Legal Fiction

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Mark Levin, NRO:

Congress and the Court are systematically stripping the presidency of war-making powers. Congress demands that the president get court approval before intercepting enemy communications (we call that intelligence gathering) and the Court demands that the president get statutory support from Congress before he can use military tribunals to try terrorists.

And yet, neither Congress nor the Supreme Court have any explicit constitutional authority to make these decisions.

United States Constitution, Article I, Section 8:

The Congress shall have power . . .

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To make rules for the government and regulation of the land and naval forces;

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I thought I had a great insight about Hamdan, only to see that some legal amateur named Jack Balkin "stole" my idea by publishing "my" thoughts before I could. Seriously though, I think he couldn't be more right that Hamdan should be read as a "democracy-forcing" opinion (and he says it better than I could have anyway).

I'm too busy with work right now to give this issue justice, but I have a lot to say about this aspect of Hamdan. In particular, I think Hamdan is very consistent with the sort of process-theory, legislatively-focused jurisprudence that I talk about here a lot and that I want to be the Great Liberal Legal Narrative. Hamdan is very consistent with this emphasis on process because of its, ironically enough, humility.

I read Hamdan not as a civil liberties case, but as an allocation-of-institutional-authority case. But most impressively, the Court’s opinion didn’t shift power to itself, but to Congress. For a whole host of reasons that I’ll explain in detail, I think this is a very good development. If America want to nullify the Geneva Convention, then by God let's force our noble Congress to stand up and cast a vote publicly against one of the greatest collective agreements of human history. Let's have this debate out in the open rather than in David Addington's office.

Anwyay, I'll have a lot more to say about this later (and in a more organized way).

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Well, just when I thought the Court couldn't get any dumber, they go and do something like this - and totally redeem themselves! (movie reference).

Seriously, I'll need to read over it, but the Court found that the military commissions were illegal. This case is probably orders of magnitude more important than anything else the Court did this term (and maybe this decade other than Bush v. Gore). I'm tempted to start ripping on the dissenters (the anti-liberals), but I need to wait to read the opinion. More later.

[UPDATE: Marty Lederman stops short of saying it, but if he's right about the Court finding that Common Article III of the Geneva Convention applies to the war with non-signatories like al Qaeda, then Donald Rumsfeld (among others) is flatly guilty of war crimes for torture (among other things).

I also wonder if there will be calls to ignore the Court's ruling. Knowing the players involved, I'd say we have about a 5% chance of a constitutional crisis on our hands with this, particularly if the administration continues with the "interrogation techniques" that it unilaterally deemed to be outside of the McCain amendment.]

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I highly recommend the 132-page Texas redistricting case. Here's the syllabus:

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II–A and III, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with respect to Parts I and IV, in which Roberts, C. J., and Alito, J., joined, an opinion with respect to Parts II–B and II–C, and an opinion with respect to Part II–D, in which Souter and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Roberts, C. J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Alito, J., joined. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined, and in which Roberts, C. J., and Alito, J., joined as to Part III.

This is exactly what I was talking about here. We should march this opinion back to the Court and say "try again."

But alas, this is a really important case, so I'm going to try to slog through it when my Little Orphan Annie Decoder Ring arrives in the mail.

The Court also released a second opinion today:

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I’m not sure what else to say about the latest Howl regarding the NYT story. It pretty much speaks for itself. And it’s certainly provided a disturbing glimpse of what the hyper-nationalist wing of the conservative coalition is capable of. Hopefully, it will give some conservatives pause about their fellow coalition members. But aside from all that, I think the real lesson to be learned here is that the greatest threat to our nation is not so much the nationalist blogosphere’s assault on democracy, but David Broder, Tim Russert, and Marshall Wittman.

I’m pretty much riffing off of a point made by Eric Martin, Atrios, and Yglesias (among others), but it’s an important one. The two parties are not equally bad. Similarly, the two “teams” of pundits nominally aligned with each party are not equally extreme or unhinged or whatever your favorite description of the blogosphere may be. One side is (currently at least) far, far worse and events like the recent “blogswarm for treason” should make people recognize that.

Of course, I know that conservatives are probably chuckling to themselves now — not much I can do about that. If you haven’t been persuaded by recent history, then nothing I can say today will change your mind. But I would at least ask you to look around and take stock of what we’ve seen this week. This goes above and beyond your everyday political disagreements and gets at something more fundamental — and something conservatives used to be very concerned about.

What we’re actually seeing is an assault on little-l liberalism — the liberalism of the Enlightenment and of our Constitution and of the CATO Institute. As I've explained before, the core of liberalism is the idea that individuals (by virtue of being humans and having dignity) have a sphere of freedom that should be free from government intrusion. Logically following from this bedrock foundation are the other fundamental rights we know and love such as freedom of religion, democratic voting, rule-by-consent, rule of law, right to property, civil liberties, sexual freedom, and so on. All are rooted in the idea of individual freedom or individual consent.

Thus, one of the unifying characteristics of anti-liberalism (e.g., Marxism, religious fundamentalism, fascism) is skepticism and ultimately elimination of this sphere of freedom. To Marxists, the sphere of freedom (and the laws based upon it) facilitates inequality and gives the rich an “ideology” that allows them to protect their property. To religious fundamentalists, individual freedom runs counter to God’s will and must be subordinated to it. Fascism, by contrast, is a religious-like fundamentalism rooted not in God but the state, which essentially takes the place of God. Fascism thus subordinates individual and civil rights to the state, which is a glorified collective and deified entity superior to all other Gods before me nations, rather than a mechanism for protecting individual rights.

To be clear, I’m not accusing the entire American Right of being fundamentalist or fascist or any of the other labels that serve only to distract people from the merits of the debate. But what I am saying is that the American Right — including the Congress, the President, and its sympathetic media — is showing increasingly disturbing anti-liberal characteristics. In fact, anti-liberalism is poisoning the American Right, just as the dark side poisoned Anakin Skywalker.

Just look at what we’ve seen just in the past few days. First, we’ve witnessed a wide swath of the right-wing blogosphere, along with elected legislators abetted by the President of the United States, calling for charges of treason and prosecution against the press, essentially for repeating what everyone pretty much knew we already did. Of course, a lot of this anger stems from earlier reports of highly highly anti-liberal conduct such as illegal domestic spying and our black sites/ghost renditions in Eastern Europe. As if that weren’t enough, the Senate came one vote shy of approving a flag-burning amendment that would have put America in the same exclusive club as China, Cuba, and Iran. (The historical regime that shall not be named also banned flag desecration.)

That’s just this week. On top of that, we’ve seen the implementation and cheerleading for torture. We’ve seen signing statements and unitary executive theories and other vast expansions (both practical and theoretical) of presidential power. We’ve seen Gitmo and military tribunals. We’ve seen the relentless assault on the sexual freedom of women regarding not just abortion (even following rape), but the right to contraception. And let’s not forget about the assault on gays and Mr. Schiavo.

All of these are more than just political disagreements about taxes or racial policies. They are different in kind in that they are attacks on liberalism itself — i.e., on the idea of individual freedom and the civil liberties/rule of law principles that logically follow from that foundation.

And here’s what I’m getting at — in the face of what we’ve seen, to treat both sides as equally bad or partisan just doesn’t make sense. I’m no big fan of the modern Democratic Party, but their badness isn’t even in the same solar system. I mean, good Lord, treason. Elected representatives advocating criminal charges and treason. The Weekly Standard asserting that the NYT actively aids al Qaeda, the terrorist group that, oh you know, blew up a big chunk of downtown New York and killed people that those journalists and editors went to school with. Glenn Reynolds suggesting that freedom of the press wasn’t really for the press.

This is pretty scary stuff. And what infuriates modern-day liberals more than anything else is not so much this extremism as the fact that this extremism is portrayed as simply the equal and opposite force to Democratic policies and partisanship. Ann Coulter cancels out Kos. Republican partisanship cancels out Democratic partisanship. But they’re not the same — they’re not anywhere close to the same. The Democratic Party isn’t institutionally calling for the criminal prosecution of the press for exposing harmful stories about their party leader. The Democrats aren’t throwing around the term “treason” to the free press. Maybe self-hating liberals in the press who pride themselves on their contempt for Democrats will get a wake-up call this week by the treason accusations against their colleagues.

