Saturday, April 29, 2006
I HOPE SHE AT LEAST GOT PAID WELL
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Friday, April 28, 2006
DON'T KNOW MUCH ABOUT HISTORY
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I’m a little late to the game in commenting on the recent bin Laden and Zarqawi tapes. One thing that struck me about them, though, was that they both used the term “Crusader” as a pejorative much like “Zionist.” I suspect the Crusades don’t register on most Americans’ radar, but they are a key part of – and weigh heavily upon – Muslim consciousness. And, to me, the failure of Americans to understand the lingering consequences of this historical event – and of History more generally – goes a long way in explaining why we blundered into Iraq despite worldwide opposition.
The movie Memento provides a pretty good metaphor of America’s historical memory. For those unfortunate souls who haven’t seen it, the main character (Guy Pearce) has some serious short-term memory problems. He loses his memory every 10 minutes or so and can’t make new memories. Thus, his world essentially starts anew every 10 minutes.
America’s consciousness of world history is sort of like that. Events happen and then vanish – they generally don’t “stick.” For that reason, when Americans act in the world, they act as though they’re starting from a blank slate. In some ways, this is one of our greatest virtues. For instance, this amnesia allowed us to shed the feudal traditions of Europe. The willingness to ignore the past also created the necessary conditions for American optimism and the so-called “can-do” American spirit that thinks it can fix all problems and right all wrongs.
But at other times, the obliviousness to the past crosses over into dangerous naivete. Without understanding the past, Americans can’t accurately predict the consequences of their actions, nor can they understand how their actions will be perceived by the people affected. See, e.g., Iraq.
To take one example, Americans generally have no clue about the legacy of the Crusades on the Middle East. And until I read a couple of books on the Crusades last year, I didn’t either. The Crusades never even registered as a real event to me – it was just something that happened a long time ago by people wearing funny outfits. But the Crusades were bad news – in fact, to call a spade a spade, it was genocide on an unprecedented scale. That legacy – of Christian armies butchering and raping and torturing Muslims in the name of God – casts a long shadow on the Middle East.
Fast forwarding to the present, regardless of whether our motives for invading Iraq were angelically pure, they were inevitably going to be seen through the lens of the Crusades. That’s why we needed to be extra careful – and that’s also why Abu Ghraib and Gitmo were such monumental catastrophes. To the Muslim consciousness, it was Jerusalem 1099 all over again – Christians killing and torturing Arabs, this time for “freedom.” It’s no accident, then, that bin Ladin and Zarqawi still think they can get mileage out of the term “crusader.”
Another example of our historical amnesia is that Americans don’t realize how unsuccessful their “democracy promotion” record has been in the past century. In a recent NYT Sunday Book Review, Anatol Lieven (author of the excellent America Right or Wrong) reviewed Stephen Kinzer’s Overthrow: America’s Century of Regime Change from Hawaii to Iraq. Here are some highlights from his review:
It’s the same point – Americans think they act on a blank slate. But the world – those with less power who have been acted upon – don’t share that view. When we start talking about bringing democracy to the world, we mean it and are sincere about it. But a lot of the world says, “O brother, here they go again.” We forget, they don’t.
But to dig one level deeper – why is it that we forget things like the Crusades (and other botched regime changes) while much of the world does not? I know I keep getting into psychological explanations lately, but I think it has something to do with the psychology of losing. Or more precisely, with the effects of being forced to internalize the consequences of failure and defeat. Loss looms heavier on the psyche – especially if you feel the consequences of that loss directly.
Let me try to explain what I mean. We don’t think much about our failures and losses in Iran and Guatemala in the 50s because the American public never had to internalize those losses. Yes, they were losses but distant ones far removed. In general, Americans just haven’t had to internalize defeat, loss, and humiliation in the same way that other people have. And so, it’s not rooted in our consciousness. One exception, of course, was Vietnam. In that case, the costs were felt at home. But I think it’s safe to say that even the memory of Vietnam is fading – we certainly ignored it in our march into Iraq. And looking ahead, my generation simply doesn’t feel it in the same way that older ones do. That’s why I think it’s not going to give rise to a permanent resentment that colors American consciousness.
Interestingly, the two groups of people in America that do have a collective consciousness of resentment are white Southerners and blacks. Say what you will about both groups, they don’t forget. The Southern humiliation in the Civil War (and the hair-trigger inferiority complex it generated) lives on to this day. The appalling historical treatment of African-Americans also forms a permanent lens that causes black people to continue viewing certain actions in distinct ways (e.g., Confederate flag over state capitols). Both groups feel that they have been historically wronged and even humiliated. In fact, one reason that hostility runs so deep between them is that both groups blame the other one for the perceived injustices dealt upon them.
This same sense of past injustice and defeat – which continues to poison Southern consciousness – also looms large in Muslims’ minds. The Crusades and colonialism are to Muslims what Sherman’s burning of Atlanta is to Southerners. And when we go marching off to war, that's the kind of stuff in the back of Muslims' mind. That's not necessarily an argument against war, but it is an argument for why you should refrain from attaching electrodes to people's balls and then taking pictures of it.
To sum up, our record on this stuff simply hasn't been that good. We would do well to remember that for once before we launch Dick and George's Excellent Adventure II (Tehran Edition).
I’m a little late to the game in commenting on the recent bin Laden and Zarqawi tapes. One thing that struck me about them, though, was that they both used the term “Crusader” as a pejorative much like “Zionist.” I suspect the Crusades don’t register on most Americans’ radar, but they are a key part of – and weigh heavily upon – Muslim consciousness. And, to me, the failure of Americans to understand the lingering consequences of this historical event – and of History more generally – goes a long way in explaining why we blundered into Iraq despite worldwide opposition.
The movie Memento provides a pretty good metaphor of America’s historical memory. For those unfortunate souls who haven’t seen it, the main character (Guy Pearce) has some serious short-term memory problems. He loses his memory every 10 minutes or so and can’t make new memories. Thus, his world essentially starts anew every 10 minutes.
America’s consciousness of world history is sort of like that. Events happen and then vanish – they generally don’t “stick.” For that reason, when Americans act in the world, they act as though they’re starting from a blank slate. In some ways, this is one of our greatest virtues. For instance, this amnesia allowed us to shed the feudal traditions of Europe. The willingness to ignore the past also created the necessary conditions for American optimism and the so-called “can-do” American spirit that thinks it can fix all problems and right all wrongs.
But at other times, the obliviousness to the past crosses over into dangerous naivete. Without understanding the past, Americans can’t accurately predict the consequences of their actions, nor can they understand how their actions will be perceived by the people affected. See, e.g., Iraq.
To take one example, Americans generally have no clue about the legacy of the Crusades on the Middle East. And until I read a couple of books on the Crusades last year, I didn’t either. The Crusades never even registered as a real event to me – it was just something that happened a long time ago by people wearing funny outfits. But the Crusades were bad news – in fact, to call a spade a spade, it was genocide on an unprecedented scale. That legacy – of Christian armies butchering and raping and torturing Muslims in the name of God – casts a long shadow on the Middle East.
Fast forwarding to the present, regardless of whether our motives for invading Iraq were angelically pure, they were inevitably going to be seen through the lens of the Crusades. That’s why we needed to be extra careful – and that’s also why Abu Ghraib and Gitmo were such monumental catastrophes. To the Muslim consciousness, it was Jerusalem 1099 all over again – Christians killing and torturing Arabs, this time for “freedom.” It’s no accident, then, that bin Ladin and Zarqawi still think they can get mileage out of the term “crusader.”
Another example of our historical amnesia is that Americans don’t realize how unsuccessful their “democracy promotion” record has been in the past century. In a recent NYT Sunday Book Review, Anatol Lieven (author of the excellent America Right or Wrong) reviewed Stephen Kinzer’s Overthrow: America’s Century of Regime Change from Hawaii to Iraq. Here are some highlights from his review:
"Overthrow" is the history of forcible regime changes by the United States and its local allies over the past 110 years, starting with the undermining of the Hawaiian monarchy in 1893, passing through Cuba (1898), the Philippines (1898), Iran (1953), Guatemala (1954) and elsewhere, and ending with present-day Iraq.
. . .
It should be essential reading for any Americans who wish to understand both their country's historical record in international affairs, and why that record has provoked anger and distrust in much of the world. Most important, it helps explain why, outside of Eastern Europe, American pronouncements about spreading democracy and freedom, as repeatedly employed by the Bush administration, are met with widespread incredulity.
It’s the same point – Americans think they act on a blank slate. But the world – those with less power who have been acted upon – don’t share that view. When we start talking about bringing democracy to the world, we mean it and are sincere about it. But a lot of the world says, “O brother, here they go again.” We forget, they don’t.
But to dig one level deeper – why is it that we forget things like the Crusades (and other botched regime changes) while much of the world does not? I know I keep getting into psychological explanations lately, but I think it has something to do with the psychology of losing. Or more precisely, with the effects of being forced to internalize the consequences of failure and defeat. Loss looms heavier on the psyche – especially if you feel the consequences of that loss directly.
Let me try to explain what I mean. We don’t think much about our failures and losses in Iran and Guatemala in the 50s because the American public never had to internalize those losses. Yes, they were losses but distant ones far removed. In general, Americans just haven’t had to internalize defeat, loss, and humiliation in the same way that other people have. And so, it’s not rooted in our consciousness. One exception, of course, was Vietnam. In that case, the costs were felt at home. But I think it’s safe to say that even the memory of Vietnam is fading – we certainly ignored it in our march into Iraq. And looking ahead, my generation simply doesn’t feel it in the same way that older ones do. That’s why I think it’s not going to give rise to a permanent resentment that colors American consciousness.
Interestingly, the two groups of people in America that do have a collective consciousness of resentment are white Southerners and blacks. Say what you will about both groups, they don’t forget. The Southern humiliation in the Civil War (and the hair-trigger inferiority complex it generated) lives on to this day. The appalling historical treatment of African-Americans also forms a permanent lens that causes black people to continue viewing certain actions in distinct ways (e.g., Confederate flag over state capitols). Both groups feel that they have been historically wronged and even humiliated. In fact, one reason that hostility runs so deep between them is that both groups blame the other one for the perceived injustices dealt upon them.
