in for the night; we assume that at least one of them is related to the action in the opening scene. Laramie Sullivan (Jon Hamm), who introduces himself as a vacuum cleaner salesman on a junket, displays stereotypically sleazy gaucherie, especially toward Darlene (Cynthia Ervio) a young black woman carrying a bundle of bedrolls. By contrast, Father Daniel Flynn (Jeff Bridges) treats Darlene with genteel manners that may or may not be sincere, offering to carry her luggage to her room for her. The fourth guest (Dakota Johnson) is cool, glamorous, and haughtily aloof to them all as she selects a room far from the rest of the guests.

The El Royale is loosely based on the old Cal-Neva Hotel in Lake Tahoe, whose claim to fame (besides having once been owned by Frank Sinatra) was that the state line ran directly through the lobby. “Would you prefer the warmth and sunshine of the West, or the hope and opportunity of the East?” Miles Miller (Lewis Pullman), the El Royale’s desk clerk, asks expansively as customers arrive. “California rooms are a dollar extra,” he adds matter-of-factly. Well, of course.

Yes, a National Geographic documentary is the scariest movie I have seen in ages.

It’s a significant decision, because choice and chance are important themes in this film, where nothing is as it seems and choosing wisely can be a matter of life and death. Who are the good guys? Who are the bad guys? Whom should we trust? What deep secrets are kept at the El Royale, and can the truth set them free? The plot backtracks and restarts numerous times as it is retold through the perspective of the various characters, insisting that our perspectives change too.

Occasional allusions to events that took place in the ’60s become important later in the film. The vintage clothing, automobiles, music, and mid-century furnishings also contribute to the rich Hitchcockean atmosphere. The women are stylish, the men are masculine, the young desk clerk is troubled, and Goddard even kills off a key character just a third of the way into the story, à la Hitch’s main character in Psycho. The suspense is delicious, and the changing perspectives don’t just throw us off balance gratuitously; in some ways they recalibrate us. Horror might not be your genre, but this film is just about perfect.

Another film in which being off balance can lead to instant death is Free Solo, a National Geographic documentary about Alex Honnold’s breathtaking attempt, last year, to become the first person to solo climb the 3,000-foot granite face of El Capitan in Yosemite. Yes, a NatGeo doc is the scariest movie I have seen in ages. My heart was pounding and I had to look away from the screen several times as Alex fought to balance on a tiny toehold here, a half-inch protrusion there, making his way up the nearly perpendicular giant — without a rope or parachute. One slip, and he would be dead. In terms of Goddard’s definition of the horror genre, Free Solo reveals the psychological need to “get . . . in touch with . . . primal instincts, . . . [offers a] chance to sort of reflect on who we are . . . and have fun with that very thing. . . . It lends itself well to a sort of freedom.”

What in the world would possess someone to pursue a sport in which one false move can plunge an athlete to his death?

Alex Honnold is, by his own admission, an odd duck. Raised by an emotionally distant father and a mother for whom no accomplishment was ever enough, he notes that he had to teach himself how to hug when he was in college after noticing that hugging was something other people did. He never heard the words “I love you” from his parents. He earns “about as much as a moderately successful dentist,” through sponsorships, books, and speaking engagements, yet he lives in his car, a minivan that he modified to include a small stove, a refrigerator, and a platform bed. He eats his car-cooked meals from the skillet with a spatula.

This background is offered as a kind of psychological answer to the obvious question: What in the world would possess someone to pursue a sport in which one false move can plunge an athlete to his death? Alex is possessed by personal demons that only seem to leave him when he is enjoying the freedom of the climb. As head cinematographer and co-director Jimmy Chin observes, “You have to be perfect in this sport. It’s like being in the Olympics where you either win the gold medal, or you die.” Dozens of extreme climbers have indeed fallen to their deaths, adding to the suspense of Alex’s pursuit.

In order to successfully ascend the mountain without a rope, soloists must practice repeatedly with ropes and a belaying partner until they know every inch, every crook, every cranny of the face. As Alex trains for the climb, he slips off the face and dangles over the canyon floor — a lot. This adds to our suspense as he finally starts the main adventure. Chin wisely decided to widen the angle of the documentary and include the filmmakers as part of the story, and we see how carefully they, too, prepare to document the feat. They must select the best vantage points along the way, roping into the face with their heavy cameras while remaining out of sight and making sure they don’t interfere, physically or psychologically. Jimmy’s greatest fear isn’t not getting the shot; it’s causing a distraction that might lead to his friend’s death.

The cameramen become our vicarious eyes and hearts. One repeatedly sets his camera and then turns his back to the cliff, unable to watch what might be his friend’s death. I found myself looking away too, willing him to get to the top and end the agony of watching him glide impossibly up the sheer expanse of the mountain.

Despite the agony of suspense, the film is breathtakingly beautiful. The camera work is exquisite, capturing the magnificence of the mountain. It’s matched by the grandeur of the music and the precise choreography of the climb. Alex knows exactly what he is doing; he has memorized all 3,000 feet of the granite precipice. It’s the scariest and most awe-inspiring film I have seen in ages. The look of joy on Alex’s face as he turns to the camera after a particularly grueling section says it all. To quote Drew Goddard again, this kind of horror “lends itself to a sort of freedom” that few of us will ever know.

One crewman repeatedly sets his camera and then turns his back to the cliff, unable to watch what might be his friend’s death.

Our third film is horrifying in that it isn’t fantasy — it’s fiction, yes, but it’s based on true-life experiences of gang life, drug culture, and trigger-happy police officers. The Hate U Give, based on the bestselling novel of the same name by Angie Thomas, tells the story of a family determined to escape by staying put. They reside in a rundown, longstanding black neighborhood, but they send their children to a private school where they have a better chance of getting a good education and, let’s face it, living to adulthood without being sent to prison. Passing by the public high school, the main character, Starr Carter (Amandla Stenberg) tells us in voiceover narration, “That’s where you go to get jumped, high, pregnant, or killed.” “Get educated” isn’t on the list. And that’s one of the horrors presented by this film.

Starr must learn to navigate two worlds as she moves between her mostly white school and her mostly black neighborhood. Her school friends play at being cool by listening to rap music, dancing with a cool R&B vibe, and using black slang. But because she is truly black, Starr studiously avoids the vernacular of her black world. She fits in by not joining in. Meanwhile, at home she hangs out with her childhood friends (those who are still alive) while trying to remain safely aloof from the fights and drama that break out between them. She has a complicated relationship with many of the neighborhood kids; “Kenya’s mama had Seven with my daddy, but she’s no relation to me,” she explains to someone at a party.

When a fight breaks out at the party, Starr’s childhood friend and somehow-relation, Khalil (Algee Smith), grabs her hand and drives her to safety — almost. When he is pulled over by a cop (for the egregious crime of changing lanes without signaling) Starr quickly puts both hands on the dashboard as her daddy (Russell Hornsby) has taught his family to do, and frantically urges Khalil to do the same. But Khalil isn’t about to be submissive; with the swagger that comes from knowing you’ve done no wrong, he challenges the police officer. As the confrontation escalates, Khalil is shot and killed. Even though you know it’s going to happen, the moment is shocking, brutal, horrifying.

The public high school is “where you go to get jumped, high, pregnant, or killed.” “Get educated” isn’t on the list.

What follows is a fair and complex assessment of all the things that have led to this moment. Starr’s uncle Carlos (Common), a black police officer, explains to Starr that cops have to make split-second decisions based on what they see and what they expect. He tells her that he probably would have ordered Khalil out of the car too, in order to keep an eye on him while running his license. Starr listens but then asks, “Would you have told a white business man in a Mercedes to get out of the car?” “Probably not,” he admits.

The message is clear: like Alex Honnold in Free Solo, those who challenge the granite face of the law need to respect the power of the opponent, even when they have a right to be where they are. Keep your hands where they belong and focus on potential risks. The foe doesn’t care who you are, what you’re doing, or how innocent you might be; it has all the power, and foolish grandstanding can result in instant death.