But as loathsome as I find people like Bill Kristol and Glenn Reynolds, they’re actually not the worst. They may be wrong, but they’re certainly not idiots. David Broder and Marshall Wittman, by contrast, are idiots. These guys look at the world and decry the partisanship of both parties and want them to meet in the middle. I don’t, and that’s because the middle is unacceptable when one side is calling for treason. The Moose warns the Democrats not to go weak on national security by opposing the quartering of Bill Keller. The Donkey must support treason and return to a national greatness narrative.

If you look out over the landscape and think that both sides are equally bad and that the answer is somewhere in the middle, then you aren’t looking very closely. In fact, you’re not looking at all. You’re letting a pre-existing concept (the vanity of your own conspicuous centrism and bipartisan goodness) warp your perceptions of reality.

And so what’s really bad about the Broders, Russerts, and Wittmans (and Liebermans) of the world is that they legitimate the terms of the debate. By throwing up their hands and decrying partisanship, they implicitly acknowledge that the current GOP positions aren’t really that bad. If Russert came on the air on Sunday and just blistered the GOP (you know, the ruling party) for weeks about things like treason accusations and flag-burning, things like that have an effect. There should be a political cost for these extreme anti-liberal actions, unless you don't really care about liberalism anymore (I assume Russert does).

I’m not saying these people should support Dems — they shouldn’t. They should be objective journalists. But they need to call a spade a spade when fundamental issues like these are at stake. And the truth is that the Democrats don’t have any power and aren’t the ones that need to be put to the fire on the air about the policies they’re proposing.

Which is all another way of saying what I said the other day - the political center of gravity is badly skewed and is need of a big shift.

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Is Mickey Kaus dating Ann Coulter? Don’t know, but Andrew Sullivan links to this sighting. [ed. Hasn’t Kaus gone out of his way to defend Coulter lately?] Good point. And don't forget what he said on Bloggingheads! ... P.S. If Kaus is dating Coulter, is it appropriate for him to be defending her so strongly? [ed. I would recommend that you disclose something like that]. Exactly! — it’s just like welfare reform! ... P.S.S. Kausola? But with different types of payments? God, I hate gay Mexicans. . . . 9:30 link.

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Howie Kurtz has a round-up of some of the reaction to the NYT story and it's starting to freak me out.

Heather MacDonald, Weekly Standard:

BY NOW IT'S UNDENIABLE: The New York Times is a national security threat. . . . Al Qaeda has long worked to manipulate the media in its favor. It can disband that operation now, knowing that, unbidden, America's most powerful newspaper is looking out for its interests.

Libertarian centrist, Glenn Reynolds:

A deeper error is Keller's characterization of freedom of the press as an institutional privilege, an error that is a manifestation of the hubris that has marked the NYT of late. Keller writes: "It's an unusual and powerful thing, this freedom that our founders gave to the press. . . . The power that has been given us is not something to be taken lightly."

The founders gave freedom of the press to the people, they didn't give freedom to the press. [i.e., "freedom of the press" apparently means "freedom of something other than 'the press'"] Keller positions himself as some sort of Constitutional High Priest, when in fact the "freedom of the press" the Framers described was also called "freedom in the use of the press." It's the freedom to publish, a freedom that belongs to everyone in equal portions, not a special privilege for the media industry.

Powerline:

If the administration cannot summon the political will to prosecute the Times, the administration should at the least, in cases involving serious breaches of national security, abandon the policy of treating reporters as witnesses of last resort. It should promptly call Keller, Risen, Lichtblau et al. before a grand jury in which they are asked to identify their sources and given the Judith Miller treatment when they refuse.

The current spectacle of such brazen defiance of the law will itself breed contempt for the law and for the government.

[UPDATE (via Eric Martin): More Powerline:

If America is going to wage a war against terrorism, it must indeed act on all fronts. In 2006, it needs to act on the home front and direct its attention to those whose war on the administration is unconstrained by the espionage laws of the United States.]

Isn't one of the lessons from 9/11 that we have to take threats seriously?

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So the Supreme Court released a new campaign finance opinion today. And as usual, Scotusblog has the best coverage (see Rick Hasen too). Lots of smart people with expertise breaking down this or that aspect of this or that part of the opinion. But in reading over the opinion and the comments, and feeling my eyes gloss over and cross and roll around in my head, I began to wonder whether these sorts of analyses sometimes legitimate that which should be considered illegitimate. By diving uncritically into the “internals” of the doctrine of an opinion like this, legal pundits (and I include and indict myself) validate something which, frankly, stinks from a more “external” perspective.

Here’s what I’m getting at — that campaign finance opinion is a joke (Randall v. Sorrell). It’s 70 pages of six splintered opinions with some Justices joining parts of this but not parts of that. It’s unreadable. And for that reason, I think opinions like these are anti-democratic (with a little “d”) at best, and illegitimate at worst.

First, let me show what you I’m talking about. The splintered 70-page Randall “opinion” was actually six different opinions that land all over the place. Here’s the summary from the Syllabus for those of you keeping score at home:

Breyer, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., joined, and in which Alito, J., joined as to all but Parts II–B–1 and II–B–2. Alito, J., filed an opinion concurring in part and concurring in the judgment. Kennedy, J., filed an opinion concurring in the judgment. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined, and in which Stevens, J., joined as to Parts II and III.

Of course, Randall is a veritable The Sun Also Rises compared to the Court’s last campaign finance opinion, McConnell v. FEC, which was a 300-page, eight-opinion opinion. Here’s the syllabus for that one:

Stevens and O’Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion Scalia, J., joined as to Parts I, II—A, and II—B. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C. J., joined, in which Scalia, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which Thomas, J., joined with respect to BCRA §213. Rehnquist, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens, J., filed an opinion dissenting with respect to BCRA §305, in which Ginsburg and Breyer, JJ., joined.

Got that?

This is simply ridiculous. I attended law school for 3 years, was a federal clerk, and have worked at a law firm and I can’t make sense of this. How can the general non-legally-trained public — the public who is subject to the Court’s opinions — make sense of any of this? The short answer is that they can’t. And that’s the problem.

Unlike academic journals or esoteric texts from other specialized professional fields, the esoteric text written by courts has the force of law. What these courts decide is binding on the public and the opinions obviously have an enormous impact on people’s lives. For that reason, democratic theory demands that the public be able to offer some sort of informed consent about them — consent that presupposes an ability to actually understand what the hell is going on and debate it. By but cloaking highly-important public decisions in inaccessible legal jargon, which is then further splintered across multiple opinions and concurrences, courts often prevent any sort of informed consent. After all, you can’t really disagree with something if you don't know what it is.

Of course, this practice makes sense if you view it from an institutional perspective. If you, as I do, buy the Madisonian idea that all branches seek to increase their power, writing inaccessibly above all else increases the power of the Court vis-à-vis the other branches and the public. In a sort of linguistic jujitsu, the Court takes a politically charged issue and “translates” it into what is for all practical purposes a foreign language. Yes, there are splits and different Justices may disagree. But the bottom line is that the Justices usually get the final decision, and no one else does. This practice is an equal opportunity one that extends from everything to Lochner to Roe to state sovereign immunity to Lawrence to Bush v. Gore to Roper. You may agree or disagree with these opinions, but there is a common thread running through them — the Justices get the final say.

Bush v. Gore is of course the most egregious example and I sincerely believe that the majority should have been impeached for this breathtakingly arrogant power grab — this judicial coup d’etat. Think about what it was — five (count ‘em five) people deciding the President for 280 million using inaccessible jargon in the course of creating a new equal protection right out of a doctrine that the majority hates — and, in the alternative, deeming that a Florida court’s interpretation of a Florida statute was so ridiculous that it violated the Constitution. And the Court chose to do all this even though the Constitution (as it should) has a elaborate and specific procedure for dealing with contested presidential elections. People should be madder.

The reason, though, that the Court gets away with stuff like Bush v. Gore is that the Justices dress it up in language and opinions that the public can’t evaluate. And when legal pundits dive in uncritically to ponder the implications of Alito not joining Part II-B-1 of a 70 or 300-page unreadable opinion, it adds legitimacy to this anti-democratic practice.

Judicial opinions need a drastic overhaul. To his credit, Roberts (who I’m actually liking more and more as time goes on) seems to get it. His opinions are clear and refreshingly free of jargon and excessive citations. He also has been working for more unanimity. All of these are good things. Opinions should be shorter and clearer. Justices (especially Scalia) should be willing to compromise and join narrow opinions for the sake of clarity and democratic discourse.

