"Just A Goddamned Piece of Paper"
Billmon on why the “Trust him! He’s the President!” approach to evaluating the constitutionality of government actions now favored by conservertarians may be suboptimal.
Archive for December, 2005
The Schmittian Libertarians
It is, of course, not surprising to see the bullshit-libertarian blogosphere taking a dive for Bush’s illegal searches (although some principled conservatives and actual libertarians are clear about what’s going on.) The ultimate example has to be Jeff Goldstein, who argues that the warrantless searches must not have violated the law because…Condi Rice and George Bush said so. Well, I’m convinced! (This is a unique theory of legal interpretation: if Republican political officials say that their actions are constitutional, the inquiry is over.) Particularly remarkable is his outrage over the fact that the President’s warrantless searches continue to be criticized “even as the President stands firm and defends the practice.” Yes, what is this country coming to where people will disagree with the President even when he asserts that he’s right? You’d think we lived in a liberal democracy or something. (The word “lickspittle” seems grossly inadequate.) But, anyway, the fact that alleged libertarians who are enthusiastic supporters of Sam Alito despite their (less than nominal) support of abortion rights and civil liberties are rolling over again isn’t exactly news, but a couple points should be emphasized.
The first is that the legal question here is unambiguous. Several conservative hacks have tried to use a distortion of FISA to argue otherwise, but the statute clearly forbids what Bush has openly admitted to having done. And then, of course, there’s the Fourth Amendment, which is also clearly violated by these warrantless searches. King of the fake libertarians Glenn Reynolds tries to dance around the latter question, with distinctly unpersuasive results:
The wiretapping is not so clear: Most people fail to appreciate how limited their protection against government surveillance is, both under statutes and under constitutional law. And that’s doubly so where international communications are concerned. (And, except for the small possibility of a constitutional-tort action, the main remedy for unconstitutional surveillance can be found in the exclusionary rule, which only comes into play if someone is prosecuted and the government tries to introduce the surveillance into evidence — meaning that, as with the exclusionary rule in general, the remedy is worthless if you’re never charged with anything, say because you’re innocent.)
Indeed, our Fourth Amendment protections are less than they should be (partly because people like the Reynolds-approved Alito keep getting appointed to the federal courts by the Republican Presidents and Senators he supports), but they certainly aren’t so limited as to permit a systematic policy of warrantless searches ordered by the executive, and Reynolds carefully avoids saying that they are. Instead, he goes into a whole bunch of diversionary rambling about the exclusionary rule, all of which is beside the point. Again, yes, as everyone knows one problem with the exclusionary rule is that it provides a much more effective remedy to the guilty than to the innocent, and most people won’t bother to file a civil claim when their Fourth Amendment rights are violated. But the question of whether there is an effective remedy is separate from the question of whether there was a constitutional violation. The violation doesn’t suddenly vanish just because the innocent people whose rights were violated (most of whom, in this case, would seem to have no way of knowing that their rights were violated) don’t sue. So Reynolds’ only specific argument here is a non-sequitur. And unless one endorses John Yoo’s Schmittian tautologies, there’s simply no question that this policy violated the Fourth Amendment as well as FISA. And this is why, rather than explaining how , specifically, these warrantless searches could be constitutional in the face of the clear commands of the Fourth Amendment, Goldstein just babbles about his well-worn “Chimpy McHaliburton” strawman rather than making an argument.
The second point that’s worth making here is that there is also no remotely credible national security justification for these plainly illegal searches. Is there reason to believe that the communications of terrorists couldn’t be effectively monitored via the existing legal framework? Of course not. It’s worth highlighting this passage from the original NYT article:
The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant; intelligence officials only have to show probable cause that someone may be “an agent of a foreign power,” which includes international terrorist groups, and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say. Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.’s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.
