Balkinization  

Saturday, February 15, 2003

JB

Role Morality, Or, Why Colin Powell is Doing the Right Thing


Many people who think that we should not immediately go to war with Iraq are dismayed that Colin Powell, the voice of reason in the Bush Administration, has been made the point man for war at the United Nations. Given that Powell is the author of the Powell Doctrine, which asserts that you don't attack unless you have overwhelming force and a clear exist strategy, why is he pushing us to get into a war without a clear exit strategy-- a war that may have the most disastrous consequences for us and for the world in the next two decades?

The answer is that Colin Powell is not just an ordinary citizen. He is Secretary of State, and he works for George W. Bush. Even if he would prefer to avoid war, he is doing exactly what a rational actor would do given his role and his preferences.

Assume that Powell thinks as follows:

His first choice is to avoid war, because there is no clear exit strategy and the consequences of war are unpredictable and may even be disastrous.

His second choice is to go to war only with full U.N. support, which gets us both the legitimacy of U.N. authorization and the promise of assistance by other countries after the war is over. It also strengthens international cooperation and international institutions for keeping the peace against threats posed by rogue states like Iraq.

His least favorite option is going to war without U.N. authorization, because this will split the Atlantic coallition, undermine NATO, alienate France, Germany, and Russia, send Europe on its own path, and lead to all of the unexpected and dangerous consequences of going to war without a clear way out.

Now let's add one more fact. He knows, and he has known since at least mid January, that the President has made up his mind that he is going to war no matter what happens in the U.N.. Powell argued against war for months, but he lost. So now what should he do?

At this point, he knows he can't get his favorite option. So of the two other possibilities, he has a strong preference for number two-- U.N. authorization and support. That is why he is pressing the case as emphatically as possible. He knows that he can't convince his boss, but maybe, just maybe, he can convince the Security Council, and this will make the war-- if there is to be war-- much less dangerous and destabilizing than it might otherwise be.

So the next time you see Colin Powell's frustration, understand-- he's not play acting. This is for real. He knows that war is coming, and he wants the war to go forward with the least possible chance of disaster. He is being not only a patriot, but also a responsible world citizen. He is doing what he can, given the limitations of the role he is in, to avert or at least ameliorate what he believes may well be a situation of great danger for the United States and the world.

If all this is true, you may ask, why doesn't Powell just escape the constraints of his role by resigning? The answer is that he can't really resign right now. If he does, the hawks in the Administration will win: the United States will go to war without U.N. support, and it will do so sooner rather than later.

Powell is between a rock and a hard place. It is a problem not of his own making, but because he works for a President who is too stubborn and aggressive for his-- and the country's and the world's-- own good. Powell has the misfortune to be Secretary of State to a President who, as I have noted previously, is simply not up to the task of deailng with the complexities of a post-9-11 world. And the rest of us-- in the country, and the world--- are being held hostage to the President's character flaws. It is sobering indeed to recognize that one man's intransigence is about to send the word into a brutal and destructive war. I am not talking about Saddam Hussein. I am talking about George W. Bush, who seems, more than ever, to live up to his title as the most dangerous person on Earth.

As the world hurtles toward a future we cannot predict, Colin Powell must play the hand he has been dealt. He is on the opposite side of this controversy from me. Nevertheless, I admire the man greatly and I wish him God speed.


Friday, February 14, 2003

JB

Is the President up to the Job?


During the 2000 Election, one of the greatest concerns many had about Governor Bush was that he lacked sufficient knowledge, experience and judgment to engage in foreign policy, and that he would not hold up well in a crisis. What would this fellow do, many people said to themselves, if we ever went to war?

Bush’s response was to point out that he would surround himself by able advisors, who would give him the facts and he would make the tough decisions. His selection of Dick Cheney as his running mate was the great symbol of Bush’s commitment to reliance on seasoned officials.

After 9-11, questions of Bush’s competency seemed to be laid to rest. After all, he did respond to a very big crisis. He mobilized public support for an invasion of Afghanistan, and his generals carried it out successfully, although they did not catch Osama Bin Laden.

But in a sense this proof was misleading. Bush’s response to 9-11 showed that Bush was a man of fierce determination, who would stick to a course and see it through. He showed that if attacked, he would not hesitate to use force to punish those suspected of complicity in the assaults and to threaten to use force against anyone else who dared consider a similar adventure.