Meanwhile, the police try to smear Khalil by painting him as a common drug dealer. “Good riddance,” is the message, even if he wasn’t doing anything wrong at the moment he was shot. They want Starr to testify against the local drug lord, King (Anthony Mackie), who controls the neighborhood and oversees the violent turf wars (and happens to be her half-brother Seven’s father). While protestors chanting “What do we want? Justice!” at City Hall are being pummeled by tear gas, King is tossing fire bombs at local black businesses that are standing up to his authority. This message is clear too: the problems in the ’hood aren’t black and white, in the racial or the metaphorical sense.

The foe doesn’t care who you are, what you’re doing, or how innocent you might be; it has all the power, and foolish grandstanding can result in instant death.

According to rap artist Tupac Shakur, “Thuglife” is an anagram for “The Hate U Give Little Infants Fucks Everything.” One of the common threads in these three films is that children who are traumatized or neglected often grow up to commit traumatic or traumatizing acts. The Hate U Give offers much to think about as we figure out how to solve the problems in our urban neighborhoods, beginning with the public school system that acts as a racial boundary and the drug laws that act as a direct pathway to easy money followed by death or prison. That is true horror, in ways beyond anything we ever see on Halloween.

Bad Times at the El Royale, directed by Drew Goddard. Twentieth Century Fox, 2018, 141 minutes.

Free Solo, directed by Jimmy Chin and Elizabeth Chai Vasarhelyi. National Geographic, 2018, 100 minutes.

The Hate U Give directed by George Tillman Jr. Fox 2000 Pictures, 2018, 133 minutes.




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Casualties of the Drug War

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White Boy Rick is a rough and complex biopic based on the story of Richard Wershe, Jr., the youngest (at 14) undercover drug informant ever to be recruited by the feds to help them go after the kingpins in the drug trade. At times touching, as when Rick (Richie Merritt) scavenges a stuffed animal from a neighbor’s trash to take home for his sister Dawn (Bel Powley), and at times enraging, the film shows the dark underside of the war on drugs in all its ugly glory: corrupt cops, heartless investigators, violent turf wars, strung-out druggies, and the poverty and despair that often lead people into the trade.

The story is set in mid-’80s Detroit, against a backdrop of empty factories, rat-infested playgrounds, and worn-out homes in worn-out neighborhoods. Richard Wershe Senior (Matthew McConaughey) is a hustler with a gun dealer’s license, and the film opens in the carnival-like atmosphere of families enjoying a gun show, popcorn and all. (I remember attending “hard money” investment conferences in the ’70s and early ’80s where guns were legally sold alongside exhibit booths offering survival gold and freeze-dried foods. How times have changed!)

The film shows the dark underside of the war on drugs in all its ugly glory: corrupt cops, heartless investigators, violent turf wars, strung-out druggies, and the poverty and despair that often lead people into the trade.

Wershe Sr. has a dream: VCRs have recently arrived on the scene, and he wants to open a video store. “All we need is a stake!” he tells Rick. That video store is his rabbit farm (Of Mice and Men), the dream that sustains him through all the disappointments of his life: a jobless economy, a daughter strung out on crack, a son who has dropped out of school, and a source of income that’s sketchy at best. He loves his family, but he can’t provide a good life for them. He has a license to sell registered guns at a meager profit, but the real money is in the “upsell” — the illegal homemade silencers he offers along with them. “The gun is the burger — but these are the fries,” he tells Rick, explaining how fast food servers are trained to make you think you want something you don’t really need. “Now go out and sell you some fries.”

Ironically, FBI agents Snyder (Jennifer Jason Leigh) and Byrd (Rory Cochrane) and Detective Jackson (Brian Tyree Henry) ply Rick with a burger and fries as they enlist his services as an undercover narc, threatening to arrest his father for illegal firearms sales if the boy doesn’t comply. This scene was particularly poignant to me, because several of my students at Sing Sing have told me that McDonald’s is the drug of choice for recruiting young drug runners in the streets. “You got no one at home watching out for you, and then some big kid on the block buys you McDonald’s and wants to be your friend. He gives you a cheeseburger and you hold his gun for him. And you end up in here.” Oh, so subtly, with a burger and fries, the film equates the Feds, the dealers, and Rick’s father. The kid never had a chance.

It makes no sense to save for the future when there isn’t a future in sight.

The scenes that follow show Rick immersing himself in the drug culture, with its fast money, easy women, and useless luxuries. These scenes also reminded me of stories my Sing Sing students have told me. “You spent it all as soon as you got it, because you knew this wasn’t going to last. We all knew we’d end up in here. So enjoy it while you can. I had a Mercedes, a big apartment, big parties, I was livin’ the life. Now I’m here.” Rick says something similar to Dawn: “It was good when we were kids. For a while.”

Hopelessness in impoverished neighborhoods often leads people to seek instant gratification and engage in risky behaviors. It makes no sense to save for the future when there isn’t a future in sight. There aren’t any rabbits, and there isn’t any video store. It’s all a pipe dream, mostly found at the bottom of a crack pipe. So grab a few laughs and some ass while you can. There isn’t going to be any more where you’re going.

The feds are no better than the drug lords, and probably worse, because they claim to be the good guys. Driven by moral relativism, they see no problem with getting kids high, sending them into dangerous situations in order to catch drug dealers, and then leaving them to deal with their addictions — and their incarcerations — when they’re no longer useful. Dawn gets strung out on coke provided by her boyfriend, but Rick gets strung out on money provided by the coke the feds give him for his undercover stake. When the feds drop him and that money source dries up, Rick is already hooked. “We gotta do something!” he says to his father in desperation. “We gotta make some money!”

This is a world Liberty readers seldom see and few legislators, journalists, and do-gooders of any sort understand. In one bitterly ironic scene of the movie, the film Footloose is playing on a television moments before automatic weapons riddle the room with bullets. (Footloose, you may recall, is set in a white middle-class community where the biggest threats to happiness are curfew violations, joyriding, and uncontrolled dancing.) “Get out of Yonkers!” is the advice I fairly scream at the families I know there, where poverty, drug use, crime, and hopelessness form a dragnet on their children. But they can’t let go of the safety net — their Section 8 housing — and they stay.

The feds see no problem with sending kids into dangerous situations in order to catch drug dealers, and then leaving them to deal with their addictions — and their incarcerations — when they’re no longer useful.

Rick Wershe may have been the youngest teen to be recruited as an undercover informant to avoid arrest, but he certainly isn’t the only one. According to an article by Tony Newman of Drug Policy Alliance, it has become all too common to bust people for minor possession and then threaten them with decades in prison unless they provide evidence on someone else -– and for those frightened, untrained informants to end up dead. Rick didn’t end up dead, but he might as well have, when his handlers stood idly by as he was sentenced to life in prison with no chance of parole — for selling cocaine. It was the longest sentence for a nonviolent crime ever imposed, until Ross Ulbricht was sentenced to two consecutive life sentences for running the Silk Road website.

I watched the tears quietly trickle down 17-year-old Rick’s cheeks in the closing scenes of the film as he spoke through prison glass to his equally distraught father, and the tears quietly streamed down my cheeks too. I know too many of these young men — now middle-aged — who have beenincarcerated since they were teens because they were enticed into a drug trade that is only lucrative and deadly because it is illegal. There are no good guys in the war on drugs. There is only bad law. And bad schools. And bad neighborhoods without hope.

When Footloose ends, the local authorities acknowledge that they only made things worse when they banned dancing. Maybe it’s time to acknowledge the same thing about banning drugs.


Editor's Note: Review of "White Boy Rick," directed by Yann Demange. Columbia Pictures, 2018, 111 minutes.



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Sic Semper

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The firing of Andrew McCabe, long the number two person at the FBI and during part of 2017 its interim director, rejoiced my heart, which was even more rejoiced by the fact that his firing denies him access to the government pension, said to be worth almost $2 million, that he was on the verge of receiving. Now he can begin to deal with the legal and financial punishments that his organization has long visited upon innocent American citizens.

Of course, this person, fired for his own misdeeds, immediately issued a statement claiming that the event was an attack on “public servants” and “the FBI, law enforcement, and intelligence professionals more generally.” I, for one, do not regard the FBI as sacred, or intelligence agents as a priestly class, or “public servants” as more than government employees. And even if they were, I would consider McCabe a very poor candidate to embody their virtues. This is a man whose wife took hundreds of thousands of dollars from a friend of Hillary Clinton to help her run for office on behalf of the party of Hillary Clinton, and still had the effrontery to supervise investigations of Hillary Clinton.

