Legal Fiction

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There are many conservatives who I regularly disagree with. Some of these people I enjoy reading (George Will, Ross Douthat), others I don’t (K-Lo). But there are a select few “conservatives” (generally neocons – thus the quotes) who I don’t just disagree with, I actually stand in awe of their wrongness. Members of this small but elite group have attained transcendental wrongness – the rare distinction of being wrong about everything all the time.

Michael Ledeen is probably the president of this elite “always wrong about everything” crowd. But Charles Krauthammer is usually right there with him. Krauthammer isn’t just wrong – he’s transcendentally wrong about practically everything he writes. That’s hard to do – being objectively wrong about everything itself suggests an underlying intellectual coherence that only increases my curiosity for this rare breed of pundit. And what’s worse about Krauthammer is that he often slathers his wrongness with a facade of buttery analytical logic that can suck you in if you’re not paying attention. (I’ve documented this “Krauthammerian logic” here).

So it was with great trepidation that I read his Weekly Standard piece on torture. As expected, the essay is a multi-step argument that is, at best, similar to a geometric proof and, at worst, a linguistic embodiment of the elaborate Rube Goldberg contraptions that Foghorn Leghorn used to draw up on the chalkboard to torture the poor dog.

But anyway, Krauthammer’s point is essentially that McCain’s bill is bad because torture is sometimes morally compelled. Specifically, Krauthammer (after winding through the Goldberg machine) says that torture is morally compelled in two situations: (1) the ticking time-bomb situation; and (2) the interrogation of “high value” terrorists. I think Situation #1 is absurd. If you want to justify the legalization of torture on the basis of Hollywood fantasies that will never happen, we’ll just have to agree to disagree. Situation #2, however, is more interesting.

Despite Krauthammer’s noble efforts to break free from Ledeen’s flock, I still think he’s wrong about Situation #2. But it’s a tougher issue than it might first appear. In fact, I think the dynamics are remarkably similar to my view of the death penalty. So I’ll start there.

When people say they oppose the death penalty, they could mean one of two things. On the one hand, they might think that state-sanctioned execution is morally wrong, period. On the other hand, they could be saying that they don’t trust humans to administer it fairly and correctly. I fall squarely in the second camp. In a world of perfect knowledge, I don’t have a moral problem with capital punishment. The problem is that this world is a fantasy. In our world, the criminal justice system is run by humans with imperfect knowledge.

In this sense, my opposition to capital punishment is a Burkean skepticism of human reason – and it is deeply rooted in intellectual humility. Not only am I skeptical that humans can properly identify guilty parties, I am 100% convinced that they cannot come up with a coherent system for distinguishing one group of murders from another for purposes of capital punishment. Irrelevant factors such as race and class have more to do with who gets executed than the inherent badness of the crime does. So because humans are incapable of doing it right, it’s better to err on the side of not doing it at all.

This is precisely how I feel about Krauthammer’s Situation #2. In a world of perfect knowledge, I would have few moral qualms about torturing “high-value” terrorists as Krauthammer defines them. But in the real world, I oppose it. That’s because if the exception existed, it would inevitably be abused – just as the loosening of interrogation standards led (predictably) to the moral disgraces we’ve witnessed over the past few years by forces who claim to be fighting in the name of Hegelian human dignity.

At first glance, it might appear that Krauthammer is being opportunistic by shifting from idealist to realist on torture. But remember, Krauthammer is transcendentally wrong – that means there’s a coherence underlying his thought. Otherwise, he wouldn’t be wrong all the time (just part of the time). And if you look closely, you’ll see that Krauthammer’s position meshes nicely with the more fundamental neocon fallacy – that humans can be trusted with unchecked power if they’re “good.” It’s the same fundamental error of the French and Russian revolutionaries as well – and it’s a first principle of neocon thought.

Unlike the old Burke conservatives, the new neocons put too much faith in reason and human goodness. In Iraq, for instance, America should be free to ignore international law and invade whoever they want because they’re good – and can be trusted to do good. With respect to torture, Krauthammer wants to keep it legal for Situation #2 because we can trust that interrogators won’t abuse it. Krauthammer’s position on torture and Iraq are therefore fruit from the same tree. [On an aside, this is the same problem with military tribunals. We can’t trust the administration to run them properly without checks and transparency.]

It’s a breathtaking leap of faith – and one our Founders wisely did not make in drafting the extensive criminal protections of the Bill of Rights. Not only does Krauthammer trust that interrogators will properly identify just who is or isn’t a “terrorist,” he trusts that they can further determine which of these are “high level” terrorists that deserve the proper level of torture. He is also apparently convinced that the license to torture “high level terrorists” will not inevitably create incentives to label any and all undesirables as "high level" in order to allow torture to proceed. In this sense, the “high value” label strikes me as suspiciously similar to the old “enemies of the state” and “counter-revolutionaries” labels invoked by regimes that lacked our extensive criminal procedural protections.

Excluding the moral dimension, the question of torture essentially boils down to trust. Like Tolkien and Burke and Madison, I distrust power – especially the power to impose criminal sanctions and physical punishment - especially in hidden prisons. Therefore, I think we should err on the side of not torturing. That’s why we need the bright line – indeed, that’s what bright lines are for. They are manifestations of distrust. The more we adopt fuzzy standards and open-ended exceptions, the more we guarantee that unjustified and immoral torture will continue.

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Well, I expected to be writing tonight, but I have a couple of projects due early this week at work. So, it's probably going to be another day or two before I get back in the saddle. Sorry - I appreciate your patience.

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Given both my work and holiday travel schedule, I think I'm just going to take this week off from the blogosphere (unless of course I read something that really pisses me off).

Happy Thanksgiving everyone. I'll be back this weekend.

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I'm busy with work again, so I probably won't be posting until tomorrow. But I do hope everyone reads the LA Times article on Curveball. This was my favorite passage:

One CIA-led unit investigated Curveball himself. The leader was "Jerry," a veteran CIA bio-weapons analyst who had championed Curveball's case at the CIA weapons center. They found Curveball's personnel file in an Iraqi government storeroom. It was devastating.

Curveball was last in his engineering class, not first, as he had claimed. He was a low-level trainee engineer, not a project chief or site manager, as the CIA had insisted.

Most important, records showed Curveball had been fired in 1995, at the very time he said he had begun working on bio-warfare trucks. A former CIA official said Curveball also apparently was jailed for a sex crime and then drove a Baghdad taxi.

Jerry and his team interviewed 60 of Curveball's family, friends and co-workers. They all denied working on germ weapons trucks. Curveball's former bosses at the engineering center said the CIA had fallen for "water cooler gossip" and "corridor conversations."

"The Iraqis were all laughing," recalled a former member of the survey group. "They were saying, 'This guy? You've got to be kidding.'"

There's a great Coen Brothers-style black comedy here if anyone has any screenplay writing skills. The flunkee-engineer-turned-taxi-driver pervert who led America to war.

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Yglesias gets it (and go read the whole thing):

A word on the Republican defectors who helped sink the spending bill today. These aren't moderate Republicans. There are no moderate Republicans. . . . What you saw this afternoon were vulnerable Republicans running scared from an increasingly unpopular GOP leadership. They should be scared. And liberals and Democrats should keep on scaring them. Give no quarter. No words of praise. The ship of moderation sailed in votes that were taken years ago.

Me:

There is one way – and only one way – to change bad political behavior. Win. Nothing else matters – politically speaking. Politicians will change their behavior when they think that behavior will cause them to get beat. And not one second before. You can’t depend on morality, you can’t depend on reason. You can depend only on the fear of political death to change things. It is the first rule of politics.

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The Post published a couple of excellent articles recently on the crisis in the DOJ’s Civil Rights Division. That – combined with Brownie and the grotesque Putin-esque behavior of CPB Chairman Vladimir Tomlinson – lends support to the argument I made in my pre-election post “The Illusion of Bush v. Kerry.”

The gist of it was that we tend to fetishize individuals in presidential elections by making the whole thing a personality contest. The truth is that we’re selecting between two alternate executive branches – branches in which the President has practically nothing to do with 99.9999% of what goes on any given day. Although the individual personalities of Bush and Kerry got a lot of attention, the were essentially irrelevant to the operation of the executive branch in the 21st century. If you want to be coldly rational about it, you shouldn’t base your vote on who you like or dislike, but on the sorts of people you want running the executive branch.

In some ways, it’s unfortunate that liberals – and for that matter the American people as a whole – get so hung up on the personalities of Cheney and Bush. It blinds them to the fact that the executive branch is being run by people who are, at best, incompetent and, at worst, actively hostile to our widely shared values.

