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Reading Sotomayor

[ 0 ] May 15, 2009 |

If you think that careful evaluations of a judge’s opinions are more relevant than anonymous gossip, Tom Goldstein’s post is for you. As one would expect, the opinions are those of a solid, moderate liberal.


Using A Non-Issue As Cover

[ 0 ] May 15, 2009 |

It looks like as long as the New Hampshire legislature is willing to add some superfluous religious freedom exemptions, John Lynch will sign the legislation. Works for me. And I think there’s a strategic lesson here: just add some language to legislation ensuring that things that nobody was going to do anyway can’t be done, and there goes the emerging silly pretext for opposing SSM. Ironically, I think that this argument is going to do more to provide a reason to justify flip-flopping than to actually maintain discrimination.

Obama: If We Pretend It Didn’t Happen, Maybe They’ll Hate Us Less

[ 0 ] May 14, 2009 |

OK, I’m officially disappointed in my President.

It was bad enough that he failed to decisively end Bush’s extraordinary rendition program (claiming he’ll only make sure it’s no longer abused); and that he blocked prosecutions for top-level officials who authorized torture. Now, Obama has decided to block the release photos depicting US troops engaging in brutal acts against detainees:

President Obama said on Wednesday that he is seeking to block the release of photographs that depict American military personnel abusing captives in Iraq and Afghanistan, worrying that the images could “further inflame anti-American opinion.”

Look, it’s not pictures that inflame anti-American opinion. Brutality has done that already. And trying to cover up that bad behavior only makes it look as if the new Administration is complicit. In short, this is the worst tactical decision I’ve seen Obama make so far, and I fear the grave consequences of associating his administration with the worst excesses of the past eight years.

The explanation given by the White House is no better than the decision itself:

Robert Gibbs, the White House press secretary, said that the president met last week “with his legal team and told them that he did not feel comfortable with the release of the D.O.D. photos because he believes their release would endanger our troops.”

This logic makes so little sense I cannot believe it is the genuine rationale. First of all, as Gary Bass has exhaustively documented, the appearance of punishing those who are actually guilty is the best way to forestall collective punishment: it’s doing the reverse, obstructing genuine justice, that encourages vigilantism against all US soldiers. Second of all, even if they are put in even greater danger by their comrades’ ill-deeds, won’t this be the best possible deterrent for war crimes in the future? Studies of variation in war crimes demonstrate that militaries who commit the fewest abuses are those where there is strong peer pressure within fighting units to behave properly, and the best way I can think of to create this kind of culture is to allow all US troops to worry about the indirect consequences of being associated with those “few bad apples.”

So what is the actual logic here? Someone, enlighten me, because apparently our “rule of law” President would like to keep us all in the dark.

Who Will Obama Choose?

[ 0 ] May 14, 2009 |

That’s Rick Hasen’s prediction. And actually, that would be fine with me; she seems very impressive and more liberal than anybody on the current Court. Jan Crawford Greenburg, on the other hand, suggests increasing internal support for Kagan. Again, that would also be a strong pick. I find Hasen’s logic a litte more convincing but Greenburg is presumably getting some info from White House sources, so who knows. Except for Karlan apparently not being strongly considered, the process looks likely to produce a good choice: all of the justices on the alleged short list seem like decent choices (although I’m not sure about Granholm — tought to evaluate a governor in those kind of circumstances, and her proescutrial background worries me, but then so did Earl Warren.)


[ 0 ] May 14, 2009 |

The incomparable Marcy Wheeler has won a Hillman award, an award of such prestige that it can only be won by the finest blogs. Donations to support Marcy’s work can be made here.

Advocating for Civilians in Sri Lanka

[ 0 ] May 13, 2009 |

Some professors in Canada are attempting to “bridge the theory/policy divide.” 125 Canadian academics circulated a statement last week calling on the Canadian government to spearhead efforts to resolve the worsening humanitarian crisis in Sri Lanka.

The group makes a compelling case:

“Most independent observers estimate that more than 200,000 Tamil civilians, many already displaced multiple times, have been under siege in the tiny coastal strip with at least 50,000 still there. Confirmed reports indicate that more than 6,400 civilians, including 700 children, have been killed since January 2009.

