Balkinization  

Saturday, May 10, 2003

JB

Throwing in the Towel on Weapons of Mass Destruction

The Washington Post reports that Task Force 75, "the principal arm of the U.S. plan to discover and display forbidden Iraqi weapons," is winding down operations and preparing to leave Iraq next month, unable to find any weapons of mass destruction.


Leaders of Task Force 75's diverse staff -- biologists, chemists, arms treaty enforcers, nuclear operators, computer and document experts, and special forces troops -- arrived with high hopes of early success. They said they expected to find what Secretary of State Colin L. Powell described at the U.N. Security Council on Feb. 5 -- hundreds of tons of biological and chemical agents, missiles and rockets to deliver the agents, and evidence of an ongoing program to build a nuclear bomb.

Scores of fruitless missions broke that confidence, many task force members said in interviews.

Army Col. Richard McPhee, who will close down the task force next month, said he took seriously U.S. intelligence warnings on the eve of war that Hussein had given "release authority" to subordinates in command of chemical weapons. "We didn't have all these people in [protective] suits" for nothing, he said. But if Iraq thought of using such weapons, "there had to have been something to use. And we haven't found it. . . . Books will be written on that in the intelligence community for a long time."
...

Motivated and accomplished in their fields, task force members found themselves missing vital tools. They consistently found targets identified in Washington to be inaccurate, looted and burned, or both.


Even as Task Force 75 is winding down operations with little hope of finding weapons of mass destruction, the Administration is insisting that the search has just begun. In his statement of victory aboard the U.S.S. Abraham Lincoln, President Bush asserted that the search was only in its initial stages, with hundreds of sites to be investigated.

I well understand the need of the Administration to save face about coming up short in its major justification for sending American troops into combat. But at some point the Administration should feel some compunction to be more honest with the American public about what it is doing. It seems increasingly clear that the war in Iraq will have to be justified in hindsight for reasons other than the Administration said it would be fought. The justification will be the creation of a democratic republic in Iraq rather than stopping the threat posed by Saddam Hussein's weapons of mass destruction. It is unlikely that the public would have supported the war without the Administration's confident assurances that Hussein possessed weapons of mass destruction that someday would pose a threat to the United States. Those confident assurances appear to have been overconfident. As a result, the Administration is hoping that the fact of a decisive victory will paper over serious concerns about the honesty of its representations to the American people and the reliability of its weapons intelligence.



Wednesday, May 07, 2003

JB

Oh How I Love Them Frenchy Jokes!

Here's a great joke that's been making the rounds, and has been attributed to Tom Delay. I'm quoting a version courtesy of Eugene Volokh:


American to Frenchman: "Do you speak German?"


Frenchman: "No."


American: "You're welcome."


Come on, that's funny, guys.

And here's another one I'm sure you'll enjoy equally well:


Frenchman to American: "Are you a subject of Her Majesty the Queen of England?


American: "No."


Frenchman: "You're welcome."


Yes, I'm afraid its true. The Frenchies pulled our proverbial chestnuts out of the fire in 1778 when the Marquis de Lafayette arrived to whip our troops into shape, and France recognized our government and signed the the Treaty of Alliance and the Treaty of Amity and Commerce. Once France entered the war on the side of the Americans,
Great Britain was forced to defend the rest of its empire, fearing attacks in, among other places, the West Indies. They scattered their troops and resources, making them too weak to battle the Americans effectively in the colonies.

The French played a crucial role in the endgame too. By August 1781, Washington and Rochambeau (yes, a frog, if you are wondering) learned that a large French fleet under Admiral Francois de Grasse (zut alors, un autre frog!) was headed toward Virginia to prevent General Cornwallis from escaping by sea. That led Washington and Rochambeau to rush their forces southward to Virginia to trap Cornwallis on land. (In fact, although Washington had wanted to stay up north and attack New York, it was Rochambeau who convinced him that the best strategy was to turn south. Very devious, those frenchies!) By September 1781, Cornwallis knew his goose was cooked, as a combined French and American force of about 18,000 soldiers and sailors surrounded him at Yorktown. (Mon Dieu!) He surrendered on October 19, 1781. The treaty recognizing independence was not signed until 1783, appropriately enough, at Paris. However, during this period, the interests of the French and Americans began to diverge, (as they would so many times in the future) and the Americans negotiated a separate peace.