But the first step is to stop validating these ridiculous opinions when they come down. If the Court keeps this crap up, we should amend the Constitution to allow Congress to nullify a Court opinion by 2/3 or 3/4 vote of both houses. I don’t want to go there, but a few more 300 page opinions and consider me in Tushnet-land.

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Posted by Michelle Malkin:



Nazi poster, 1943, "Shame on you, chatterer! The enemy is listening. Silence is your duty."



Posted by Michelle Malkin:



Nazi poster, 1944, "The enemy is listening!"



Posted by Michelle Malkin:



Nazi poster, 1943, [The barber is saying: "Well, I can tell you that..." The text at the bottom says: "The enemy is listening!"]



Posted by Michelle Malkin:



Nazi poster, 1943-44, "The Jew: The inciter of war, the prolonger of war."

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To avoid any future Armando situations, I should disclose that I am currently working on behalf of pro-net neutrality clients. At the time I wrote about net neutrality, I wasn't. But now I am. So I'm probably going to stay away from it altogether on the blog, which is unfortunate because I have better things to say now. But anyway - take it for what it's worth.

[UPDATE: And for the record, working on this had nothing to do with my past writings (and was not a reward for them). As far as I know, no one I work with (and certainly not any client) is aware I even have a blog.]

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I’m not exactly shocked that the GOP has decided to run on the war this fall. But it’s still pretty amazing when you stop and think about it. Despite full knowledge that the original justifications of the war have been discredited, and despite the criminally negligent failures in execution, they’ve decided to close ranks and run on it. It’s mind-boggling. But what really boggles my mind is not so much the strategy itself, but the emerging media and punditocracy narrative surrounding the strategy. Once again, we’re hearing that the GOP is strong and united, while the Democrats are on the verge of blowing it. The swooning for Rove’s new strategy is in full bloom.

And it’s insane.

I don’t spend all that much time here doing media criticism (as compared to say Atrios or Peter Daou). But the emerging reaction to Rove’s “run on Iraq” strategy makes me more sympathetic to the view that the entire establishment should be razed — salt in their fields, the whole nine. In any sane world, it is Republicans who would be getting relentlessly hammered for such a cynical and immoral strategy. But no — it is Democrats who are on the defensive in the media/pundit narrative. And that points to a bigger problem, which is that the “center” of acceptable debate in this country is so horribly skewed on Iraq that nothing short of a full paradigm shift of perception can fix it.

There have been several good posts related to this subject lately that will help everyone understand what exactly these people are praising when they praise the GOP strategy as a sound or strong one. To begin, the war itself was based on quite possibly the most colossal intelligence failure in world history. But even if you’re ok with that (which is insane in and of itself), the war was planned and executed with criminal negligence by our military and political leaders. And even if you’re ok with that (do I really have to say it?), then there’s the important point that it’s not working. And more critically, there’s no plan to make it work going forward other than keeping troops there indefinitely, which isn’t going to work. Yglesias said it best:

Clearly, my first-choice scenario for the world would be one in which the nominal goals of American Iraq policy -- killing terrorists, preventing a civil war, building a stable liberal democracy -- are achieved. But I can't support the war -- can't say it was a good idea to launch it, and can't say I think it's a good idea to continue it -- precisely because I don't think the war is accomplishing its goals, don't think it stands a good chance of accomplishing them, and don't think it ever did stand a good chance of accomplishing them.

Whatever your view on Iraq may be, I think there’s a pretty broad consensus that what we’re doing isn’t working (excluding Lieberman’s cell phone penetration study). And so, at the very least, everyone can agree that we need some real changes and we need them fast. After all, this isn’t some trifling issue. A lot of people are getting killed and maimed as a result of a failing policy. And every day we continue with this policy unchanged is another day that someone dies who shouldn’t have died. We ask a lot of the troops, surely we can do them the damn courtesy of demanding that failing policies be changed.

But no, that’s too much for our brave strong-on-security majority party. For the benefit of an election, they’ve decided to close ranks behind Bush’s Iraq policy. It’s not just that they’re abdicating their responsibility to our soldiers by refusing to demand change, they’re now actually engaged in full-throated cheerleading. And what makes this newfound enthusiasm particularly grotesque is that they now know that Bush’s policy is (and has been) a failure. But they cheer him on anyway, acknowledging nothing and ignoring reality regardless of the human costs.

And to make things even worse, we’re being subjected to this media/pundit narrative that (explicitly or implicitly) praises this “strong” strategy and condemns the Democrats for being divided. People at places like the Note (who Josh Marshall aptly described as imbeciles) are fawning and slobbering over Rove’s new strategy. Even Andrew Sullivan is falling prey.

Well let me tell you something as plainly as I can. If you think this way, you are fucking insane.

We need to be very clear on what exactly this great new strategy is. It is a conscious decision that human life means less than political power. It is a decision that extra dead Americans are worth less than jeopardizing an election by admitting a mistake. And what’s especially infuriating (and unforgiveable) is that the GOP officials know that the current policy isn’t working, but refuse to demand change regardless of the human costs. To use soldiers' lives as political pawns in this way is the height of immorality.

Only the most mindless of reporters and pundits would see this strategy and put Democrats on the defensive about it. Rather than asking about the divisions in the party that is actually trying to force some kind of change, why not ask Republicans why they’re not demanding change? Closing ranks behind this policy is as absurd as it gets. Why isn’t that the story? Why aren’t those questions being asked?

But no, the chattering class would rather sit around with their visions of the world intact and say, “yuk, yuk, look at those silly Dems all divided. They’re going to blow it again.” If you overhear that on Capitol Hill, the correct response is to slap the person in the face, grab his hair and drag him over to Walter Reed or maybe Arlington Cemetery and pry his eyes open. This isn’t some fucking joke, and it’s not about mindless inside-the-beltway political jockeying. In case people haven’t noticed, this is a war. And it’s not working. And after three years of it not working, the majority party (plus Lieberman) is running on a platform of not changing anything. And the media is praising them for it. That’s where we are.

The fact that the GOP isn’t getting chased out of town and harassed endlessly by adopting this policy shows just how skewed everyone’s center of gravity is. There really needs to be a seismic shift in how these things are perceived.

And as for Democrats, I agree with the Marshall/Begala advice. Turn the tables. Stay on offense. Force the Republicans to answer why they’re continuing to mindlessly support a failing policy that’s getting people killed. The Democrats shouldn’t be afraid of engaging this offensively. For once — just once — let’s have this debate. Let’s make the election about this. Let the message for November be this — “If you want our Iraq policy to stay the same, vote Republican. If you want to change it, vote Democrat.” If we lose, we lose. But we can at least say we tried — for once.

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Without looking at the caption, see if you can correctly identify the two convicted criminals, Representative #1, and the anti-gambling crusader formerly of the Christian Coalition. Unfortunately, money launderer Grover Norquist was not included, so you shouldn't name him. Good luck!

From the NYT:



A photograph of a 2002 golf trip to St. Andrews in Scotland shows, from left in the front row, the lobbyist Jack Abramoff, Ralph Reed, David H. Safavian and Representative Bob Ney, Republican of Ohio.

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GOP '06 - Because Getting Other People's Children's Faces Blown Off For No Reason For Years to Come is Less Important Than Beating the Democrats

Sleep well.

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I'm too busy to write tonight. But rest assured that my next topic of conversation will be this "discovery" of WMDs that's gotten the nationalist wing of the blogosphere in a tizzy. You know, it's really not worth getting upset about. It's pathetic and the whole thing is to be pitied, not scorned. As I'll explain, for the nationalist bloggers, this is about easing cognitive dissonance. Nothing more. I mean, if you really want to justify the Iraq War and the pre-WMD hype on the basis of a few hundred inoperative pre-91 shells "discovered" years ago and dismissed, more power to you. That's right Glenn. Everything you said was right. It's ok . . . It's going to be ok. There, there. You knew there were weapons didn't you. I know. Yes, there are weapons. Yes, there, there.

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Rest easy liberal blogosphere — for I have seen the new Justice Scalia opinion and it is bad. Very bad. In fact, it provides a perfect example of why I recently said that not all bad things should be addressed by the judiciary. Relatedly, it shows why progressives need to stop relying so much on the judiciary to fix the things they don’t like.