This same sense of past injustice and defeat – which continues to poison Southern consciousness – also looms large in Muslims’ minds. The Crusades and colonialism are to Muslims what Sherman’s burning of Atlanta is to Southerners. And when we go marching off to war, that's the kind of stuff in the back of Muslims' mind. That's not necessarily an argument against war, but it is an argument for why you should refrain from attaching electrodes to people's balls and then taking pictures of it.
To sum up, our record on this stuff simply hasn't been that good. We would do well to remember that for once before we launch Dick and George's Excellent Adventure II (Tehran Edition).
Thursday, April 27, 2006
I THOUGHT WE WERE LIBERALS
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Does anyone else think that pointing out that a Congressman got drunk a college party is a bit, well, puritanical? I thought we were godless liberals. We like drinking and parties. We're the party of death, remember?
Hell, this is the first thing I've seen that made me want to vote for a Republican in some time. Let's not out-prude the prudes.
Does anyone else think that pointing out that a Congressman got drunk a college party is a bit, well, puritanical? I thought we were godless liberals. We like drinking and parties. We're the party of death, remember?
Hell, this is the first thing I've seen that made me want to vote for a Republican in some time. Let's not out-prude the prudes.
PRESS: Representative Sweeney, how do you respond to the criticism of your recent actions?
SWEENEY: Criticism? For what? For bein' awesome?
OPEN THREAD: Net Neutrality
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I'm oh-so-close to being able to post regularly again, but I'm not quite there yet. So, given that net neutrality got shot down in a House committee yesterday, I thought I'd invite people to share their thoughts on this issue.
As for me, I did my big net neutrality post last month. My point was that the reason net neutrality is so important is that it's the foundation (the necessary precondition) of the deregulatory regime. In other words, deregulation only makes sense if net neutrality is regulated. (On an aside, this is a good example of how smart government regulation can often increase and encourage market competition).
The justification for deregulating the telecommunications industry is that "multi-platformed" services have emerged and thus have increased competition across platforms. For instance, wireline phones need less regulation because of the rise of alternative platforms including wireless and VOIP. Cable needs less regulation because of IPTV, and so forth.
That's all true, but it assumes that these services will be made equally available over pipes owned and operated by those services' competitors - i.e., Bells and Big Cable. And that's a not a good assumption. Simply put, because of the Bell/cable duopoly (at best) on broadband, the market can't really be relied on to usher in this golden age of multi-platform competition.
Anyway, I spell it out in more detail in my post.
I'm oh-so-close to being able to post regularly again, but I'm not quite there yet. So, given that net neutrality got shot down in a House committee yesterday, I thought I'd invite people to share their thoughts on this issue.
As for me, I did my big net neutrality post last month. My point was that the reason net neutrality is so important is that it's the foundation (the necessary precondition) of the deregulatory regime. In other words, deregulation only makes sense if net neutrality is regulated. (On an aside, this is a good example of how smart government regulation can often increase and encourage market competition).
The justification for deregulating the telecommunications industry is that "multi-platformed" services have emerged and thus have increased competition across platforms. For instance, wireline phones need less regulation because of the rise of alternative platforms including wireless and VOIP. Cable needs less regulation because of IPTV, and so forth.
That's all true, but it assumes that these services will be made equally available over pipes owned and operated by those services' competitors - i.e., Bells and Big Cable. And that's a not a good assumption. Simply put, because of the Bell/cable duopoly (at best) on broadband, the market can't really be relied on to usher in this golden age of multi-platform competition.
Anyway, I spell it out in more detail in my post.
Tuesday, April 25, 2006
HOWL: The Hyena Chorus Returns
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So I’ve been toiling away in the dungeons of late – but something finally drew me out. A sound in the distance. It was faint at first. I wasn’t even sure I heard anything. But then it got louder. And louder. Now curious, I trudged up the dungeon stairs toward the light until I could hear it more clearly. It was a shrieking Howl – a chorus of hyenas. And they were calling for the heads of Mary McCarthy and Dana Priest. I saw them all – the worst minds of my generation shrieking about treason. And so I figured it was time to get back in the saddle.
Where to begin with this business. I think the McCarthy Howl is a perfect example of the phenomenon I described about a year ago in a post called “Freud and the Hyena Chorus.” I was attempting to look at right-wing bloggy outrages like these more systematically to determine what actually triggers them – i.e, what are the necessary preconditions? After all, Right Blogistan complains about a lot, but not everything (or even a lot) generates the sort of Howl that we’re seeing now.
Anyway, here’s what I had to say:
What I meant by “larger critiques” is that these outrages usually occur in the context of a story that is potentially very damaging to the party aligned with the Howlers. For instance, despite Dan Rather’s significant mistakes, the larger critique about Bush ducking service in Vietnam was true – and caused cognitive dissonance, especially among people who cheered on the accusations of treason against Kerry, the decorated war veteran. Same deal with the Gitmo/Newsweek flare-up – the administration clearly tortured people using Islam-centric techniques regardless of whether one journalist’s source was shaky.
In short, despite the errors or misjudgments of the individuals in the media reporting on the story, the larger critiques were true. But those errors and misjudgments – even though they were irrelevant to the larger critique – gave people a way to deal with the cognitive dissonance swirling around in their minds. In short, they needed these stories to be products of bias because it helped them avoid facing the truth and dealing with its implications (e.g., that we have state-sanctioned torture; that Bush dodged the draft).
The attacks on Dana Priest and Mary McCarthy fit this mold perfectly. To begin, let’s not lose sight of what we’re talking about here – the United States of America authorized illegal phantom renditions to black site torture camps in old Communist prisons in Eastern Europe. Few actions so perfectly capture the glaring contradiction to our appeals to dignity, idealism, and freedom. You can’t be an idealist and authorize black site torture camps. You can’t preach the rule of law and create amini-Gulag a small archipelago of torture camps away from the eyes of the world and international law. And if your last remaining justification of the Iraq War is idealism and humanitarianism, well then, the black site torture camps are a pretty damn big problem.
Enter Dana Priest and Mary McCarthy. Now I don’t know who leaked what, and I agree that whoever leaked it to Priest assumed the risk that his or her action would have consequences. But that said, the leaking of illegal torture camps bothers me about 1/1,000,000th as much as the camps themselves bother me. The illegal black sites should be what we’re upset about if we’re really serious about this whole human dignity, Bush Second Inaugural business.
And to be fair, I think a lot of conservatives are. They either believe in it strongly, or have come to believe in it. Either way, the black sites would naturally produce a lot of cognitive dissonance. And that’s precisely why the Howlers need Priest and McCarthy to be scapegoats. Hammering them allows the Howlers to escape the more disturbing truth – that their president authorized illegal renditions to black sites where people were tortured, apparently in the name of freedom.
So I’ve been toiling away in the dungeons of late – but something finally drew me out. A sound in the distance. It was faint at first. I wasn’t even sure I heard anything. But then it got louder. And louder. Now curious, I trudged up the dungeon stairs toward the light until I could hear it more clearly. It was a shrieking Howl – a chorus of hyenas. And they were calling for the heads of Mary McCarthy and Dana Priest. I saw them all – the worst minds of my generation shrieking about treason. And so I figured it was time to get back in the saddle.
Where to begin with this business. I think the McCarthy Howl is a perfect example of the phenomenon I described about a year ago in a post called “Freud and the Hyena Chorus.” I was attempting to look at right-wing bloggy outrages like these more systematically to determine what actually triggers them – i.e, what are the necessary preconditions? After all, Right Blogistan complains about a lot, but not everything (or even a lot) generates the sort of Howl that we’re seeing now.
Anyway, here’s what I had to say:
By my scorecard, there have been five major unified hyena attacks that had (or almost had) a major impact on the media: (1) Rather; (2) Swift Boats; (3) Eason Jordan; (4) Schiavo/Martinez memo; and (5) Newsweek. For now, I’m going to put the Swift Boat story aside because it’s analytically different. It involved an attack on a political candidate rather than on the media itself. In the other four, the mob demanded the head of someone in the media itself.
When you put these four stories side-by-side, you can see some common characteristics. First, and most obviously, they all include negative critiques of either the administration or the Republican leadership more generally. But more critically, they all involve specific types of critiques. With the exception of Jordan, they are all subsets of larger critiques that are almost indisputably true. These larger critiques are also the sort of critiques that trigger immense cognitive dissonance for Bush supporters. In my expert psychological opinion, the lynch-mob hyena attack is a defense mechanism against cognitive dissonance rather than sincere outrage against media bias.
What I meant by “larger critiques” is that these outrages usually occur in the context of a story that is potentially very damaging to the party aligned with the Howlers. For instance, despite Dan Rather’s significant mistakes, the larger critique about Bush ducking service in Vietnam was true – and caused cognitive dissonance, especially among people who cheered on the accusations of treason against Kerry, the decorated war veteran. Same deal with the Gitmo/Newsweek flare-up – the administration clearly tortured people using Islam-centric techniques regardless of whether one journalist’s source was shaky.
In short, despite the errors or misjudgments of the individuals in the media reporting on the story, the larger critiques were true. But those errors and misjudgments – even though they were irrelevant to the larger critique – gave people a way to deal with the cognitive dissonance swirling around in their minds. In short, they needed these stories to be products of bias because it helped them avoid facing the truth and dealing with its implications (e.g., that we have state-sanctioned torture; that Bush dodged the draft).
The attacks on Dana Priest and Mary McCarthy fit this mold perfectly. To begin, let’s not lose sight of what we’re talking about here – the United States of America authorized illegal phantom renditions to black site torture camps in old Communist prisons in Eastern Europe. Few actions so perfectly capture the glaring contradiction to our appeals to dignity, idealism, and freedom. You can’t be an idealist and authorize black site torture camps. You can’t preach the rule of law and create a
Enter Dana Priest and Mary McCarthy. Now I don’t know who leaked what, and I agree that whoever leaked it to Priest assumed the risk that his or her action would have consequences. But that said, the leaking of illegal torture camps bothers me about 1/1,000,000th as much as the camps themselves bother me. The illegal black sites should be what we’re upset about if we’re really serious about this whole human dignity, Bush Second Inaugural business.
