Legal Fiction

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Just to keep you updated, I'm still in the middle of a very busy period at work. I have several posts in the queue, but I don't have time to write them right now. Please bear with me - things will hopefully lighten up this week.

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A chorus rises from the center-left blogosphere - Marshall and Yglesias.

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Come my friends, and gaze into the crystal ball. Look closely and you will see the world that will be if Roe is overturned. Prosecutors will dig through confidential medical files at will. Doctors and young women will be sent to jail. Come behold. . .

Attorney General Phill Kline, a Republican who has made fighting abortion a staple of his two years in the post, is demanding the complete medical files of scores of women and girls who had late-term abortions, saying on Thursday that he needs the information to prosecute criminal cases.

Mr. Kline emphasized statutory rape at a news conference here but also spoke obliquely of other crimes that court documents suggest could include doctors' providing illegal late-term abortions and health professionals' failing to heed a state law that requires the reporting of suspected child sexual abuse.

. . .

The clinics' brief said that the subpoena covered "the entire, unredacted patient files of nearly 90 women who obtained abortions at two Kansas clinics in 2003" and that it was not limited by age or the absence of abuse reports.

This is indeed a disturbing universe.

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Too busy to write tonight. I do have a question though, and hopefully someone can explain it in the comments. Why is it so lame to be a Tory? Even though they've gained some on Blair's Labour Party lately (by immigrant bashing), the Tories are outpolled nearly two-to-one when you combine Labour and the Liberal Democrats. I guess I would just like to be enlightened on the way Tories are perceived in the public consciousness as compared to Republicans here.

That is all.

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Commenter rdturpin was kind enough to pass along this article from the Savannah Morning News (registration required):

It's been said that Social Security reform is the "third rail" of American politics -touch it, and voters will give you quite a jolt.

U.S. Rep. Jack Kingston, the Republican congressman from Savannah, learned that Tuesday as he swung through the area to continue a series of nine town-hall-style meetings on Social Security. At Armstrong Atlantic State University, the subject caused a crowd of 200 to become rowdy.

Questions were shouted out. The congressman was interrupted. And one of Kingston's assistants was booed when she announced an end to the hourlong discussion.

But one of audience members pointed the way toward something even bigger. He offered the Democrats a guide about how to go about shifting public perceptions of the party:

Of everything he heard Tuesday, the most impassioned comments came from the Rev. Michael J. Kavanaugh, pastor at Our Lady of Lourdes Church in Port Wentworth. The crowd applauded Kavanaugh after he urged Kingston to consider privatization of Social Security as a moral question.

"In the last election, there was a great deal of discussion about values. That's a good thing, except those values related to only two areas - sexual areas including gay marriage and abortion," he said. "The value of caring for the common good is a Judeo-Christian value, and an American value that goes back beyond our founding.

"The responsibility that we have to maintain Social Security - not private or personal security, but Social Security - are values we must hold on to.

"I'm afraid further privatization, whether it's by choice or enforcement, reduces our understanding of our responsibility for our common good."

Amen.

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As you all surely know by now, I did not become the new DNC Chair. But man oh man, I wish I could assume the reins for just one day. I would commission one commercial and then retire. I think the commercial I have in mind could single-handedly deliver a Pennsylvania Senate seat to the Dems.

In case you haven’t seen it, Man-on-Dog Santorum was captured on video entering a town hall meeting on Social Security while local college Republicans chanted “hey-hey-ho-ho-Social-Security-has-gotta-go.” If I were DNC Chair, that commercial would be airing tomorrow in Pennsylvania and would continue to air throughout the spring and summer. Just to make sure everyone understood the chanting, I would add large, scary-looking subtitles in all caps that translated the chants, followed by some excerpt of Santorum making the case for “reform.”

In case you don’t know, Pennsylvania has the second highest senior population in the nation. As DNC Chair, I would gleefully crunch the numbers and air the ad in the oldest, Reddest (as in Red State) parts of the state. I’d put him on defense on his own turf – and I wouldn’t shut up about it until November 2006. If I were Casey, I’d enter the race right now and explain that I felt compelled to do so in the name of Social Security. The press would eat that up – and it would instantly make the 2006 election a referendum on Social Security. "Casey, who claimed to enter the race to save Social Security, . . ." Casey should then run the ad every day. And every single day, he should say that Rick Santorum wants to eliminate Social Security. I don’t care if Santorum recanted tomorrow. The damage is done – it’s too late. He’s one of the ringleaders of Bush’s efforts. To be that out in front on this issue in an elderly state that is already hostile and full of socially liberal Specter Republicans seems politically moronic – principled I suppose, but moronic.

Is that fair? Yes and no. I mean, it is unfair to attribute the quotes from the crowd to Man-on-Dog, but politics ain’t for sissies. (Swift Boats anyone?). Besides, although a lot of people are wishy-washy on phase-out, Santorum has long been a fan of phase-out, as have the prime movers behind Bush’s “reform.” The reason that the chants would stick to Santorum is because they do reflect some larger truth, and that will resonate with people – just like the unending flip-flop accusations resonated because of Kerry’s sloppy handling of the war.

But the larger lesson here is that the Democrats have truly been handed an opportunity of a generation. If they can start framing the 2006 election as a referendum on Social Security – and start doing it soon – it could get ugly for the GOP, especially in the Red States.

One thing that people don’t understand about the Red states is that Social Security is not a wedge issue there for the Dems. Quite the opposite in fact. Despite their social views and the opinions on national security, Red Staters love them some Social Security. And it makes sense why they should – the Red States are often poor and rural. People there depend on Social Security to avoid poverty, which is something Grover and the Club for Rich People can’t empathize with. Republicans have won the votes of the Red State elderly and working class by stressing cultural issues and national security. To stray from this tried-and-true formula for success is a gamble – one with great possible rewards, but great risks too.

That’s why Bush’s post-SOTU tour of Red-States-with-Democratic-Senators was so fundamentally misguided. Bush can wedge these Senators on almost any issue, yet he chose the one issue that every Democrat in every region of the country can rally around. Hell, if you ask a (white) Democrat in Mississippi why they’re still a Democrat, they’ll probably cite Social Security. It’s the one issue where every Red State Democrat has infinite political cover to support the national party’s platform.

Bush’s choice to take on Social Security will strengthen Red State Democrats and put a lot of Red State Republicans in jeopardy. He’s handed these defensive Democrats an issue that they can seize and run with. Normally, running as a Red State Democrat requires a lot of defensiveness and triangulating and all that. And that’s to be expected. But savvy Red State Democrats can avoid a lot of this by making Social Security THE big issue. I’m not kidding – if I were a campaign consultant, I would start running ads next week, even if these Republicans in question fully opposed Bush’s plan. Tie this “reform” around the necks of all them – just like Ted Kennedy is tied around Democratic candidates’ necks.

As for Red State Republicans, an emphasis on Social Security would put them all on the defensive. It would also open up previously “safe” seats if Dems played their cards right. Take my old home district in southern Kentucky. It’s represented by Ed Whitfield, and the bordering district is represented by Ron Lewis. Both congressmen represent rural farming districts with a lot of poor people who depend on Social Security. According to Josh Marshall, both are pro-phase out. If I were in charge, I would find some socially conservative Democrat to run a single-issue campaign against them both. Social Security and nothing else – every day and at every town meeting. I would have the candidates call themselves “Social Security Democrats” – a new label that Red State Democrats could wear with pride, and could use to implicitly distance themselves from the national party in places where such connections are a political liability.

It would be great. Every question would be re-directed to Social Security. “Mrs. Candidate, what do you think about gay marriage.” Response - "I’m against it, but that’s not why we’re here. We’re to talk about Ed Whitfield’s support of a plan to remove one-third of Social Security’s funding, which would cause massive benefit cuts and force massive borrowing.” Removing one-third of funding. Massive benefit cuts. Massive borrowing. Removing one-third of funding. Massive benefit cuts. Massive borrowing. “Mrs. Candidate, do you support Ted Kennedy.” Response - “I don’t give a rat’s behind about Ted Kennedy, and I’ll oppose him when he stands against Kentucky. What I care about is Social Security. I’m a Social Security Democrat.” Removing one-third of funding. Massive benefit cuts. Massive borrowing. Say it with me everybody. Funding. Cuts. Borrowing. My. Opponent. Supports. Decreased funding. Massive cuts. Massive Borrowing. Over and over and over and over and over. Funding - Cuts - Borrowing.

If such a strategy could be successful, the Democrats would enjoy decades of benefits. For one, no one in their right mind would make a serious effort to phase out Social Security for another twenty years. Second, you give Democrats something absolutely and completely non-controversial to rally around in every single state. Democrats could deflect the traditional values questions by shifting the election to the issue of saving Social Security from its would-be destroyers. Third, success might even rob the GOP of a branch of government at a time when they were perfectly positioned to keep expanding their majority.

You can just feel it – they’re scared right now. And they should be. Of course, Lieberman will certainly do all he can to snatch defeat from the jaws of victory. And it would be nice if we had a credible primary threat to prevent him from doing so. But even Lieberman will have a hard time screwing this up.

This is the issue people. This is our chance. If Democrats can’t find away to punish them for this proposed reform, they don’t deserve to govern the free world.

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I must confess that I don’t know very much about Hunter S. Thompson. He was a bit before my time. My first introduction to him at all was through Johnny Depp’s unflattering (though hilarious) portrayal of him in Fear and Loathing. But Billmon quoted him a lot, and anyone that Billmon really likes is probably worth reading. When I heard he died, I immediately clicked over to the Whiskey Bar where I found that Billmon already had his tribute up. Despite my general ignorance of Thompson, I had read these words before (posted by Billmon), and they are as sad as they are beautiful:

There was a fantastic universal sense that whatever we were doing was right, that we were winning. . . . We had all the momentum; we were riding the crest of a high and beautiful wave . . .

So now, less than five years later, you can go up a steep hill in Las Vegas and look West, and with the right kind of eye you can almost see the high-water mark -- that place where the wave finally broke and rolled back.

To his credit, I thought Billmon himself waxed Thompon-esque after Reagan died when he explained the great symbolism of Reagan’s victory back in 1980 when he was still on campus:

I walked back to my dorm that night with an uneasy feeling that . . . Reagan's election marked some kind of turning point. Which it did, of course - as we discovered over the next few years.

In hindsight, it's easy to see that Reagan's election was the end of many things - the end of the '70s, and the mood of experimentation that went with it (the '70s were when the '60s went mainstream); the end of the "Vietnam syndrome," and the temporary popular revulsion against imperial military adventures; the end of the political alignment that emerged from the New Deal, the end of the New Left and its hopeless ambitions - the end, really, of the post-World War II era.

Although both of these passages are imbued with sadness about what has been lost, I can’t help but feel a little jealous. Even if they both eventually lost, at least both of them got to win – at least for a little while. My generation has yet to do so. The Republicans had taken power in Congress by the time I started paying attention to the news, and the era of Bush has been one long string of defeat after defeat. As I get older, I’m beginning to fear that my generation has been cursed to live an age of no progressive victories – of waves rolling back.

Perhaps I’m falling into the conceptual error (that I usually criticize) of romanticizing the 60s and pretending that short video clips with All Along the Watchtower playing in the background actually represent some brief flash of reality. But if I am, humor me for today. After all, sometimes it’s cooler to think of historical movements as existing in flashes, and colors, and waves. Thompson articulated this point perfectly (again, via Billmon):

History is hard to know, because of all the hired bullshit, but even without being sure of "history," it seems entirely reasonable to think that every now and then the energy of a whole generation comes to a head in a long fine flash.

It’s a bit New Agey I guess, but I like conceptualizing history in this way at times. And say what you will about the 60s, there was a sense (at least in the beginning) that this collective flash – or explosion – of progressive energy was changing the world for the better – freeing it from the inertia and sins of history. The day after the Civil Rights bill passed must have been a great day to be alive and politically active in America. It must have been awesome (in the literal sense of awe) to see the manifestation (or flash) of such a determined collective effort. It would have been nice to see Americans coming together to do good, and to join modernity.

The 90s were great, don’t get me wrong. But the collective energies of our generation were not directed toward anything that was good or noble (maybe the Internet bubble was close as some of us got). I had hoped that the 2004 election would be the beginning of a new collective effort by our generation to repudiate the last four years. But no such luck. We still haven’t done anything. And given the strength of the waves crashing against us, our highest goals right now must all involve defense – protecting past achievements and alliances from destruction.

I don’t really have any intention of converting anyone today, or empirically justifying what I’m about to say. I’m simply going to explain what a lot of American progressives are thinking. It's an insight in our subjective perceptions and nothing more - you can take it or leave it.

Anyway, a lot of times I like to think about people in terms of colors. Some are bright, some are dark. Some are warm, some are not. When I think of America right now, I see a lot of dark colors. I see a lot of appeals to our darker emotions of fear and anger. I see a lot of demonization of innocent people. I see a once respectable conservative movement being hijacked by cruel lunatics, and the lunatics are winning. And I don’t understand it. I don’t understand where all the hatred – for gays, for government programs, for liberals, for immigrants – comes from. Some days I want to fight it. But on some days, I just want to turn away in disgust. The inexplicable rage and persecution complex - it's all too much sometimes.

And then I read people like Hunter S. Thompson writing about the brief flash in history when they got to win, when they got the ride the wave. And then I wonder if I’ll ever get to do the same. I wonder if our generation will ever live to see its collective energy coming together for some higher progressive purpose – like the Orange Revolution in Ukraine. I have no doubt that progressivism will come back - all historical movements ebb and flow. But I’m increasingly afraid I may be an old man when it does – or worse.

Sorry to be so depressing – it’s all puppies tomorrow.

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[Warning: This post won't make much sense if you have never read Kurt Vonnegut's "Harrison Bergeron," and if you haven't heard about the Swift Boat producers' latest ad campaign - via Kevin Drum.]


THE YEAR WAS 2008, and everybody was finally moral. Nobody was liberal anymore – everybody hated liberals for their immorality. Nobody needed government programs anymore either, as that was what liberals favored. Everyone was now moral and self-reliant. All this morality was due to the unceasing vigilance of agents of Karl Rove, the new United States Morality General.

George and Hazel were a typical couple in that they were always moral, and always preferred moral policies. To ensure that they remained moral, the Morality General implanted a little television in their brains. They were required by law to wear it at all times. It was tuned to a government/Fox News transmitter. Every twenty seconds or so, the transmitter would send out some sharp video images to keep people like George and Hazel from losing sight of what is moral.

On this day, as on most days, George and Hazel were watching television. On the television screen were news pundits explaining how the old Social Security program had worked before it had been eliminated. George and Hazel thought it sounded like a nice program – protecting the elderly from risk and poverty in old age. Safety nets. It all sounded nice - especially given that retirement was nearer than they liked to admit. Suddenly a loud buzzer sounded in George and Hazel’s heads. Their thoughts fled in panic, like bandits from a burglar alarm as a video image flashed before them:



George and Hazel suddenly forgot what they were thinking about. “You know what I really hate, George? Faggots.” George nodded his head in agreement. There was nothing worse than faggots kissing. That’s what liberals wanted to force on America.

George and Hazel continued watching television. On the screen, they now saw images of the latest carnage in Iraq. The civil war was entering its second year. So many Americans had died. Hazel seemed to remember some promises made by government officials about WMDs and mushroom clouds, and that our troops would soon be gone. It made her angry when she thought that officials weren’t telling the truth. She was about to mention this to George, when the buzzer went off again - louder and more painful than before - followed by the flashing image:



Hazel stared around dumbly, unable to remember what she was thinking about. “You know what I really hate, Hazel? Liberals who hate our troops.” Hazel nodded, “and gays – you can’t forget about them either.” George nodded.

Someone new now appeared on the television screen. George and Hazel recognized that it was President Frist. He was about to explain his latest economic proposal. “My fellow Americans. The 5% tax rate on certain income brackets is simply too high. It is strangling our nation’s small businesses. To encourage growth, I am proposing reducing the tax rate upon these select brackets to 1%. Because Americans believe in fiscal discipline, we will pay for it by getting bloated big government and the LIBERALS FAGS WARD CHURCHILL QUEERS GLOBAL TEST HILLARY TRAITORS!!!!! out of the education arena once for and all. We will cut all loans, grants, and aid in order to grow the economy.”

George and Hazel frowned. Though they had nearly lost their train of thought, they both believed that federal education aid helped people, and shouldn’t be sacrificed to pay for tax cuts for the wealthy. George was about to explain his frustrations to Hazel, when the buzzer again sounded and the familiar images flooded their head.




“God, I do hate those liberal fags, Hazel. Thank God Mr. Frist won the election. What was I talking about?” Hazel shrugged. “I don’t know, but I sure hate fags too.”

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E.J. Dionne is on a mission – and it’s a mission near and dear to my heart. And that mission is to co-opt the language of faith and values to both criticize conservative policies and gather support for progressive ones. The problem, though, is that the people who need to hear such a message won’t listen to E.J. Dionne or any Washington Post columnist for that matter. The people from the Red States who most need to hear that message need to hear it from the friends and neighbors they trust and interact with. The problem is that those people have long since fled to the cities.

My wife and I both grew up in small towns in southern Kentucky. Because we did, we don’t share the prejudices of those who believe everyone in the Red States is a war-hungry gay-hater impervious to argument. But, it is true that many of these areas are hemorrhaging educated young people who leave and never come back anywhere close to their hometowns. Think about it – how many people who live in NY or DC or LA are actually from there? Many of these cities’ current residents are transplanted Red Staters – or from Red regions in Blue States. The problem for Red State progressivism is that these people would be the most natural and most effective advocates for progressivism back in their home states. They would also be ideal progressive candidates for local, and eventually state-wide, office. (See, e.g., Bill Clinton). The more that they leave, the fewer that are left to make the case. And that means that too many people see “liberalism” defended only by people like Alan Colmes on TV. What we need are missionaries for progressivism. So maybe that means it’s time for all us transplanted Red Staters to sacrifice good sushi and head back home – or at least to the closest place to home that we can get tolerable sushi.

Using the word “missionary” is particularly appropriate. The challenge progressives face is to convince people of the merits of progressivism in a manner consistent with their language, values, and customs. Missionaries often incorporate elements of Christianity (or whatever religion) into local customs and rituals. Progressives must do the same with the “religion” of progressivism.

One of the best examples from history of this sort of adaptation may come Jesus himself. I saw a documentary a while back that interviewed some biblical historians. In the Bible itself, there is a big gap in Jesus’s life from childhood to the beginning of his preaching (age 33 or so). Some scholars have speculated that he traveled east to India during this period. Their evidence is that Jesus’s teachings show remarkable similarities to Buddhism. Despite the abuses of religion by Dobson’s Taliban, if you actually read the Gospel, Jesus sounds like a 60s hippy preaching love, tolerance, and forgiveness for all. He hung out with the socially marginalized and railed against losing sight of love in the name of cold rules or commandments (for instance, his first two commandments were to love God and love others - not bash gays).

What these scholars believed happened was that Jesus went away and was profoundly moved by eastern religions. Growing up in Israel, he was of course already quite familiar with the laws and practices of Judaism. When he came back, Jesus essentially preached the message of Buddhism by incorporating the language, rituals, and practices of Judaism. He used a language and value system familiar to all. In short, he changed it from the inside.

Progressives could do the same. Obviously, people who grew up in churches and in Red States have a far better grasp on the language and modes of thought of people in these areas. (See, e.g., Bill Clinton). The challenge is to inject progressive ideas into these areas through the use of familiar language and values in the same way Jesus injected Buddhism into Judaism (which became Christianity).

One tactic I would use – and one I do use – is to first seek out common ground on the goals shared by all. We are all pro-family, we are all pro-values, we are all pro-patriotism, and we are all pro-individual betterment. The question is not one of goals (which Fox News would like people to believe) because we all share the same goals. The question is what policies are most consistent with those goals.

Take gay marriage. In arguing for this at home, I first affirm how important families are to society. I sincerely believe that families are the microstructure and glue that holds greater society together. Progressives should do everything to strengthen this institution, and to make sure families have more time to spend with each other. The reason I support gay marriage is not because it threatens families, but because it creates them. It strengthens them. It ensures that children will always have access to their parents, even if they split up. Property rights gives people incentives to remain in a stable structure. In short, I support gay marriage for distinctly “conservative” reasons.

The same is true for health care or increased labor rights. Lessening the demands of work, and freeing people from worry about sickness, gives people more time to spend with their children. Like Social Security, providing access to health care and education eliminates risk and fear, and that strengthens families. Such programs also further individual betterment, just like many other government programs.

