Obama’s glacial pace in making federal court nominations is not, strictly speaking, an example of the kind of thing Krugman is talking about today. Making a couple dozen more nominations to the lower federal courts would not be a base-energizing move (nominating someone like Pam Karlan to the Supreme Court, maybe.) But allowing a lot of vacant seats on federal courts as the GOP is poised to make huge gains in the Senate is still bad on the merits — bad for the functioning and fairness of the criminal justice system, and bad for the application of federal law. And while this is an area in which Obama’s power is shared with an institution in which Republicans have a de facto veto, it’s still true that 1)he could make it harder for them, and 2)even with the Republican obstructionism he almost certainly could have gotten more nominees confirmed if he had made more nominations.
The measure was introduced by Dianne Feinstein as a replacement bill for the Hysterical Moral Panic Act of 2009.
An organization whose stated role is to “counteract hatred, prejudice and bigotry” nonetheless opposes people building where they please simply because of the faith they adhere to. Sure “bigotry is unfair and wrong”, the ADL says, but we should give the bigots what they want anyway. It is inconceivable that the ADL would argue such a position if the building in question happened to be a synagogue, and the builders happened to be Jews.
Let’s be clear. This is not about the proposed Islamic Center. There is already a masjid in the neighborhood, and it’s been there for decades. This is about giving political cover to right-wing politicians using anti-Muslim bigotry as a political weapon and a fundraising tool. By doing this the ADL is increasingly eroding its already weakened credibility as a non-partisan organization.
I learned one very important lesson in Hebrew School that I have retained my entire life. If they can deny freedom to a single individual because of who they are, they can do it to anyone. Someone at the ADL needs to go back to Hebrew School.
Can’t add anything to that.
Conservatives have made a concerted effort to portray public opposition to health care reform as an ideological rejection of liberalism and government. The truth is that people who don’t have government health insurance support the Affordable Care Act. The only opposition comes from people who already benefit from single-payer health care. They’re not opposed to government health care — they’re worried that providing health insurance to others will come at their expense.
To make an additional side point, It’s not just that the Palin’s “death panels” line was making up something that doesn’t exist. As sophisticated conservative philosopher Ray Stevens inadvertently pointed put, the underlying premise of Republican discourse about the ABA was that the government should keep its grubby paws of people’s taxpayer-funded single-payer healthcare.
It’s becoming clearer that Julian Assange of Wikileaks published a vast database of classified information (with almost no ethically significant revelatory content*), in such a way as to put numerous Afghan civilians at risk. His actions seem to have done very little good in changing foreign policy, but potentially an enormous amount of harm to human life.
[Name-calling aside, Daily Beast’s Tunko Varadarajan just about bangs the nail on the head in regard to Assange’s specious claims to the contrary:
How does Assange justify putting these people at mortal risk? Predictably, he does not, taking refuge behind a weasel-worded insistence that he and his team had edited the material so that there was “harm minimization,” a morally teasing phrase that might, so ironically, be part of the Pentagon’s own lexicon.]
What happens now? The US government, quite justifiably though not least for its own self-serving reasons, is reportedly considering ways to prosecute Assange for his actions. (Next I’d like to see reporters press SecDef Gates on what exactly DOD intends to do to protect its informants on the ground.) Developments in any legal case that goes forward will be interesting because Assange is operating in a legal gray area in more ways than one.
First of all, his Australian citizenship and shifting transnational bases raise jurisdiction questions: under whose laws does he fall? Should he be prosecuted by the US, by his own country, or some other court, and is he likely to be extradited to any of these?
Second, as an individual with a computer backed by a team of journalists and human rights activists, it’s not clear conceptually what set of professional standards he falls under. Is Wikileaks part of the media, covered by laws governing the relationship between the national security state and the press? If so do those laws apply to these types of transnationalized new media outlets? (According to the Daily Beast, Wikileaks has been described as “the world’s first stateless news organization.”) Or is he just a citizen with a non-profit organization, and if so is his behavior a form of protected speech? Is speech protected when it compromises the confidentiality of others without their consent, to the extent that their lives are put in jeopardy? (This question goes to much broader legal debates percolating in the area of new media, such as whether Facebook’s unilateral shifting of presumably ‘private’ content breaches the civil liberties of its users, particularly when it puts people at risk of, say, stalking. Hackers’ efforts to expose the practices arguably put users at risk as well.)
