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The Lessons of Sessions

[ 0 ] May 8, 2009 |

This pretty much nails it.

Meanwhile, some more on the man who will be the Republican point man on judicial nominations:

Figures recalled one occasion in which the Justice Department’s Civil Rights Division sent them instructions to investigate a case that Sessions had tried to close: “We had a very spirited discussion regarding how the Hodge case should then be handled; in the course of that argument, Mr. Sessions threw the file on a table, and remarked, ‘I wish I could decline on all of them.'”

All of them, according to Figures, meant civil rights cases generally. As he explained at one point: “[T]he statement, the manner in which it was delivered, the impression on his face, the manner in which his face blushed, I believe it represented a hostility to investigating and pursuing those types of matters.”

Figures said that Sessions had called him “boy” on a number of occasions, and had cautioned him to be careful what he said to “white folks. “Mr. Sessions admonished me to ‘be careful what you say to white folks,'” Figures testified. “Had Mr. Sessions merely urged me to be careful what I said to ‘folks,’ that admonition would have been quite reasonable. But that was not the language that he used.”

I’m sure that Republican “efforts” to obtain a statistically measurable percentage of the black vote will continue to be a roaring success.


Yes, Virginia

[ 0 ] May 8, 2009 |

Darren Hutchinson has a good response to Orrin Hatch’s signal that — should she be the nominee — he plans to make a big deal out of Sotomayor’s comment that the “Court of Appeals is where policy is made.” This being a judicial confirmation hearing, I suppose we have to return to a level of discourse more suitable to bad junior high civics textbooks, but as adults perhaps we can all accept that high appellate courts in fact make judgments about the law that could come out either way and hence inevitably make policy. To characterize this as judges “who will substitute their own policy preferences for what the law really is” is to insult everyone’s intelligence, starting from the fact that “what the law really is” is rarely self-evident in cases that make it to a federal appeals court.

I’m especially glad that Hutchinson brought up Adarand; I’m still waiting for a conservative to respond to my challenge and explain in what sense the Fifth Amendment could be “originally understood” as forbidding all racial classifications in 1791. But, of course, conservative justices just neutrally apply the law and the fact that these applications have a remarkable tendency to concur with current Republican policy preferences is all a big coinky-dink….

Clerks — Who Cares?

[ 0 ] May 8, 2009 |

To add to the additional commentary about the tendentious TNR smear of Sonia Sotomayor, I think it’s worth asking about the genre of putting substantial weight on the testimony of clerks at all. Most of the comment threads seem to have gone to Haloscan Heaven, but I remember that whenever I posted some evidence about Alito’s sysmetatically reactionary record somebody would always link to some post in comments (cf.) about how some former clerk(s) assure us that he’s a moderate, he’s the nicest guy in the world, etc. I’ll leave it to you to determine which source of evidence was more useful, but basically what clerks provide is “evidence” that is either 1)far less reliable than studying a judge’s record or 2)completely trivial.

And that obviously goes triple when the evidence (such as it is) comes from cherry-picked anonymous clerks trafficking in racist and sexist stereotypes only marginally less masked than this crap.

The Keep Arbitrary Detainees in a Geographic and Legal No-Man’s-Land Chosen Deliberately to Enhance Dick Cheney’s Hard-On for Executive Power Act

[ 0 ] May 8, 2009 |

Republicans might as well be specific here. I suppose it’s possible that some people are willing to accept the argument that Guantanamo was chosen as a detention site because “illegal combatants” posed a grave threat threat to Americans that could only be adequately contained on an isolated naval base. (Certain law professors, for example, wondered if Jose Padilla might actually “communicate in code by blinking.”) And some people are probably dumb enough to overlook the fact that Republicans are eliding the difference between “releasing” and “transferring” detainees to the US.

But all that really needs to be pointed out is that Guantanamo Bay was selected because people who mattered in the Bush administration did not want to place captives anywhere that would subject their policies to another country’s laws (or another country’s willingness to care if human rights obligations were minded). Alternately, the Bush administration did not want to negotiate a SOFA with, say, Guam or American Samoa, because these were US territories were US laws would apply. Indeed, if keeping “terrorists” out of the US had been the sole priority, a site like Wake Island would arguably have served just as well — it’s unpopulated, geographically remote, and under the control of the US Air Force. But detainees on Wake Island would likely have received the very legal protections that would have made Dick Cheney, David Addington, John Yoo and Alberto Gonzales cry, and so the Bush administration elected to use Guantanamo. As it turned out, the Supreme Court was unwilling to allow the administration to do as it pleased; with Rasul, Hamdan, and Boumediene, the policy of arbitrary detention was undermined to the point that Guantanamo could no longer serve the lawless purposes for which it was created.

Republicans who boast of their concerns about “fascism” are apparently worried that Guantanamo won’t be available any longer for arbitrary detention and torture; by contrast, they’re in a simulated panic that the Obama administration is preparing to release an army of jihadi Willie Hortons into the streets. Pathetic.

