Legal Fiction

Anybody heard from the Democratic nominee lately? In probably the worst two months of his presidency, Bush has managed to pull ahead in Pennsylvania (via Kos), and in America more generally, according to a recent Gallup poll. As Ruy Teixeira (thanks Kari) explained here, the polls don't mean that much right now.

Kerry's bigger problem is that his candidacy has no theme. He's been a candidate for nearly two years, and been the nominee for a month, and I've yet to hear any consistent and appealing meta-theme. "I'm not Bush" won't work. Bush's 2000 campaign, by contrast, developed four or five meta-themes early on and stuck with them throughout the entire campaign.

This is one of those elections where the Democrats could seize a permanent majority with a new, exciting message. Unfortunately for the Dems, they've nominated a candidate who may be utterly incapable of rising to greatness.

This post is the funniest thing . . . ever - and further proof that Whiskey Bar is the best blog on the Internet.

Surprise surprise. The country is split down the middle (and along party lines) on whether they find Clarke’s or Bush’s version of the story more believable. It seems that the media blitz succeeded (at least in the short term) in accomplishing its primary goal, which was to portray the whole Clarke affair as a “liberals-said/conservatives-said” issue in the hopes that people will view it as just another partisan battle. If this holds up, it’s a huge victory for Bush and the Ministry of Truth. Sarcasm aside, all people should be troubled by the GOP response to Clarke. The tactics used in the media blitz could be applied equally well by a Democratic president at some point in the future (remember Monica, people?). To help everyone see what’s so troubling, I’ve assembled a laundry-list of what all has bothered me about the response to Clarke.

Not All Arguments Are Created Equal

If you remember nothing else today, remember this: The fact that two sides disagree about a given issue does not necessarily mean (as a matter of logic) that the true answer is somewhere in the middle. You still need to evaluate the merits of the two positions. To borrow an argument from Paul Krugman, if one side argues that the earth is flat and the other side argues that the earth is round, the answer is not somewhere in the middle. And just because the two sides disagree about whether the earth is round, that does not always mean that the truth is hopelessly lost in the mists of partisanship. The earth is round, and there are ways to go about proving it.

Of course, Clarke might be wrong, but there’s a lot evidence supporting him. First, his book (and people should read it) is not a polemical attack. It’s a Woodward-like collection of conversations and meetings from various people I’d never heard of. Most of the book isn’t even about Bush. Second, we know that he has strong credentials and was given a number of important responsibilities by Republican administrations (including going to Saudi Arabia with Cheney and Wolfowitz on the eve of the first Gulf War). Third, there’s a lot of documentary evidence supporting his claims. Fourth, his account of the Iraq “preoccupation” has been corroborated by O’Neill, Bob Woodward, British officials, and the writings of the neocons in the 90s. Fifth, Bush has blocked the 9/11 Commission at every stage of its development. Clarke wants to declassify everything. These seem like odd tactics for both sides to adopt if Clarke is so clearly wrong.

Basically, it troubles me that an administration (for either party) can inoculate itself from serious charges by a very credible source by merely portraying the whole thing as a partisan he-said/she said. It’s ridiculous and it’s insulting to our intelligence.

All-or-Nothing Rhetoric

Another thing that pisses me off about the whole Clarke affair is how many people have (with the help of talking points) made the question of Clarke’s credibility into an all-or-nothing issue. Say what you will about the people who think the truth is in the middle, at least they're willing to concede that Clarke's criticism of Bush has at least some merit. The all-or-nothing people, by contrast, seem to think that if they find one or two slightly inconsistent statements, then his entire set of allegations suddenly becomes 100% false. I’m not sure why we have to take either 0% or 100% of Clarke’s allegations and nothing in between.

The anti-Clarke people are also burden-shifting and subjecting him to a standard that no human can possibly meet. You’ve got hundreds of people digging through every public statement he’s ever made, trying to find the slightest inconsistency. Then, when they find it, they shift the burden on those who believe Clarke to prove that 100% of what he has said is not false in light of the “contradiction.” If that’s the standard, then we should never believe anything Cheney says.

Blaming Clinton

It is funny how often everything that is wrong these days is blamed on Clinton. And I'm no blind Clinton supporter - I was and remain infuriated at Clinton for the Lewinsky debacle. But I'm sick of hearing over and over that “Bush had eight months, Clinton had eight years, and he did nothing.” Or, “Well, Clinton didn’t do anything either.” Again, read the book. Clinton did do something and there’s a huge paper trail to show that he did. A New Year’s bombing was stopped on his watch, and counter-terrorism efforts were greatly increased. The mere fact that people say that Clinton did nothing doesn’t mean that Clinton did nothing. But the point of that argument isn’t to argue logically, it’s to stir up (pathos-style) anger towards Clinton.

Scapegoating Clinton reminds me of what I did when I was a kid and I got in trouble. I would always try to pull my brother down with me, often with success. “Publius, did you break that vase?” “Uhh. . . he hides his green beans under the table and comes back later and throws them away.” The green bean scandal had no logical relation to me breaking the vase, but it made me feel better.

Slash and Burn Strategy

Most of all, I'm tired of the standard procedure that follows when any former government official has anything bad to say about the administration. It's a rather vicious pattern, especially coming from self-proclaimed compassionate Christians. For example, Joe Wilson criticized the administration. In response, he was called a liar and a partisan hack. And his secret-agent wife was revealed. Paul O'Neill criticized the administration. He was called a liar and an investigation was immediately opened to determine if he released classified documents. Dick Clarke criticized the administration. He was called a liar and a partisan hack. And Bill Frist (who later recanted - he just wanted to get the sound bite on TV) threatened that perjury charges might be brought against him. Bob Woodward has a new book on Bush's war on terrorism coming next month -- and word is that it will be significantly less glowing than "Bush at War." It will be interesting to see if they apply the same treatment to him.

One point that's being lost is that these vicious attacks serve another purpose too. They deter future defectors from speaking. It's a very rational strategy. There is a more-than-credible threat that if you attack this White House, they will try to destroy you. Already, we're hearing chatter that they're going to try to destroy Foster, the timid bureaucrat (I saw him on Nightline) who was forced to lie to Congress about the price of the Medicare bill.

From AP (via Yahoo):

Treasury Secretary John Snow says outsourcing of American jobs, a hot issue in the presidential campaign, can help make the economy stronger. "It's part of trade," Snow said. "It's one aspect of trade, and there can't be any doubt about the fact that trade makes the economy stronger."

He's probably right, but being right doesn't matter anymore. What matters is avoiding issues that can be plausibly demagogued.

Timothy Noah (on Slate) poses the following question in his recent article – Why was Wolfowitz so confident AND so wrong about what we would find in Iraq (WMDs and terrorist connections). Though you should read that article, it led to me a different question. I think (as I have learned from others such as Richard Clarke and Josh Marshall who are more knowledgeable about this stuff) that the fundamental question relating to the war on terror is whether terrorism is largely dependent upon states (meaning nations), or whether terrorism is now a globalized international network that has little need of state support. I think that the greatest error of the Bush anti-terror strategy was its failure to see that terrorism had outgrown the nation-state. Once I explain what I mean (and I’m just borrowing others’ arguments – I’m no foreign policy expert), I think we can better understand why we invaded Iraq and better evaluate whether it was the proper action to take in the war on terror.

It’s an old cliche to say that generals often fight the last war. This cliche has a lot of historical support. In many wars, the military planners have (tragically) failed to grasp the implications of new developments (such as technology innovations) that have occurred since the last war was fought. For example, in the American Revolution, the British were slow to realize that their open-field battle tactics did little good in the American forests. In the Civil War, both sides’ generals were slow to abandon the Napoleonic tactics that they had learned in their military academies even though long-range artillery called these tactics into question. Perhaps the best (and most poignant) example can be seen in World War I when the elite calvary units (on horseback) charged enemy trenches that were guarded by machine guns (and were instantly wiped out). It was a grim metaphor for how much that war would change everything (and one day I’m going to explain why World War I - not II - was the defining event of the 20th century).

It’s becoming increasingly clear to me (though I welcome debate on this point) that the Bush foreign policy team, when they chose to invade Iraq, may have been fighting the last war. Before I hear the conservative complaints that I'm anti-Bush on everything, I think this observation actually makes Bush more sympathetic because it suggests that he (and his team) thought they were doing the right thing.

As Clarke pointed out, most of the heavy hitters on the Bush foreign policy team are old Cold War experts (especially Condi-pants-on-fire, who was a expert on Russia). The Cold War was the formative experience for these people. And the Cold War was very much about nation-states. To be sure, Islamic terrorism in those days depended upon state support from places like Iran and Syria (which were supported to some extent by the Soviet Union). And al Qaeda could not have developed without state support from places like Afghanistan and Sudan. But something changed in the 90s. The terrorists outgrew the nation-state. The new terrorism is now dependent, not on nation-states, but upon a global financial network of sympathetic individuals and businesses in many countries (including our own). The Bush team (and the Clinton team) was slow to realize this new development. Josh Marshall explains it well (though somewhat bitterly):

The key, as we've noted before, was the new administration's abiding belief in the centrality of states as the actors in international affairs. That assumption not only preceded 9/11 but, perversely, survived it. As we'll discuss in much greater depth in the future, the hidebound unwillingness to rethink that assumption after the 9/11 attacks is at the root of most of our greatest mistakes and strategic failures over the last two and a half years.