And to be fair, I think a lot of conservatives are. They either believe in it strongly, or have come to believe in it. Either way, the black sites would naturally produce a lot of cognitive dissonance. And that’s precisely why the Howlers need Priest and McCarthy to be scapegoats. Hammering them allows the Howlers to escape the more disturbing truth – that their president authorized illegal renditions to black sites where people were tortured, apparently in the name of freedom.
Thursday, April 20, 2006
A REALLY BOLD CHANGE, REALLY, IT'S BOLD... BOLD
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Is anyone else, um, underwhelmed by the BIG POLICY SHAKE-UP announced in bold on the front page of the Washington Post. To be honest, I don't know what exactly Rove is currently doing that is so different from what he was doing during the first four years before he was "deputy chief of staff for policy." I mean, the steel tariffs and the Medicare Rx bill probably didn't come from whoever was the "deputy chief" back then. It came from someone with their eye on the electoral college map.
If anything, it sounds like Rove was doing some additional paperwork, but I can't imagine that (1) his role suddenly increased after the 2004 election; or that (2) his role will suddenly decrease with this bold "demotion," which shows Bolton's steel resolve to shake things up.
From here, it looks like they're just putting a different sticker on Rove's door and then getting the press to go along with the BOLD CHANGES AHEAD!! storyline.
The fact is that nothing much is going to change so long as Rove and Cheney wield the power that they do. If anything, Card's departure consolidates their power because Card was a check on Rove.
Again, maybe "deputy chief of staff for policy" actually was substantively different from whatever he was doing in the first term. I'll confess that I don't know, but I doubt it. Rove is still running the show - there has been no real change (as the appointment of long-time Rove ally Bolton made clear).
But what will be interesting to watch is whether the press will passively accept this storyline of BIG BOLD CHANGES. Maybe I'm wrong, but it seems like another BIG IRAQ SPEECH that CNN always covers but that adds nothing of substance to our Iraq policy.
Is anyone else, um, underwhelmed by the BIG POLICY SHAKE-UP announced in bold on the front page of the Washington Post. To be honest, I don't know what exactly Rove is currently doing that is so different from what he was doing during the first four years before he was "deputy chief of staff for policy." I mean, the steel tariffs and the Medicare Rx bill probably didn't come from whoever was the "deputy chief" back then. It came from someone with their eye on the electoral college map.
If anything, it sounds like Rove was doing some additional paperwork, but I can't imagine that (1) his role suddenly increased after the 2004 election; or that (2) his role will suddenly decrease with this bold "demotion," which shows Bolton's steel resolve to shake things up.
From here, it looks like they're just putting a different sticker on Rove's door and then getting the press to go along with the BOLD CHANGES AHEAD!! storyline.
The fact is that nothing much is going to change so long as Rove and Cheney wield the power that they do. If anything, Card's departure consolidates their power because Card was a check on Rove.
Again, maybe "deputy chief of staff for policy" actually was substantively different from whatever he was doing in the first term. I'll confess that I don't know, but I doubt it. Rove is still running the show - there has been no real change (as the appointment of long-time Rove ally Bolton made clear).
But what will be interesting to watch is whether the press will passively accept this storyline of BIG BOLD CHANGES. Maybe I'm wrong, but it seems like another BIG IRAQ SPEECH that CNN always covers but that adds nothing of substance to our Iraq policy.
Wednesday, April 19, 2006
LAME (Cont'd)
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Ok - I'm out of here at least through the weekend. I hope to return Sunday night.
Ok - I'm out of here at least through the weekend. I hope to return Sunday night.
Tuesday, April 18, 2006
SORRY TO BE SO LAME
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Work has me double-secret-swamped pretty much all week. If it turns out I can't post all week, I'll let you know though.
Work has me double-
Sunday, April 16, 2006
METHOD TO THE FCC'S MADNESS?
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Of the various indecency fines that the FCC recently filed against numerous broadcasters, the one that seemed the most outrageous (and ridiculous) was the fine against a local PBS station for airing Martin Scorsese’s documentary on the history of the blues. Apparently, recordings of old blues musicians saying “shit” and “fuck” were too much for Americans’ delicate sensibilities.
However, now that the broadcasters have sued the FCC, the fine makes more sense. The FCC levied the PBS fine to cover its own ass in court.
I wish I could take credit for this idea, but it belongs to a nameless colleague of mine. Anyway, the broadcasters are going to attack the FCC fines on a number of fronts – including both First Amendment grounds and administrative law grounds. On the latter, administrative agencies generally must demonstrate a sufficient factual and rational basis for their actions. Otherwise, the action is deemed “arbitrary and capricious” and can be struck down by courts. The First Amendment analysis is doctrinally different, but many of the same ideas apply. The more that content regulation appears even-handed, the more likely it is that it will be upheld. The more it looks like the government was going after specific objectionable content from a specific actor, the less likely it is that the content regulation will be upheld.
Hopefully, you can begin to see why the PBS fine will be helpful to the FCC – and why it will feature prominently in their briefs. The PBS fine allows the FCC to say, “Hey, we weren’t going after seedy sitcoms alone. We were just enforcing the rules across the board. Notice that we fined a PBS blues documentary too.” The PBS fine arguably makes the indecency fines more even-handed and less arbitrary.
While we’re on the subject though, I’m not sure what the justification for allowing the FCC to continue policing indecency is. The indecency rules were created in an age where broadcasters were the only show in town. You literally couldn’t get away from them when you turned on the TV. With the rise of cable and other alternative media, what’s the continuing justification of granting the agency this authority? If there is some sort of label or warning about the content of a broadcaster’s program, what grounds do parents have to complain?
Of the various indecency fines that the FCC recently filed against numerous broadcasters, the one that seemed the most outrageous (and ridiculous) was the fine against a local PBS station for airing Martin Scorsese’s documentary on the history of the blues. Apparently, recordings of old blues musicians saying “shit” and “fuck” were too much for Americans’ delicate sensibilities.
However, now that the broadcasters have sued the FCC, the fine makes more sense. The FCC levied the PBS fine to cover its own ass in court.
I wish I could take credit for this idea, but it belongs to a nameless colleague of mine. Anyway, the broadcasters are going to attack the FCC fines on a number of fronts – including both First Amendment grounds and administrative law grounds. On the latter, administrative agencies generally must demonstrate a sufficient factual and rational basis for their actions. Otherwise, the action is deemed “arbitrary and capricious” and can be struck down by courts. The First Amendment analysis is doctrinally different, but many of the same ideas apply. The more that content regulation appears even-handed, the more likely it is that it will be upheld. The more it looks like the government was going after specific objectionable content from a specific actor, the less likely it is that the content regulation will be upheld.
Hopefully, you can begin to see why the PBS fine will be helpful to the FCC – and why it will feature prominently in their briefs. The PBS fine allows the FCC to say, “Hey, we weren’t going after seedy sitcoms alone. We were just enforcing the rules across the board. Notice that we fined a PBS blues documentary too.” The PBS fine arguably makes the indecency fines more even-handed and less arbitrary.
While we’re on the subject though, I’m not sure what the justification for allowing the FCC to continue policing indecency is. The indecency rules were created in an age where broadcasters were the only show in town. You literally couldn’t get away from them when you turned on the TV. With the rise of cable and other alternative media, what’s the continuing justification of granting the agency this authority? If there is some sort of label or warning about the content of a broadcaster’s program, what grounds do parents have to complain?
Thursday, April 13, 2006
THE DAY AFTER
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Let me say Amen to this post from Yglesias:
Let me say one other thing too. I strongly oppose all the impeachment talk, and I oppose (less strongly) the censure movement too (and have drawn ire from most of you for that). But if we strike Iran militarily, impeachment proceedings should begin the next day.
This is lunacy people. And it's not a trifling matter - this is World-Historical stuff we're talking about now. It is orders of magnitude more significant than the NSA program and even torture. It's one thing to leave our own country in such poor shape, it's quite another to do that to the world without its consent (especially if they're serious about using "tactical" nuclear weapons).
Striking Iran now (I mean, I can't believe we're actually discussing this in light of Iraq, but anyway . . . ) would affect Americans for generations. It would pretty much destroy whatever is left of our international credibility and the institutions we (WE) created to help our (OUR) interests. We would certainly lose the young pro-Western Iranians for good, alienate ourselves from the emerging regional power (caused by us), and put the finishing touches on whatever remaining Muslims didn't already hate us. I mean, we've done a pretty good job on those fronts already, but striking Iran now when they're not even close to a bomb would be the coup de grace. It isn't just dumb, it's criminal recklessness that our children will never stop paying for.
These people are out of control. I mean, until yesterday, even I didn't think they would be so foolish to strike Iran until Billmon put it in a way that made me understand:
There's no reason we should let them destroy whatever credibility we have left - not to mention dragging the world into a new regional war as Shiites all over the world retaliate. If they are so stupid and reckless to strike Iran, there's no choice but to try to remove them. Bush and Cheney. The next morning. It won't work, but I don't care.
Sorry to be shrill but this is a very big deal. Also, if the strike comes and Democrats repeat their Rose Garden moment, I for one am finished with them for good. If they want a position on military strikes against Iran for 2006, here's one - don't do it. There are other penalties than bombs.
I'm drawing the line here and I'm dead serious about it. We already allowed one tragedy to happen. We can't allow another one.