McCabe's firing is big news because we are seeing a tyrant fall.

Yet the fact that McCabe’s firing was big news, the fact that I and millions even notice the fate of Andrew McCabe, is no cause for celebration. “The FBI, law enforcement, and intelligence professionals more generally” are not supposed to be that important. Their professional careers are not supposed to be crucial to our system of government. The firing of one cop, justified or unjustified, should be no more important than the firing of a professor, a nurse, an engineer, or any other normal person.

McCabe’s firing is big news because he had big power; and he had big power, not because he had a big talent, which he didn’t, but because he was a ruler in an organization that investigates, controls, and often persecutes American citizens, while doggedly withholding information about itself. Under the leadership of McCabe and others, it has become a tyrannical organization. His firing is big news because we are seeing a tyrant fall. Let’s now get rid of the laws and attitudes and social customs that permit the tyranny of the Inner State.




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Caesars Non-August

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I should have known. The first time I saw Broward County Sheriff Scott Israel on TV, he was wearing four gold stars on each side of his collar. The highest rank that anyone can hope to achieve in the US Army is the rank of four-star general. It is difficult — no, ridiculous — to equate a four-star general with an elected cop in a county in Florida. I should have known that a person who would parade around that way would have lots more blustering incompetence to show us.

And he did. Not caring — or perhaps not even caring to know — that his guys had scores of contacts with the lunatic who killed 17 students in a Broward County school, and yet did nothing about those contacts, thereby allowing said lunatic to purchase guns and pursue whatever evil purpose he might find, Sheriff Israel leapt onto the TV screen to insist that more power be given to governmental agencies such as his own, to deal with citizens who want to own guns.

It is difficult — no, ridiculous — to equate a four-star general with an elected cop in a county in Florida.

When it became known that, during the massacre, one of Israel’s armed minions had declined to attack the lunatic, allowing him not only to continue killing people but to walk away from the scene and refresh himself at two fast-food joints, the sheriff self-righteously denounced the cop — while deflecting accusations that three or more other cops had done the same. Israel highhandedly refused to release the videotapes of the event — because the release “would expose the district’s security-system plan.” There was a plan?

Sheriff Israel responded to criticism by modestly observing that he had “given amazing leadership” as sheriff and by reciting nonsensical rhymes:

Listen, if ifs and buts were candy and nuts, O.J. Simpson would still be in the record books.

Two years ago, Israel responded to accusations of political corruption by saying, “Lions don’t care about the opinions of sheep.” He’s the lion, you understand.

I should have known that a person who would parade around that way would have lots more blustering incompetence to show us.

The Florida State Attorney’s office had already started more than 40 investigations of Israel’s little troupe of Scouts. Then there is the case of Jermaine McBean. Sarah Carter summarizes it in this way:

While Israel is battling allegations that his office failed to appropriately respond to the Cruz shooting, he is also fighting a civil court case brought by the family of Jermaine McBean, an African-American information technology engineer. McBean was killed in 2013 by Israel’s deputies after they responded to a call that McBean was walking in his neighborhood with what appeared to be a weapon. It was an unloaded air rifle.

McBean was shot by one of the three cops who accosted him, a man who “feared for his life” because of the “gun” that McBean was carrying on his shoulder.

You can see the history of the case in Carter’s article. You can make your own judgment. But here’s the most sickening part, to me:

Three months after the shooting, Israel awarded two of the deputies [involved in the McBean affair] the BSO’s prestigious “Gold Cross Award.” But under mounting criticism he later told reporters the deputies should not have received the awards, adding that he didn’t award the deputies but couldn’t investigate the matter because someone accidentally destroyed the paperwork.

If you want to see how people look when they’re giving and getting awards of this kind, go here. It’s not a pretty picture. The 2015 report just cited notes that “while the investigation has dragged on for more than two years, the decision to give the officers awards was swift.”

He’s the lion, you understand.

I am not at all sympathetic to Black Lives Matter, and I happen to think that many anti-police accusations are phony, transparently phony, and villainous. Others turn out to be mistaken. But there are plenty that don’t turn out that way, and if the 17 deaths in Broward County — make it 18, counting Jermaine McBean — can possibly result in any good, it will be the continuing exposure of the preening little dictators who stand at the heads of so many well-funded agencies of the police state that is the enforcement arm of the welfare state.

Oh, you’ll be happy to know that the FBI (remember them, and their record of efficiency and impartial justice) is investigating the McBean case — at least as reported a mere two and a half years ago.




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You Won’t Like This Video

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On December 9, National Review ran a story, written by David French, about the police killing of a man in a hallway of the La Quinta Inn at Mesa, Arizona. The story begins in this way:

If you have the stomach for it, I want you to watch one of the most outrageous and infuriating videos I’ve ever seen.

The article includes the video.

I’ve spent a good deal of time trying to think of another way to put it — to say something wiser or cleverer or more analytical than the sentence I just quoted. I can’t think how to do that. Maybe this is because I can’t get over the emotional effects of what I saw when I watched the video. But if you have the stomach for it, I want you to watch it too.




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Making It Official

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My remarks this month are about official abuse of language — a phenomenon so protean that it’s hard to decide where to start grabbing it. I’ll start at random, with the news about an employee of Google who wrote an essay claiming that there was no room for conservative attitudes in that outfit, and immediately discovered that there was no room for his attitudes:

Google has fired an employee who wrote an internal memo blasting the web company’s diversity policies . . .

“We are unequivocal in our belief that diversity and inclusion are critical to our success as a company,” [said] Danielle Brown, Google’s new vice president for diversity, integrity and governance.

Emphasizing the fact that corporate officials are sensitive to race, gender, and so forth, but not to irony, the news article continues with a note about Google’s holding company,Alphabet Inc.:

The subject of Google’s ideological bent came up at the most recent shareholder meeting, in June. A shareholder asked executives whether conservatives would feel welcome at the company. Executives disagreed with the idea that anyone wouldn’t.

“The company was founded under the principles of freedom of expression, diversity, inclusiveness and science-based thinking,” Alphabet Chairman Eric Schmidt said at the time. “You’ll also find that all of the other companies in our industry agree with us.”

Well, that’s diversity for you — universal agreement. It’s science, too. Science means that everybody agrees, and that’s that.

I, for one, do not agree that it’s a good idea to use principles as a kind of camouflage tent and found a company under them. That makes me wonder whether the principles are, in fact, just something to hide beneath. But maybe I’m not thinking scientifically. We know that if science says something, it must be true. That’s that, no matter how preposterous it sounds.

"Science" means that everybody agrees, and that’s that.

Speaking of that’s-that verbiage, let’s turn, without attempt at transition, to President Trump. On August 7, he tweeted this about Senator Richard Blumenthal (D, CT), one of many politicians who have been braying about Trump’s alleged intercourse with Russians (and, oddly, his alleged acceptance of foreign “emoluments”): “Never in U.S. history has anyone lied or defrauded voters like Senator Richard Blumenthal. He told stories about his Vietnam battles and conquests, how brave he was, and it was all a lie. He cried like a baby and begged for forgiveness like a child.”

Cried like a baby isn’t exactly fresh, but it’s fun to see it used about a man so swathed in the dignity of the Senate as Mr. Blumenthal. But I can think of dozens, perhaps hundreds, of anyones who have lied or defrauded worse than Blumenthal, several of them to be found in the Senate today. Maybe Trump can think of some himself, but he also thinks that everyone will understand his untruth as hyperbole.

One may ask, however: what is the use of hyperbole when you’re discussing historical events? If somebody said, “Of all the no-good, lying, dirty dogs, Hillary Clinton is by far the worst,” everyone would understand this as hyperbole; everyone knows she’s not a dog, and everyone can immediately picture all the no-good, lying, dirty “dogs” he has ever encountered, and identify some of them as even worse than Mrs. Clinton. This would not lessen the humorous effect of the trite, though picturesque, characterization of our former almost-president. But when Trump refers to specific, literal, historical facts (about lying, defrauding), he invites people to check them, not just to appreciate his hyperbole. The response is likely to be a pallid, “Sure, Blumenthal’s bad, but he’s not that bad. He isn’t Lyndon Johnson, after all.”