For today, at least, I’m not as interested in castigating Bush as I am in using this observation to make sense of Bush’s actions. I buy this “centrality-of-states” explanation because it makes everything fall into place. For example, why would the administration pull forces out of Afghanistan when they had major al Qaeda figures pinned down in western Afghanistan after the overthrow of the Taliban? Why did they rush to Iraq before they finished the job? Answer: Because they were viewing terrorism through the centrality-of-states prism. It makes perfect sense. The Wolfowitz-Rumsfeld-Cheney thinking was that, without state sponsors, terrorism would wither and die. So, it would be more effective to spend military efforts to remove Saddam (a potential state sponsor) than to finish off these al Qaeda people. Toppling Iraq would also send a clear signal to all other nation-states that America wasn’t messing around. If you sponsored terrorism, then there was a credible threat that you would be overthrown. In the Bush team's hearts, I think Iraq was just as much about creating this credible threat to others as it was about overthrowing Saddam. After the message of Iraq had been sent, no state would want to sponsor terrorism (or at least its support would decrease) and then those al Qaeda types would be declawed, running hopelessly from country to country in a futile search for a sponsor. Seen in this way, it’s actually not a bad strategy IF - and this is a really big “if” - states are central to terrorism.

But that view is being increasingly called into question. If, by contrast, terrorism has outgrown nation-states, then the invasion of Iraq was a blunder of colossal proportions. The reason is that al Qaeda is no longer a centralized organization, or an arm of any nation-state. It’s a virus - a self-replicating virus. Someone with knowledge moves into a new area (like southern Spain) and passes on the al Qaeda “program” to the people. From there, it spreads and the original al Qaeda person is no longer necessary to its continued survival. As much as bin Laden deserves to be hung, his purpose has been served. He wrote the “computer virus” so to speak and now it lives independently of him.

So - and this is the absolute key to everything - the only way to defeat the virus is to deprive it of “fertile ground” in which to replicate. The world must be vaccinated so to speak. But Bush did the opposite. By inflaming the Arabic world, Bush single-handedly created all sorts of new “fertile ground” for the virus to spread. That’s why killing the terrorists won’t work. And that’s why “war” is such a bad metaphor for what must be done to fight terrorism. We must change people’s hearts or this virus will continue to spread.

That - in a nutshell - is why the invasion of Iraq undermined the war on terror. Invading Iraq was a tactic to use against nation-state terrorism. But in light of the new reality of global terrorism, it’s very possible that Bush did the terrorists a huge favor by invading Iraq (It also doesn’t help when we veto every resolution that condemns Israel because it adds more and more “fertile ground.”).

Last thing, someone could object that invading Afghanistan was equally anachronistic. Afghanistan was different. First, it was only a loose nation to begin with – it’s more like a primitive set of tribes than a modern industrial nation-state like Iraq. Second, it was clear that the Taliban was facilitating the growth of al Qaeda (no other nation-state so clearly supported terrorists). Third, we had international legitimacy and international support after 9/11. Had we stopped after Afghanistan, we would have still achieved our credible threat AND we would not have inflamed the world.

This passage from the Clarke book pretty much sums up everything. Again, it's not a bad or dishonest strategy - it's just a wrong strategy:

Finally, Wolfowitz turned to me. "You give bin Laden too much credit. He could not do all these things like the 1993 attack on New York, not without a state sponsor. Just because FBI and CIA have failed to find linkages does not mean they don't exist."

[Update: I purposely didn't read these articles until I finished this post, but Fareed Zakaria and Matt Yglesias both have good thoughts on this issue (via Matt).]

Via Kevin Drum, Jonah Goldberg has a post arguing, that based on his non-empirical observations, conservatives are more well-versed in their intellectual history than liberals. That may be true -- I don't know. If it is, it's a problem (I disagree with Kevin on this point). But Goldberg's post led me to think about a different question relating to the father of modern conservatism - Edmund Burke (whom he cites frequently). Burke lived in the late 1700s-early 1800s and is generally considered to be the first "conservative" in the sense that we now use the word. His thought was heavily influenced by the French Revolution (and its excesses), and his writing turned out to be prophetic in many ways. I like Burke, and I read him back when I was a conservative myself.

But I have a question for all neocon conservatives who claim (like Goldberg) to follow Burke's teachings - How can conservatives reconcile their support for the Iraq war with the teachings of Burke? The funny thing about the neocons is that they became the Rousseau-reading coffee-house idealists preaching action in the name of a vague abstraction (Middle East democracy). These are the very sorts of people and teachings that Burke spent his entire life denouncing. In fact, the main themes of Burke's writings would lead one to oppose, not support, the Iraq invasion. For example, Burke was extremely skeptical of abstractions like "liberty," and especially of radical actions (like coups and revolutions) taken in the name of these abstractions. His thinking was that people lose sight of reality while intoxicated by these abstract visions, and thus, things are generally made worse by their too-hasty actions. Burke also believed in tradition and the wisdom of history. In the case of Iraq, tradition and history clearly showed that post-war Iraq (with its centuries of ethnic tension) would be a mess. And let's not forget about the examples provided by the Balkans and Lebanon. Burke also thought that societal change should come gradually. According to Burke, democratic revolutions will never last if the society lacks the roots necessary to support them (roots developed over long periods of time). I think it's safe to say that Iraq lacked those roots. Burke strongly opposed the French Revolution, but he did support the American Revolution because, in his opinion, it was the British who were seeking to change the status quo. I think that's grossly wrong, but no one can argue that America's invasion of Iraq was necessary to preserve the status quo in Baghdad (unlike the first Gulf War). The invasion of Iraq was a revolutionary, liberal, and even French action.

But don't take my word for it. Read what Jonah himself had to say about Burke and then decide for yourself whether the invasion of Iraq can be reconciled with his writings:

Burke was no ideologue, but he was profoundly rooted in his principles. In other words, he was a man who lived in the real world. He despised abstractions, especially of the French variety. French bleating about "fraternity" was so much "cant and gibberish," he said. He argued that he himself loved "a manly, moral, regulated liberty as well as any gentleman in France," but he wouldn't "stand forward and give praise" to a concept "stripped of all concrete relations" and standing "in all the solitude of a metaphysical idea."

Burke has been called a "Christian pessimist" because he firmly believed in the concept of original sin and supported laws that recognized its existence. This is one of the many reasons why Burke liked the American Revolution but despised the French one. The Americans recognized that human nature not only exists, but that it is deeply resistant to change ("If men were angels…" and all that). The French held the exact opposite view: We are all born as blank slates and the state can rewrite whatever happens to be on the slate, whenever it chooses. [Kinda calls the "domino effect" into question, no?]

But for the purposes of this discussion — and for modern conservatism generally — the most important aspect of Burkean thought is his view of tradition and change. Burke recognized the need for reform (the lack of it, he believed, forced the American colonists to revolt) and he did not fear change. "A state without the means of some change," he wrote, "is without the means of its conservation." But he thought haste in the realm of reform led to even greater injustice than deliberate inaction. "Preserving my principles unshaken," he said, "I reserve my activity for rational endeavors," rather than the excesses of revolutionaries and other social planners. "I must bear with infirmities until they fester into crimes," he once said. It's not that Burke was blind to injustice. In fact his record on spotting problems is better than just about everybody's. No, Burke simply didn't trust the problem-solvers. No single individual is smart enough to impose changes on society willy-nilly.

Perhaps Burke doesn't realize that the war on terror is a "war" and not a "law enforcement operation."

[Update: Drezner links to an article he wrote discussing Burke and Iraqi nation-building. I hadn't seen it when I wrote this - he just posted the link today (3/31), but the article is from last year.]

CAP explains very clearly why Condi's pants are on fire (b/c she's a liar-liar).

The only thing more annoying than the word “postmodern” are the types of people who tend to use the word “postmodern.” Because the word is used in so many ways, it’s hard to know what people mean when they say it. I’m certainly no expert, but I think I do understand at least one aspect of postmodernity. And what’s interesting is that once you understand this aspect, you can see just how much originalism is a product of our times. In other words, the rise of originalism (explained here) in constitutional law is very consistent with other cultural trends that took place in 1980s and 1990s. Today, I want to show you how originalism mirrors "postmodern" trends that we see in contemporary architecture (Camden Yards in Baltimore) and music (Beck’s Odelay).

You can’t understand postmodernism unless you understand modernism. “Modernism” sounds like a pretentious word, but the concept behind it is very simple. Modernism, essentially, is the cult of the new. It seems hard to imagine, but it was not always “cool” to be original. It used to be heretical. The goal of pre-modernists was to master traditional styles of art (or literature, etc.) The goal of modernists, by contrast, was to create new styles. Rather than seeking to write (or paint or sculpt, etc.) in traditional ways, modernists sought novelty and originality. Some of the most famous American modernists (authors) are people like Hemingway and Faulkner, both of whom wrote in strikingly original ways. One example of the differences between modernism and pre-modernism can be seen in the contemporary reaction to Emily Dickinson’s poetry. One of the earliest modernists, Dickinson created a whole new way to write poetry, but it was rejected in her day because she did not write in the traditional styles.