The Post's DOJ Civil Rights stories offer a particularly disturbing example of what I’m talking about. If there’s one thing that I’m most decidedly NOT a centrist on, it’s race. The sins cut too deep for too long for me to just look away and pretend it’s all ok now. New Orleans taught us better. And even though you can have a good faith disagreement on things like affirmative action, I think this country still needs to err on the side of strong protection of civil rights – especially (especially especially) voting rights, which are the source of all our other rights.

That’s why I find the DOJ’s approval of the Georgia photo-ID requirement so disturbing. For those who don’t know, most southern states remain governed by a particularly restrictive provision of the Voting Rights Act (Section 5) because of their history. Georgia, for instance, denied suffrage to black people from before the Founding until the mid-1960s (when it was dragged kicking and screaming into the 20th century), minus a brief window when federal troops occupied the state after the Civil War. Under Section 5, Georgia therefore has to get changes to its voting laws “pre-cleared” by the DOJ. The state has the burden of showing that any new measure will not have a negative effect on minority voting. The new measure doesn’t have to be intentionally discriminatory – it’s an “effects” test. A negative impact on minorities is enough to make it illegal.

Recently, the Republican-controlled Georgia legislature passed a new photo-ID requirement for voters and, pursuant to Section 5, it had to be pre-cleared by DOJ. The Post explains the new measure pretty well:

The program requires voters to obtain one of six forms of photo identification before going to the polls, as opposed to 17 types of identification currently allowed. Those without a driver's license or other photo identification are required to obtain a special digital identification card, which would cost $20 for five years and could be obtained from motor vehicle offices in only 59 of the state's 159 counties.

I suspect that Republican legislators were more interested in disenfranchising poor people than black people per se. But in the South, poverty and race are so intertwined that policies that hurt the poor necessarily have a disproportionate effect on blacks as well. (Though I will say it’s naive to think that all Georgia Republicans simply had a deep commitment to ending voter fraud on their minds. Some of them supported this law for bad reasons and everyone – deep down – knows it.)

Anyway, the bottom line is that the career attorneys at Civil Rights (who are fleeing the division) recommended rejecting the new law because Georgia failed to show it would not negatively impact minority voting.

The staff memo noted that the records [submitted by the State] were riddled with errors, including the unexpired licenses of dead people, and were "of a quality far below what we are accustomed to using in the Voting Section." And other sources, including the U.S. Census Bureau, showed that Georgia blacks were much less likely than whites to own vehicles and also less likely to have photo IDs, the memo said.

The higher-ups at DOJ (the political appointees) overruled them and the law has now been pre-cleared. That said, I don’t necessarily think the appointees were racist people (see, e.g., my post on Katrina and “post-racism”). It’s just that they’re probably the type of people to whom racism is an abstraction. They feel no real urgency to fix it because no one they know (including older family members) has ever been affected by it.

And that’s the bigger point here. A vote for Bush is far more than a vote for an individual personality. It’s a vote for an institution with a certain set of values. When people go vote, they need to ask themselves what sort of values they want the adminstrative state to have. Had Kerry won, for instance, this law would never have been passed. His Civil Rights Division would have fought harder for civil rights because it would have had different values and priorities.

That’s why I wish we could de-personalize elections. The American people need to understand more clearly just what a vote for Bush really represented.

A vote for Bush was also a vote for Rumsfeld running the Pentagon; it was a vote for Brownie running FEMA; it was a vote for the Federalist Society selecting our nation’s lower-court judges; it was a vote for an FDA that puts religion before science; it was a vote for David Safavian running procurement; it was a vote for Vladie Tomlinson running CPB (which runs PBS and NPR); it was a vote for oil executives writing energy policy; it was a vote for John Yoo writing torture memos; it was a vote for an EPA hostile to environmental law; it was a vote for a Department of Labor that warns Wal-Mart before an investigation; it was a vote for the Heritage Foundation staffing the CPA; and on and on.

It’s easy to get hung up on wind-surfing and cowboy hats, but they really don’t matter. The American administrative state is not the soulless bureaucracy it is perceived to be. It’s a reflection of political and moral values – just like the equally boring but equally important budget. And who we pick to run it has serious consequences for everyone.

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I gotta say that Dick Cheney’s tirade against dishonesty was possibly the funniest thing I’ve ever heard. I suppose I should get outraged, but listening to Cheney lie about something isn’t really enough anymore. I’ve long since reached a sort of platonic contempt for the man. I mean, really, what more could he possibly say that’s any worse than what he’s already said? When he starts blasting the Democrats for supporting torture, maybe that will be enough to finally send me over the edge to homicidal insanity. But until then, there’s really nothing Cheney can say about Iraq that could possibly make me like him less. When you’re starting at negative infinity, there’s not much room to fall.

So let’s forget Cheney and look instead at the White House’s push-back strategy more generally. All in all, I think it’s probably a good one – even though I doubt it will be terribly effective.

But first, to the Dems. It’s been interesting to watch the liberal push-back on the push-back, primarily because it’s been equally emotional. In part, I think that’s overcompensation for past cowardice. I also think it’s rooted in fear. What we may have here is an example of the “Duke vs. Maryland theory”© of politics.

A few years back, Maryland was up on Duke at home by over 10 points with something like a minute and a half to go. Duke – because they sold their soul to the devil – came back and won the game in overtime. They later met in the Final Four that same year and Maryland blew a 22-point lead and lost again to Satan’s Helpers.

The point is that the experience was so traumatic that it permanently scarred Maryland. To this day, Maryland could be up on Duke twenty points with 4 minutes to go and still be nervous when they launch a three. The Duke defeats are scalded on to their psyche like a cattle brand.

I think Democrats feel something similar about Bush in light of the 2002 election, the 2004 election, and especially Iraq. On some level, liberals are still afraid of him – especially on matters of war. Otherwise, they wouldn’t hate him so bad. His success in demonizing them and convincing the nation to go to war scalded them good. At least, it scalded me good. I suspect that the months from August 2002 to March 2003 will remain the single most formative political event of my life. And once you get burned and betrayed that badly, you never really forget it.

That’s why the Democrats’ push-back on the push-back is so intense. It’s tinged with fear – they’ve seen this movie before. When Bush plays the jingoism card, Democrats start losing political battles.

But that said, I don’t think Democrats need to be afraid anymore. The White House push-back is primarily about securing the collapsing base – not recapturing majority support. When your approval enters the thirties, especially after you nominate Harriet Miers to the Supreme Court, there’s a better-than-marginal chance that the floor could collapse completely. That’s why you need the new jingoism. It will make the base feel better and will stop his slide – it might even gain him a few points in the polls after the Little Green Footballs/Glenn Reynolds camp falls back in line. There’s nothing they like better than sweet, blood-rousing accusations of treason.

But even if Bush stops his slide (or ticks up a few points as the base re-solidifies), I suspect it’s going to be a long time before he can expect to get out of the 40s. The new jingoism certainly can’t do that. The main reason is because, thanks to Rove’s polarization strategy, there is already a ceiling on how much support Bush can possibly get. Even if he did everything exactly right, a little less than half the population has turned against him for good. That’s the cost of polarization – for all the excitement you generate, you create equally intense contempt on the other side. (Don’t blame me, blame Newton).

Bush has been polarizing the nation for so long that there’s literally nothing he could possibly do to get the support of 45+% of the population. He could show up on my door tomorrow and offer me a million dollars and burn a Duke jersey, and I’d still dislike him – though I’d thank him for his efforts.

More critically, I think Bush has lost much of his appeal to independents and non-rabid Republicans as well. Their support for Bush always had a strong emotional element that defied rational argument. That’s also why many Democrats like him pre-Iraq – for emotional reasons. Bush performed well after 9/11 and forged an emotional bond with the public. People liked him – and when people like you, that’s all you need. But in reality, Bush – i.e., the image of Bush-as-strong-competent-President – was always something of an illusion. To continue to support him in the face of increasingly bad consequences, you had to continue believing in the illusion forged in the aftermath of 9/11. At that time, people needed something to believe in – all of us did – and Bush filled the void for many.

But the thing about illusions is that eventually give way to reality. And once people see through them, they’re hard to re-establish. Slowly but surely, the veil of illusion is being lifted. One by one, people are coming to see the man behind the curtain for what he is. For some, Katrina was the last straw. For others, it was Miers. For me, it was Iraq.

Whatever the issue might be, once the bubble pops, it pops for good. No one ever re-believes in Santa Claus once they learn the truth. And thanks to recent mishaps, people are finally coming around to the truth. For instance, after Miers, it's difficult for even the most devoted conservatives to trust Bush’s judgment in the same way they once did. There is a new distrust in people’s minds, even among his formerly devoted supporters.