The case I’m talking about is Rapanos, in which the Court considered the scope of Clean Water Act and probably limited it. Specifically, the Court considered whether wetlands connected to rivers by man-made ditches and drains were protected “waters of the United States” under the CWA. The U.S. Army Corps of Engineers (an administrative agency) had adopted regulations that included these wetlands within the definition (thus preventing people from dumping in them without approval). [As usual, SCOTUSblog has many good posts on this].

The Court split 4-1-4. Scalia’s plurality opinion would have drastically curtailed the CWA by narrowly interpreting “waters.” The “liberal” Justices dissented and deferred to the agency’s interpretation. And Kennedy split the baby — he voted with the Scalia crew to send the case back down but he offered a different standard that will hopefully allow federal regulation to continue. In short, it could have been worse. We'll have to see how the Kennedy opinion plays out.

To cut through the crap here, Scalia’s crew doesn’t like the CWA. Even more so, they don’t like that the administrative agency in charge of implementing it has expanded its regulatory reach over the years. They think it’s a burden and they think it’s silly. Indeed, Scalia called the USACE an “enlightened despot” and spent much of the early opinion offering thinly-veiled ridicule of the scope (and penalties) of the federal regulations.

And you know, he may have a point. I’ve heard that environmental regulation can be excessive and expensive. Who knows — maybe the regulatory regime really is bad policy. But you know what — there’s a way to change all that. It’s called changing the statute. Or, you can repeal the regulations. Or, you could lobby the executive to scale back the regulations (not hard to do these days I hear). But what judges can’t do is rewrite the statute to suit their political preferences. When you chop through all the legal mumbo-jumbo that makes the Court’s decision publicly inaccessible (see also Bush v. Gore), you’ll see that Scalia is simply rewriting the statute to reach a result that conservatives could not obtain through the political process.

Here’s an example. The CWA protects “navigable waters.” Congress defined navigable waters as the “waters of the United States.” That’s pretty broad. And to its credit, the USACE had read “waters” pretty broadly to include not just obvious “waters” such as rivers and creeks but things like groundwater and wetlands and drainways that are the source of these waters. And that’s a good thing. Water in rivers and lakes is not immaculately conceived. It flows from other sources such as wetlands. And if you dump shit in a wetland, or in a drainway connecting the wetland to the river, guess what — the shit gets in the water! The point is that it’s perfectly rational that an agency would adopt an expansive reading of the broad word “waters.” Much like politics, ecology doesn’t stop at the water’s edge.

But here’s noted environmental engineer Justice Scalia explaining why the agency’s reading is wrong. This is really one of the more ridiculous passages I think I’ve ever read. Just so everyone is clear, the definition he cites so extensively is from the Webster’s Dictionary, which I think Madison ultimately excluded from the Constitution:

The Corps’ expensive approach might be arguable if the CWA defined “navigable waters” as “water of the United States.” But “the waters of the United States” is something else. The use of the definite article (“the”) and the plural number (“waters”) show plainly that §1362(7) does not refer to water in general. In this form, “the waters” refers more narrowly to water “[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,” or “the flowing or moving masses, as of waves or floods, making up such streams or bodies.” Webster’s New International Dictionary 2882 (2d ed. 1954) (hereinafter Webster’s Second). On this definition, “the waters of the United States” include only relatively permanent, standing or flowing bodies of water. The definition refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water “forming geographical features.” Ibid. All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Even the least substantial of the definition’s terms, namely “streams,” connotes a continuous flow of water in a permanent channel—especially when used in company with other terms such as “rivers,” “lakes,” and “oceans.” None of these terms [from Webster's Dictionary mind you] encompasses transitory puddles or ephemeral flows of water.

Foreign law, well that’s tyranny. Webster’s, though, can apparently trump Congress and Congress’s legislatively approved administrative agency. (On an aside, the argument for foreign law is conceptually identical to using Webster’s — they’re interpretative aids. Of course, they can’t be used to rewrite text.).

Sorry to be so snarky, but this is complete and total crap. It’s hard for the public to see it because of the esoteric language, but this is simply a judicially-imposed political preference dressed up in legalese. Using a Webster’s Dictionary as statutory text, Scalia amends “waters” to mean “permanent, standing or flowing bodies of water.” That is what my good friend Robert Bork calls illegitimate.

On a more general level, it’s border-line high comedy listening to Supreme Court Justices and their fresh-out-of-law-school clerks draw upon their extensive scientific expertise to dictate the nation’s water policy by effectively amending both legislative text and the expert agency’s administrative regulations.

To take an even bigger step back, this gets at something I was trying to explain in the Hudson posts when I said that alternate remedies were available, including legislative or administrative ones. One common critique (expressed articulately by Scott Lemieux) is that legislative remedies can’t be relied upon to fix these problems so we need judges to do it.

This is a variation of a so-called “process theory” argument, but one that I think is ultimately misplaced. I’m a big fan of process theory and I wish liberals would revisit it. One of the basic ideas is that courts can and should be more activist when the political process is flawed or doesn’t work. The corollary is that when there’s nothing wrong with the political process, the courts should stay the hell out of the way absent pretty clear textual license. For example, one reason the Warren Court race opinions seem right to me is because the Southern political process was inherently flawed. Because it excluded blacks from voting, it could never correct itself legislatively. A more modern example might be felon disenfranchisement. Ex-felons have no voting rights in many states and so it’s more difficult for them to “fix” the problem. Similarly, gender discriminatory laws predating women’s suffrage are also very suspect. And so on.

It’s important, though, to distinguish situations where the political process is flawed from situations in which it produces a result you don’t like. Sure, I don’t like that legislatures won’t establish a K&A remedy, but there’s no inherent flaw in the system in this respect. And as for the CWA, there’s nothing stopping Federalist Society members from working to amend it through the political process. Last I checked, lynch mobs weren’t suppressing the vote of floppy-haired guys named Preston and Dalton.

Here’s the point — when you give judges free-wheeling power to do things like imposing exclusionary remedies on everything, you’re also giving them the power the overturn the CWA, or even Social Security. Be careful of the power you grant because it can, like Sauron’s ring, be used for bad. That’s why legislative supremacy coupled with legislative procedural reform seems like the right path to me. It at least ensures legitimacy.

[UPDATE: Yes, the gorilla in the room is Roe. I think Roe can still be defended on reliance/stare decisis grounds, but it is inconsistent with process theory (unless the laws predate women's suffrage). On an aside, perhaps Roe is strongest when applied to pre-18 year olds who can't vote.]

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And that message is this - don't get raped. Because if you do, you will be required by force of law to give birth to the rapist's child.

If only Louisiana had a female Democratic governor.

GOP '06 - Forced Birth Following Rapes

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Got my first free book recently after 2 1/2 years of toiling on the blogging circuit. The book is Lapdogs by Eric Boehlert. I wanted to do a full review but have been too busy at work. To reward the publishers' outstanding judgment though, I will at least direct you to Peter Daou's guest review over at Firedoglake (via Memeorandum). And if anyone has read it, feel free to comment below.

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My Hudson post generated a lot of thoughtful criticism in the comments. I am continually impressed and educated by the efforts of the commenters here, and especially so on this one. But that said, I still (surprise, surprise) think I’m right. But in light of everyone’s comments, let me make a few more points that I should have addressed more fully.

First, it is absolutely true that, conceptually speaking, a right with no remedy is not a right. Likewise, a right with a less effective remedy is less of a right, and so on.

There’s a related point here that is less obvious — adopting certain legal remedies often redefines the scope of the right. One example of this dynamic can be seen in the context of Section 1983 lawsuits (Section 1983 allows people to sue for damages for violations of their federal rights by state/local officials — in this sense, it is another potential remedy for Fourth Amendment violations). (There's also one for violations by federal officials, but it's called a Bivens action. Pretty much the same thing though). As I think Professor John Jeffries has written, the adoption of a broad remedy for Section 1983 suits has resulted in the narrowing of the right (generally by conservatives judges and Justices). For instance, the broad remedy (potentially substantial damages against state and local entities) has arguably given rise to a range of narrowings such as qualified immunity, “reasonable unreasonableness,” and so on that are regularly used to defeat liability.

I think the exclusionary rule (which is, again, an extreme remedy) has had a similar relationship with our Fourth Amendment rights. Given that this is the remedy for ALL Fourth Amendment violations, judges have read in exception after exception to not just the K&A requirement, but to more fundamental protections such as the warrant requirement. (For instance, if police conduct a warrantless search on Tuesday afternoon and enter with their left foot first, the search is “reasonable.”) (Rehnquist, J., concurring).

