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The Abritrary Torture Tautology

[ 13 ] August 3, 2010 |

Discussing the recent whining of Alberto Gonzales who, like Jay Bybee, wants it known that he’s one of the real victims of the arbitrary torture regime he helped conceive of and implement, Dahlia Lithwick points out that according to reasonable, moderate, thinking man’s advocate of arbitrary torture Michael Mukasey there can never be any basis for holding people involved in said arbitrary torture regime accountable:

Those who distorted and upended the legal rules during the Bush era have hermetically sealed themselves inside a legal tautology that provides that lawyers cannot be held accountable for merely offering legal advice, and nonlawyers cannot be held accountable because they believed that what they did was legal. But now we are poised to drown in an even more dangerous tautology—first offered up by former Attorney General Michael Mukasey—which holds that the Bush administration lawyers made mistakes because they were the victims of the “difficulty and novelty” of the legal questions before them, and then victimized again by “relentless,” “hostile,” and “unforgiving” critics who would hold them responsible for their decisions. Under this view there can be no legitimate criticism of the Bush lawyers—no matter how well-intentioned or how well-reasoned, such criticism is partisan and political and vengeful. There is no law. There is only your team versus mine.

Nice racket if you can get away with it. And, alas, they can.

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GOP Lawbreakers

[ 14 ] August 3, 2010 |

Republican contempt for the Constitution continues:

In the House, Rep. Lamar Smith (R-Tex.) has introduced the Birthright Citizenship Act of 2009, which would attempt to deny children of illegal immigrants U.S. citizenship through statute rather than a constitutional amendment (thereby lowering the vote threshold). He has 93 co-sponsors for that effort including Rep. Nathan Deal, the Georgia Republican who is in a runoff to be the party’s candidate for governor.

Since many elected members of one of our major parties seem unfamiliar with the document, why don’t we quote this again:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Nice when the text just straightforwardly resolves a controversy, isn’t it? Bigotry being such a high priority it trumps the text of the Constitution, rather less nice.

[Edited to include correct passage from article.]

How not to treat cancer (or anything else)

[ 40 ] August 3, 2010 |

So long as we’re debating the legal and ethical conduct of certain Australians of recent public note, there’s this bit of unsurprising news:

Penelope Dingle died in August 2005 after initially refusing surgery for rectal cancer, opting to be treated with alternative remedies instead. The 45-year-old underwent emergency surgery in October 2003 to remove a life-threatening tumour but the cancer had already spread to other parts of her body.

Delivering his findings on Friday, West Australian Coroner Alastair Hope said homeopath Francine Scrayen “was not a competent health professional” and had given “dangerous advice” to Mrs Dingle when treating her.

He also said Mrs Dingle’s husband Peter, a prominent toxicologist, was “a victim of his own misinformation” and had “no qualifications in health and wellness”.

Read more…

Learning?

[ 9 ] August 2, 2010 |

Dusty Baker removed Travis Wood after 103 pitches tonight, despite the fact that he was pitching a two hit shutout. I am duly impressed. I also worry that these Reds are going to break my heart…

Breaking: Giuliani Exploits 9/11 For Crass Political Purposes, Betrays Contempt For Basic Rights

[ 10 ] August 2, 2010 |

Of course! It’s also worth noting that Rudy 9/11’s bigoted logic here is straight out of the Jim Crow playbook.   According to Dixiecrat senators, the “decent” African-Americans in their states always knew that segregation, disenfranchisement, and arbitrary police states were best for all concerned…

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Ad Hoc Defenses of the Indefensible, Part Deux

[ 7 ] August 2, 2010 |

BTD asserts:

The second problem with this question is Bowers not imagining what a GOP President and GOP Congress would have achieved with the elimination of the filibuster. You thought the actual Bush tax cuts were bad? They would be TWICE as bad without the filibuster. And twice as hard to undo as they would have been passed in regular order, meaning that to undo them would require passage of new legislation

You can be for eliminating the filibuster on principles of democracy, as Ezra Klein is. But you can not be against the filibuster, as Chris Bowers is, based on advantage to Democrats and progressives.

There are all kinds of problems with this argument, some of which Kevin has addressed: most notably, it is well understood in the political science literature that most welfare state programs create constituencies that make them very difficult to repeal even in Parliamentary systems. A few other points.   There’s an additional asymmetry from the fact that liberals are simply more likely to want to adopt new federal programs that provide assistance to non-powerful constituencies.    Defense spending isn’t vulnerable to the filibuster; attempts to provide better health care to lower-income people are.