That’s why the new jingoism isn’t going to work. As I said, the LGF crowd will rally around him, but the more thoughtful conservatives have simply seen too much for the illusion to re-materialize. When Bush and Cheney say that accusations of dishonesty are ridiculous, people don’t really believe them anymore.

Just as Jefferson predicted, the reign of witches is ending. Their spells are dissolving. And the people are recovering their true sight. . . I hope.

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Dick Cheney, 11/16/05:

And the suggestion [that] any member of this Administration purposely misled the American people on pre-war intelligence is one of the most dishonest and reprehensible charges ever aired in this city.

Dick Cheney, 3/16/03:

And we believe he has, in fact, reconstituted nuclear weapons.

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Bush - Cincinnati Speech, 10/7/02:

Tonight I want to take a few minutes to discuss a grave threat to peace, and America's determination to lead the world in confronting that threat.

The threat comes from Iraq. It arises directly from the Iraqi regime's own actions -- its history of aggression, and its drive toward an arsenal of terror. . . . It possesses and produces chemical and biological weapons. It is seeking nuclear weapons. It has given shelter and support to terrorism, and practices terror against its own people. The entire world has witnessed Iraq's eleven-year history of defiance, deception and bad faith.

We also must never forget the most vivid events of recent history. On September the 11th, 2001, America felt its vulnerability -- even to threats that gather on the other side of the earth. We resolved then, and we are resolved today, to confront every threat, from any source, that could bring sudden terror and suffering to America.

. . .

In 1995, after several years of deceit by the Iraqi regime, the head of Iraq's military industries defected. It was then that the regime was forced to admit that it had produced more than 30,000 liters of anthrax and other deadly biological agents. The inspectors, however, concluded that Iraq had likely produced two to four times that amount. This is a massive stockpile of biological weapons that has never been accounted for, and capable of killing millions.

We know that the regime has produced thousands of tons of chemical agents, including mustard gas, sarin nerve gas, VX nerve gas. Saddam Hussein also has experience in using chemical weapons. He has ordered chemical attacks on Iran, and on more than forty villages in his own country. These actions killed or injured at least 20,000 people, more than six times the number of people who died in the attacks of September the 11th.

And surveillance photos reveal that the regime is rebuilding facilities that it had used to produce chemical and biological weapons.

. . .

We've also discovered through intelligence that Iraq has a growing fleet of manned and unmanned aerial vehicles that could be used to disperse chemical or biological weapons across broad areas. We're concerned that Iraq is exploring ways of using these UAVS for missions targeting the United States. And, of course, sophisticated delivery systems aren't required for a chemical or biological attack; all that might be required are a small container and one terrorist or Iraqi intelligence operative to deliver it.

And that is the source of our urgent concern about Saddam Hussein's links to international terrorist groups. . . . We know that Iraq and the al Qaeda terrorist network share a common enemy -- the United States of America. We know that Iraq and al Qaeda have had high-level contacts that go back a decade. Some al Qaeda leaders who fled Afghanistan went to Iraq. These include one very senior al Qaeda leader who received medical treatment in Baghdad this year, and who has been associated with planning for chemical and biological attacks. We've learned that Iraq has trained al Qaeda members in bomb-making and poisons and deadly gases. And we know that after September the 11th, Saddam Hussein's regime gleefully celebrated the terrorist attacks on America. Iraq could decide on any given day to provide a biological or chemical weapon to a terrorist group or individual terrorists. Alliance with terrorists could allow the Iraqi regime to attack America without leaving any fingerprints.

. . .

Saddam Hussein is harboring terrorists and the instruments of terror, the instruments of mass death and destruction. And he cannot be trusted. The risk is simply too great that he will use them, or provide them to a terror network.

. . .

The evidence indicates that Iraq is reconstituting its nuclear weapons program. Saddam Hussein has held numerous meetings with Iraqi nuclear scientists, a group he calls his "nuclear mujahideen" -- his nuclear holy warriors. Satellite photographs reveal that Iraq is rebuilding facilities at sites that have been part of its nuclear program in the past. Iraq has attempted to purchase high-strength aluminum tubes and other equipment needed for gas centrifuges, which are used to enrich uranium for nuclear weapons.

If the Iraqi regime is able to produce, buy, or steal an amount of highly enriched uranium a little larger than a single softball, it could have a nuclear weapon in less than a year. . . . He would be in a position to threaten America. And Saddam Hussein would be in a position to pass nuclear technology to terrorists.

. . .

We've experienced the horror of September the 11th. We have seen that those who hate America are willing to crash airplanes into buildings full of innocent people. Our enemies would be no less willing, in fact, they would be eager, to use biological or chemical, or a nuclear weapon.

Knowing these realities, America must not ignore the threat gathering against us. Facing clear evidence of peril, we cannot wait for the final proof -- the smoking gun -- that could come in the form of a mushroom cloud.

. . .

I hope this will not require military action, but it may.

. . .

The attacks of September the 11th showed our country that vast oceans no longer protect us from danger. Before that tragic date, we had only hints of al Qaeda's plans and designs. Today in Iraq, we see a threat whose outlines are far more clearly defined, and whose consequences could be far more deadly.

Bush, State of the Union, 1/29/2003

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 hasn't accounted for that material. He has given no evidence that he has destroyed it.

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 hasn't accounted for that material. He's given no evidence that he has destroyed it.

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 could also kill untold thousands. He's not accounted for these materials. He has given no evidence that he has destroyed them.

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.

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 a place to evade inspectors. Saddam Hussein has not disclosed these facilities. He has given no evidence that he has destroyed them.

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.

The dictator of Iraq is not disarming.

. . .

The only possible explanation, the only possible use he could have for those weapons, is to dominate, intimidate or attack.

With nuclear arms or a full arsenal of chemical and biological weapons, Saddam Hussein could resume his ambitions of conquest in the Middle East and create deadly havoc in that region.

And this Congress and the American people must recognize another threat. Evidence from intelligence sources, secret communications and statements by people now in custody reveal that Saddam Hussein aids and protects terrorists, including members of Al Qaida. Secretly, and without fingerprints, he could provide one of his hidden weapons to terrorists, or help them develop their own.

Before September the 11th, many in the world believed that Saddam Hussein could be contained. But chemical agents, 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 one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known.

Bush, Address to Nation, 3/17/03:

Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised. This regime has already used weapons of mass destruction against Iraq's neighbors and against Iraq's people.

The regime has a history of reckless aggression in the Middle East. It has a deep hatred of America and our friends. And it has aided, trained and harbored terrorists, including operatives of al Qaeda.

The danger is clear: using chemical, biological or, one day, nuclear weapons, obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people in our country, or any other.

The United States and other nations did nothing to deserve or invite this threat. But we will do everything to defeat it. Instead of drifting along toward tragedy, we will set a course toward safety. Before the day of horror can come, before it is too late to act, this danger will be removed.

. . .

In desperation, he and terrorists groups might try to conduct terrorist operations against the American people and our friends. These attacks are not inevitable. They are, however, possible. And this very fact underscores the reason we cannot live under the threat of blackmail. The terrorist threat to America and the world will be diminished the moment that Saddam Hussein is disarmed.

And don't forget this classic collection by Billmon.

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Tom Oliphant says (via Yglesias):

In this blizzard of disinformation, though, the unique nature of Bush and his top advisers is conveniently overlooked. Everyone else in the world with the possible exception of Tony Blair recognizes the corollary to the now-accepted wisdom that Iraq possessed no unconventional weapons and posed no threat to the United States worthy of adjectives like grave, imminent, or even serious.

The corollary would be that knowing then what is known now, an essentially unilateral invasion of Iraq under conditions of haste and waste in March of 2003 would have been ill-advised in the extreme. Virtually alone in the world, Bush has proclaimed for months that he would have invaded Iraq even if he had known it posed no threat.

That seems like a good question for all candidates going in to 2006, no? Get them all on the record - not on the war resolution, but on the invasion. "Knowing what we now know, would you still have supported invading Iraq?" If they say yes, they're either lying or showing that they're unfit for public office.

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I have a lot on my plate for the next couple of days, so posting may be light. In the meantime, kudos to the gang at Obsidian Wings for their ongoing coverage of habeas and the Bingaman Amendment.

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One of the more interesting aspects of the modern conservative coalition is that certain blocs of it are not conservative in any traditional sense of the word. For instance, as I’ve argued before, the neocons are the intellectual heirs not of Edmund Burke, but of the French radicals whose abstract visions Burke so passionately opposed.