Modernism has also become a vague word because people apply it to different periods of time. But generally, the heyday of modernism was from around 1900-1950. This was the era of Joyce, Eliot, Wolfe, Hemingway, and Faulkner. The horror of World War I helped modernism along in that it made obedience to the past seem like a stupid thing because that past had caused the worst war in human history.

In the second half of the 20th century, post-modernism emerged. In many ways, postmodernism was a rejection of the modernist quest for the new and the original. Rather than rejecting traditional styles, postmodernists returned to them. But - and this is important - postmodernism doesn’t reject modernism altogether. If it did, it would be called anti-modernism (in many ways, al Qaeda and other religious fundamentalism are anti-modern). Instead, postmodernism sort of splits the difference. It draws upon traditional styles, but it mixes and matches them in new and original ways. If this is starting to get fuzzy, some examples will help.

One of most clear examples of postmodernism is Camden Yards – the Orioles’ baseball stadium in Baltimore. For decades, baseball stadiums were bland, plain circles that looked like they came out of East Germany in 1960. But this style was very consistent with modernist efficiency. Camden Yards, however, rejected this style and incorporated the designs of old-school baseball stadiums. It includes odd angles, non-symmetry, and a brick warehouse out in right field. It’s awesome. But the point is that it mixes the old styles with the new styles to form a type of collage. This mixing of the old with the new is one of the characteristics of postmodern architecture.

Another example can be seen in the album Odelay by Beck. The album (which is also awesome) mixes old-style country western music with modern musical styles. Patches of steel guitars and harmonicas are mixed in with modern distorted guitars and computer synthesizers. The broader point to take away is that Odelay relies heavily on mixing and incorporating traditional forms of music in new and original ways.

I would point out that this same artistic trend – the mixing of the traditional with the new and original – is also reflected in originalism. The rise of originalism mirrors the concepts present in Camden Yards and Odelay. As I explained here, advocates of originalism (or original understanding) tend to apply it selectively (which is good because pure originalism would lead to some absurd results). Thus, originalists aren’t always interpreting the Constitution as it was interpreted in the 1790s. What they are actually doing is borrowing patches of the original interpretation and mixing it with other interpretive tools to create a new type of interpretation. Like Camden Yards and Odelay, the theory known as "originalism" is borrowing from the past and creating a collage of sorts that combines original understanding, textualism, and various policy preferences. In doing so, originalism rejects the legal realist philosophy of the 1920s-60s, which was itself a modernist rejection of traditional authority.

I don’t want to get into another debate about originalism. Today, I’m just pointing out how it shares similarities with other contemporary art forms. And because this same pattern (mixing old with new) is evident in so many diverse fields, there must be some larger force that is causing this pattern to emerge. That’s a tough question and one that is worthy of a book. I will take a quick stab at it though. I think that we are living in a time of extreme anxiety. Increased globalization and the end of the Cold War have challenged our sense of national identity. In addition, we’re moving around a lot more and modern technology (such as TVs and computers) is increasingly alienating us from our friends and families – in that we are becoming more isolated from our fellow humans. I think all of these forces (and others) have combined to create a strong need for something more traditional. We are desperately looking for roots these days. Even teenagers are more conservative. Thus, it’s no accident that Camden Yards and Odelay would be created in a time when we were also experiencing a religious revival (some have called it the “Third Great Awakening”). It's also no accident that the rise of originalism corresponded with a renewed admiration for the Founders (who weren't that popular in the 60s). Law, like everything, reflects the society of which it is a part. And because society is currently seeking roots, it should be expected that law would also be seeking roots.

The last part, of course, is speculative. And you can buy my main argument without buying my explanation for what's causing the patterns we see.

Not really, but I am going out of town tonight for a wedding in Alabamie, so I doubt that I'll be posting anything until Sunday night or Monday morning (though it's possible I might post something tomorrow). Before I go, I want to leave you with a couple of thoughts:

Kerry has jumped on Bush for making jokes about the absence of WMDs at the Correspondents' Dinner. While I think that a joke is a joke, it's obvious that Bush did not read my post on "plausible demagoguery." I mean, I can't think of something that can be more mindlessly demagogued than this joke. I'm guessing they didn't run the joke by Karl Rove, the master of plausible demagoguery. What's that John Lennon line - "Instant Karma's gonna get you?"

[Update: Ok - Have a good weekend. I'll be back on Monday. In the meantime, you should definitely check out a couple of posts. First, Billmon gets it exactly right regarding the US veto of the UN Resolution condemning the Yassin assassination. Second, Gadflyer has posted an NPR interview with Clarke in which he offers three very specific reasons why the war in Iraq undermined the war on terror. Here are a couple of the money quotes:

There are more police in Manhattan – not the city of New York, but just Manhattan – there are more police in Manhattan than the United States put troops into Afghanistan. And yet we were supposed to secure and stabilize the country so that never again would it be a base for terrorism. We were supposed to be draining the swamp.

Well, we haven’t. And one of the reasons we haven’t is that we withheld forces that should have been going into Afghanistan. We withheld them for the war in Iraq.
. . .

The third way is that, al Qaeda had been saying, bin Laden had been saying, that the United States is the “new crusader,” the new westerner come to occupy an Arab country, an oil-rich Arab country. And we did exactly that. We did exactly what bin Laden said we would do: We invaded and occupied an oil-rich Arab country that had not been threatening us. And the sights on Arab television of American troops fighting in Iraq, and now occupying Iraq, have infuriated Arab opinion.

The Pew Charitable Trust does opinion polling, very reliable opinion polling in countries such as Morocco and Jordan and Turkey, Indonesia, Pakistan. Many of those countries – the government, at least – is our friend. We consider them allies, and we consider them moderates. And yet the opinion polls now show that up to 90 percent of people in those countries either hate the United States or have a very negative opinion of the United States. Osama bin Laden is a very popular figure in some of those countries. The most-often given name to new children in Pakistan after 9/11 was Osama.

After I read the descriptions of Clarke’s testimony by both Glenn Reynolds and Fred Kaplan, I found it hard to believe that the two people could have watched the same testimony and drawn such radically different conclusions. It’s actually a perfect example of the much larger problem Americans face – the lack of reliable objective news sources. But even this statement would anger some liberals who argue that it is conceding too much to say this is merely a “liberals-said/conservatives-said” issue. I’m not going to get into all of that today. But I do want to try to rise above the fray so to speak and offer some perspective on the Clarke book and testimony. Though I haven’t finished the book, Clarke is essentially raising two charges against the Bush administration officials: (1) they ignored the threat of terrorism pre-9/11 (as a commentator noted - it's more accurate to say "they didn't do enough to fight terrorism pre-9/11); and (2) their invasion of Iraq undermined the war on terror post-9/11. Let’s look at each.

Though I’m certainly finding little merit in anything Condo-liar Rice says (who is appearing in every possible public forum except the 9/11 commission), I think the first claim has been overstated. I think it’s unfair to look at Bush’s (and Clinton’s and Reagan’s) pre-9/11 actions through the lens of 9/11. Though there was certainly suggestive intelligence that seems coherent in hindsight, let’s not forget how unthinkable 9/11 was. I mean, it “changed everything,” right? Even if the Bush team was slow to realize the threat, I think the slowness was more reasonable when you view it without the 9/11 hindsight (though that’s the sort of nuanced explanation that’s almost impossible in the modern TV age – Kerry would have “plausible demagoguery”). It's more important to understand why we failed than it is to assign blame in a partisan way.

That said, Clarke’s second critique – that the war in Iraq undermined the war on terror – is right on. This critique is my most basic and deeply-felt disagreement with the Bush administration. On the one hand, Clarke’s account corroborates other evidence that Bush and the neocon elements seized upon 9/11 as a way to justify (for good or bad) the war in Iraq that they had long been wanting to fight. Some examples of the corroborating evidence can be found in the writings of the neocon shadow cabinet in the 90s, Paul O’Neill’s book, some of Tony Blair’s officials, and even Bob Woodward’s book in which he showed that if certain people had their way, we would have invaded Iraq before Afghanistan. More will come as more records, emails, and memos become publicly available.

The other aspect of Clarke’s critique that is important is the way it undermines Bush’s argument that his greatest strength has been the war on terror. To be sure, I agree with many of Bush’s post-9/11 actions, especially the invasion of Afghanistan. But the invasion of Iraq hurt – it did not help – the war on terror. Clarke provides some support for what I said earlier in response to Andrew Sullivan’s obsessive “we’re-at-war” arguments. We can agree that we’re at war, but disagree about Bush’s tactics in fighting that war. I think that Bush has been given a free ride on his statements that he has fought terror well. Clarke’s account will at least allow everyone to debate that point, rather than just take it as a given. I for one have strongly resented how Iraq and the war on terrorism have been linked in the administration’s statements to the public. It’s very hard for many conservatives to accept the fact that people on the left can agree with the goals of the war on terror, and disagree about whether invading Iraq was an appropriate way to fight that war.