In any case, mes amis français, merci beaucoup! Je penserai à vous sur le 4ème juillet!




UPDATE: By the way, who exactly is this Tom De Lay guy, anyway? Is that a *French* name?

Better keep an eye on him.




Monday, May 05, 2003

JB

Were We Lied To?

Neil MacKay of the Sunday Herald reports:

The Bush administration has admitted that Saddam Hussein probably had no weapons of mass destruction.
Senior officials in the Bush administration have admitted that they would be 'amazed' if weapons of mass destruction (WMD) were found in Iraq.

According to administration sources, Saddam shut down and destroyed large parts of his WMD programmes before the invasion of Iraq.

Ironically, the claims came as US President George Bush yesterday repeatedly justified the war as necessary to remove Iraq's chemical and biological arms which posed a direct threat to America.

Bush claimed: 'Saddam Hussein had weapons of mass destruction. We will find them.'

The comments from within the administration will add further weight to attacks on the Blair government by Labour backbenchers that there is no 'smoking gun' and that the war against Iraq -- which centred on claims that Saddam was a risk to Britain, America and the Middle East because of unconventional weapons -- was unjustified.


Pauline Jelinek of the Associated Press tells the story a little differently:

In the American hunt for Iraq's banned weapons, drums of suspicious chemicals turn out to be crop pesticide; a cache of white powder is found to be explosives.

More than six weeks into the Iraq campaign, there has been a string of false alarms but no discovery of what the Bush administration said was its main justification for going to war chemical, biological and nuclear weapons programs.
....

"I'm absolutely sure that there are weapons of mass destruction there, and the evidence will be forthcoming,' Secretary of State Colin Powell said Sunday.

But after scores of fruitless searches, other administration officials privately have stopped promising that. Some now say that instead of finding weapons stockpiles, they might find nothing more than documents and other evidence that the program once existed and was either destroyed or abandoned.

"Politically, this could be a big problem,' said Paul Keer of the Arms Control Association, a Washington disarmament group. "If it turns out they ... exaggerated, people will say we attacked without justification some are starting to say that now.'

Before the war, administration officials did not just say Iraq had weapons of mass destruction, they also said they knew where some of them were.

In an unsuccessful bid for U.N. approval for the war, Powell showed the Security Council satellite photos and intelligence he said indicated weapons were being moved, and he named sites where he said chemical weapons were held.

"The intelligence community still stands behind that information. I do,' he said Sunday.

U.S.-led teams of military and civilian experts have reported finding nothing conclusive, however, after visiting most of some 100 sites that prewar American intelligence agencies said were the most probable hiding places. Hundreds more sites remain.

Expected intelligence from senior captured Iraqis who might have been most knowledgeable about the government's secrets is not materializing. One by one, they are insisting under interrogation that the government had no chemical, biological or nuclear weapons programs in recent years, U.S. officials say.

Pentagon officials said just days before the war that they had intelligence that chemical weapons had been distributed to some Iraqi military units. None has been found.
....

Arguing for patience, Loren Thompson of the Washington- based Lexington Institute noted that U.N. inspections struggled with Iraq for a dozen years and could not find all they were looking for.

"I don't think the expectation was that this stuff would be sticking out like a sore thumb,' he said. "I think eventually they'll find the weapons, but the important point is that the government that would have thought to use them against us is gone.'

Some critics maintain that is not the point at all. They say the question always has been not whether Saddam had weapons, but whether those weapons were a big enough threat to the United States to justify war.

