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Archive for August, 2008

"Separation of Powers" And Immunity

[ 13 ] August 1, 2008 |

I generally agree with Mark Tushnet that Robert Jackson’s much-cited and lauded concurrence in Youngstown is overrated, in the sense that it effectively describes the puzzles of evaluating the constitutionality of presidential action without providing any useful way of resolving the most interesting and important questions. Still, his descriptions can sometimes be useful, and I think this is the case with the passage cited in yesterday’s opinion rejecting Bush administration assertions of “absolute immunity”:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.

In this sense, the “checks and balances” metaphor is a more useful one than the “separation of powers” metaphor the Bush administration’s claims essentially rest on. In Richard Neustadt’s language, the American system is really “one of shared, not separated, powers.” The oversight function of Congress is crucial to the logic of the system, and the kinds of broad immunity being claimed by Bush would unacceptably frustrate it, as Judge Bates correctly recognized.

In addition, Josh Patashnik wonders why the Bush administration would make these farcical claims, when even if more plausible and narrow claims of immunity were rejected it is “very easy to send aides before Congress and simply have them spew nonsensical garbage, avoid answering tough questions, claim to not remember anything, and be generally unhelpful.” The answer, I think, is just contempt of Congress in every sense. It’s not that Bush thinks that Miers or Bolten will say anything that’s directly incriminating; they just want to send a message that they think that their potentially illegal practices should be beyond the scrutiny of mere legislators.

How to Be a Lazy Journalist

[ 14 ] August 1, 2008 |

Steve M. has a nice catch on the cavernously stupid notion that Barack Obama might not have enough body fat — acquired from gobbling seals and rummaging the ice pack for carrion — to survive those long, fasting Presidential winters. Aside from the fact that Amy Chozick actually launched the Yahoo discussion thread from which the entire project sprouted, but she also cribbed talking points from the McCain campaign.

McCain campaign manager Rick Davis a couple of days ago:

“…Only celebrities like Barack Obama go to the gym three times a day, demand ‘MET-RX chocolate roasted-peanut protein bars and bottles of a hard-to-find organic brew — ‘Black Forest Berry Honest Tea’ and worry about the price of arugula.”

Chozick today:

These days he stays away from junk food and instead snacks on MET-Rx chocolate roasted-peanut protein bars and drinks Black Forest Berry Honest Tea, a healthy organic brew.

Unreal. Internet traditions require that I make a joke about Ben Domenech here, but that might — might — be unfair to Ben Domenech.

Brazil’s Nuclear Agenda

[ 0 ] August 1, 2008 |

Mr. Trend talks a bit about the resumption of the Brazilian (civilian) nuclear power program:

The power plant was originally decreed in the 1970s as part of the military dictatorship’s demonstration of how Brazil was finally attaining the levels of “development” it required to assume it’s rightful place in the world (in what I would call Brazil’s historical “order and progress” complex). The idea of the power plant was borne equally out of the fact that many members of the military brass saw nuclear power as the next necessary step to achieve progress in Brazil, as well as being influenced by broader geopolitical factors, including Argentina gaining nuclear power. Interestingly, the public met such plans with an at-best lukewarm response in Brazil when they first came up, but after Jimmy Carter heavily pushed Brazil not to turn to nuclear power, it attained a level of popular nationalism the military government itself could never have achieved on its own, thereby giving the project far greater popular legitimacy as well. Brazil ultimately gained its nuclear technology and capabilities via help from West Germany, and began working on two reactors. The third, begun in 1986, was quickly abandoned as Brazil entered inflation rates in the hundreds and even thousands in the late-1980s and 1990s. Now, with a booming economy and a growing need for energy, Lula has authorized resuming construction of the third reactor.

There are a few interesting things going on here. One is the prestige component of even peaceful nuclear energy; the program was apparently seen by the military dictatorship as having national pride benefits completely apart from the economic value of the reactors. This, I think, is one of the most serious problems with the kind of non-proliferation policies that neoconservatives like to pursue. In building non-proliferation strategy around the idea that the United States (or Israel, or whoever else) will prevent proliferation simply by threatening to bomb the target country, we overlook the fact that the pursuit of national prestige is often the driving force behind a nuclear program, and that the threat of airstrikes is a uniquely poor way to allow a target to maintain its prestige. In the Brazilian case the program was civil, and the US threats non-military, but the outcome predictable; the coercive effort ended up making the program radically more popular.

