Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts
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Tuesday, September 30, 2003
JB
Precision Worthy Of A Lawyer
Columnist Robert Novak reported in July that Valerie Plame, the wife of diplomat Joseph Wilson, was an undercover CIA operative specializing in weapons of mass destruction. Wilson believes that his wife's name was publicized by administration officials either to discredit him or as revenge for Wilson's statement that the Bush Administration exaggerated intelligence claims in order to justify the Iraqi war. The Justice Department is now investigating the matter.
In a recent statement, Novak defended the Bush Administration
"They asked me not to use her name, but never indicated it would endanger her or anybody else. According to a confidential source at the CIA, Mrs. Wilson was an analyst, not a spy, not a covert operative and not in charge of undercover operators," Novak said. What Novak did not say is as important as what he did say. He did not say that Bush Adminstration officials did not leak the information to him. Rather, he said that they did not call him to leak it. He did not say that they mistakenly divulged the information in a slip of the tongue. Rather he said that after disclosing the information, they asked him not to divulge it.
This is completely consistent with Administration officials intending to leak the information to discredit or seek revenge against Wilson by revealing his wife's identity as a CIA operative. Officials do not have to call columnists like Novak to leak information; rather the columnists are continuously attempting to contact them. Officials know this. Moreover, to reveal such information in the course of a conversation about another topic is probably the most prudent way to leak information. Finally, a request not to disclose the information is not the same as a demand that the information not be disclosed or the reporter will suffer consequences.
Like any good journalist, Novak is defending his sources. He is not only defending their identities, but also any claim that the officials have violated the law by deliberately leaking the information. However, read carefully, what he said is not an adequate defense.
UPDATE: Compare Novak's recent statement with the one published shortly after his story appeared, on July 22 (thanks to Atrios for the link):
Friday, September 26, 2003
JB
Colin Powell, Diplomat
A nice quote from today's New York Times editorial on the interim Iraq Survey Report:
This is clearly an uncomfortable question for the Bush administration. Yesterday, Secretary of State Colin Powell met with Times editors. Asked whether Americans would have supported this war if weapons of mass destruction had not been at issue, Mr. Powell said the question was too hypothetical to answer. Asked if he, personally, would have supported it, he smiled, thrust his hand out and said, "It was good to meet you." Wednesday, September 24, 2003
JB
And, Apparently, No Weapons of Mass Destruction of Any Kind
The BBC now reports that the interim report of the Iraq Survey Group will state that they have discovered no weapons of mass destruction in Iraq and that it is very likely unlikely that Iraq distributed such weapons to Syria before the war began.
They have also not uncovered any laboratories involved in deploying weapons of mass destruction and no delivery systems for the weapons.
But, Mr Neil added, the report would publish computer programmes, files, pictures and paperwork which it says shows that Saddam Hussein's regime was attempting to develop a weapons of mass destruction programme.
My greatest concern had been that the reason why no WMD's were found is because they were spirited out of the country by terrorists during the chaos of the war. But if this report about the Iraq Survey Report is to be believed, there were no weapons to spirit out at all. At most there was were plans for a program that was in "suspended animation"-- i.e., with various elements placed around the country so that Iraqi scientists could begin working on starting up a weapons program as soon as international inspectors turned their attention away from Iraq. This is the dispersion and reassembly theory mentioned in my previous post.
In my previous post I suggested that such a discovery might take some of the heat off the Administration. But on further reflection, I am not so sure anymore. If the weapons programs would remain in suspended animation as long as eyes were on Iraq, then a strategy of containment was probably fully adequate to deal with the future threat posed by Iraq, precisely what the Bush Administration denied in the months leading up to the war. Thus, even though the Administration may want to take some comfort out of findings of a dormant weapons program, those very findings suggest that it badly misjudged the situation in Iraq and chose the wrong strategy for dealing with the threat of WMD's.
Sunday, September 21, 2003
JB
And No Smallpox, Either
The Guardian reports:
"Team Pox", a six-member group hunting for laboratories manufacturing the deadly virus, found nothing more sinister than equipment covered in cobwebs, and nothing to suggest a smallpox programme, according to military officials involved in the project, who leaked the information to the Associated Press.
"We found no physical or new anecdotal evidence to suggest Iraq was producing smallpox or had stocks of it in its possession," one military official said.