"If the Iraqis did not use them ... to defend an invasion of their own country, when were they ever going to use them, and how were they a threat to the United States?' asked Cato Institute's Pena. "That's the question that has to be asked and is being glossed over.'


I must confess I did not much trust the Bush Administration's stated reasons for going to war, which were ever changing. Many Americans will simply take comfort in knowing that we won a swift military victory and elminated a despicable tyrant. Nevertheless, I can't help but think that if the Administration is proved wrong about its central justification for going to war, that does not inspire much confidence in their foreign policy. Either they lied to us, or their intelligence isn't very good. Neither alternative is acceptable. I for one don't particularly like being lied to about why my government is using deadly force. And I don't like my government going off to war if its intelligence is as incompetent as it would have to have been to avoid the conclusion that we were being lied to. At some point, I fear, either the Administration's dishonesty or its intelligence failures will catch up with it. That can't be a good thing.


UPDATE: Ken Fireman reminds us about the President's stated justifications for war:

On March 17, with war in Iraq just 48 hours away, President George W. Bush laid out in clear and succinct terms the rationale for the military action he was about to unleash.

"Intelligence gathered by this and other governments leaves no doubt that the Iraqi regime continues to possess and conceal some of the most lethal weapons ever devised," the president said in a televised address to the nation from the White House.

"This regime has already used weapons of mass destruction against Iraq's neighbors and against Iraq's people. The regime has a history of reckless aggression in the Middle East. It has a deep hatred of America and our friends. And it has aided, trained and harbored terrorists, including operatives of al-Qaida.

"The danger is clear. Using chemical, biological or - one day - nuclear weapons obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people, in our country or any other."


Fireman continues:

U.S. officials now acknowledge that Hussein may have destroyed or transferred at least part of his alleged arsenal before the war began. No new evidence has been uncovered on Hussein-al-Qaida links to buttress an administration case that many analysts have long regarded as tenuous. And an Iraqi army that Washington repeatedly portrayed as a major security threat to the region proved to be incapable of defending its own territory, let alone waging offensive operations against a neighbor.

This state of affairs has led some foreign affairs analysts to conclude that the Bush administration had something else in mind when it planned, organized and launched the war: a high-profile demonstration of American military might and the political resolve to use it that would reverberate through the Middle East and beyond, causing governments as near as Syria and Iran and as far away as North Korea to recalibrate their actions.
...

"I think the president and other senior officials were captivated by the neoconservative vision of a world transformed by American military power," says Joseph Cirincione, an arms control expert at the Carnegie Endowment for International Peace. "It promised a quick, dramatic improvement in U.S. national security, and control of a critical global resource, that the United States could do completely on its own without bothersome multilateral bodies."

The question, in the minds of Cirincione and other like-minded experts, is whether an administration determined to remove Hussein from power grossly inflated his military capabilities in order to sell its policy to the public.

"It was the only way to get the American people to go to war against Iraq," Cirincione said. "You couldn't get the American people to go to war to free the Iraqi people and overthrow an evil regime, because there are lots of evil regimes in the world. So they cited two reasons: that Hussein possessed weapons of mass destruction and Hussein had operational ties to al-Qaida.

"Neither appears to be true. I think this story is still developing. I think we're on the edge of realizing that this was either a massive intelligence failure - or a deliberate campaign to mislead the American people."


Say it isn't so, George, say it isn't so.


Sunday, May 04, 2003

JB

”High” Politics and Judicial Decisionmaking

Larry Solum rejects my distinction between high and low politics:

[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics.

I think Larry has misunderstood the distinction I am making, which arises out of a larger theory of constitutional change that is intended as an alternative to my colleague Bruce Ackerman's. I am certainly not claiming that there is only politics in legal decisionmaking. Plenty of legal decisiomaking could not be so understood. Rather, I am trying to give an account of how opposed political visions legitimately operate in the context of *legal* decisionmaking, and what sort of political motivations should be viewed as inappropriate. The notion of “high politics” helps us understand how constitutional doctrine changes over time in relatively predictable ways given the appointments process and the changing personnel of the courts.