I can think of dozens, perhaps hundreds, of anyones who have lied or defrauded worse than Blumenthal, several of them to be found in the Senate today.

Trump has always trafficked in hyperbole, often to good effect, but historical hyperbole is becoming a habit with him, and a bad habit. On August 3, he tweeted, “Our relationship with Russia is at an all time & very dangerous low.” Since I want to believe, literally and completely, in everything a president of this country says, I immediately went out and bought emergency supplies. If we are at a lower point with Russia than we were during the Berlin blockade, and the Cuban Missile Crisis, and the breakup of the conference at Reykjavik, I’m preparing for war.

Yes, that’s sarcasm; sorry about that — which is what you say, nowadays, when you aren’t sorry about anything. Let’s pursue this topic of official discourse a little further.

In olden times there was a novel, and then a play, called Ten Nights in a Barroom. It was “temperance” propaganda, endeavoring to shame people out of their favorite saloons. I don’t know whether it accomplished that purpose, but it did show how unpleasant saloons could be, and it turned out to be very popular entertainment. But lately we’ve all spent many more than ten nights in a barroom. Ever since that evil day, now lost to memory, when the 2016 presidential campaign began, we’ve been locked in an old saloon filled with barflies yelling abuse at one another. The barflies are politicians and their journalistic surrogates. They scream, they taunt, they bluster, they try to make life miserable for everyone else. There’s just one good thing about them: they’re acting like human beings — angry, outrageous, extravagantly daft, but overtly, and sometimes interestingly, themselves.

If we are at a lower point with Russia than we were during the Berlin blockade, and the Cuban Missile Crisis, and the breakup of the conference at Reykjavik, I’m preparing for war.

Contrast the robotic calm that all the best people believe should characterize official discourse — the placid self-righteousness that camouflaged, with equal diligence,the foreign-policy hysteria of the Bush regime, the Neronian corruption of the Clintons, the ignorant Ameriphobia of the Obama class. The absence of this camouflaging discourse is one of the major reasons the shadow state detests Donald Trump. It detests him because it measures value by the degree to which erring human nature is repressed and the drama of life is replaced by professional training, best practices, settled science, authorized procedures, mission statements, job descriptions, educational credentials, and community principles.

But to replace messy human discourse with a comfort zone of politically correct official discourse is not to banish savagery. Oh no. It is only to weaponize it with inhuman words. There are few things more dangerous than official persons armed with official discourse.

You may recall that in last month’s Word Watch, I alluded to the hysterical behavior of Minneapolis police, and their panic shootings of innocent beings, human and canine. Soon after I wrote that column, wry signs were posted in the region: “Warning: Twin Cities Police Easily Startled,” with a silhouette of a cop with a gun in each hand, banging away.The AP distinguished these signs from “legitimate” ones, thus advertising its own political assumptions, but the signs showed an apt use of language. Less apt, indeed chillingly stupid, have been revelations about the ways in which Law Enforcement in Minneapolis talks.

To replace messy human discourse with a comfort zone of politically correct official discourse is not to banish savagery.

The policeman who wantonly shot two friendly dogs in the backyard of a woman whose burglar alarm had accidentally gone off claimed that the pooches made him fear for his safety. Apparently he needed a trigger warning. But the first words out of his mouth after he shot the household pets were a robotic, “Yeah, I dispatched both of ’em.”

Is that the way you talk when you’re rattled? But you’re not a trained professional, for whom the automatic term for shooting to kill is dispatched.

Worse is the way in which the state’s investigative agency described what happened when a policeman who was allegedly frightened by a noise fired his gun over the driver of the car in which he was riding and killed the woman who had called these cops to her neighborhood to investigate a possible rape. She seems to have made the absurd mistake of approaching the car. . . . but let the investigating agency, the Bureau of Criminal Apprehension, narrate the action as it understood it on July 25:

On July 15, 2017 at approximately 11:30 p.m., Minneapolis PD received a 911 call from a (woman) requesting police respond to 5024 Washburn Ave S, Minneapolis for a female screaming at this location. Approximately 10 minutes later, a female called 911 again to check the status of police arrival at this address. Moments later, Minneapolis PD arrived on scene. Upon police arrival, a female “slaps” the back of the patrol squad.

After that, it is unknown to BCA agents what exactly happened, but the female became deceased in the alley, approximately 10 to 20 ft. north of 51st St. with trauma to her torso that could be a gunshot wound. Minneapolis PD has not elaborated on the circumstances, but requested the BCA to investigate an officer-involved shooting regarding this incident.

Note that the woman had to call twice. Be it also noted that, according to court records, the scene wasn’t searched until seven hours after the killing — I mean the decease — took place. But let’s think about the mentality that created this report.

No, I’m not a psychologist, and I don’t need to be. I’m not looking for individual motivation, biases, or intellectual deficiencies. I’m looking at the organizational mentality that is clearly responsible for this atrocious use of language. It’s practically illiterate, for one thing. “An officer-involved shooting regarding this incident” — what? The shooting was the incident. But much of this is the kind of illiteracy that has to be learned. People don’t normally call women females. They don’t normally say that a woman who obviously was shot dead had trauma to her torso that could be a gunshot wound. Even a sociopath wouldn’t spontaneously employ the language of radical skepticism in a case like this. And it’s interesting that the investigating agency has received a revelation that the cop car was the victim of a “female” slap. They aren’t sure what killed her, but they do know that she — or some other suspicious member of her gender — made the mistake of slapping a car.

For brutal coldness, this one can hardly be surpassed.

But who in the hell has ever said that a person became deceased? We’ve heard a lot of substitutions for died or dead: passed away (eventually followed by that weird nonentity, passed), perished, departed this life, and yes, deceased. Innumerable jocular substitutions (kicked the bucket) have been added, humor being one of mankind’s best means of transcending the fear of death. Each of these terms, euphemistic, religious, or jocular, is appropriate to some human attitude or context, but none of them pictures men and women as mere objects undergoing chemical change.

But now we have became deceased, and it’s not meant to be funny. For brutal coldness, this one can hardly be surpassed. A cake became stale in the fridge. A drain became clogged under the sink. A female became deceased in the alley.

Notice the seemingly inevitable progression of bureaucratic thought. You start with a euphemism (deceased for died), then prevent even that from being an occasion for sentiment.

For some reason, I’m thinking of a scene in Citizen Kane:

THOMPSON
I see. And that's what you know about Rosebud?

RAYMOND
Yeah. I heard him say it that other time, too. He just said, uh,
"Rosebud," then he dropped the glass ball and it broke on the
floor. He didn't say anything after that, and I knew he was dead.
He said all kinds of things that didn't mean anything.

THOMPSON
Sentimental fellow, aren't you?

RAYMOND
Mmm . . . Yes and no.




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The Right to Be Let Alone

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It is the best of times for government snooping and surveillance.

It is the worst of times for privacy and the Fourth Amendment.

The surveillance state should be dismantled, and the right to be let alone should be restored as the glory of the Republic.

This paper explains why and how.

Why Privacy Matters

The right to be let alone from government snooping or surveillance is the most cherished right among civilized peoples.

Privacy encourages creativity and spontaneity. It facilitates growth, learning, and maturation through a process of trial and error without risk of embarrassment.

Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States, 277 U.S. 438 (1928) (dissenting opinion):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Privacy is a cornerstone of a Republic where the people censure government; government does not censure the people. Consider the following.

No person on paper is clean.

Citizens will refrain from exposing and criticizing government fraud, waste, abuse, or lawlessness if they fear the government will retaliate by disclosing or sharing negative or embarrassing information from dossiers assembled through indiscriminate surveillance. They will become docile — a great menace to freedom according to Justice Brandeis in Whitney v. California, 274 U.S. 357 (1927) (concurring opinion). Edward R. Murrow, the scourge of Senator Joseph McCarthy (R-WI) similarly observed: “A nation of sheep will beget a government of wolves.”

Privacy was the spark of the American Revolution.

