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The law according to Yoo

[ 0 ] February 28, 2010 |

Some thoughts on what John Yoo will teach his students.

Yoo’s constitutional theories regarding presidential power raise some interesting jurisprudential and moral issues. If we assume Yoo isn’t a moral monster, we have to assume he doesn’t actually favor machine-gunning a village of civilians or crushing the testicles of a child merely because the POTUS thinks such actions will “keep us safe.” Yoo’s position, I’m assuming, is that such things, while morally monstrous, wouldn’t be illegal under certain circumstances.

It’s tempting to dismiss this view as absurd on its face (I happen to think that in this instance it is absurd on its face, because Yoo’s position regarding the extent of presidential powers in wartime is extreme to the point of absurdity), but the only way to avoid the possibility of finding oneself arguing for something similar in some other situation is to claim that “the law” never permits politicians to engage in grossly immoral practices. That seems to me very implausible. To take an obvious example, slavery was a grossly immoral practice in 19th century America, and also perfectly legal until 1863.

The moral dilemma lawyers in the situation Yoo (ex hypothesi) found himself in 2002 face is this: Suppose you believe it’s legal to do something which is very immoral, and you’re asked your professional opinion on whether it would be legal to do this very immoral thing, by people who are asking you precisely because they intend to do it. What do you do?

The two easy escapes from this dilemma are to take the view that nothing that is very immoral can actually be legal, or to take what appears to be Yoo’s position, which is that he was just being asked for his professional opinion, and what more powerful people chose to do with that opinion was their affair. Neither of these escapes seems legitimate to me. The first position is fairly incredible, while the second dodges the question of moral responsibility altogether.

The first escape appeals to what could be called legal utopians, while the second appeals to authoritarian personalities. For other people, the possibility of this sort of ethical dilemma remains very real.

Establishment media discovers establishment critics are really DFHs after all

[ 0 ] February 25, 2010 |

Stop the presses!

I swear if I read one more thing about spoiled Baby Boomers not understanding the gloriousness of The Greatest Generation I’m going to move from dissent to resistance.

Also, 1968 was 42 years ago, so anybody much under 60 wasn’t really around for “the Sixties.” Listening to Disraeli Gears in your dorm room in 1982 doesn’t actually count, as I know from first-hand experience.

Glenn Reynolds suggests defaulting on the federal debt as a way to balance the budget

[ 0 ] February 20, 2010 |

Reynolds will probably claim he was joking, but he seems to forget that a lot of people these days aren’t getting the joke.

I have a vague memory of some Werner Herzog film set in Wisconsin in the winter, in which a couple of developmentally disabled fellows are sold a Winnebago RV even though they have no money. It’s repossessed and sold at an auction during an incredibly bleak midwinter afternoon. In the course of the auction one of them turns to the other and says something like, “You know, I thought we might have to pay for that thing one day.”

UPDATE [SL]: His response is actually worse than Paul guessed. Needless to say, it contains no defense of his idiotic idea on the merits, but does claim that Obama is “trying to turn the United States into Zimbabwe.” (This is even more hilarious when you remeber that Reynolds calls Bartlett’s substantive response “intemperate.”) Let’s leave aside the problems with comparing a program that would leave the United States with a smaller state than such failed states as Canada, the UK and Germany to Zimbabwe. If running deficits makes you Robert Mugabe what does that make Reynolds, who favors upper-class tax cuts (they allowed him to buy a six-burner grill, so they must be good public policy!), many more ruinously expensive wars, and as far as I can tell no non-trivial specific spending cuts?

Ronald Reagan: Soft on terrorism

[ 0 ] February 19, 2010 |

Scott Horton interviews Will Bunch about his book Tear Down This Myth. Bunch’s most interesting contention is that, on terrorism-related issues such as torture, “collateral damage,” and treating terrorism within the confines of the ordinary criminal justice system, Reagan was far to the left of the contemporary GOP (Bunch doesn’t put it this way but, if his description of Reagan’s positions is accurate, he was also to the left of Barack Obama on these issues).