The same is true for patriotism. We all support our nation, and we all support our troops. But we can disagree about whether a given policy furthers that goal. Opposing wars are not anti-America or anti-troop, they’re pro-America and pro-troop. I don’t want troops to die in unnecessary wars. I don’t want families to toss and turn at night wondering if tonight is the night that the insurgent destroys their lives forever. I don’t want America to be hated in the world. Patriotism simply doesn’t mean blind support for the administration in power. But these disagreements don’t mean that we don’t share the same goals, just as a fight with one’s parents doesn’t mean there aren’t deeper unshakable loyalties beneath these disagreements.

The last point I’ll make is that a reverse Exodus to the Red States would, if nothing else, increase diversity of views. As people like Cass Sunstein have written, exposing people to diverse views tends to mitigate extremism and soften ideological attachments. This is why traveling abroad and going to college so often results in a changed worldview that usually correlates with increased secularism and respect for internationalism. It’s not that people in college or abroad are more enlightened, it’s just that when you are exposed to more views, religions, and cultures, you are less likely to see your own as self-evidently superior. The same would be true for political views. The more people are exposed to different views (among people they otherwise trust and like), the more likely they will question and challenge their own views.

Obviously, there are sacrifices to be made in returning home. But there are also some benefits. People don't have to work as hard, and family members are around to help with babysitting or to give you a free weekend away from the kids. But on a more macro-level, a reverse Exodus would help inject progressive values into areas that I sincerely believe do far worse under conservative leadership.

So in the spirit of Horace Greeley, I say “Go Home, Young Man.”

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Via OxBlog, I see that the Harvard faculty is pondering a no-confidence vote for President Summers. Now I obviously have major reservations about any suggestion that genetics is responsible for the disparity between male and female science faculty. But in the words of the second worst Senator in the Senate, James Inhofe, I'm more outraged by the outrage. Universities - especially Harvard, considered to be the second best university in the country - are supposed to be open to all ideas, no matter how repugnant they may be. That's the whole point of a university. It's a place where people can explore controversial ideas, and challenge old ways of thinking.

But the free-speech-on-campus-suppressing reaction we're seeing provides further support for the idea that the political spectrum, to the extent it is linear at all, should be conceptualized as a quadrant. As I explained here, it's not just left and right. It's also divided into "order" and "freedom". The latter is more libertarian (or classically liberal), while the former wants to impose its own social and moral order upon others. Libertarians like Drezner and Sullivan would be the "Freedom Right," while the Cleric Dobson's American Taliban would be the "Order Right." Similarly, left-leaning libertarians would be the "Freedom Left," while the Harvard faculty appears to be strongly within the "Order Left" camp.

The faculty is acting in a disturbingly parallel way to its right-leaning brethren on the Order side of the spectrum. The Order Right wants to impose its own religious orthodoxies (from science education to birth control) on the rest of the nation. Similarly, the Harvard faculty has apparently declared that some sort of orthodox speech code exists, and that Summers committed heresy. The whole thing strikes me as being very similar to the way that religious fundamentalists try to punish those who stray from what they interpret as being acceptable.

Look, this is not to say we shouldn't refute Summers's statements. And it would be different if, say, an elected leader were using this to justify discrimination. But a university thrives on the free exchange of ideas - that is its lifeblood, and that is what has made the American university system so great.

And finally, let me add that this is just another reason why high school students who have the choice should drive down I-95 to New Haven and attend a better university.

[UPDATE: Some interesting points in the comments. First, the question is whether Summers' remarks were more inappropriate because he is an administrator with control over tenure decisions. That's a fair point assuming his comments were reflecting a bias, or setting the groundwork to justify discrimination. I guess I just viewed them differently. To me, Summers seemed to be saying that we have a problem. Then, he rattled off some potential causes of that problem.

The most troubling thing Summers said was the bit about "intrinsic aptitude." But still, sometimes stupid hypotheses are offered so that they can be refuted and cast aside. For instance, people who believe that race is a genetic determinant of IQ (Bell Curve people) are never going to change their mind if you scream at them - even if they deserve to be screamed at. Assuming they are capable of rational thought, the only way to convince them is to discuss the hypothesis, and then explain why it is so dreadfully wrong. All things that are so obviously wrong should be quite easy to refute. The same deal applies to women and science. There are people that seem to think there is some genetic difference. The only way to convince them once and for all is to refute it with reason - explain why genetics is far too complicated for such a simple conclusion; explain how genetics has been used in history to promote discrimination and worse; etc.

Again, all this is different if we're talking about some Nazi offering theories to imprison Jews, or a theory offered to justify discrimination. But this was not the context of the Summers speech at the university (in my opinion).

The bigger point is that the university should be a place where nothing is sacred. People should be allowed to be offensive with impunity, assuming it's a good faith free inquiry to find truth (which is the crux of question about Summers). If UT tried to fire Glenn Reynolds, I would rush to the bastard's side. If Ward Churchill wants to call the 9/11 victims little Eichmanns, then he's an idiot, but I would rush to defend him too from retaliation. Summers is an administrator, and that's the best objection to his speech. But still, I doubt that Summers was doing anything other than trying to be provocative in the name of truth (that he did so rather stupidly should be pointed out, but it doesn't justify taking his scalp). Jefferson had a great quote in 1820 at the founding of the University of Virginia which all faculty would do well to read:

This institution will be based upon the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.

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There are basically two things you need to know about the recent class action bill signed into law by President Bush. It moves most class action lawsuits from state court to federal court. And the reason it does so is because class actions are more likely to fail in federal court. That’s the new class action law in a nutshell.

Ignoring for now the merits of the new law (and there are good arguments both for and against it), I want to use it to make a more general point about "states' rights." To me, the legislation provides a perfect example of why states’ rights rhetoric – indeed, the very concept of states’ rights – is so empty and incoherent. After all, you would think that ardent states’ rights conservatives would have opposed this bill in the name of decentralization. The reason they did not is because battles over decentralization or states’ rights have nothing to do with lofty ideas or general principles. They are merely pretextual justifications for interest group politics. When you boil most federalism battles down to their essence, they are simply about fighting for the forum (i.e., state vs. federal) that is most likely to advance the preferences of the interest group in question.

I’m not singling out conservatives for hypocrisy. Federalism is an equal-opportunity illusion, and has been throughout American history. Interest groups all across the spectrum have invoked it or discarded it as necessary. In fact, there’s a simple formula you can use to determine whether a given interest group will favor states’ rights or not. First, take a controversial issue. Second, determine the forum that best helps the interest group in question. If the state forum (courts or legislature) is more favorable, the interest group will advocate states’ rights. If it isn’t, they won’t.

The most familiar examples from American history are slavery and segregation. Southerners supported slavery and didn’t trust the federal government to protect the peculiar institution. So, they preferred to leave the question to state governments. However, as passions started rising in the 1840s and 50s, they didn’t trust the northern states to respect their rights when it came to returning fugitive slaves. So on this issue, they favored federal legislation (the Fugitive Slave Act of 1850) that would force individuals in northern states to assist in returning fugitives. [Ironically, the bill helped bring about the end of slavery by radicalizing northern opinion (which is what the Federal “Marriage” Amendment would do today).]

Segregation and Jim Crow are other examples of opportunistic federalism arguments. Southerners preferred legal discrimination, and everyone else opposed it. So long as states got to make the decision, segregation would continue. If, however, the federal government stepped in and assumed jurisdiction, segregation would end. Predictably, southerners opted for states’ rights arguments and liberals opted for solutions at the federal level like the Civil Rights Bill (another of the many horrors of “big government” - and one opposed by St. Reagan, the Thirteenth Apostle).

But states’ rights has not always been the refuge of illiberal reactionaries. States’ rights arguments were an important tool used by the future Justice Brandeis and other progressives who wanted to limit the federal judiciary’s power over labor issues at the turn of the century. At that time, state courts (and governments) were relatively more populist, more pro-union, and more willing to regulate the corporate excesses of the Gilded Age (this was before Fox News). The federal judiciary, by contrast, was full of corporate lackeys and union-haters. Obviously, corporations did everything they could to get into the more business-friendly forum of federal court, and federal judges were happy to help them do it.

The main tool the federal courts used to protect corporations and to punish labor was something called “diversity jurisdiction.” To be grossly general, diversity jurisdiction allows federal courts to hear cases that would normally be heard by state courts if certain conditions apply (e.g., parties from different states and the amount in controversy is above a certain threshold). Brandeis and other progressives fought to reform diversity jurisdiction and used states’ rights arguments to gather support for their position. Their efforts finally paid off in a 1938 case called Erie, which is near-and-dear to the hearts of all first-year law students. Under Erie, federal courts now have to apply state law – rather than federal law – when they heard cases in diversity (i.e., cases heard because of diversity jurisdiction). In practice, shifting from state to federal federal to state law meant that corporations could no longer escape state regulation by fleeing to federal courts.

Moving forward in time, the opportunistic use of federalism is strikingly clear when you look at the battles between today’s progressives and conservatives, the latter of whom are the self-proclaimed heroes of states’ rights. To take but one example, just look at environmental regulation. Many conservatives hate it, many progressives like it. Because of collective action problems, states are unable (for structural reasons) to provide meaningful environmental oversight of the companies that dominate their local economies. That’s why the federal government is better suited to do it. And that’s also why conservatives – especially in the legal world – so adamantly support states’ rights in the realm of environmental legislation.

On social issues, the religious right-wing is especially schizophrenic on federalism. On abortion and school prayer, religious conservatives know that their odds are better if these decisions could be made on a state – rather than a federal – level. However, on the issues of gay marriage, sex education, and medicinal marijuana, they don’t trust the states and instead want to impose a national Taliban-like edict that binds the entire nation.

I suppose you could say the same thing about progressives in reverse. And you would have a good point if progressives pretended that they always come down on one side of the debate as conservatives often do. But progressives prefer to evaluate it empirically, or at least I do. As I explained in more detail when I unveiled my progressive theory of states’ rights, I believe in states’ rights for social issues (except civil rights protected by the Constitution or statute), and tend to be skeptical of states’ rights in the areas of economics and regulation. To blindly declare that states’ rights is always the answer is a failure to engage the world empirically. But it’s even worse to pretend to do so at the same time you oppose states’ rights every time it impedes on your political preferences. That’s not federalism – that’s opportunism.

__________

I must admit that I haven't followed the Eason Jordan story that closely, but was it really such an outrageous thing to have said? I mean, Control Room makes a pretty strong case that the administration deliberately killed an Al Jazeera reporter and deliberately targeted journalists during the invasion of Baghdad. Now again, I don't know what news has come to light since then (and please pass it along if you know), but here are the data points put forward by Control Room:

(1) Al Jazeera informed the U.S. military of the location of its Baghdad office so it would not be targeted.

(2) On April 8, that office was bombed.

(3) That same day, the Arab media outlet Abu Dhabi was also bombed.

(4) That same day, the Palestine Hotel - which housed many international journalists - was also bombed.

The next day, the Saddam statue came down. If you've seen Control Room, you're familiar with their accusation that the whole thing was staged and that the young men who were on the streets didn't speak with Iraqi accents. Thus, the motive would be that they didn't want foreign journalists around messing up their staged statue toppling.

Again, I'm not an expert on this stuff, so if there is new information, please let me know. But when you add up all the data points, it kinda smells funny. And if so, then the noise machine outcry is less about justified outrage and more about ensuring that such things never get exposed or investigated.

__________

I expect to return to normal posting after today (I hope to start this weekend). I do want to thank everyone for their patience. On a quick aside, I learned from an email that an organization called the Point Foundation had offered Alan Keyes daughter Maya a scholarship after he kicked her out of the house and stopped paying her college tuition for being a lesbian. Apparently, this group puts a special emphasis on providing college support for those who have been disowned and cut off from their families for being gay. So if you want to help them out, you can find the site here.

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For all his faults, Rumsfeld has his brief flashes of brilliance. After reading Milbank’s description of how he basically told the legislative branch of the United States to go fuck itself, I was in awe. It was a rare moment of high comedy.

Rumsfeld yesterday reminded me of the great jesters – or fools – in Shakespeare’s plays. These characters, which are some of his best, are not merely joke tellers. Their role is far more important. The fools show us reality, and it's often unpleasant. They are simultaneously within the play and detached from it. They satirize the hapless characters around them, and force them to give up their illusions and face cold reality. In this respect, Romeo & Juliet’s Mercutio is very fool-like. He mocks the young lovers lost in their idealized teenage infatuation much like a fool would:

ROMEO

Peace, peace, Mercutio, peace!
Thou talk'st of nothing.

MERCUTIO

True, I talk of dreams,
Which are the children of an idle brain,
Begot of nothing but vain fantasy (I.iv)

Rumsfeld yesterday became the fool of the demented comedy that takes place each day on the Hill. To be blunt, Congress – despite a little thing called Article I – has become Bush’s servant boy. Bush says jump, the GOP caucus says “How high?” Bush says give me half a trillion for defense, and Congress says, “Where do I sign?” “Congressional oversight” – especially of our Iraq policy – is an illusion. It’s all one big Kabuki dance. Bush gets whatever he wants from a bunch of groveling cowards, and in return, Bush and team go through the motions of appearing at hearings on Capitol Hill to at least pretend that Congress has some sort of constitutional authority.

Given that Congress can’t even find the political courage to hold extensive hearings on torture, Bush and team know they have nothing to fear from the current legislative branch. Normally, though, administration officials at least play their part in this silly little comedy. But yesterday Rumsfeld stepped out of the play (like a "dull actor" who had forgot his lines). His humiliation of a Congressional committee was genius in that showed the reality of the balance of power all-too-clearly. Here's Milbank:

At 12:54, he announced that at 1 p.m. he would be taking a break and then going to another hearing in the Senate. "We're going to have to get out and get lunch and get over there," he said. When the questioning continued for four more minutes, Rumsfeld picked up his briefcase and began to pack up his papers.

The chairman, Rep. Duncan Hunter (R-Calif.), apologized to his colleagues for a rather "unusual" situation. With the Bush administration asking Congress this month to write checks for half a trillion dollars for the Pentagon, you might think the secretary of defense would set an accommodating posture on Capitol Hill.

. . .

Asked about the number of insurgents in Iraq, Rumsfeld replied: "I am not going to give you a number."

Did he care to voice an opinion on efforts by U.S. pilots to seek damages from their imprisonment in Iraq? "I don't."

Could he comment on what basing agreements he might seek in Iraq? "I can't."

How about the widely publicized cuts to programs for veterans? "I'm not familiar with the cuts you're referring to."

Pure genius.

[UPDATE: The commenters have explained that Milbank's account is a bit skewed. Praktike has more. Normally, I try to read the context of the quotes, but I trust Milbank so I didn't. But I should have. I guess the better view is that Rumsfeld was testy, but not quite so arrogant as Milbank made him out to be.]

In Part I of this two part series, I made the claim that it would be better for the American public to debate the merits of policies such as extraordinary-rendition, as well as what rules of conduct should govern our own extra-jurisdictional detention centers. In the interest of this proposition, I will use this Part to forward that discussion, hopefully at least considering both sides of the argument.

"Everything Changed After 9/11"

That phrase has been uttered many times over the past three-plus years, and almost always it is evoked to justify the departure from a long established principle of American worldview. Similarly, the epiphany of 9/11 has led members of the intelligence community to take a new view of civil liberties - at least in certain contexts. Mayer noted the change in the Bush administration's thinking.

This shift in perspective, labeled the New Paradigm in a memo written by Alberto Gonzales, then the White House counsel, "places a high premium on...the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians," giving less weight to the rights of suspects. It also questions many international laws of war. Five days after Al Qaeda's attacks on the World Trade Center and the Pentagon, Vice-President Dick Cheney, reflecting the new outlook, argued, on "Meet the Press," that the government needed to "work through, sort of, the dark side." Cheney went on, "A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful. That's the world these folks operate in. And so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective."

In fairness to Cheney, that is not an altogether outlandish statement, despite his questionable reference to the "dark side" (wonder if he knows who Darth Vader is?). As Michael Scheuer argues, some investigations, though they yield results in terms of identifying culprits, are not conducive to a resolution by trial in the US court system. Sources and methods need to be kept secret, foreign governments might be reluctant to provide crucial evidence and testimony, and witnesses might be difficult to produce for either side. Despite these assertions, I am left thinking that if US courts can convict someone as innocuous as Lynne Stewart,despite the obvious Constitutional questions in her prosecution, how hard would it be to produce a guilty verdict for someone as unsympathetic as Khalid Sheikh Mohammed?

But let's assume, for the sake of argument, that there are some cases that are simply too problematic to proceed to trial, yet there is certainty of the suspect's guilt. What then should become of them? If we are to maintain extra-jurisdictional jails for these extreme cases, then we should at the very least try to reserve their use for such examples. In other words, if it is vital for national security to have such a loophole, then the government must be doubly vigilant to avoid situations like Mr. Arar's, and the many other innocents that Mayer and other groups point to. By playing fast and loose with such unrestrained power, the government weakens its case for being trusted with such authority in the first place.

Cry Uncle

So, at least for now, let's assume that in some extreme cases, there might be a need for detention that does not occur according to Constitutional due process per se. Where does that leave us on the use of torture? The cheapest gimmick of torture advocates is to cart out the ticking time bomb scenario, and what to do in that most implausible of settings. Belle Waring at Crooked Timber wrote a rather witty take down of this fantastical Hollywood inspired scenario that is worth reading. Matthew Yglesias took it one step further, allowing for the possibile occurence of such an event but explaining why it should not raise too much concern regardless.

Knowing what we know about human behavior and the sort of people who make careers in the law enforcement and intelligence communities, it's a bit absurd to think that an interrogator would ever let, say, a nuclear bomb go off and destroy Chicago when he could have stopped it with a little torture, just because the Geneva Conventions said he shouldn't torture anyone. The world just doesn't work like that.

The real question is, what do you do after the disaster has been averted? Well, in a world where torture is illegal, your interrogator's probably going to have to be arrested. But he's also going to be a national hero, he'll plead his defense of necessity, and no jury in the country is going to unanimously convict him. And even if he somehow did wind up getting convicted, he could be pardoned. We have, in other words, several methods for making ad hoc, ex post facto exceptions to the rules in our common law system. And it's a good thing. It really would be silly to punish someone who'd just gone out and saved three million lives.

So in my opinion no real harm is done by maintaining a blanket legal rule that torture is always prohibited. No catastrophic nuclear attacks will go through thanks to this rule, and no great national heros will go to jail. Conversely, a clear rule does much good. It means that interrogators will only break the rules in the case of some genuine emergency.

The intelligent response to this, though, is what about the ability to prevent carnage on a smaller scale, say of a conventional attack that could be thwarted through obtaining evidence from captured terrorists? Maybe the presidential pardon and sympathetic juries would still apply, but a prohibition on torture could have a chilling effect when the stakes are lower than a nuclear attack - though I still tend to believe that an interrogator could thwart a lesser attack through torturous techniques with impunity - especially after 9/11. What jury would convict an interrogator who only averted 10 deaths or 100? What president would throw him or her to the wolves?

This brings us to the issue of whether or not torture is even effective in the first place. From Mayer's article:

Most authorities on interrogation, in and out of government, agree that torture and lesser forms of physical coercion succeed in producing confessions. The problem is that these confessions aren't necessarily true. Three of the Guantánamo detainees released by the U.S. to Great Britain last year, for example, had confessed that they had appeared in a blurry video, obtained by American investigators, that documented a group of acolytes meeting with bin Laden in Afghanistan. As reported in the London Observer, British intelligence officials arrived at Guantánamo with evidence that the accused men had been living in England at the time the video was made. The detainees told British authorities that they had been coerced into making false confessions.

And back to our new friend and partner Uzbekistan, and the quality of the confessions they produce:

Craig Murray, the former British Ambassador to Uzbekistan, told me that "the U.S. accepts quite a lot of intelligence from the Uzbeks" that has been extracted from suspects who have been tortured. This information was, he said, "largely rubbish." He said he knew of "at least three" instances where the U.S. had rendered suspected militants from Afghanistan to Uzbekistan. Although Murray does not know the fate of the three men, he said, "They almost certainly would have been tortured." In Uzbekistan, he said, "partial boiling of a hand or an arm is quite common." He also knew of two cases in which prisoners had been boiled to death. [emphasis added]

Mayer also notes that, although there are obviously voices within the intelligence community that believe torture can yield results (otherwise no one would be advocating for its use), there are also many experienced players who are adamant in their opposition.