Let me say Amen to this post from Yglesias:
Rather, there's a widespread view on the American right that it's always a mistake to reach diplomatic agreements with "evil" regimes. There's also a widespread view on the American right that, contra the examples of Joseph Stalin and Mao Zedong, nuclear deterrence won't work against "crazy" leaders. At the intersection of those two opinions is the conclusion that we ought to be very, very, very, very willing to use unilateral preventative military force against countries that have nuclear weapons programs or that we merely vaguely suspect of having nuclear weapons programs. Both of those ideas are foolish and dangerously wrong, but they're also widespread -- not private oddball notions of Bush's. If liberals want to push this country's foreign policy in a better direction over the next five-to-ten years, we need to attack the whole network of ideas (including a non-trivial number of ideas whose origins are inside the Democratic coalition) that gave us the Iraq War and that threaten to give us the Iran War.
Let me say one other thing too. I strongly oppose all the impeachment talk, and I oppose (less strongly) the censure movement too (and have drawn ire from most of you for that). But if we strike Iran militarily, impeachment proceedings should begin the next day.
This is lunacy people. And it's not a trifling matter - this is World-Historical stuff we're talking about now. It is orders of magnitude more significant than the NSA program and even torture. It's one thing to leave our own country in such poor shape, it's quite another to do that to the world without its consent (especially if they're serious about using "tactical" nuclear weapons).
Striking Iran now (I mean, I can't believe we're actually discussing this in light of Iraq, but anyway . . . ) would affect Americans for generations. It would pretty much destroy whatever is left of our international credibility and the institutions we (WE) created to help our (OUR) interests. We would certainly lose the young pro-Western Iranians for good, alienate ourselves from the emerging regional power (caused by us), and put the finishing touches on whatever remaining Muslims didn't already hate us. I mean, we've done a pretty good job on those fronts already, but striking Iran now when they're not even close to a bomb would be the coup de grace. It isn't just dumb, it's criminal recklessness that our children will never stop paying for.
These people are out of control. I mean, until yesterday, even I didn't think they would be so foolish to strike Iran until Billmon put it in a way that made me understand:
This [argument - i.e., that this is just bluster] may seem plausible – that is, if you were in a catatonic stupor throughout 2002 and the early months of 2003[.]
There's no reason we should let them destroy whatever credibility we have left - not to mention dragging the world into a new regional war as Shiites all over the world retaliate. If they are so stupid and reckless to strike Iran, there's no choice but to try to remove them. Bush and Cheney. The next morning. It won't work, but I don't care.
Sorry to be shrill but this is a very big deal. Also, if the strike comes and Democrats repeat their Rose Garden moment, I for one am finished with them for good. If they want a position on military strikes against Iran for 2006, here's one - don't do it. There are other penalties than bombs.
I'm drawing the line here and I'm dead serious about it. We already allowed one tragedy to happen. We can't allow another one.
Wednesday, April 12, 2006
GOOD WEEK FOR PEOPLE WHO LOVE BAD WEEKS
__________
I'm entering another one of those insanely-busy periods at work. I'll post when I can, but it may be anemic over the next few days. It's really annoying - there's so much I want to write about right now, on everything from Iran to the Washington Post's latest scoop to the psychologically-fascinating attacks on the Post's story from the right-wing-o'sphere. (The Post - good paper, bad editorial board).
I'm entering another one of those insanely-busy periods at work. I'll post when I can, but it may be anemic over the next few days. It's really annoying - there's so much I want to write about right now, on everything from Iran to the Washington Post's latest scoop to the psychologically-fascinating attacks on the Post's story from the right-wing-o'sphere. (The Post - good paper, bad editorial board).
GIANTS, I SAY
__________
Marshall Wittman, mistaking opposition to bad policy with knee-jerk partisanship:
Of course, we've heard this song before. Here's the DLC Blueprint editorial from April 2003:
I think Cervantes pretty sums up my thoughts on the current plans for a premature military strike against Iran "to take out their nukes," nukes they are not even close to developing:
Marshall Wittman, mistaking opposition to bad policy with knee-jerk partisanship:
The Moose wonders whether the left will take a holiday from history out of partisan pique. The Moose continues to be struck by the state of shock on the left about the reports on Pentagon planning to take out the Iranian nukes.
. . .
Far more is at stake here than the fates of political parties - the security of the country is in the balance and it demands credible, bi-partisan leadership.
This is a dangerous world and our enemies will not wait until we put our political house in order. A confrontation with Iraq [sic] is not inevitable, but petty and irresponsible partisanship will tell the Iranians that they have nothing to fear from the threats from the U.S. . . . No, the only foe of the left is W., and if the Iranians get the bomb, so be it. This is the partisanship of fools.
Of course, we've heard this song before. Here's the DLC Blueprint editorial from April 2003:
But Democrats must overcome both their own and the opposition's partisan instincts, and act in the national interest. The president's decision to prosecute this war without explicit authorization from the United Nations was a close call, but it was the right call.
. . .
Moreover, Iraq is clearly involved in both the quest for weapons of mass destruction and in fomenting anti-Western terrorism, whether or not there are direct links between Baghdad and Al Qaeda. The risks of war are eclipsed by the risk of tolerating a conjunction between terrorists and weapons of mass destruction, in a country ruled by a bitter enemy of America, and in the most volatile region of the world.
. . .
As a matter of principle and of tradition -- of policy and of politics -- Democrats need to stand resolutely in support of successful prosecution of the war. There will be plenty of disputes with the administration to pursue in the aftermath of military victory[.]
I think Cervantes pretty sums up my thoughts on the current plans for a premature military strike against Iran "to take out their nukes," nukes they are not even close to developing:
At this point they came in sight of thirty or forty windmills that are on that plain.
"Fortune," said Don Quixote to his squire, as soon as he had seen them, "is arranging matters for us better than we could have hoped. Look there, friend Sancho Panza, where thirty or more monstrous giants rise up, all of whom I mean to engage in battle and slay, and with whose spoils we shall begin to make our fortunes. For this is righteous warfare, and it is God's good service to sweep so evil a breed from off the face of the earth."
"What giants?" said Sancho Panza.
"Those you see there," answered his master, "with the long arms, and some have them nearly two leagues long."
"Look, your worship,'' said Sancho. "What we see there are not giants but windmills, and what seem to be their arms are the vanes that turned by the wind make the millstone go."
"It is easy to see," replied Don Quixote, "that you are not used to this business of adventures. Those are giants, and if you are afraid, away with you out of here and betake yourself to prayer, while I engage them in fierce and unequal combat."
So saying, he gave the spur to his steed Rocinante, heedless of the cries his squire Sancho sent after him, warning him that most certainly they were windmills and not giants he was going to attack. He, however, was so positive they were giants that he neither heard the cries of Sancho, nor perceived, near as he was, what they were.
"Fly not, cowards and vile beings," he shouted, "for a single knight attacks you."
A slight breeze at this moment sprang up, and the great vanes began to move.
"Though ye flourish more arms than the giant Briareus, ye have to reckon with me!" exclaimed Don Quixote, when he saw this.
So saying, he commended himself with all his heart to his ladyDulcineaNational Interest, imploring her to support him in such a peril. With lance braced and covered by his shield, he charged at Rocinante's fullest gallop and attacked the first mill that stood in front of him. But as he drove his lance-point into the sail, the wind whirled it around with such force that it shivered the lance to pieces. It swept away with it horse and rider, and they were sent rolling over the plain, in sad condition indeed.
Sancho hastened to his assistance as fast as the ass could go. When he came up and found Don Quixote unable to move, with such an impact had Rocinante fallen with him.
"God Bless me!," said Sancho, "did I not tell your worship to watch what you were doing, because they were only windmills? No one could have made any mistake about it unless he had something of the same kind in his head."
"Silence, friend Sancho," replied Don Quixote. "The fortunes of war more than any other are liable to frequent fluctuations. Moreover I think, and it is the truth, that the same sageFrestónTed Kennedy who carried off my study and books, has turned these giants into mills in order to rob me of the glory of vanquishing them, such is the enmity he bears me. But in the end his wicked arts will avail but little against my good sword."
Tuesday, April 11, 2006
A NEW DAY RISING - Thoughts on the March
__________
My generation has 60s envy. It’s part admiration, part disgust, and part jealousy. We love it and hate it. We are products of it, but resent it. Specifically, we resent that we don’t have the same battles to fight. But most of all, we resent that the present is conceptualized in 60s-centric narratives. Iraq is Vietnam. Today’s pro-immigrant rally was the 1963 March on Washington. Band [X] is the next Beatles. Whether we like it or not, the 60s is our baseline – it is the cultural paradigm (in the Kuhn sense) that we can’t escape.
As I mentioned earlier, I walked down to the Mall today to see the demonstrations. Given the chip on my shoulder about the 60s, I was determined not to squeeze it – Procrustes-like – into some cheesy 60s romantic narrative. I was going to observe, have a coke, and go back to my interrogatories. But I failed miserably. I was totally floored today. Forgive the earnest sappiness, but the demonstration I watched today was a thing of beauty. And much to my chagrin, I understood a little better than I did before why the 60s lives on in so many people’s minds.
The first thing that stood out today was the sheer magnitude of the crowd. The Post reported that there were hundreds of thousands of people there. I believe it. People just kept pouring in from the streets. For those who haven’t seen it, the Mall is a big place. And it was packed – at least from where I was standing, which was approximately halfway between the Capitol and the Washington Monument. [I’d like to see an aerial shot to see how far it extended between those two landmarks – anyone?]
In addition to the size, it was the nature of the demonstration that was so moving. The crowd consisted of families and children and groups of friends – all of them waving American flags and holding signs reading, “We are America,” or “First-Generation American” and so on. Personally, I get annoyed with the deification of our flag, but it worked yesterday. It seemed very appropriate.
All in all, it was a positive demonstration – one rooted not in anger, but in hope and in a longing for recognition and dignity (the latter being the theoretical foundations of democracy promotion). These people were appealing not to base anger or resentment, but to our better angels. In the face of reality – the faces of the excited, hopeful families before you – Mickey Kaus and Michelle Malkin’s nativistic rantings just sort of float away.
Most significantly perhaps, you could feel a sense of History around you. The famous literary critic Walter Benjamin once wrote about the concept of the “aura” in discussing art. The gist of it is that the aura – the physical environment surrounding the art – is often as important as the art itself. For instance, seeing a painting in a museum is a fundamentally more sensual experience than seeing a copy of a painting in someone’s dorm room. Same deal with watching a play versus watching DVDs at home. The aura is critical to the overall experience.