Displaced persons who have managed to flee the fighting have been placed in de facto detention camps by the Sri Lankan government where they are denied freedom of movement, in contravention of international standards. There are over 40,000 displaced people being held in 13 sites in the Vavuniya District in overcrowded conditions without adequate access to healthcare, food and water. There are reports of rape, torture and killings in the camps (Medico International, Germany, April 16, 2009). Civilians who are suspected of LTTE ties have been taken into government custody, leading to fears of enforced disappearances and extrajudicial killings, tactics the government and its allied militias have employed in significant numbers over the past few years (Amnesty International, ASA 37/004/2009).

Recent artillery attacks by Sri Lankan forces have indiscriminately targeted civilians and civilian objects, in contravention of international humanitarian law. There are credible reports that the Sri Lankan army may be using illegal cluster bombs as well as thermobaric bombs in the safe zone with high civilian casualties. There have been more than two dozen incidents of artillery shelling or aerial bombardment on or near hospitals, in flagrant violation of the Geneva Conventions. The presence of wounded combatants in hospitals does not turn them into legitimate targets. Deliberately attacking a hospital is a war crime. At the same time we deplore the LTTE’s forcible recruitment of civilians, including children, for untrained military duty and for labour in the combat zones as well as its practice of forcing civilians to retreat with its forces, deliberately preventing civilians under its effective control from fleeing to safety. Nevertheless, violations of the laws of war by one side to a conflict do not justify violations by the opposing side. They do not permit the indiscriminate use of force by the Sri Lankan forces in response (Human Rights Watch, 20 Februrary 2009).

Amen. However, reading this left me with a few questions about this group’s strategy. First of all, while most of the claims above are indisputable, a few leave me wondering, and for a statement prepared by academics, there is a dearth of sources cited (a few parenthetical citations give too little information for me to follow sources online so that I could link to them in this post).

What, for example, is the authors’ “credible source” on Sri Lanka’s use of thermobaric weapons? I have seen this concern raised (e.g. here) and (the LTTE has also been accused of using thermobarics as long ago as 2005). But these do not strike me as particularly credible sources, especially given the authors’ misperception that thermobaric weapons are banned in international law (they should be, but they’re not). And David Hamblin at Danger Room points out that none of these claims are verifiable – not that they should matter, slaughter is slaughter, thermobaric or not. Anyway, I’d have expected the academics writing this statement to distinguish between clear-cut facts and the variety of claims out there, or at least provide a citation to some independent report of which I, and more importantly their target audience, might simply not be aware.

I completely support this group’s aims. But I worry that failing to distinguish facts from claims and provide documentary evidence of such statements undermines these scholars’ very worthy case, and more importantly their value-added as academics.

Which leads to a different question. Were these concerned citizens really writing as academics or as Canadian citizens, and what’s the difference if anything? In a statement to the press, Sherry Aiken who initiated the petition said:

“The fact that so many Canadian Tamils are continuing to lose family members and riends in the ongoing crisis is what prompted us as concerned Canadian academics to stand in solidarity with them.”

I wonder if you need to be an academic in order for such concerns to have resonance. And I wonder whether academics should be taking stands as academics on issues that concern them primarily for personal reasons.

OK, lots of different issues raised here, comment away.

Failure of Leadership

[ 0 ] May 13, 2009 |

Right. At the very least, Reid need to actually get senators on the record with a cloture vote. If Snarlin’ Arlen wants to filibuster an eminently qualified nominee because she’s…pro-choice, make him do it on the record. And head into a Democratic primary with no support from unions or reproductive freedom groups. Good luck with that!

Violating the Rule of Law Without Violating Any Laws

[ 0 ] May 13, 2009 |

Todd Zywicki:

The close relationship between the rule of law and the enforceability of contracts, especially credit contracts, was well understood by the Framers of the U.S. Constitution. A primary reason they wanted it was the desire to escape the economic chaos spawned by debtor-friendly state laws during the period of the Articles of Confederation. Hence the Contracts Clause of Article V of the Constitution [sic! Seriously, you think that the framers threw a restriction on state governments’ authority to impair the obligation of contracts…in the section dealing with constitutional amendments? Might you want to look that up?], which prohibited states from interfering with the obligation to pay debts. Hence also the Bankruptcy Clause of Article I, Section 8, which delegated to the federal government the sole authority to enact “uniform laws on the subject of bankruptcies.”

This would seems to be a roundabout way of saying that the Obama bankruptcy plan somehow violates the “rule of law” without violating any, er, laws. The framers could have stopped the federal government from “impairing the obligation of contracts.” They didn’t. And even if Zywicki doesn’t know where to find the contracts clause you’ll note if you read carefully that he doesn’t actually claim otherwise.