In the run-up to the conflict, George Bush regularly used the smallpox example to drive home the immediacy of Iraq's threat to ordinary Americans. Nevertheless, according to a report by the Washington Times, David Kay, who is heading the Iraq Survey Report, has told senators that his report will conclude that Iraq did have an active biological weapons *program* at the time the United States attacked Iraq, although he has not yet offered any proof for this claim. Apparently, according to a report by the Boston Globe at the end of August, Kay will argue that Hussein spread plans and parts for the manufacture of chemical, biological and nuclear weapons around various parts of Iraq with the idea of assembling them to produce weapons of mass destruction when U.N. inspectors left the country. This dispersion and reassembly theory would take some of the political heat off the Administration by offering an explanation of why Saddam was as dangerous as the Admnistration claimed even though no actual weapons of mass destruction were found. Needless to say, a great deal is at stake in the results of the Iraq Survey Report, for if Kay can make a convincing case that WMD's were in a ready to be manufactured state, his report could not come at a better time for the Bush Administration, which has lost considerable credibility on this issue.
Thursday, September 18, 2003
JB
Blix: No Iraq WMD's since 1991
Chief U.N. Arms Inspector Hans Blix has concluded that Iraq probably had destroyed its weapons of mass destruction by 1991 and had none in its possession for over a decade, the Belfast Telegraph reports (also see this story from ABC News (Australian):
Mr Blix, speaking from his home in Sweden, said that he thought it unlikely that non-UN experts deployed by the coalition forces to search for weapons of mass destruction would find anything beyond "some documents of interest". He added: "The more time that has passed, the more I think it's unlikely that anything will be found." Blix also criticized the American and British governments for their decision to go to war on insufficient evidence of weapons of mass destruction, Reuters reports:
Blix, who said this week he believed Iraq had destroyed such weapons 10 years ago, told BBC radio that Washington and London "over- interpreted" intelligence.
Comparing them to medieval witch-hunters, he said the two countries convinced themselves on the basis of evidence that was later discredited.
"In the Middle Ages when people were convinced there were witches they certainly found them. This is a bit risky," said Blix, whose inspectors left Iraq on the eve of war in March after just a few months of inspections. I should note that despite Blix's confidence that there were no WMD's in Iraq when the Americans and British attacked, the Iraq Survey Group's report has yet to be released, and we will see whether any new evidence has emerged. Certainly the members of the survey have every incentive to find weapons of mass destruction if they are in fact there.
JB
To The Max!
Former Senator (and head of the Veterans' Administration) Max Cleland's op-ed in the Atlanta Journal Constitution (via Daily Kos) pretty much nails it:
They attacked a country that had not attacked us. They did so on intelligence that was faulty, misrepresented and highly questionable.
A key piece of that intelligence was an outright lie that the White House put into the president's State of the Union speech. These officials have overextended the American military, including the National Guard and the Reserve, and have expanded the U.S. Army to the breaking point.
A quarter of a million troops are committed to the Iraq war theater, most of them bogged down in Baghdad. Morale is declining and casualties continue to increase.
In addition to the human cost, the war in dollars costs $1 billion a week, adding to the additional burden of an already depressed economy.
The president has declared "major combat over" and sent a message to every terrorist, "Bring them on." As a result, he has lost more people in his war than his father did in his and there is no end in sight.
Military commanders are left with extended tours of duty for servicemen and women who were told long ago they were going home. We are keeping American forces on the ground, where they have become sitting ducks in a shooting gallery for every terrorist in the Middle East.
Welcome to Vietnam, Mr. President. Sorry you didn't go when you had the chance.
Monday, September 15, 2003
JB
The Return of Bush v. Gore
Today the Ninth Circuit Court of Appeals issued an injunction staying the California recall election on the grounds that about 44 percent of the California population will be using outmoded punch card technology to cast their ballots, leading to the likelihood that many of their votes will not be counted. (More on the court's decision here). The court argued that this violated the Equal Protection Clause of the Fourteenth Amendment, citing prominently as justification the Supreme Court's decision in Bush v. Gore.
For those of us who were deeply skeptical of the politics if not the reasoning of the Bush v. Gore opinion, the 9th Circuit's use of it to delay-- at least for the moment-- a Republican plan to replace California's elected Democratic governor with a Republican candidate is deeply amusing. Nevertheless, there are several important differences that are worth noting.
First, the objectionable portion of Bush v. Gore was not its equal protection holding, but rather the remedy, which was inconsistent with the equal protection theory. Indeed, the only thing odd about the equal protection holding was that it was a liberal innovation supported by the Court's most conservative members, who usually fight shy of such social engineering, at least where election of Republican Presidential candidates is not at stake.
Second, the Bush v. Gore decision, by its own terms, limited the scope of its equal protection holding to the precise facts of the case, that is, the rules governing hand recounts by the judiciary. Although the case made noises about the fact that punch card ballots were more likely to be spoiled than other forms of balloting, the court stopped well short of holding that different voting technologies violated the equal protection clause. For had it so held, it would have opened the door to a much more extensive complaint about the Florida election. Nevertheless, the dissenting justices noted that the logic of Bush v. Gore might well apply to technological differences as well.