Assuming you agree with my assumption that the right to a K&A is way less important than the right to be free of a warrantless search, there are two ways that the exclusionary rule for K&A violations harms our more fundamental rights. First, doctrinally speaking, exceptions could be developed in the K&A context that migrate over to the warrantless search context. I don’t know the case law well enough, so understand that this is just an uninformed example. But let’s say, for instance, that the “inevitable discovery of evidence” exception was initially created in the K&A context (perhaps in response to a particularly compelling set of facts). Having that exception on the books would make it easier for it to be transferred to the higher-stakes contexts of warrantless searches or Miranda violations.

But the real concern is less conceptual, and more practical. You need to imagine that you are a federal or state judge overseeing criminal cases. The overwhelming majority of K&A suppression motions you hear are not the statistical anomalies of SWAT teams busting down doors unnecessarily, but motions that rattle off every factual variation possible — “they only waited 5 seconds instead of 10,” “I was in the back room and didn’t hear,” etc. When a judge sees this stuff over and over again, she begins to have a knee-jerk reaction that suppression motions are generally bullshit.

The problem, of course, is that not all suppression motions are bullshit — indeed, they are often the only way to protect vital Fourth Amendment rights. But when the important ones (warrantless searches in particular) get mixed up with cases in which the police have a warrant based on probable cause and are coming in anyway, the important ones get lost in the shuffle. If the K&A suppression (i.e, exclusionary) motions are removed from the docket, I think the percentage of valid suppression motions will increase and judges will tend to scrutinize them more closely. Thus, in practice, it could expand the "bite" of the right even if the doctrine itself doesn't change. (Fourth Amendment cases are necessarily more fact-driven than doctrinally-driven anyway).

That’s why I think Hudson is the right call. Yes, for purposes of argument, I’ll assume that the lack of the exclusionary rule essentially eliminates the right to a K&A. The question is basically one of balance — is this right worth the costs of the remedy? Again, I don’t think so. Unlike others, I don’t think the police will wholly abandon the K&A (if for no other reason than self-interest), but even if they do, I don't think that the exclusionary rule is a proportionate remedy to this particular type of violation.

The main concern I have is that the warrant requirement is being ignored and tattered by exceptions. That's the requirement that I care most about. The K&A stuff generally comes up when police already have warrants and have done what the Constitution requires.

A lot of the objections that some people cited don’t really work. For instance, if the police knock down the wrong person’s door, the exclusionary rule wouldn’t provide that person any relief anyway because they wouldn't be tried for anything. It's damages or nothing for them (though the counterargument I suppose is that the police would be more deterred in the first place). If the police perform a search that is outside the scope of the warrant and violate the K&A requirement, then the exclusionary rule would still apply.

Yes, it is a bad thing that K&A rights will be less respected. But not all bad things need to be addressed by this particular and extreme remedy. And more generally, not all bad things need to be addressed judicially rather than legislatively. If K&A violations become rampant, there are legislative and administrative remedies that can be adopted at the state or federal level (indeed, we already have Section 1983, though I recognize that it is far less effective).

Indeed, that’s what good about the methodology of Scalia’s pragmatic opinion. Because it rests on certain factual, in-the-world-of-2006 assumptions, it can be revisited in the future if those assumptions turn out to be mistaken. There is nothing in the methodology of the opinion that “freezes” this decision in place for all time like a bug in prehistoric amber. It's more of a common-law type of decision that can and should be empirically tested by its real-world consequences.

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A plea to my blogging colleagues - when you insert hyperlinks into the text, make them easy to see. Underlining is especially good as some of us have trouble distinguishing red and black text. America has lost god-knows how many hours of productivity because people like me spend their days scrolling the cursor around like a Ouija board to find the hyperlink.

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The reaction to the post below has not, um, been glowing. So I'm going to follow this post up later (or maybe tomorrow) laying out some additional reasons why I think Hudson is right, even though I agree that the remedy here is whittling the right.

My views rest on two assumptions (which I'll explain in more detail): (1) Making the exclusionary rule the default remedy for everything ultimately harms our Fourth Amendment rights because it gives rise to all the exceptions that judges have used to avoid letting the guilty free. To protect these rights, the exclusionary rule should be reserved for the "bigger" issues such as warrantless searchs and Miranda compliance. (2) A lot of this turns on how much trust you have for the police. The early exclusionary rule cases can't be separated from race and Southern racism. The question is whether those assumptions are still valid in 2006.

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Gotta say — Justice Scalia wrote a very good opinion today in Hudson, the so-called “knock-and-announce” case. As I’ll explain, I’m not entirely sure that he actually wrote it, but it’s a good opinion and I think he gets it right.

Why Hudson Is Right

First, I think people are overreacting a bit to Hudson’s result. Some background on the exclusionary rule will help put it in perspective.

First, the exclusionary rule is not a right. It’s a remedy. For instance, let’s say the police barge into your house and see the blow, assault rifle, kiddie porn, and emails from Ken Lay sitting on your table. For you to be convicted, this contraband must be admitted into evidence. Otherwise, there is (logically speaking) no factual foundation for your conviction. To be grossly general for now, the exclusionary rule “excludes” this stuff from being admitted as evidence if the police violated your Fourth Amendment rights to get it. Thus, the exclusionary rule itself is not a right. It’s the remedy that vindicates your Fourth Amendment right and gives that right its teeth. [There’s a deeper philosophical question about whether the line between right and remedy is a coherent one, but let’s put that aside for today.]

The exclusionary rule, however, is not the only possible remedy. For instance, the remedy could be a federal civil rights suit against the police department, or even throwing the offending officers in jail. The point is that there is a whole range of potential remedies. The exclusionary rule is just one of many. And it’s an extreme one because, in order to deter bad conduct, it always lets a guilty person go free.

The second thing to keep in mind is the distinction between a warrantless search and a search conducted pursuant to a warrant. If the police have a warrant, that means (in theory) they did their job and gathered enough evidence to establish probable cause before a judge, who then executed the warrant. On the other hand, they could have just barged in without a warrant. These two situations are very different.

Finally, before police enter your house, they are constitutionally required to perform a “knock-and-announce.” It’s an old tradition. As Scalia explained, the rationale behind the K&A is (1) to prevent unnecessary violence and property damage; and (2) give people a second to gather themselves (e.g., put their pants on). For instance, if the police just barged in, people would be surprised and might attack or shoot the perceived intruder. Also, if the police knock, a lot of people will comply and open the door, making busting down the door unnecessary.

Ok — with all that in mind, you can understand why the opinion was right. The precise question in Hudson is not “what should the remedy be when the Fourth Amendment is violated?” The precise question is “should the exclusionary rule be the remedy when the K&A requirement is violated?” I don’t think so.

First, as Scalia explains well, you have to consider whether the remedy matches the purpose of the right. Unlike the warrant requirement, the K&A right is not intended to protect you from government scrutiny. It governs the manner in which the police may enter after they’ve already decided to enter. And it does so to prevent violence, damage, and to protect your dignity. That’s not to say there shouldn’t be any remedy for this violation, but it seems like excluding evidence is a bit drastic for this situation.

The warrant requirement, however, is completely different. The purpose of this right is to prevent the police from intruding to your house without a good reason that has been approved by a court. It doesn’t govern the manner of the entry, but the entry itself. Thus, there’s a lot more at stake. And for that reason, the more extreme exclusionary rule makes a lot of sense in this context. (In Hudson, the police had a warrant and were authorized to go in).

While it’s true that police may be less deterred to violate the K&A rule following Hudson, there are — as Scalia surprisingly noted — some practical reasons to think police will still be deterred. First, police training is better than it used to be. Second (and this is mine), it’s often in the self-interest of the police to K&A to avoid getting treated as a burglar.

Bottom line — Hudson isn’t ending the exclusionary rule. It doesn’t allow police to enter homes when they otherwise couldn’t. It simply says that a certain remedy is not appropriate in certain circumstances.

Why Scalia Didn’t Write This Opinion

I can’t be sure, but I’m not sure that Scalia read his clerk’s work closely before signing his name to this opinion. And if Breyer hadn’t dissented, I would have thought he hacked into Scalia’s computer and wrote it himself.

First, Scalia cites a Nan Aron book (p.11).

Second, there’s this quote, which (given the source) gets my vote for quote of the decade:

We cannot assume that exclusion in this context is necessary deterrence simply because we found that it was necessary deterrence in different contexts and long ago. That would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago.