The urgency of citizen scrutiny of government has heightened as the size of government has grown from a small acorn in 1790 with a budget of less than $10 million and a few employees to a giant oak in 2017 with a budget exceeding $4 trillion and millions of employees. Further, Congress has virtually ceased to exercise oversight because of institutional sloth and incompetence coupled with a craving to escape responsibility. The Pentagon alone cannot account for a staggering $3 trillion in expenditures. Congress has become an invertebrate branch, which has created a corresponding need for fearless citizen criticism of government.

Privacy was the spark of the American Revolution. In 1761, James Otis denounced British Writs of Assistance. They empowered every petty official to rummage through homes and businesses in search of contraband or smuggled goods. He amplified: “It is a power that places the liberty of every man in the hands of every petty officer.” John Adams chronicled: “Then and there the child of independence was born . . .”

In 1763, William Pitt the Elder spoke against an excise tax on cider to the British Parliament in words that thundered throughout the American colonies: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government.

The Fourth Amendment was ratified to enshrine the right to be let alone as a constitutional imperative. Its protections do not depend on the outcome of any election or the spasms of public opinion frightened by terrorist attacks. As World War II raged, Supreme Court Justice Robert Jackson sermonized in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943):

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The Fourth Amendment intentionally creates barriers to law enforcement and a risk-free existence by delimiting the power of government to conduct searches and seizures that disturb privacy. It provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Accordingly, the government must ordinarily obtain a warrant from a neutral magistrate based on probable cause and particularized suspicion of crime before individual privacy may be upset. In circumstances in which a warrant is not constitutionally mandated, searches and seizures must nevertheless satisfy a “reasonableness” standard.

The Constitution was intended to endure for the ages. Its authors knew that unforeseen changes in technology or otherwise would require atextual interpretations to honor the Constitution’s purposes. They understood, like St. Paul in 2 Corinthians 3:6, that “the letter killeth, but the spirit giveth life.” Thus, Chief Justice John Marshall observed in McCulloch v. Maryland, 17 U.S. 316 (1819) that the Constitution “was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”

The Fourth Amendment was ratified to prevent governmental evil — even at the expense of handicapping law enforcement.

The Supreme Court has instructed that the Fourth Amendment should be interpreted to safeguard privacy expectations despite vast changes in government surveillance technologies and capabilities that are no less robust than the privacy expectations of the citizenry in 1791 when the Amendment was ratified.

In Kyllo v. United States, 533 U.S. 27 (2001), the Court held that the warrantless use of a thermal-imaging device aimed at a private home violated the Fourth Amendment. Writing for the majority, Justice Antonin Scalia amplified:

While it may be difficult to refine the Katz [reasonable expectation of privacy test] when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” constitutes a search — at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

Emails or text messages in the Age of the Internet are the functional equivalent of letters in 1791, and should thus command the same protection under the Fourth Amendment. And as to the latter, Justice Stephen J. Field declared in Ex Parte Jackson, 96 U.S. 727 (1877):

The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter,— between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlet , and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household.

Premium protection of privacy according to constitutional mandates does not mean weak government. Justice Jackson explained in West Virginia State Board of Education, supra:

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support. Without promise of a limiting Bill of Rights, it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government.

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government, not private miscreants, criminal organizations, or non-state actors like al Qaeda. The industrial scale slaughters of the Canaanites and Amalekites chronicled in the Old Testament are emblematic. In more recent times, the Third Reich, the Soviet Union, and Communist China have been complicit in genocide or crimes against humanity that have killed up to 200 million. Unlike private parties or non-state actors, government enjoys a monopoly of legalized violence and the power to tax and to conscript, which facilitates repression on a vast scale. The Fourth Amendment was ratified to prevent this government evil — even at the expense of handicapping law enforcement.

The Constitution — including the Fourth Amendment — is premised on the belief that accepting the risk of being the victim of injustice is morally superior to risking complicity in it. Thus, the due process clause requires proof beyond a reasonable doubt and jury unanimity for a criminal conviction. That standard means some guilty persons will escape punishment and be released with a risk of recidivism. But it also means a diminished risk of convicting the innocent and implicating the entire society in injustice. Justice John Marshall Harlan explained in In re Winship, 397 U.S. 358 (1970) (concurring opinion): “I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

Even with the reasonable doubt standard, an alarming number of innocent defendants are convicted. According to the Innocence Project, there have been 333 post-conviction DNA exonerations alone since 1989. Of that number, 20 had served time on death row. On average, each innocent defendant had served 14 years in prison.

It is probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons.

The Fourth Amendment’s reasonableness standard circumscribes government searches and seizures despite the impairment to effective law enforcement. The reasonableness standard is first cousin to the reasonable doubt standard in criminal prosecutions. It is founded on the philosophical principle that it is better to protect the right to be let alone when there is no government showing of a compelling need than to apprehend and punish all criminals. The Fourth Amendment knowingly accepts the risk that some criminals will escape detection that unfree peoples do not because it prefers liberty to a futile quest for a risk-free existence.

Investigations of crime through searches or seizures encroach on liberty irrespective of whether a criminal charge is forthcoming.

The target must retain an attorney at substantial expense to protect against false suspicions or accusations. The investigation, simpliciter, makes the target socially or professionally radioactive — leading to ostracism, the loss of income, family strife, or worse. In the Age of the Internet, the target’s reputation may be irreparably blemished. False and defamatory statements emerging from an investigation are impossible to scrub from the electronic grid. There are countless Richard Jewells of the world of less notoriety.

The percentage of investigations that lead nowhere and thus gratuitously invade privacy is unknown. But clues are available from the Federal Bureau of Investigation’s assessment data. From 2009–2011, the Bureau opened 42,888 assessments of persons or organizations seeking signs of terrorism or espionage. A database search In May 2011 showed that 41,056 of the assessments had been closed without result, and that 1,986 had progressed to preliminary or full investigations — a false positive rate of over 95%. During that period, 39,437 assessments were initiated seeking signs of ordinary criminal activity, and 36,044 had been closed without result, while 1,329 had progressed to preliminary or full investigations — a false positive rate approaching 97%.

The Supreme Court’s crabbed interpretations of the Fourth Amendment have made privacy subservient to highly speculative claims of law enforcement and national security.

It is thus probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons. No law awards them compensation for the government’s invasion of their privacy and probable permanent loss of a livelihood.

In light of these considerations, the Fourth Amendment or complementary federal or state statutes should prohibit any government search or seizure that materially encroaches on the right to be let alone unless the encroachment furthers a compelling government interest and does so with techniques least disturbing to privacy. Search warrants that satisfy the Fourth Amendment should ordinarily not be utilized unless there is probable cause to believe that very serious criminal activity is afoot, not trivial crimes like marijuana possession or use.

The Withering Away of Privacy

The right to privacy has withered since 1791.

Federal criminal prohibitions have proliferated from a handful in 1790 to thousands today. Each prohibition provides a new government justification for invading privacy in the name of law enforcement. A study by the Federalist Society found that by 2007 the United States Code contained more than 4,450 criminal offenses.

Further, a growing number of federal crimes impose strict liability with no mens rea. They justify investigations with no suspicion that the target acted with a guilty mind.

Additionally, the government began the dragnet collection of foreign intelligence as the United States changed from a republic to a global empire. Foreign intelligence is virtually limitless in scope and generally shielded from legal accountability through the Executive Branch’s invocation of state secrets.

Technology has advanced by leaps and bounds that enable ever-greater government encroachments on privacy, for instance, the interception, retention, and search of every phone or email communication at relatively modest cost.

Finally, the Supreme Court’s crabbed interpretations of the Fourth Amendment — including the third party doctrine — have made privacy subservient to highly speculative claims of law enforcement or national security.

The Proliferation of Federal Criminal Prohibitions. Under the Constitution, there are no federal common law crimes, as the Supreme Court declared in United States v. Hudson, 11 U.S. 32 (1812). Federal crimes are creatures of statutes. The first was the Crimes Act of 1790. It created but a handful of offenses, for instance, misprision of treason, piracy, or counterfeiting.

No Department of Justice or Federal Bureau of Investigation was then created for law enforcement, which was largely ad hoc in response to private complaints.