[Update: In defense of my slap at Rice, I would point readers to today's CAP Progress Report complete with documentary verification.] [Updating the Update: Apparently, CAP hasn't posted the 3/25 Progress Report yet (I get it via email). My post links to the 3/24 report. But if you're interested, keep checking back and read the 3/25 Report - that has the reaction to the Clarke testimony and Rice's comments last night.]

As many have pointed out lately, I have not offered many kind words about the President’s war on terrorism. But at some point, progressives have to stop griping and offer their own positive vision about what to do. As I stated before, the war on terrorism will never succeed unless the root causes of terrorism are dealt with. Targeted military force must and should be one aspect of any larger anti-terrorism strategy. And though I have criticized Bush for not addressing the root causes, I have yet to offer any alternative. Lacking expertise, I can’t rattle off specific policy proposals, but I can offer a roadmap of sorts of what I think is necessary. Islamic terrorism will never end, regardless of how many terrorists are killed, until two things happen: (1) something must be done about the deteriorating Israel-Palestine situation (something other than “Let Sharon do whatever he wants”); and (2) young Arabs must believe they have some stake in the future. Today, I want to focus specifically on the second point. I would also note that a lot of what I’m going to say applies equally well to solving domestic problems such as crime, drug use, and even teen pregnancy in poor areas. To understand why, we need to introduce some basic principles of game theory.

The question of why people behave morally has been debated as long as people have been debating. Some think that there is a religious dimension to our conscience and that drives us to act morally. Others think that behaving morally is a product of evolution (e.g., groups of humans that adopted certain moral codes tended to reproduce more). Another explanation that has been offered by game theorists traces morality to so-called “iteration,” or repeat-game scenarios. For example, let’s say your next door neighbor needs help packing groceries in. Obviously, you don’t want to help her and you get no reward for doing it. But you still do it - why? Game theorists would say that even though you don’t get any immediate benefit or reward, helping your neighbor today makes it more likely that you will be helped by her in the future. That’s because you have repeated - or “iterated” - interactions with her. You see her every day, and so you’re better off in the long run by helping her today. Acting morally today (by helping her) increases the chances of future rewards. By contrast, if you are visiting a friend in some other neighborhood, you’re much less likely to help the neighbors because you know you’ll never see them again. In other words, there is no future reward in it for you.

This last point is critical and goes a long in explaining why the Cold War never escalated into an all-out nuclear Holocaust. The USA and the USSR cooperated (by not destroying each other) because they each had a stake in the future. When people have a stake in the future - when they have something to look forward to - they are much less likely to act in ways that jeopardize that future. In other words, they are much less likely to act immorally and risk the punishment from society. That's why invading North Korea would be so dangerous. The only thing keeping North Korea's bombs at bay is its basic instinct for self-preservation. If, however, the leadership thought it was about to be invaded (thus removing North Korea's stake in the future), the missiles might fly.

If you understand this point, you can begin to understand why so much arguably “immoral” behavior occurs disproportionately in poor areas. In America, for example, poor areas experience much higher crime rates, drug abuse rates, and teen pregnancy rates. Unless you think poor areas systematically produce bad people, you could reasonably conclude that something about these areas’ poverty leads to the antisocial behavior. And you would be right. The reason poor people act “worse” than richer people (statistically speaking) is that poor people have little (or less) stake in the future. Prep school kids who have a bright future ahead of them are (statistically) much less likely to engage in behavior that threatens that future because they have a reason for hope -- that reason being the promise of future rewards. These kids have a stake in the future. Many poor people, though, have much less hope for a promising future. Accordingly, there is less to be lost by engaging in antisocial or immoral behavior because they don't see any future rewards for good behavior. Before poor people will turn away from crime and drug use, they must have something to look forward to - some reason or incentive for acting morally.

I think you can see where I’m going with this with respect to terrorism. If my theory is correct, we would expect terrorism to have the most appeal in areas where the population is the most hopeless. And that’s exactly what seems to be happening. Terrorism is thriving in the Middle East Muslim nations - nations that, not by coincidence, are some of the poorest, least educated nations in the world. It also thrives in the poor Muslim ghettos in Europe and northern Africa. Although it’s convenient for rich nations to view all terrorist-sympathizers as pure evil, the truth is more complex. You’ve got to imagine what it’s like to be an unemployed, 20-year old man in the slums of Gaza or the hills of western Afghanistan. You have no prospect for future success. You look to the future and you see only poverty and misery. In short, you see nothing that makes you think the future offers any hope. Then, imagine that you suddenly hear people put the blame on Israel and the USA, which causes you to channel your economic frustrations (mixed in with racial and religious animus) towards those scapegoat nations. These young men are more willing to die because there is so little to look forward to. If they had the chance to be successful businessmen, they would be a lot more hesitant to go blow themselves up.

That’s the challenge for the West. How do we go about providing these people with a stake in the future? Unfortunately, my advice ends here. I don’t know. But again, I think the roots of terrorism are largely economic, and not religious (though both are important), so the answer must include economic reform. For example, the gross income disparities in countries like Saudi Arabia must be addressed. Ownership must be expanded. Education must be expanded. To be honest, I wonder if the appropriate response to 9/11 wouldn’t have been to quadruple the student visas to American universities for young Muslims. Expanding educational opportunities might help create a progressive middle class in these countries - and the middle class does have a stake in the future.

One obvious answer is exactly what Bush is trying to do – impose democracy on the Middle East. That may be the only way (though I'm not sure it can be imposed). My problem with Bush is not so much his democracy-building. It’s the way he went about democracy-building. Iraq is not even close to developing the preconditions for democracy (markets; strong middle class; etc.). Iran, however, is. I strongly believe that the first successful switch to democracy will be in Iran. That’s where I wish Bush had concentrated his efforts. Through a mix of carrots and sticks, perhaps we could have helped the young reform movement. But again, our unilateral charge into Baghdad may have set the Iranian reformers back. Perhaps it didn’t and Bush will actually have the last laugh. But I doubt it. I fear we’re heading into a drawn-out civil war that will impede democracy unless we’re willing to leave massive amounts of troops there for a generation.

That's my two bits. It's a little vague I know. But I think it's a start.

Clarke's allegations may already be affecting Bush's numbers, according to this Rasmussen Report:

March 22 - Bush 48; Kerry 45
March 24 - Bush 44; Kerry 47

Obviously, both are within the margin of error, so take these numbers for what they're worth.

I’m roughly one-third into the Clarke book. So far, he’s given a good account of what it was like on the ground, inside the White House during the chaos of the morning of 9/11. And I came away with a greater admiration for how quickly our government got things under control. Clarke also provides an excellent summary of the history of American actions in the Middle East and the roots of bin Laden and the 9/11 attacks. He makes a strong case that America’s weak response to terrorism played some role in encouraging future attacks like 9/11. But interestingly, the weak will was not merely Clinton’s, but extended back to Reagan and Bush as well. For example, Reagan’s cowardly retreat from Beirut after the Marines were killed sent all the wrong signals to aspiring terrorists.

But what struck me most of all is how misguided certain aspects of yesterday’s massive, coordinated media attack on Clarke were. Sometimes I think that political junkies like myself tend to be somewhat awe-struck by the ruthless efficiency of the Bush communications team and give it more credit than it deserves. I’ll certainly concede that the Bushies have the most disciplined and coordinated media communications tactics in American history. And it was a little scary how quickly all the top officials came together and blitzkrieged the airwaves. But efficiency only gets you half-way home. To win in the media wars, your message must also be good. I mean, the Ku Klux Klan could have an efficient communications operation, but that efficiency serves nothing if the underlying message is wrong or even dumb. In this case, I think some of the Bush team’s strategy was just dumb, and certainly misleading.

For example, one part of the strategy was to associate Clarke with both Clinton and Kerry, which implies that he is anti-Republican and thus was making stuff up or presenting facts in a partisan light. I think that the Bushies would have been better off waiting a day and coming up with a better message, because this one is so bad that it’s almost beneath them. I’m only 75 pages in and here’s what I’ve learned so far. First, Clarke was in no way “out of the loop” or some liberal Clinton holdover. If Clarke is telling the truth, he chaired the first “Principals” meeting on the morning of 9/11 in the White House Situation Room after Condi Rice anointed him “the crisis manager.” Obviously, the meeting was very important and was essential in coordinating the government’s immediate response to the attacks that morning. Second, Clarke served throughout the Reagan presidency. During this time, he worked with Richard Perle and even agreed with him about the ineptitude of the hippies at the CIA. Clarke also pushed for a stronger alliance with Israel. Third, after Iraq invaded Kuwait, Clarke accompanied Cheney, Wolfowitz, Schwarzkopf and others to Saudi Arabia to make the case for allowing U.S. troops to be stationed there. Billmon has a wealth of other information, all of which demostrates that Clarke was very much a terrorist hawk and even adopted positions that would become dear to the neocons. Drezner agrees.