I did a double-take on that one.

Third, the opinion is grounded not in originalism but pragmatism. (Orin Kerr noted this too). All of Scalia’s arguments are humble and rooted in policy (sound policy at that). It was refreshing — when this guy is right, there are few better in the entire history of the Court.

The problem, of course, is that’s he’s full of shit a lot, especially when he’s talking about originalism. Originalism, you see, is formalism gone mad. The idea is that you (1) take a pre-existing rule (the 1789 understanding); (2) apply it to the facts; and (3) get a determined result. (For a good discussion of formalism's relationship with originalism, see Daniel Goldberg’s article). Under this methodology, pretty much everything Scalia used to justify his decision was, logically speaking, irrelevant. Consequences don’t matter under this formula — only what the understanding is. As Feddie might say, consequences are fo’ suckas.

But that’s not what Scalia did — his opinion is justified entirely by pragmatic, utilitarian arguments.

The Legacy of Race

Today’s opinion is also interesting because it shows the difference between the way today’s Court views police officers versus the way the 60s Court viewed them. Today’s Court trusts them, yesterday’s Court didn’t. The difference, I think, can be explained by race. Court opinions — like anything else — cannot be separated from their historical context. When the Court started expanding the exclusionary rule in the 60s, they had Alabama state troopers in mind. Race was the unspoken context that colors all of the Warren Court’s criminal jurisprudence and lies just beneath the surface of their opinions.

What the Dissent Missed

I wasn’t impressed with Breyer’s dissent. First, any opinion in which the word “Framers” appears on the first two pages is presumptively wrong. Breyer did not rebut.

Second, I think Breyer and the dissenters made the same mistake that I often criticize originalists and neocons for — living in abstract clouds without regard to reality.

Breyer spends a lot of time saying “this will encourage illegal behavior.” Well, yes, but not all illegality is the same. Jaywalking and murder are both “illegal,” but they’re not the same. Similarly, ignoring the warrant requirement is simply different than ignoring the K&A requirement. As such, different remedies should apply. It’s not enough to say Hudson encourages illegal behavior. You need to explain why this particular illegality is so bad that it requires this particular remedy. Thus, this passage from Breyer seems wrong to me:

[W]hether the interests underlying the knock-and-announce rule are implicated in any given case is, in a sense, beside the point. As we have explained, failure to comply with the knock-and-announce rule renders the related search unlawful. Wilson, supra, at 936. And where a search is unlawful, the law insists upon suppression of the evidence.

Hate to say it, but Scalia got the better of him today.

[DISCLAIMER: After I wrote this, I saw that Orin Kerr (damn him) caught the Nan Aron citation before I did. I did see the Kerr post I linked to above before I wrote this post, but hadn't seen that one despite the fact that we both cite page 11. Much like calculus, we discovered it independently. You'll just have to take my word for it.]

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Post, "GOP Measure Forces House Debate on War" (slight return):

Nearly four years after it authorized the use of force in Iraq, the House today will embark on its first extended debate on the war, with Republican leaders daring Democrats to vote against a nonbinding resolution to hold firm on Iraq and the war on terrorism. . . . The House will also take up a second resolution that denounces pedophilia and affirms that Republicans are awesome. Although Democratic leaders object to the linking of these two subjects in the resolution, they indicated they would support the resolution and affirm the awesomeness of the GOP to avoid looking weak on pedophilia.

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Marshall Wittman:

America simply cannot afford a defeat that emboldens our enemies - we already experienced that in the aftermath of Vietnam. As others have observed, if America withdraws now, we would hand a posthumous victory to Zarqawi.

Lord of the Flies:

"-and then, the beast might try to come in. You remember how he crawled-" The semicircle shuddered and muttered in agreement. "He came-disguised. He may come again even though we gave him the head of our kill to eat. So watch; and be careful."

Stanley lifted his forearm off the rock and held up an interrogative finger.

"Well?"

"But didn't we, didn't we-?"

He squirmed and looked down.

"No!"

In the silence that followed, each savage flinched away from his individual memory.

"No! How could we-kill-it?". . .

[UPDATE: Wow, that was fast. From CNN:

The U.S. military on Thursday revealed for the first time a photo of the man said to be the new leader of al Qaeda in Iraq.

The military said the picture showed Egyptian-born Abu Ayyub al-Masri, believed to have taken over the terror network after the killing of Abu Musab al-Zarqawi last week.

I guess Al Qaeda in Iraq's Board of Directors have a streamlined process for these successor elections.]

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David Hume, An Enquiry Concerning Human Understanding

When we say, therefore, that one object is connected with another, we mean only that they have acquired a connexion in our thought, and give rise to this inference, by which they become proofs of each other's existence: A conclusion which is somewhat extraordinary, but which seems founded on sufficient evidence.

I know I’m late on Zarqawi, but I’ve been wanting to weigh in for over a week. I’m guessing the White House and pro-war people hope that Zarqawi’s death will buoy support for Iraq. In a roundabout way, I think it may well do the opposite.

Before I begin, I should say that Zarqawi’s death was a victory and one that should be, if not celebrated, at least acknowledged. Even if it’s just a symbolic victory, those matter too. And this victory was a much-needed morale booster even if it didn’t really matter strategically. It’s a little weird for me to celebrate anyone’s death, so I won’t. But in the immortal words of Ice Cube, I gotta say it was a good day.

That said, I’ve always thought Zarqawi was overblown and essentially irrelevant to the actual war. The most interesting take on Zarqawi that I’ve heard though comes from Billmon describing his conversation with Juan Cole. The gist of Cole’s theory is that, while Zarqawi may have been militarily irrelevant, he was extremely relevant politically because he played the role of universal scapegoat for all sides. The Sunnis found it convenient to blame Zarqawi for the Ba’athist insurgency because they want to bomb Shiites but not get the blame. Shiite leaders wanted to avoid a full-blown civil war with the still-feared Sunnis, so they blamed Zarqawi and the foreign fighters. As for the Americans, Zarqawi provided them with a simple morality play that hides the enormous complexities of what has become an inter-and-intra-ethnic civil war in what is essentially a failed state propped up by American troops. Billmon explains:

So you end up with a peculiar result: Everyone has set up the same straw man, in order to deny what would otherwise be obvious: The war in Iraq is a civil war, one that has relatively little to do with the war on terrorism, but that has almost half of the U.S. Army bogged down in the middle of it.

That’s what I want to expand upon tonight. In a strange way, even though Americans hated Zarqawi and wanted to see him killed, they also needed him. Zarqawi helped them make sense of what would otherwise be an almost unbearable reality.

A lot of this is rooted in the way our brains are wired. All humans see the world in terms of cause and effect. The Hume quote above is a skeptic’s attack on the notion that we can ever know whether something actually “caused” something else, or whether it’s just a correlation that has come to be seen as a “cause” in our mind.

Perhaps for this reason, humans tend to squeeze complex events into simple stories, or narratives, or fairy tales, or myths, or whatever you want to call them. [In fact, the word “myth” (from Greek mythos) originally referred to a explanatory story, generally about some divine being. According to my new favorite dictionary, it wasn’t until the 1800s that "myth" began having the connotation of “untrue.”]

I’ve described this before, but the combination of these two characteristics – our tendency to assign cause to the outside world and our preference for simple stories – helps people make sense of history and especially of disturbing history. The horrors of World War II are explained by Hitler’s evilness. In a sort of bizarro anti-Christ sense, Hitler died so that we could make sense of the Holocaust. What I mean by that is that it’s a hell of a lot easier to explain the Holocaust by blaming a single man’s infinite evilness than by looking inward at the horrors that all humans are capable of – horrors that we must work hard to prevent. Same deal with the devil. It’s easier to explain our dark urges by attributing them to a devil distributing temptations than by looking inward for the culprit. Sort of the same deal with the old King Arthur myth as ridiculed in Monty Python - Strange women lying in ponds distributing swords is no basis for a system of government. (Ok, that one might not work, but it's still a really funny line.)

My point is that things like the devil or Hitler or Milosevic or bin Laden or Saddam – despite being very very bad people (or fallen deities) – transform complex and profoundly disturbing realities into simple, easy-to-understand morality plays. World War I doesn’t really lend itself to a morality play and maybe that’s why it was seen as the most absurdly tragic event of the 20th century – one that shattered the foundations of Western thought as people introspected on the horrors of its mindless, pointless, amoral slaughter of Europe’s lost generation.