As Josh Marshall points out, “in a quarter century, the FISA Court has rejected four government applications for warrants.” And, moreover, the government is permitted to seek retrospective warrants in emergencies. It’s obvious that if there is any reason to believe that terrorist communications (as opposed to, say, domestic political opponents) are being monitored obtaining a warrant is about as hard as finding wineries in the Napa Valley. Other than to simply assert his arbitrary wartime power, there’s no good reason for this illegal policy.
And this is what’s so chilling about Bush’s defenders, which is a common feature of wartime violations of civil liberties: their fundamentally authoritarian mindset. Essentially, defending this policy depends on the assumption of a zero-sum game between civil liberties and national security. Defenders of the policy simply assume, without any independent logic, that because this policy violated civil liberties it must, somehow, contribute to protecting national security. But there’s simply no reason to believe that it does. Even if you believe that formally illegal measures may be defensible in emergency situations, the national security justifications in this case don’t come remotely close to meeting the necessary burden. This policy is simply transparent illegality in the service of nothing but the power aggrandizement of the Bush Administration.
Sunday Battleship Blogging: ARA Rivadavia
The South American dreadnought race of the 1910s began with the Brazilian order of Minas Gerais and Sao Paulo from British yards. Not to be outdone, Argentina and Chile soon ordered battleships of their own. Chile ordered two battleships from British yards, while Argentina decided to go with and American supplier. This turned out to be an excellent choice. At the beginning of World War I, Great Britain seized both Chilean battleships and two Turkish battleships for incorporation into the Royal Navy. A Greek dreadnought, Salamis, under construction in Germany was never completed as the Germans decided to work on their own ships. It is unclear why the Germans did not follow British practice and simply seize the half-complete Salamis, although I suspect that they may have been motivated by a fear of offending Greece. An accident of timing allowed the British to escape what would have been a more troubling dilemma. The battlecruiser Kongo, built in a British yard to Japanese specifications, had been turned over to the Imperial Japanese Navy in late 1913. Kongo was, at the time of her construction, the largest and most powerful capital ship in the world. Although Japan was a British ally, and would eventually join the war against Germany, I suspect it would have been VERY difficult for the British to give her up.
Rivadavia was completed in late 1914, making she and her sister rough contemporaries of the US New York class. The design of Rivadavia was, in some ways, more advanced than that of the New Yorks. Rivadavia had a similar displacement (27000 tons), was powered by steam turbines, and could make almost 23 knots, 2 knots faster than the US ships. However, Rivadavia carried 12 12″ guns to New York’s 10 14″, and had somewhat lighter armor. Rivadavia’s armament was arranged in two superfiring turrets each fore and aft and two wing turrets, making she and Moreno the only battleships built in the United States to carry wing turrets. Rivadavia carried a single cage mast forward, making the ARA the only navy besides the USN to operate dreadnoughts with cage masts.
Upon their delivery to the ARA, Rivadavia and Moreno became the most powerful ships in South America. Battleship technology advanced rapidly in the first twenty years of the twentieth century. Whereas Sao Paulo and Minas Gerais had been among the most poweful ships in the world upon their completion in 1910, they were completely outclassed by the Argentine ships in 1915. Rivadavio probably was not the equal of Almirante Latorre, finally delivered to Chile after World War I, but the two Argentine ships made up the most powerful squadron in the area. Rivadavio also seems to have been better taken care of than the Brazilian ships. She received oil fired boilers during a major refit in the 1920s, and remained fairly active in the 1920s and 1930s.
World War II brought some mild tensions to South America. Brazil leaned very heavily 
toward the Allies, eventually joining the war (and making a significant contribution both on land and at sea) in 1942. Chile and Argentina were less forthcoming, both having significant Axis sympathies. Both Argentina and Chile would eventually declare war on Germany and Japan, but neither lent any meaningful contribution to the Allied cause. Rivadavia embarked on her last long cruise in 1946, visiting a number of South American ports before being placed in reserve. By 1952 Rivadavia was disarmed, and was struck from the ARA List in 1957. Had the ARA maintained Rivadavia for just another 25 years, she would have had the opportunity to be sunk by the Royal Navy in the Falklands War…
Trivia (Last week’s winner was Jackdaw):
What was the last battleship to be destroyed in combat against other battleships?