A different example – and the one I want to focus on today – is the camp of legal conservatives who are increasingly hostile to not just particular precedents like Roe, but to the very idea of precedent and stare decisis itself (in Supreme Court cases, that is). Justice Thomas is the most high-profile member of this camp. Feddie’s also in there, and he has even coined a motto for this camp – “stare decisis is fo’ suckas.” (T-shirt available here). The point today is not so much to assess the merits of the “stare decisis is fo’ suckas” view, but to show how un-conservative it is in the Burkean sense of the word. In fact, the Thomas/Feddie camp is quite radical in this sense – and very French.

Of all the conservative writers, I’ve always found Burke one of the most compelling. One aspect of Burke that I particularly enjoy is the idea of tradition-as-epistemological-guide. I wrote about this in my very first month of blogging. But because I doubt many of you were around then, I’ll explain it again.

One of the main themes of Burke – and traditional conservative thought more generally – is that tradition and the past should be respected. There are a couple of ways to interpret this. The first way is the mindless view that the past is better simply because it was the past. I've never had much respect for this view.

The second way is more interesting. Under this reading of Burke, the past shouldn’t be respected just because it’s the past, but because it represents the collective wisdom of mankind spread over many generations. In this sense, the past becomes an epistemological guide in that the experiences of past generations are better sources of “true” knowledge than our own limited abstract visions. Individual humility is at the center of this worldview. The idea is that if generations of humans have found value in a certain idea or practice, then there should be a strong presumption against upending that practice in the name of novel abstract visions.

I’m not necessarily saying this is a good philosophy – I’m just describing it. Personally, I think that Burke’s “respect for tradition” is too often a “respect for existing practices and power structures that benefit my economic class.” But when you think of it from an epistemological perspective, it’s interesting.

For instance, one reason I feel more secure in “knowing” that Shakespeare was objectively good is that so many subsequent generations (in many different contexts) have embraced and celebrated his plays. Literature grad students can whine about the contingency of the Western canon, but they also have to reckon with the fact that it’s lasted many centuries. Continuing appeal through time is the test for greatness – that is, whether the work continues to resonate beyond the period of its creation. For example, I think the Beatles will pass this test and will eventually take their place beside Beethoven – whereas Britney Spears will probably be unknown in a 100 years.

Ok, I got sidetracked a bit. But you can see where I’m going with this. Stare decisis is very similar to Burke’s collective wisdom of the generations. If a precedent has been reaffirmed over many decades, that means that successive generations have found value in it. And the fact that successive generations have found value in it makes it more likely that there is value in it – even if the value can’t necessarily be articulated.

Again, it’s like Shakespeare. I can’t articulate why exactly four generations of humans have performed Hamlet. But the fact that they have is a good “signal” that there is some “there” there. The play has some inherent value – otherwise it wouldn’t resonate with generation after generation. And that’s Burke’s point exactly. If past generations have embraced a given practice, you should not overturn it lightly given the limits of your reason. Just as conducting many laboratory experiments is more reliable than conducting one, so too are the opinions of past generations more reliable than the visions of the lone revolutionary.

And that brings us back to the “fo’ suckas” camp. Whatever else it is, that view is not a conservative one. It’s a radical one. And it’s radical because it tosses out the collective wisdom of the past for the abstract visions of the present. In a word, it’s “un-humble.” And in this sense, it’s very similar to the “un-humble” neocon foreign policy. Past practices are to be tossed out for the new visions. Damn the torpedoes.

One obvious objection to this view is “what about Plessy?” Well yes, Plessy was bad. And it’s certainly a difficult case for a pro-stare decisis advocate. But that said, it is just one case – and one that involved the special circumstances of race. If I were in the Burkean stare decisis camp, I would respond that the existence of a lone outlier (especially one in the area of race) doesn’t justify a philosophy that allows precedent to be gutted whenever an individual feels his own abstract theory is a better one.

But I still may go buy the T-shirt.

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Against my better judgment, I’m going to respond rationally to Glenn Reynolds’ latest accusations about Democrats acting “unpatriotically” by accusing the Bush administration of dishonesty. Although I think Reynolds’ argument is, at heart, an emotion-based one, I’m in a good mood today so I’m at least going to try to assess the argument logically (see also Kevin Drum’s response here).

Here’s what Glenn Reynolds said (and I’ll quote from his follow-up clarification just to be sure that I’m representing his views correctly):

For the record, though, I didn't say (and don't think) that anyone who opposes the war is unpatriotic. (In fact, only antiwar people seem to keep raising this strawman). But the Democratic politicians who are pushing the "Bush Lied" meme are, I think, playing politics with the war in a way that is, in fact, unpatriotic.

In short, criticizing or opposing the war is not unpatriotic, but claiming that “Bush lied” is.

The first question is what exactly he means by that. Surely Reynolds isn’t suggesting that accusing a leader of lying in wartime is always unpatriotic just because he’s a leader and just because we’re at war. What if the leader really did lie? We can all agree that it would be bad, right? So I'm going to assume that Reynolds is not arguing that “lying is ok in times of war.” That really would be Goering-land.

Instead, Reynolds seems to be saying that accusing Bush of lying is unpatriotic because he didn’t lie. That argument has problems too. Most fundamentally, it relies entirely on the assumption that the Bush administration did not make misleading statements about WMDs and the al Qaeda connection. And it’s actually more than that. By throwing around the word “unpatriotic,” Reynolds is actually saying that the administration not only didn’t lie, but that the evidence overwhelmingly supports his empirical assumption. After all, if the evidence weren’t so overwhelming, why would be it “unpatriotic” to raise the argument?

The problem here (logically) is that Reynolds is responding to one argument (that Bush lied) with a statement that doesn’t actually respond to the merits of that argument. He simply assumes the first argument has been resolved, and makes a statement that only makes sense if that first argument has in fact already been resolved. In other words, the “unpatriotic” accusation only makes sense if the logically-antecedent argument (whether Bush lied) has been firmly resolved.

In plainer English, there are really two distinct debates here. The first is whether Bush lied. The second one is how to treat continuing accusations of lying after you establish that the first debate has been resolved and been resolved favorably for Bush. Reynolds is putting the cart before the horse.

The bottom line is that it’s still a perfectly valid question as to whether the administration misled the nation about specific pre-war claims and withheld specific intelligence from Congress. Non-shrill bloggers like Yglesias have provided merely a few examples that raise some serious concerns. If Reynolds wants to respond, he should respond to the merits of the argument raised and explain why these troubling questions aren’t in fact troubling. In other words, he should address the actual accusation. He shouldn't assume that the accusation is ridiculous and then proceed to make emotionally-charged arguments that only work if the accusation has been thoroughly discredited.

It hasn’t. Not even close.

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I've said this before, but it's worth re-emphasizing in light of Bush's speech. The argument of critics is not that Bush mistakenly thought that Iraq had WMDs. A lot of people thought that - and that was a reasonable assumption. The argument is that the administration made specific exaggerations about specific pieces of intelligence. In doing so, it misled the American people. That's the real issue and what Bush said today is irrelevant to it:

Some Democrats and antiwar critics are now claiming we manipulated the intelligence and misled the American people about why we went to war," he said. "These critics are fully aware that a bipartisan Senate investigation found no evidence of political pressure to change the intelligence community's judgments related to Iraq's weapons programs. They also know that intelligence agencies from around the world agreed with our assessment of Saddam Hussein."

The first point is irrelevant because no one has ever investigated how the administration used and talked about the intelligence before it. The second point is equally irrelevant because the fact that people thought Saddam had "WMDs" (really just old chemical and bio weapons though - not nuclear) has no relevance to the charge of specific exaggerations about specific pieces of evidence (Curveball, sixteen words, aluminum tubes, etc.).

The analogy I used before was the tobacco industry. Just because lots of scientists may think cigarettes don't cause cancer, that doesn't excuse a tobacco company for being dishonest about the results of a specific study they completed.

And besdies, if you're so sure you did nothing wrong, let's investigate it.

The last point I'll make is that you really should go back and read some of the statements from October 2002 to February 2003. These statements are amazing in terms of both the nature and the imminence of the threat we supposedly faced. If Bush really wants to have this fight, let's get these quotes back up there just so everyone can remember how extreme they were.

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It doesn’t happen often. In fact, I don’t know if it’s ever happened on anything important, but moderate House Republicans won a victory yesterday, taking a stand against the House leadership. In addition to blocking deep cuts in programs that help not-rich people, they blocked ANWR drilling. Although you might be tempted to thank them, don’t. They’re still the cowards they were before – it’s just that their fear of defeat suddenly trumped their fear of Denny Hastert’s retribution. So don’t thank them – thank Tim Kaine.