It’s very hard for me to separate *in practice* lots of Supreme Court decisions that are “based on the law” from those that are “based on high politics,” where by “high politics” I mean the invocation of larger visions about the key values that should underlie our understanding of the Constitution. This is not a claim that there is no difference between law and politics. That is certainly not my view. Rather it is a claim about how we characterize legal decisionmaking in the sorts of complicated and controversial cases that appear before the courts, and particularly the Supreme Court of the United States.

Decisions come before the Supreme Court because, for the most part, the Court is being asked to decide difficult legal questions for which there are a number of plausible legal solutions that make use of the familiar modalities of text, history, structure, doctrine, non-judicial precedents, consequences, and appeals to the ethos of the nation. Not every solution is equally plausible, but in most cases that come before the Supreme Court there is usually more than one way to decide the case consistent with the existing norms of legal argument. You and I might think that one solution is clearly better than all of the others, but very often (especially if you have views about the Constitution like mine) that solution is not the one chosen by the Court, and the solution the Court does choose becomes law nevertheless, and you have to deal with it in succeeding cases.

Now which solution seems to you or me to be most persuasive as a *legal* matter may have something to do with our constitutional politics– our views about the political principles and values that we think the Constitution read in its best light espouses– and our views about how those principles and values should be applied to the facts of the case as we understand those facts. As Justice Frankfurter once put it, a lot depends on the pictures of the world inside a judge’s head when a judge makes a decision. We can call those pictures ideology, or political or moral beliefs, or whatever you like. But the point is that people have them, and they influence how they see the world, and what is good and bad in it, and what could be improved in it, and also the best way to read and interpret the basic law of our nation, our Constitution.

When these pictures inside our heads, our ideology, our constitutional vision, frame what we think is the best understanding of our Constitution, which they inevitably do, should we regard this decisionmaking as not really “based on law” but instead secretly “based on politics?” It is very hard for me to accept that duality. Rather, I think that if you put someone on the bench, and ask them to take an oath to uphold the Constitution of the United States, and find the best *legal* solutions to questions of law, using the traditional modalities of text, history, structure, etc., you will simply get different answers to lots of important constitutional questions (but hardly all or hardly even the majority of such potential questions) depending on what Frankfurter called the pictures inside their heads. I don’t think this is a radical view about the relationship between politics and law. Indeed, I think it is just common sense.

Now the point of the distinction between high and low politics is that we *expect* that judges will promote their visions of what the Constitution means and should mean as they wrestle with the legal issues before them, and that it is not surprising that if you appoint nine conservative jurists to the Supreme Court of the United States that the constitutional law they produce will, in time, look significantly different than the constitutional law that would be produced by a Court staffed with nine liberals. But this does not mean that either of these hypothetical benches is necessarily deciding according to politics but not according to law. It just means that people disagree about what the best meaning of the Constitution is, and they tend to promote their favored view in *legal* argument, and, if they are Justices, write those views into law, where they become the doctrinal substrate for future decisions.

It is important to recognize that this is not a claim that the law is radically indeterminate. Quite the contrary: It assumes that the law (even Constitutional law) has pervasive elements of relative determinacy to it. Why is that? Because if the law were so indeterminate, there would be no point in fighting to put liberals or conservatives on the bench in order to move the law in a particular direction that would bind future jurists. The reason why it matters who sits on the bench, paradoxically, is that the law is only partially, or modestly underdetermined from the standpoint of existing legal norms of practice. The content of a case like Roe or Miranda, or Croson, or Alden v. Maine actually matters. It matters a lot.