At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately.

In 1791, privacy was tightly safeguarded against federal intrusions. Yet public safety was not compromised. The federal government scrupulously respected privacy for nearly a century after its beginning. The Supreme Court initially confronted Fourth Amendment claims in Ex Parte Jackson, supra, and Boyd v. United States, 116 U.S. 616 (1886). During the previous decades, crime was not a political issue in a single federal election campaign for the House, Senate, or presidency.

The presidency of Theodore Roosevelt inaugurated the federal regulatory state with the Pure Food and Drug Act of 1906 and Hepburn Act of 1906. Then came the Harrison Narcotics Act of 1914, the Prohibition Era, and the New Deal. By 1940, then Attorney General Robert Jackson was warning:

What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes being unpopular with the predominant governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. (“The Federal Prosecutor,” address delivered by Robert H. Jackson, April 1, 1940)

During the 75 years that have elapsed since the Attorney General’s address, the problem of investigative or prosecutorial abuses which cripple privacy has intensified. At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately. Renowned attorney Harvey Silverglate authored Three Felonies A Day in 2009. It chronicles the octopus-like expansion of the federal criminal law and corresponding law enforcement abuses portended by Jackson.

At present, the Department of Justice budget approximates $30 billion annually, a sum which supports more than 100,000 law enforcement personnel.

Federal Strict Liability Offenses. The federal regulatory state features a growing number of strict liability or public welfare offenses in which an innocent mind is no defense. Violations of the federal wire fraud statute or the Marine Mammal Protection Act are illustrative. Wade Martin was convicted under the latter act for selling sea otters to a person whom he mistakenly believed was a native Alaskan.

These types of crimes were unknown when the Fourth Amendment was ratified. Justice Robert Jackson explained the strong common law presumption of an evil intent combined with an evil act to satisfy the threshold for criminality in Morissette v. United States, 342 U.S. 246 (1952):

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil . . . Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a “vicious will."

The growth of strict liability offenses in the regulatory state further lowers the barriers to the initiation of government investigations that encroach upon privacy.

Foreign Intelligence. With the post-World War II transformation of the United States into a global power and the Cold War, the President commenced the collection of foreign intelligence without warrants or congressional oversight based upon an unbounded interpretation of Article II. At present, pursuant to Executive Order 12333, the government gathers foreign intelligence on the President’s say-so alone both domestically and abroad. The definition of foreign intelligence is sweeping, i.e., “information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.”

Foreign intelligence is also collected by the President within the United States under the Foreign Intelligence Surveillance Act, as amended.

The volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Internet communications are intercepted, retained, and searched without probable cause to believe crime or international terrorism is afoot. The magnitude of citizen privacy invaded under the Executive Order is unknown because its implementation is cloaked in secrecy, and the government cannot be trusted to volunteer the truth. The Director of National Intelligence, James Clapper, for instance, lied to the Senate Intelligence Committee under oath in denying that the National Security Agency was collecting data against millions of Americans.

Making reasonable inferences from the disclosures of Edward Snowden, the volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Technology. The development of technology since the ratification of the Bill of Rights has armed the government with unprecedented tools or instruments for invading privacy. They include wiretapping, surveillance drones, electronic surveillance, DNA collection, facial recognition equipment, thermal-imaging instruments, and instantaneous, inexpensive retrieval of information from vast databases. Supreme Court Justice Sonia Sotomayor amplified in United States v. Jones, 565 U.S. __ (2012) (concurring opinion):

GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C.J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility,” Illinois v. Lidster, 540 U.S. 419, 426 (2004).

Supreme Court Decisions. The law is generally backward-looking and tardy in responding to new technology. Nearly forty years elapsed before the Supreme Court in Katz v. United States, 389 U.S. 347 (1967) corrected its erroneous holding in Olmstead v. United States, supra, that conversations were outside the protection of the Fourth Amendment.

Katz established a reasonable expectation of privacy standard to inform Fourth Amendment interpretations. But the Court soon rendered the standard toothless in a pair of decisions divorced from reality.

In United States v. Miller, 425 U.S. 435 (1976), the Court held that the Fourth Amendment is inapplicable to a customer’s bank records that are subpoenaed by the government for the purposes of criminal prosecution. Writing for the Court, Justice Lewis Powell explained:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751–752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

In Smith v. Maryland, 442 U.S. 735 (1979), the Court similarly held that a phone subscriber had no reasonable expectation of privacy in his dialed phone numbers because they were knowingly shared with the phone company. Thus, the Fourth Amendment did not apply to the government’s suspicion-less use of pen registers in the investigation of crime. Justice Harry Blackmun amplified:

When he used his phone, [the subscriber] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

Both Miller and Smith are wildly misconceived. Everyone possesses a reasonable expectation that sensitive or confidential information shared with intimates or businesses for benign, professional, or narrow purposes will not be provided to the government. It has the motive and ability to imprison or otherwise harm you. Internet users share email content with internet service providers without any expectation that the National Security Agency will be privy to the communication. The same can be said, for text messages known to phone companies in the ordinary course of business. But under Miller and Smith, the Fourth Amendment leaves unprotected the contents of every email or text message communication in the United States. The NSA is defending the constitutionality of its bulk collection, retention, and search of telephony metadata regarding every phone call in the United States by relying on Miller and Smith.

Restoring the Right to Be Let Alone

Congress should not tarry in the enactment of legislation that rolls back the staggering encroachments on the right to be let alone that have transpired since the ratification of the Fourth Amendment in 1791.

Atop the agenda should be a Privacy Protection Restoration Act (PPRA), to provide as follows:

A person may assert as a defense in any proceeding alleging noncompliance with a search warrant, subpoena, national security letter, or other government order that compliance would materially encroach on the privacy of that person or a third party unless the government proves by a preponderance of the evidence that compliance is necessary to advance a compelling government interest in law enforcement, and, that the technique for collecting the information minimally encroaches on privacy.

In determining whether compliance with a search warrant, subpoena, national security letter, or other government order would advance a compelling government interest, the court shall consider, among other things, the seriousness of the crime under investigation and documented proof that the investigatory technique to be used in obtaining the information has been substantially effective historically in preventing, deterring, or punishing crime or international terrorism.

The principles behind the PPRA should inform deliberations on pending legislation to update the obsolete Electronic Communications Privacy Act of 1986 (ECPA).

The Email Privacy Act would require the government to obtain a warrant based on probable cause to access the content of any email from an internet service provider irrespective of the email’s age. At present, ECPA restricts protection of email content to communications that have been stored for 180 days or less. That limit was held unconstitutional in United States v. Warshak, 631 F. 3d 266 (6th Cir. 2010). Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Globalization was in its infancy when ECPA was enacted. Most Internet communications and storage took place within the United States. The probability of interjurisdictional conflicts over stored emails outside the United States was more hypothetical than real. Congress predictably remained enigmatic on ECPA’s application to electronic records stored in foreign lands.

Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Three decades later, that opaqueness is unsatisfactory. Law enforcement officials in one country commonly seek access to records in another country. Whose privacy laws apply? The issue has jumped to the forefront because of United States v. Microsoft. In that case, the Department of Justice sought to compel Microsoft to produce emails located on servers in Dublin, Ireland. But the United States Court of Appeals denied that the Storage Communications Act granted that authority. The case might reach the United States Supreme Court.

During the last Congress, a bill known as LEADS would have addressed the issue in the following way.

The government would be authorized to use a warrant to compel production of electronic communications stored abroad if it concerned a United States citizen. There is nothing irregular about extraterritorial application of United States laws to the activities of its citizens. Congress, for instance, has criminalized foreign travel to engage in illicit sex (18 U.S.C. 2423).

The LEADS authorization, nevertheless, would have been worrisome. Reciprocity is the norm on the international stage. If the United States can gain access to information about United States persons stored in China or Russia, we would be required as a matter of comity to permit those countries to obtain access to electronic information about their citizens stored in the United States. Since both China and Russia are lawless nations, their governments can be expected to employ this power to persecute dissidents or otherwise violate human rights. In other words, LEADS’ authorization to use search warrants to retrieve information about United States citizens stored abroad may be a cure worse than the disease.