Perhaps surprisingly, the fiercest internal resistance to this thinking has come from people who have been directly involved in interrogation, including veteran F.B.I. and C.I.A. agents. Their concerns are as much practical as ideological. Years of experience in interrogation have led them to doubt the effectiveness of physical coercion as a means of extracting reliable information.

[Ex-FBI agent on counter-terrorism] Coleman was angry that lawyers in Washington were redefining the parameters of counter-terrorism interrogations. "Have any of these guys ever tried to talk to someone who's been deprived of his clothes?" he asked. "He's going to be ashamed, and humiliated, and cold. He'll tell you anything you want to hear to get his clothes back. There's no value in it." Coleman said that he had learned to treat even the most despicable suspects as if there were "a personal relationship, even if you can't stand them." He said that many of the suspects he had interrogated expected to be tortured, and were stunned to learn that they had rights under the American system. Due process made detainees more compliant, not less, Coleman said. He had also found that a defendant's right to legal counsel was beneficial not only to suspects but also to law-enforcement officers. Defense lawyers frequently persuaded detainees to cooperate with prosecutors, in exchange for plea agreements. "The lawyers show these guys there's a way out," Coleman said. "It's human nature. People don't cooperate with you unless they have some reason to." He added, "Brutalization doesn't work. We know that. Besides, you lose your soul."

The problem with twisting someone's arm until they cry uncle, is that they will do it regardless of whether or not they mean it.

Fruit Of The Poisonous Forest

The lawyers lurking about this site might be familiar with the evidentiary rules that prohibit using information and evidence obtained from unconstitutional searches in court, even if the information is probative (though there are certain exceptions). Evidence obtained in such a manner is deemed "fruit of the poisonous tree," and thus barred from admission in court (also see the exclusionary rule). As you can imagine, confessions and other statements made under the duress of torture and/or abuse, especially in unconstitutional detention centers, are likely inadmissible, as is any other evidence gained as a result of such confessions. This has raised obstacles to pursuing legal remedies in many of these cases.

Similar problems complicate the case of Khalid Sheikh Mohammed, who was captured in Pakistan in March, 2003. Mohammed has reportedly been "water-boarded" during interrogations. If so, Radsan said, "it would be almost impossible to take him into a criminal trial. Any evidence derived from his interrogation could be seen as fruit from the poisonous tree. I think the government is considering some sort of military tribunal somewhere down the line. But, even there, there are still constitutional requirements that you can't bring in involuntary confessions."

There are other procedural issues as well. Namely, how do you produce witnesses that are being kept in unofficial detention centers operated outside the purview of US laws? You just can't wheel them in and out of court while you are pretending that they remain outside the reach of US law.

The trial of Zacarias Moussaoui, in Alexandria, Virginia - the only U.S. criminal trial of a suspect linked to the September 11th attacks - is stalled. It's been more than three years since Attorney General John Ashcroft called Moussaoui's indictment "a chronicle of evil." The case has been held up by Moussaoui's demand - and the Bush Administration's refusal - to let him call as witnesses Al Qaeda members held in government custody, including Ramzi bin al-Shibh and Khalid Sheikh Mohammed. (Bin al-Shibh is thought to have been tortured.) Government attorneys have argued that producing the witnesses would disrupt the interrogation process.

Similarly, German officials fear that they may be unable to convict any members of the Hamburg cell that is believed to have helped plan the September 11th attacks, on charges connected to the plot, in part because the U.S. government refuses to produce bin al-Shibh and Mohammed as witnesses. Last year, one of the Hamburg defendants, Mounir Motassadeq, became the first person to be convicted in the planning of the attacks, but his guilty verdict was overturned by an appeals court, which found the evidence against him too weak.

In addition to these evidentiary barriers, we have been inadvertently creating a class of prisoners that exists in legal purgatory, beyond the bounds of what we are familiar processing, or perhaps have the capability to resolve in an acceptable manner.

...the Bush Administration, having taken so many prisoners outside the realm of the law, may not be able to bring them back in. By holding detainees indefinitely, without counsel, without charges of wrongdoing, and under circumstances that could, in legal parlance, "shock the conscience" of a court, the Administration has jeopardized its chances of convicting hundreds of suspected terrorists, or even of using them as witnesses in almost any court in the world....

Since September 11th, as the number of renditions has grown, and hundreds of terrorist suspects have been deposited indefinitely in places like Guantánamo Bay, the shortcomings of this approach have become manifest. "Are we going to hold these people forever?" Scheuer asked. "The policymakers hadn't thought what to do with them, and what would happen when it was found out that we were turning them over to governments that the human-rights world reviled." Once a detainee's rights have been violated, he says, "you absolutely can't" reinstate him into the court system. "You can't kill him, either," he added. "All we've done is create a nightmare."

Transactional Costs

Torture, rendition, and extra-jurisdictional detentions thus have many hidden costs. They complicate legal proceedings in terms of producing evidence and witnesses for those defendants within the mainstream legal system, make prosecution of others outside the normal track near impossible, create a class of prisoners that exist in a state of limbo with no resolution of their status on the horizon, and diminish our moral authority in the eyes of a world. Oh yeah, and on top of all that, torture isn't even particularly effective as a source of information in the first place.

But because of these frictions, measures such as these (torture, rendition, etc.) must have a utility greater than other methods - at least enough to overcome the problems created. In the case of torture, this is not entirely clear.

Scientific research on the efficacy of torture and rough interrogation is limited, because of the moral and legal impediments to experimentation. Tom Parker, a former officer for M.I.5, the British intelligence agency, who teaches at Yale, argued that, whether or not forceful interrogations yield accurate information from terrorist suspects, a larger problem is that many detainees "have nothing to tell." For many years, he said, British authorities subjected members of the Irish Republican Army to forceful interrogations, but, in the end, the government concluded that "detainees aren't valuable." A more effective strategy, Parker said, was "being creative" about human intelligence gathering, such as infiltration and eavesdropping. "The U.S. is doing what the British did in the nineteen-seventies, detaining people and violating their civil liberties," he said. "It did nothing but exacerbate the situation. Most of those interned went back to terrorism. You'll end up radicalizing the entire population."...

For ten years, Coleman worked closely with the C.I.A. on counter-terrorism cases, including the Embassy attacks in Kenya and Tanzania. His methodical style of detective work, in which interrogations were aimed at forging relationships with detainees, became unfashionable after September 11th, in part because the government was intent on extracting information as quickly as possible, in order to prevent future attacks. Yet the more patient approach used by Coleman and other agents had yielded major successes. In the Embassy-bombings case, they helped convict four Al Qaeda operatives on three hundred and two criminal counts; all four men pleaded guilty to serious terrorism charges. The confessions the F.B.I. agents elicited, and the trial itself, which ended in May, 2001, created an invaluable public record about Al Qaeda, including details about its funding mechanisms, its internal structure, and its intention to obtain weapons of mass destruction. (The political leadership in Washington, unfortunately, did not pay sufficient attention.)

Because there are viable alternatives in most circumstances, if we must detain some particularly dangerous terrorists outside of the legal system, we should limit such detentions to only those special cases, and attempt to process as many as possible through regular legal means. This will actually help other investigations and prosecutions, whereas currently, extra-judicial detentions are causing a chain reaction in the opposite direction. In addition, as Parker points out, the objects of such treatment can often end up more pernicious after the fact, radicalized by their treatment. As Praktike pointed out in the comments section on TIA:

Before he was tortured in Egyptian prison, Ayman Zawahiri was just a run-of-the-mill radical. Look at that bastard now. Ditto for Zarqawi, who was tortured in Jordanian prison.

Torture turns minor bad guys into crazy, determined, super-empowered [dangers].

Therefore, we should not condone the use of torture, or the practice of extraordinary renditions to third countries that torture on our behalf. Especially in such a wide scope as the Bush administration has been operating under so that the likes of Mr. Arar suffer so unjustly. Better, at least, to keep the exceptional cases, where the benefits outweigh the costs as laid out above, under our control not that of a third country (assuming the Supreme Court allows for such a homegrown program). Even then, I would like clearer guidance from Gonzales and the Bush administration on how even these detainees will be treated.

Remember, the use of these morally dubious tactics also impacts the perception that the world community will have of us as a nation. In the case of Iraq and the broader Muslim world, this perception is of supreme importance at this juncture. We cannot win over hearts and minds, and convince people to make radical changes in their political, religious, and societal structures if we are not held in high regard - or at least not openly reviled. The use of torture, rendition, and "ghost" detentions undermines our status and moral authority, especially when too many of the victims are innocent civilians released back into the population to tell their tales of horror. Therefore, these controversial methods have transactional costs in terms of democracy promotion as well which must be included as a variable in any cost-benefit analysis of the utility of the use of such means. This of course says nothing about our own moral and ethical imperatives, and what affect it would have on American ideals if we so willingly cast off prohibitions on torture and detention without due process as "quaintisms" because, you know, "everything changed after 9/11."

Today I want to return to the story that keeps on giving: torture. In particular, I want to focus on an aspect of the story that has received little attention by comparison, yet it is in many ways as disturbing, if not more so, than other more popularly reported facets.

It Depends On What Your Definition of "Do" Is

The opening line in Jane Mayer's article in the most recent issue of The New Yorker proceeds as follows:

On January 27th, President Bush, in an interview with the Times, assured the world that "torture is never acceptable, nor do we hand over people to countries that do torture."

The article goes on to tell the history of a practice known in certain circles as "extraordinary-rendition," a procedure, the details of which, directly contradict the president's dubious claim about extradition to states that practice torture.

The extraordinary-rendition program bears little relation to the system of due process afforded suspects in crimes in America. Terrorism suspects in Europe, Africa, Asia, and the Middle East have often been abducted by hooded or masked American agents, then forced onto a Gulfstream V jet...Upon arriving in foreign countries, rendered suspects often vanish. Detainees are not provided with lawyers, and many families are not informed of their whereabouts.

The most common destinations for rendered suspects are Egypt, Morocco, Syria, [Uzbekistan], and Jordan, all of which have been cited for human-rights violations by the State Department, and are known to torture suspects.

The procedure is specifically set up to circumvent the rigors of American due process, as well as our prohibitions on cruel and inhumane treatment, by turning these suspects over to nations that use torture as a standard operating procedure for interrogating prisoners. By removing a suspect from U.S. jurisdiction, American intelligence operatives can rely on their foreign counterparts to extract information using otherwise illegal means, and can keep a detainee away from the courts, attorneys, and other avenues that might provide for their release. This is what Mayer calls "Outsourcing Torture."

The Genesis

The extraordinary rendition program was the brainchild of the CIA during the mid-1990's, under the Clinton, not Bush, administration. In this regard, it is a bi-partisan dirty little secret.

Not long ago, [Michael] Scheuer [aka "Anonymous"]...spoke openly for the first time about how he and several other top C.I.A. officials set up the program, in the mid-nineties. "It was begun in desperation," he told me. At the time, he was the head of the C.I.A.'s Islamic-militant unit, whose job was to "detect, disrupt, and dismantle" terrorist operations...He recalled, "We went to the White House" - which was then occupied by the Clinton Administration - "and they said, 'Do it.'" He added that Richard Clarke, who was in charge of counter-terrorism for the National Security Council, offered no advice. "He told me, 'Figure it out by yourselves,'" Scheuer said.

The rationale was a familiar one: due process concerns, and the desire to employ aggressive techniques to acquire information that are prohibited domestically.

From the start, though, the C.I.A. was wary of granting terrorism suspects the due process afforded by American law. The agency did not want to divulge secrets about its intelligence sources and methods, and American courts demand transparency. Even establishing the chain of custody of key evidence - such as a laptop computer -could easily pose a significant problem: foreign governments might refuse to testify in U.S. courts about how they had obtained the evidence, for fear of having their secret cooperation exposed. (Foreign governments often worried about retaliation from their own Muslim populations.)

Those goals directly influenced the selection of destinations.

The obvious choice, Scheuer said, was Egypt. The largest recipient of U.S. foreign aid after Israel, Egypt was a key strategic ally, and its secret police force, the Mukhabarat, had a reputation for brutality. Egypt had been frequently cited by the State Department for torture of prisoners. According to a 2002 report, detainees were "stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electrical shocks; and doused with cold water [and] sexually assaulted"...

The U.S. began rendering terror suspects to other countries, but the most common destination remained Egypt. The partnership between the American and the Egyptian intelligence services was extraordinarily close: the Americans could give the Egyptian interrogators questions they wanted put to the detainees in the morning, Scheuer said, and get answers by the evening.

Slip Sliding Away

Perhaps slippery slope arguments are over-used and applied in inappropriate contexts as a general rule in political discourse. They can serve as a scare tactic of sorts, intended to cut off the debate on a number of reasonable measures because of what might occur if policies are extended beyond their original intent. But in the realm of extraordinary-renditions, there is evidence that what began as a limited, highly selective program in its earliest incarnation, has morphed into something of an epidemic.

Rendition is just one element of the Administration's New Paradigm. The C.I.A. itself is holding dozens of "high value" terrorist suspects outside of the territorial jurisdiction of the U.S., in addition to the estimated five hundred and fifty detainees in Guantanamo Bay, Cuba. The Administration confirmed the identities of at least ten of these suspects to the 9/11 Commission - including Khalid Sheikh Mohammed, a top Al Qaeda operative, and Ramzi bin al-Shibh, a chief planner of the September 11th attacks - but refused to allow commission members to interview the men, and would not say where they were being held. Reports have suggested that C.I.A. prisons are being operated in Thailand, Qatar, and Afghanistan, among other countries. At the request of the C.I.A., Secretary of Defense Donald Rumsfeld personally ordered that a prisoner in Iraq be hidden from Red Cross officials for several months, and Army General Paul Kern told Congress that the C.I.A. may have hidden up to a hundred detainees.

The changing nature of overseas detentions provoked a response from Dan Coleman, an ex-FBI agent who worked for ten years with the CIA on counter-terrorism cases, including the embassy bombings in the late 1990's.

Bad as the policy of rendition was before September 11th, Coleman said, "afterward, it really went out of control." He explained, "Now, instead of just sending people to third countries, we're holding them ourselves. We're taking people, and keeping them in our own custody in third countries. That's an enormous problem." Egypt, he pointed out, at least had an established legal system, however harsh. "There was a process there," Coleman said. "But what's our process? We have no method over there other than our laws - and we've decided to ignore them. What are we now, the Huns? If you don't talk to us, we'll kill you?"

In addition to the shift from the sole auspices of third party countries to our own facilities operated abroad, the criteria for which suspects could be rendered in such a manner has become broader - perhaps dangerously so.

Rendition was originally carried out on a limited basis, but after September 11th, when President Bush declared a global war on terrorism, the program expanded beyond recognition - becoming, according to a former C.I.A. official, "an abomination." What began as a program aimed at a small, discrete set of suspects - people against whom there were outstanding foreign arrest warrants - came to include a wide and ill-defined population that the Administration terms "illegal enemy combatants." Many of them have never been publicly charged with any crime. Scott Horton, an expert on international law who helped prepare a report on renditions issued by N.Y.U. Law School and the New York City Bar Association, estimates that a hundred and fifty people have been rendered since 2001.

In some ways, the evolution of the extraordinary rendition program mirrors the same "migration" of techniques from Guantanamo to Abu Ghraib. What began, conceptually, as a special set of procedures for handling al-Qaeda suspects, drifted into a prison which held mostly civilians in a combat zone (the vast majority of which turned out to be innocent of any crime of insurrection, let alone international terrorism targeting the United States).

Scheuer claimed that "there was a legal process" undergirding these early renditions. Every suspect who was apprehended, he said, had been convicted in absentia. Before a suspect was captured, a dossier was prepared containing the equivalent of a rap sheet. The C.I.A.'s legal counsel signed off on every proposed operation. Scheuer said that this system prevented innocent people from being subjected to rendition. "Langley would never let us proceed unless there was substance," he said. Moreover, Scheuer emphasized, renditions were pursued out of expedience - "not out of thinking it was the best policy."

The Net Widens

Whereas their was tight control over renditions pre-9/11, as well as certain criteria such as an arrest warrant and a CIA dossier, post-9/11 the gloves came off. The standards began to loosen which is quite disturbing considering the stakes. Agents of our government are abducting foreign nationals and whisking them off to foreign prisons for interrogations during which they will be brutalized. Many may "disappear" altogether.

Which brings us to the case of Maher Arar, a 34 year old Canadian citizen whose family had emigrated to Canada from Syria when he was a teenager. Arar's story began in late 2003 when he was returning from a vacation in Tunisia with his family. While changing planes in New York, he was apprehended by American officials, and although he was never charged with a crime, he "was placed in handcuffs and leg irons by plainclothes officials and transferred to an executive jet. The plane flew to Washington, continued to Portland, Maine, stopped in Rome, Italy, then landed in Amman, Jordan" and later he was driven to Syria.

What was his crime? "Arar was detained because his name had been placed on the United States Watch List of terrorist suspects." And what had Arar done to land on the Watch List? The brother of one of his co-workers was a suspected terrorist. Far from the previous standard of a foreign arrest warrant and a CIA dossier, this case appears to set a dangerous precedent for what type of tenuous connection can land a foreign citizen in a torturers den via US escort. I repeat: his co-worker's brother was a suspect.

Ten hours after landing in Jordan, Arar said, he was driven to Syria, where interrogators, after a day of threats, "just began beating on me." They whipped his hands repeatedly with two-inch-thick electrical cables, and kept him in a windowless underground cell that he likened to a grave. "Not even animals could withstand it," he said. Although he initially tried to assert his innocence, he eventually confessed to anything his tormentors wanted him to say. "You just give up," he said. "You become like an animal"....When Arar described his experience in a phone interview recently, he invoked an Arabic expression. The pain was so unbearable, he said, that "you forget the milk that you have been fed from the breast of your mother."

The confession was worthless, as many extracted in such a manner are. After a year of abuse and torture, Arar was released without charges.

Imad Moustapha, the Syrian Ambassador in Washington, announced that his country had found no links between Arar and terrorism. Arar, it turned out, had been sent to Syria on orders from the U.S. government, under a secretive program known as "extraordinary rendition." This program had been devised as a means of extraditing terrorism suspects from one foreign state to another for interrogation and prosecution. Critics contend that the unstated purpose of such renditions is to subject the suspects to aggressive methods of persuasion that are illegal in America -including torture.

Let The Sunshine In

Whatever the value of this program in terms of intelligence gathering (which I will examine in further detail in Part II), there are very serious moral issues with exporting suspects to be tortured and abused in foreign nations, not to mention being ill-treated by American officials in our newly minted extra-jurisdictional facilities overseas. I think it is morally and ethically dubious to act as if our hands are clean of these practices because all we did was abduct these suspects and deliver them to notoriously brutal foreign prisons.

Yet amidst the commotion during Alberto Gonzales' confirmation hearings, this little fact slipped by almost unmentioned in the MSM (or the SCLCMMSMM according to Fafblog! - always ready with a new acronym):

Gonzales argued through written responses to Senate inquiries that both the U.N. Convention Against Torture's ban on "cruel, inhuman, and degrading treatment" as well as President Bush's own prohibition on inhumane treatment of detainees does not apply to American interrogations of foreigners overseas - or the CIA in general.

It seems that Gonzales, and others, are intent on creating a zone of exception to legal obstacles regarding what some might consider torture. Since it's torture we're talking about, and a circumvention of even a semblance of due process (not even relying on Egyptian courts any more), I think that the American people should be privy to these decisions. At the very least there should be a public debate because sunlight is the best disinfectant. Even if we decide that some extreme measures need to be taken, we should be conscious of what we do. But we were warned by the ever thoughtful Glenn Reynolds not to make too much of the torture issue during Gonzales' hearings because it could trigger a pro-torture backlash - despite the fact that Gonzales is issuing legal opinions on these very subjects. Glenn, are you going to be so kind as to let the American people know when it would be appropriate to rejoin this discussion? I'm sure Mr. Arar would like to know.

And while we're deciding whether we want to be outsourcing our interrogation duties to dubious allies, let's take a look at some of our bedfellows in these endeavors. First and foremost there is Egypt, whose brutalities are well documented, and partially listed above. Then Syria. Although tensions with Syria are at an all time high over the recent assassination of former Lebanese Prime Minister Rafik Hariri, and some circles are advocating an invasion or other punitive measure, somehow Syria is an acceptable destination for those we deem unlawful combatants. This must look to the world like the worst kind of double speak: Syria is brutal and repressive, but we think they are humane enough to deposit uncharged suspects in Damascus? Or that we can just hold our hands out and shrug our shoulder when people like Mr. Arar return with horror stories from captivity. Who knew?

