Balkinization  

Saturday, March 15, 2003

JB

Hey Tom, Wake Up and Smell the Napalm

Like many others, I greatly enjoy Tom Friedman's columns at the New York Times. If you read them closely over the past three weeks or so, you will notice a very interesting shift going on. Friedman originally came out fairly strongly in favor of the war, recognizing the risks, but arguing that it would help bring democracy to Iraq and presage a remaking of the Middle East. In short, he supported the war on Iraq largely in terms of spreading democratic values, and creating a progressive model of Muslim democracy for the entire region.

That was the argument he made on January 26th. Since that point, his weekly columns have gotten progressively worried. Friedman has gradually realized that his war isn't Bush's war. He has figured out that Bush isn't really serious about the degree of nation building that is necessary to make the war with Iraq justified in Friedman's terms.

Indeed, what Friedman has gradually come to recognize with increasing alarm in the past month is that he simply doesn't trust Bush to do the right thing. He has been reduced, in his latest column, to wishing that Tony Blair, and not Bush, were calling the shots. The reason is that he thinks Bush is not pursuing the sort of war Friedman wants to fight:

I deeply identify with the president's vision of ending Saddam Hussein's tyranny and building a more decent, progressive Iraq. If done right, it could be so important to the future of the Arab-Muslim world, which is why I won't give up on this war. But can this Bush team be counted on to do it right? Mr. Bush's greatest weakness is that too many people, at home and abroad, smell that he's not really interested in repairing the world. Everything is about the war on terrorism.

Well Tom, it's time to wake up and smell the mocha java. Your hope that Bush is going to a fight the war you want him to fight and expend the resources and time you want him to expend to make Iraq a beacon of democracy in the MIddle East has been a pipe dream. You need to recognize what you already know in your gut: Your agenda is not his agenda. So are you still so gung ho about this war? Because if Bush isn't serious about spending the time and the effort and the money to build a democratic Iraq, he's going to make a very, very big mess, and you know it better than I do.

A recent article in the New York Times shows why Friedman is hoping against hope. A panel of national security experts, drawn from both Republican and Democratic Administrations, has suggested that "the cost of postwar reconstruction of Iraq will be at least $20 billion a year and will require the long-term deployment of 75,000 to 200,000 troops to prevent widespread instability and violence against former members of Saddam Hussein's government."

However, the article continues, that is not exactly what the Bush Adminstration has in mind:

At the Pentagon yesterday, two senior Defense Department officials, speaking to reporters on condition that they not be identified, said the new office charged with establishing a postwar administration hoped to be able to turn over control to an interim Iraqi government within months. But they did not say how they planned to root out the thousands of intelligence and security service agents that Mr. Hussein is known to have placed within virtually every government ministry.

The officials said Iraq's frozen assets might be tapped to pay for the Iraqi government salaries, or some of Iraq's oil revenues might be used to finance the interim government. That had not yet been decided, they said.


I think it's time for Tom Friedman to reassess his position on Iraq. He's not going to get the designer war and reconstruction he's been hoping for. None of us are. Instead, we are going to get stability on the cheap, without democracy, and paid for by Iraqi oil. Or, to put it another way, we are going to get what is, in all probability, a recipe for disaster.

For those readers who think that the reason we should fight this war is to rid the world of a despicable tyrant and replace him with a vibrant democracy, I salute you. I applaud your idealism and your commitment to making this a better, freer world. But you need to realize that your agenda is not Bush's agenda. Your motives are not his motives. He is playing you, and all of us, for fools. Don't be taken in. He isn't serious about making the long term commitment that will be necessary to secure a democratic state in Iraq. And, as a result, he is going to make this world an even bigger mess, and an even more dangerous place than it was before he became President.

God help us. God help us all.









Tuesday, March 11, 2003

JB

The Padilla Case

The New York Times reports that Federal District Judge Michael Mukasey in the Southern District in Manhattan has reaffirmed his earlier ruling in December that Jose Padilla has the right to consult with counsel. Padilla, an American citizen, was accused by the government of conspiring with Al Qaeda operatives to bring a "dirty bomb" (a bomb that explodes radioactive material) into the United States. He was arrested May 8th in Chicago, returning from a trip to Pakistan. At first the Justice Department claimed that he was being held as a material witness, but on June 9th, they stated that he was an enemy combatant and had effectively no Bill of Rights protections, including no right to consult with counsel.