5. Ronald Reagan signed the Convention Against Torture, and his Justice Department indicted and prosecuted a Texas sheriff for waterboarding. How can his views about torture be reconciled with the current Republican pro-torture dogma?

It’s important not to nominate Reagan for sainthood in the arena of human rights. His “Reagan Doctrine” in Central America, leaving the fight to anti-Communist thugs and death squads that the then-president called “the moral equivalent of our Founding Fathers,” is arguably the gravest moral failing of his tenure. That said, back on U.S. soil, Reagan was far to the left of the 2010 Republican Party on issues such as torture. The convention that he signed in 1988 holds that there is no circumstance of any kind that permits torture, which certainly would include the 9/11 aftermath and related anti-terror efforts today.

But it goes even deeper than that. As I noted in an early 2010 blog post: “Reagan would not have approved of drone-fired missile attacks aimed at killing terrorists; as president, he several times rejected anti-terrorism operations for the sole reason that civilians would have been killed by collateral damage. In 1985, he surprised aides such as Pat Buchanan by ruling out a military response to a Beirut hijacking for fear of civilian casualties; Lou Cannon reported then in the Washington Post that Reagan called retaliation in which innocent civilians are killed “itself a terrorist act.” And the idea of trying terrorists in military tribunals as opposed to a civilian court of law? The Reagan administration was completely against that. Paul Bremer (yes, that Paul Bremer) said in 1987, “a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law, against them.”

It’s almost tragic—when you go back to the very recent history of the 1980s—when you realize how seriously an American consensus on human rights and the power of our criminal-justice justice system has been trashed by the modern conservative movement. It’s going to take a long time to get that back—although the words that Reagan and his aides left behind could help America get past this.

When is crashing a plane into a building in an act of explicit political violence not terrorism?

[ 0 ] February 18, 2010 |

There must be some fundamental difference between this guy and the 9/11 terrorists (besides sheer scale), but somehow I can’t quite put my finger on it.

(CNN) — An Austin, Texas, resident with an apparent grudge against the Internal Revenue Service set his house on fire Thursday and then crashed a small plane into a building housing an IRS office with nearly 200 employees, officials said.

Federal authorities identified the pilot of the Piper Cherokee PA-28 as Joseph Andrew Stack, 53.

Two people were injured and one person was missing, local officials said. There were no reported deaths.

A message on a Web site registered to Stack appears to be a suicide note.

See iReport photos and videos from the scene

“If you’re reading this, you’re no doubt asking yourself, ‘Why did this have to happen?’ ” the message says. “The simple truth is that it is complicated and has been coming for a long time.”

In the lengthy, rambling message, the writer rails against the government and, particularly, the IRS.

See text of the note (PDF)

The building into which the airplane crashed is a federal IRS center with 199 employees.

Two F-16 fighter jets were sent from Houston as a precaution, but federal authorities said preliminary information did not indicate any terrorist connection to the crash.

“We do not yet know the cause of the plane crash,” the Department of Homeland Security said in a release. “At this time, we have no reason to believe there is a nexus to terrorist activity. We continue to gather more information, and are aware there is additional information about the pilot’s history.”

Kevin Smith and MeMe Roth

[ 0 ] February 18, 2010 |

I have a piece in The Daily Beast on the Kevin Smith Southwest Airlines incident. What happened to Smith, who was apparently aribtrarily thrown off a flight for being too fat, is the kind of humiliating incident to which bigger than average people are subjected to constantly. Some day they’re going to start getting mad.

(MeMe Roth’s birth name was Meredith. I wonder if anyone has ever pointed out to her that changing your name to MeMe is like sticking a post-it note on your forehead saying “I have narcissistic personality disorder.”)