And then there's the particularly brutish "ally" in the war on terror in Uzbekistan. Steve Clemons has a disturbing profile of the violent tendencies of the Uzbek prime minister Islam Karimov - complete with a description of his penchant for boiling his victims in giant cauldrons (Clemons provides links to photographic evidence that is extremely graphic - click through at your own risk). But hey, we didn't specifically ask that any suspects get boiled, so don't blame us.

This hypocrisy was not lost on Bob Herbert, who duly noted the inverted sense of morality pervading our political discourse this election year.

Our henchmen in places like Syria, Egypt, Morocco, Uzbekistan and Jordan are torturing terror suspects at the behest of a nation - the United States - that just went through a national election in which the issue of moral values was supposed to have been decisive. How in the world did we become a country in which gays' getting married is considered an abomination, but torture is O.K.?

Good question.

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Sorry to intrude on Eric's day - I just wanted to point out that I have a TAS post up here. Back to Eric and our regularly scheduled programming.

Kenneth Maxwell, former book reviewer for the Western Hemisphere at Foreign Affairs magazine and senior fellow and director of Latin America Studies at the Council on Foreign Relations, learned first hand about Henry Kissinger's "dark side," and why his then editor James F. Hoge, Jr. warned him in such a manner. The imbroglio involving Maxwell, Kissinger, Hoge, and Kissinger's associate, William D. Rogers, stemmed from the review Maxwell penned for the November/December 2003 issue of Foreign Affairs of a book entitled The Pinochet File: A Declassified Dossier on Atrocity and Accountability, written by Peter Kornbluh. The fallout from this fracas left Maxwell with no option other than to resign his position at the magazine as well as his endowed chair as a fellow at the Council on Foreign Relations in May 2004 - positions he had held for fifteen and eleven years respectively. The controversy has left both institutions tarnished and compromised in the eyes of many. Maxwell recounts the details of this convoluted tale in a meticulously constructed working paper for the David Rockefeller Center for Latin American Studies at Harvard University where he now teaches.

The Book

The author of the book at the center of the maelstrom, Peter Kornbluh, is one of the lead researchers and co-founders of the National Security Archive - a non-profit, non-partisan research library dedicated to the acquisition and cataloguing of declassified government documents. Kornbluh himself has played a leading role in efforts to get the US government to declassify documents relating to US foreign policy in South America during the 1970s over the strenuous objection of people like Henry Kissinger who served as National Security Advisor and later Secretary of State in both the Nixon and Ford White Houses during the period in question.

Kornbluh and others like him eventually succeeded, after lengthy legal challenges, and in 2003 vast quantities of previously classified documents, including conversations among the principals in the White House, were made publicly available through the Freedom Of Information Act (FOIA). Kornbluh then proceeded to compile the evidence from these documents, and reproduce many of them in the book that Maxwell eventually reviewed. Amongst the findings Kornbluh derived from the declassified documents, three disturbing episodes in US foreign policy in relation to Chile stood out:

First, Kornbluh discovered details pertaining to the CIA's involvement in a kidnapping that resulted in the murder of Chile's chief of staff, General Rene Schneider, in 1970. Schneider's elimination, which came three years before the coup, according to Maxwell's review, "was regarded as essential by the Nixon administration, since Schneider was a strict constitutionalist and therefore an obstacle to U.S. efforts to promote a military intervention before Allende could take office."

The second chapter of US-Chile relations examined by Kornbluh was the CIA's extensive involvement in the coup that toppled Chile's democratically elected president, Salvador Allende, which resulted in the installation of the brutally repressive despot, General Augusto Pinochet. In a coincidence that neither Kornbluh nor Maxwell dismiss outright as mere chance, the coup that toppled Allende was undertaken on September 11, 1973 (in fact, Maxwell's review is entitled "The Other 9/11"). While the coup itself was carried out by Chileans, the CIA provided logistical support and financial contributions to the cause, as well as actively setting the conditions by engaging in numerous actions intended to destablize Chile and make the situation ripe for the toppling of a democracy in favor of a dictatorship. In turn, Pinochet regime's rule spanned two decades and resulted in the torture, repression, and death of tens of thousands of innocent Chilean citizens. From Maxwell's review:

But what is very clear in all of this is that the coup in Chile is exactly what Kissinger's boss wanted. As Nixon put it in his ineffable style, "It's that son of a bitch Allende. We're going to smash him." As early as October of 1970, the CIA had warned of possible consequences: "you have asked us to provoke chaos in Chile. ... We provide you with a formula for chaos which is unlikely to be bloodless. To dissimulate the U.S. involvement will be clearly impossible." The Pinochet dictatorship lasted 17 long and brutal years.

The third installment of US policy exhumed by Kornbluh from the declassified documents deals with the knowledge and involvement on the part of the CIA and the White House in Operation Condor - an international state-sponsored terror network set up by the Pinochet regime to track and eliminate opponents living abroad with the cooperation of the governments in Argentina, Uruguay, Paraguay, Bolivia, and, later, Brazil, Peru, and Ecuador. US policymakers even knew that a Chilean assassination team had been planning to enter the United States to carry out the infamous car bomb assassination on September 21, 1976 of Orlando Letelier, Allende’s foreign minister and later minister of defense, who perished along with Ronni Moffitt, his American assistant. This brazen act of cross-border violence occurred in Washington DC less than fourteen blocks from the White House.

Maxwell summarizes Kornbluh's findings:

Kornbluh's bill of particulars and the supporting documents he has uncovered confirm the deep involvement of the U.S. intelligence services in Chile prior to and after the coup. In outline, this story has been known for many years and will be no surprise to Chileans. The extent of the involvement was originally hinted at during the Senate hearings conducted by the late Frank Church in the mid-1970s. The scope and nature of these clandestine activities are significantly amplified by the documents released in the extensive declassification ordered by President Bill Clinton in 1999 and 2000 and reprinted in Kornbluh's book. These documents include: transcripts of top-secret discussions among President Nixon, Kissinger, and other cabinet members on how "to bring Allende down"; minutes of secret meetings chaired by Kissinger to plan covert operations in Chile; new documentation of the notorious case of Charles Horman, an American murdered by the Chilean military and subject of the movie Missing; comprehensive documentation of the Letelier case and the extensive CIA, National Security Council, and State Department reports surrounding it; and U.S. intelligence reporting on Operation Condor.

For many unfamiliar with the details of this sordid chapter in US foreign policy, the fact that the US government actively undermined a democracy in favor of a brutal military dictator may come as some surprise. Unfortunately, it was not a practice limited to Chile, or South America in general. A fair appraisal of this period in American history would also shed light on US tactics in other parts of the world for, as Maxwell points out, "US methodology in Chile was not that different from the tactics used to remove regimes from Guatemala City to Tehran deemed dangerous to the geopolitical status quo." Both Iran and Guatemala saw their democratically elected leaders, Mohammed Mossadegh and Jacobo Arbenz respectively, fall victim to coups instigated, engineered, and supported by the CIA. Both cases were also confirmed through the release of documents made through FOIA requests, although the events were relatively well known to historians regardless of the corroboration. In the case of Iran, we are probably still living with the repercussions of our anti-democratic actions to this day.

The Review

Henry Kissinger and William Rogers, his long-term collaborator and vice chairman of his consulting firm Kissinger Associates, Inc. (Rogers had also served under Kissinger in the State Department in the 1970s, including a stint as Assistant Secretary of State for Inter-American Affairs during the Ford administration from October 1974 to June 1976 and then as Undersecretary of State for Economic Affairs until 1977), both actively sought to preempt the critical reception of the Kornbluh book before its release, maintaining that the alleged connection between the US and the Allende coup was a mythical fantasy perpetuated by the Left - this despite the fact that the book was based on actual government documents. Kissinger even went as far as to try to place a favorable story in Foreign Affairs which sought to repudiate Kornbluh's findings, written by Mark Falcoff from - stop me if this sounds familiar - the American Enterprise Institute. According to Maxwell:

Rogers arranged for Falcoff to visit Kissinger in New York where he was granted access to Kissinger’s telephone transcripts of this period. But the ploy did not work. Foreign Affairs rejected the article. [The editor of Foreign Affairs James] Hoge told me he regarded Falcoff’s piece as "too narrow a defense of Kissinger." He then asked me to write a more wide-ranging review essay on Kornbluh’s book for the next issue.

Falcoff’s rejected article was subsequently published in Commentary magazine with the title "Kissinger & Chile: The Myth That Will Not Die."

Falcoff's article presented the dubious proposition that the Nixon White House was in no way complicit with the coup.

To prove his point Falcoff quoted from a conversation between Nixon and Kissinger on September 16, 1973, five days after the coup in Chile. Nixon asked Kissinger: "Well we didn't—as you know—our hand doesn't show on this one though." According to Falcoff, Kissinger answered: "We didn't do it."

The problem is, Falcoff was being rather selective with his recollection of that exchange. He deliberately left out the second part of Kissinger's statement which suggests an active involvement in the events of September 11, 1973, directly in contradiction to his main thesis.

As a result of the release of the full text of these telephone conversations by the National Security Archive on May 26, 2004, we now know what Kissinger actually said on that occasion was as follows: "We didn’t do it. I mean we helped them. _______ created the conditions as great as possible (??)" [ed note: according to Maxwell's footnotes, the blank underline and parenthesis with the double question mark are in the original transcript].

Although Maxwell anticipated some form of reaction from Kissinger and Rogers, the initial release of the review was met with little controversy, as many considered Maxwell's appraisal to be balanced, and the underlying subject matter relatively well known at the time in any case.

My review of Kornbluh’s book in Foreign Affairs was not inflammatory. Leslie H. Gelb, former president of the Council on Foreign Relations, told me that he had read it three times and found it to be "straight down the middle." Nor did Hoge find it "biased" before Kissinger made known his displeasure. Hoge's editorial comment on the review, found in the table of contents of the issue in which it appeared, reads as follows: "Thirty years after the overthrow of Salvador Allende in Chile, The Pinochet File, a 'dossier' of declassified documents, lays out the true U.S. role."

After reading Maxwell's review, I agree with Les Gelb's appraisal, and would even fault the author for bending over backwards to present the facts in a light most favorable to the CIA and the Nixon and Ford administrations.

The Reaction

Shortly after the release of the issue of Foreign Affairs containing the review in question, Maxwell was informed that Rogers would be writing a response in the form of a letter to the editor to be published in the subsequent edition of the magazine. As is customary, Maxwell was given the opportunity to respond to Rogers' letter. But this is where the story takes an unanticipated turn. Rogers was granted the privilege to write a second response to Maxwell which significantly raised the ante by insinuating that Maxwell's judgment was clouded by personal bias, possibly influenced by his position at the Council. In addition, Rogers' response was replete with factual error used to bolster his claims (the details of each are well examined in Maxwell's working paper).

Astonishingly, Maxwell was denied the right to defend himself from these personal attacks and set the factual record straight by his own editor James Hoge (who, by way of background, is also the vice chair of the board of Human Rights Watch). Maxwell soon learned, through Hoge and others, that Kissinger had been exerting pressure on the Council and the editor of Foreign Affairs to end the discussion with Rogers' last missive. Maxwell recounts.

I now know that the die had been cast from the beginning. As Rogers himself inelegantly put it to Diana Jean Schemo of the New York Times, "[Hoge] promised me that I would have the last word and that Maxwell was shut off."

Kissinger preferred to stay above the fray on this matter, instead enlisting Rogers, as well as a pair of extremely influential friends with close connections to the Council and Foreign Affairs: Peter Peterson and Maurice Greenberg.

Peter G. Peterson, chairman of the Council on Foreign Relations, publicly confirmed Kissinger’s anger and his own role in communicating it to Hoge. In fact, Peterson saw no conflict at all in his action:

[According to an article appearing in the Chronicle Of Higher Education discussing the matter] Mr. Peterson, who is also chairman of the Blackstone Group, a capital-investment firm, says he called Mr. Hoge in December merely to convey Mr. Kissinger’s unhappiness. "I didn’t ask him to do anything," he says. "I’m the chairman of the organization. If a member calls, and he's unhappy about something, I don’t think it’s unnatural for me to say, 'Jim, this is your area. You deal with it however you see fit.' ... But that I would interfere with anything specifically like that is really an outrageous suggestion. I have great respect for Hoge and for the independence of that magazine."

Kissinger, I was told, had not only enlisted Peterson to convey his anger, but also his old friend Maurice ('Hank') Greenberg, the vice chairman emeritus of the Council’s board and the powerful head of the giant American International Group (AIG) insurance conglomerate, the largest commercial underwriter in the United States.

According to Maxwell, Kissinger was careful in his selection of go-betweens.

Kissinger had chosen his messengers well. In addition to their central roles on the Council’s board of directors, Peterson and Greenberg have been highly engaged and generous benefactors of the Council, contributing more than $34 million between them directly in personal donations and indirectly, via the privately-held Blackstone Group in the case of Peterson, and, in the case of Greenberg, via the Starr Foundation, of which he is chairman. They had both provided major funding for Hoge’s endowed chair, the Peter G. Peterson Chair. Peterson had also been a generous contributor to the endowment of the chair I myself held at the Council on Foreign Relations. Neither is a man to be crossed lightly.

That Kissinger was adept at selecting his emissaries was apparent from the reaction that Maxwell perceived in his editor James Hoge.

Hoge explained he had been subjected to great pressure from Henry Kissinger. He said that "Henry will not speak to me or shake my hand." He again told me Peterson had called on Kissinger’s behalf. He said he was called and "sworn at for half an hour" by Greenberg. He said of Kissinger: "Henry has a very dark side," and that Kissinger had sought to interfere before in Foreign Affairs during the editorship of his predecessor William ('Bill') Hyland. He said that he did not think that the breach that resulted between Kissinger and Hyland, who were old friends, had "ever been fully repaired." Very much on his mind, it seemed to me, was how far he could go in criticizing Kissinger without having a similar breach. [emphasis added]

The Permanent Stain

Having been denied a forum in his own periodical to respond to criticisms published therein, a right that is sacrosanct to editors and writers alike, Kenneth Maxwell chose to resign in protest, and on principle, after a long and distinguished career within each body. The credibility and integrity of Foreign Affairs and the Council on Foreign Relations will be undoubtedly tarnished by this affair. After all, as Maxwell went to great pains to communicate to Hoge and his peers at the Council, the story of Kissinger, Chile, and Operation Condor was already out - in fact Maxwell had also reviewed, for Foreign Affairs, John Dinges' book The Condor Years: How Pinochet and His Allies Brought Terrorism to Three Continents, which detailed many of the same events as Kornbluh's tome. Perhaps most importantly though, both books, and numerous essays and articles on the matter, are based on factual accounts of actual documents released after being declassified and obtained through FOIA requests, not dubious accounts revealed through anonymous leakers with ulterior motives. Therefore, their reliability rises above the suspicions of partisanship and the unreliability of mere speculation. The emerging conventional wisdom is bound to gain more credence and circulation with the imminent release of even more declassified documents. The Council's craven capitulation will become more apparent with the passage of time, as the truth is revealed piece by piece.

It didn't take long for the Council's actions, and those of Hoge, to come under scrutiny and criticism from well respected quarters. Articles appeared in many periodicals and newspapers and the September/October 2004 issue of Foreign Affairs even contained a letter of protest signed by Harvard Professor John Coatsworth and ten other distinguished Latin Americanists who are members of the Council on Foreign Relations.

To the Editor:

We members of the Council on Foreign Relations have devoted much of our professional lives to the study of Latin America and the relations between the United States and this region. We read Kenneth Maxwell’s balanced and thoughtful review (November/December 2003) of the recent collection of official documents edited by Peter Kornbluh and published by the National Security Archive under the title The Pinochet File: A Declassified Dossier on Atrocity and Accountability.

We were thus dismayed by the tone and the content of the two letters from former Undersecretary of State William D. Rogers (January/February 2004 and March/April 2004), and appalled by the journal’s decision not to publish a response by Maxwell to the second of the Rogers letters, which sought to impugn the motives and integrity of Maxwell, a scholar of impeccable rigor and honesty. This decision denied readers an opportunity to weigh competing views, contrary to the journal’s policies and traditions.

Though appreciative of the support, Maxwell, much to his chagrin, perceives the influence of Kissinger and Rogers in the way even this matter was handled.

The "Letters to the Editor" section where this exchange appears has not been posted on the magazine’s online edition of this issue, the first time such a letters column has been excluded. Rogers' letter attacking me for bias, for example, is posted online under the title "Crisis Prevention." Nor is there any acknowledgment in this issue of Foreign Affairs that book reviews on the Western Hemisphere are missing, the first time this has happened.

More seriously, Hoge, without the consent of the signatories, removed the final sentence of the letter sent to him. The uncensored version had concluded with a request:

We urge you to find an appropriate way to repair this lapse before it becomes a permanent stain on the reputation of Foreign Affairs.

In order to comprehend the magnitude of this matter, consider that the Council on Foreign Affairs has chosen to acquiesce to the will of a powerful member rather than finally vet and debate, accurately, the true story of Kissinger’s policy toward the Southern American military dictatorships of the 1970s, including Chile and Argentiana, much of which was less than savory by any standards.

In closing, I will give Maxwell the final say that was unfairly denied him by his own literary home.

I may be naive, but to me it is deeply shocking that Kissinger, who found refuge in the United States when his family escaped the Nazis, should as U.S. Secretary of State undermine the human rights protests of his own diplomats and of the U.S. Congress in private conversations with representatives of the murderous regimes of the Southern Cone, one of which (the Argentine) was virulently anti-Semitic. And it is no less shocking for Rogers to assert that Kissinger’s defense of human rights was "robust," and to claim for Kissinger the initiation of a human rights policy that was in fact begun and sustained by his Democratic and Republican successors and by the continuing pressure of U.S. Congress, if only for one very simple reason: subsequent U.S. policy saved lives. Kissinger’s evidently did not, not Letelier’s, nor many thousands other less notable victims of state terror. It is sad that an editor who I respected—especially one who is the vice chair of the board of Human Rights Watch—should let these misrepresentations and obfuscations stand without challenge.

Since our intrepid host is off doing battle with the forces of law firm tedium - busy vanquishing memos, briefs, and other monotonies - I thought I would step into the breach a bit early tonight as the squire to his knight.

Recalling a conversation we had last Wednesday in the comments section on this site, I urged publius to re-publish some of his earlier pieces (at least the ones that are still relevant - and many if not most are). Especially if he felt pressed for time. I've been a reader for a couple months shy of a year, and I know that there are insights tucked away in the archives that would be of value to me as a re-read, and to others who have only recently joined this conversation. Ideas are what is crucial, and the discussions they provoke, no matter if they were first put on paper months ago. Expecting anyone to come up with as many thoughtful pieces as he does on a regular basis is selfish of us as the reader.

In that vein, I thought I would trawl through the TIA archives to look for something worthy of a re-run, not rendered obsolete or moot by the brisk pace of current events (obviously I'm not going to re-post my prediction that John Kerry would win the election - ugh). For TIA readers, I apologize for the repetition, and will be offering some brand new material tomorrow.

Otherwise, I believe that the following post is an important examination of some themes that are perhaps even more relevant today than a couple of months ago when I first published the piece (at least in light of Bush's sweeping inaugural address). This post should provide a historical background and some frame of reference to understand why many parts of the world treat our president's messianic waxings about "freedom" and "democracy" with a healthy dose of skepticism (rightly or wrongly so).

It is also a story about how power can control and manipulate truth and the flow of information, and why transparency in government can be an invaluable check on that power, and tutor for future generations of historians and citizens. A lesson the Bush administration has apparently taken to heart, with a healthy dose of cynicism.

At the very least, it'll give you something to chew on until tomorrow.

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I'm sorry for the erratic posting. I just have too much to do right now. And given that I can't keep up with the news and that I'm tired, it's probably better if I don't write anything at all, rather than half-ass it. So, I'll probably be taking a couple of days off (and perhaps the week). Again, I apologize, but it's either that or stop altogether - and I really don't want to do that. So just have a little patience, and I'll be back to regular posting soon.

But if you're bored, you should definitely go cast a vote over at Wampum for Eric Martin who got a "Best New Blog" nomination for TIA. Congrats Eric!