I’m not trying to be a blind partisan for Clarke. I think one can raise valid criticisms of his objectivity. For example, perhaps Clarke hated the second Iraq War so much that it clouded his memory. My point, however, is that it is emphatically not a valid criticism to dismiss Clarke’s allegations as the angry spewings of a partisan who actually had little relevance. This guy was trusted enough to go to Saudi Arabia and make the case for war in a Republican adminstration. He was also trusted enough to undertake massive responsibilities on 9/11 and in its immediate aftermath - again, in a Republican administration. He had been in government for 30 years. His opinions have weight and everyone knows it - otherwise the response would not have been so massive.

So, I can offer only two explanations for the Bush team’s “he’s a Democrat” line of attack. One, it was merely a dumb decision that will haunt them if the press decides to abandon their lazy “he said-she said” template for writing newspaper articles. The second explanation (the two are not mutually exclusive) was something that Kevin Drum observed. He explained that the massive response indicated that the White House was really worried about Clarke. So, the goal of the often contradictory attacks was to raise a challenge to his credibility (by invoking partisanship) and hope that America will view this as just another “conservatives said-liberals said” issue and forget about it. I’ll hopefully have more to say on this latter point later today.

[Update: Fred Kaplan (as usual) has a great piece in Slate providing more detail about Clarke's background and credibility.]

I'll be honest -- I'm more confused than I am angry about Zell Miller's leap from the middle of the Democratic Party to the extreme right-wing of the Republican Party. There's a new Hill article (via Southern Appeal) that I read today in which Miller blasts Kerry and promises to help Bush "any way [he] can." This from a man who praised Kerry in 2001 as "one of this nation’s authentic heroes, one of this party’s best-known and greatest leaders — and a good friend.”

There are several possible explanations. First, Miller could be sincerely disgusted about some of the changes in the Democratic Party. I just don't buy this entirely. If the Democratic Party has changed since the days of JFK, these changes were apparent long before Bush took office, and were certainly present back in 1992 when Miller was a strong supporter of Clinton and in 1994 when he ran for governor without bashing Democrats. Miller rails against the interest groups that now supposedly dominate the Democratic Party - especially labor. Tell you what Zell, if you didn't like labor (the same ones who helped elect you in 1990, along with blacks), then you should have gotten off the train in 1932. I agree that the Democrats have changed since 1960 (especially on social issues), but, if anything, the Democratic Party has been drifting rightward since 1992, which presumably would make the Party more, not less, attractive to Miller. The final reason why I think something more than substantive disagreement is influencing him is that Miller is now 100% Republican. The GOP can do no wrong, and the Dems can do no right. I would expect that someone who had spent his entire life fighting Republicans on certain economic issues - such as the ones who opposed his universal college proposals in Georgia - would at least acknowledge that Republicans were wrong sometimes. The Republicans haven't changed all that much, so Miller's unwavering, unconditional support calls many of his prior positions into question.

Second, Miller is getting old, and he could be losing it. Obviously I don't know, but some of his Senate speeches are sounding more and more like someone who is losing his mind - especially in light of his prior positions (such as accepting labor's help in 1990). Check out these excerpts from an article describing his Senate speech last month:

In his fiery floor speech, Miller quoted the Old Testament prophet Amos' caution of a "famine in the land" and argued that is exactly what the country is facing now.

"Yes, there's a deficit to be concerned about -- a deficit of decency," Miller said. "So, as the sand empties through my hourglass at warp speed -- and with my time running out in this Senate and on this earth, I feel compelled to speak out. For I truly believe that at times like this, silence is not golden. It is yellow."

Miller spent part of his speech blasting the now-infamous Super Bowl halftime show, although he said the antics between Janet Jackson and Justin Timberlake should have been no surprise considering their song included the lyrics "I'm going to get you naked." "I'm not talking just about an exposed mammary gland with a pull-tab attached to it," Miller said. "Does any responsible adult ever listen to the words of this rap-crap? I'd quote you some of it, but the sergeant of arms would throw me out of here, as well he should."

Then, Miller elaborated on his comments from Wednesday in which he called Kid Rock an "ignoramus" for performing while draped in a poncho designed to look like the American flag. "And then there was that dancing, prancing, strutting, rutting guy evidently suffering from jock itch because he kept yelling and grabbing his crotch," Miller said. "But then, maybe there's a culture of crotch in this country that I don't know about."

Oooo-kay.

Third, and this is my guess, Miller is merely shifting with the political winds in Georgia, or "flip-flopping," in the hope of some future benefit. With the New Deal Democrats dying off, Georgia is becoming steadily more Republican. I suspect that Miller has calculated that we're about to enter an era of GOP dominance, especially in the South. So, I'd urge everyone to keep an eye on his activities after (thank god) his term is finished. I suspect that Miller is jockeying for a prime spot in the second Bush administration, or is trying to be a player in local politics. I'll be keeping an eye on him and his family, along with his citations to angry Old Testament prophets.

Everyone in New York and D.C. should team up with every soldier in Iraq and write Ariel Sharon a thank-you note saying:

Thanks sir for endangering my life. Thank you for creating thousands of new terrorists in a single day. Thank you for giving al Qaeda and the Iraqi insurgents an effective advertising tool. Your terrorism against terrorism is making the world a safer place.

Juan Cole explains why.

Josh Marshall was definitely on in this post.

It reminded me of the old Animotion song, Obsession.

You are an obsession
I cannot sleep. . .
I will have you
Yes, I will have you
I will find a way and I will have you
Like a butterfly
A wild butterly
I will collect you and capture you. . .
You are an obsession
You're my obsession. . .
My fantasy has turned to madness
And all my goodness
Has turned to badness
My need to possess you
Has consumed my soul

If you have never read Jane Austen’s Pride and Prejudice, or if you haven’t seen the movie Mystic River, then you might not want to read the post today because I’m going to spoil the endings for you. You’ve been warned. Maureen Dowd – who wrote excellent columns in the 90s – still stumbles on to a good idea every now and then. In last Thursday’s column, she drew an interesting parallel between Elizabeth Bennett (the protagonist in Pride and Prejudice) and the Bush policy on Iraq. In light of the Clarke revelations, it’s worth examining the parallel in more detail because it reveals something even more frightening than the possibility that the administration lied – perhaps they were telling the truth, except that their “truth” was only true in a fantasy world distorted and clouded by their own desire. But let’s back up.

The more I thought about the Clarke accusations, the more my anger evolved into confusion, or even puzzlement. The post-9/11 responses of various officials like Bush and Rumsfeld just seem downright strange. I mean, look at Clarke’s exchange with Rumsfeld:

“Rumsfeld was saying that we needed to bomb Iraq," Clarke said to Stahl. "And we all said ... no, no. Al-Qaeda is in Afghanistan. We need to bomb Afghanistan. And Rumsfeld said there aren't any good targets in Afghanistan. And there are lots of good targets in Iraq. I said, 'Well, there are lots of good targets in lots of places, but Iraq had nothing to do with it.’”

Bush’s response is equally odd:

"I said, 'Mr. President. We've done this before. We have been looking at this. We looked at it with an open mind. There's no connection.' He came back at me and said, ‘Iraq! Saddam! Find out if there's a connection.' And in a very intimidating way. I mean that we should come back with that answer.”

I suppose one could argue that Rumsfeld and Bush were just pretending to sound odd, which would of course be a clever way to hide the fact that they knew they finally had a pretext for invading Iraq. But I don’t quite buy that. To me, it seems that these are the words of people who just knew that Iraq played a role in 9/11. In their minds, it was no longer up for debate.

So here’s what’s nagging me. It seems clear that many sources (including the terrorist czar) informed them that Iraq had nothing to do with 9/11. They were also told that the evidence of Iraq’s WMDs was shaky, at best. One possibility is that they knowingly lied about the threat. It’s almost certain that Cheney’s office lied to, or withheld information from, Bush. But I’m not sure that the others knowingly lied. Another possibility - the more frightening one - is that the Bushies were so disconnected from reality that they sincerely believed that the fantasy world in their head existed. In other words, their desire to attack Iraq and their hatred for Saddam were so strong that these emotions actually began to distort and taint their perception of the world and their own cognitive processes. And this is where Jane Austen comes in.

As humans, our cognitive ability is often subservient to our emotional state. Put more simply, emotions are stronger than our mind. For example, think back to when you were a child and you were alone in your room at night. When you were in an emotional state of fear, your mind began to create monsters from blurry shadows. The fear was so strong that it actually affected the process of perception. You essentially were looking into an inkblot test, but your fear created a coherent image from that blur.

Variations of this human mental weakness have been featured in novels, plays, and films throughout history. For example, in Pride and Prejudice (one of my favorite books), Elizabeth is motivated by her own pride and insecurity to develop a negative assessment of Mr. Darcy, about whom she knows very little. Austen’s genius is that the reader thinks Darcy is a snob too because we share her perspective. But as the novel goes on, we learn that Elizabeth’s perceptions were distorted by her irrational contempt for Mr. Darcy.