There is one way – and only one way – to change bad political behavior. Win. Nothing else matters – politically speaking. Politicians will change their behavior when they think that behavior will cause them to get beat. And not one second before. You can’t depend on morality, you can’t depend on reason. You can depend only on the fear of political death to change things. It is the first rule of politics.

Applying that lesson to Kaine’s victory, one of the great side benefits is that it will put the fear of political death in the minds of many Republicans looking on warily from across the Potomac (especially moderate ones in potentially vulnerable districts). Magically, when the prospect of defeat suddenly materialized on the cover of the Post yesterday, moderate Republicans suddenly grew a backbone – and if Bush’s approval keeps dropping, things could start getting really ugly at the GOP caucus lunches.

Not to get too sappy here, but Kaine’s victory (and its aftershocks on the Hill) reminds me that we are fortunate to live under a system of government where you can vote people out of office. When you think about it, that’s really the only protection we have against government corruption. For instance, the House leadership (of either party) has a lot of power to make the rank-and-file do things they don’t really want to do – and to do things that are bad for the country. They can threaten to change locally-helpful legislation, to rob members of committee placements, and to deny them access to party resources. But they can’t force them to commit political suicide. It’s the one line that politicians – understandably – won’t cross. If politicians think that supporting a measure will get them beat at home, no amount of arm-twisting can change their mind.

The vote is the best – and only, really – guardian we have against the natural tendency of power to grow corrupt (a favorite theme of Tolkien). It happened to the Democrats in the past. Now it’s happening to the GOP. And the GOP, finally, is starting to internalize the costs of its bad behavior in the form of political defeat (which is the only cost that matters to politicians).

The problem Democrats were having was that they couldn’t make political death a credible threat – it just didn’t seem real to elected GOP officials. For the past two cycles, no matter how bad the policies seemed to be, Democrats kept losing – and Republicans kept winning. So individual officials kept going along with the leadership. And while I suspect there were many moderate (and conservative) Republicans in the Senate and House who disagreed with the leadership, they had no incentive to break ranks. Their constituents didn’t seem to care, so why risk their committee assignment? Why risk losing a high-profile visit from Bush during the campaign? Sure, they kept hearing rumors that people disapproved of the way things were going, but no Republican ever seemed to lose. Even Hackett lost – so people slowly forgot about him and the warning bell he symbolized.

Kaine changed that because he won. And winning solves most problems. Most importantly, Kaine made political death a tangible, living, breathing reality. Despite its trends, Virginia is still a conservative state. In fact, many elected House GOP members come from districts far less conservative than Virginia (taking the state as a whole). What’s worse for moderate Republicans is that Kilgore lost – in part – because of the backlash from his too-polarizing culture war tactics. If that weren’t enough, House Republicans are looking around and seeing an unpopular President, high gas prices, an unpopular war, and looming opposition ads demagoguing Social Security and Terry Schiavo and torture. It’s not a pleasant prospect.

Before the election, Ron Suskind quoted Bruce Bartlett as saying that the day after Bush won, there would be a civil war within the Republican Party. Even though we may be witnessing a civil war, I still think Bartlett got it backwards. Victory has a way of keeping unhappy troops in line – it’s defeat that causes civil wars. Defeat has a way of causing everyone to turn their knives on each other. And if Bush hadn’t started his term with Social Security “reform,” I think things would be very different today. The issue wedged the GOP and unified the Democrats – and that defeat colored everything bad that followed.

Because of Social Security and other high-profile negative issues, the pressure was already growing on elected officials to distance themselves from Bush and the national leadership. But that pressure was kept in check by political victory. No more. Political death is now real. As Novak said, the motto is now “every man for himself” on the Hill.

With Kaine’s victory, the game has suddenly and completely changed. Chaos is coming to the Hill – and not a moment too soon.

Pass the popcorn.

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A good night for Virginia. I don’t have one overarching point to make, so here are a list of observations in no particular order.

The Budget is Safe

What was really at stake tonight was the fiscal health of the state. That’s 99.99% of why I wanted Kaine to win. I was in Charlottesville during the budget meltdown and saw the effects of the modern Republican Party’s tax-cut-and-spend policies up close. If Kilgore had won, it would have been deja vu all over again. The legislature would have passed a budget-wrecking tax cut coupled with spending increases and Kilgore would have signed it.

I really don’t mean this to be snarky. I haven’t seen Republican leadership on any level be fiscally responsible lately. It’s all tax-cut-and-spend – and it’s logically incoherent. It’s also morally irresponsible to load up our children with these deficits. Until the party shows (empirically) that it is capable of running a budget, I think it has forfeited the public trust it once enjoyed on fiscal matters.

Polarization Loses

The other absolutely great thing about tonight’s results is not so much that Kilgore lost, but that the type of campaign he ran was unsuccessful. While Kaine ran a more sunny “keep moving forward” type campaign, Kilgore ripped a page out of the Nixon-Atwater-Rove playbook and tried to polarize the electorate by demagoging cultural issues like the death penalty and illegal immigration.

There’s only one way to get people to stop running campaigns that appeal to people’s base fears and emotions – and that’s to beat them when they do it. You can cry all day about how mean it is, but if it's successful, it will continue. To borrow from natural selection (students in Kansas – please close your eyes), cultural polarization has proved to be a successful strategy in getting your genes passed on to the next generation so to speak. Accordingly, it will be used until those who use it feel pain at the ballot box. Kilgore’s over-the-top death penalty ad probably sealed his fate. The price he paid for it – and nothing else – will make Virginia politicians think twice about the culture wars next time around.

[And the defeat of hate-monger Craddock reinforces this point.]

Grover’s Over

Speaking of Craddock, with his defeat, it’s now official – not a single one of Grover’s “insurgents” won public office. Only one made it past the primary (Craddock) and he got beat soundly in the general election. Because Grover failed, fiscally-sane Republican politicians will not have rational incentives to avoid fiscal responsibility.

The Rise of Progressive Faith

As I explained here in more detail, the thing that most impressed me about Kaine was that he didn’t run from the culture war attacks. He met them head-on – and he met them with faith. Usually, Democrats flop and flounder when talking about the death penalty. Kaine didn’t. He ran an ad in a conservative state saying flatly that he opposed the death penalty because of his religious views (though he would enforce it). I’ve written about this a million times, so I won’t belabor the point. But Democrats should not cede the values battle to the GOP – especially when so many of their policies are rooted in a philosophy more consistent with religious ethics. And that’s especially true when the party’s Vice-President is advocating the legalization of human torture.

Demographics

This election also provides some support for the view that Virginia is trending Blue. One of the big reasons is the population growth in Northern Virginia. As I noted below, Kaine won Fairfax by over 20 points. Warner won by 9. In Loudoun, Kaine won by 6. Earley beat Warner here by 7 in 2001. (Loudoun is the fastest growing county in the nation.) And Kilgore just got destroyed - absolutely destroyed - in Arlington and Alexandria (50+ points in each). And the population growth in these areas isn’t slowing.

Critically, a lot of the people moving in are so-called “knowledge workers,” who tend to vote Democratic. In the decades to come, I think that these same trends will eventually turn North Carolina, Texas, and Georgia Blue. These three states have a lot of cities, a lot of education/research centers, a lot of minorities, and a lot of knowledge workers. Democrats have already captured the most economically and culturally vibrant parts of the South (Atlanta, Research Triangle, Austin, NOVA, etc.). It’s just a matter of time before these parts of the state (coupled with minority population increases) grow enough to tip the balance back to the Dems. The more economically stagnant states (e.g., Alabama) are never coming back.

Growing the Farm Team

As Mark Schmitt astutely noted, the reason it’s so important to win governors’ races is that governors are where future Senators and Presidents come from. Warner, for instance, would be a strong candidate for ‘08, and an even stronger Senate candidate when Warner-the-elder retires. Obviously, I won’t say that Kaine is now a presidential candidate, but the probability of him being a credible candidate increased dramatically tonight. And he’s certainly going to be a formidable candidate for Senate one day.

This is why Dean’s 50-state strategy is so important. Building the farm team is essential for future success – and it takes time to get there. Presidents and Senators were once governors. Governors were once mayors. Mayors were once city councilmen. And so on. When you win state and local races, you’re making future victories on up the chain more likely. The GOP understood this long ago - and they're currently reaping the fruits of their generation-long effort.

The Implications for ‘06

I have no idea whether this has any implications for ‘06 or not - probably "not." Warner won in ‘01 and we all remember how that turned out. But even if we can’t say with confidence that tonight was a bad sign for the GOP, it’s certainly not a good one either - especially considering that Bush put some capital on the line. The combination of Hackett and Kaine (and to a lesser extent, Corzine) would make me a bit uneasy if I were an elected GOP official in a potentially vulnerable district. But if Democrats have taught us nothing these past five years, it’s that they have an uncanny ability to snatch defeat from the jaws of victory.

