U.S. District Court Judge Anna Diggs Taylor, to her immense credit, has ruled the Bush Administration’s warrantless wiretapping program unconstitutional. Judges can’t always be relied on to stop lawless executive behavior when national security is invoked, so Taylor’s courage has to be praised. The President, as Judge Taylor correctly notes, “indisputably violated the provisions of FISA for a five-year period”; and hence, the program flagrantly contradicts the separation of powers established by the Constitution. (It’s important to note the time span involved; a President can plausibly assert emergency powers under Article II, but the 5-year span of the program plainly renders any such claim specious.) Judge Taylor also ruled that the program was a violation of the 1st and 4th Amendments. Her judgment represents a triumph for the rule of law.
Meanwhile, K-Lo has already asserted that to uphold the Constitution makes you objectively pro-terrorist. I think we can expect various other “libertarians” and “classical liberals” to follow suit…
…more from Hilzoy and Greenwald.
…principled nonpartisan libertarian Glenn Reynolds: how will this major civil liberties ruling affect the political prospects of my beloved Bush adminsitration?
…excellent analysis by Jack Balkin, who agrees with the result but questions some of the analysis. I agree that the separation-of-powers argument is the strongest one, but the opinion did not sufficiently focus on it.
Jeff Goldstein, responding to Andrew Sullivan’s point that reactionary bloggers were yet again gratuitously bringing his sexuality into a political discussion:
Still, with this–his latest attempt to silence his critics by appealing to victim group emotionalism and then playing the implied homophobe card against me–Sullivan has officially earned his progressive merit badge. Congrats, Andrew!
Jeff Goldstein, earlier in the same post:
In fact, Andrew appears to be leaning toward the position that the whole thing was a bit of cynical political theater–a thesis that would require Bush to control Tony Blair, the British press, and MI5 (which, to be fair, is hardly a stretch if the Jews can control the media, Hollywood, and the world economy). Otherwise, how could our rogue nation’s Christianist-in-Chief have gotten the British Labor party leader to go along with his nefarious plan…
So, to summarize the new conservative political correctness, keep the following rules in mind:
- Bringing someone’s sexuality into a discussion apropos of nothing should be entirely beyond criticism, and if you think otherwise you’re a emotional, hysterical drama queen trying to pre-empt debate with your “identity politics.”
- Repeatedly implying that anyone who disagrees with you must be motivated by anti-Semitism or anti-Christian bias with no basis whatsoever: completely acceptable.
The punchline, of course, is that once you burn off the strawman framing of the issue (nobody, including Sullivan, has any doubt that some of the people being detained wanted to engage in acts of terrorism; whether they had the capacity to carry them out, or whether the attacks were imminent, is far more questionable) it seems that even the Blair government itself is in on the conspiracy that apparently makes Sullivan a hysterical anti-Semitic and anti-Christian crank. (And as for the fact that the American and British governments had significant conflicts about the severity of the plots and the timing of arrests, let’s forget about that!) What will the “Tony Blair Democrats” say?
I will have some discussion about constitutional “minimalism” later today, but in the meantime a quick note about the first case critics of this theory are likely to bring up. In comments, Redbeard refers us to this piece by Adam Cohen:
There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power.
The courts should also stand by Bush v. Gore’s equal protection analysis for the simple reason that it was right (even if the remedy of stopping the recount was not). Elections that systematically make it less likely that some voters will get to cast a vote that is counted are a denial of equal protection of the law. The conservative justices may have been able to see this unfairness only when they looked at the problem from Mr. Bush’s perspective, but it is just as true when the N.A.A.C.P. and groups like it raise the objection.
There is a final reason Bush v. Gore should survive. In deciding cases, courts should be attentive not only to the Constitution and other laws, but to whether they are acting in ways that promote an overall sense of justice. The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing. The courts could start to undo the damage by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them.
Longtime readers will know that I consider Bush v. Gore an abomination, if anything worse than it’s commonly perceived as being. But they will also know that I largely agree with Cohen’s argument. About whether the equal protection argument is “right,” I’m not sure; I certainly approve of the abstract policy result, and it doesn’t directly contradict the text of the Constitution, although it’s still a stretch. Cohen is right, however, that what made the decision uniquely appalling was not the equal protection argument but the fact that the remedy was completely inconsistent with the constitutional analysis. And to try to pre-emptively claim that the decision will have no precedential value is simply absurd. If the rule of law means anything, it’s that once announced legal principles should bind similar cases until the law changes. As I argued a few months ago:
The Supreme Court has announced that there is a fundamental right not to have one’s vote diluted, a right clearly violated by Ohio’s 2000 election procedures, as well as those of all states that allow some individuals to have their votes diluted by less reliable voting machines or arbitrary recount procedures. Whether or not this decision was right in the first instance, lower courts should apply the principle. There is no reason, conversely, to be bound by the B. v. G 5′s lawless “minimalist” dictum that “[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities”; it is the responsibility of lower courts to sort through these complexities, and faithfully apply the precedent to cases in which there is vote dilution inherent in state election procedures. The rule of law demands no less. To paraphrase Michael McConnell, is the bottom of the slippery slope so bad? Reforming the country’s egregiously irrational electoral system would certainly be a good outcome.