Profiles in something

[ 0 ] February 17, 2010 |

Jon Chait takes an amusing tour of Harold Ford’s fantasy world. Ford’s level of whorishness is almost weirdly admirable — there is apparently nothing he won’t say or do in his pursuit of whatever it is the Harold Fords of the world are pursuing:

In a New York Times interview, Ford attempted to put a slightly more populist sheen on his candidacy:

[T]he response I have gotten is overwhelming, from different categories, the spectrum of political leaders, people involved in politics, people representing different social and income classes in the city, be it the cabdriver on the way down here, who had positive things to say, and wanted to take a picture with me before I got out of the taxi, to people who are business leaders and leaders in the entertainment industry and media industry based here.

Truly, this is a trans-class coalition, ranging from rich businessmen to rich entertainment businessmen to rich media businessmen to cabdrivers–who, like all members of tip-based professions, are known for their frank assessments of their customers.

Ford has come out against the current health care legislation and in favor of “a huge tax-cut bill for business people, not only in New York but across the country.” Ford has chosen to label himself an “independent voice,” independence being defined as total subservience to Wall Street. (Ford promises, in an interview with The Wall Street Journal, “I would support no bill that does harm to New York’s financial industry.”)

Ford’s candidacy is an epiphenomenon of Wall Street’s retreat into a fantasy world. In this alternate reality, the titans of finance are innocent victims of a freakish accident, the Democrats’ struggles result from their hostility to these victims, and the people are clamoring for a leader who will openly cater to their demands. The notion that Democratic primary voters in New York will embrace Ford may be more fantastical than the wildest investment scheme that predated the crash.

Tom Friedman’s furrowed middlebrow

[ 0 ] February 12, 2010 |

This column is a few months old, but it’s a particularly good example of something illustrated by any number of Thomas Friedman columns, or indeed any amount of free-wheeling high-profile punditry. Various aspects of the argument strike me as absurd (the idea that the only really big problem the world had when Friedman was a kid was the fact that the Soviet Union was a nuclear state) to at best dubious and strained (the analogy between increasing U.S. government debt and increasing carbon emissions). But what struck me about it at the time, and why I remembered it this week, was something else: the breezy style in which Friedman issues pronouncements on three immensely complex subjects — nuclear proliferation, the world’s financial system, and climate change — as if these are straightforward matters that he, Thomas Friedman, has sufficient expertise to comment on in a useful way because he slept in a Holiday Inn Express last night or something.

I was reminded about that this week because I’ve spent a lot of time doing media stuff on the childhood obesity panic (I’ll be on CNN tomorrow at 7:45 PM eastern Update: link to video here), and I was struck, if I might indulge in a bit of liberal condescension, by how much I know on this subject, at least in comparison to almost everybody who is commenting on it.

Now this isn’t because I’m some sort of genius, but simply because I’ve spent literally thousands of hours studying the subject of the relation between weight and health. I get a bemused smile when somebody in a comment thread starts pontificating about the “fact” that very thin people have high mortality rates because people lose lots of weight right before they die. As anyone in my position would be, I’m intimately familiar with the methodological debates about what to do to control for occult wasting in observational studies. Indeed I’m hip to all the tricks researchers use when trying to squeeze certain conclusions out of the data. That’s why people like, to name names as they used to say back in the 1950s, Walter Willett and JoAnn Manson of the Harvard School of Public Health hate me with a visceral passion — and I welcome their hatred.

Normally, people like Willett and Manson can shut dissenters up, or at least make them extremely cautious and mealy-mouthed, through the raw exercise of institutional power. They review articles for publication, consult on grant proposals, invite people to conferences, write tenure letters and letters of recommendation, place former students in key positions, and even hold press conferences to denounce researchers who publish inconvenient truths, to name just a few of the many tools at their disposal.

But hey I’m not a doctor, as I’m so often reminded. No kidding — which means, among other things, that I’m off the grid. They can’t do anything to me and it drives them nuts. It’s hardly a coincidence that the most trenchant criticisms of the obesity orthodoxy are coming from academics who are mostly outside the public health establishment: from political scientists and sociologists and historians and physiologists and yes even a law professor or two. These are people who don’t have to curry favor with the obesity powers that be to get hired and funded and tenured and promoted.