Similarly, in domestic politics, Bush’s basic strategy has been to push for very significant policies, and refuse to budge, waiting to see if his adversaries crumble or become divided among themselves. His basic mantra has been “don’t negotiate with yourself;” instead, take the strongest possible stand– whether on tax cuts, judicial appointments, or anything else, and see if the Democrats will stand up to you or whether they will fold.

The problem is that single mindedness, stubbornness, and a willingness to use force and threaten force may be an effective strategy in some contexts, but they are not necessarily the best strategy in all contexts. Current conditions show why Bush’s dominant strategy and tendencies have gotten us into considerable trouble.

His policy toward Iraq has squandered almost all of the goodwill that came our way after 9-11.

He has managed to create the largest antiwar movement *before* a war in recent memory, both in the United States and in Europe.

He has managed to strain our relations with our closest allies in Europe almost to the breaking point, and it is quite likely that he has precipitated a new geopolitical arrangement with America and Europe seeing themselves increasingly as adversaries, rather than as two important entities working together to ensure the spread of democracy and freedom. In the process, he has also succeeded in allying France, Germany and Russia against him.

On the domestic front, his unswerving devotion to larger and larger tax cuts promises to create larger and larger deficits for the foreseeable future, even as he plans to spend more and more money on his military adventures and on the consequences these adventures will inevitably produce.

He has managed to preside over an economy sinking into increasingly dire conditions; his first tax cut has done nothing to ameliorate the bad economic times, and neither he nor his rotating cast of economic advisors have made a plausible case that his favored policies of greater and greater tax cuts for the rich are going to improve things.

If you asked voters in 2000 what they would think of a President who would single-handedly destroy the fifty year old Atlantic alliance with Europe, plunge us into war, send the government into mountains of red ink and fail to deal with mounting economic problems at home, they would probably have responded that such a person was not fit to be President. It would sound to them like the fellow, however good intentioned he might be, was simply not up to the job.

And they would be right.

What obscures this judgment today, I think is, that unlike Jimmy Carter, who presided over a mess not even half as bad as this one, George W. Bush seems to be a man of action. He is determined. He will not be denied. He is utterly convinced that he has God on his side. People tend to associate action and bluster with strong leadership. What this overlooks is that a person can fail to be up to the job of President not because he is too reticent and weak-willed, or because he freezes in a crisis, but because he overreacts and pushes too hard and too fast at the wrong times. George W. Bush’s failings are not neurosis and indecision. They are stubbornness, tunnel vision, narrowmindedness, over-aggressiveness, belligerence, and hubris.

Bush’s failures as President will emerge over time– as our alliance with Europe is damaged, as our economy stagnates, as the costs of war mount. Eventually, people will see that the aggressive singlemindedness they so admired in the wake of 9-11 was ill-equipped to deal with the complexities of a post 9-11 world. They will see that he has done on the world stage exactly what he did before in his career as a businessman: He has made a very big mess, and someone else is going to have to clean that mess up.


Thursday, February 13, 2003

JB

Freedom to March and Freedom of Speech

This past week a federal judge ruled that the City of New York could prevent an extimated crowd of 100,000 antiwar demonstrators from marching in Manhattan this Saturday to protest the upcoming war against Iraq. Instead, the city will allow 10,000 of them to assemble at a stationary location.


The protestors had requested a permit for more than 100,000 people to march down First Avenue past the United Nations, west on 42nd Street and north to Central Park. The City denied the permit, arguing that the march presented safety, crowd control, and security risks given that the city and the country are at orange alert, the second highest level of security awareness. The City's position was upheld on Monday in an opinon by Barbara S. Jones of United States District Court in Manhattan, and upheld again by a panel of the Second Circuit.


The court argued that the City's parade permit scheme was content netural and reasonable and did not discriminate against the protesters on the basis of their viewpoint. But the case is an example of how formally neutral rules about freedom of speech can have predictable effects in treating different viewpoints differently. in the past year, for example, New York awarded permits for the Puerto Rican Day parade, the Dominican Day parade, and the St. Patrick's Day parade, all of which had crowds over 100,000. The difference was that these parades are scheduled well in advance, and the security risks are predictably smaller than a parade about an issue of major political importance about which fevers are running high. What that means is that protests on political issues of the immediate moment that people disagree about heatedly are disfavored in comparison to parades celebrating, for example, how wonderful it is to be Irish in New York. It's even possible that a parade organized in favor of the war in Iraq, might draw less hostile crowds than an anti-war rally, and so would cause less problems for officials.