Homophobia To Continue Trumping National Security

[ 0 ] May 8, 2009 |

The Obama administration really needs to end the policy. It’s both immoral and bad for the country, and the idea that it’s going to me a major votimg issue in the 2010 midterms is frankly nuts. Every application of this policy is a national disgrace.

…I should note here that I agree with commenters that the proper action here is for Obama to push to change the policy, not to simply refuse to enforce the law. Yooism is no better when done in service of good policies…

Careless Warfare or Lawfare? A Pointless Debate

[ 0 ] May 7, 2009 |

Enough civilian body parts to fill two tractor-trailers remained after an incident in Farah province of Afghanistan Monday, according to the NY Times today. Afghan civilians blame US airstrikes for 100+ civilian dead; the United States is investigating the possibility that the Taliban executed the civilians with grenades in order to blame US forces.

Either scenario is pretty plausible; but either way the PR fiasco falls in the lap of the international forces, so the bottom line is the US needs to rethink its counterinsurgency strategy.

The Campaign for Innocent Victims in Conflict released a report last month entitled Losing the People: The costs and Consequences of Civilian Suffering in Afghanistan. Based on interviews with 143 civilians harmed by conflict operations in the country since 2001, the report (p. 11) details both “lawfare” deployed by the Taliban, in which civilians are intentionally used as shields, and massive casualties from US “collateral damage.”

In November 2008, villagers attending an Afghan wedding party in Kandahar provice said insurgents entered the area, fired on international forces, and then forcibly prevented the villagers form fleeing the area before IMF retaliated with an air-strike that left 37 members of the wedding party dead.

Haji Nasaib lost nine family members and suffered significant property loss due to an IMF air-strike in Wardak province. “I could see all the dead and injured bodies. My daughter was baking bread inside the house when the bomb hit. Due to the blast, she was thrown into the oven. Her body was totally burned. She was taken to the hospital, but she died… My son had injuries on his feet and the force of the blast had thrown him over a tree. Another daughter – she was blasted into so many pieces that we still have not been able to find her body.”

The first example is a war crime; the latter, unless the result of intentional targeting of civilians, is not. But the difference is lost on the civilian population of Afghanistan, and ultimately it is the US who pays the political price. The popularity of the international troops in the country has been plummeting since last year, and there is a resurgence of anger since this week’s incident.

In fact, given the regularity of such incidents, one wonders why the Afghani people have not risen up more forcefully already to kick out the occupiers – who on the one hand are seen as cowards who fight from the skies, and on the other hand have been ineffective at protecting them from militias?

Currently, international forces maintain the moral high ground in three ways. First, they kill fewer civilians than insurgents and pro-government forces in Afghanistan. Human Rights Watch and Amnesty International data suggest the number of casualties from IMF mistakes has been around 25% of the overall total for the past three years; the Afghan NGO Security Office numbers are slightly lower for 2006. Second, they often apologize when they make mistakes, unlike the Taliban who sometimes target civilians directly. And third, they often compensate the families of civilians who are killed or maimed through carelessness.

But international forces also fight an uphill battle in other respects: they are outsiders, their disproportionate power is resented, and they are seen as out of touch with the needs of the Afghan people. It is clear that the US and other ISAF countries will need to take greater steps to reduce the “collateral damage” associated with Operation Enduring Freedom, and to streamline the programs in place to mitigate the unavoidable effects on civilians.

CIVIC’s report outlines a variety of such measures, including quicker apologies (not “regrets,” not “excuses,” but apologies); better coordination of existing compensation policies so that families don’t fall through the cracks; quicker public acknowledgement of errors, and more transparent investigations; and “the establishment of a Pentagon position to strategically address potential and actual civilian casualties.”

In my view, an important item should be added to this list: the ISAF, led by the US, should rethink the use of airpower and strafing as a legitimate means of waging a counterinsurgency war within areas populated by civilians. Even with the most discriminate means available – precision targeting by unmanned drones – the civilian/combatant death ratios we are seeing in Afghanistan and Pakistan are ridiculously disproportionate. It’s time to put our money where our mouths are and fight insurgents on the ground.

Off to Seattle…

[ 0 ] May 7, 2009 |


I am off to Seattle for a week, and aside from a couple of preset posts will be taking a break from blogging until Saturday, May 16. Until then Charli Carpenter of Duck of Minerva will be filling in. Give her a warm welcome…

How Many Pirates Do the French Have to Kill to Earn a Reputation for Toughness?

[ 0 ] May 7, 2009 |

In the fabulous piracy-oriented South Park of two weeks ago, a French yacht surrenders to Fatbeard the Pirate without a shot being fired. When someone brings the issue up at the UN, a bureaucrat explains “Being French, they surrendered immediately.” This brought some thoughts of mine on piracy and reputation into focus. The French have responded to piracy more aggressively than anyone, taking the early initiative on pursuing pirates onto land, and on launching rescue operations. In spite of this, at least in the world of Matt Stone and Trey Parker, the French continue to have a reputation for irresolution. Indeed, they amount to the stand-in for an irresolute Western response to Somali piracy.