I have to say that I’m a bit curious about what this resumption portends for Brazil’s nuclear military ambitions. While Brazil hasn’t really made noises about developing its own nuclear weapons, there’s been a lot of talk about Brazil building a nuclear submarine force. This also seems driven almost purely by prestige considerations, as the tasks that Brazil envisions for the nuclear submarine (protecting offshore oil installations) can be handled just as capably by conventional submarines.

BMD Confusion

[ 1 ] August 1, 2008 |

Cernig:

The head of the Missile Defense Agency, General Trey Obering, has previously justified the massive expense and foreign policy jeopardy of placing land-based anti-missile facilities in Eastern Europe on the basis that ship-based defense using the tried-and-tested AEGIS system would be prohibatively expensive – 40 ships and cost $17 billion to stand-up (and another $600 million per year to operate.). But that simply isn’t the case.

Over at Arms Control Wonk, they’ve done some excellent work on this, which should be a news story even the tame mainstream media should see as worthy of taking up.

First Jeffrey Lewis pointed out that Obering had briefed a European think tank that only four AEGIS ships would be needed if a land-based radar could give mid-course corrections. Now, it appears that his subordinate, Rear Admiral Alan B. Hicks, Program Director for Aegis, told another think tank in the U.S. back in 2007 that only two AEGIS ships would be needed if the plans included the upgraded SM-3 Block IIA interceptor due in service in 2016. Simple math says that would cost less than a billion to set up and run up around $30 million in annual operating costs – without antagonising the Russians. By contrast, the ground-based interceptor plan the Bush administration are pushing is estimated to have aquisition costs in the region of $21.6 billion and cost another half billion a year to operate.

It’s also worth noting that the new Type 45 “D” class destroyers of the Royal Navy will probably have ballistic missile defense capability in the future, and that the French are working along similar lines. Of course, we have a series of seemingly contradictory claims from officers with different priorities, and it’s not 100% how their parameters for assessing the necessary might differ. Then again, for those of us who believe that strategic ballistic missile defense (as opposed to tactical) is as pointless as all get out anyway…

As noted, see Jeffrey and Andy at Arms Control Wonk.

A Strange Case For Kaine

[ 13 ] August 1, 2008 |

For most of the reasons cited by Dylan Mathews, I wouldn’t be happy if Obama chose Tim Kaine as his running mate. Still, I can least imagine an argument on his behalf: he could win Virginia for the Dems, a major blow to McCain, and his more conservative positions are unlikely to affect the way Obama governs. I reject the argument because I don’t think there’s good evidence that Vice Presidential nominees have a significant positive influence on voting behavior, so running mates should be primarily be chosen on the merits (on which Sebelius is clearly preferable to Kaine.) But I could at least find this argument intelligible.

Micheal Sean Winters, on the other hand, seems to argue that Kaine’s reactionary positions on reproductive freedom are a feature, not a bug. His argument is rife with the kind of illogic endemic to claims that the path to Democratic victory is selling out women. Most importantly, it’s far from clear how many potential Democratic voters will be affected by critiques of Sebelius from a priest “who has been published in the conservative Catholic journal First Things, a magazine that often mimics White House talking points more faithfully than it follows the teachings of the Catholic Church.” But since these attacks on Sebelius for being pro-choice didn’t stop her from being elected in one of the most conservative states in the country, it’s hard to imagine they could significantly impact a national race, and Winters provides no evidence otherwise.

Even more importantly, while implying that Democrats should choose Kaine over Sebelius to chase voters unlikely to vote for the Dems in any case, he completely ignores the costs to such a strategy. Democrats also need votes, donations, and activism from their pro-choice base, who would be (properly) dismayed by a selection of Kaine. And given Obama’s path to the Democtratic nomination, this seems like an especially bad year to stick a thumb in the eye of women and effectively declare reproductive freedom a second-class issue. Once you consider the potential costs alongside the (highly dubious) benefits, the argument for Kaine cannot be sustained.

There are other reasonable choices, but if it comes down to the two red-state governors, Sebelius is far and away the superior option.

Did a shark attack Brangelina’s twins?

[ 28 ] August 1, 2008 |

Because looking around the major news sites on the intertubes it’s rather amazing how relatively little attention this story is getting.

And not to go all Truther or anything but that sure was a convenient suicide.

In all seriousness I’ve never understood how the anthrax story managed to go so completely down the collective memory hole. The (non)coverage of its apparent and extremely disturbing resolution is just an extension of that.

What Silver Said

[ 30 ] August 1, 2008 |

This is exactly right. Both the 4-year gap between elections and recent realignments mean that it’s easy to come up with arguments of the “No Democrat has won the White House without states x, y and z in decades!” variety, but virtually none of them have any real predictive value.

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