How important are such search warrants to law enforcement?

At present, we are clueless. Such warrants may be vital or marginal to the investigation of serious crimes. A legislative precedent should not be created that would assist persecution of Chinese or Russian dissidents unless it satisfies a very high threshold of urgency.

We cannot take the government’s law enforcement claims at face value. The government insisted that three counterterrorism laws that have slumbered from birth were imperative: the Alien Terrorist Removal Procedures, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act. They have never been used.

Authoritarian governments can be expected to employ reciprocal power to persecute dissidents or otherwise violate human rights.

Congress should thus prohibit the use of search warrants extraterritorially unless the Executive provides hard, nonspeculative evidence that the authority is necessary in a significant number of cases to prosecute significant crimes. The privacy of United States citizens should not be compromised absent demonstration of a compelling government need.

LEADS would have authorized an internet service provider to resist a search warrant’s use extraterritorially by proving that compliance would violate the laws of a foreign country to the issuing tribunal. But United States courts are amateurs in the interpretation of foreign laws. They would be prone to error absent expert testimony. And years could be consumed in litigating appeals of trial court decisions, which frequently would prove fatal to the investigation. The LEADS game for extraterritorial use of search warrants is probably not worth the candle.

Unless much more convincing evidence of law enforcement need is forthcoming, legislation should prohibit the use of search warrants extraterritorially to obtain electronic communications about United States citizens. That would avoid setting a precedent that would assist China, Russia, or other lawless nations in persecuting their dissidents without material offsetting benefits to United States law enforcement.

The United States would not go dark abroad without the use of search warrants extraterritorially. We have more than 50 Mutual Legal Assistance Treaties with other countries that facilitate the voluntary sharing of evidence and information in criminal cases or other government investigations. The MLAT process can be employed whether or not the information sought concerns a citizen or foreigner. It satisfies customary standards of international comity and avoids interjurisdictional conflicts. But new legislation can make the MLAT process more efficient and transparent.

Conclusion

Privacy is the cornerstone of a flourishing democratic dispensation that celebrates a liberty-centered universe. It has withered over the years succumbing to inflated claims of law enforcement or national security.

Congress should restore privacy as the crown jewel of the nation by enacting a Privacy Protection Restoration Act to impose a heavy burden on the government to justify every material encroachment on privacy. If Congress does nothing, privacy is destined to crucifixion on a national security cross.




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Responsive Government

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Libertarians are of two minds about government.

To some, the state is a system of entrenched powers and interests unwilling to yield a particle of authority. Evidence: even the president can’t make any significant change in the power structure.

To others, the state is a vast assemblage of freeloaders and influence peddlers, perfectly willing to assimilate anyone or anything — even you or me — because it is confident in its ability to survive and grow, no matter what. Evidence: the 535 members of Congress, living proof that anyone can become part of the state.

The mayor tearfully apologized, claiming that he knew nothing of the important honor granted by his office.

The first theory pictures government as an endless web of armed DMVs, the second as an endless series of doors that can be accessed, eventually, by anybody. If even a Maxine Waters or a Mitch McConnell knocks on enough of those doors, eventually one of them will open. There are policemen in the state of California who get paid $550,000 a year. They found a door that opened.

The city of Cincinnati has provided fresh evidence for the second theory. It appears that if you ask the people in the mayor’s office, they will give you a day, a special day, just for you, or for anyone you know, no matter who you or either of you may be.

In 2015, a police officer named Sonny Kim was ambushed and killed on the streets of Cincinnati by a man named Trepierre Hummons, who was then killed. This year, Hummons’ father contacted the city asking that a day be set aside to honor his son. His intention, it is reported, was “to raise awareness of child abuse and mental illness” — two things that something called the Trepierre Foundation — a GoFundMe venue — exists to fight. In any event, the father’s intention was soon honored, and the city declared June 1 “Tre Day” in honor of the cop killer, whose “sacrifice,” the proclamation said, would “save the lives of children for generations to come.”

If you ask the people in the Cincinnati mayor’s office, they will give you a day, a special day, just for you, or for anyone you know.

This action finally leaked into the knowledge of someone outside the mayor’s office, and protests were lodged. “Tre Day” was ousted from the calendar, and the mayor tearfully apologized, claiming that he knew nothing of the important honor granted by his office, which allegedly did not recognize the distinctive name of the person it was honoring. So much for Tre Day. But the awful extent of government is indicated by the fact that it does millions of things like this without its actions even being noticed.

And let me tell you, Tiw, Woden, Thor, Freya, and Saturn are really pissed off.




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Welcome to My Neighborhood

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The first time we saw Connie she was packing a snub-nosed .38. It was strapped snugly to her narrow hips, which were wrapped in skin-tight jeans — knee-high black leather boots and matching jacket rounding out her outfit.

She didn’t look around as she mounted her Harley — or put on a helmet. Her dirty blonde mane was blowing in the breeze. Connie was hot, albeit a bit rough around the edges — what some people might call “rough trade.”

We’d just moved in across the street from her house, a plain, white block bungalow without frippery or landscaping, other than a lawn, doubtless maintained because of the nearly free irrigation water available — and her job.

Connie was hot, albeit a bit rough around the edges — what some people might call “rough trade.”

Parts of the Phoenix metro area are serviced by the Salt River Project (SRP) irrigation district, organized in the 1800s to exploit the flows of that perennial river for the benefit of the surrounding desert farms. Today, much of the farmland has been turned to housing, and the irrigation water, delivered by canals, to lawns bordered by berms to retain the water.

The schedules for lawn flooding are on a rotating continuous timescale, with no lawn receiving its share at the same time each irrigation period. Floodgates may be opened or shut at any time of the day or night, according to SRP’s schedule. Most homeowners, people who work regular jobs and value their sleep, prefer to hire out this task. Enter Connie, who, for a small fee, was available to take care of your irrigation responsibilities.

Within days after our move into the neighborhood, Connie came over to introduce herself, scope us out, and proffer her services. It didn’t take long for her to feel comfortable and express her relief that we weren’t black or Mexican. Before she got too carried away, ranting and raving against those two groups, I told her I was Cuban-American and my wife was Mexican-American.

She said she’d been married to a founder of the Aryan Nation, a white prison gang. I’ll let that sink in for a minute.

She said that was of no consequence. She was prejudiced against these people as a group, not against particular individuals, and she added that one of her best friends was black.

Yeah, right, I thought. To allay our doubts, she explained.

She said she’d been married to a founder of the Aryan Nation, a white prison gang. I’ll let that sink in for a minute. We had needed at least as long to absorb it. (What sort of neighborhood had we moved into?) She continued, explaining that the gang had been formed for protection and that racial and ethnic affinities were the simplest methods for organization. The gangs — black, white, and Chicano — set behavioral rules and enforced them. Compliance led to respect, and respect to incipient friendships — the tortuous path that had led her to a friendship with a black.

Whether Connie was a racist might be debatable, but her opinion of men was definitely single-minded. Glancing at Tina, my wife, and then locking eyeballs with me she declared in no uncertain terms that all men were after the same thing. Sex — no exceptions.

We signed up for her irrigation services.

Connie never answered her door. She figured only bad news would come calling. All visits had to be prearranged. Her house was ringed by security cameras, footage from which was usually available to neighbors to figure out neighborhood mysteries. On at least one occasion, she helped resolve a vandalism incident. Her boyfriend, a muscle-bound, tattooed skinhead in a permanent tank-top, was surprisingly modest and self-effacing. He would often wait hours in front of her door for a response.

Connie, however, was a meth head and occasionally went on binges. Once past the high, she’d get nasty and combative but then, when coming down, would sink into maudlin depression. Her solace was Frannie, our octogenarian neighbor. Frannie was a talented oil-on-canvas painter, fluent in Mandarin and Swahili, and a horny old woman. She and Tina would often share a glass of wine in the afternoon under the carport and talk men. I think it was Frannie’s affinity for Tina that facilitated Connie’s trust in us.

Connie never answered her door. She figured only bad news would come calling. All visits had to be prearranged.