There is another upside to taking Bush v. Gore seriously, in that it would put the 5 justices [well, yes, actually only 3, although it will be fun to see Bush's appointments squirm too--ed.] who disgraced themselves in 2000 into a delicious bind, like George Costanza driving Susan’s parents to his fictional house in the Hamptons. Either they can allow lower courts to apply the precedent with some measure of logic, or they can take a case and admit that the case was not constitutional law in any relevant sense at all. I say we get to it…
Legal principles do not have an “only when they help Republican Presidents” limitation. Bush v. Gore is the law of the land, and unless the court wants to overturn it courts should hold that voting systems that dilute the votes of some citizens are unconstitutional. That this would require considerable changes to American electoral law isn’t the lower courts’ problem, and courts should also ignore Kennedy’s meaningless dicta about how the inequities in Florida’s voting system were somehow unique (when in fact they were entirely banal.)
Apparently sensing that Mark Levin’s defense was too transparently idiotic to function even as a rationalization for hardcore partisans, and that defending Allen’s racism with more racism may give away the show, Byron York tries a new bit of spin on for size: Allen’s long-term affection for the Confederacy is irrelevant, because his opponent in the Virginia Senate race has also said some appalling things about the Confederacy. Evidently, this isn’t going to fly. First of all, it’s an obvious diversion: the Senate race is small potatoes, relatively speaking, and it’s highly unlikely the Democratic candidate for President will be a Confederate sympathizer. Second, there’s the obvious tu quoque fallacy. And most importantly, there’s the critical factor that Matt again points out: “for a southern person of a certain age to have an affection for the Confederate Flag might mean any number of things. But for a Californian to have an affection for the Confederate Flag isn’t open to a lot of interpretation.” For Allen, it’s not about regional heritage; it’s an ideological symbol. And the ideology being symbolized is “treason in defense of slavery” and “lawlessness in defense of apartheid.”
Some first-rate reporting by Garance Franke-Ruta, who finds that in addition to his other issues George Allen sat on the board of a company that sold a risible product, quickly burned through the capital it got through dubious connections, and ended in a hail of lawsuits:
Xybernaut clearly engaged in questionable activities — and did plenty of business with questionable characters — while Allen was a director with a responsibility to protect shareholders’ interests. Xybernaut’s rise, indeed, was driven by some of the financial industry’s seediest bottom-feeders — questionable stock touters, offshore front groups involved in money laundering, and foreign financiers linked to short-selling, securities fraud, and, in 2005, the collapse of a major Wall Street brokerage firm. Driving Xybernaut upward as well were the determined efforts of its officers to promote and sell the company’s stock to unwitting small investors, even as the company’s fundamentals spiraled ever more out of control. It became clear that no market for its products would emerge. And Allen’s affiliation with the company should now raise questions about whether he deserves to retain his other seat — the one on the best board of directors in the world.
A dimwitted, callow, arch-reactionary empty suit whose primary selling point is a superifical affability that partly masks a nasty mean streak and a bottomless well of ressentiment and who was also a terrible businessman? I think we can just declare George Allen the 2008 Republican Party candidate for President and skip the whole primary thing.
When you blog, you can never predict your reactions; sometimes posts you think will be provocative generate consensus, and post that express the most self-evident banalities generate controversy. The fact that some commenters tried to defend the Phillies’ decision to trade Bobby Abreu and Cory Lidle to the Yankees for a Best of Tom Shadyac DVD box set is one of the strangest examples of the latter. The defense seemed to be that it was the best the Phillies could get, so it was unfair to criticize them. It’s possible that this was indeed the best offer, and it’s certainly true that I have no idea if they could have done better. But the obvious error here is simply assuming it was a good idea for the Phillies to trade for whatever they could get right now. Why? If you examine the wild-card standings, you’ll note that the Phils are 2 games out in the lost column, behind three teams that are over .500 with mirrors. The idea that they just had to dump the best right fielder in the league right away whether they could get anything or not is ridiculous, and it could well cost them a playoff spot (which would make it short-sighted even in the only terms the Phillies care about, this year’s profit.)
For the first and last time, then, let me defend the Yankees. People whine and moan about their advantages. But it takes two for Steinbrenner’s investments to work: he wouldn’t be able to spend as efficiently without other teams in substantial markets with new stadiums being unwilling to pay the market rate for players. (And Steinbrenner–who started with less capital than any other major league owner–is, unlike the Phillies, building a new stadium mostly with his own money.) Unlike the Phillies (or, say, the Gillick-era Mariners), Steinbrenner invests his money in the team; he actually wants to win. And these investments produce many of the advantages people consider inherent: the Yankees have not always been a great draw. “Baseball towns” are about nurture, not nature. And while being more interested in risk-averse short-term profit-taking than competing is an owner’s privilege, it’s maddening that during the next labor dispute this will suddenly turn into a pretext to take money from the players and give it to the owners, and also maddening that they’ll blame the fans if attendance drops. Enough. Stop bitching about the Yankees and start competing with them.