The district court disagreed, ordering that Padilla be permitted to meet with counsel in December. However, instead of complying with the judge's order, the Justice Department asked the judge to reconsider his decision. The judge made clear in today's written order that he would not accept further delay, as the Times reports:


"Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further `dialogue' about whether he will be permitted to do so. It is a ruling -- a determination -- that he will be permitted to do so," the judge said.

No one is going to mistake Padilla for a choirboy. He is a member of a Chicago street gang. He may well be up to no good, and if he violated the law, he should be punished for his crimes. But he is also a United States citizen. The rights of citizens include the rights in our Bill of Rights, including the Sixth Amendment right to counsel. Those rights apply whether one is good or bad, whether one is guilty or innocent, and whether one is a Muslim, a Jew or a Christian.

The Justice Department was wrong to insist that by simply designating some one an enemy combatant, the Executive can strip away the basic constitutional protections that all citizens enjoy. If the government can strip away Padilla's rights at will, it can strip away yours and mine. When you give government arbitrary power, eventually it will use that power arbitrarily.

I for one fully believe that members of the Justice Department are trying to keep our country safe. But I do not think that good intentions justify a blank check to the Executive. Even the best of intentions must be constrained by basic rights; otherwise, convinced of its own rectitude, the government will overreach.

It is important that courts exercise some check on the Adminstration's zeal. But it is equally important that members of the public make their opposition heard as well. Courts will not keep us safe from government overreaching in times like these. Only we ourselves can do that.




Sunday, March 09, 2003

JB

The Importance of So-Called "Inferior Courts"


Deborah Sontag's article on the Fourth Circuit Court of Appeals in Richmond Virgina in today's New York Times explains why it matters who sits on the circuit courts:

The appellate courts, created in the late 19th century to relieve overcrowding of the Supreme Court's docket, decide about 28,000 cases a year compared with the highest court's 75 or so. Practically speaking, they have the final say in most matters of law; their reach is broader, if not deeper, than the Supreme Court's itself.

Judges on the Fourth Circuit say that they just follow the Supreme Court's lead. And it is true that the Fourth Circuit is the appellate court closest in thinking to the Rehnquist Court. But the relationship is symbiotic: the Fourth Circuit does not just imitate; it also initiates. It pushes the envelope, testing the boundaries of conservative doctrine in the area of, say, reasserting states rights over big government. Sometimes, the Supreme Court reins in the Fourth Circuit, reversing its more experimental decisions, but it also upholds them or leaves them alone to become the law of the land. There is a cross-fertilization, which could see its apotheosis this spring: the Fourth Circuit is dominated intellectually by two very different conservative judges, J. Harvie Wilkinson 3rd and J. Michael Luttig, both of whom are leading candidates for the next Supreme Court vacancy.


Sandy Levinson and I have argued that major constitutional change occurs through a process of "partisan entrenchment." The theory is rather complicated, but put in its simplest terms, partisan entrenchment occurs when relatively ideologically coherent political parties stock the federal courts with their ideological allies. When a critical mass of such jurists are present, you can get significant shifts in constitutional doctrine over a long period of time. That is the best explanation of the conservative constitutional revolution in doctrine we have been seeing in the United States in the past decade.

Lower courts-- which are sometimes called "inferior courts" because Art. I. section 8, cl. 9 of the Constitution speaks of "Tribunals inferior to the supreme Court"-- play an important role in such constitutional transformations for four reasons. First, they are effectively the last word on the Constitution in a whole host of areas that the Supreme Court has not yet considered. Second, they apply and implement existing Supreme Court decisions, which can very often be spun in a more liberal or more conservative direction. Third, the lower courts are a proving and testing grounds for innovative constitutional claims by social movements and their ideological allies. Lower courts can provide either a sympathetic or hostile ear to innovative constitutional claims, helping to shape cases and caselaw in preparation for the moment when the Supreme Court focuses on them. Fourth, lower courts (and particularly district courts) have the ability to find facts or render procedural decisions that shape the record on appeal to the Supreme Court and limit what that court can do or else effectively insulate a decision from review.

Presidents reshape constitutional law through their appointments to the Supreme Court. But their appointments to the lower courts also matter, too, and perhaps even more, in determining what the Constitution means in day-to-day litigation. Moreover, because lower court nominees are generally subjected to much less scrutiny by Congress, Presidents often have a much freer hand in stocking the lower courts with more strongly ideological candidates. Although Supreme Court Justices get most of the glory, lower court judges are the shock troops of any effective and sustained constitutional revolution. This is a point that has not been lost on the Republican Party.


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