But not tonight - tonight they spared us.

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In light of the trauma caused by Mongiardo and Hackett, I'm not going to get my hopes up until it's over. On an aside, I really hope that Craddock loses tonight.

You can follow all the results here.

[UPDATE: Kaine wins. So this is what winning feels like. I had forgotten. I'll have more to say later tonight - this is very good news. The budget is safe.]

[UPDATE 2: And it looks like nutjob Craddock is going down too.]

[UPDATE 3: Tip to political candidates - when a person with a 60% disapproval offers to help, politely decline.]

[UPDATE 4: The big story here is Northern Virginia. The local news is saying that Kaine is winning suburb/exurb Fairfax County by 20+ points. Warner won by 9. And it just gets worse as you move east toward DC. Virginia is trending blue, largely because of the population explosion in NOVA.]

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According to Drudge (always a shaky way to start), Frist and Hastert are going to announce an investigation not into our mini-gulag in Eastern Europe, but into the leak of the black sites to the Post.

This is EXACTLY why the Espionage Act should be read in the way that I read it. By roping Libby within its scope, you give the government a perfect weapon to punish all unfavorable reporting on national security issues. Inevitably, people will abuse the power - because that's what people tend to do. An expansive reading of the Espionage Act will remove a check to corrupt and illegal practices - which is precisely what Frist and Hastert (surely at the direction of others) are trying to do.

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For Kaine.

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Although they’re not getting a lot of attention here yet, I think the French riots are an extremely significant event – and one the world (and especially Europe) should be paying close attention to. They may well be the initial tremors of a larger political and cultural seismic quake to come.

In watching from afar, I’m wondering whether the French riots undermine the theory behind neocon democracy promotion. After all, France is a democracy and one that allows (at least some) Muslims to vote. So why hasn’t democracy removed the alienation and desperation (both material and ideological) of young French Muslims?

It’s an interesting question, but I don’t think it undermines the case for democracy. In general, I share the neocons’ goals – I just uber-strongly disagree with their means. To me, the French riots don’t disprove the theory of democracy promotion, they just show that French democracy has a ways to go.

But before I get to that, it’s important to note that there are two distinct aspects of the French riots: (1) that people are rioting; and (2) the way that people are rioting. One has nothing to do with the theory of democracy promotion, the other has everything to do with it.

An example from America’s urban riots in the 60s will explain what I mean. As you know (and maybe some of you lived through it), there was a great deal of urban unrest (generally African-American) in the late 60s. The worst riots happened in places like Detroit, Watts, Chicago, and Newark. Oddly enough, the South – the land of formal discrimination – was spared from the urban chaos. They weren’t spared from mass protests, but protests in places like Selma and Birmingham shared nothing with the anarchy of Detroit.

The reason is that Southern blacks were organized politically – largely through Southern black churches and their regional networks. Their outrage was thus channeled into a political organization that expressed its grievances more peacefully and more productively.

This is precisely what we’re trying to do in Iraq. In fact, it’s precisely the goal of a political system more generally. That goal is to channel and transfer mankind’s inherent violence and aggression (especially in a state of scarce resources) into a forum where it can be expressed in a more peaceful way. I’ve said this before, but it’s worth saying again. War is not politics by other means – politics is war by other (safer) means.

Getting back to the 60s, it’s worth noting that Southern blacks – just like Detroit’s blacks – felt the same outrage and both took to the streets in frustration. But even though both “rioted,” they rioted in fundamentally different ways. In one instance, the political organization defused the crowd’s violent tendencies, whereas in the other, it did not.

I think you can consider this Southern political organization as a mini-example of the benefits of democracy promotion in that it shows the benefit of providing a legitimate political outlet for alienation. The political organization didn’t stop people from rioting, it simply affected the way they rioted (yes, “riot” implies chaos, but you know what I mean). That’s what I was getting at above. While promoting democracy isn’t enough to redress grievances (i.e., stop the riots), it does establish a better way for people to go about seeking redress for their grievances (i.e., more peaceful “riots”).

To get people to stop rioting, you need more than democracy (as the French and American riots have shown). You have to give people a stake in the future – you have to “connect” them to the global economy, as Barnett might say. In America, we still haven’t done enough to “connect” urban blacks, but we’re making progress. For instance, after Katrina, I was afraid that a wave of urban unrest might follow. But it didn’t. And the reason it didn’t is that America, with fits and starts, has made major progress in connecting blacks to the economy.

What we are seeing today – rising black middle class, increased number of black entrepreneurs, a new generation of young, non-Sharpton political and community leaders – is a testament both to the individual achievements of the black community and to the policies such as affirmative action, federal education grants, and other programs that have done what the unfettered free market could not do – remedy centuries of state-sanctioned discrimination. A color-blind society is a worthy goal, but also an immoral one while the consequences of state-sanctioned discrimination remain so obvious. Katrina should cause us to redouble our efforts on this front, but we’ve come a long way since the 60s. Dubya is no Goldwater on issues of race (or on anything else, really).

Getting back to France, there are actually two problems facing the French government: (1) the fact that young Muslims are rioting; and (2) the fact that they’re rioting violently. The first one is easy to explain. Like American blacks, French Muslims face high unemployment, high poverty, and discrimination on all levels. Unlike American blacks, the French refuse to take steps to fix it. Affirmative action is a taboo there – everyone must be “French” under the great theory of the republic. The refusal of public programs to recognize different ethnicities simply allows entrenched structural discrimination to continue – just like it did here in America before the federal government intervened. On the ideological front, the French also take active steps to suppress community and diversity through stupid measures like banning head scarves in school. In a sense, they are now reaping what they sowed – just like America did in the late 60s.

But the fact that French Muslims are rioting doesn’t explain why they are rioting the way that they are – that is, violently. This is where my knowledge of France stops, so please correct me if I’m wrong. But it seems that French Muslims have very little in the way of political organization – or any organization at all for that matter. It seems there is an organizational void there – and one that will eventually be filled by something stable such as Islamic fundamentalism. What is needed is something to fill the void – a political party, increased suffrage, something.

This is where the whole “hearts and minds” things come in – America would like to fill that void with an alternative, hopeful vision. It’s hard to do that, though, when that vision gets crowded out by images of hooded men with sticks up their ass and a Vice President fighting for the right to torture human beings.

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I need your help. I remember some months back that a general (or some military official) wrote a book about terrorism and globalization. One of his themes was to divide the parts of the world who are invested in the global economy from those who aren't. For the life of me, I can't remember enough specifics for a proper Google search. I've blogged about him, but Google went and screwed up the search function, so I can't find it anymore (though I can't complain given the rent they charge me). Anyone? Please comment below if you know. (This is for a post on the French riots).

[UPDATE: Got it - Barnett, The Pentagon's New Map. Thanks to commenter Greg.]

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I won’t pretend to be an expert on Wal-Mart and its treatment of it workers. But there is one argument I keep hearing from Wal-Mart advocates that I think needs to be addressed – namely, that lower prices are sufficient to justify the company’s actions. As we lawyers like to say, that argument is relevant, but not dispositive.

The context for this begins with Wal-Mart’s recently-leaked internal memo that revealed that 46% of the children of Wal-Mart’s employees are either uninsured or on Medicaid. That’s 46% of the children of approximately 1.3 million workers in the U.S. That’s a lot of children. The memo apparently included this stat because Wal-Mart was discussing ways to further cut benefits costs (an indictment as much of our health care system as of Wal-Mart), but feared the bad PR.

Fast-forward to last Friday. Wal-Mart sponsored an economic conference relating to the impact of the company on the American economy. One study from a group hired by Wal-Mart found – surprise, surprise – that Wal-Mart had a very beneficial effect on the American economy. (Unlike Bush’s economic forums, dissenting voices were allowed to speak though). The consulting group explained that Wal-Mart increased productivity and kept inflation in check by keeping prices low. Critics focused less on the low prices than on the depressed wages and increased Medicaid costs caused by the company’s employment practices.

This is the classic Wal-Mart debate. Someone accuses Wal-Mart of being stingy with wages and benefits, and Wal-Mart (and pro-Wal-Mart advocates) respond by citing the positive effects of lower prices and increased customer purchasing power. Incidentally, this is the same sort of debate that accompanies outsourcing. Critics complain about lost jobs and depressed wages, and advocates respond with arguments about lower prices and increased efficiencies.