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Here’s a question that’s been bugging me lately – Do hacks know that they’re hacks? Are they self-aware? I’m sure Matt Drudge has no illusions about the nature of his hackery. But what about people like Hugh Hewitt, or Glenn Reynolds? Do they think of themselves as hacks? I bet not. I bet that deep within the mind of the Instapundit, he considers himself an independent, or at least not a hack. What’s interesting to me – and what I want to talk about today using the example of torture – are the rationalizations that hacks probably use to convince themselves that they are not hacks.

I guess I should explain what I mean by "hack". The distinction between “hack” and “non-hack” is similar to the one I outlined here between an “empiricist” and an “advocate.” As I explained, an empiricist examines evidence first, and comes to a conclusion second. An advocate (e.g., lawyer) does the reverse – an advocate begins with a conclusion, and then cherry-picks and/or ignores the evidence necessary to support that conclusion. A hack is a particularly obnoxious type of advocate. In the political realm, a hack begins with the conclusion that his or her party (or cause) is never wrong, and that his or her opponent is never right. To support this conclusion, various evidence is cherry-picked (e.g., Swift Boats) or ignored (Bush in Guard). [UPDATE: I realized that my definition may fall short of what I'm trying to say. A "hack" implies that the person is out there helping the cause in some way - a writer, blogger, etc. But I'm also talking about people who have become blindly loyal to one party or another (or to Bush or the GOP House, etc.). I'm not sure the latter constitutes a "hack," but for the purposes of this post, just pretend that all these people can be roped into the definition of "hack."]

There are also two kinds of hacks – self-aware hacks, and non-self-aware hacks. The former are simply paid to be hacks (e.g., Scott McClellan, Terry McAuliffe), so I don’t really care about their hackery. They’re just doing their job. The more annoying hack is the non-self-aware hack. I’m sure you know people like this – people who refuse to admit that their preferred party or elected official is ever wrong. What’s funny about these people is that, in their own mind, they probably don’t consider themselves to be hacks. After all, it’s not exactly a pleasant way to think about yourself – that you are blindly loyal to a political party or movement regardless of what the party or movement does or advocates. Because it’s not a pleasant thought, I suspect that non-self-aware hacks adopt mental tricks – or defense mechanisms – that help disguise the cold reality of their hackery. [Could I be a hack? No no - must project fears of self on others. Must get back to Glenn.]

One of these defense mechanisms is what I’ll call the “worst case scenario.” The idea is to dream up some horrible action – the Holocaust, for instance – and convince yourself that you would draw the line there if your party started advocating that position. For example, I bet that, in Glenn Reynolds’ mind, he considers himself an independent free-thinker who is a champion for a bias-free press. Of course, empirical evidence strongly suggests that he is a hack who perceives bias on only one side of the aisle even though Fox News and talk radio are essentially paid appendages of the Republican Party. I’m guessing that Reynolds – like any non-self-aware hack – has adopted the “worst case scenario” defense mechanism. Somewhere in his mind, Reynolds thinks, “Well, if a conservative did that, I would oppose that action. Therefore, I am not a hack.”

Even if I'm wrong about Reynolds, that shouldn't detract from the more general point. People often convince themselves that they are not hacks – that they are not blindly loyal – because there are certain horrible actions that they simply could not support (though the actions are generally unlikely to ever happen). “If my party started killing Jews, I would draw the line there. Therefore, I am not a hack.” In their own minds, there is some hypothetical “worst-case scenario” that would cause them to abandon their allegiance and unconditional loyalty.

The problem, though, for many American conservatives who don’t think of themselves as hacks is the issue of torture. As more and more revelations come to light, the silence remains deafening (though again, I’ll give props to Andrew Sullivan on this issue). The authorization and systematic practice of torture is troubling for many reasons. But perhaps what’s most troubling is that the acceptance – or even celebration – of torture shows that may simply be no limit to blind party loyalty for too many people. Torture is the worst case scenario. If people support torture, what won’t they support? What is their worst case scenario? I would answer - nothing. If you support torture (or support some twisted Orwellian/Kafka-eque rationalization of torture as something other than torture), I fear that there is quite literally nothing that you would not support if your party leaders asked it of you.

At this point, the hacks might respond by citing the Nazis. They might say, “Well, I wouldn’t support rounding up an ethnic minority, throwing them in camps, abusing them, and denying them rights.” And I would respond, "Are you sure?" I mean, we’ve sort of done that already. It’s certainly not on the level of German concentration camps, but the support for the post-9/11 roundups, torture, and Gitmo itself makes me question sometimes whether there really is some hypothetical limit out there to what people would support. Of course, I'd like to think that Americans wouldn't support the extermination of an unpopular minority. But is that really the only moral standard we should aspire to? What about other appalling actions that don't quite rise to that level? For instance, how many people would have supported rounding up all Arabs after 9/11, or even today, if such a policy had been proposed? I know of one. Here’s Glenn Goering Reynolds on April 6, 2002 (who gets the Goering award for this one too) (scroll up if you don't see the quote):

I don't condone the notion of putting all Arab-Americans in internment camps. But too many unchallenged comments like this from Arab-Americans and I'm going to understand it. . . . In time of war, [die Juden]immigrants are expected to prove their loyalty. So far, the Arab-American community is falling short.

So if not at internment, where exactly would Glenn Reynolds draw the line? It’s hard to say. And here’s another poll from just a few months ago that is downright scary:

Nearly half of all Americans believe the U.S. government should restrict the civil liberties of Muslim-Americans, according to a nationwide poll.

The survey conducted by Cornell University also found that Republicans and people who described themselves as highly religious were more apt to support curtailing Muslims’ civil liberties than Democrats or people who are less religious.

People like to think there is some limit to what we will tolerate, or that there is some limit to our party loyalties. But articles like this kind of make you wonder. I fear Digby may be onto something.

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This is where bad liberal bloggers go when they die.

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[See Parts 1 and 2 here and here.]

One of the most absolutely crucial aspects of the Social Security debate to understand is the Trust Fund and default. Fortunately, Kevin Drum has already written a post that could have been called “The Trust Fund for Dummies.” Even though everyone should read that post, I want to take a shot at it too. There’s arguably nothing more important in this entire debate. In a nutshell, the administration is apparently seriously contemplating stealing $1.6 trillion from the American people because it needs money to pay for its various economic preferences – including tax cuts, transition costs to cover Social Security, etc. And just for shits and giggles, they want to risk a global financial panic too.

Default and Why It Matters

To understand the debate, you first need to understand some basic principles of borrowing. When the government runs a deficit, it has to get the money from somewhere else. It’s no different than what you must do if you want to spend money that you don’t have (on, say, a house or a car). You borrow it from somewhere else (e.g., a bank), and you eventually have to pay it back with interest. Without the interest, the bank would have no rational reason to loan you the money.

The same is true for the federal government. For example, the United States currently borrows a lot of money from other countries. We get money from them, and in exchange, they receive U.S. treasury bonds from us. Essentially, these countries are buying bonds. As Kevin explained, a bond is simply a promise to be repaid with interest – I give you a dollar and you “bond” to pay me whenever I decide to cash it in, and with interest. It’s sort of like a check in that sense. When you’re out of cash, you can borrow it from a friend and write them a check for that cash, which they can then cash in later.

“Defaulting” on a bond is simply reneging on your promise to pay. Again, it’s like writing a cold check. You get cash in exchange for a check, but when the person tries to cash it in at some point in the future, you refuse to pay. Obviously, if you go around writing cold checks, no one will ever give you cash again. The stakes are even higher if a government decides not to honor its debt. This is what happened in Argentina. It defaulted on its bonds and its economy collapsed – with a pleasant mix of chaos and street violence thrown in as well.

The United States government has never in its history defaulted on its debt. Never. So keep that in mind.

The Trust Fund

As explained in Part One, today’s taxpayers fund today’s Social Security’s benefits. Back in 1983, Congress adjusted the levels of taxes and benefits so that Social Security would actually take in more money than it needed – a rainy day fund, if you will. That surplus was deposited into the Social Security Trust Fund. As Daniel Gross explained, the original idea was to generate a big surplus that could be used to pay off national debt. With the debt reduced, America could borrow money on better terms when it needed the extra cash for the Baby Boomers. Again, it’s just like a bank. You get a better loan if you have no debt than you would if you have $30K in credit card debt.

As Gross explained, that money was spent by the government and was not used to pay down the debt. Essentially, the government (to pay for all the things it does) borrowed the surplus money from the Trust Fund. And just like any other bank or lender, the Trust Fund purchased bonds. As a separate and independent legal entity, it now holds about $1.6 trillion in bonds, or “promises with interest.” This is not the same as having no money, or “worthless IOUs.” These are United States Treasury bonds - the most secure investment in the world - and they have been honored throughout American history. It is true, though, that there is not $1.6 trillion just sitting in the Trust Fund.

Also, all this crap about how the government is writing checks to itself is wrong. A trust is a separate and independent legal entity. If I borrowed from a trust that I had set up to benefit someone else, it’s ridiculous to say I’m writing IOUs to myself. I am a different legal entity than the trust I set up. For all practical purposes, I’m borrowing from someone else (at least legally).

In short, the American taxpayers paid a lot of money into the Trust Fund. The government borrowed that money from the Trust Fund, and exchanged it for bonds. Our president apparently doesn’t want to pay it back.

2018

Under one set of assumptions, the Trust Fund will need to start gradually “cashing its checks” (its bonds) to pay Social Security benefits in 2018 as the Baby Boomers retire. In other words, the government will have to pay back what it borrowed from the Trust Fund. As Kevin explained quite well, this money has to come from what’s called the general revenue. So it is true that taxes will probably have to be raised slightly to honor these bonds. It’s not an emergency – the bonds won’t all be cashed in at once. But the government will have to pay back what it took. [On an aside, this is not a Social Security problem - this is a DEFICIT problem.]

Enter Shrub. What Bush wants to do is simply default on the money owed to the Trust Fund. That would free up a lot of money for the things he doesn’t currently have the money to pay for – tax cuts, transition costs, and Medicare Rx program to name a few. Make no mistake – this is what these assholes want to do. And it would be the crime of the century. And they’re clearly thinking about it – just listen to lines like this from our MBA-possessing President:

Some in our country think that Social Security is a trust fund -- in other words, there's a pile of money being accumulated. That's just simply not true. The money -- payroll taxes going into the Social Security are spent. They're spent on benefits and they're spent on government programs. There is no trust.

Bush may not be a genius, but you can rest assured he knows how full of doo-doo this statement is. From this point forward, I will never again say that this administration can’t get any worse. They always prove me wrong. Invading Iraq, massive deficits, authorizing torture – these are all bad risky things. But defaulting on roughly $2 trillion in debt is an order of magnitude worse. For one, it’s risking a global financial crisis. Second, it may be unconstitutional. Third, as Julie explained so well yesterday, it is “profoundly immoral.” Those bonds represent the blood, sweat, and tears of a generation’s wages. They were paid under the expectation that they would be used for benefits in old age. To just default on them – to even consider defaulting on them – is beyond outrage. I lack the words to express how outrageous this is.

Another point that I did not learn until I read Julie’s post was how economically unfair default would be (I really can’t believe I’m writing a post arguing about why we shouldn’t default on our frickin’ bonds). I would just add one point to hers (and you should read her examples) – and this gets a bit more complicated. The Social Security payroll tax is regressive – that is, it’s more expensive for poorer people (regressive vs. progressive taxes explained here). It all comes out in the wash, though, because the benefits are progressive – poorer people get more (in terms of percentage). Defaulting would simply eliminate the progressive benefit side of that equation.

President Bush – he just gets better and better.

Since I’m writing on Publius’s blog, I think it’s only appropriate to start this post with a little James Madison, from Federalist 10.

The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

. . .But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

…A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

So, all high minded talk of factions and checks and balances aside, Madison was really worried about the redistribution of wealth and property in the early days of the republic. This might be why the system that Madison had a hand in creating put the wealthy factions in a greater position of power than the rest of us. This legacy has only been magnified over time, as the political process has become progressively more saturated with special interest dollars, and political influence through money is increasingly heralded by those on the right as a form of constitutionally protected expression and therefore, a fundamental individual liberty. Enter George W. Bush.

Ok, I’ll cut the smoke and mirrors crap in a second and you’ll see that this is all just a really dramatic way of luring you into yet another discussion of Social Security. But first, a few words on the Federal Reserve. Yglesias would probably say that it’s become banal at this point to note that a lot of our policy is created by people who are not elected and who are entirely not accountable to the public. I would argue that the most egregious example of this is the Federal Reserve.

The Fed was created in 1913 when Congress passed the Owen-Glass Act and President Woodrow Wilson signed the bill. This bill was the result of heavy lobbying by the banking industry. Paul Warburg, a banker at Kuhn, Loeb and Co., began the push for a central bank (the fourth in America’s history) and bankers Frank Vanderlip and Benjamin Strong actually wrote the bill. Today, the Fed is made up of—you guessed it—bankers. (I’m writing a paper on this topic, and so a lot of the information relied on above is not on the internet, but is in books or articles I’ve perused. Wikipedia has a general overview and if you are interested in specific areas, e-mail me. I’m in the early phases of my research, though.) It’s just another way that our Government has acceded some of its power to the most powerful faction, big business, which gives it an even more substantial edge over other interest groups and the other tax brackets.

This is interesting in light of the recent work being done on the Social Security trust fund. Before Alan Greenspan became Chairman of the Federal Reserve, he was the Paul Warburg of the push to create a large surplus in the trust fund to pay for the retirement of the baby boomer generation. President Bush, of course, recently informed us all that "[t]here is no trust" and revealed a desire to default on it.

I think Brad Plumer's response to Yglesias and Marshall is right--defaulting on the almost two trillion dollars worth of US Treasury Bonds that the trust has accumulated from taxing working people isn't unconstitutional--it's just profoundly immoral. Kevin Drum echoes that sentiment as well.

So what else is new, you say, but morals aside, there are some severe economic consequences to implementing this sort of policy. Defaulting on government debt is a surefire way to further weaken the dollar. But most egregious is the effect defaulting on the fund would have on the US distribution of resources. Dean Baker's study from 2001 found that:

· 95 percent of households would be net losers if the Federal government defaults on its debt to Social Security.

· if the default takes place in 2002, it would lead to a net transfer of nearly $370 billion from households in the bottom 95 percent of the income distribution to the households in the top 5 percent.

· the richest 1 percent households would have a net gain of more than $270 billion

· the net loss from default to households in the bottom four quintiles would be equal to approximately 10 percent of a year’s income

· the gains to the richest 1 percent would average more than $300,000 per household

The upward redistribution from a default increases if the trust fund is allowed to continue to accumulate bonds prior to the default. If the default were to take place in 2016:

· more than $1 trillion (in 2001 dollars) would be transferred from the bottom four quintiles to the households in the top 5 percent of the income distribution,

· the bottom four quintiles would lose on net an amount equal to more than 20 percent of their annual income,

· an average household in the top 1 percent of the distribution would have a net gain of more than $730,000.

So, Madison's big bugaboo could end up coming true, just not in the way he thought it would. He feared the sheer number power of the farmers and workers, who'd only a year earlier shocked the ruling elite with Shay's Rebellion. Well here we are, two centuries later, and the wealthy are trying to further redistribute wealth to themselves, as they've done before during this administration and others. Publius has promised to give a good explanation of the Trust Fund and default, so if you want wonky goodness stay tuned for that. I don't aspire to clarity or relevance, but I do hope this post will give you a sense of just how anti-good-government and pro-big-business Bush's social security policy is.

The one thing that keeps me from hitting absolute rock-bottom cynicism (I realize that this post reveals just how close I'm getting to that point) is that we do still have strength in numbers. I hope you all will call your representatives and senators and tell them how important it is that they take a stand against privatization now and start speaking up about it.

Hi Legal Fiction readers. I haven't forgotten about you, and I'm sorry that my post for today won't make it up until this afternoon. Like Publius, the real world's been calling me these days, and let me tell you, she is pissed. It makes me wonder if there's some vast legal conspiracy to keep lawyers from doing anything for Valentine's Day. Or maybe to give us an excuse for why we're not doing anything...

Anyway, for now, check out Fafblog, if you haven't already. He's got some great stuff up today.

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It's Thursday - I'll be handing things over to Julie Saltman today. I may or may not post at TAS tomorrow - I obviously want to, but work has been calling this week.

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Well, well, Alan Keyes daughter is a lesbian. Such perfect irony could not have happened by pure chance. No, the size and perfection of this irony suggests the hand of a greater being. And one that's on our side.

And if this post is to be believed, Mr. Values kicked her out of the house. You know, it really is only a matter of time before these people take their rightful place in history beside the segregationists. We are absolutely on the right side of the issue - there are few things I'm more sure of. The gay-bashers should enjoy their moment in the sun. It ain't gonna last.

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As I read in a recent email, one of the challenges in the SS debate is to try to come up with a couple of quick sound bites or catch phrases. I think "risk-shifting" (described in the post below) would be a good one. For one, it's an accurate description of what Bush wants to do, which is to shift the risk of losing retirement money from the government to the individual, the latter being in a far worse position to bear that risk. For another, it can also be used to scare the bejesus out of people, which would be the central goal of my 2006 strategy if I were a consultant (we are living in a Karl Rove world, after all). I don't support these sort of tactics in an abstract sense, but when you keep getting beat through emotion-based demogoguery, you should learn to fight fire with fire. At least this claim would be accurate, unlike things like aluminum tubes or mushroom clouds.

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When we last left Grandma, we were talking about the basics of the Social Security system. I am assuming that everyone has read Part 1 and will be familiar with terms like “filling the gap.” Today, we’re going to look a little more closely at Bush’s plan in as simple of terms as possible. There are actually going to be two parts. First, I’m going to describe the basics of the plan itself. Second, I’m going to explain why it seems like such bad policy – both politically and mathematically. Keep the two distinct, as the second part will be a bit more complicated. Also, don't let the second part distract you from the basics of how the plan works. Before we begin, though, I want to briefly address the so-called “crisis” that allegedly makes Bush’s plan necessary in the first place. [And I'm using the very useful Century Foundation paper on the basics of SS, as recommended by Yglesias].

There is No Crisis

Bush’s plan relies heavily on convincing people that Social Security is in serious trouble, or will soon be “bankrupt” or “bust.” Shockingly, that’s just not true. Here’s why. All the predictions you’re hearing about Social Security’s long-term health are based on predictions from the annual report by the Social Security Board of Trustees. These predictions are based on a number of assumptions such as average lifespan, economic growth, etc. With respect to SS's long-term fiscal health, the Trustees offered three different scenarios based on three different assumptions about economic growth – one “optimistic”; one “pessimistic”; and one “intermediate.” The “intermediate” assumption is the basis for the claim that Social Security will be “bankrupt” by 2042.

Under the “intermediate” assumption, the economy grows at a rate of about 1.9%, and Social Security will, in 2042, not be able to pay out all of its promised benefits (in other words, there will be a gap under this assumption). But even if this is true, SS can still pay over 70% of its promised benefits, so the “bankruptcy” claim is bogus. However, under the “optimistic” assumption that the economy will grow at 2.6% (not 1.9%), there is no shortage until 2080. But here’s the kicker. The most “optimistic” growth assumption is less than the historical rate of growth. In other words, if the economy grows at the same rate as it always has, there is no crisis at all. Don’t get lost in the numbers, it’s the general principle that counts.

And more importantly, don’t be fooled by the things you will hear such as fewer workers are supporting more people, or that the population is getting older. That’s all true, but it’s already been factored in. If the economy grows the way it always has, there is no crisis even though all this stuff is happening. All of the doomsday arguments from Bush and uninformed liberal NYT columnists conveniently omit the fact that all of these demographic changes have already been factored into the predictions.

With the crisis deflated, we can move on the Bush plan itself, which has two key steps. It’s more complicated, but if you understand these two steps, you’ve got the basics – and the basics are the goal for today.

Step One - Promise Less Cake

Remember the lessons of my first post. Bush’s problem is the “gap,” and the gap can only be closed by either getting money from elsewhere (taxes, borrowing) or promising less (cutting benefits). The very first thing that Bush will do is to "promise less" by cutting benefits. For instance, instead of getting $100 in the future, you will get, say, $75. This is a vital point, and one overlooked by uninformed liberal Newsweek writers. Before any funds are diverted to the stock market, Bush must first reduce benefits (again, this is about “closing the gap” – which is the concept that ties everything together).