Most likely, if Assange is extradited to the US he would be prosecuted under some provision of the 1917 Espionage Act. A former counterintelligence official is arguing Assange should be captured by Special Ops forces and tried for espionage rather than for mishandling classified evidence. If so, we can unfortunately expect the case will be treated and politicized as an attempt to crack down on whistleblowing per se than as application of justice to irresponsible, pseudo-whistle-blowing journalists. We see this already in the Weekly Standard’s coverage: Gabriel Shoenfield discusses “the threat to human life and to the war effort” in the same sentence in critiquing the NYT’s role in breaking the story.
This framing has grave implications for free speech and dissent not only in wartime but probably in the new media more generally. If the US government adopts it Assange will become a lightning rod for First Amendment claims and counter-claims rather than questions about ethical use of sensitive data. The Espionage Act was designed to essentially curb free speech to prevent interference with wartime military operations. Prosecuting Assange under such a law would delegitimize his protest of the war rather than the means by which he undertook it. In 2006 a federal court upheld the right of the government to prosecute recipients of national security leaks, as well as sources. The constitutionality of such laws is hotly contested and the resulting debate will muddy the real issue, which is the conditions under and means by which classified information should be revealed to the public.
I’d rather see a court focus on how he conducted his activities rather than whether leaks of this type are legitimate (for under certain conditions, they certainly are, whether or not some country’s war effort is undermined). The real issue here is and should be framed as human security, not national security.
Are there alternatives to prosecution by the very country whose war efforts constitute the background for the debate? Absolutely. Instead of being treated as a spy or a criminal perhaps Assnage should be sued in civil court under the Alien Tort Claims Act. Class-action lawsuits have often been brought on behalf of aggrieved defendants by public interest lawyers in the US, often in cases where jurisdictional issues problematizes criminal prosecutions. Former heads of state and bloody-handed transnational corporate executives have been sued in this way; why not an irresponsible renegade cyber-journalist?
Penalties under such civil lawsuits don’t always result in concrete gains for victims’ families but they do play an important norm-building role in establishing legal precedent over previously under-adjudicated phenomena. The approach is especially useful where the harms suffered by individuals are recognized by global civil society organizations but unreachable by domestic or international institutions. In the case of the wanton privacy violations and attendant human security concerns raised by this case, perhaps reaching and punishing such harms is best accomplished in a civil court that can remain neutral of the political debate about whether Assange has, or has a right to, “undermine the war effort.”
Since civil cases require damages, an implication might be that we must wait around for heads to roll before Assange receives a comeuppance. But the more responsible thing to do would be for NATO countries to immediately seek to remove named informants and their families from Afghanistan, and join those families in suing Wikileaks to recover the financial costs and emotional hardships of relocation.
*I will have a post up shortly about why progressives should be wary of uncritically regurgitating Assange’s claims about “war crimes.”
UPDATE: Joshua Keating has some further insight on whether the Justice Department’s dog might hunt.
UPDATE: David Folkenflik: is Wikileaks an editor, a source, an advocacy organization or a member of the journalism profession?
On March 17, 2007, I was invited to join Journolist. I reprint the full e-mail invitation below, without permission, because that’s just the way I roll:
Over the past few weeks, I’ve been creating a list serv to unite the journalist, wonk, public academic, and more cerebral bloggers communities. It’s actually going pretty well, and I’d love for you guys to be a part of it. Joining can be done below — and I think you guys would enjoy it.
I refused to join, out of
a desire not to be bored firm, principled conviction that participating on such a list would be wrong for some reason. I also determined that, like Kieran Healy, I was far too sexually attractive to be a member of the list. Indeed, I was more than a bit insulted by the invite, but fortunately Ezra later acknowledged my “rugged good looks,” so offense forgiven.
Nevertheless, it has come to my attention that the comments and e-mails of JournoList members are worth good money. In the spirit of commerce, I am willing to offer, unedited*, the complete archive of my e-mail contact with any and all JournoList members. Each revelation is guaranteed to be more shocking than the last.** What follows is only a taste of what’s available (names have been changed to protect the innocent):
Contempt for the hardworking common American, and conspiracy to take his money:
Matt D: What was the name again of the poker room where rubes were waiting for me to take their money?