I have no reason to believe that the City officials were motivated by opposition to the antiwar cause. However, in general city bureacrats do like things quiet and orderly, and so are likely to view mass protests on controversial subjects as a major headache. Allowing them to avoid awarding permits for such demonstrations is one way in which present first amendment doctrines shape how protest occurs in the United States.

JB

Patriot Act II-- Just When You Thought It Was Safe to Have Civil Liberties


My op-ed on the the Domestic Security Enhancement Act of 2003, popularly known as the "Patriot Act II," appears in today's L.A. Times.

It's hard to say what the worst feature of the new proposals is, but I figure that the one that will spark the most interest in the general public will be the use of presumptions to strip U.S. citizenship from people who violate parts of the the Act. I'm sorry to say that there are a number of precedents that Ashcroft might use to justify the loss of citizenship provisions-- they stem from earlier periods in our Nation's history. For example, for many years, women who married citizens of other countries were deemed to have voluntarily surrendered their U.S. citizenship-- based on the common law fiction that husband and wife are one (and that one is the husband). This was remedied in the passage of the Cable Act in 1922. However, even after the Cable Act, marriage to a Chinese or Japanese national would result in automatic loss of citizenship because they could not become citizens. The rules regarding marriage and loss of citizenship were motivated by a rather dismal combination of racism and sexism.

If you are interested in the issue of loss of citizenship, and have access to law reviews, I recommend Alex Aleinikoff's article, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986).


Monday, February 10, 2003

JB

Bush v. Gore and Electronic Voting Machines


Let me be clear about this: As a cyberlaw professor and a professor of constitutional law, I can unequivocally state that one of the biggest dangers to democracy right now is electronic voting machines. If they are designed properly, they can enhance democracy. But if they are designed poorly, they can facilitate ballot fraud on a scale previously unknown in American history.

The question is not whether electronic balloting is a good thing or a bad thing. It is what kinds of electronic balloting have built in safeguards and checks against electronic fraud, and what kinds don’t. The recently passed Help America Vote Act (HAVA), includes $3.9 billion to help state and local goverments install hi-tech upgrades to their voting technology. What is being overlooked is that not all electronic voting systems are created equal. Some of the ones on the market, perhaps even most, have serious flaws that enable unscrupulous people to alter vote counts and commit massive electoral fraud. Some also are designed to leave no electronic backup or paper trail that would enable state officials to discover vote tampering or conduct recounts.

This, my friends, is a disaster waiting to happen.

You can read about some of these problems here, here, and here.

Several bloggers have begun posting stories about the dangers of poorly designed electronic voting systems. They have been spurred on by revelations that Nebraska Senator Chuck Hagel (R) had failed to disclose that he owns a stake in a company that owns Election Systems & Software (ES&S), a company that makes nearly half the voting machines used in the United States, including virtually all those used in his native Nebraska.

This conflict of interest has led a number of bloggers to speculate whether Hagel’s unexpectedly overwhelming victories in the Nebraska Senate race in 1996 and 2002 were due to artificial enhancements. They point out that ES&S's systems are among those which make it difficult if not impossible to discover electronic voter fraud and conduct recounts. I express no opinion on these speculations, but if you want more information, you can find discussions at Testify, Seeing the Forest, Alas, a Blog, Common Dreams, and Sideshow.

My apologizes to anyone else who posted stories on this issue that I overlooked.

As many of you know, I am a great critic of the Supreme Court’s decision in Bush v. Gore, which handed the presidency to George W. Bush through a particularly unpersuasive argument about when to grant a stay and about what constitutes an appropriate remedy for violates of the Equal Protection Clause. However, I also have said in print that I don’t think that the opinion’s holding that the Equal Protection Clause applies to vote tabulations is all that crazy; in fact it makes some sense. It extends the guarantee of equal protection from how voting districts are drawn to how votes are tabulated.

I also pointed out two other things, however

1. One problem with Bush v. Gore’s equal protection holding is that it did not carry its equal protection reasoning to its logical conclusion. The greatest problem of equality may stem not from hand counts but from unequal access to technologies that produce different degrees of reliability in vote counts.

2. Bush v. Gore seems to be premised on suspicion that Florida judicial officials were not being consistent in their hand counts; i.e., the Court, without directly saying it, was suggesting that perhaps the inconsistencies were not random, but might be politically motivated.

Putting these two points together, I submit that if Bush v. Gore is not simply a device concocted by five Justices to put Republicans in office, it should also stand for the proposition that the states and the federal government may not install voting technologies with a high degree of unreliability or a significant risk of voting fraud if there are other, equally available technologies at roughly the same cost that are more reliable and have safeguards against voting fraud.