For a good analogy, think about cake. Mmm...cake. Let’s say I’ve been promised an entire cake. I’ve also been promised that I can take a third of that cake and put it in my own freezer rather than have Grandma keep it in her refrigerator. But before I can cut out my slice, Grandma cuts off half of the cake and says, “you only get a third of that.” I say, “But I wanted a third of the whole cake, not half the cake.” And she says, “gays are getting married you know,” and then I lose my train of thought.

That’s what’s going on – Bush is going to cut the cake before giving us our third. That’s what fancy stuff like “price-indexing” is all about – cutting the size of the cake. It would be nice if uninformed liberal journalists would take note of that. I should add that, for all intensive purposes, this is a tax hike. That’s because everyone would pay the same amount of taxes, but get less cake. Remember – it’s about closing the gap, and this benefit cut, or back-door tax hike, is a way of getting money "from somewhere else.”

Step Two - Investment

After the cake has already been reduced, the Bush plan lets you take a third of what’s left and invest it. The hope is that you could get more money from investing it than if the government kept it. If you remember nothing else, remember this – even if that’s true, it’s still a bad deal for younger workers. Even if the private accounts do well, they can’t overcome the initial “lost cake.” The analogy I used before was that it’s like getting a big salary cut, but a slightly increased overtime wage. So don't fooled by the rhetoric that makes it sound like you're going to be reaping the fruit of the luscious mutual fund tree.

That’s the Bush plan in a nutshell – cut the cake, then allow people to take a third of what’s left. Even if what follows gets too complicated, you at least now know the basics of how the SS system works and the very basic outline of how Bush’s plan works, and why it’s a bad deal. As far as I’m concerned, that is 99% of the battle.

By the way,if the Weisman article controversy is confusing, just forget it. It’s really not important. The only point to keep in mind is how the “offsetting benefit” works, and it’s not that hard. Let’s say you’ve been promised $100 in the future, but you want to invest one-third of it ($33) today. To pay for it, the Bush plan would simply promise you less in the future. For instance, if you don’t invest, you get $100 in the future. If you do, you get $67 in the future ($100 minus $33). Again, it’s about filling the “gap.” It gets a bit more complicated when you factor in interest. If you want to re-read about that, you can go back to my original post. I think I explained that part as clearly as I can.

So with the structure of plan in mind, I want to explain why the Bush plan is bad policy. This is a bit harder. So if you find it confusing, don’t let it confuse you on the more basic points above which are more important to understand.

Lost Cake

Again, the single-biggest problem is that younger workers will simply be worse off. Under the Bush plan, we would incur multi-trillion dollar deficits to replace a system that is working fine for one in which we would all be worse off. As a matter of simple math, the initial cut in the cake prevents younger workers from being better off even if the private accounts do well. This is a CRITICAL point. Are you listening Kristof? There is more than “one” objection to replacing a social insurance plan - which is what is going on - and which people who have space on the NYT op-ed page should take the time to learn. Like most progressives, I would have no problem with a private account system on top of SS. But that would be wise policy, which by definition excludes it from White House consideration.

Another point to remember is that it’s not only the benefits of retirees that will be threatened. As I learned in the Century Foundation paper, roughly a third of SS benefits go to disabled workers and survivors of deceased workers (who die young). Would their benefits be cut as well? We don’t know for sure, but it’s an important point to remember when you're talking about benefit cuts – especially if we’re going to be serious about promoting “values.”

Risk

Because Social Security is essentially an insurance program (for retirement, death, and disability), it’s important to understand some general principles of insurance. Insurance is about shifting risk. More specifically, you buy insurance in order to shift the risk of some potential event to someone besides you. Risk is bad, and that’s why you pay to get rid of it. You buy car insurance to shift the risk of having to pay for an accident to the insurance company and away from you. You buy health insurance to shift the risk of paying for an operation to the insurance company and not you.

It’s better for insurers to have this risk because they can more efficiently spread it to a large group. For example, let’s say that 10 people have car insurance and only one gets into an accident that costs $100. Having everyone pay $10 (and free themselves of risk) is better than everyone keeping risk and only one person paying $100.

Social Security works the same way. The government assumes the risk, and spreads the costs to a large group (the American public). If there were no Social Security, we would all bear the risk of losing our savings and having nothing in old age. We don’t like that risk, so we pay taxes to shift it to the government. But in a world of private accounts, we would again bear more risk than before. If the economy plunged, or our investment collapsed, or whatever else might happen, the risk is ours. We are screwed unless the government decides to bail us out – which of course would defeat the whole purpose of partial privitization in the first place.

Risk is a key concept, and it’s what Josh Marshall is getting at when he discusses the difference between a guaranteed-benefit (or "defined benefit") program versus a "defined contribution" program. It’s about risk. In a 401(k) contribution scheme, I have the risk. In a guaranteed-benefit program, my employer has the risk.

This is getting long, so I’ll stop there. I’m not finished with this list though. We still need to talk about annuities and administrative costs. But I’ll probably talk about the Trust Fund and default next, as it’s going to be a critical component of the phony crisis-creation efforts. The Trust Fund is another subject where you really need to try to learn what at's stake - and I'll try to help.

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Work has been kicking my ars lately, so I'll have to hold off on the rest of the Social Security posts for now - but I promise they will be coming. And given what you now know, articles like this should be much easier to understand.

When I started my new job, I knew that there would be times when I would be too busy to write. Unfortunately, I'm in one of those times so I apologize if my productivity here drops off for a couple of days.

When the mighty Legal Fiction media empire goes public, I won't have to worry about silly things like work anymore.

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In my last post about Social Security, I asked if my description of the Bush Social Security plan was clear. It was not. A lot of people (both in comments and email) said that they wanted a clearer description of what was going on. So today, I’m going to try to do that. I’m far from an expert, but I think I have a good grasp on the basics. And the basics are all you really need to know. You really can’t understand Bush’s plan unless you know how the system works. So before we get into Bush’s plan, I want to discuss some of the basics of the SS program itself. [On an aside, it is sort of refreshing that the debate is happening in that it forces people to learn about – and thus better defend – one of the crown jewels of American progressivism.]

Point #1 - Where Grandma’s Money Comes From

You cannot understand Bush’s plan unless you first understand how current beneficiaries (i.e., “Grandma”) get paid. This is crucial – if you understand this, you can understand everything. The basic point is that Grandma gets her SS payments directly from taxes on today’s workers (a payroll tax). She is not drawing upon the money that she herself put into the system when she worked.

For example, let’s say Grandma gets a $100 check every month. That money comes from the taxes paid by modern non-retired workers – or in other words, us. Grandma lives on our taxes, and older people lived on her taxes when she worked. Each generation pays for another. There is not some imaginary lockbox with Grandma’s name on it filled with her own contributions that she will draw upon when she retires. The taxes we pay go straight to Grandma.

Point #2 - The Gap

The reason that first point is so important is because you need to understand Point #1 in order to understand the effect of diverting money into private accounts. If today’s workers divert money to the stock market, that money would no longer be available to pay Grandma. Let’s say I pay Grandma $100 a month. If I take a third of that and invest it, there would only be $67 left for Grandma. The problem, though, is that I have promised Grandma that I would pay her $100 for the rest of her life. Because I diverted some of that money, a gap is created. I no longer have the money to pay her what I promised her. I’m $33 short.

The “gap” is the most overriding problem that Bush faces in creating private accounts. I repeat - The “gap” is the most overriding problem that Bush faces in creating private accounts. Because our money (our taxes) go directly to pay Grandma what she has been promised (point #1), there isn’t enough money to pay her (Point #2) if we are allowed to divert one-third of the SS taxes to the stock market and away from Grandma.

If you’re with me so far, that’s 90% of the battle. Everything else will fall into place if you keep Points #1 & 2 in mind. Everything you hear that makes your eyes glaze over – transition costs, benefit cuts, wage-indexing – are all about how to fill the “gap” created by diverting money from our seniors to the stock market. It’s that simple.

Point #3 - Filling the Gap

Most of the debate you that you read is essentially about different options for filling the gap. When it comes down to it, there are two ways to fill the gap – (1) get money from somewhere else; or (2) promise less money (i.e., promise $67 a month instead of a $100 a month – which is also called a benefit cut); or (3) some mix of the two.

Let’s return to the Grandma example. We promised her $100, but we only have $67. The gap is $33 dollars. We need to close it. That's the most important point to remember. First (as noted above), we could get the $33 from somewhere else. For instance, we could raise taxes, or we could borrow it. Because Bush will never raise taxes, he will borrow it. And it’s a shitload of money to borrow. Don’t be fooled when you hear things like “it’s only 4% that would be diverted.” That’s true, but it’s deceptive. We pay 6% of our salary to Social Security (in the form of payroll taxes) and our employers match it, for a total of 12%. Thus, what you’re talking about is potentially removing one-third (4% of 12%) of the program’s entire funding – and that creates a big gap – a multi-trillion-dollar gap to be exact. And if you have to borrow to fill the gap, the deficit will skyrocket. CBPP has some projections here and they’re nasty. Again, the main point is that we’re trying to fill the gap.

The second way to fill to gap (as noted above) is to simply promise Grandma less money. For example, instead of finding the $33 somewhere else, we could just say, “From now on, you will only get $67 a month.” Here, we are closing the gap by cutting benefits. All the complicated discussion of things like wage-indexing and price-indexing are, at bottom, about cutting benefits. The $100 that Grandma gets is currently based on a calculation linked to what’s called “wage-indexing”. When Bush (or anyone) mentions calculating Grandma’s check based on “price-indexing”, he is talking about benefit cuts. I won’t get into the calculations, but the bottom line is price-indexing is a benefit cut (or just another way to close the gap). But that’s just one way to achieve the more basic goal of “promising less.”

So those are some of the fundamentals that must be understood to understand the Bush plan. First, today’s taxes pay today’s Grandmas. Second, when you take that money and invest it in the stock market, a gap is created. Third, to eliminate the gap, you must get money from somewhere else, promise less money, or some combination of the two. With these fundamentals in mind, the points I made about Bush’s plan (and borrowed from Yglesias’s post) will make more sense.

Understanding Bush’s Plan - Closing the Gap

Remember – everything is about closing the gap. Don’t let yourself get confused. Bush wants money to be removed from the SS program and turned over to the stock market (which is why Wall Street loves the idea). The problem is the gap. And to close it, he can get money from elsewhere, promise less, or some combination of the two.

Bush is attacking the gap in two different ways. First, for people over 55, he is going to close the gap by borrowing money. He is not going to do it by cutting benefits. Second, for people under 55, he’s going to “promise less.” In other words, he’s going to cut benefits for people under 55. That’s what the whole price-indexing suggestion was about in the SOTU.

Hopefully, you can begin to see why this such a political nightmare. First, given what you now know, you can understand why private accounts have nothing to do with SS’s solvency. Removing that much money threatens its solvency. That’s because the Bush plan isn’t really about – and has never been about – saving Social Security, it’s about downgrading it. It’s about making it less important, and quite possibly phasing it out altogether. You can, of course, have a good faith argument about whether this is good policy, but it is a lie to say that this policy is about protecting its solvency. Second, Bush’s proposal creates massive deficits – massive massive massive massive. Massive. Third, it cuts benefits for everyone under 55, which probably doesn’t poll well in the 40-to-54 age group. There’s a little something for everyone to hate. It’s a truly terrible proposal, and I would be somewhere between skeptical and terrified if I were a congressional Republican.

That’s quite a bit for today, so I’ll stop there for now. But I’m going to make this into a little series. In the next post, I’ll return to some of the points I made about “offsetting benefits” and the whole controversy over the Weisman article, and try to explain them in more simple ways. And after that, I’ll explain the Trust Fund and the issue of default (which is a crucial issue).

So stay tuned – and as always, I welcome feedback if anyone thinks I’ve messed something up. But this is the foundation. If you know this stuff, everything else will become a lot easier to understand.

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Based on emails and comments, it seems like a lot of people are still confused about how Bush's Social Security plan will work. So, because this is such an important issue, I'm going to try to write a clearer explanation - probably sometime tomorrow.

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Lieberman voted for Gonzales. Toomey him. I can tolerate it from people from Louisiana, but not Connecticut. I am now officially for "someone else" in the 2006 Connecticut Senate Democratic primary.

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I was away from my computer today, so I missed the brewhaha over Weisman's article. From what I gather, Weisman was wrong, but not that wrong - and certainly not enough to justify the outrage of the White House Drudge talking points news story. Weisman was only wrong in the sense that he said 2 + 2 will get you four, when he should have said 6 minus 2 will get you four. Either way, you still get four. I'm excited because the controversy gives me a chance to do my Rumsfeld imitation - Was Weisman technically wrong, yes. Does it matter, no. Will the confusion be used to discredit legitimate criticism, you betcha.

Anyway, I'm calling on the collective wisdom of my readers to make sure I have all this straight. Because if I do, and if this thing is as wretched as it seems, the Democrats may have just won back Congress. I'm completely serious. At first glance, it's amazing that someone was paid money to come up with this plan (someone with at least some economic expertise I'm guessing). The Democrats have to pound and pound and pound on this - and if it unravels, pound some more. Digby is absolutely right. This is the health care proposal of 1994. But before I get too starry-eyed, let me make sure I have everything down. And please, elaborate or correct me in the comments or your own blogs. If I do, I'll update and correct it.

I think Matt Yglesias provides the best summary, though even his is hard to follow. (On an aside, my fear is that it's going to be too hard for the public to understand just why this is so bad. It's actually a crime against poor people and future generations.) Anyway, Matt lays out the parts of the Bush plan, so let me follow his lead, but try to do so a little more clearly (and I'm sacrificing a bit of detail for clarity). The major point to keep in mind through all of this is that Bush needs to find new sources of money to do what he wants to do, which is to take money from the Social Security program and transfer it to the stock market (while not cutting current benefits or raising taxes).

Here's the short version:

First, we're going to borrow a shitload - in the literal sense of shitload - of money.

Second, benefits will be cut (whether through price-indexing or making them less progressive, etc.) rather dramatically for people under 55. The first two steps are how Bush comes up with the money to enact his plan, while paying current benefits fully, and future benefits at the promised level. Again, that's the big point - too much money is being taken out, so it has to come from somewhere else. And it's coming from borrowing and benefit cuts.

Third, with their benefits having already been cut, younger people will be allowed to divert part of their wages (1/3 of the amount that currently goes toward benefits today) to the stock market.

Fourth, even assuming workers get a better return on these accounts, the initial cuts (from Step 2) are larger than the gains from the stock market. Bottom line - we will all do worse. Just like Matt said, when the White House says that workers will get a better return, they're disregarding the cuts they've already made. It's like cutting someone's hourly wage sharply and then slightly increasing what they get for overtime, and then claiming that you're increasing their salary. And that would be right, if you don't count the fact that you just cut it, which is, shall we say, an important step in establishing that you have in fact raised it.

The people who will really benefit are those who stand to gain from an infusion of cash into the stock market. The Bush plan is also a backdoor way to pay for the tax cuts. In economic terms, by making tax cuts permanent and reducing benefits (and reducing their progressiveness), Bush is essentially shifting money from wages to capital, or from poorer people to richer people, or from work to wealth. It's absolutely criminal, especially when you look at the long-term debt projections (via CBPP - via Yglesias) that burden our children. But just as they have embraced torture, I suspect conservatives will now fully support deficits that bankrupt our kids.

This is the opposite of saving Social Security and everyone knows it. This is a subsidization of an important interest group - and it's another example of how public choice theory describes the Bush White House so well. But what's criminal about it is that Bush is claiming to do all this in the name of saving Social Security for working Americans. What he's not telling people is that their greater return is in the same place that Saddam's mustard gas is.

But getting back to the Post, Step 3 is where the Weisman controversy comes in (and it was complicated). It erupted over whether the diverted money actually belonged to the individual or to the government. If you look at it the White House way (i.e., it belongs to the individual) - the system involves an "offsetting benefit" - you get $1 dollar to invest, but $1 is removed from what's been promised you. Yes, all the money you divert is technically yours, but an equivalent amount which is also all yours is taken away. Weisman, by contrast, essentially said that this was a loan where the government lends you a dollar, but you have to pay it back (so in this sense, it's the government's money).

Now, the important thing to remember is that there's not a damn bit a difference between the two in terms of what people will have at the end of the day. Let's make it easy and assume zero interest. If Susie Bank loans you a dollar, and you pay back the dollar, you're back to where you started. Your net gain is zero. Similarly, if Susie owes you a dollar in 2040, but you prefer to have it now (assume no inflation or interest), you're back to where you started (your net gain is zero). Now maybe there is some difference I'm missing (and tell me if I am), but the result at the end of the day is the same. The White House is saying, "Look Susie is giving you a dollar. It's all yours! It's not Susie's dollar!" What they don't tell you is that Susie is taking a dollar back at the same time - one that she owed you in the future. Your net gain is zero.

So that's the simple version that excludes interest. Now I'm going to make it a bit more complicated. When you start talking about interest, you can begin to see just how bad the idea is as a matter of policy. Let's return to Susie. Susie doesn't just owe you a dollar in 2040, she owes you a dollar plus, say, 3% interest. Let's call this "1+3%". If you get your dollar today, you get 1, and not "1+3%". So, Weisman was right in that you'll only do better if you can invest in a way that gets you more than "1+3%". [Not really though, because benefits have already been cut - but that's a different point]. It's still all your money in a sense, but because of the offsetting benefit, you will actually lose money if you don't make more than "1+3%". If you make a foolish investment, or if the stock market crashes, or Enron collapses, you could get far less.

Bottom line - you are incurring a lot of risk at a time in your life where risk is bad and security is good. Social Security is an insurance program - freedom from risk, freedom from fear. One thing that gets overlooked (by people who read the Wall Street Journal) is how this risk affects people who do physical labor for a living (such as factory workers). If they go bust, they can't just go back to the bank or the firm and work. At a certain age, these people lose their ability to work in the area of their knowledge and experience. I grew up in a factory/farming town, and I don't want these people to fear having to strain on into their late 60s when their body gives out just because Enron collapsed, and their Social Security safety net is gone. That's not the value system that I subscribe to, though it is the non-abstract reality of Bush's version of the ownership society.

That's why this country has decided to join together to give people security in their twilight years. Social Security is a beautiful thing. It's been the most successful government program in history. It works. That's why Bush is drawn to it. Like a moth to a flame, Bush is strangely drawn to things that work, just so he can screw them up.

[UPDATE: Did this post help any? Or is it still really complicated? You won't hurt my feelings. If it's still complicated, I might try a more simplified post this weekend. I think you need to know how benefits are paid to get what's going on (i.e., we currently pay Grandma - Grandma isn't drawing from her own stashed away money). Please comment below and let me know if you have thoughts. It couldn't be more important for people to understand this stuff.]

The ever-vigilant Praktike, over at Liberals Against Terrorism, reminded me of the following passage from an article appearing in Foreign Affairs by John Lewis Gaddis (himself a supporter of the invasion of Iraq, and the President's foreign policies in general).

First, the introduction to the article:

In his first four years, George W. Bush presided over the most sweeping redesign of U.S. strategy since the days of F.D.R. Over the next four, his basic direction should remain the same: restoring security in a more dangerous world. Some midcourse corrections, however, are overdue. Washington should remember the art of speaking softly and the need for international legitimacy.

Then the relevant excerpt:

President Bush's decision to invade Iraq anyway provoked complaints that great power was being wielded without great responsibility, followed by an unprecedented collapse of support for the United States abroad. From nearly universal sympathy in the weeks after September 11, Americans within a year and a half found their country widely regarded as an international pariah.

It is easy to say that this does not matter--that a nation as strong as the United States need not worry about what others think of it. But that simply is not true. To see why, compare the American and Soviet spheres of influence in Europe during the Cold War. The first operated with the consent of those within it. The second did not, and that made an enormous difference quite unrelated to the military strength each side could bring to bear in the region. The lesson here is clear: influence, to be sustained, requires not just power but also the absence of resistance, or, to use Clausewitz's term, "friction." Anyone who has ever operated a vehicle knows the need for lubrication, without which the vehicle will sooner or later grind to a halt. This is what was missing during the first Bush administration: a proper amount of attention to the equivalent of lubrication in strategy, which is persuasion.

The American claim of a broadly conceived right to pre-empt danger is not going to disappear, because no other nation or international organization will be prepared anytime soon to assume that responsibility. But the need to legitimize that strategy is not going to go away, either; otherwise, the friction it generates will ultimately defeat it, even if its enemies do not. What this means is that the second Bush administration will have to try again to gain multilateral support for the pre-emptive use of U.S. military power.