Same deal with this demonstration. The Mall is perhaps the ideal “aura” for a demonstration like this. All around you are the monuments to the great leaders and achievements of the nation through history – our modern-day Coliseums. History is thick in the air. In an eerie way, you could almost see the old ghosts from 1963 walking along side today’s marchers like the ghost army from Lord of the Rings. You could almost see Martin Luther King smiling and yielding the microphone to the next generation, the ones now ready to leave their distinctive mark on the Nation’s secular holy ground.
Today was History. It was both History and a reflection of History – an event and a reflection of today’s demographic and cultural trends. Similarly to a Jackson Pollock painting, it was a snapshot of motion – not of the act of painting, but of History’s motion – of the changes America is experiencing.
And so after today, I understand a little better why 60s mania lingers on for the aging Boomers. Once you get a taste of that feeling, you don’t soon forget it. It’s difficult to describe – and I stayed barely an hour. So for me, it may be a fleeting experience. But if you lived in an age (especially the early 60s) when these sorts of organic, grass-roots movements sprung up and manifested themselves collectively in the form of, say, the civil rights movement, it would likely have a life-long effect. That’s simply not a feeling I’ve ever had – and one that I resent the 60s for having.
But the larger message for today is this – I’m beginning to get hopeful for the first time in a very long time. The Bush moment has passed. I don’t buy the argument that his staff is tired – I just think they’re smart enough to recognize that the Zeitgeist has left their building. And increasingly, I’m getting the feeling that it relocated with us. It’s a lot of different things – none of them all that convincing in and of themselves, but just enough to give me a feeling that a larger wave may be coming and that the Zeitgeist may be turning.
Bush is collapsing. The ‘94 revolution sold its soul for power. Democrats are suddenly not so lame. Kos’s book is surprisingly good – and his prescriptions (e.g, the fifty-state strategy) seem increasingly savvy (this from someone who has had reservations about Daily Kos the site). Democrats are way up in the polls. South Dakota voters are mobilizing against the draconian ban. Harry Reid is manhandling Frist. The GOP is out of ideas. Add it all up, and the data points may point to a larger movement afoot.
Most importantly, I think Americans are just tired of politics based solely on fear, alleged persecution, endless wars, demonization of gays, and appeals to our darker nature. The march today was a positive one in that it was, above all, for something. The GOP and right-wing Christian groups have stopped being for anything – they are only against things. They are against liberals, against gays, against Hollywood, against abortion, against this, against that. Theirs is vision of perpetual assault and persecution. They have lost their power to inspire – and progressive visions are hopefully going to start filling that void.
Again, it’s just a feeling, but I think that power is about to shift in Washington. And when it does, it will be a new Democratic Party that takes control, one less beholden to single-issue interest groups of the 70s and 80s. One that is more infused with the bubbling energy of the netsroots and the new public policy and communications infrastructure.
Then again, I once wrote a post explaining why Kerry was going to win, so what the hell do I know. But for now, I’m starting to feel that something is about to happen this fall.
Writing about the 60s experience, Hunter S. Thompson famously wrote (via Billmon):
I’m too young to remember 1992 – and it didn’t last long anyway. But maybe now – maybe for once – we’re on the beginning of a wave. For the first time in our generation, maybe we’re about to start winning. And if we are, then I’d like to beat the 60s once and for all – I’d like to make it last.
My generation has 60s envy. It’s part admiration, part disgust, and part jealousy. We love it and hate it. We are products of it, but resent it. Specifically, we resent that we don’t have the same battles to fight. But most of all, we resent that the present is conceptualized in 60s-centric narratives. Iraq is Vietnam. Today’s pro-immigrant rally was the 1963 March on Washington. Band [X] is the next Beatles. Whether we like it or not, the 60s is our baseline – it is the cultural paradigm (in the Kuhn sense) that we can’t escape.
As I mentioned earlier, I walked down to the Mall today to see the demonstrations. Given the chip on my shoulder about the 60s, I was determined not to squeeze it – Procrustes-like – into some cheesy 60s romantic narrative. I was going to observe, have a coke, and go back to my interrogatories. But I failed miserably. I was totally floored today. Forgive the earnest sappiness, but the demonstration I watched today was a thing of beauty. And much to my chagrin, I understood a little better than I did before why the 60s lives on in so many people’s minds.
The first thing that stood out today was the sheer magnitude of the crowd. The Post reported that there were hundreds of thousands of people there. I believe it. People just kept pouring in from the streets. For those who haven’t seen it, the Mall is a big place. And it was packed – at least from where I was standing, which was approximately halfway between the Capitol and the Washington Monument. [I’d like to see an aerial shot to see how far it extended between those two landmarks – anyone?]
In addition to the size, it was the nature of the demonstration that was so moving. The crowd consisted of families and children and groups of friends – all of them waving American flags and holding signs reading, “We are America,” or “First-Generation American” and so on. Personally, I get annoyed with the deification of our flag, but it worked yesterday. It seemed very appropriate.
All in all, it was a positive demonstration – one rooted not in anger, but in hope and in a longing for recognition and dignity (the latter being the theoretical foundations of democracy promotion). These people were appealing not to base anger or resentment, but to our better angels. In the face of reality – the faces of the excited, hopeful families before you – Mickey Kaus and Michelle Malkin’s nativistic rantings just sort of float away.
Most significantly perhaps, you could feel a sense of History around you. The famous literary critic Walter Benjamin once wrote about the concept of the “aura” in discussing art. The gist of it is that the aura – the physical environment surrounding the art – is often as important as the art itself. For instance, seeing a painting in a museum is a fundamentally more sensual experience than seeing a copy of a painting in someone’s dorm room. Same deal with watching a play versus watching DVDs at home. The aura is critical to the overall experience.
Same deal with this demonstration. The Mall is perhaps the ideal “aura” for a demonstration like this. All around you are the monuments to the great leaders and achievements of the nation through history – our modern-day Coliseums. History is thick in the air. In an eerie way, you could almost see the old ghosts from 1963 walking along side today’s marchers like the ghost army from Lord of the Rings. You could almost see Martin Luther King smiling and yielding the microphone to the next generation, the ones now ready to leave their distinctive mark on the Nation’s secular holy ground.
Today was History. It was both History and a reflection of History – an event and a reflection of today’s demographic and cultural trends. Similarly to a Jackson Pollock painting, it was a snapshot of motion – not of the act of painting, but of History’s motion – of the changes America is experiencing.
And so after today, I understand a little better why 60s mania lingers on for the aging Boomers. Once you get a taste of that feeling, you don’t soon forget it. It’s difficult to describe – and I stayed barely an hour. So for me, it may be a fleeting experience. But if you lived in an age (especially the early 60s) when these sorts of organic, grass-roots movements sprung up and manifested themselves collectively in the form of, say, the civil rights movement, it would likely have a life-long effect. That’s simply not a feeling I’ve ever had – and one that I resent the 60s for having.
But the larger message for today is this – I’m beginning to get hopeful for the first time in a very long time. The Bush moment has passed. I don’t buy the argument that his staff is tired – I just think they’re smart enough to recognize that the Zeitgeist has left their building. And increasingly, I’m getting the feeling that it relocated with us. It’s a lot of different things – none of them all that convincing in and of themselves, but just enough to give me a feeling that a larger wave may be coming and that the Zeitgeist may be turning.
Bush is collapsing. The ‘94 revolution sold its soul for power. Democrats are suddenly not so lame. Kos’s book is surprisingly good – and his prescriptions (e.g, the fifty-state strategy) seem increasingly savvy (this from someone who has had reservations about Daily Kos the site). Democrats are way up in the polls. South Dakota voters are mobilizing against the draconian ban. Harry Reid is manhandling Frist. The GOP is out of ideas. Add it all up, and the data points may point to a larger movement afoot.
Most importantly, I think Americans are just tired of politics based solely on fear, alleged persecution, endless wars, demonization of gays, and appeals to our darker nature. The march today was a positive one in that it was, above all, for something. The GOP and right-wing Christian groups have stopped being for anything – they are only against things. They are against liberals, against gays, against Hollywood, against abortion, against this, against that. Theirs is vision of perpetual assault and persecution. They have lost their power to inspire – and progressive visions are hopefully going to start filling that void.
Again, it’s just a feeling, but I think that power is about to shift in Washington. And when it does, it will be a new Democratic Party that takes control, one less beholden to single-issue interest groups of the 70s and 80s. One that is more infused with the bubbling energy of the netsroots and the new public policy and communications infrastructure.
Then again, I once wrote a post explaining why Kerry was going to win, so what the hell do I know. But for now, I’m starting to feel that something is about to happen this fall.
Writing about the 60s experience, Hunter S. Thompson famously wrote (via Billmon):
There was a fantastic universal sense that whatever we were doing was right, that we were winning.
And that, I think, was the handle -- that sense of inevitable victory over the forces of Old and Evil. Not in any mean or military sense; we didn't need that. Our energy would simply prevail. There was no point in fighting -- on our side or theirs. We had all the momentum; we were riding the crest of a high and beautiful wave . . .
So now, less than five years later, you can go up a steep hill in Las Vegas and look West, and with the right kind of eye you can almost see the high-water mark -- that place where the wave finally broke and rolled back.
I’m too young to remember 1992 – and it didn’t last long anyway. But maybe now – maybe for once – we’re on the beginning of a wave. For the first time in our generation, maybe we’re about to start winning. And if we are, then I’d like to beat the 60s once and for all – I’d like to make it last.
Monday, April 10, 2006
THE MARCH
__________
I just walked down to the march on the Mall here in DC. I hate the sap, but I gotta say it was a moving and inspiring experience. Much more tonight.
I just walked down to the march on the Mall here in DC. I hate the sap, but I gotta say it was a moving and inspiring experience. Much more tonight.