Along similar lines, Galrahn last week published a long post on potential piracy solutions, arguing at the end that the US might suffer a reputational effect if it didn’t take the lead in anti-piracy operations. This was a relatively small part of a very good post, but again it got me thinking; would the US suffer damage to its reputation from failing to vigorously pursue anti-piracy efforts, and if so what would that damage consist of? Dan Drezner and I discussed this a bit in our bloggingheads of a couple weeks ago, more or less settling around the idea that it would be hard for US competitors to draw any conclusions about US resolve in the absence of any ideas of their own on opposing piracy. Galrahn suggests, however, that the US reputation in maritime matters may be structured a bit differently than the Russian or Chinese; the US has implictly taken on the responsibility for maintaining maritime security in a way that the Russians and Chinese have not, and thus could be more likely to take a hit from the failure to address piracy vigorously.

Long time readers of this blog will know that I’m deeply skeptical of the independent effect of resolve and reputation on international relations. Given my graduate training, this is unsurprising; reputations for resolve don’t form in the manner expected by policymakers and traditional scholars of IR, and as such efforts to reinforce a reputation for resolve rarely yield much of a return. Actors tend to interpret behavior in light of the previous expectations, meaning that aberrant behavior is excused as situational. If the French are acting resolutely in response to piracy now, then it’s probably just to cover up their inherent weakness. Similarly, if the Russians (who are understood to be resolute, if nothing else) have a tepid response to piracy, then it must be because they don’t care. That both of these things may be true isn’t the point; reputation doesn’t change either way. I’m not convinced that reputation can’t change, just that it doesn’t update in response to rational assessment of evidence. For many Americans, including Parker and Stone, the French surrender to Germany in 1940 remains the critical symbolic marker for French reputation. Had the French backed the US in 2003 in Iraq this might have changed, although I doubt it.

So that said, back to the original question: How many pirates do the French have to kill in order to earn a reputation for toughness? I think it’s fair to say that certain behaviors in regard to piracy can earn the description “weak,” such as the recent Dutch release of captured pirates. Is there anything, though, that could have a lasting effect on reputation such that even Stone and Parker began to view the French as resolute, dangerous, or even aggressive? What if French destroyers started gunning down every fisherman they could find off the Somali coast? What if the French attacked pirate havens on land, and deployed troops to Somalia long term? You could argue, I suppose, that focusing on South Park isn’t helpful, that Parker and Stone are relatively low information actors, and that policymakers have a more accurate assessment of reputation. I’m utterly unconvinced of this; the South Park episode in question demonstrated a substantial knowledge about the issue of Somali piracy, and I’m guessing that Stone and Parker depicted the French as weak because it played into stereotype, rather than out of ignorance. Moreover, I think it was fairly clear in the run up to the Iraq War that officials within the administration and in Congress had substantially the same, unsophisticated understanding of French reputation.

The question works the other way, too; how many pirates would the Russians have to release in order to earn a reputation for weakness? A couple weeks ago, I spoke with a conservative friend about piracy, and found that he was under the impression that the Russians had been dealing brutally with pirates off Somalia. It’s true enough that the Russians have been participating in anti-piracy operations, but as far as I know they haven’t acted with any brutality, and their general performance has been altogether less assertive than that of the French. Nevertheless, the Russians get credit (and my friend spoke admiringly of the Russian brutality; shades of a Tom Clancy novel) for aggressive action that they don’t take, while in the popular imagination the French either remain cheese-eating surrender monkeys, or they become fodder for political attack (“See!? Even the feckless French can fight pirates!”)

So, again; how many pirates would the French have to kill to become tough? And how many would the Russians have to coddle to become borscht eating surrender bears?

The Backlash Continues

[ 0 ] May 6, 2009 |

In yet another manifestation of the massive backlash against Goodridge, which set back same-sex marriage rights for decades, Maine has ended its denial of fundamental rights to same-sex couples. Hopefully this will help persuade New Hampshire’s governor to do the right thing too.

Performance of the Year Decade Century!

[ 1 ] May 6, 2009 |

It’s good that Yankee fans were astute enough to make the greatest pitcher athlete in Yankee known human history their player of the game yesterday. As was reflected by Al-Yankeezera’s broadcast team — without question one of the 30 best local broadcast teams in major league baseball — Joba’s performance was just unbelievably great. I mean, 5 2/3 innings, 4 runs — it’s like Walter Johnson came back to earth and we get to see him again! It’s truly something special.

Pitchers are sissies now

[ 0 ] May 6, 2009 |

“Now” being 1946, according to the great Kid Nichols.

This reads like a perfect parody of the “in my day we didn’t have fancy curve balls or surgery for bone chips, and we had to work the turnstiles too” genre.

Except he literally says those things.

Tributes To Treason and White Supremeacy

[ 0 ] May 6, 2009 |

What really bugs me is the monument to the Jefferson Davis highway in Washington state. If someone bought a monument to Hitler, would the state put that up too?