The movie Mystic River also plays on this theme. Sean Penn’s character is so angry and enraged that once the suspicion is initially triggered, everything he sees seems to fit into a coherent narrative. His anger infects his perception of the world, and he begins to see his own monsters in the dark. Same deal in Othello. Once Othello gets the initial suspicion of infidelity in his head, his jealousy (and insecurity) clouds and distorts his cognitive abilities and he begins to see imaginary monsters.

Is it possible that something similar was going on in the minds of the Bush administration? It’s an interesting possibility. Kevin Drum linked to an article yesterday that explains clearly just how convinced the neocons had become, back in the 90s, that Saddam was practicing terror against the United States. And Bush had his own reasons for seeing Saddam as a monster after he tried to assassinate his father. It’s possible that all of these people, for one reason or another, began suspecting that Saddam wanted to carry out terrorist attacks against the United States. And once this suspicion was in place, it’s possible that their emotions began seeping into their cognitive perceptions, and began distorting them. In other words, the current administration might have been seeing monsters in the dark. How else to explain Rumsfeld’s strange quote? To me, Rumsfeld sounded like someone who didn’t even question whether Saddam had played a role. He had. Maybe this happened to Bush and even the much-reviled Cheney office. That’s why it would almost be better if they had lied. At least we would know they had been connected to reality when they sent us off to war. What’s more disturbing is that each of them had descended so far into a cloud of anger and suspicion that every act of terrorism really did come from Saddam in the fantasy world their emotions had constructed.

And into this fantasy world walked Ahmed Chalabi and he knew exactly what needed to be said to stoke the fires. He was the Iago of this tragedy, and Bush played the dumb, insecure, simple-minded Othello.

IAGO
I told him what I thought, and told no more
Than what he found himself was apt and true (Act V, Othello).

Feddie over at Southern Appeal takes issue with my recent originalism post. My reply will be posted shortly as an update to the original post. [Update: It's now up.]

Listening to Richard Clarke tonight, I thought about a lot of things. I thought about the wounded soldiers whose lives will never be the same. I thought about the families and friends of soldiers who are in Iraq. I thought about the daily hell that all of them must endure. I thought about the fallen. And I thought about the permanent emptiness in the lives of the families of the lost soldiers. But what really burns me - what triggers my absolute rage - is that the war was unnecessary and that George Bush - for whom combat is a vague abstraction - sent those people to die for his Macbethian intoxication.

If it were done when ’tis done, then ’twere well
It were done quickly. . .
But in these cases
We still have judgement here, that we but teach
Bloody instructions which, being taught, return
To plague th’inventor. This even-handed justice
Commends th’ingredience of our poisoned chalice
To our own lips. (Macbeth I.vii)

It never ceases to amaze me how relevant Shakespeare remains. But anyway . . . the point of today’s post is that I fear little will come of Clarke’s damning account. To be more precise, I don't think Kerry can get much out of it (though that won't stop the blogosphere) And the reason is that, on the issue of Iraq, the Republicans have successfully attained what I call “plausible demagoguery.” Sadly, the goal of modern political debate in the Internet age is not to engage in a discussion of the issues, but rather to adopt a position that can be protected through plausible demagoguery. The term is my own and so I’ll try to explain exactly what I’m talking about.

To understand “plausible demagoguery,” you must first understand that the overwhelming majority of the people get their news from television. A Democratic strategist I know claimed that a majority of Americans get their information about the world from their local news shows. To be blunt, television - and especially local and national news shows - is a horrible way to get information about the world, at least compared to print or the Internet. In a newspaper, you get background history, context, and you can learn more details about what each side is saying. This thoroughness is impossible to convey on television given the time constraints of a 30-minute news show. Thus, political campaigns have to adapt to the demands of the medium - i.e., television. Everything must be as simple as possible so that it can be expressed clearly within the exceedingly short amount of time allotted to it on TV. Rove realizes this (all too clearly) and that’s why Bush’s sound bites are so simple, and why all issues are reduced into clear black-and-white terms. In the world of television, there is no time for an extended explanation, no time for nuance, and no time to engage in an intellectual discussion. That’s also why talking points are so important - and so frustrating to those of us who get our news from print.

The problem with the TV world is that it makes it impossible for politicians to take positions that require more than 30 seconds of explaining. Accordingly, the best thing that can happen to a candidate is for his or her opponent to adopt a position (or do something) that can be demagogued. Candidates can’t just make stuff up, but as long as their demagoguery is plausible (not accurate, just plausible), it works. Clinton was a master of this. After the government shutdown, Clinton could plausibly say that Dole wanted to destroy Medicare. Dole’s position was a lot more complicated than that, and of course, Newt and Dole were correct in that we have to do something about entitlement spending at some point (even though their remedy was extreme). But it didn’t matter. Clinton’s message was clear, simple, and played on popular prejudices. It was pathos rather than logos.

The modern GOP is even better because they use our troops when they demagogue issues. Poor Max Cleland - he could never make people understand that his vote against the Homeland Security Department had nothing to do with terrorists, but with restrictions on workers’ rights. It didn’t matter - that was enough for him to be plausibly demagogued. And he was - and he lost. Another example was the war resolution in 2002. It was brought to a vote one month before the election precisely for this purpose. Anyone who opposed it could be plausibly demagogued as being soft on terror in the next month’s election. The Bushies made it largely impossible for anyone to vote against the resolution given all the bullshit about mushroom clouds they were spouting. For example, it's hard to respond when your opponent can plausibly say, "My opponent voted for letting Saddam keep his nuclear weapons."

And as we saw from Bush’s speech on Friday, demagoguery is the GOP’s strategy to defend its bullshit, lives-destroying war. For politicians who speak out against it (like Sen. Kennedy), Bush can respond, “Well, if Ted Kennedy had his way, Saddam would still be in power and so would his mass graves.” Obviously, that’s the grossest simplification ever. The war to topple Saddam is not justified because Saddam was toppled. But to explain why requires more than 30 seconds - and if you’re explaining, you’re losing.

Another demagoguery tactic that Republicans use is to hide behind the troops. (“You that hide behind walls. You that hide behind desks.” - Bob Dylan, Masters of War) When people express doubts about the war, the Bushies can respond, “Are you saying those troops died for nothing?” That position is equally stupid. The logic seems to be that the war was justified because we lost troops to fight that war. But logic isn’t the point. The point is to be able to make 30-second ads or talking points that demagogue political opponents for “opposing” our troops. (By the way, why is opposing unnecessary wars "opposing" our troops. I tear up every time I see the wounded or the surviving family of lost soldiers on TV - and I am told by some that I "oppose" our troops. Well, my position on Iraq didn't require them to get killed, for whatever that's worth.).

And Kerry is really going to get it for his vote against the $87 billion. Get ready to hear that over and over. Again, notice how simple and clear the argument becomes: “John Kerry voted against funding our troops.” The statement is not true, it’s merely within the range of the plausible (barely). And we’ve already seen how nimbly Kerry has responded to this charge. He’s going to have to get it together or this issue might cost him the election. If I were in charge, I'd advise him to demagogue it right back in their crooked, lying faces, “I wanted those who benefited from the tax cuts to sacrifice for America, just as our troops are sacrificing. Are you saying that the wealthy shouldn’t sacrifice? Are you against our troops?” Something like that.

It’s all very depressing. I’m depressed that Democrats do it. I’m depressed that Republicans do it. But what’s even more depressing is that intellectuals (on both sides) cannot run for office, or if they do, they must lie about what they think. I mean, does anyone really think that John Kerry opposes gay marriage? Of course he doesn’t, but he can’t say that. Demagoguing queers is in this year.

[Update: I didn't wrap that up well. The obvious conclusion that follows from Clarke's revelations is that the war on Iraq was not part of the war on terror. In fact, invading Iraq undermined the war on terror and, as Howard Dean said, has not made America safer. But, and this is what I was trying to get at, Kerry can't say what's obvious - "Iraq was a mistake." On the one hand, his vote makes it hard to say that. But if he actually said that Iraq was a mistake, he could be demagogued as a Saddam-lover and as a troop-opposer. But again, we all know that Kerry thought it was a mistake, even if he can't say anything. So we'll spend this election speaking in code.

And what the hell is wrong with Joe Lieberman? And no, I don't consider his statements defending Bush as the same as McCain's when he defended Kerry. McCain had some sort of factual basis for his comments. Has Lieberman even read the book? What evidence does he have that the head terrorism official who worked for Reagan, Bush I, Clinton, and Bush II was making it up? He doesn't. Lieberman, like Andrew Sullivan, has staked his historical legacy upon Iraq being part of the war on terror. It wasn't and Lieberman and Sullivan are neck-deep in blame. I won't go far as Billmon regarding Lieberman, but he was a little frustrated with Holy Joe: "If I see nothing else accomplished before I die, I hope I at least live long enough to watch that stinking whore run out of the Senate, and, if possible, out of the Democratic Party."