Sunday, April 09, 2006
A BAD EDITORIAL
__________
Washington Post editorial, "A Good Leak":
Murray Waas, "Libby Says Bush Authorized Leaks "
The Post really outdid itself on this one. The troubling issue here is that Bush declassified only those parts that helped him and continues to this day to conceal those parts that show that he either didn't read, or deliberately exaggerated, what the intelligence said about Saddam's nuclear efforts (either way, it's unacceptable). Relying on words like "part" and "some" indicates, to me, that the Post is well aware of this selective declassification but chose to ignore it. All in all, a terrible editorial from a terrible editorial board from a good paper with excellent reporters.
The truth is that the Post guessed wrong on the most important choice of our generation. Rather than acknowledging and coming to grips with its error, it continues to humiliate and discredit itself by issuing disingenuous editorials like these.
The Post's reporters deserve better - and Lord knows the paper's readers do too.
Washington Post editorial, "A Good Leak":
PRESIDENT BUSH was right to approve the declassification of parts [!!] of a National Intelligence Estimate about Iraq three years ago in order to make clear why he had believed that Saddam Hussein was seeking nuclear weapons.
. . .
It's unfortunate that those who seek to prove the [grounds for war were bogus] would now claim that Mr. Bush did something wrong by releasing for public review some [!!] of the intelligence he used in making his most momentous decision.
Murray Waas, "Libby Says Bush Authorized Leaks "
The official said that while the administration declassified portions of the NIE that would appear exculpatory to the White House, it insisted that a one-page summary of the NIE which would have suggested that the President mischaracterized other intelligence information to go to war remain classified.
As National Journal recently disclosed, the one-page summary of the NIE told Bush that although "most agencies judge" that an Iraqi procurement of aluminum tubes was "related to a uranium enrichment effort", the State Department Bureau of Intelligence and Research and the Energy Department's branch "believe that the tubes more likely are intended for conventional weapons."
Despite receiving that assessment, the president stated without qualification in his January 28, 2003, State of the Union address: "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."
The former senior official said in an interview that he believed that the attempt to conceal the contents of the one-page summary were intertwined with the efforts to declassify portions of the NIE and to leak information to the media regarding Plame: "It was part and parcel of the same effort, but people don't see it in that context yet."
The Post really outdid itself on this one. The troubling issue here is that Bush declassified only those parts that helped him and continues to this day to conceal those parts that show that he either didn't read, or deliberately exaggerated, what the intelligence said about Saddam's nuclear efforts (either way, it's unacceptable). Relying on words like "part" and "some" indicates, to me, that the Post is well aware of this selective declassification but chose to ignore it. All in all, a terrible editorial from a terrible editorial board from a good paper with excellent reporters.
The truth is that the Post guessed wrong on the most important choice of our generation. Rather than acknowledging and coming to grips with its error, it continues to humiliate and discredit itself by issuing disingenuous editorials like these.
The Post's reporters deserve better - and Lord knows the paper's readers do too.
Saturday, April 08, 2006
FITZGERALD VS. STARR
__________
The latest revelations apparently came from Libby's testimony in 2003, well before the election. Assuming the testimony had been about Clinton, what do you think the chances are that Ken Starr would have kept it under wraps (and away from Matt Drudge) until after the election? Slim to none, I say.
The impeachment mess is certainly a stain on Clinton. But I hope he can rest easier at night knowing that it also exposed the unprofessional, unethical, and unconstitutional behavior of Ken Starr and discredited him for life and in the eyes of future historians.
On an aside, I suspect Fitzgerald has a lot of other politically-damaging information that he (unlike his predecessors) hasn't leaked to Matt Drudge. Maybe that's why the White House has been hestitant to Swift Boat him.
The latest revelations apparently came from Libby's testimony in 2003, well before the election. Assuming the testimony had been about Clinton, what do you think the chances are that Ken Starr would have kept it under wraps (and away from Matt Drudge) until after the election? Slim to none, I say.
The impeachment mess is certainly a stain on Clinton. But I hope he can rest easier at night knowing that it also exposed the unprofessional, unethical, and unconstitutional behavior of Ken Starr and discredited him for life and in the eyes of future historians.
On an aside, I suspect Fitzgerald has a lot of other politically-damaging information that he (unlike his predecessors) hasn't leaked to Matt Drudge. Maybe that's why the White House has been hestitant to Swift Boat him.
Friday, April 07, 2006
TRUST ME NOT
__________
It’s hard to add much value to the latest Libby discussions given that literally everyone and their brother has written a post on it. So instead of focusing on the leak authorization itself, I want to try to put it in historical context. When you take a step back, you’ll see that Bush and Libby’s actions are part of a much larger and consistent pattern of behavior – one that is more disturbing than the selective leaking itself.
By now, it’s clear that the administration makes a lot of bad choices on a wide array of seemingly unrelated matters. When you scratch below the surface though, some common themes arise. To borrow from Libby’s love letter to Miller, Bush’s errors turn in clusters because their roots connect them.
One of these common “roots” is the assumption that the executive branch gets to be the final arbiter of the limits of its own power. This single assumption ties together a number of the administration’s most troubling policies. For instance, according to the administration, it alone decides how detainees will be treated in wartime. It alone decides what constitutes torture. It alone decides who is deemed an “enemy combatant.” It alone decides who will be wiretapped. It alone decides whether it will follow the requirements of the Patriot Act. It alone decides whether America can legally go to war. It alone decides when documents are declassified. It alone decides when the Geneva Convention should be followed.
The tie that binds each and every one of these positions is that, in each one, the executive alone gets the final say on the scope of its power.
Although the “final arbiter” assumption explains a lot, it doesn’t explain everything. In fact, I think the “final arbiter” assumption is itself a symptom of an even more fundamental and flawed assumption held by the administration. And that assumption is the unyielding certitude of its own correctness and goodness. That arrogance, to me, is original sin of the administration – and the source of its most disturbing and often disastrous policies.
Think about it – most everything that you don’t like about the Bush administration can be traced back to their belief that they’re always right – and very right – about everything. Most obviously, the belief in their own goodness and correctness explains why they think they get to be the final arbiters of their own power. But it explains a lot of other things too.
Take the Cheney energy task force. In his own mind, Cheney is certain that he is right about the benefits of subsidizing the oil and energy industry. Because he is obviously right, he doesn’t need to bother with public disclosure or inviting those pesky environmentalists to the table.
Same deal with the arrogant disregard of our international allies and institutions. The fact that public opinion in about 99% of the countries of the world opposed the Iraq War didn’t cause the administration to doubt their policy. That’s because they knew they were right.
Same deal with the WMD hyping. It doesn’t matter if administration officials stretched something here or didn’t report something there. That’s because they knew in their mind that Saddam was a threat and that war was the right thing to do.
To me, this arrogance was the ultimate cause of the selective leaking. Administration officials had no qualms about it because they knew – they just knew – that they were right about the threat posed by Saddam. And so, personal destruction of Wilson was a necessary cost of justifying to the public what was clearly right in their own minds. And because they were right, they could discuss Plame’s employment. They could also disclose classified information without formally declassifying it. They could do whatever they wanted to do because they were right.
Of course, history has shown all too clearly that executives are often wrong. In fact, when you really get down to it, the evolution of Western law has been an ongoing response to executive wrongness. The Magna Carta was about constraining the executive and subjecting its actions to the public will. The United States was created in part because of perceived abuses of the executive. Finally, even though our Constitution created a stronger executive (compared to the Articles), it still takes an obsessive number of steps to limit the power of the executive – even in wartime.
That’s what’s so amazing about the blind, unwavering loyalty to Bush that so many conservative pundits and constituencies have shown. Regular readers have heard me harp on this before, but it’s worth repeating. Conservatism – along with our Constitution – is based on a Burkean/Madisonian pessimistic view of man. Because man cannot be trusted to be virtuous, we require laws. Because power tends to grow corrupt, we split that power among branches of government and among states and the federal government. If there’s one animating principle in the structure of our Constitution, it’s that virtue isn’t enough. For government to work, you need checks and balances. You need oversight. You need squabbling factions and shifting coalitions. Above all, though, you need distrust of your fellow man.
The crazy thing about both the Bush administration and its unwavering supporters is that they are relying on the old-school Leftist assumption that man can be trusted to be good. According to people like Justice Thomas and John Yoo, the executive’s wartime power is unlimited and unreviewable. That’s not a conservative view, it’s a Leninist one. It requires us to blindly trust that the executive will do the right thing in the name ofthe proletariat security. Whether it’s the military commissions or wiretapping or torture, it’s all the same. Under the Yoo worldview, we have no assurance that these powers won’t be abused. We must trust and obey.
Getting back to the selective leaking, what’s interesting is that Bush and Libby’s behavior shows precisely why the Thomas/Yoo worldview is so wrong – so dangerously and disastrously wrong. Most importantly, it shows that the administration was abusing its power. In doing so, it completely undermined the argument that it can be trusted with the expansive powers it claims to possess.
It’s pretty simple. Humans have emotions – they get mad, they get vengeful. Executives are human and they’re going to make wrong decisions based on their emotions and the limits of their knowledge. There’s nothing you can do about that. But what you can do is to ensure that your government is structured in such a way to prevent – or punish – bad decisions. In theory, America accomplishes this through oversight, checks and balances, and elections.
It looks like we’re starting to wake up and realize why this stuff is important. But the fact that it's taken us so long is extremely troubling.
It’s hard to add much value to the latest Libby discussions given that literally everyone and their brother has written a post on it. So instead of focusing on the leak authorization itself, I want to try to put it in historical context. When you take a step back, you’ll see that Bush and Libby’s actions are part of a much larger and consistent pattern of behavior – one that is more disturbing than the selective leaking itself.
By now, it’s clear that the administration makes a lot of bad choices on a wide array of seemingly unrelated matters. When you scratch below the surface though, some common themes arise. To borrow from Libby’s love letter to Miller, Bush’s errors turn in clusters because their roots connect them.