Don’t get me wrong – lower prices are a good thing, especially for poorer people. And it’s an argument that can’t be dismissed lightly. My point, though, is that citing lower prices alone is never sufficient to win the debate. As I said, it’s relevant, but never dispositive. That’s because there is a limit to what we will accept (morally) in exchange for low prices. So, whenever you hear that a practice lowers prices, there is always a necessary follow-up question – At what cost? [And remember that "costs" come in many varieties - e.g., moral costs].

For instance, let’s say that China (or Wal-Mart) used slave labor to make its clothes. The clothes would certainly be cheap, but we wouldn't accept them because the low cost was a direct result of morally reprehensible slavery. In this case, low prices would not justify the practice.

Slavery is of course an extreme example. In reality, questionable employment practices exist along a spectrum. While we can all agree on rejecting low prices caused by slavery, surely that is not the only place to draw the line. For instance, what about low prices caused by child labor? By 7-day, 14-hour workweeks? By practices that release mercury into the ocean? And so on.

It becomes a question of line-drawing – and it’s often a very difficult one. But the bigger point is that economic practices cannot be justified by price alone. To justify employment practices, a company must convince me that the practices: (1) lower prices; and (2) do so as the result of practices that don’t “cross the line,” morally speaking.

The question, then, is whether Wal-Mart’s current practices (which admittedly create both low prices and the benefits of low prices) cross the line. Put another way, are we paying too much for Wal-Mart’s lower prices? That’s a tough question and one I’ll leave for the comments. But I will say this – when half of your workers’ children are uninsured or on Medicaid, I’d say you’re getting pretty damn close to the line of moral unacceptability. And I suspect (or at least would hope) many social conservatives would agree with me.

[On a final note, it’s not necessarily “moral” costs that matter. You could also argue that Wal-Mart should do more from a purely utilitarian perspective. For instance, increasing benefits would lower public Medicaid spending, just as increasing wages might spur macroeconomic growth, and so on.]

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In reading the NYT's story on al-Libi, its seems that the real scandal is not so much the use of al-Libi's Iraq tales, but the suppressing of the internal dissent about his testimony. Obviously, I don't know for sure, but I suspect Bush and Powell never heard a peep about the February 2002 report.

And that leads to a larger point. Maybe this is obvious, but when it's all said and done, I think we'll see that the WMD scandal was more about covering things up than disseminating knowingly false information. For instance, I don't think Bush and Powell were sitting around saying, "This is false, but we'll say it anyway." My unsubstantiated hunch is that information inconsistent with the claims was withheld from many top administration officials (and certainly from Congress).

So, if this theory tends to exculpate Bush and Powell, it also suggests that someone committed a very serious, national-security-related crime in withholding and suppressing contrary evidence. And that someone is most likely Cheney and his office. Again, we'll have to see how everything shakes out. But my guess is that Cheney and Pals essentially created a bottleneck in the flow of intelligence information from analyst to the Oval Office. I would also guess that crucial information was removed, suppressed, and withheld at this particular juncture in the chain. If true, Cheney's statements become even more problematic because he was more likely to know about the dissenting information.

In short, the real question is why the February 2002 dissent never got to Powell and Bush. If you can answer that question, I suspect you'll be able to answer a lot of other questions.

Again, it's the suppression and failure to disclose contrary information that represents the heart of this scandal. Someone did it - and eventually we'll find out who. It's just a matter of when. Let's just hope they're still accountable when we do.

[UPDATE: Of course, the other potentially-criminal "bottleneck" was Feith's office, which I consider to be a wing of Cheney's. In fact, the Cheney-Rumsfeld-Feith "cabal" should probably be considered a single entity for these purposes. My guess is that's where the criminality is concentrated. From the Post:

Levin said he first obtained the DIA document as part of his continuing investigation as an Armed Services panel member into intelligence activities that took place within the office of Undersecretary of Defense Douglas J. Feith after the Sept. 11, 2001, terrorist attacks. Feith's Office of Special Plans undertook a review and analyses of prewar al Qaeda intelligence.

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I'm not sure how historians will remember the Bush administration (the institution, that is). But after reading posts like this and this, it's becoming clear how they will remember Bush-as-individual-President. As time goes on and information trickles out, it's becoming more clear that the major decisions of national security were delegated to (or assumed by) Dick Cheney and his office. In other words, on matters of war and peace, Dick Cheney was essentially our president.

It is Cheney who pushed hardest for the war. It is Cheney (and his office) most responsible for WMD distortions (see, e.g., Powell's "draft" UN speech). It is Cheney who was responsible for authorizing torture. And it is Cheney who is taking the lead in blocking investigations and lobbying against bans on torture.

Where is Bush in all this? As we learn more, you get the sense that he was little more than a politically-appealing figurehead without the knowledge, experience, or curiosity to make national security decisions. So Cheney did. Bush simply marketed the decisions that Cheney was making. And Col. Wilkerson suspects that Cheney even cut Bush out of the loop sometimes:

Wilkerson also told National Public Radio that Cheney's office ran an "alternate national security staff" that spied on and undermined the president's formal National Security Council.

He said National Security Council staff stopped sending e-mails when they found out Cheney's staff members were reading their messages.

He said he believed that Cheney's staff prevented Bush from seeing a National Security Council memo arguing strongly that the United States needed many more troops for the March 2003 invasion and occupation of Iraq.

Billmon has been calling this the Cheney administration for some time. He may be more right than I realized.

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Matthew Yglesias:

Robert Samuelson dissects the GOP's bogus new interest in deficit reduction. But then, of course, it wouldn't be a Washington Post column if it couldn't find the Democrats to be just as bad.

Matthew Yglesias (some point later):

My colleague and regular Washington Post columnist Harold Meyerson took exception to yesterday's assertion that "it wouldn't be a Washington Post column if it couldn't find the Democrats to be just as bad" . . . But you can always count on the unsigned editorials to deliver.

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The Great Scales of Objectivity

I was walking in the woods the other day when a strange thing happened to me. I was hiking alone deep within an Appalachian forest. Some locals had warned me that the forest was enchanted, but I didn’t believe them. I marched right in - and I strayed from the path. Eventually, I came upon a bubbling mountain stream and sat down on one of the small boulders on its bank. I sat back, closed my eyes, and listened the soft gargling of the stream and muttered to myself something negative about Bush.

At the precise moment I finished speaking negatively about Bush, a great wind descended upon the forest and all the trees rattled and rustled their leaves. For a moment, I even thought I heard voices and the grinding of metal echoing in the distance. It was kind of scary, so I decided it was time to head home.

As soon as I stood up, the stream started bubbling more intensely, forming a white foam on its surface. Up from the foam of the waves, a giant seashell emerged with David Broder on it – naked – with ivy wrapped around his head.

“Greetings, blogging wanderer, I have come to reveal my wisdom to you.”

“Why are you naked?”

“Follow me.”

And so I followed naked David Broder deeper within the enchanted forest. We eventually stopped in front of a large boulder. Broder knocked carefully, twice on the left, twice on the right – and a magic door suddenly materialized on the surface of the stone. “Follow me.”

When I entered the door, a new realm opened up before me. It looked like a cross between heaven and Oz when Dorothy stepped out of her house. Bright colors. The bass line of “Money” by Pink Floyd. Golden roads. Pearly gates. Music. Harps played by beautiful winged women with flowing locks of hair. Singing flowers. Soft warm aromas. I had entered a realm of balance and bliss and calm and peacefulness. I felt a spiritual warmth grow inside me. Surely this was heaven I thought.

“What is this place, naked David Broder?”

“This is the Washington Post editorial board room. Everything is in balance. All is in harmony with the universe.”

But just then, the peaceful musical bliss was interrupted by a voice echoing across the sky. It said:

Bush’s Social Security plan is a bad one. . . bad one . . . (echoing)

Suddenly, I heard a terrible grinding of metal. It sounded like a car was being crushed and digested by a trash compactor. At first, I couldn’t tell where the awful screeching and grinding was coming from, but then I saw. To my amazement, I looked up and saw a massive set of scales – the type of scales that statues of blinded women outside courthouses hold. And the set of scales was huge – probably the size of an urban skyscraper. When the voice in the sky spoke, the scales had started moving, causing the screeching sound. Then I heard another voice coming from somewhere close. It was equally loud:

The Democrats have no plan. They are equally to blame. (echoing)

With that, the scales stopped moving and returned to a state of balance. Long-haired women resumed their music. Children laughed again. All was calm in the Washington Post editorial board room.

“What was that, naked David Broder?”

“This is why I have brought you here – to reveal my wisdom and our burden. You see, we here in the Washington Post editorial room are the guardians of the Great Scales of Objectivity. They must remain balanced at all times. Equally balanced.”

“Or what?”

“Or everyone’s head will explode.”

“You're saying that the only thing keeping my head from exploding are Post editorials?”