Frank Rich (as usual) has an excellent, though disturbing, article in today's NYT that lists many of the recent attacks on free speech in the name of values. The attacks are numerous enough that I think it's fair to say that they are not isolated responses to inappropriate speech/behavior, but reflect something more systematic. Take a look:

- FCC investigations and threats of fines for the Janet Jackson Super Bowl incident

- Clear Channel's removal of Howard Stern (which happened after Stern turned on Bush)

- Removal of Sandra Tsing Loh - a "longtime commentator" on LA public radio - for failing to bleep an expletive

- Introduction of the "Clean Airways Act" - If enacted, this law would impose criminal sanctions for the words`shit', 'piss', `fuck', `cunt', `asshole', and the phrases `cock sucker', `mother fucker', and `ass hole.'" So, Trey Parker and Matt Stone could go to jail for episodes of South Park. (Type in H.R. 3687 here.)

- Bill Maher was removed from ABC for post-9/11 comments after Ari Fleischer stated that people should "watch what they say"

- The FCC is now reopening the case involving Bono's use of "fucking brilliant."

- Clear Channel pulled the Dixie Chicks from all its stations after the lead singer questioned Bush's Iraq crusade

- Clear Channel pulled "Bubba the Love Sponge" for indecency

- CBS dropped "The Reagans" after the public uproar

This is scary stuff. Lest it be forgotten, every religion throughout history has suppressed or tried to suppress speech in the name of its own values. In the past, censorship was applied when someone dared to say that the earth orbited the sun. Today, if certain elements of the GOP get their way, people can be censored for saying the word "asshole" - perhaps even me.

Now I'm sure people will respond that many of these acts are not "censorship" because the government was not involved. That's technically accurate. The First Amendment applies only to governmental restrictions on speech. Clear Channel is free to do whatever it wants. My question to everyone, however, is whether its time to extend First Amendment protections against some kinds of private actors. Here's why I'm worried:

When the First Amendment was passed (and subsequently applied to state governments after the Civil War), it was inconceivable that private actors could possibly limit speech to the same extent that Congress could. There were large companies, to be sure, but these companies did not own the media ("mediums") of expression. In other words, there was no Clear Channel (who now owns over 10% of all radio stations) and there were not five media conglomerates who contolled all the major television stations. [The 10% actually understates Clear Channel's control. Their stations are concentrated in 248 of the 250 top radio markets (i.e., cities). And they control 60% of rock programming.] Back then, government could shut down speech, but there was no equivalent private actor who could inflict the kind of financial damage that Clear Channel can (just ask Stern's advertisers) in retaliation for certain types of speech.

That's the problem. To protect speech, we must also protect the pathways through which that speech is transported in the modern digital age. Simply protecting against governmental intrusion may not be enough if the government can get private actors to do its work for it. For example, as Rich pointed out, Clear Channel has a long history of financial association with Bush and the Bush administration. It also has a vested interest in getting favorable rulings from the FCC. So, the current administration can exert leverage over Clear Channel. And so when the Dixie Chicks criticized the war, it's plausible to say that Clear Channel dropped them from the playlists either out of loyalty to the Bush administration or in the hopes of getting favors in the future. Because Clear Channel has such an enormous market share, this move really hurts the Dixie Chicks (financially) and it puts other bands on notice that they need to "watch what they say" (because Clear Channel has enormous economic leverage over the bands and their distributors).

Punishing anti-war speech is about as close to the central purpose of the First Amendment as you can get. And to their credit, even some conservatives such as Sean Hannity have expressed skepticism about the recent attacks on speech. A more difficult question is how much the government should intrude on the freedom of private actors in order to protect speech. I'm no First Amendment specialist, but I'm confident some workable doctrine could be applied, even in the absence of a constitutional amendment. After all, Clear Channel and the TV conglomerates all enjoy the benefits of broadcasting on the publicly owned "spectrum." Spectrum is roughly analagous to a large real estate development that is divided up into smaller tracts. The federal government owns the entire development, and "leases" parts of that land to broadcasters who must agree to certain conditions. Again, this may be an obvious point, or may be obviously wrong, (I haven't done much research - so I'd welcome suggestions from those who have), but I see no reason why a court could not prevent private actors on the spectrum (perhaps with a certain amount of market share) from punishing expressions of protected speech. Under this doctrine, dropping the Dixie Chicks for the war statements would be an obvious violation of the First Amendment. Dropping Howard Stern would be a tougher case, which would require an investigation into whether dropping Stern was a response to political statements he had made against Bush. The point is that those who use the public spectrum are entitled to First Amendment protections. Obviously, there are a lot of murky areas (what if Clear Channel simply refused to play a band for political reasons but stated that their musical abilities were poor.). But something needs to be done.

I may try to read up on this area of the law some more, because I could very well be missing something obvious. But even so, it's disturbing to know that private actors can chill political speech just because they are owning more and more of the mediums of expression - i.e., radio stations, TV stations, news organizations. We can protect the content of speech all we want, but if we have no outlet for that speech, the protection is worthless. I think we have reached a point where we must, in order to preserve the purpose and goals of the First Amendment, extend those protections deeper into the private communications market.

I generally take Saturdays off from the blogosphere. Today, I won't be posting but will instead be rooting for Duke to get beat.

I usually at least try to read Charles Krauthammer's op-eds in the Post. But today I stopped and moved on after reading the first two lines:

When confronting an existential enemy -- an enemy that wants to terminate your very existence -- there are only two choices: appeasement or war.

In the 1930s Europe chose appeasement. Today Spain has done so again. Europe may follow.

I've explained why this reasoning is so absurd in an earlier post.

No, I’m not going to discuss the duck hunting trip. I’m going to discuss something more important - Scalia’s recent speech at William & Mary. In this speech, you can find everything that I both admire and hate about conservative jurisprudence. What I admire is that legal conservatives like Scalia have adopted a coherent, compelling, and even aesthetic narrative to describe their policy preferences. What I hate is that this narrative is sort of like fancy window dressing on a turd. It looks pretty on the surface, but once you actually dig into the substance, it stinks. Today’s post is especially important for current law students, who undoubtedly have to deal with originalism and who need to be able to explain why it’s so ridiculous. [Disclaimer: Today’s post is rather long and sort of law-heavy. So if non-lawyers don’t like this stuff, I suggest skipping today. And I use "originalism" and "original understanding" interchangeably.]

Before I begin, I should say that I admire Scalia. Actually, I admired the old Scalia, not the hate-filled, Lear-like man who now goes by that name. Like Scalia, I consider myself a textualist, though not an originalist (the liberal textualist godfather is Justice Hugo Black). For the non-legally trained, “originalism” is a legal doctrine that holds that the meaning of constitutional text should be whatever the meaning or understanding of that text was at the time of the Framing (late 1780s-1790s). I prefer to call the doctrine “constitutional creationism,” but we’ll get to that in a second. Here’s the excerpt from the article describing Scalia’s speech. The very first sentence shows how far Scalia - once a great mind - has descended into the hate-filled prejudice that is now too often directed to those who do not share his views (e.g., the “so-called homosexual agenda”).

"I do not like bearded, sandal-wearing weirdos who go around burning the flag," he said last night at the College of William and Mary. But because the First Amendment protects the right to criticize the government, Scalia said he had no choice but to join the court's majority in ruling that flag-burning is a constitutionally protected form of political expression.

In a freewheeling and often funny speech to an audience of more than 1,000, Scalia said he belongs to a minority of only two members of the court - Clarence Thomas is the other - who base their legal decisions on what the Constitution says rather than their personal feelings. While the other justices and the majority of the legal world believe in a "living Constitution" whose meaning must be interpreted in light of changing times, Scalia said he and Thomas subscribe to a belief that the Constitution still means exactly what it meant when it was adopted. Though most judges and lawyers these days adhere to the idea that their approach keeps the Constitution alive and vital, Scalia says, what they're really doing is insisting the nation's central legal document means whatever they happen to believe.

Aside from the inappropriateness of publicly ridiculing his fellow Justices, let’s look at the substance of what he’s saying. At first glance, it sounds good. He believes the Constitution means what it said at the Founding. Therefore, he doesn’t believe in interpreting the Constitution according to one’s personal feelings. Notice how attractive the narrative is. He invokes the Founding Fathers, who are back in fashion these days. His narrative also makes it sound like he’s following the actual text, while the other Justices are just making shit up and ignoring the text. Non-lawyers should know that there are literally armies of passionate young law students, lawyers, clerks, and judges who feel the same way. And they’re slowly infesting the federal judiciary through their connections within Federalist Society networks.

Here’s the dirty little secret about originalists - they’re making shit up too. To be more precise, they too believe in a "living Constitution" that incorporates their personal preferences. They just have a better way of justifying it. In other words, they have a better narrative to defend their actions. When “librul” judges make a decision that conservatives disagree with (for good reasons or bad ones), these judges are accused of interpreting the Constitution according to their political preferences. When conservative judges do the same thing, they are not being “activist.” They are merely returning to the “original understanding” of the Constitution. It’s a truly genius rhetorical strategy. By adopting it, you'll never lose. It allows you to call out other judges for being activist, yet when you do the same, you can say that you're merely “restoring the original spirit of the Constitutional text” – which by some coincidence happens to be more consistent with your political preferences (an added bonus).

As I see it, there are three profound flaws with originalism. First, it assumes that constitutional text is determinate (or that it has a meaning that can possibly be known). Second, even assuming the text has a meaning, it assumes that we can discover what that meaning is. Third, even assuming we know all of that, it assumes that we should follow that meaning.