This isn’t to say that there aren’t serious public policy concerns with the bailout. Unlike the other two Detroit companies, whose product has (for understandable reasons) become if anything somewhat underrated, Chrysler’s product line is genuinely horrible, not only skewed towards anachronistic gas-guzzlers but not even making good cars in those categories. And Fiat seems not much better. And (without endorsing most of the rest of what he says) I also agree that there are real problems with keeping a zombie Chrysler alive to cannibalize market share from the two potentially viable American auto companies. The economic context (and the supply problems that would result) makes it more difficult than it would otherwise be, but there are good arguments against the bailout.

But the good argument is just that: a policy argument. The Obama policy doesn’t violate the “rule of law,” and the government subsidies that have propped up the value of what the company would get in a liquidation make arguments about sacrosanct contracts or “distribution” moot. If the government pays the piper it call the tune. (And talk to me about the UAW getting too much of a break after you start talking about the violations in the “rule of law” inherent in much larger direct subsidies to inept banksters that would otherwise be out of a job.)

…see also here.

Edwards/Iowa Revisionism

[ 0 ] May 13, 2009 |

Nice job by Kevin K. taking on the argument recently being advanced by people who either need some excuse to discuss John Edwards’s sex life or to excuse their dismal performance running Hillary Clinton’s campaign that Edwards’s foolish decision to stay in the race somehow cost Clinton the election. I think we had the discussion at the time, and the argument from people who thought that Edwards’s presence helped Obama was to claim that Edwards and Clinton were competing for the same working-class white voters. And the problem with this was and remains that while Edwards’s campaign certainly tried to appeal to these voters, it wasn’t actually attracting them in very significant numbers. Rather, Edwards was attracting more of the “wine-track” voters who could be expected to go to Obama. (I did enjoy Malcolm’s imagining of a significant “anti-Obama” vote in the Iowa caucuses.)

Obviously, counterfactuals are difficult, and particularly given the weirdness inherent in the Iowa caucus system we can’t know for certain how Edwards coming to his senses and dropping out would have affected the outcome. But it is overwhelmingly likely that, far from handing the nomination to Obama, his decision was the only thing stopping from Obama pretty much wrapping up the whole thing in New Hampshire.

see also. None of which changes the fact that Edwards dropping out somehow would have made Mark Penn competent, I’m sure.

Freedom Is Forced Pregnancy

[ 0 ] May 12, 2009 |

Shorter Verbatim Ross Douthat: “The pro-life movement is arguably more comfortable with the language of rights and liberties than its opponents. Abortion foes are defending a right to life grounded in the Declaration of Independence, after all, whereas pro-choicers are defending more nebulous rights (privacy, autonomy, etc.) supposedly grounded in “penumbras” and “emanations” from the Constitution.”

Yes, I would have to say that nothing says “freedom” to me like “using (inevitably arbitrarily applied) state coercion to force women to carry pregnancies to term.” And I guess the American public’s massive comfort with the right to privacy is manifested in such things as strong majority support for Roe v. Wade, the fact that no nominee who explicitly denied the right to privacy could be confirmed to the Supreme Court, etc.

Later, he goes on to repeat his frankly absurd implication that there has been no “rollback of Roe’s near-absolute guarantee of abortion rights.” Again, “making clear that virtually every regulation short of a ban is constitutional” is a very curious form of “absolutism.” (Were that Douthat were right that Akron was still good law.) And perhaps some day he’ll explain why there’s some moral significance to pre-viability abortions that occur during the second as opposed to first trimester, but I’m not holding my breath.

…in response to complaints that the linked data is not sufficiently up-to-date, the most recent survey asking about support for Roe v. Wade shows public support for upholding the decision by nearly 20 points, which as anyone who knows anything about the subject knows has been remarkably consistent (like most aspects of public opinion about abortion since the early 70s.) How people answer ancillary questions about abortion is, of course, beside the point in this context.

Torture and shaming

[ 0 ] May 12, 2009 |

One possible response.

"Who-Whom" / "Theory-Policy"

[ 0 ] May 12, 2009 |

A couple of weeks ago at the Duck I poked fun at the debate Joseph Nye stirred up about whether IR theory is relevant to thinking about foreign policy. [He’s still at it, by the way; check out this bloggingheads.]

Then I got my copy of this month’s Foreign Policy. All I can say is, if Strobe Talbott can go around presaging his prognostications about great power politics and Russia’s rise with reference to Hobbes’ state of nature and Kant’s perpetual peace, then we’ve got nothing to worry about.