“And op-eds too. You have criticized the Post, but you have not understood our burden. Each time someone says something negative about Republicans, it tips the Great Scales. To ensure the Great Scales remain balanced, we must say something equally bad about Democrats. You see, Republicans and Democrats are morally equal in every way. They are equally right and equally wrong – on all things. This truth is woven into the fabric of the universe. To ignore it would cause the universe to unravel – ”

“Which would cause my head to explode?”

“Precisely. The human brain is incapable of recognizing moral or empirical differences between the parties.”

Bush caused excessive deficits. (echoing)

Broder was again interrupted by the screeching metal. Immediately, the forces of the Washington Post editorial board put down their harps and lyres and rushed over to a massive megaphone to counter this charge. In unison, they cried into the megaphone:

But Democrats are equally to blame. (echoing)

And the Great Scales became balanced again and Broder returned.

“Naked David Broder,” I asked, “where do these voices come from?”

“Everywhere,” he replied from his hovering seashell, “every time someone says something negative about a Republican, that statement is transported to the realm of the Great Scales. Without us, the scales would become unbalanced, forcing people to see differences between the parties. This would cause their heads to explode. The Great Scales, you see, must –”

Bush lied about WMDs (echoing)

Once again, the process on the ground resumed and I heard in response:

Bill Clinton. (echoing)

And the Great Scales balanced again.

“Why did they say Bill Clinton?” I asked. “And why is that all they said?”

“Because the invocation of his name equalizes all critiques. It doesn’t matter what Republicans do, the invocation of Bill Clinton makes everything equal again. He is critical to the balance that keeps the universe from unraveling.”

And then naked David Broder took me by the hand and led me back out to the forest.

“No blogger,” he explained, “has ever seen the Great Scales but you. You must tell the world of our burden. You must convince them to always treat both parties equally in all things. There can be no differences between them. You must make them understand that. Otherwise, the Great Scales may become unbalanced.”

"I will, David Broder, I will tell the world what I saw today."

Now you know. (Bell Biv DeVoe)

__________

So I'm watching Seinfeld tonight and saw a new Kilgore ad air during the break. It's truly a piece of work. Kilgore is promising to expand I-66, but to do so only with "surplus" dollars instead of "tax increases." It's times like these when I realize that many Republican consultants must truly believe that the American people are slobbering idiots.

First, the "surplus" came from a targeted tax increase that Kilgore bitterly opposed. What's even more ridiculous is that Kilgore has used the tax increase as one of his central attacks against Kaine. Then, he turns around and says that he's more fiscally responsible because he would only go on a spending spree with the "surplus" as if it had just magically appeared one day like manna from the sky.

The truth is that Virginia's budget was in shambles until a Democratic executive and a bipartisan coalition of Democrats and fiscally-sane Republicans had the political courage to get their house in order. Although Kilgore opposed these efforts and continues to pound Kaine for it, he is more than happy to promise away the fruits of other people's political courage.

This little episode provides support for Howard Dean's claim that you can't trust Republicans with your money. Again and again, they have shown that they are incapable of fiscal discipline and that they lack the political courage to properly fund the programs they so happily promise and put on the Future Generations Visa Platinum card. This is not a subjective gripe - it's an empirical fact. Maybe McCain can reshape the party in 2008, but right now, the Republican Party is fiscally incoherent and undeserving of control over public funds.

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I'm busy with work tonight, but I did want to respond quickly to this growing chorus of WMD citations from Clinton and others on the issue of Bush and Iraq's WMDs. The argument here is that Bush's mistake in talking about the WMDs was an honest one because it was shared by many respected leaders and analysts on the other side of the aisle.

No, no, no, no.

There are two different - and conceptually distinct - questions here. The first is whether it was reasonable to assume that Saddam had WMDs. Personally, I believe that it was. That doesn't necessarily mean that war was the best option for dealing with them, but I readily concede that the belief was at least reasonable.

But that's completely different from the question of whether Bush and others intentionally lied to, or misled, the public about the specific WMD information they had gathered and had reviewed. What Clinton said has exactly ZERO relevance to this question.

For instance, let's say the raging issue before us is whether smoking causes cancer. If we discover that a tobacco executive clearly lied about a study his company had conducted in order to sell cigarettes, it doesn't really matter whether many respected scientists in the past had expressed their view that cigarettes don't cause cancer. That's completely irrelevant.

So just to be clear, the real question was whether there was intentional deception in light of the specific information in front of them. What Clinton said has no relevance to that question.

And I like the Moose and all, but this is not a question that we need to simply "get over." This is war. And a lot of people have died. In light of the questions raised so far, I think the American people (and certainly military families) have a right to know whether their administration was telling the truth.

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One of the big questions on people’s minds is whether Alito is “too conservative.” But what does that mean exactly? The word “conservative” has become so internally incoherent that different people could be invoking it to describe very different concepts.

In the legal context, I believe that a nominee can be “too conservative” in at least three different senses: (1) she subscribes to the king-in-wartime theory; (2) she’s a bible thumper; or (3) she’s hostile to the New Deal (which includes opposition to the administrative state and federal health/environmental/discrimination statutes). What’s interesting is that these positions are, logically speaking, in tension with each other. For instance, #1 and #3 don’t fit that well under the same conceptual tent. And #2 doesn’t necessarily have a logical relation with either.

As far as which one is the worst, that’s a tough call. I have a more visceral reaction to #2, but those conservatives are probably the least harmful given the politics of America (which are still, relatively speaking, secular). I think that #3 is the worst from a consequentialist point of view. While allowing or removing “under God” in a classroom doesn’t really matter in the grand scheme of things, striking down the EPA or Social Security does. The #3 conservatives have the most potential to really screw up the country – and the global economy for that matter. But of them all, #1 is the most morally abhorrent, even if the consequences are more limited. Despite Herr Yoo’s clever theories, the king-in-wartime theory contradicts the entire history and structure of Western law – not to mention every major religion as well. In fact, the history of Western law and legal thought has been rooted in the effort to restrain the executive peacefully.

So, when you hear that someone is “too conservative,” the key question is determining what year that person wants to send America back to. For the #3 conservatives, it’s 1932. For the #2 conservatives, it’s pre-Enlightenment. For the #1 conservatives, it’s pre-Magna Carta. So take your pick – 1932, 1600, or 1214.

But a “too conservative” conservative doesn’t have to be limited to one number. They can mix and match. For instance, under this framework, Thomas is “too conservative” because of #1 and #3. Scalia is “too conservative” because of #2 and #3, but not #1 (which he rightly rejects). The question, then, is where Alito fits in.

It’s hard to say on #1. As far as I know, he hasn’t ruled on any of the war-on-terror cases and so it’s not clear that he’ll defer to executive authority in the same way that Roberts has and most certainly will again. However, I think that a nominee’s decisions relating to constitutional criminal protections are a good proxy for the king-in-wartime theory. In other words, someone who (like Thomas and Luttig, and unlike Scalia) rules against criminals 100% of the time is more likely to subscribe to the king-in-wartime theory (like Thomas and Luttig did, but Scalia did not). Based on what I've read so far, Alito doesn’t seem very protective of criminal rights, but I haven’t surveyed his opinions or anything so I can’t speak to this with any confidence.

On #2, he seems ok. Being religious is fine – “bible thumping” is something completely different. Alito hasn’t publicly (from what I can tell) beat the religion drum the way Dobson or, to a lesser extent, Scalia has.

Alito’s problem is #3. I’ll say more about Sunstein’s Post op-ed tomorrow hopefully, but he argued persuasively that Alito has consistently read civil rights protections (both constitutional and statutory) very narrowly. In addition, Alito (quite ominously to me) ruled that Congress couldn’t ban machine gun possession under the commerce clause. It’s one thing to say that the 2nd Amendment prohibits it, but quite another to say Congress lacks the power to do so. [UPDATE: When I wrote this, I actually included a parenthetical saying I hadn't read the case, so it's subject to learning more - then I deleted it. As commenters point out, Alito's beef seemed to be with the lack of a jurisdictional hook - so this opinion isn't as troubling as I initially represented.]

As the process continues, my prediction is that the real problem with Alito is going to be #3, and perhaps #1 depending on what we learn about his criminal decisions. With Roberts, it was precisely the opposite. I think his problem was most clearly #1, and to a lesser extent #3.

Finally, you might ask where being abrasive fits into all this. It’s not a category itself because it’s not really related to any idea. It’s more like a universal exacerbator that can apply across the board. For instance, Luttig’s #1 problem becomes more intense because he’s so abrasive. Same deal with Scalia’s #2 problem. (Huh, huh, huh “#2 problem”).