Me: Imperial Palace.
Matt D: Thx
Technological Collaboration in the Service of (almost certainly fraudulent) TEH LIBERAL blogging:
D. Muss: hey
D. Muss: question:
D. Muss: I know i’m a paid blogger and shit, but I forget how to do a screen catpure
D. Muss: capture
D. Muss: do you know?
me: Ja; hit the “print screen” button.
me: That gives you an image file, which you can then copy into any program that you like.
Literally hundreds of conversations just as devastating as these, with literally a handful of Journolist members, can be yours! Bidding starts at $100000.
*Archive may be heavily edited.
**Guarantee void in all known legal jurisdictions.
I’m toying with the idea of watching the second season debut of Jersey Shore, after recommendations from certain aficionados of trash TV (I didn’t see any of the first season). Apparently, there will be some discussion of federal tax policy:
There are the occasional, oblique references to the cast members’ new off-camera fame. For instance, Snooki’s bonding with Sen. John McCain over their opposition to the tanning-bed tax that emerged from the healthcare-reform effort. McCain—who, ironically, has been outspoken about skin-cancer prevention after a bout with melanoma—tweeted his support for Snooki after she criticized the tax in a preview of season two. And here Snooki tells us why she (despite pulling in an estimated $10,000 an episode, with a hefty raise coming) has been economically driven to mere spray-tanning:
I don’t go tanning tanning anymore because Obama put a 10 percent tax on tanning. I feel like he did that intentionally for us. McCain never would have put a 10 percent tax on tanning, because he’s pale and he would probably want to be tan. Obama doesn’t have that problem. Obviously.
She’s trying to be classy.
If only the same could be said for McCain.
And it gives me an excuse to post this video again!
They’re so far behind their divisional opposition that I don’t know much it will help, but I think this is a good hire for the Orioles. It’s not exactly unjust that Torre took the team Showalter built to 4 World Championships, because Showalter did (gloriously) screw up the biggest game of his career at least as egregiously as Grady Little screwed up Game 7 in 2003, using completely gassed starters for several high-leverage innings while only getting 2/3s of an inning out of his brilliant relievers. But he did have a large role in building that team, and his professionalism and ability to judge and motivate young talent will be real assets for Baltimore. He may not be the manager you want to take your team over the top but….that’s obviously not an issue here.
In news more relevant to the pennant race, getting Oswalt makes up for Amaro’s strange decision to trade Lee, and I’d definitely bet on them to make the postseason from behind once again.
A reporter from Politico asked Bunning for his thoughts about Nationals right-hander Stephen Strasburg missing his start on Tuesday with shoulder soreness. Bunning grabbed his arm with a fake exclamation of pain and then decided to question Strasburg’s manhood.
“Five-hundred twenty starts, I never refused the ball,” Bunning said. “What a joke!”
“He was in the top one percentile,” Bunning said, pinching his thumb and forefinger together. Now, Bunning said, he’s closer to the 50th percentile.
Jim Bunning pitched 104.1 innings prior to his 25th birthday. Strasburg turned 22 last Thursday, and has already pitched 54.1. You’d think that ruining the lives of hundreds of thousands of unemployed Americans would satisfy Bunning, but apparently he’d also like to destroy the career of a promising young athlete.
I’d like to believe that Bunning’s retirement will open up the possibility of a non-embarrassing junior Senator. I’d like to believe that…
Every time you see someone willing to argue in public that a woman who chooses to have a couple drinks in anything more revealing than a burqa she’s implicitly consenting to anything a man might subsequently want to do, it makes the next “the work of feminism is done!” thumbsucker you read just that much more infuriating.
It’s true — Time really is using a graphic image of horrible abuse by the Taliban that happened during the U.S. occupation as a reason to stay there forever with, presumably, no cost/benefit analysis whatsoever. One thing that has chacterized both wars is policymakers and analysts who seem to have no idea how difficult effective state-building is; effective authority isn’t something you can establish because you really want to. Staying in Afghanistan out of the belief that if we spend enough money and kill enough people an effective Weberian state will control the whole country and wipe out any Taliban influence is just nuts. And the same inability to understand this leads to further policy errors related to the War (On Some Classes of People Who Use Some) Drugs.