I'll turn down the dramatic tone now, but Zarqawi is very similar. For many people, he provided the morality play that was central to their continuing belief in the correctness of the war and of its connections to the things that our President has told us it’s connected to. Zarqawi is a terrorist. The war is about fighting terrorists. Zarqawi an militant fundamentalist hostile to Iraqi democracy. The war is about creating democracy to combat militant fundamentalism. Zarqawi is evil. This war is about fighting evil. In this way, the continued existence of Zarqawi helped justify the war in people’s minds. That's why you can't get too upset with people like Marshall Wittman who keep adding adjectives to explain the evilness of the people he thinks we're fighting. He needs them to be that way.

But getting back to Zarqawi, it's clear that the fighting will go on. And without some figure like Zarqawi to create the necessary Iraq narrative, it’s going to be harder to portray reality as not-reality. In other words, unless another rises up to take his place in our consciousness, it’s going to be harder to portray a civil war with little relevance to terrorism as a war against terrorists. When the continuing carnage cannot be blamed on foreign militants but on the domestic intra/inter-ethnic civil war, it’s going to be harder to hide the fact that we’re not so much building a national democracy, but desperately trying to keep a failed state from collapsing. In these types of situations, you’re not nation-building, you’re necessarily picking a side. No matter what you do, no matter who you help – you are picking a side. That’s what a civil war in a failed state is all about.

And Americans aren’t ready for that reality yet. To make sense of this war, it needs to be a fight against terrorists that can hurt us. Or maybe a fight for an Iraqi democracy against evil democracy haters. But it’s neither. That’s the reality.

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I've been on the road for work and (yes) weddings, and went without my Washington Post for several days. I'm catching up on news, and I've got a few things to say about the death of the suprisingly fatass Zarqawi (of the Islamic Brotherhood of the Jelly Donut Jihad), along with the Busby election. (I actually have a substantive point to make about his weight.)

But first, a question. Should I renew my NYT subscription? I stopped it largely because of Judy Miller and, to a lesser extent, the entire DC bureau. And I love the Post. But I was flying back to DC this morning from the hinterland and could only get a Times at the airport. And so I read it for the first time in many many months and realized that it's still the best paper. Yes, the Post's political reporting runs circles around the Times, but on everything else, nothing beats it. I had forgotten how solid the international reporting was -- and the culture stuff is so good too. Sonic Youth has a new album coming out. Who knew?

Anyway, that's my question to the bloggy masses -- is it time to forgive the NYT for Judy and move on? Despite all the shit it gets, it's still a great paper. But those aluminum tubes . . . they still burn . . .

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The really depressing thing about the latest Ann Coulter stuff is not so much that NBC would invite someone on the air who says that the 9/11 widows were happy to see their husbands burned and crushed to death. I mean, that's depressing, but it's not the worst part. No, the worst part is that the controversy helps her sell books. Every time someone denounces her (rightly), it increases her profile and brings her more money.

So what to do? How do you attack someone like her when attacks are precisely her goal? Ignoring her is probably a better idea than attacking her directly. But that doesn't make her (and more importantly, her type) go away. Personally, I think the goal should be to go after the media outlets. Peter Daou (who has a new blog) is on the same page but for a different reason:

Some bloggers advocate ignoring slime-traffickers like Coulter and Glenn Beck, others attack them for the scum they peddle. My preferred tactic is to excoriate the media outlet that gives them a forum - it may play into their need for attention, but I think it's imperative for us to create a public record of these media transgressions, if only for historians to understand how America sunk so far so fast.

I'm less interested in creating a record than causing them to lose money for having people like Coulter on the air. And the way you do that is going after the sponsors. Ask the sponsors of the Today show if they think it's appropriate for NBC (on the airtime that they purchased) to invite someone on the show who said the 9/11 widows were enjoying the murder of their spouses. Ask them if that's a good use of their money. I haven't worked in for a network, but I suspect that nothing snaps network heads around quicker than a few calls from upset sponsors.

There's actually a longer more substantive post in here - I hope to write it soon.

__________

Slammed at work again, so here's my question:

Does anyone know how the term Esquire evolved from a medieval title (meaning feudal rank below a knight) to a title for lawyers. There's a lot of stupid stuff about the practice of law, but addressing each other as feudal shield-bearers is probably the stupidest f***ing thing I've ever heard, ever.

Esquire. Good Lord. If there's a group of people whose lives are more removed from medieval knights than corporate frickin' lawyers, please do tell. Harken, the Westlaweth Dragon cometh forth and biddeth me build a witness prep binder and a privilege log for the maiden in the castle.

__________

Ok – I’ll say it. I’m sick of hearing Peter Beinart talk about Harry Truman. I’m sick of hearing other people talk about Peter Beinart talking about Harry Truman. I’m sick of hearing about how I should learn from the 1947 meeting in the Willard Hotel (great orange juice there, by the way). But most of all, I’m sick of people (our President included) using the Cold War as an analogy for the war on terror. It doesn’t work, so please stop using it.

First, I should say that I don’t have the burning contempt of Beinart that some do. I certainly disagreed with him about Iraq – and got annoyed at his equating willingness to send other people to get killed as a test of one’s foreign policy seriousness. But I’m over all that – it’s 2006. He admitted that he made a mistake and I’m not going to demand that he carve a Scarlet “I” on his chest. What continues to annoy me though is the Cold War analogy. It’s not just that it’s wrong as a descriptive matter (i.e., GWOT is not similar to the Cold War), using the Cold War as one’s frame of reference is actually counterproductive to winning the war on terrorism.

The first and most obvious problem is that the Cold War was a “battle” between state actors. At its essence, it was the United States and its allies fighting the Soviet Union and its allies (and sort of China). Yes, there were guerillas and roving paramilitaries, but all funding led back to powerful state actors.

The war on terrorism is not a battle between states, but a battle between states and non-state actors. Yes, al Qaeda benefited from the Taliban’s sanctuary, but it was still – at its essence – a stateless international group. What we’re fighting today is even less centralized than what we were fighting in 2001. We are at “war” with nodes of decentralized pissed-off radicals scattered across national boundaries.

The reason this distinction matters is that fighting states requires an entirely different strategy than fighting non-state actors. In a battle of states, a willingness to use traditional military force is far more important (even if only as a deterrent). Yes, the Cold War was about winning the hearts and minds of the “Third World,” but there was a far greater traditional military aspect to it. Without a containment strategy based on military force or the threat of force, communist forces would have seized far more land than they did (e.g., western Germany, South Korea).

The big point here is that, except for the novel nuclear dimension, the Cold War involved big, traditional state armies seizing and vying for territory.

The war on terrorism (i.e., on Islamic fundamentalism) is nothing like that. Winning it depends entirely on winning Muslim hearts and minds – that is, on removing the conditions that give rise to Islamic terrorism and persuading people that your alternative is better. It’s not about seizing and occupying land, or destroying a hostile state’s military. You could kill every terrorist in the world and not win the war on terror. That’s because there aren’t a finite number of terrorists – they’re not like state-centric militaries that can be beaten down. So long as young angry Muslims hate America, terrorism will be a continuing problem.

That’s why invading Iraq was such a horrible idea. It was a Cold War solution to a post-Cold War problem. What I mean is that it was a traditional military action of invading and occupying territory to fight a foe that has no territory. That’s why Bush’s incompetence didn’t really matter – the idea was inherently flawed because it was a state-centric solution to a non-state-centric problem. Yes, there is some Rube Goldberg-esque abstract logic by which setting up a democracy through military force ultimately leads to democracy flowering throughout the Middle East that leads to no more terrorism. But against that abstract and unlikely dream, you have the concrete reality of bombs and guns and Abu Ghraib and Haditha and all the other inevitable consequences of colonial-style warfare in faraway, hostile places.

That’s what annoys me about Beinart’s “Remember the Willard” schtick. He – and everyone else who invokes Truman’s containment strategy – confuses disagreement about the means with disagreement about the end. Look, I think everyone takes terrorism seriously after 9/11. I certainly do. But I don’t think military force is a very good way to fight it. In fact, it’s a counterproductive way to fight it because it’s based on outdated Cold War assumptions. The terrorists aren’t seeking to seize our land or conquer Western Europe. They're seeking to win over the Muslim world for fundamentalism. Traditional military solutions (bombing and occupying countries) will usually help them either by alienating the population or by creating failed states.