[Update: A few comments in this thread and in the torture/body stigmatization thread take the rather inexplicable view that I'm claiming "academia" is out to get obesity dissidents. To the contrary, academia enables obesity dissidence, as the links in the post indicate. The parallels between obesity dissidence and global warming denialism are interesting, but also highly problematic for all sorts of reasons. That's a subject for another post].

Anyway, back to Tom Friedman. One advantage of actually knowing a lot about something is that (unless you’re an egomaniac) you have a keen sense of how little you know about almost everything. Here’s what my opinion is worth, on the margin, to debates about nuclear proliferation in an age of terrorism, and managing the U.S. debt in the context of the world financial system, and dealing with the problem of anthropogenic climate change: Nothing. If I studied one of those things intensely for say five years I might have something to add. But I haven’t and I don’t. So I try to draw a distinction (at times unsuccessfully no doubt) between opining on subjects on which I actually know something (there are about two others besides fat), and everything else. I doubt, however, that someone like Friedman could do what he perceives to be his job if he drew a similar distinction.

Torture apologists and body stigmatizers

[ 0 ] February 12, 2010 |

Having spent the better part of a decade now listening to people patiently explain why it’s a good thing to pathologize the bodies of 71% of the American population in order to improve their health (68% of adults are supposedly “overweight” and “obese,” and another 3% are “underweight”) I’ve been struck by a number of parallels between torture apologism and the proponents of body stigmatization.

(1) Both the torture apologists and the body stigmatizers display a curious indifference to the copious evidence that their methods don’t actually produce the results they claim to be pursuing. Experts on the subject emphasize that torture is a lousy way of getting reliable information. Similarly, even the most rabid fat-haters have to admit that the evidence is overwhelming that attempts to produce significant long-term weight loss fail in the vast majority of cases.

(2) In each case this produces laughably transparent attempt to put the bar for what counts as “success” pretty much on the ground: Torture apologists point out that it’s not true that torture never produces true confessions and actionable intelligence, while body stigmatizers point out that some people do manage to achieve significant long-term weight loss. That both facts are of very limited relevance to any rational cost-benefit analysis of the respective practices remains irrelevant to true believers.

(3) Both subjects feature the use of disingenuous semantic smokescreens: “Of course we oppose torture, and we don’t torture. What we support is, under strictly supervised conditions, enhanced interrogation techniques.” “Of course dieting doesn’t work, and therefore we oppose dieting. What we support is chronic restrained eating.”

(4) In both cases, what opponents consider an unacceptable cost of the policy is considered by proponents to be a positive good. For torture apologists, the fact that “terrorists” (never, of course, terrorist suspects, or low-level foot soldiers in a distant civil war, or completely innocent people caught up in a Kafkaesque nightmare) are being tortured is a good thing in and of itself, quite apart from whether the torture actually produces any actionable intelligence. Similarly, for body stigmatizers, the destructive effect of stigmatizing bodies that fall outside the 29% of the U.S. population that currently maintains a “normal” (sic) weight is a feature of anti-obesity policies, not a bug.

Torture apologists like torturing people because the people who are being tortured deserve, in their view, to be tortured. Body stigmatizers like to stigmatize “fat” (again, 68% of the U.S. population) people, because they hate and fear fat at a visceral level, and naturally they therefore believe it is appropriate to stigmatize this type of deviance from the approved norm.

(5) Because of a widely held suspicion that people who like torturing people are actually sadistic creeps, people who like torturing people will usually go out of their way to deny that they like torture. They will make a great show of seeing their advocacy of torture as “realistic” and a sign of “moral clarity” in a world full of inevitably tragic choices. Similarly, people who advocate ridding the world of body diversity will make a great show of how they absolutely deplore stigmatizing the bodies they wish to eliminate, and insist that it couldn’t be further from the truth that they have anything like prejudice in their hearts (they just want to make sure we live in a world in which everyone is thin).