Quoting an anonymous former military intelligence officer, that is how Adam Serwer described the Wikileaks’ archive published Sunday in an op-ed earlier this week. Joshua Foust concurred in a PBS essay:
If I were a Taliban operative with access to a computer — and lots of them have access to computers — I’d start searching the WikiLeaks data for incident reports near my area of operation to see if I recognized anyone. And then I’d kill whomever I could identify. Those deaths would be directly attributable to WikiLeaks.
Even with the names removed from these reports, you know where they happened (many still have place names). You know when they happened. And you know an Afghan was speaking to a U.S. soldier or intelligence agent. If you have times, locations and half the participants, you don’t need names to identify who was involved in a conversation — with some very basic detective work, you can find out (and it’s much easier to do in Afghanistan, which loves gossip).
This morning, the New York Times confirmed that the presumably heavily redacted leaked reports contain numerous data-points, including specific names, that will identify Afghan informants who have provided intelligence to US forces. The Afghan government is rightly appalled:
“Whether those individuals acted legitimately or illegitimately in providing information to the NATO forces, their lives will be in danger now,” said Mr. Karzai, who spoke at a press conference just after he said he discussed the issue with his advisors. “Therefore we consider that extremely irresponsible and an act that one cannot overlook.”
While the government mulls options for prosecuting Assange (more thoughts on that shortly), consideration should probably be given to the legal or ethical culpability of the mainstream press as well. There are professional standards in most industries about the protection of sources. (As a political scientist, if I published my human subjects data in such a way as to put their lives at risk, I would face serious professional consequences.) Yet the paper is blithely oblivious to its own role in publicizing and legitimizing Wikileaks’ actions:
A search by The New York Times through a sampling of the documents released by the organization WikiLeaks found reports that gave the names or other identifying features of dozens of Afghan informants, potential defectors and others who were cooperating with American and NATO troops.
The Times and two other publications given access to the documents — the British newspaper The Guardian and the German magazine Der Spiegel — posted online only selected examples from documents that had been redacted to eliminate names and other information that could be used to identify people at risk. The news organizations did this to avoid jeopardizing the lives of informants.
They may have redacted names in their print versions, but they publicized the archive and linked to it, ensuring its contents maximum exposure. Does this fall within the bounds of appropriate conduct for professional journalists? Based on a reading of the “minimize harm” rules in the Society of Professional Journalists Code of Ethics, I have my doubts.
Even if there’s no legal requirement, it seems to me that the mainstream news media could and should play a significant role in cases like this in disseminating rights-based norms for reporting and sourcing to online journalists. There is no professional association for bloggers, no oversight for users who generate content on YouTube, Facebook or other social networking sites, no codes of conduct for one-URL entities who make it their business to raise awareness of specific issues. However, when mainstream news organizations cover the actions of those organizations or individuals in a way that raises their influence and profile, they have an ethical responsibility to consider the fall out to vulnerable individuals of that coverage.
I would argue this extends to negotiating terms with people like Assange that make cooperation contingent on guarantees of certain ethical standards in their own work. Most likely such a socialization process would have helped an amateur like Assange avoid what he himself admits were mistakes, and resulted in a set of wikileaks that minimized the “collateral damage” to Afghan citizens.
In the absence of such guarantees, the mainstream news media could have published a different story, as soon as they understood the contents of the archive: a story about the evolving relationship between new media and human security, perhaps headlined “Wikileaks Founder Poised to Endanger Civilian Lives in Afghanistan.”
Instead, they treated him as a fellow journalist without holding him to any journalistic standards. Whatever the merits of the rest of the archive, The Times, the Guardian and Der Spiegel dropped the ball by cooperating fully with Assange instead of reining him in.
I wonder if an outcome of this fiasco might be the establishment of offices within mainstream news outlets specifically designed to review the ethics of complicity in publishing stories like this, staffed by individuals with human rights and ethics training whose job is to liase in a responsible manner with new media information sources upon which mainstream news reporting has increasingly come to rely.
UPDATE: I don’t usually find myself in agreement with folks at the Weekly Standard, but here is a post that also considers the NYT’s complicity and puts it in the context of a 1931 Supreme Court case, Near v. Minnesota.