One of these common “roots” is the assumption that the executive branch gets to be the final arbiter of the limits of its own power. This single assumption ties together a number of the administration’s most troubling policies. For instance, according to the administration, it alone decides how detainees will be treated in wartime. It alone decides what constitutes torture. It alone decides who is deemed an “enemy combatant.” It alone decides who will be wiretapped. It alone decides whether it will follow the requirements of the Patriot Act. It alone decides whether America can legally go to war. It alone decides when documents are declassified. It alone decides when the Geneva Convention should be followed.
The tie that binds each and every one of these positions is that, in each one, the executive alone gets the final say on the scope of its power.
Although the “final arbiter” assumption explains a lot, it doesn’t explain everything. In fact, I think the “final arbiter” assumption is itself a symptom of an even more fundamental and flawed assumption held by the administration. And that assumption is the unyielding certitude of its own correctness and goodness. That arrogance, to me, is original sin of the administration – and the source of its most disturbing and often disastrous policies.
Think about it – most everything that you don’t like about the Bush administration can be traced back to their belief that they’re always right – and very right – about everything. Most obviously, the belief in their own goodness and correctness explains why they think they get to be the final arbiters of their own power. But it explains a lot of other things too.
Take the Cheney energy task force. In his own mind, Cheney is certain that he is right about the benefits of subsidizing the oil and energy industry. Because he is obviously right, he doesn’t need to bother with public disclosure or inviting those pesky environmentalists to the table.
Same deal with the arrogant disregard of our international allies and institutions. The fact that public opinion in about 99% of the countries of the world opposed the Iraq War didn’t cause the administration to doubt their policy. That’s because they knew they were right.
Same deal with the WMD hyping. It doesn’t matter if administration officials stretched something here or didn’t report something there. That’s because they knew in their mind that Saddam was a threat and that war was the right thing to do.
To me, this arrogance was the ultimate cause of the selective leaking. Administration officials had no qualms about it because they knew – they just knew – that they were right about the threat posed by Saddam. And so, personal destruction of Wilson was a necessary cost of justifying to the public what was clearly right in their own minds. And because they were right, they could discuss Plame’s employment. They could also disclose classified information without formally declassifying it. They could do whatever they wanted to do because they were right.
Of course, history has shown all too clearly that executives are often wrong. In fact, when you really get down to it, the evolution of Western law has been an ongoing response to executive wrongness. The Magna Carta was about constraining the executive and subjecting its actions to the public will. The United States was created in part because of perceived abuses of the executive. Finally, even though our Constitution created a stronger executive (compared to the Articles), it still takes an obsessive number of steps to limit the power of the executive – even in wartime.
That’s what’s so amazing about the blind, unwavering loyalty to Bush that so many conservative pundits and constituencies have shown. Regular readers have heard me harp on this before, but it’s worth repeating. Conservatism – along with our Constitution – is based on a Burkean/Madisonian pessimistic view of man. Because man cannot be trusted to be virtuous, we require laws. Because power tends to grow corrupt, we split that power among branches of government and among states and the federal government. If there’s one animating principle in the structure of our Constitution, it’s that virtue isn’t enough. For government to work, you need checks and balances. You need oversight. You need squabbling factions and shifting coalitions. Above all, though, you need distrust of your fellow man.
The crazy thing about both the Bush administration and its unwavering supporters is that they are relying on the old-school Leftist assumption that man can be trusted to be good. According to people like Justice Thomas and John Yoo, the executive’s wartime power is unlimited and unreviewable. That’s not a conservative view, it’s a Leninist one. It requires us to blindly trust that the executive will do the right thing in the name of
Getting back to the selective leaking, what’s interesting is that Bush and Libby’s behavior shows precisely why the Thomas/Yoo worldview is so wrong – so dangerously and disastrously wrong. Most importantly, it shows that the administration was abusing its power. In doing so, it completely undermined the argument that it can be trusted with the expansive powers it claims to possess.
It’s pretty simple. Humans have emotions – they get mad, they get vengeful. Executives are human and they’re going to make wrong decisions based on their emotions and the limits of their knowledge. There’s nothing you can do about that. But what you can do is to ensure that your government is structured in such a way to prevent – or punish – bad decisions. In theory, America accomplishes this through oversight, checks and balances, and elections.
It looks like we’re starting to wake up and realize why this stuff is important. But the fact that it's taken us so long is extremely troubling.
Thursday, April 06, 2006
CALLING ALL EQUAL PROTECTION SCHOLARS
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Although I'm still skeptical anything will get passed, it appears the Senate has come to some sort of compromise on the immigration bill:
A question - is the "learning English" requirement constitutional? I'm not a big equal protection scholar, so I don't know if the "disparate impact" aspect continues to have any teeth.
Putting law and politics aside, I'm not sure why learning English should necessarily be a condition of citizenship. Learning about the US, fine. But that's different than requiring people - generally dirt-poor people - to take language classes. It doesn't strike me as very American.
Although I'm still skeptical anything will get passed, it appears the Senate has come to some sort of compromise on the immigration bill:
To attain citizenship, those immigrants would have to pay a $2,000 penalty, back taxes, learn English, undergo a criminal background check and remain working for 11 years.
A question - is the "learning English" requirement constitutional? I'm not a big equal protection scholar, so I don't know if the "disparate impact" aspect continues to have any teeth.
Putting law and politics aside, I'm not sure why learning English should necessarily be a condition of citizenship. Learning about the US, fine. But that's different than requiring people - generally dirt-poor people - to take language classes. It doesn't strike me as very American.
Wednesday, April 05, 2006
THEY'RE ON A ROLL
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I don't usually post quotes without further comment, but these are just too good to pass up.
Malkin, "The Party of Police Haters":
I thought the gripe was that contemptible liberals confused wars with law enforcement actions. It's hard to keep all this straight some days.
I don't usually post quotes without further comment, but these are just too good to pass up.
Malkin, "The Party of Police Haters":
You know, Rep. McKinney, as a fellow "woman of color," I have been pulled aside by government security agents numerous times for secondary screening at airports over the last few years. I've had my bra straps snapped, my thighs pawed, and my torso wanded. I've had my cell phone tested for bomb residue, my laptop inspected, and my handbags manhandled.
My response was not to go postal or do a Naomi Campbell on the gropers. My response was to ask why they aren't doing more security profiling.
. . .
Contempt for law enforcement is a hallmark of the party of Ted Kennedy, Al Sharpton, Chuck Schumer, Jesse Jackson and the Clintons.
I thought the gripe was that contemptible liberals confused wars with law enforcement actions. It's hard to keep all this straight some days.
THE RIGHT MAN
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I'm busy with work tonight, so I'll leave you with a line from David Frum, author of the critically acclaimed The Right Man:My Slobbering Hagiographic Attempt to Regain Some Clout With The Administration The Surprise Presidency of George W. Bush:
I'm busy with work tonight, so I'll leave you with a line from David Frum, author of the critically acclaimed The Right Man:
In years to come, whenever a Congress seems to have lost touch with the voters, whenever legislation seems to gnarl itself in complacency and corruption, men and women now unborn will remember the spirit of 1994. Whenever Congress mires itself in futility and deadlock, whenever Americans wonder whether this strange institution can ever be mobilized to act in the public interest – they will remember the 104th Congress.
As Tom DeLay leaves Congress, the television screens and newspapers flash that haunting grinning mug shot. That is part of the record of course. But it is not all the record. And when your grandchildren and mine visit Capitol Hill decades hence, they will see Tom DeLay’s face not in pixels but in sculpture, arranged with his sometime partner, sometime rival Newt Gingrich in the arcade alongside James Madison, John Calhoun, Thaddeus Stevens, Joe Cannon, Sam Rayburn and the other bygone powers of the House of Representatives.
Tuesday, April 04, 2006
DUMB ME
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In one of the threads below, commenter Postscript makes a good point - Roberts isn't participating in Hamdan so he couldn't be angling for a fifth vote there. Not smart - I'll file that part of my argument with my "Kerry is Going to Win" post.
But that said, I think the more general point still stands. It's very much in Roberts' "political" interest to have a good relationship with Kennedy going forward.
Kennedy of course is still the deciding voter in Hamdan, so the main point about Stevens' potential motivations and Hamdan being "bigger fish" still stands as well.
In one of the threads below, commenter Postscript makes a good point - Roberts isn't participating in Hamdan so he couldn't be angling for a fifth vote there. Not smart - I'll file that part of my argument with my "Kerry is Going to Win" post.
But that said, I think the more general point still stands. It's very much in Roberts' "political" interest to have a good relationship with Kennedy going forward.
Kennedy of course is still the deciding voter in Hamdan, so the main point about Stevens' potential motivations and Hamdan being "bigger fish" still stands as well.
THE BLOG OF THE YEAR
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Powerline (John):
Powerline (John):
It's too bad, I think. DeLay was an effective leader, albeit too liberal in recent years. It's possible, of course, that he did something wrong along the way. But there is no evidence of that in the public domain . . . As far as we can tell at the moment, DeLay appears to be yet another victim of the Democrats' politics of personal destruction--the only politics they know.
PADILLA - Why Stevens (Perhaps) Made the Right Call
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Wow - lots of things to say about Padilla. Most obviously, Justice Stevens’ vote seems odd – especially in light of his strongly worded dissent in the first round of Padilla. A lot of good bloggers are pretty disgusted with Stevens and the result more generally. While I would prefer to see the Court reject King George’s attempt to suspend the Constitution when and because he says so, I don’t think that this cert denial is as outrageous as others apparently do. In fact, it may have been the right call both legally and politically.
As many of you know, the heart of Padilla is whether the executive can strip an American citizen of his constitutional rights by unilaterally declaring him to be an “enemy combatant.” [Hamdan is different because it involves non-citizens (and the legality of their “trials” under the military commissions).]
So here’s the procedural history in a nutshell. The Fourth Circuit agreed in 2005 that the Constitution doesn’t apply to Padilla because King George designated him as an enemy combatant. Padilla appealed to the Supreme Court. Apparently fearing Supreme Court review, the government re-appeared before the Fourth Circuit and requested to shift him at the last minute from military custody to regular civilian custody to charge him with regular crimes (which means Padilla would get the benefit of constitutional criminal protections, making his appeal moot).