Taking the last “flaw” first (i.e. that we should follow originalism), it truly baffles me why so many very intelligent people feel such a devotion to original understanding. The whole problem with the “living Constitution” (which is merely a pejorative term for those who feel that modernity should play a role in constitutional interpretation) is that it’s supposedly illegitimate. The judges aren’t elected, so they shouldn’t impose their personal politics on the nation (though I agree that this is exactly what the Court did in Roe v. Wade). But as Michael Klarman for one has explained (in “Antifidelity”), original understanding is equally undemocratic because it requires that we be ruled by the understandings of dead people who lived in the 1780s, regardless of whether those understandings would be absurd in modern society. That’s why I call original understanding “constitutional creationism” - it doesn’t accept the Enlightenment. It’s anti-rational. We are to live by a set of understandings even if those understandings would lead us to economic or military collapse.

The godfather of this movement - Robert Bork - exemplifies everything that is good and bad about original understanding. First, he’s clearly brilliant and is a great writer - and he makes the doctrine sound attractive. But he’s also scary, and after reading his book, I’m glad he was rejected from the Court. Under Bork’s Constitution, as he concedes in “The Tempting of America,” the poll tax and the literacy test would be found constitutional (these were the methods Southern whites used to keep those pesky negroes from voting). He also claims that Brown v. Board is consistent with originalism, but that’s a big-time stretch. As I have stated before, originalism strikes me more as a religion than a rational post-Enlightenment judicial philosophy that deserves to be followed. But before we can even get to the issue of whether we should adopt it, we need to ask whether it’s even possible to adopt it.

As I said, the first problem with originalism is that it assumes that Constitutional text actually has some determinate meaning. The Constitution includes many inherently indeterminate words such as “unreasonable,” “due process,” “equal protection,” and “cruel and unusual.” These words have no inherent meaning - they're relative terms, much like "hot" and "cold". Thus, beware when anyone says that “unreasonable” meant "X" at the time of the Founding. Whether consciously or unconsciously, that person is merely reading their personal preferences into the indeterminate text. For example, Scalia and Thomas have tried in the past to define an “unreasonable search” as what was unreasonable at the Founding. Because “unreasonable” has no determinate meaning, I can only conclude that Thomas is actually projecting his personal preferences on to the text.

But even assuming that constitutional text has some discernible meaning, how do we go about discovering that meaning? Here’s how modern originalists attempt to discover it. First, they take a word like “commerce.” Then people like Randy Barnett (over at Volokh) find a few snippets of how “commerce” was used (or was arguably used) in the 1780s, and voila, that’s the original understanding of the Constitutional text. In other words, we are to be governed by the historical conclusions of Randy Barnett. No thank you. I’ll take something more democratic and legitimate.

There are so many conceptual problems with this approach that it’s hard to count them all. For example, how does one go about discovering the common “understanding?” How widely used must the term have been? What if the term was only used in certain regions or among certain classes? Is the historical evidence (newpapers; pamphlets; court records) so reliable that we can say with confidence that commerce meant “X” in 1789? Are we so confident that we think our conclusion should be incorporated into the Constitution in 2004?

I don’t mean to be disrespectful. I don’t deny that historical evidence can provide some evidence of Constitutional meaning. But it’s certainly not dispositive. To be honest, I continue to be utterly baffled as to why so many people find original understanding so compelling given all the problems I’ve outlined. I hope these people will one day experience a moment of clarity and say, “Wow, this is absurd.”

But here’s what’s really going on, in my opinion. As I've said, Constitutional text is indeterminate in many places. And because it’s indeterminate, people will inevitably (and necessarily) read their personal preferences into the text (consciously at times and unconsciously at other times). Originalism remains popular today because it provides an ostensibly neutral set of rules that, in reality, help to impose conservative political preferences on to the Constitutional text. In other words, conservatives believe in the “living Constitution” too. They just have adopted a pretty narrative that makes it seem like they’re not doing what they are in fact doing. It’s not so much conscious lying. It’s sort of what Marx said - people tend to adopt beliefs and ideologies that serve their own self-interest. That’s why originalism is still around. It’s an intellectually compelling narrative that provides window dressing for what are, in reality, political preferences. Or window-dressing on a turd, if you prefer.

[Update - Reply to Feddie: First, it is true that my original post was a bit too acerbic. I usually find Feddie to write very thoughtful and rational posts. So I was a little surprised at the intensity of his attack. But it should be expected. Originalists have been bullying people at law schools for about fifteen years, and I for one am sick of it and others should stand up to it as well. Before I reach the merits of Feddie’s rebuttal, I want to point out some of the clever rhetorical tools he used.

First, in the spirit of the Crusader-in-Chief, Feddie boils the issue down into a simplified black-or-white dichotomy. If you’re not an originalist, you’re apparently a “living Constitutionalist.” I am not saying that original understanding should never be considered. For example, “four years” does not mean “six years” just because 200 years have passed. My point is that original understanding is merely one of many tools that judges should use (including text, structure, precedent, and policy). My argument is that it should not be the dominant (or only) tool. But everything is all-or-nothing with these people.

The second thing about Feddie’s post that was clever (and also in the spirit of our Crusader-in-Chief) was his subtle burden-shifting. For example, he wrote, “What's your alternative, sir?” See what happened? He shifted the burden on me to defend an alternative. This is exactly what Bush did with respect to the war. The burden of taking a country to war is a strong one. Bush instead effectively shifted the burden to those who would oppose it. In other words, opponents of invading Iraq had to justify why we should not invade. That’s why the GOP is winning - they’re better at rhetoric. Anyway. . . on to the merits.

I don’t want this to descend into a nyah-nyah-nyah debate. Again, I read Southern Appeal every day and find it to be very thoughtful, even if I disagree. To summarize my earlier post, before originalism can be adopted, there are at least four obstacles that it must overcome (I had only mentioned three earlier): (1) it must assume that terms such as “commerce” and “unreasonable” and “cruel and unusual” have a determinate meaning; (2) if #1 is satisfied, it must assume that people in 2004 can discover that meaning from scattered historical evidence; (3) assuming #1 and #2 are satisfied, it must determine whether the original understanding can be “translated” to new, unforeseen developments such as a stronger executive or Internet pornography; and (4) assuming all these conditions have been met, it must establish that we should follow it. Take your pick – it fails at every step. Since Feddie didn’t really respond in any detail to the first two criticisms (though I know he’s well-read in the history), I’ll wait until he does. I want to focus on #4, and then offer my “alternative.”

Quite simply, I’m not sure why we should make it our guiding principle. First, original understanding is equally undemocratic because we are being governed by a minuscule minority of the total population in 1789 (all of whom are dead). Second, the ratifiers excluded all blacks, women, immigrants, and poor people. Again, I’m not saying that the Constitution is illegitimate, but only that we should be a little more humble about it. Third, if you really take original understanding seriously, here’s a list of highlights that would follow: literacy tests could be reimposed; poll taxes could be reimposed; schools could be segregated; the right to vote could be denied because of poverty; all environmental statutes would be unconstitutional; all civil rights statutes would be unconstitutional (under Randy Barnett’s “exchange theory” of “commerce”); the administrative state would be unconstitutional (that’s a big one); states could ban sex outside of marriage; and some even contend that the Bill of Rights would not apply to states (that opens a Pandora Box of its own). Sounds like a fun place to live, no? That’s why the whole thing is absurd. Originalists stop applying originalism when they find the results distasteful. Again, it’s just pretty wrapping paper over policy preferences.

So my alternative is Hugo Black/Akhil Amar textualism. The main virtue of originalism is that it arguably constrains judges. I’m all for that - the Supreme Court has traditionally acted in favor of conservative property interests, so I’m a big believer in judicial restraint (though you wouldn’t know it from Feddie’s false dichotomy). In this respect, the Warren Court is a historical anomaly. But again, I agree that judges must be restrained, but I think Amar presents a more compelling (and democratic) way to constrain them. For those who are interested in an alternative to originalism, I would recommend reading Amar’s “Intratextualism” in Harvard Law Review, and especially, "The Document and the Doctrine" - read the second one first. Amar’s point (and he draws heavily from Hugo Black) is that the text and structure provide us with guides to interpret indeterminate language. My theory of interpretation mixes Black/Amar and Posner. I think judges should make policy decisions (because I adopt the Enlightenment), but only within the scope of the text. In other words, unless a strong (not plausible, strong) argument can be made that striking down a statute fits within the text and structure of the Constitution, then judges should get out of the way, regardless of how stupid the law is. My theory would not allow a Court to outlaw abortion. But it would allow affirmative action to be upheld as consistent with the text (see Amar on this point). And to be fair, Amar does draw on history, but he does not let his interpretation become a slave to the understandings of dead men. For Amar, new text combined with new circumstances are much more important than Randy Barnett’s historical conclusions.

But even if you disagree with my alternative, that is in no way relevant to the other charges I make against adopting original understanding as the end-all be-all of constitutional interpretation. Again, to sympathetic law students out there, don’t let them simplify the issue into a black-and-white dichotomy. And don't let them bully you.