Furthermore, it is important to recognize that a lot of what judges do is not simply following the rules laid down, in Mark Tushnet’s phrase, but rather involves doctrinal innovation. Courts make up new distinctions and doctrines to solve problems. These distinctions and doctrines are genuinely new in the sense that you couldn’t have easily derived them from previous doctrinal structures, much less from history, structure, text, and original understandings. Examples are the direct/indirect distinction in early 20th century commerce clause cases, the rejection of this distinction and the creation of the substantial effects test and the cumulative effects test in Darby and Wickard, the “congruence and propotionality” test in Boerne, the actual malice rule in New York Times v. Sullivan, the “public figure” doctrine as developed in later cases, the public forum doctrine, and so on. Indeed most of constitutional law is made up in this way at one point in time or another. It does not come from the text, history, and structure, but is creatively produced and inserted into doctrine in order to articulate and realize deeper constitutional values. These innovations are crucial in shaping the later development of constitutional law. And it is simply the case that people with different pictures in their heads, different ideologies, different visions of constitutional politics, will innovate in different ways. Justice Sutherland, for example, would not have come up with the “substantial effects” test; Justice Scalia, one suspects, would not have come up with the “endorsement” test in Establishment Clause cases, much less the three pronged test of Lemon v. Kurtzman.

To make a distinction between high and low politics, then, is to make a distinction about the relationship of ideology to the work of legal decisiomaking. It is ok for a judge to say, “I decided this case this way because I believe in decentralization as a principle that underlies our Constitution,” or “I am deeply suspicious of the ability of schoolboards to keep religious practice out of the public schools if they are given this degree of discretion,” or even “I think that gay people have a right to form intimate relations with those they love just like everybody else.” If one reads the conference notes of members of the Surpreme Court in decisions, this is precisely how they talk amongst themselves in explaining how they decide cases. It is ok for judges and Justices to have constitutional politics, to have larger visions of what the Constitution means or should mean and what rights Americans have or should have. That is what I mean by “high politics,” and there’s nothing wrong with judges having such views.

If what I have said is correct, then it is very difficult for Larry to insist, as he appears to do that Court’s shouldn’t be making decisions based on high politics, but just ones “based in law.” I don’t know how to parse that distinction. And anybody who pays careful attention to how Constitutional law actually changes over history, in countless doctrinal areas, can’t make sense of it either. Constitutional law changes over time because of the influence of high politics, which is worked out through legal argument, not outside of it. And we should just get used to that fact. Like the old joke about baptism, I not only believe in it, I’ve seen it done.

The description of Bush v. Gore as “low politics” is a claim that the decision cannot be understood as the fulfilment or promotion of a larger constitutional vision, but rather is a fairly transparent attempt (in the stay and remedy portions of the two Bush v. Gore opinions) to manipulate doctrine in order to place George W. Bush in office. I will repeat what I said before: By now most people understand that judges pursue “high politics” through their legal arguments. What they are not supposed to do is pursue is “low politics” in the sense of manipulating doctrine to secure advantages for their favorite political party. That is not simply because “low politics” is bad politics. It is because it is also bad legal decisionmaking. It is inappropriate to the judicial role in the way that the pursuit of “high politics” is not.

Larry seems to think that my use of the “high politics/low politics” distinction means that there is only politics and no law. I take issue with that characterization. I think that the distinction captures what we mean by decisions according to law where people disagree about constitutional values and doctrine is moderately underdetermined. High politics is the great engine of constitutional change. It is inextricable from the life of our Constitution. It is the explanation of the great doctrinal transformations that we see in history of constitutional doctrine, and, I would submit, the explanation of the conservative constitutional revolution we are living through now. I disagree with that constitutional vision. I think that the doctrinal innovations of the conservative five are ill-considered and false to the best interpretations of our Constitution. But I don’t think that judges should refrain from pursuing deeply held constitutional visions in the development of constitutional doctrine through legal arguments. Quite the contrary: that is their job.


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