My disagreement with using military force to fight terrorism doesn’t mean I lack “fighting faith” or am a wussy or that I’m failing to appreciate the lessons of Truman. I oppose it because it doesn’t work – not against this enemy. In fact, military force helps this enemy. This is a global insurgency and Rule #1 in the insurgent playbook is to inspire a disproportionate response.

And even if the terrorists/fundamentalists aspire to be state actors, they're not going to seize power the same way that the Communists did. In other words, they're not going to win the Middle East with overpowering armies. To win, they must persuade the street to go their way (in part, by having a credible "Other" to rally against).

Getting back to Beinart, in his defense, he is making more sense circa 2006 than he was in 2003. Building better global institutions is a good idea and a more legitimate way to exert influence on the world. And I agree with a great deal of what he says. But I wish he would spare me the “let’s get serious – let’s learn from Truman” stuff.

I guess I just don’t know what he means when he says “let’s get serious.” If he’s just saying liberals should be open to using force, then he’s living in 1948 not 2006. The post-Vietnam generation of liberals doesn’t have a blanket objection to military force. We supported Afghanistan following 9/11 and we were horrified by the non-action in Rwanda and Darfur. What’s more, unlike the Left in 1947, there is no link whatsoever between American liberals and Islamic fundamentalism. It’s just another reason why Beinart’s analogy is such a bad one.

But even though he’s turned on Iraq, I still get the sense that what he’s really saying is that military force should be a key part of our war on terrorism. And he’s implying that you’re not serious – you’re not part of the Spirit of Willard – unless you put military force at the forefront of your terrorism strategy. I disagree 100% for the reasons stated above. And what I really object to is the implication that “seriousness” should be equated with your willingness to start wars.

The bottom line is that people like Beinart shouldn’t equate disagreement about effective anti-terrorism policy with a lack of seriousness about terrorism. Especially with such a strained historical analogy.

[On an aside, force in Afghanistan made more sense because you did have a state actor that was aiding and abetting terrorism. Accordingly, military force was better-suited to the problem. But Afghanistan is the exception.]

__________

Scene — Department of Homeland Security, Office of Grants and Training, Washington, DC

The esteemed Peer Review Action Committee chaired by Assistant Secretary Tracy Henke is holding hearings and calling witnesses. New York City walks into the room.

HENKE: So that finishes Omaha. (writing in notebook) Plus . . . 31 . . . percent. Ok. Let’s move on. New York City, you may take your seat. Clyde Frog, you have the floor.

CLYDE FROG: Thank you Chairperson Henke. Good morning New York. At the outset, I must say that I was very disappointed with your application.

NEW YORK CITY (NYC): Good morning Peer Review Member Clyde Frog. Madame Chairperson. Mr. Big Bird. Mr. Elmo. Other esteemed Peer Review panel members. As you know, New York City has been attacked twice in the past fifteen years by Islamic radicals. Intelligence reports consistently indicate that New York City remains a top target of terrorists across the world. It is therefore vital that New York gets the funding it needs to ensure the highest-quality prevention and first response. That’s why I welcome the opportunity to discuss our requests with you this morning. As you know, the requests in our application were carefully reviewed and—

CLYDE FROG: (interrupting) Excuse me. In reviewing your application, we noticed that you didn’t use a clear plastic cover. Can you explain why?

NYC: I don’t remember seeing anything about a clear plastic cover in the application procedures.

CLYDE FROG: Omaha’s application had a clear plastic cover. Kansas City’s application had a clear plastic cover. But not yours. Why didn’t NYC think outside of the box here? And what does that suggest about your proposals to prevent terrorism?

ELMO: Elmo like plastic covers. Plastic covers are Elmo’s friend.

NYC: I can assure the committee that NYC’s application complied with all the procedural rules —

BIG BIRD: I’m going to have to cut you off there, NYC. First, you faxed your application rather sending it electronically. Second, your application was addressed to the “Peer Review committee.”

NYC: Yes, that’s what the application procedure —

BIG BIRD: We are the “Peer Review Committee” with a capital “C.” Ka-Ka-Ka Committee. And it wouldn’t have killed you to add an “Esquire” on the end.

CLYDE FROG: Or an “Esteemed” at the beginning.

HENKE: (writing, and to herself) Minus . . . one . . . million.

NYC: Now wait a minute—

SNUFFY SNUFFALUFAGUS: Let’s move on to the scoring criteria. As you know NYC, eligibility for DHS grants is based upon rigorous and highly objective scoring criteria. Your eligibility is determined by the combination of your Individual Investment Score and your Overall Investment Justification Score, which is then multiplied by pi and divided by Einstein’s cosmological constant. Barney, can you take it from here?

ELMO: (singing) La-la-la-la, la-la-la-la, Elmo song!

BARNEY THE PURPLE DINOSAUR: Thank you Snuffy, and Madame Chairperson. The Overall Investment Justification Score is based on a number of rigidly defined criteria listed on the sheet in front of you. Because NYC utterly ignored these criteria in its application, we’ll have to ask you about them now.

NYC: Our application clearly explained that we have been the target of two al Qaeda attacks in the past fifteen—

BARNEY THE PURPLE DINOSAUR: (interrupting) NYC, please look at the sheet that lists the eligibility criteria. Do you see history of past attacks anywhere on that sheet?

NYC: No, I don’t see it, but—.

BARNEY THE PURPLE DINOSAUR: That’s what I thought. Ok then. Now, if I could stop being interrupted, I can ask my question. Can you please explain how your request — “More Money for Cops” — is connected with “the spirit of the Program and Capability Enhancement Plan?”

NYC: (confused) The Program and Capability, um, I’m sorry, what did you say?

HENKE: (writing, and shaking head) Minus . . . one . . . million.

BIG BIRD: I’d like to know why NYC failed to complete the personal narrative section of the application.

NYC: Frankly, Big Bird, the suggested themes didn’t seem that relevant.

BIG BIRD: But we gave you such latitude! You could have written about (1) a book you had read recently that changed the way you think about something important; (2) a scary moment from childhood: or (3) the person you admire most. That’s a great variety.

SNUFFY SNUFFALUFAGUS: St. Louis wrote a darling little essay about the time it knocked over its grandmother’s vase as a child and got really scared. It was great. We gave them an extra 30%.

BARNEY THE PURPLE DINOSAUR: Getting back to the grid, we were also a little concerned about the lack of “innovativeness in approaching identified needs” in your proposal to add more police officers.

NYC: More cops on the street is a proven method —

BARNEY THE PURPLE DINOSAUR: But that’s not innovative — and the lack of innovation penalties really drags down one’s Overall Investment Justification Score.

HENKE: You need to think more innovatively. For example, next year, don’t ask for cops on the street. Ask for cops on hovercrafts.

CLYDE FROG: Cops on hovercrafts with laser beams on their heads.

BIG BIRD: Listening to iPod nanos.

COOKIE MONSTER: Mmmm, cookies! Kansas City gave Cookie Monster cookies!

HENKE: (writing) Add . . . one . . . million . . . to . . . Kansas City.

BARNEY THE PURPLE DINOSAUR: Innovation is really the key to a strong Overall Investment Justification Score.

BIG BIRD: If I may interrupt, I also had some serious problems with your writing style.

NYC: (exasperated) Can you hand me some of those cookies, Cookie Monster?

BIG BIRD: You need to use bigger words. For instance, you write, “New York City faces many threats.” What you should have said is, “New York City faces a plethora of specters.”

CLYDE FROG: And there’s no harm in a good “ostensibly” here and there.

HENKE: Personally, I like “pusillanimous,” as in “the wine is exquisitely pusillanimous.”

NYC: I’m not sure that’s a correct usage.

HENKE: (writing) Minus . . . one . . . million.

CLYDE FROG: You’ll see from the Scratch N’ Sniff that we put on your application — which is not a lemony fresh scent, but a more sour licorice one — that we’re reducing your grant by 40%

NYC: (spitting out cookies) You can’t do that!

HENKE: We just did. We are the Peer Review Action Committee and we have been given the authority —

ELMO: Through recess appointments—

HENKE: To make these decisions.

NYC: This is an absolute outrage.

HENKE: It’s tough love. Maybe next year you’ll remember to use bigger words.

CLYDE FROG: And a clear plastic binder.

ELMO: And "ostensibly." Elmo like "ostensibly."

HENKE: As in, "the dog was ostensible."

[Fact sheet via Garance]