At any rate, the fact that the filibuster made public policy marginally less bad when the Republicans had control of the government (and only very marginally: note that the filibuster wasn’t necessary to prevent the privatization of Social Security, and also note how little of the major parts of the Republican agenda was successfully filibustered) isn’t a serious argument.     No way of structuring institutions can entirely prevent bad politicians from doing bad things when they get into power.   It’s a question of net benefits, and the history of the filibuster makes it overwhelmingly clear that it’s not just bad from the standpoint of democratic principle but is also bad for progressive politics.    It’s always been much more useful for reactionary elements and on balance always will be.

Bowers was right; the Democrats screwed up by not doing what they could to put the filibuster on the road to destruction (and that goes triple since the Democrats didn’t actually get anything useful from the Gang of 14.)

Ad Hoc Defenses of the Indefensible

[ 35 ] August 2, 2010 |

As if to illustrate the point made recently by Jon Chait, Doug Mataconis hauls some of the hoariest defenses of the electoral college out of the mothballs:

Without it, Presidential candidates would concentrate their resources even more in the areas where the votes are, ignoring the vast middle of the country. That’s exactly what the Founders were trying to prevent when they set the current system up; the Presidency was supposed to be an office that represents the entire country, not just it’s population centers. Eliminating the Electoral College would leave small states at the mercy of large ones even more than they are now.

Some of the problems here:

  • Small states are already mostly largely ignored during presidential elections.  How much money do presidential campaigns spend trying to win Wyoming and North Dakota and Vermont?   In a more democratic electoral system, 10,000 votes would be 10,000 votes and might be worth persuing in states with cheap media markets, but under the status quo candidates have little incentive to pay attention to small states and none at all to pay attention to the (majority of) small states where the winner is not in doubt.    The states that benefit from the electoral college are not small states but the few relatively large states where the outcome of presidential elections is in some question.
  • The phrasing suggests that the electoral college merely helps to level the playing field, that the “vast middle” gets less attention that the big coastal states but it’s not as lopsided.    But in fact the “vast middle” gets a disproportionately high amount of attention, while the big coastal states are essentially irrelevant to presidential campaigns.
  • So, to get to the key point, what’s glaringly absent here is a case for why states like California, New York, and Texas should be almost completely ignored in presidential campaigns in favor of Ohio and Florida.   The latter two would surely get attention under a more rational and democratic popular vote — what’s the argument for their disproportionately high impact?   The ressentiment about “the great middle” isn’t an argument.
  • Moreover, the idea that electing the president by popular votes will leave small states defenseless ignores one rather important feature of the American political system — the United States Senate.   Far from being left defenseless, small states already have a grossly disproportionate ability to shape public policy.   There’s no good case to be made for preserving an anachronistic means of electing presidents to make the small state bias even greater.

As Chait says, as the weakness of the arguments makes clear almost nobody would defend the electoral college if designing a system from scratch.   Nor is there a good Burkean argument about how the alternatives are untried — not only every other country the democratically elects an executive but every state in the union uses the popular vote and it works perfectly well.    (And note as well that gubernatorial and Senate candidates in large urban states do not focus exclusively on large cities, although if the claims of electoral college defenders were true they would.)     It’s just that the status quo tends to generate defenders, even those elements that can’t be seriously defended.

A Few Positive Externalities from the Afghan War Diaries.

[ 26 ] August 2, 2010 |

This is my last post on Wikileaks for a bit because I’ll be on the road with my son for a few days. So far, I’ve been making the case that the potential negative externalities of the “Wikileaks Papers” outweigh the potential value of the “revelations,” and I stand by those claims.

However for balance I’d like to acknowledge some bright sides to all this as well: Read more…

Race-Baiting Hack of the Day

[ 1 ] August 2, 2010 |

John Kyl.

Elaboration on the War Crimes Bit

[ 15 ] August 2, 2010 |

My main interest in this thread is the proposition that the term “war crimes” has a relatively clear legal meaning, and that there’s considerable treaty law, case law, and learned scholarly opinion constituting this meaning. If we want to use the term “war crime” in light of this meaning, we have to acknowledge that the term has its limits, and that many of the horrible things done in war fall outside of the legal meaning of the term “war crime.”

If this creates skepticism about the utility of the term “war crime” as a political tool, that’s fine; while it’s not quite true to say that jus in bello restrictions have been generated by and for rich white men, it’s not entirely incorrect, either. The entire enterprise of international law suffers from the same problem. Of course, we can also continue to use the term “war crime” in the pejorative, distinct from any legal meaning. We would use this in the same sense that we call mountaintop removal “criminal”, even though we know that there is no specific legal sanction preventing Don Blankenship from doing whatever he wants in West Virginia.