(6) A certain percentage of torture apologists and body stigmatizers are surely aware that their putative reasons for supporting the policies they do are invalid, but they support the policies anyway, for unstated reasons. Some torture apologists are perfectly well aware that torture is actually counter-productive as an interrogation method if the goal is to produce reliable information, but they support torture for unstated reasons, such as signaling that, as Thomas Friedman once so eloquently put it, under our placid veneer of technocratic rationality, Americans are really violent crazy people who are not to be trifled with. Many anti-fat crusaders are perfectly well aware that there’s no reason to believe increased activity levels and better nutrition will eliminate a significant percentage of the 71% of American bodies that they are classifying as being at a pathological weight, but they’re nevertheless happy to engage in stigmatizing more than seven out of ten Americans in pursuit of a worthwhile goal, i.e., making people less sedentary and getting them to eat more fruits and vegetables.

(7) Opponents of torture and of body stigmatization will do well to remember that, when reaching out to fence sitters on these issues, it’s better to emphasize that torture and body stigmatization simply don’t, as a practical matter, work. That both policies are also deeply immoral is of course extremely important and even more fundamental, (any decent person would still oppose torture and body stigmatization even if they did “work”), but it’s much easier to demonstrate that a policy is nonsensical even on its own terms than it is to prove that certain means should never be used in the pursuit of “security” or “health.”

Update: From Jack in comments:

“I guess this could be read that Paul is saying these parallels mean that both groups of people are equivalent in some substantive way, like hating fatties is morally the same as torturing them. Some commenters have made that association and I suppose it’s fair critique given the text.

I took it differently. I believe Paul was arguing that the mental processes involved in both were similar. Whatever defective reasoning allows otherwise smart and (we assume) morally competent people to argue for torturing terrorists, the same defect is at work in the case of stigmatizing obesity. The two are not equivalent things, but the logical fallacy is the same.”

I would largely agree with this (individual acts of literal torture are usually going to be vastly more rephrensible and damaging than individual acts of body stigmatization, although severe body stigmatization can quite readily be considered a form of genuine psychological torture by those who endure them), but at the same time it’s important to consider that individual acts of literal torture are vastly rarer than individual acts of body stigmatization. Which institution is currently a bigger problem in the USA as a question of social justice is not an easy question to answer.

Update #2: I’m reprinting this reaction from the brilliant fat activist Marilyn Wann with her permission:

I found the comparison of logic/motivations behind torture and weight-loss programs [a] quite cathartic way of thinking about this new “eradicate the fat children” harangue!

I find there’s a similarity perhaps in the exasperation. It’s as if the situation being dire, or rather someone *feeling* dire about the existence of terrorists or of fat people, justifies extreme/immoral actions. If one whips oneself up into enough of a frenzy of fear about the very existence of terrorists (or fat, or fat people), then it seems reasonable and perhaps necessary to take horrific action, to call for inhumane goals.

I’ll try to capture it as dialogue…

“Those terrorists threaten and scare me so much, torture is the mildest thing I can imagine doing to them.”

“Fat people distress me so much, I can’t look at their faces on television just their headless and jiggling bodies. I want them not to exist at all!”

Changing minds

[ 0 ] February 11, 2010 |

Alan Wolfe has an thought-provoking review of Thomas Sowell’s latest book.

I am not in the conversion business, but I have changed my mind more than a few times in the forty or so years that I have been putting my views before the public. Reality can do that to you. You might think, for example, as I once did, that affirmative action is highly suspect because it gives more weight to group membership than individual achievement. But if you teach at a university and see your classes enriched by the diversity that affirmative action brings to them, and if you then hear remarkable stories of the individual achievements made possible through the magic of the college admissions process, you may begin to change your mind. I do not fear a future Tim Russert combing my early books to find words in blatant contradiction to my present ones: good luck in even finding the young out-of-print me. Sure, some of the stuff I once wrote embarrasses me now, even down to my choice of titles. But better that than sentences never exposed to the air of experience.