That's what Luttig got upset about – he thought (correctly) that the administration was screwing with the judicial system to avoid judicial review. It’s the equivalent of winning the first half and then declaring the game is over and walking out of the building. In essence, the administration got their victory and didn’t want it reviewed. So, Luttig denied the transfer request. Long story short – the Supreme Court overruled the 4th Circuit and ultimately allowed him to be transferred.
The last point is a critical one – and it helps explain why Justice Stevens and the cert denial were not so outrageous. As Kennedy pointed out, even if the Court ruled against the administration, it would not have changed the facts on the ground. Padilla’s criminal trial would have been unaffected. In this sense, it would have been an advisory opinion – and those are no-no’s under the Constitution.
Generally speaking, there are good reasons why courts should avoid advisory opinions about matters not actually before them. For one, there are issues of legitimacy. Second, the requirement ensures that opinions will be offered on the basis of solid information. One of the rationales behind the “standing” and “case or controversy” requirements is that they are information-producing – that is, they ensure that courts will only make decisions in the presence of adverse parties who have incentives to present the best arguments possible.
That said, it’s not clear that this would have been an advisory opinion – I think the Court could have plausibly gone either way on that. For instance, as Ginsberg explained, courts tend to look down upon “voluntary cessation” of illegal activity as a way to avoid judicial review – especially when, as here, it’s done strategically and could be easily revived.
So if the legal question isn’t clear, there are sound political reasons for the Court (and Stevens) to have denied cert. For one, the Court may need to save its capital for Hamdan. While it’s certainly the right call to reject the administration’s argument in Hamdan, it’s still a bold move against an executive in wartime. With the administration caving on Padilla, I think the Hamdan case is now more high-stakes. After all, as Marty Lederman suggested, Kennedy did issue a pretty strong warning about shifting Padilla back to military custody.
Second, maybe Stevens didn’t have the votes (or wasn’t sufficiently certain of having them) and so joined in to sink the ship before it could hit land. And maybe sinking the ship makes more sense given that Padilla was now in civilian custody – that’s certainly better than losing and creating a horrible precedent.
Finally, as I mentioned yesterday, Stevens (like Roberts) may be trying to get the fifth vote in Hamdan. In fact, this may be part of a longer-term strategy to woo Kennedy. Remember that Kennedy is going to be the median voter in lots of cases and Scalia sure makes fun of him a lot.
Roberts, notably, seems to be smarter than Scalia on this front. I’m getting the sense that Roberts – not Scalia – is going to emerge as the intellectual giant on the Right side of the bench. What makes him more effective is that he’s likeable, not insane, and will be more effective at the political give-and-take necessary to create and maintain majority coalitions. After all, it seems odd that Roberts would sign on to an opinion that potentially limits executive power. He’s certainly not going to vote that way. But by joining an opinion that has no real consequences to the case, he shrewdly gains brownie points with the median voter.
And one final point on the administration. While I completely agree that they were trying to pack up at halftime, I also think they’re stalling for a new Justice. If Stevens kicks the bucket and another defer-to-executive-power Justice gets confirmed, I predict that they’ll shift Padilla back to military custody – or find someone else as a test “enemy combatant.”
I nominate Tom DeLay.
Wow - lots of things to say about Padilla. Most obviously, Justice Stevens’ vote seems odd – especially in light of his strongly worded dissent in the first round of Padilla. A lot of good bloggers are pretty disgusted with Stevens and the result more generally. While I would prefer to see the Court reject King George’s attempt to suspend the Constitution when and because he says so, I don’t think that this cert denial is as outrageous as others apparently do. In fact, it may have been the right call both legally and politically.
As many of you know, the heart of Padilla is whether the executive can strip an American citizen of his constitutional rights by unilaterally declaring him to be an “enemy combatant.” [Hamdan is different because it involves non-citizens (and the legality of their “trials” under the military commissions).]
So here’s the procedural history in a nutshell. The Fourth Circuit agreed in 2005 that the Constitution doesn’t apply to Padilla because King George designated him as an enemy combatant. Padilla appealed to the Supreme Court. Apparently fearing Supreme Court review, the government re-appeared before the Fourth Circuit and requested to shift him at the last minute from military custody to regular civilian custody to charge him with regular crimes (which means Padilla would get the benefit of constitutional criminal protections, making his appeal moot).
That's what Luttig got upset about – he thought (correctly) that the administration was screwing with the judicial system to avoid judicial review. It’s the equivalent of winning the first half and then declaring the game is over and walking out of the building. In essence, the administration got their victory and didn’t want it reviewed. So, Luttig denied the transfer request. Long story short – the Supreme Court overruled the 4th Circuit and ultimately allowed him to be transferred.
The last point is a critical one – and it helps explain why Justice Stevens and the cert denial were not so outrageous. As Kennedy pointed out, even if the Court ruled against the administration, it would not have changed the facts on the ground. Padilla’s criminal trial would have been unaffected. In this sense, it would have been an advisory opinion – and those are no-no’s under the Constitution.
Generally speaking, there are good reasons why courts should avoid advisory opinions about matters not actually before them. For one, there are issues of legitimacy. Second, the requirement ensures that opinions will be offered on the basis of solid information. One of the rationales behind the “standing” and “case or controversy” requirements is that they are information-producing – that is, they ensure that courts will only make decisions in the presence of adverse parties who have incentives to present the best arguments possible.
That said, it’s not clear that this would have been an advisory opinion – I think the Court could have plausibly gone either way on that. For instance, as Ginsberg explained, courts tend to look down upon “voluntary cessation” of illegal activity as a way to avoid judicial review – especially when, as here, it’s done strategically and could be easily revived.
So if the legal question isn’t clear, there are sound political reasons for the Court (and Stevens) to have denied cert. For one, the Court may need to save its capital for Hamdan. While it’s certainly the right call to reject the administration’s argument in Hamdan, it’s still a bold move against an executive in wartime. With the administration caving on Padilla, I think the Hamdan case is now more high-stakes. After all, as Marty Lederman suggested, Kennedy did issue a pretty strong warning about shifting Padilla back to military custody.
Second, maybe Stevens didn’t have the votes (or wasn’t sufficiently certain of having them) and so joined in to sink the ship before it could hit land. And maybe sinking the ship makes more sense given that Padilla was now in civilian custody – that’s certainly better than losing and creating a horrible precedent.
Finally, as I mentioned yesterday, Stevens (like Roberts) may be trying to get the fifth vote in Hamdan. In fact, this may be part of a longer-term strategy to woo Kennedy. Remember that Kennedy is going to be the median voter in lots of cases and Scalia sure makes fun of him a lot.
Roberts, notably, seems to be smarter than Scalia on this front. I’m getting the sense that Roberts – not Scalia – is going to emerge as the intellectual giant on the Right side of the bench. What makes him more effective is that he’s likeable, not insane, and will be more effective at the political give-and-take necessary to create and maintain majority coalitions. After all, it seems odd that Roberts would sign on to an opinion that potentially limits executive power. He’s certainly not going to vote that way. But by joining an opinion that has no real consequences to the case, he shrewdly gains brownie points with the median voter.
And one final point on the administration. While I completely agree that they were trying to pack up at halftime, I also think they’re stalling for a new Justice. If Stevens kicks the bucket and another defer-to-executive-power Justice gets confirmed, I predict that they’ll shift Padilla back to military custody – or find someone else as a test “enemy combatant.”
I nominate Tom DeLay.
Monday, April 03, 2006
COMPLETELY UNINFORMED SPECULATION ON PADILLA
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I've been too busy to read the opinion yet, but it was striking that both Roberts and Stevens joined Kennedy's opinion. It's even more striking because Stevens could have been the 4th vote for cert. The other three more conservative Justices didn't join Kennedy's opinion (smelled too French probably).
My take - both Stevens and Roberts are angling for a 5th vote in Hamdan. Padilla is, for now anyway, lower stakes.
If this completely uninformed speculation is correct, it shows that Roberts' political savvy is the best hope for maintaining a conservative majority on various hot-button issues - assuming of course that the increasingly-detached-and-abrasive Scalia hasn't driven Kennedy out of the "camp" altogether.
I've been too busy to read the opinion yet, but it was striking that both Roberts and Stevens joined Kennedy's opinion. It's even more striking because Stevens could have been the 4th vote for cert. The other three more conservative Justices didn't join Kennedy's opinion (smelled too French probably).
My take - both Stevens and Roberts are angling for a 5th vote in Hamdan. Padilla is, for now anyway, lower stakes.
If this completely uninformed speculation is correct, it shows that Roberts' political savvy is the best hope for maintaining a conservative majority on various hot-button issues - assuming of course that the increasingly-detached-and-abrasive Scalia hasn't driven Kennedy out of the "camp" altogether.
Saturday, April 01, 2006
SATURDAY OPEN THREAD
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Here's the question - what is the most important issue that you are the least informed about? For me, I think it has to be trade.
I've always considered myself fairly "free trade," but to be honest, I don't even know what that means or what the implications are. Harold Meyerson, for instance, makes a good argument that NAFTA has been very bad for Mexico and is fueling undocumented immigration. Bottom line - I don't know enough to make an informed judgment.
Anyway, I'm hoping this thread can be a resource for uninformed people like me. If you have good reading recommendations (books, white papers, authors, etc.) on any of the issues that people list, please share them below. As for me, what I would really like is some overview of the field that includes the main schools of thought on "free" trade.
Here's the question - what is the most important issue that you are the least informed about? For me, I think it has to be trade.
I've always considered myself fairly "free trade," but to be honest, I don't even know what that means or what the implications are. Harold Meyerson, for instance, makes a good argument that NAFTA has been very bad for Mexico and is fueling undocumented immigration. Bottom line - I don't know enough to make an informed judgment.
Anyway, I'm hoping this thread can be a resource for uninformed people like me. If you have good reading recommendations (books, white papers, authors, etc.) on any of the issues that people list, please share them below. As for me, what I would really like is some overview of the field that includes the main schools of thought on "free" trade.