I would like to think that George Allen’s recent bout of racist taunting (although, in fairness, who could have predicted that someone who worshipped the Confederate flag while growing up in California would be an odious dumbass?) would cause some conservatives to re-think the idea that a candidate’s ability to talk about NASCAR and (insert faux-populist totem invoked by urban elitist conservatives de jour here) should be a central criterion in choosing candidates for higher office. But, frankly, I’m not optimistic.
Shorter Ace of Spades: The only way to preserve liberal democracy is through state-sponsored racism and collective guilt. (Via alicublog.)
Atrios cherry-picked the best stuff, but George Will’s conclusion (sniping at the “blogosphere” aside) seems worth quoting as well:
The official is correct that it is wrong “to think that somehow we are responsible — that the actions of the jihadists are justified by U.S. policies.” But few outside the fog of paranoia that is the blogosphere think like that. It is more dismaying that someone at the center of government considers it clever to talk like that. It is the language of foreign policy — and domestic politics — unrealism.
Foreign policy “realists” considered Middle East stability the goal. The realists’ critics, who regard realism as reprehensibly unambitious, considered stability the problem. That problem has been solved.
Several decades ago, before his work turned empirically shoddy and normatively reprehensible, Samuel Huntington wrote a very important book called Political Order in Changing Societies. In a nutshell, the argument of the book is that the most important distinction to be drawn among political orders is not between, say, liberal and authoritarian states, but between states that can effectively govern and those that cannot: “[t]he most important political distinction among countries concerns not their form of government but their degree of government.” To be clear, he was not arguing that the United States and the 60s-era Soviet Union were in any way comparably desirable forms of government. But as an empirical matter, countries with effective states have more in common than states and de facto non-states.
Of course, Huntington’s insight can cut both ways normatively. It can certainly justify the dark side of realism, the “at least they’re our bastards” school. Still, it is an important insight, and one that the Iraq war’s defenders–and especially those who defended it in liberal terms–completely lost sight of. (You know, the kind of people who can insist with a straight face that “I don’t consider myself to be that credulous” but that “It’s quite extraordinary to see the way that American soldiers are welcomed” and “there is a really intelligent political program as well as a very tough military one.”) It’s tempting to argue that when a regime is as bad as Saddam’s, anything has to be an improvement. Tempting, but wrong. Even for Iraqis–and especially for women–a theocratic quasi-state that relies on local militias for effective social control may be even worse, and certainly isn’t a significant improvement. And in terms of American interests, even without considering the opportunity costs an Iraq without an effective state is far, far worse than the status quo ante. It would be really nice if Hussein could be replaced with a workable state that was more liberal, but you can’t just assume that will happen as night follows day–it’s an extremely difficult task. And one that the Bush administration, which seems to have had as little sense about the magnitude of the difficulty as its most abject apologists, was spectacularly ill-equipped to make work.
With respect to nutritionally unsound university dining, I note that my dorm cafeteria–in which everyone had to choose between two mass-cooked meals at a central dining hall rather than choosing from menus at a variety of individual restaurants–routinely offered the hopefully unique combination of pasta and baked potato, and this is fairly accurate representation of the health and taste value of the food. I think at our dorms “Freshman 15″ referred to the first month; that food was so bad it made even the Humpty Dumpty “All Dressed” chips they sold at the in-house depanneur look good; it was a vicious cycle…
I was happy to see Darcy’s tribute to Randy Newman. I can’t agree, however, that Randy Newman (Creates Something New Under the Sun) is a “disaster.” Sure, its notably inferior to the three remarkable albums that followed it, but it has some of his finest songs (“Davy the Fat Boy,” “Cowboy,” “I Think It’s Going To Rain Today”), and even some of the throwaways are worth going back to (I’m especially partial to “The Beehive State.”) I guess I see it as an uneven (and with frequently very dated arrangements) but still important and enjoyable album, like his 80s stuff (Trouble in Paradise has even better songs, but also has more members of Toto, so it’s more or less a wash.)
I was also interested to see his link to this list of forthcoming books in the 33 1/3 series, which has produced some interesting stuff. I immediately see books about three of my all-time favorites (69 Love Songs, Swordfishtrombones, Marquee Moon) , and then some that are nearly in that class (Horses, Double Nickels on the Dime, People’s Instinctive Travels and the Paths of Rhythm), and then lots of other good stuff, and…a Celine Dion record? (And I see it’s apparently the one with the song about the sinking boat on it…double shudder.) I’m not familiar with the author, so I don’t know if it’s sincere or an ironic-hipster thing, but either way that can’t be good…
Particularly if you remember how numerous wingnuts slandered her as an Islamofascist lackey (because, after all, statements you make at the point of a gun after months of captivity can always be taken at face value!), this account of Jill Carroll’s kidnapping–the first of a series–is harrowing.