The Mariners Take an Insurmountable Lead
I like Washburn a little bit more than most stat-heads; three of his last five years have been genuinely good, two have been mediocre. There are reasons to be concerned about his performance last year, regardless of his 3.20 ERA. He’s just really, really not the kind of pitcher you want to on the hook for 4 years and $36 million. I mean, when you’ve gone and spent that, how much more could Millwood cost? Or Clement, who the Red Sox are dying to get rid of?
This is a bad offseason. It will be hard for the Reds to match this; they’re already pretty far behind on the Womack/Everett comparison, the Casey trade was actually a GOOD move, and there aren’t that many free agents left out there to waste money on.
The Tyranny of Mrs. Clinton
This really gets to the rub:
There’s only one way to scare the craven apologists in Category II: remind them of the very real possibility of a Hillary Clinton presidency in 2008 with unlimited powers against perceived terrorists, foreign and domestic. You mean you believed that all of those executive orders magically expire when your anointed security sock-puppet exits the White House as the worst executive ever?
The paranoia that conservatives regularly display regarding the Clinton presidency and the potential second Clinton presidency is astounding. Recall that Bill O’Reilly, for example, believed that the IRS was auditing him at the behest of the Clintons. And who could forget the Clinton murder list? How many of those who have leapt to the defense of the Bush administration on this one would be among the first to assail Hillary Clinton as a tyrant if she tried the same thing?
It’s not even that hard to construct a scenario through which these state tools might be used against conservatives. Imagine that an Oklahoma City style attack happens on a larger scale, or that several Oklahoma City style attacks occur in a short period. Then imagine that the President of the NRA says something as stupid as he said the last time a Federal Building was bombed. If I were a paranoid right-winger and a member of several legitimate (and maybe not so legitimate) right wing organizations, I would be very concerned about the ability of the executive to do just about anything it wanted with me.
Clearly, Bush supporters do not lack the imagination to come up with such a scenario. What they lack is the intellectual honesty to accept the consequences of their arguments.
In other news, Glenn Reynolds is a hack. Shorter Glenn:
The fact that elements of GWB’s legislative agenda have been defeated demonstrates that he is not a tyrant. Power would be within his grasp, were it not for those weak-minded fools in the Senate. They should be crushed without mercy…
FCS
AG does some nice work on the Army’s commitment to FCS, or Future Combat Systems. I remain ambivalent about FCS, much in the same way that I’m ambivalent about DD(X) and the LCS.
FCS promises a lot; dominance anywhere on the combat spectrum is a lot. Whether it can deliver is in more question. There are two things that I find very problematic about it. First, FCS is being sold as a system; all of its constituent elements need to be delivered as a brigade unit. This doesn’t suggest a lot of continuity within a unit or a lot of inter-operability between units. If things don’t work quite right, or if some of the technologies don’t come through, there are problems. Now, this represents to some extent a marketing decision on the part of the Army, as it wants everything. It is likely that many or most of the technologies associated with FCS would find their way into the Army regardless of whether the system as a whole is pursued.
My second issue regards dominance across the combat spectrum. In short, I just don’t buy it. I think there are lots of good reasons to think that some of the technologies that increase our capabilities at the high level of the spectrum (extra firepower, centralized command based on information dominance, tight air-ground cooperation) actually REDUCE our capabilities at lower levels on the combat spectrum. In other words, the tactics and the technologies that work really well at killing a lot of people in a short amount of time don’t work so well when the task is to make friends and find insurgents.