Doing so will not involve giving anyone else a veto over what the United States does to ensure its security and to advance its interests. It will, however, require persuading as large a group of states as possible that these actions will also enhance, or at least not degrade, their own interests. The United States did that regularly--and highly successfully--during World War II and the Cold War. It also obtained international consent for the use of predominantly American military force in the 1991 Persian Gulf War, in Bosnia in 1995, in Kosovo in 1999, and in Afghanistan in 2001. Iraq has been the exception, not the rule, and there are lessons to be learned from the anomaly.

One is the need for better manners. It is always a bad idea to confuse power with wisdom: muscles are not brains. It is never a good idea to insult potential allies, however outrageous their behavior may have been. Nor is it wise to regard consultation as the endorsement of a course already set. The Bush administration was hardly the first to commit these errors. It was the first, however, to commit so many so often in a situation in which help from friends could have been so useful.

Another lesson relates to language. The president and his advisers preferred flaunting U.S. power to explaining its purpose. To boast that one possesses and plans to maintain "strengths beyond challenge" may well be accurate, but it mixes arrogance with vagueness, an unsettling combination. Strengths for what purpose? Challenges from what source? Cold War presidents were careful to answer such questions. Bush, during his first term, too often left it to others to guess the answers. In his second, he will have to provide them.

A final and related lesson concerns vision. The terrorists of September 11 exposed vulnerabilities in the defenses of all states. Unless these are repaired, and unless those who would exploit them are killed, captured, or dissuaded, the survival of the state system itself could be at stake. Here lies common ground, for unless that multinational interest is secured, few other national interests--convergent or divergent--can be. Securing the state will not be possible without the option of pre-emptive military action to prevent terrorism from taking root. It is a failure of both language and vision that the United States has yet to make its case for pre-emption in these terms.

Gaddis' point is well made (and given his asendant influence in the Bush administration, there is a good chance changes will be made). Even if you supported the invasion of Iraq, and even if you are in favor of further military endeavors abroad, it is in the best interest of America and its mission if the Bush team took a different attitude toward our allies and international bodies. Perhaps give ground on unrelated issues like climate change (as suggested by reader Ben P at LAT), pursue diplomatic avenues more vigorously, and/or show more willingness to hammer out compromises in other areas that are not vital to a given mission. In general, resist the urge to rule by diktat, instead bringing some democracy to democracy promotion. There's a reason why the system should be emulated.

In Between Days

In Part I, I sought to establish the historical context, and some of the pitfalls and boons related to "unipolarity." The very nature of unipolarity has led other nations to be more suspicious of our actions, especially in light of our pursuit of newly defined concepts of sovereignty and our lack of regard for the imprimatur of legitimacy. John Ikenberry describes the Bush administration's conception of unipolarity as a new solution for the Hobbesian state of nature that exists between nation states. In this sense, a new "leviathan" is being offered, if not forced, on the rest of the world:

The Bush administration has eagerly embraced this new unipolar logic. In its vision, outlined in the September 2002 national security strategy report, the US will increasingly stand aloof from the rest of the world and use its unipolar power to arbitrate right and wrong and enforce the peace. In a Hobbesian world of anarchy, the US will act as an order-creating leviathan. Where in previous eras the problem of order could only be solved by the balancing of power, it will now be solved by US dominance.

The Bush administration proposes to pursue what might be called a hegemonic strategy with imperial characteristics...The US will serve as the provider of global security, but in return the world must allow the US to be treated differently...The US will be at least partially above the law but the world will get what it values most - peace and security.

To be certain, there is something seductive in the notion of U.S. unipolarity expressed in such a manner. Who better to insure the peace and stability of the world, especially if this power were exercised in order to bring democracy, freedom and human rights to previously repressed people? I think this explains the rationale behind the support that certain liberal hawks gave the Bush administration's invasion of Iraq. Many on the Left side of the spectrum were never comfortable with the compromises required by the mandates of realpolitik that were a part of the balance of power in the bipolar world. As opposed to propping up brutal dictators and totalitarian regimes, unipolarity would give the United States the freedom to promote democracy with less regard for Soviet encroachments. This is a vision that is not that far away from Wilsonian liberalism.

But the vigorous pursuit of these policies also has a potential to destabilize the world, and lead to much unintended death and destruction (especially if pursued through militaristic means). Therefore, it is crucial that we pursue our agenda with circumspection, humility, and caution. Further, the success of these missions, and of our other foreign policy directives in general, will depend in large part on the cooperation of our allies and the perception that our actions are legitimate. Our allies, and the broader world community, must be given a seat at the table, or they will reject our imposition of order. We cannot succeed if we continue to alienate the rest of the world, and we may in fact provoke a backlash.

And therein lies one of the contradictions, or conflicts, in the Bush administration's foreign policy apparatus. On the one hand, they want to engage in an ambitious, ideological neo-conservative/neo-liberal form of interventionism, but their rhetoric and posture vis-a-vis allies, other countries, and international organizations seems like a left over from an isolationist or realist (self interest) past. Bush's vision requires support and cooperation, but the rhetoric and posturing garners neither.

Part of this duality was born out of hubris - an overestimation of the extent of power conferred by unipolarity (making other nations dispensable) - and too much faith placed in our military to accomplish tasks it was not designed for (there is no finer fighting force on the planet, but nation building is not their area of expertise). One of the ancillary purposes of the invasion of Iraq was to fire a warning shot off the bow of the Middle East ship of state, to let the world know what we are capable of. For some reason, this assumed that the Afghan example was insufficient to drive the point home. But, ironically, this action also betrayed our weaknesses, and the limitations of our abilities. Surely we can topple most, if not all, of the regimes in the region and abroad, but our ability to control the aftermath has been cast in serious doubt. In the second phase, we depend more on a cooperative world community, as well as the perception amongst the target population that we have good and legitimate intentions and authority (see: Iraqi cynicism and mistrust). Our military cannot maintain order if the populations, and their neighbors, act to undermine our goals.

A unipolar order without a set of rules and bargains with other countries leads to a system of coercive unipolar American empire - and as such it is unsustainable at home and unacceptable abroad. As the Iraq episode shows, under these circumstances other countries will tend to "undersupply" co-operation. They will do so either because they decide to free-ride on the American provision of security, or because they reject the US use of force that is untied to mutually agreed-upon rules and institutions - or both. So the US will find itself - as it does now - acting more or less alone and incurring the opposition and resistance of other states. This is the point when the conservative unipolar vision becomes unsustainable inside the US. Americans will not want to pay the price for protecting the world while other countries free-ride and resist. This appears to be true in the case of Iraq: a majority of Americans now believe that the Iraq war was not worth it, after sustaining barely more than 1,000 military deaths. The US is 5 per cent of the world's population but generates nearly 50 per cent of total world military spending. Is this sustainable in a world where other countries are in open revolt against an American imperium?

And there are important factors beyond simply our pursuit of foreign policy objectives. The cult of unipolarity generally underestimates the amount to which the rest of the world has contributed to America's wealth, power, and prosperity. In a prior post entitled Brand Name America, I laid out the many ways that the American economy and the projection of American values abroad would be impacted if we continue to ignore, and leave unaddressed, the growing animosity to our nation:

In the increasingly interconnected realm of business and politics, the brand name of "America" was sold to the world in the form of political and economic theories, and literally in the packaging of consumer products such as the globally ubiquitous trademarks of Coca Cola and McDonalds. And the world has been buying - willingly devouring all things American in a show of support and an endorsement of the message of America: freedom, democracy, liberalism, respect for human rights, economic opportunity, technological advancement, and the Big Mac. America became the hip, creative, trend-setting epicenter of culture - as the world turned to us for the next craze and newest fashion. Consider this, for all of America's vaunted productivity, and vast expanses of natural resources, our number one export to the world is entertainment in the form of music, film and television. Simply put, "America" sells.

But, quoting our President in response to a question about the burgeoning trade deficit, will people "buy more United States products [sic]" if brand name America becomes so tarnished? To what extent will the world community be eager to buoy the waning value of the dollar, when other attractive currencies are emerging without the extracurricular baggage we are now carrying? Beyond that, the heavy-handed imposition of US unipolarity can and will provoke other nations to coalesce around new poles of power - actions they will take when they perceive the benefits as outweighing the costs (and the costs are substantial especially in the military arena). Our behavior directly impacts those calculations. A recent article by Michael Lind (via The Washington Note - which is easily one of the most underrated blogs, next to TIA of course), highlights some of the trends:

In a second inaugural address tinged with evangelical zeal, George W. Bush declared: "Today, America speaks anew to the peoples of the world." The peoples of the world, however, do not seem to be listening. A new world order is indeed emerging - but its architecture is being drafted in Asia and Europe, at meetings to which Americans have not been invited....

A decade ago, American triumphalists mocked those who argued that the world was becoming multipolar, rather than unipolar. Where was the evidence of balancing against the US, they asked. Today the evidence of foreign co-operation to reduce American primacy is everywhere -- from the increasing importance of regional trade blocs that exclude the US to international space projects and military exercises in which the US is conspicuous by its absence.

It is true that the US remains the only country capable of projecting military power throughout the world. But unipolarity in the military sphere, narrowly defined, is not preventing the rapid development of multipolarity in the geopolitical and economic arenas -- far from it.

The inimitable Fred Kaplan approached this issue using the findings from the most recent intelligence reports.

Who will be the first politician brave enough to declare publicly that the United States is a declining power and that America's leaders must urgently discuss what to do about it? This prognosis of decline comes not (or not only) from leftist scribes rooting for imperialism's downfall, but from the National Intelligence Council - the "center of strategic thinking" inside the U.S. intelligence community.

In this new world, a mere 15 years away, the United States will remain "an important shaper of the international order" - probably the single most powerful country - but its "relative power position" will have "eroded." The new "arriviste powers" - not only China and India, but also Brazil, Indonesia, and perhaps others - will accelerate this erosion by pursuing "strategies designed to exclude or isolate the United States" in order to "force or cajole" us into playing by their rules.

America's current foreign policy is encouraging this trend, the NIC concluded.

Leave The Gun, Take The Cannolis

The consent, approval, and respect from the world community matters for America. These ephemeral attitudes impact our economic standing, our ability to build coalitions and nation build when necessary, our ability to achieve our ideological goals, and our ability to forestall the emergence of new, less savory, poles of power. I say this because there is no other country that I would rather see as a global hegemon (look at the history of hegemons in Europe, Asia and elsewhere for a litany of why), but in order to insure this status, we must alter some of our tactics and behaviors. Otherwise, the unipolar moment may prove to be a fleeting one, and one that fails to live up to its potential.

I do not accept, in whole, the formulation put forward by Tucker and Hendrickson in their piece - one that calls for almost strict adherence to international law. For one, there are times when the U.S. can and should act absent the approval of the United Nations or other international body. The UN is in dire need of reform (even Kofi Annan thinks so) and has been notoriously ineffective in many scenarios (Rwanda, Darfur, etc). Part of this might be a result of improbable expectations: on the one hand we delegated very little power to the UN, on the other we blame it, and other international organizations, when they are not effective (but that is another topic altogether). Instead of relying solely on the UN, though, we should appeal to a cascading standard of legitimacy. And in reforming them, perhaps taking the best part of some, while discarding that which has outgrown its usefulness. Fukuyama:

Of course, the UN has deep problems with legitimacy. Since membership is not based on a substantive principle of legitimacy, but rather formal sovereignty, it has been populated from the beginning by a range of dictatorial and human-rights abusing regimes. Our European allies themselves do not believe in the necessity of legitimization through the Security Council. When they found they could not get its support for the intervention in Kosovo because of the Russian veto, they were perfectly willing to bypass the UN and switch the venue to NATO instead. But our legitimacy problem in Iraq went much deeper. Even if we had switched the venue to NATO-an alliance of democracies committed to the same underlying set of values-we could not have mustered a majority in support of our position, not to speak of the consensus required for collective action in that organization.

So we should seek to reform the United Nations and make it more responsive and efficacious, and look to it for the imprimatur of legitimacy whenever possible. Absent Security Council approval, we should court other smaller, but still inclusive, alliances for their support and perception of legitimacy. Even if we cannot find approval from smaller bodies like NATO (or other bodies of alliance that could be formed in the future), we could and should seek to make our case on the world stage, to the people themselves. As information and connectivity increase, it may become possible for the US to convince enough of the world of the wisdom of a certain action without the formal ratification of a given body.

But in all of the above endeavors, rhetoric matters. Reforming the UN will be more problematic if we approach it from the point of view that it should be demolished. Engendering the support of allies in NATO, and making appeals directly to the people of other countries, will also be undermined if we dress it up with contempt and arrogance. To quote our President:

I think one way for us to end up being viewed as the ugly American is for us to go around the world saying, we do it this way, so should you. I think the United States must be humble and must be proud and confident of our values, but humble in how we treat nations that are figuring out how to chart their own course.

...If we're an arrogant nation, they'll resent us. If we're a humble nation, but strong, they'll welcome us.

Thus there is something of a new test forming. On the one hand, appeal to international law and the United Nations and, importantly, do so from a vantage point of respect for the institutions and an ideological position of appreciation for the importance of such multilateral organizations. Do not proceed with brash and inflammatory rhetoric which is prone to create distrust and entrenched opposition.

If those efforts are not met with success, continue to lobby, while at the same time consulting with smaller organizations such as NATO (or some future incarnation thereof), and the world community in general. If all three corners are counseling against our actions, there might be a good reason why. It would be wise to reconsider, or at the very least, agree to delay the decision for further vetting.

While there could be exceptions to these modified pillars in the potential case of extreme and imminent threats that somehow fail to alarm our allies, I think these fundamentals provide a strong overarching principle to guide us going forward. They better guard our own interests than a strict obedience to international law would, but at the same time defer more to our allies and international bodies, and give weight to their counsel, so as to foster trust, support, and an air of legitimacy which are all so vital for our current mission and so many other goals.

Westphalian Came Tumbling After

When Mr. Gorbachev eventually acquiesced to Reagan's entreaty, and at least allowed "the wall" to be torn down, few took notice amidst the justifiable celebration that a rending of the international order that had dominated the prior half-millennium had just occurred. To put it in publius-speak, one of the "boxes" got knocked off the stack of statecraft. This paradigm shift has been called the "unipolar moment," and the resulting status the United States acquired has, relatedly, been termed "unipolarity" - a reference to one locus of power in a world of many nations.

Since that watershed moment, the balance of power established by the post-World War II era of Cold War brinkmanship has shifted suddenly, and heavily, in favor of the United States. The former Soviet Union and its cadre of allies organized under the Warsaw Pact ceased to exist in the form, organization, strength, and hostile posture they had occupied for the prior 50 years. No other nation has stepped into that power vacuum, so the United States has emerged from the bipolar/multi-polar dynamic to claim the unprecedented dominance and influence attendant its position as the world's lone superpower - especially in the realm of military supremacy.

Just as every blessing contains a lesser curse, this new found global hegemony marks a historic unraveling of the system of power distribution that had presided over a period extending far beyond the prior 50 years. Author and Princeton Professor John Ikenberry (subscription required) describes the historical significance:

For 500 years, international order...based on the Westphalian System...has been maintained by the diffusion and equilibrium of power. States with roughly equal capabilities - the so-called great powers - balanced each other, alone or in concert...

...the security of states was maintained by ensuring an absence of an overarching power in the international system. The Napoleonic wars and the two world wars were all about the overturning of dangerous challenges to international order based on the equilibrium of power.

So with the tumble of bricks in Berlin, and the lifting of the Iron Curtain across Eastern Europe, 500 years of precedent was razed in an historical instant. This relatively abrupt change, and loss of balance, has caused some concern amongst nations other than the U.S., and in many ways this anxiety has been heightened by a confluence of other factors. One such factor is the increased level of justification for interfering with another nation's sovereignty.

Domestically, countries have been sovereign, deploying what Max Weber called a "monopoly on the legitimate use of physical force within a given territory." But in a dual transformation, the Westphalian order has been flipped on its head. We now have one country - the US - with a quasi-monopoly on the use of force internationally. We also have growing legitimate international authority over what goes on within countries. Westphalian sovereignty is increasingly contingent. [emphasis added]

After WW II, international standards were set for the proper circumstances in which outside states could interfere with the internal workings, or "sovereignty," of another state, but these mostly dealt with self-defense or specters like genocide - the latter a direct reaction to the attempted Nazi purge of the Jewish people. The events of 9/11 have led some in the Bush administration, and elsewhere, to further push the boundaries of "contingent sovereignty" - arguing that in certain circumstances preventitive wars are necessary and justifiable intrusions into another country's sovereignty. Preventitive wars can be differentiated from pre-emptive wars in that the former do not require the "imminence" of threat in order to act in self defense - the threat calculus is more remote, and deals with a relatively far-off future threat. Iraq was an example of "preventitive war."

But in the aftermath of 9/11 and the recent wars in Afghanistan and Iraq, US power has been exposed to the light of day. The simultaneous rise of America's quasi-monopoly on the use of force and the unbundling of sovereignty is a volatile mixture.

While there is something appealing about the notion of American hegemony to many Americans, and the belief in American exceptionalism contributes to this, we must remember that there are reasons that the rest of the world might not share such a sanguine view of this scenario - and some of the reasons are not pure anti-American animus. In fact, some of this opposition is very American in spirit. The founding fathers of this nation realized long ago the wisdom of the old axiom that "power corrupts." The notions of checks and balances, federalist de-centralization, and limited sovereign powers represent the culmination of an effort to diffuse power to enough "poles" in order to prevent tyranny. Thus, in the unipolar world, and one with less clearly delineated lines of sovereignty, there is fear that the power America now wields will corrupt some of its policymakers. If not corrupt, at least lead to choices and policies that end up doing great harm in the sincere name of good. Think of Gandalf's and Galadriel's reasons for rejecting the One Ring in the Lord of the Rings myth. Their rejections, at least in part, were out of fear for the harm they might do wielding such tremendous power in an effort for good - the results not necessarily matching the intentions because of the corrupting nature of power.

The end of the Cold War thus thrust the United States and the world into a Madisonian moment. "In framing a government which is to be administered by men over men," James Madison wrote in the Federalist Papers, "the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

In a unipolar world, there is no credible external force that "obliges" the hegemon to control itself, especially if international law and institutions are deemed "quaint" and non-binding.

The Legitimacy Well

Two noted scholars and historians, Robert W. Tucker and David C. Hendrickson, have recently penned a piece for Foreign Affairs (no subscription required) which takes up the notion of America's role in the changing landscape of geo-political influence. In particular, the authors examine the concept of "legitimacy," and how America's actions are being perceived against the backdrop of its new found unipolarity.

Legitimacy arises from the conviction that state action proceeds within the ambit of law, in two senses: first, that action issues from rightful authority, that is, from the political institution authorized to take it; and second, that it does not violate a legal or moral norm. Ultimately, however, legitimacy is rooted in opinion, and thus actions that are unlawful in either of these senses may, in principle, still be deemed legitimate. That is why it is an elusive quality. Despite these vagaries, there can be no doubt that legitimacy is a vital thing to have, and illegitimacy a condition devoutly to be avoided.

They make an important observation, echoed in the Ikenberry article, that the United States has not exactly followed the letter of international law in the past, yet its actions were still widely seen as legitimate, and perceptions matter most in this realm - not legal formalisms. This is partially explained by the fact that the world community had been willing to grant the U.S. a fair amount of leeway in bending the rules because of the overarching threat represented by the Soviet Union's expansionist tendencies. But with the end of the Cold War, the U.S. has lost it's default "benefit of the doubt" and has become instead a source of concern and, for some, suspicion (part of the curse in the blessing).

This is not to say that the U.S. was a frequent violator of international order, because those were exceptions to the norm. The U.S. fought long and hard to have those principles, laws, rules, conventions, and treaties codified and accepted, ever since the first World War, because they represent a commendable vision of international security and governance that can garner international acceptance (even if in practice, the embodiments are still flawed).

Just as civilization itself is distinguished by the insistence that conflicts be settled by means other than brute force, so U.S. postwar leaders insisted that international relations be ordered by the same principle. This principle had all the more appeal because it was championed in circumstances in which, only a short time before, it had been blatantly violated...The German regime that brought on World War II was even more contemptuous of international law. It acted avowedly on the principle that might makes right.