Writing, in short, is a form of risk-taking. You say what you believe and hope that you are proven right. Oddly for such a passionate defender of the market, Sowell never takes a risk. “Not only have intellectuals been insulated from material consequences,” this secure inhabitant of the right-wing think tank world writes, “they have often enjoyed immunity from even a loss of reputation after having been demonstrably wrong.” This is meant to apply to others, but the description works well also as autobiography. If Sowell were an investment fund, he would be hedged against failure. You can make a bet about what you are likely to find on any page he has ever written and be sure of being right.

Wolfe’s point touches on two related but distinct things: intellectual conversion in a total sense, and changing one’s mind about specific issues. The former is well-documented, and often features a radical conversion in terms of ideology while leaving the convert’s cognitive style completely untouched (radical leftist David Horowitz because radical right-winger David Horowitz but very much remains David Horowitz in terms of binary thinking and a fundamentally Manechian world view. A similar thing can be observed happening in the other direction with Andrew Sullivan).

The latter is less remarked on, because it’s subtler and less spectacular, and also in a sense harder to acknowledge. For example, I’ve stayed somewhere on the liberal-left continuum throughout my adult life (although on different points of that spectrum), but I’ve gone from thinking that, for instance, the Dworkin-Mackinnon critique of pornography was wildly exaggerated to believing that it is in large part correct. I had a similar experience regarding the belief that being fat was clearly a bad thing, and was largely within the control of individuals.

It wasn’t that difficult for me to change my mind about these things without “converting” to a fundamentally different world view, for two reasons: widely varying beliefs on these subjects are tolerated (if sometimes grudgingly) on the left side of the political spectrum, and, more important, I hadn’t invested any of my personal or professional identity in my old beliefs, so changing them didn’t require any painful confessions or embarrassing backtracking.

To me, the most impressive sort of mind-changing occurs when people don’t convert to a whole new tribe — which after all normally includes the benefits of being welcomed as the prodigal son/daughter who was lost but now is found — but still renounce intellectual positions in which they’ve been heavily invested in professional and/or personal terms. That this is so relatively rare indicates how difficult it is to do.

The body politic

[ 0 ] February 11, 2010 |

Thoughts on Michelle Obama’s dream of a nation with no fat kids.

I’m going to be on the Diane Rehm show on NPR at 10 AM eastern to talk about this.

Update: Shorter Diane Rehm Show

Me: The things Michelle Obama is advocating have been tried a bunch of times in large well-designed studies. They make kids healthier but they don’t make them thinner. We know how to make kids healthier, we don’t know how to make them thinner. So why are you trying to make them thinner?

The other three participants: Clap louder!

Football coaching slowly emerging from Paleolithic era

[ 0 ] February 8, 2010 |

Sean Payton made two great unconventional calls in this game: going for it on fourth and a long yard at the goal line late in the second quarter, and of course the onside kick to open the second half.

The first call didn’t “work” but what happened illustrates why it’s the right decision in that situation. After the play failed the Colts played conservatively since they had the ball at their own two and they were trying to just run out the clock. The subsequent punt gave New Orleans great field position. One first down later they were in FG position, so they ended up losing no points by not kicking the FG initially. Indeed if they had kicked the FG initially, Indy would have gotten the ball back with two minutes to go and probably pretty good field position. The game could easily have been 17-6 at the half.

The onside kick was brilliant — surprise onside kicks are so rare that the recovery rate for them is far higher (55%) than for conventional situation onside kicks. Coming out of the locker room a fresh Peyton Manning was primed to slice the New Orleans defense apart on Indy’s first possession, as indeed he did. But instead of giving the Colts a 17-6 lead midway through the third quarter, the TD ended up merely giving Indy the lead back they had by then lost. The kick fundamentally altered the shape of the game.

Update: Nate Silver does the math. (The value of the surprise onside kick leads to an interesting game theory dilemma — surprise onside kicks are clearly an under-used strategy but they’re underused because they’re underused — if they become too common their value will drop quite a bit because the recovery rate will fall as teams anticipate them).

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