However, we should also be aware of the fact that we give up something when we dismiss the legal meaning of the term “war crime.” The “war is hell” argument is fine and well, but in practice it leads to Ralph Peters-style behavior in actual war; since war is hell anyway, let’s kill ’em all and let God sort ’em out. Jus in bello restrictions create a distinction between the “horrible” things that happen in war and the “illegal” things that happen, and create a means for addressing that distinction. If we discard this distinction, then it becomes more difficult to apply specific criticism to such behavior as murdering prisoners or terror bombing civilian neighborhoods. For my own part I think that this is quite valuable, and I think that the approach of making certain actions illegal (whether or not they often face actual prosecution) has helped restructure how many military organizations think about using force. This includes the US military; as international law regarding targeting practice has evolved, so have US targeting policies. Sometimes this is because of a genuine fear of prosecution (domestic or international) but more often it is out of concern that the term “war crime” will be applied in its legally determinate sense to US activity. It’s also worth repeating at this point that jus in bello restrictions hold regardless of whether the war itself has been undertaken legally, and that this also is intended to have a deterrent effect; if soldiers knew that they could be prosecuted for jus ad bellum violations even if they hold to jus in bello, then they’ll be less likely to observe the latter.

As a final note in support of the legally meaningful use of the term “war crime,” I would add that the Goldstone Report relied on this conception in order to harshly criticize Israeli tactics during Operation Cast Lead. Specifically, Goldstone argued that the IDF had intentionally targeted civilians on several occasions, and had violated the proportionality requirement of the doctrine of double effect by attacking target with little military value in ways that made high civilian casualties very likely. The Goldstone Report also determined that Hamas rocket activity targeting Israeli civilians constituted a war crime. To my mind, the ability to use the term “war crime” in this sense, rather than in its much more nebulous “this is something horrible that happened” is quite valuable, and ought to be supported. While it’s true enough that neither Israelis nor Palestinians are likely to receive direct legal sanction, that’s only part of question; credible war crimes allegations serve to embarrass powerful actors, and help provide the foundation for creative critiques of foreign policy behavior.

WikiLeaks and the First Amendment

[ 40 ] August 2, 2010 |

I don’t have enough knowledge about the contents of the Afghan War Diaries to engage in informed commentary about their contents, so what I’m saying here is more a way of striving discussion about some of the questions raised by the leaks as opposed to a definitive conclusion.

Since we were speaking recently of the right-wing’s most recent Greatest Monster Hugo Black, I’m reminded that when thinking about national security and freedom of the press, I always return to his concurrence in the Pentagon Papers case. Because it involved prior restraint, N.Y. Times was a very easy case and its holding isn’t directly relevant here, but some of Black’s broader analysis remains relevant:

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

A few points in the spirit of applying these principles to the current controversy:

  • A clear distinction should be drawn between the leakers and people who publish leaked material (in whatever forum.)    Although I think Ellsburg was a hero and I’m glad that the Nixon administration’s authoritarianism prevented him from being convicted, prosecuting him was defensible.   Trying to suppress the Pentagon Papers or punish people for publishing them would not have been.     Based on what we know, I can’t imagine any scenario under which prosecuting Assange would be consistent with contemporary First Amendment values.
  • Prosecuting Assange under vague, authoritarian laws passed under the Wilson administration definitely doesn’t count.
  • Whether as a legal or pragmatic argument, I’m very leery of arguments that leakers have done something wrong based on threats to “national security.”     As Black went on to say, “[t]he word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”    This isn’t to say that such arguments are always wrong, but — especially when they’re self-serving claims made by state officials — they should be treated with a very substantial degree of skepticism.
  • This is particularly true in cases like this because arguments from “national security” have a strong tendency to treat secrecy and the shielding of both decision-making processes and the costs of war as ends in themselves.  As Stephen Holmes has argued in persuasive detail, the last decade has been most unkind to assumptions that secrecy and unilateral decision-making enhance national security.

As we learn more about the Afghan Diares, I think these principles should be kept in mind.

Things that Should be Illegal

[ 16 ] August 1, 2010 |

This is why making land mines illegal is a good idea:

Vacationers and other people along the rivers and beaches near the North Korean border were confronted by a deadly surprise over the weekend, as dozens of land mines from the North washed up in flooding caused by heavy rains, officials said.

A man in the South Korean border town of Yeoncheon, northeast of Seoul, was killed Saturday when one of two land mines he had picked up from a stream exploded, the Defense Ministry said. A friend was seriously injured and hospitalized.

To be clear, this could easily have happened the other way; South Korea and the United States use landmines for the same reasons as the North Koreans. The Obama administration’s policy on this question has not been good.

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