In other words, although I hate and despise the manipulation of remedies that produced the actual result in Bush v. Gore, I think that we should take the Equal Protection holding of Bush v. Gore completely seriously. And I think that state and local governments should too. They should immediately demand that the technology companies they deal with install fail safe mechanisms to ensure voting reliability and prevent voting fraud, and if these companies refuse to do so, on the grounds that their data is protected by trade secret or other intellectual property rights, these contracts should be voided on the grounds that states may not install unconstitutional voting systems.

I’m being quite hardnosed on this, but it’s important to be hardnosed. There are lots of flaws in the American system of elections, but most of these flaws only matter every now and then in very close elections, like the crazy rules about the Electoral College and what happens if nobody gets a majority in the Electoral College. But the problems that electronic voting machines present are likely to occur in virtually every election held in this country-- federal, state and local -- from this day forward. If we don’t want our democracy to become a mockery, we have to pay the extra cost now to make sure our voting technologies are safe and adequate for the future.


Sunday, February 09, 2003

JB

French Dressing-Down


Everybody in the U.S. is piling on the French these days. Tom Friedman is exasperated with their changing stances on Iraq. He wants to kick them out of their permanent seat on the U.N. Security Council and replace them with India, the world's largest democracy. And there are lots of great jokes making fun of the French right now, (which I am ashamed to admit I am enjoying immensely, having spent altogether too much time studying French philosophy in my misspent youth). Numerous explanations abound for their intransigence, including their national character, their irresponsibility, their flightiness, their ingratitude, and a whole host of other flaws.

But the French are also the country that gave us Descartes, Voltaire and the Enlightenment (ok, forget about Derrida). They are the masters of sang froid, brute realism, ironic detachment, and cold unsentimentality. Are they really all that crazy? Does their intransigence make any sense at all?

It all depends on what you think the purposes of the military buildup and the U.N. inspection regime are. If the point is to get all of the countries of the world together through the auspices of the U.N. to scare and threaten Saddam Hussein into submission, then it would make sense for France to jump on board and present Hussein with a unified threat by the international community: disarm or be deposed. That is, if what this is about is a game of chicken, then the French should not be intransigent. They should immediately help the U.S. present a unified front, which may have the salutary effect of strengthening the United Nations as an international peacekeeper in future conflicts against rogue states. That's something many Europeans would like, because it would draw the U.S. ever further into a multilateral way of conducting its foreign policy, and it would strengthen international institutions in which the French and other Europeans believe they will have greater influence in the long run.

The problem is that the French fear that they don't have any control over what the United States will do once they sign on. The French want to see how far they can push Hussein without going to war; but they may fear (and rightly so) that Bush isn't playing that game. They fear that he is determined to go to war regardless of what Hussein does. If that's so, then France's preferred strategy-- what Tom Friedman earlier called Chicken a'L'Iraq-- isn't available. You can't threaten Hussein to get him to back down, because the U.S. won't pull back at the brink, it's going to war whatever Hussein does, and so Hussein has no incentive to do anything but wait and prepare for war.

Thus, joining the U.S. doesn't get France its preferred strategy. The question is whether holding back approval is more likely to do so. But that's also a dangerous game, because if the U.S. gets tired of waiting for the French to join in, it may go ahead and attack with its "coallition of the willing" sometime near the beginning to middle of March. That would be a worse result: No clear U.N. approval, no precedent for international cooperation against rogue states.

However, the French may be reasoning as follows: The longer we hold out, the more the U.S. may be willing to offer us a war and post-war strategy more to our liking. The U.S. is going to war no matter what we do, so we can't get our first best strategy. But we might be able to get our second best strategy-- both during the course of the war and in the occupation thereafter-- by being a royal pain in the butt until the U.S. listens to us.

This seems to me the best explanation of what is going on right now. If all of the other countries in Europe thought the same way the French did, the U.S. would have a real problem on its hands. But most of the other countries in Europe see no particular advantage in holding out. They figure that they are in better shape signing on early than signing on late. The French, however, think that signing on late will given them additional concessions. That's why they are holding out even though everyone else is rushing to sign on, and why the jokes are flying. But nobody knows yet who will be laughing five years from now.

JB

Power Laws and the Laws of Power

A fascinating discussion of the distribution of choices as the number of choices in a network increases, from Clay Shirky, via Instapundit. The power law idea tends to explain why choices on the Internet tend to cluster around a relatively small number of sites.


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