Connie once invited Tina to a shooting range. She’d always wanted to try some shooting, so she enthusiastically accepted. Connie provided Tina with what Tina called a “complicated” handgun, while Connie took a semi-automatic rifle (Tina, knowing little about guns, called it a machine gun).

The female bonding experience was going well until Tina became friendly with the cops who were sharpening their skills in the adjacent gallery. Connie turned combative and abruptly cancelled the date.

Her immediate neighbors were of two minds about her. The family due west was reminiscent of the Gallaghers, the family depicted in the TV series Shameless — dissolute, disorganized, undisciplined, and possessed of a passel of kids. Connie pirated her TV cable off their cable and, I believe (I didn’t pry), shared the monthly fee. The family due east was a couple of editors for the Arizona Republic, the state’s leading newspaper. They and Connie were feuding — something having to do with a tree growing over the cyclone fence separating their back yards.

When Connie found out I was a mason, she asked that I build a block wall between her property and these neighbors’. Except for those lots, most properties in the old subdivision were separated by four-inch-thick block walls supported every ten feet by eight-inch-thick block pillars. I agreed, but I needed to look at her back yard to estimate the extent of the job. She took us over for a look.

Her home was neat and clean. She’d remodeled the tract house to carve out a tiny control room where she monitored the surveillance cameras, and a gun closet where her arsenal was stored. But her bedroom took the cake. A four-poster, crinolined, oversized bed dominated the room, together with a four-by-eight mirror on the ceiling. We didn’t ask.

Frannie was a talented oil-on-canvas painter, fluent in Mandarin and Swahili, and a horny old woman.

Connie didn’t depend for her income on just being the irrigator. When a neighbor discovered her call-girl website, the place went ballistic. (Meanwhile, of course, all the men surreptitiously peeked at her website.) Two doors down from Connie and one door down from the Gallagher-like family lived a cop. He knew all about Connie. He refused to get involved. His philosophy was, if Connie didn’t disrupt the neighborhood, he left well enough alone.

One midday our house was broken into. Purely by happenstance, Tina showed up while the burglar was inside. Tina didn’t hesitate; although small in stature, she was fearless, a rock climber, and built like a female Schwarzenegger. She opened the door and bee-lined toward the hubbub. Catching the thief as she was attempting to climb out the window, Tina wrestled her to the ground and was about to begin pounding when the woman yelled that she was pregnant.

Having been brought up by drug-addled parents in dodgy environments and shuttled between foster homes, Tina had street smarts and could spot a line of BS instantly. “That jewelry that you stole was given to me by my husband just before he was killed in a shoot-out,” she responded, giving the thief pause.

Tina dragged her to the phone and called 911. The operator told her not to attempt to apprehend the thief. While Tina was on the phone, the thief slipped her grip, ran across the street, and jumped up on the four-inch block wall separating Connie’s house from her cable-sharing neighbors. Then, incredibly, she ran atop its length to the next street, where her car was parked. For all her athletic abilities, Tina couldn’t catch up, though she did provide a description of the car.

Catching the thief as she was attempting to climb out the window, Tina wrestled her to the ground.

The thief didn’t get away. Two female officers had already been dispatched and caught her attempting to flee. Tina ID’d the woman and, expecting a lecture about taking the law into her own hands, apologized to the officers for not following the dispatcher’s orders concerning the thief’s apprehension. Instead, the cops congratulated her and expressed a wish that more citizens would get more involved. They added that the woman had done time and was under suspicion and surveillance for similar burglaries in the area — one reason they’d been able to respond so quickly.

When we related these events to Connie, she said the woman was lucky she hadn’t broken into her house.

I never built a wall for Connie; she was too unpredictable. Instead of improving, Connie’s situation deteriorated. She took more drugs, got more combative, and alienated more neighbors. We sold our house at the top of the market bubble (the one that Treasury Secretary Tim Geithner didn’t spot), made a tidy profit, and moved away. Frannie told us that Connie ended up in prison for, I think, owning a firearm — a no-no for a convicted felon.

I love a diverse neighborhood: academic editors, polyglot artists, cops, Aryan Brotherhood meth heads, Cuban & Mexican-Americans, housing bubble speculators, handy call girls, classic car collectors, and other unique personalities we never got a chance to meet.

Our new neighborhood in a small town, anarchic in a completely different way, is calmer. While the characters aren't quite so extremely colorful, the property mix — along winding and hilly streets that change names seemingly without logic, and irregular land parcels — contains multimillion-dollar homes on acreage next to mobile homes and modest DIY homes on small lots, and even a nearly perennial creek called Miller Creek. We don’t even lock our doors.




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There Ain’t No Such Thing as a Free Reverse Mortgage

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Hell or High Water is a classic film about down-on-their-luck bank robbers and the gruff-but-tenderhearted sheriff who doggedly chases them. The bank robbers are brothers Tanner (Ben Foster), an ex-con recently released from prison, and Toby (Chris Pine), a rancher trying to save the family home from foreclosure because the recently deceased mother had tied it up with a reverse mortgage. Come “hell or high water,” they are determined to pay off the debt before the bank gets the ranch.

There isn’t a bad guy in this film. The robbers are bumbling and likeable, with a noble if misguided motive. “We ain’t stealing from you, we’re stealing from the bank,” Tanner tells one bank manager as he points a gun at him. They’re smart enough to garner our admiration for their home-saving plan, dumb enough to make us laugh, and kind enough to tellers and waitresses to engage our sympathy. The bank managers and tellers are also just ordinary folks doing their jobs, and a little bit dumb as well. Their video cameras aren’t working, and they seem to have no security plan in place. If anyone could be considered a villain in this film, it would be faceless bank presidents and real-life folks such as Alex Trebek and Tom Selleck, the television hucksters who promote reverse mortgages as the financial saviors of old age — but they don’t actually appear in the movie.

It’s a brilliant piece of acting from a brilliant and underappreciated actor.

As inept as they seem, Toby and Tanner leave no clues behind — largely because the bankers are so inept themselves. Sheriff Marcus Hamilton (Jeff Bridges) is determined to catch these thieves through cunning instead of force. He would rather figure out their next move and wait for them at the next bank than chase them down with forensics and SWAT teams. He’s an old codger of the proverbial “dying breed,” and the true thief in this film — Jeff Bridges steals the show. Bridges has long been one of my favorite actors, as skilled as Tom Hanks but without the pizazz and notoriety. He just gets the job done, quietly and without fanfare, much as his character, Marcus Hamilton, does in the script.

Underlying the bank heists and chase scenes and good-ol’-boy ribbing is a poignant story about how difficult it can be for men to express deep affection for one another. Tanner and Toby clearly love each other, yet they can’t put that love into words. Instead, they undertake a risky scheme to demonstrate their loyalty to each other. Similarly, Toby is estranged from his sons, who want nothing to do with him, yet he is willing to risk death or prison in order to give them a better life.

If anyone could be considered a villain in this film, it would be faceless bank presidents and real-life folks such as Alex Trebek and Tom Selleck, the television hucksters who promote reverse mortgages.

The relationship between the sheriff and his partner Alberto (Gil Birmingham) is even more striking. Marcus is an old-fashioned “man’s man” who can’t express his appreciation or affection in words. Instead, he peppers his Native American partner with an incessant barrage of racist jokes and stereotypes that cause the audience to cringe and laugh at the same time. But we catch a glimpse of his true emotion in a particular moment when Marcus first laughs in exultation over something he has just accomplished, then strangles that laugh into a sob, and then lifts his head with stoic calmness and moves on. It’s a brilliant piece of acting from a brilliant and underappreciated actor.

Hell or High Water is a character-driven film with an engaging story and topnotch acting. I’ve come to expect the best from Ben Foster and Jeff Bridges, who tend to abandon themselves in their acting and let the character take over with gestures and expressions that are simply and unexpectedly perfect. But Chris Pine, who is known mostly as an action figure with a pretty face (Star Trek, Jack Ryan), delivers a surprisingly nuanced performance as well. Come hell or high water, you should see this film while it’s in theaters this month.


Editor's Note: Review of "Hell or High Water," directed by David Mackenzie. Film 44 / Odd Lot Entertainment (that’s right — not a big studio; they’re all busy making superhero movies), 2016, 102 minutes.



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