Now, most worrying about the above report is that the Army is willing to sacrifice (at least) six National Guard brigades in order to save part of the money needed for FCS. For obvious reasons, this sounds like a terrible idea to me. It’s a bad idea with legs; bad now, bad for the future. While there are a lot of indications that the Army specifically and the Pentagon more generally are getting serious about counter-insurgency and stability operations, this suggests that they are willing to sacrifice counter-insurgent capability now and in the future for the FCS system. That’s a real problem.
Dittosfan is indispensible regarding FCS issues.
The Alito Files
Note the collected Alito posts in the right sidebar, below the ads.
The Fabled Modern Republican Commitment to Civil Rights
So the state of Georgia passed an unconstitutional law forcing people to show an ID card purchased from the state in order to vote. Lest there be any question about the intention of this legislation, the bill’s sponsor “told the Justice Department that if black people in her district ‘are not paid to vote, they don’t go to the polls,’ and that if fewer blacks vote as a result of the new law, it is only because it would end such voting fraud.” This law was accepted as being consistent with the Voting Rights Act by Bush’s hack appointments over the objections of career lawyers at the DOJ.
So what’s the next move? Easy: 1)stop even allowing professional, expert lawyers to offer recommendations, and 2)appoint the only one of five lawyers who–unlike the two levels of courts who have reviewed it–thought the Georgia poll tax was legal to (I swear I’m not making this up) the Federal Elections Commission! And the lawyer in question was also a strong advocate of the practice, famous from Florida 2000, of “regular purges” of felons, people who have the same name as felons, people who have vaguely similar names to felons, black people who once received a ticket for jaywalking, etc., from the rolls.
But in 1920, it was conservative Southern Democrats who wanted to disenfranchise African-Americans, which is far more relevant!
Legitimacy!!!
We done went and got us some notice from the Gray Lady. I have a warm fuzzy feeling all over.
I wonder if they noticed that the review in question is not actually about the book in question… In fairness, it does touch on many of the same themes.
Hollywood’s Revenue "Problem"
There is the bad “Hollywood’s revenue is declining because…” argument, perfected by Michael Medved. The argument is that Hollywood is going broke because actors were too active in the 2004 elections and the movies are too liberal. In addition to being a classic post hoc ergo propter hoc fallacy, it faces an additional problem when you wrote a book in 1993 claiming that Hollywood’s box office revenues would collapse because actors are too politically active and the movies are too liberal, and yet before 2005 revenues went up every single year. (This reminds me; this weekend may see the debut of my long-unawaited “Medved v. Bork: can you tell the difference?” quiz.)
Then there’s the good argument, which you can see at Shakes’ Sis. Her post has a lot of interesting things to say, doesn’t try to claim that “Middle America” uniformly shares her politics, and also has a link to her excellent post about the degradation of the filmgoing experience. (I identify with a lot of that, and much of my moviegoing consists of matinees at arthouses; I virtually never see big new releases on Friday or Saturday nights anymore.) Still, I think she errs in simply assuming that Hollywood is suffering financially. As this NYT article points out, Hollywood isn’t losing money; the one-year decline in domestic box office revenues is being more than made up for from other sources. As James Surowiecki recently pointed out, it doesn’t make any difference to Hollywood whether a couple pays 20 bucks to see a movie in the theater or pays 20 bucks to buy the DVD. So the Medved/Apuzzo/Reynolds thesis lacks correlation, let alone causation. (And, of course, the tendency of such people to project their own political agenda onto the film audience faces additional problems, such as the dismal box office performance of such NRO cause celebres as Cinderella Man (#38 on the box office list as of this writing) and The Great Raid (#125.) And Brokeback Mountain, playing for a week and a half in 3 cities, has already tripled the take of America’s Heart and Soul.)
Not that I think, of course, the fact that Hollywood is making more money suggests anything about the political content of films. Since I don’t own shares in a Hollywood studio and rarely watch expensive Hollywood product, I could care less whether studios are making money, and trying to derive political points from fluctuations in Hollywood revenue is a game for hacks and idiots. But as far as the alleged crisis in Hollywood’s finances, it simply doesn’t exist.