Tucker and Hendrickson provide what they consider to be the "four pillars" that have provided the cloak of legitimacy for U.S. foreign policy and exercise of power post-WW II:

[1] Washington's long-held commitment to international law, [2] its acceptance of consensual decision-making, [3] its reputation for moderation, and [4] its identification with the preservation of peace.

The authors provide a historical basis for these pillars that I excerpt toward the bottom of this post (Part I of the original series), but I will elide this explanation in the interest of space.

The Well Runs Dry

According to Tucker and Hendrickson (as well as Ikenberry), the Bush administration has deviated from the path set forth by the four pillars enunciated above which has exacerbated the concerns over American unipolarity - and the results have been disturbing. Both articles cite trends in the international community regarding the dismal status of the United States' approval ratings, and how these attitudes might impact our strategic goals in terms of obtaining assistance and support:

...especially in Europe-the cooperation of which Washington needs for a broad array of purposes-and in the Muslim world, where the United States must win over 'hearts and minds' if it is to lessen the appeal of terrorism. In both areas, confidence in the propriety and purposes of U.S. power has dropped precipitously and shows little sign of recovery.

The trend away from the four pillars is a manifestation of the philosophical opposition to international law, and its institutional mandates, rampant amongst members of the Bush foreign policy apparatus (especially in the first term). For years, influential members of respected think tanks like the American Enterprise Institute (AEI) and the Project for the New American Century (PNAC) have been advocating disengagement with, if not utter withdrawal from, the United Nations and other international bodies and treaties.

Seen against the backdrop of these factors, the startling loss of legitimacy that has occurred in the administration of President George W. Bush is not so mysterious. Even before the attacks of September 11, 2001, the Bush administration revealed a deep suspicion of international law. Its undersecretary of state for arms control and international security, John Bolton, had noted in the late 1990s that "it is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so-because, over the long term, the goal of those who think that international law really means anything are those who want to constrict the United States." This augured a fundamentally contemptuous attitude toward the principles that had previously sustained U.S. legitimacy. But what were straws in the wind before September 11 soon became a virtual tornado as the Bush response to the attacks became clear.

...By declaring that "either you are with us, or you are with the terrorists," President Bush cast profound doubt over whether his administration would even bother to consult with traditional allies. Rather, it seemed intent on issuing diktats to which they were expected to conform. A new doctrine of preventive war, misnamed the "strategy of preemption," took the place of the doctrines of containment and deterrence that had preserved the nuclear peace during the long contest with the Soviet Union.

Even when the administration approached international institutions it did so with an air of feigned regard but real contempt. The White House made clear that it intended to invade Iraq even in the teeth of Security Council opposition and repeatedly warned that the UN would pass into irrelevance unless it bowed to U.S. demands. The Bush administration also asserted that war against Iraq was justified to depose a tyrant and free the Iraqi people-a position that strongly suggested that Bush accepted in principle the legitimacy of war against any government failing a democratic litmus test.

In addition to denigrating the tenets of international law, and the importance of consensual decision making, the invasion of Iraq has also tarnished our reputation for moderation in foreign policy, and threatened the stability and peace so recently secured by the collapse of the Soviet Union - the basis for the third and fourth pillars. Tucker and Hendrickson summarize the shift thusly:

Throughout its history, the United States has made gaining international legitimacy a top priority of its foreign policy. The 18 months since the launch of the Iraq war, however, have left the country's hard-earned respect and credibility in tatters. In going to war without a legal basis or the backing of traditional U.S. allies, the Bush administration brazenly undermined Washington's long-held commitment to international law, its acceptance of consensual decision-making, its reputation for moderation, and its identification with the preservation of peace.

Supporters of the president's policies point to other past examples of unilateralist foreign policy in order to belittle the significance of the Iraq war. There are two factors that differentiate the unilateralist actions undertaken by the Bush administration and those of its predecessors. First, there is an underlying philosophy, and open rhetoric, of determined animosity to the United Nations. During previous unilateralist actions, the U.S. administrations still openly supported, revered, and respected the United Nations, NATO, and other international bodies. This was not merely lip-service, or hollow rhetoric, and it was far from the thinly veiled contempt exemplified in statements and actions by Bush's inner circle. On the contrary these attitudes were vital in securing the patience and tacit acceptance for our non-conforming actions from the rest of the world.

If our unilateralist actions are perceived as an occasional sojourn off the reservation, a reservation we still respect and value, that is one thing. If they are seen as a culmination of an overall strategy to raze the reservation, that is entirely different. Warnings about the impending irrelevance of the United Nations, and the obsolescence of "Old Europe" do little to assuage the fears of some of our more tenuous alliances. In addition, there has been much open discussion in those same influential think tanks and foreign policy circles of pursuing future unilateralist campaigns in places such as Syria and Iran, with or without international cooperation. This seems to drive the message home that the UN, and perhaps more important the opinions of the governments and people of our allied nations, will be marginalized going forward.

The second factor that changes the tenor of the most recent exercise in unilateralism is the historically unique conditions brought on by the new found unipolarity. Whereas in the past when the United States took controversial unilateralist actions, they were undertaken in a bipolar, even multi-polar world. The international community had the knowledge that there was an ultimate check on the scope of U.S. power in the formidable Warsaw Pact, and friendly nations were also aware of the leverage they possessed as necessary allies that Washington relied upon in the context of the Cold War. Now, there is no check on U.S. power and some in the administration have come to the conclusion that certain long held alliances are not worth the effort or compromises required to maintain them. This changes the character, or at the very least the perception, of the invasion of Iraq as one in a series of unilateralist actions. As I said earlier, perception is as important, if not more so, than the actual legality of the actions.

I turn to the words of Francis Fukuyama, a neoconservative thinker who has become a strange bedfellow of mine, but until he starts hoarding the blankets, we shall remain on amiable terms:

Failure to appreciate America's own current legitimacy deficit hurts both the realist part of our agenda, by diminishing our actual power, and the idealist portion of it, by undercutting our appeal as the embodiment of certain ideas and values.

Legitimacy is important to us not simply because we want to feel good about ourselves, but because it is useful. Other people will follow the American lead if they believe that it is legitimate; if they do not, they will resist, complain, obstruct or actively oppose what we do. In this respect, it matters not what we believe to be legitimate, but rather what other people believe is legitimate. If the Indian government says that it will not participate in a peacekeeping force in Iraq unless it has a UN Security Council mandate to do so, it does not matter in the slightest that we believe the Security Council to be an illegitimate institution: the Indians simply will not help us out.

So, if we accept as a base point that legitimacy matters (a point I will further argue in Part II), and it provides a set of conditions conducive to the realization of our foreign policy goals in Iraq and elsewhere (be they realist, isolationist, neoconservative, liberal internationalist, etc.), then we must examine how do to best go about achieving such status - especially in light of the potential blowback in the form of new "poles" that could be erected to challenge our influence if we are seen as out of control or dangerous.

It's your friendly neighborhood hijacker here to claim his bi-weekly dominion over the realm of Legal Fiction. Now that publius is gagged, bound, blindfolded and secured in the back of a non-descript van, being whisked to some random American Street by my henchmen, I thought I would take a break from tagging up the Legal Fiction offices with my self-aggrandizing graffiti to offer a little something to hold over the Thursday visitors.

This week, I wanted to focus on a bit of foreign policy for a change (okay, not a change really but it's where my heart and mind are these days). There will be a two part series analyzing the relatively new found condition of American "unipolarity" (which I just learned has nothing to do with a one-wheeled cycle). In addition, how this unique status, and our handling of it, might be straining certain alliances and causing a backlash of sorts. Parts I and II will seek to summarize and build on a three part series I concluded in November (Part I, Part II, Part III), which gives fuller treatment to the many complex questions involved, and provides more cited text and other historical tie-ins - including an introduction dedicated to the cunning linguist du jour George Lakoff (note: do not repeat italicized text aloud in a public forum). Think extended edition Lord of the Rings DVDs, without the action or the hobbits - or anything else fun for that matter. Feel free to peruse those earlier posts if you so choose, but an intimate knowledge is not required for the current discussion, and most of the vital points will be restated here.

And no, I don't consider this brief re-introduction to be a surreptitious way to sneak in a de facto Part III while preserving the two-part facade, and I resent the insinuation.

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It's Thursday. I'll be over at TAS today, and the newly promoted Eric Martin will be here. One week and he's already outgrown us.

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SOTU 2005:

Social Security was a great moral success of the 20th Century, and we must honor its great purposes in this new century. The system, however, on its current path, is headed toward bankruptcy.

SOTU 2003:

The United Nations concluded in 1999 that Saddam Hussein had biological weapons materials sufficient to produce over 25,000 liters of anthrax - enough doses to kill several million people. He has not accounted for that material. He has given no evidence that he has destroyed it.

SOTU 2005:

For younger workers, the Social Security system has serious problems that will grow worse with time.

SOTU 2003:

The United Nations concluded that Saddam Hussein had materials sufficient to produce more than 38,000 liters of botulinum toxin - enough to subject millions of people to death by respiratory failure. He has not accounted for that material. He has given no evidence that he has destroyed it.

SOTU 2005:

So here is the result: Thirteen years from now, in 2018, Social Security will be paying out more than it takes in. And every year afterward will bring a new shortfall, bigger than the year before. For example, in the year 2027, the government will somehow have to come up with an extra 200 billion dollars to keep the system afloat - and by 2033, the annual shortfall would be more than 300 billion dollars.

SOTU 2003:

Our intelligence officials estimate that Saddam Hussein had the materials to produce as much as 500 tons of sarin, mustard, and VX nerve agent. In such quantities, these chemical agents also could kill untold thousands. He has not accounted for these materials. He has given no evidence that he has destroyed them.

SOTU 2005:

By the year 2042, the entire system would be exhausted and bankrupt. If steps are not taken to avert that outcome, the only solutions would be drastically higher taxes, massive new borrowing, or sudden and severe cuts in Social Security benefits or other government programs.

SOTU 2003:

U.S. intelligence indicates that Saddam Hussein had upwards of 30,000 munitions capable of delivering chemical agents. Inspectors recently turned up 16 of them, despite Iraq's recent declaration denying their existence. Saddam Hussein has not accounted for the remaining 29,984 of these prohibited munitions. He has given no evidence that he has destroyed them.

SOTU 2005:

I recognize that 2018 and 2042 may seem like a long way off. But those dates are not so distant, as any parent will tell you. If you have a five-year-old, you're already concerned about how you'll pay for college tuition 13 years down the road. If you've got children in their 20s, as some of us do, the idea of Social Security collapsing before they retire does not seem like a small matter. And it should not be a small matter to the United States Congress.

SOTU 2003:

From three Iraqi defectors we know that Iraq, in the late 1990s, had several mobile biological weapons labs. These are designed to produce germ warfare agents, and can be moved from place to place to evade inspectors. Saddam Hussein has not disclosed these facilities. He has given no evidence that he has destroyed them.

SOTU 2005:

You and I share a responsibility. We must pass reforms that solve the financial problems of Social Security once and for all.

SOTU 2003:

The International Atomic Energy Agency confirmed in the 1990s that Saddam Hussein had an advanced nuclear weapons development program, had a design for a nuclear weapon, and was working on five different methods of enriching uranium for a bomb. The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa. Our intelligence sources tell us that he has attempted to purchase high strength aluminum tubes suitable for nuclear weapons production. Saddam Hussein has not credibly explained these activities. He clearly has much to hide.

SOTU 2005:

Do not let anyone mislead you.

SOTU 2003:

Before September 11, 2001, many in the world believed that Saddam Hussein could be contained. But chemical agents and lethal viruses and shadowy terrorist networks are not easily contained. Imagine those 19 hijackers with other weapons, and other plans - this time armed by Saddam Hussein. It would take just one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known. We will do everything in our power to make sure that day never comes.

SOTU 2005:

But we have to move ahead with courage and honesty.

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Does anyone else find the SOTU intolerable? I just can't take it. Blue fingers. Timed standing ovations. Lies ("bankrupt"). I can't take it. I really can't. I have nothing to say. I just want to throw up.

Quote of the night: "Do not lead anyone mislead you."

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Since I was accused of supporting "judicial fascism" in an email, let me very briefly lay out my judicial philosophy with respect to deference to the executive and/or legislature.

It's pretty simple. Where there the text of the Constitution lays out a right, I think judges should be extremely activist in protecting that right (more activist than they are today, especially in the arena of criminal rights). Where the text does not, I think that judges should be extremely deferential (more deferential than they are today). In short, I'm with Justice Hugo Black.

It's an important distinction, and it explains why I am such a strong believer in textualism even if it forces me to oppose decisions that I sympathize with politically such as Lawrence. By being activist only where the text provides a clear justification, the judiciary can save its capital and be more free to protect our basic rights. If it goes around using up all its capital protecting non-textual rights, then it will have less authority for the really important cases, such as the post-9/11 detention cases - and other cases that protect rights in the face of intense majority opposition.

That's my judicial philosophy in a nutshell. Non-originalist textualism.

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I've been busy at work this week, so I haven't been able to devote as much attention as I should to the latest ruling from the US District Court in DC that the military tribunals for the Gitmo detainees are unconstitutional. Phil Carter, as usual, is on the case and provides links.

Gitmo and the entire post-9/11 line of cases (Hamdi, etc.) has now cemented my support for an unelected judiciary. I've gone back and forth at different times about whether federal judges should be elected, as they are in many states. For the most part, I've consistently favored an unelected judiciary, but I have occasionally toyed around with the idea of elections. But no more.

I guess when it comes down to it, I just don't trust "the people" to decide certain issues. For all the crap that judges get from both sides, I think that they generally get (or would get) the really big decisions right - with the notable exception of Bush v. Gore, which was simply a judicial coup d'etat. Don't misunderstand me - they get a lot of decisions wrong. But many of the most heated decisions today aren't that big in the grand scheme of things. For instance, if a court rules for or against "under God" in the Pledge, it really doesn't matter that much. If, by contrast, a legislative majority decided to ban synagogues or mosques, it would. Similarly, if a dog can constitutionally sniff your car for drugs, that may be bad, but it's not a grave threat to our liberties in the same way that unchecked executive detention would be. And I'm confident that the judiciary wouldn't let these things happen, even in wartime (though that may change now that the "selectively" pro-rule-of-law Federalist Society is appointing our judiciary). But still, against the baseline of world history, American liberties are quite expansive - and that's in part because we have removed certain decisions from fast-acting democratic majorities.

To be blunt, "the people" don't have a great record protecting rights guaranteed by the Constitution. And I can promise you that the military tribunals case, and all the post-9/11 cases for that matter, would have gone the other way if judges faced democratic pressures. People like Nixon and Atwater and Rove would have demagogued them, and said they were against freedom. And faced with that pressure, the judges would have had to read certain rights out of the Constitution, or be replaced by those who would.

The great thing about an independent judiciary (and Article III) is not so much its power, as its potential power. It's a deterrent against the truly egregious abuses of authority. It reminds me of the Ents in Lord of the Rings. If the other branches of government go too far, they know the old trees will come out of the forest to do battle in the name of ancient principles. I'm not exaggerating when I say that the judiciary's decisions in the post-9/11 cases may well be the most important decisions of my young life. They reaffirmed a principle as old as the Magna Carta - that there is a limit to Executive Power.

We don't think about it that much because we are lucky enough to live in a country where law - the collective expression of the people - actually restrains our leaders. If you think about it, this restraint hasn't been all that common throughout history.

If history shows us nothing else, it's that power corrupts humans (another theme of LOTR). And as 20th century history has shown, democracy alone is insufficient to constrain that power. People are too susceptible to the emotions of the forest. They are too quick to hate, too quick to fear they're under attack, and too quick to act in the heat of passion. On some level, that's how politics has to work so long as monkey-humans are doing the voting. But it gets scary when those emotions are summoned to war, or to support the unsupportable such as torture and bullshit military tribunals.

In fact, in a world of mass communication with people like Rove roaming around, it is probably more important to have some sort of counter-majoritarian institution to protect our liberties. I'm profoundly ambivalent about whether mass communications are a net positive or negative (remember the rise of Germany). With modern technology, demagogues can now speak on a national level. Just think what Marc Antony could have accomplished if he were a talk radio host.

Getting back to judges, the most important point I want to make is that I think the post-9/11 cases are different in kind from all the other cases you hear about. Those are about nibbling at the edges - is a sniff a "search"?; does a Ten Commandments poster violate the First Amendment? Those are important, but they're not fundamental. The post-9/11 cases were about something more fundamental, and more ancient. They were about protecting fundamental rights and limiting executive power in a time of war.

The Bush administration's recklessness has shown me how much of what I take for granted can be destroyed immediately (rule of law; no torture; international alliances; etc.). Things that take generations to build can be destroyed in a heartbeat. Protecting minority rights in wartime gets to the very heart of the old fundamental principle of rule of law. And I for one am glad that its guardians are free from Karl Rove.

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Very often, a reaction to a big news story tells you as much as about the audience as it does the actual event. Iraq’s election was no different. The bellyaching at Kos and the juvenile gloating at the Corner confirmed just how strongly that “team mentality” is strangling American political discourse. What I call “team mentality” is actually the product of two smaller forces that join together – like rivers – to create something much larger. The first is a Procrustes-like reduction of everything into one of two boxes – left or right, red or blue, liberal or conservative. The second is a slavish devotion to zero-sum thinking. Combine the two and you get the sort of team mentality that we witnessed across Blogdom yesterday.

Procrustes was the infamous robber from ancient Greek mythology who would offer unsuspecting travelers a chance to sleep in his magic bed which fit everyone perfectly. Once in the bed, however, Procrustes would stretch them or cut off their limbs until they fit the bed perfectly. Procrustes is a perfect metaphor for what I have previously labeled “partisan epistemology.” Ideally, people observe the world and then come up with labels to describe the external phenomena they see. Things that are red and shiny and have a stem are labeled as an apple – and “apple” becomes a concept that describes what people have observed.

Partisan epistemology flips this on its head. It begins with the concept already formed, and then – Procrustes-like – stretches and cuts and chops everything to fit that concept. For example, to those who see the world as entirely “right” or “left,” everything must be squeezed into a box. If they see something that doesn’t fit neatly into the concept, they don’t change the concept – they simply ignore what doesn’t fit. Like Procrustes, they cut it off to fit the bed.

For example, when people observed the Iraqi elections, it wasn’t an event that fit neatly into any conceptual box. Elections in the Middle East in which women voted don’t strike me as coherently “right” or “left” (but more the latter if I were forced to pick). But that reality didn’t stop people like Kos or Michael Novak. The world exists only in Right and Left and they squeezed the elections – Procrustes-like – into their boxes. Everything was reduced to domestic political calculations. To Novak, it was a triumph for the Right and a defeat for the Left. To Kos, it was something he feared would be a triumph for the Right, so he sourpussed about it.

But there’s another element to the team mentality and that’s zero-sum thinking. For example, in a two-person poker, a payoff to one player is always a loss to the other. If Joe wins $10, then Jack necessarily loses $10. If you add them together (10 and -10), you get zero – thus the name “zero-sum.” The idea is that any success for someone else means a defeat for you, and vice-versa.

We saw a lot of that in the reaction to the elections. People saw it as a victory or defeat for their particular team – teams created by Procrustian thinking. The division of everything in Right and Left wouldn’t be so intolerable if everyone didn’t always act like the slightest victory or defeat for the other side was an equal and opposite victory or defeat for them. Novak was happy about the elections because he thought it meant the Left lost - a true American, that guy. Kos saw that Novak was happy and wrongly assumed that the Iraqi elections would be a victory for the “Right” as well – or the strange mix of Buchanan paleos and French Revolutionaries that go by the label “Right” these days. So, he was bitter about it.

[Of course, one of the more grotesque examples of team mentality is the unwillingness of pro-Bush people to recognize torture for what it is - and that such acts were the product of decisions from on high.]

But some things are non-zero-sum. In other words, a gain to one person is not necessarily a loss to another. A contract is a good example where both sides can gain without a corresponding loss. If you must view the world through a binary lens, at least recognize that the elections were non-zero-sum. We could all be happy, and we could all be humble – especially given this eerie story from 1967 (via Kevin Drum). It's not a matter of being "centrist" - an equally meaningless word for reasons I explained here.

On an aside, a more interesting question is what cultural or socioeconomic forces cause a person to join one team or the other. That’s a question I’ve long struggled with, and never been able to answer. My Procrustes/zero-sum combination only explains the mechanics of team mentality. It doesn’t explain what leads you to favor one box over the other.