One possible distinction is that technological differences in ballot spoilage do not necessarily mean that there has been any sort of deliberate intent to discriminate against voters or deny them the right to have their ballots counted. The Bush v. Gore holding could be read narrowly to hold that judicial hand recounts required a single standard in order to avoid invidious discrimination against voters. That is to say, the Bush v. Gore opinion may be about the Court's distrust of the Florida judiciary's bona fides in conducting the recount. That would pose a different problem than the problem of different voting technologies used in different parts of the state.
Nevertheless, the Court's precedents in the voting area do not always require bad intent in order to find a violation of voting rights under the Fourteenth Amendment. The principle of one person, one vote should, in theory, apply whether the dilution of the voter's rights was deliberate or negligent. Hence the Ninth Circuit's argument, even though it does not follow directly from Bush v. Gore, nevertheless makes some sense in the light of the Court's other voting rights precedents.
Nevertheless, there is a delicious irony in watching Bush v. Gore used in this way. The Supreme Court apparently believed that it could resolve the 2000 election by issuing an opinon that would never be used or cited by any court again. It hoped to expand equal protection doctrine for this one case but then hold that the decision was limited to the precise facts of Bush v. Gore. The Ninth Circuit has called its bluff, suggesting, in effect, that if the Supreme Court wants us to believe that Bush v. Gore was a legal opinon, then it should be treated as law, with real precedental consequences, rather than as a one-time imposition of will by five Justices who wanted to install the Republican candidate, George W. Bush, as President.
Long live the rule of law!
JB
Report On WMD's Will Surface After All
The London Times reported Sunday (an abbreviated account can be found here) that both the U.S. and Great Britain had blocked release of the Iraq Survey Group report on WMD's because the report failed to find any evidence of WMD's. CBS News now reports that the report will be published after all, but that it will be inconclusive.
In July, David Kay, the survey group's leader, suggested that he had seen enough evidence to convince himself that Saddam Hussein had had a program to produce weapons of mass destruction. He expected to find "strong" evidence of missile delivery systems and "probably" evidence of biological weapons.
But last week, Defense Secretary Donald Rumsfeld said he had met with Kay, and that the onetime weapons inspector had not informed him of any finds.
UPDATE: CBS originally reported, consistent with the Times article, that the WMD report would be blocked indefinitely, but later was informed that the report would in fact be issued. It seems clear, at any rate, that once the original story alleging that the report would be blocked ran in the London Times, the report would eventually have to be released to the public whatever the Bush and Blair Adminstrations' qualms about it might have been.
JB
No Nukes in Iraq
A UN arms inspectors report leaked to the Associated Press suggests that Iraq had no nuclear program worth worrying about:
"In the areas of uranium acquisition, concentration and centrifuge enrichment, extensive field investigation and document analysis revealed no evidence that Iraq had resumed such activities," ElBaradei said in the report, made available to the AP by a diplomat.
"No indication of post-1991 weaponization activities was uncovered in Iraq," he said. Tuesday, September 09, 2003
JB
Ah, February
As Jay Bookman explains:
"Every day you get past three months, you've got to expect peacekeepers to have a bull's-eye on their head," the sources explained.
Even at the time, a spokesman for Defense Undersecretary Douglas Feith suggested that three months might be too optimistic. It was probably wiser to think five or six months on the outside, Lt. Col. Michael Humm said.
At the time, Pentagon officials also claimed that Iraq's oil wealth would make it unnecessary to ask other countries for financial help with reconstruction. "I don't see the need for panhandling like that," the Pentagon source said.
A month later, in a speech to the Veterans of Foreign Wars, Deputy Defense Secretary Paul Wolfowitz issued his own warning of how tough the occupation would be. Ruling Iraq, he said, would be like ruling liberated France after World War II.
He and his colleagues ought to be fired. Not only did they believe those fantasies, they also made their ideological pipe dreams the basis of our postwar planning, and today we're reaping the consequences.
And, to make you feel even more nostalglic, USA Today reports that the monthly expense of the Iraq and Afghanistan wars (*not* including the costs of reconstruction) is now comparable to the monthly expenses of the Vietnam War, adjusted for inflation.
Well, we should have the money for this. It's not as if we're running humongous deficits due to ill-advised tax cuts largely benefitting the rich.
JB
Questions About Same Sex Marriage and DOMA
The noted copyright theorist Siva Vaidhyanathan asks whether if the Massachusetts courts hold that the state may not refuse marriage to same sex couples, this will have ramifications around the country under the federal constitution. The answer is that the decision would probably be rendered under the Massachusetts constitution, and therefore would not directly affect the construction of the Federal Constitution. If for some reason the Federal Constitution were invoked as a justification, the court will probably also find independent grounds under the Massachusetts Constitution to prevent an appeal to the U.S. Supreme Court.
Siva's other question has to do with the effect of the Defense of Marriage Act (DOMA) and Article IV of the U.S. Constitution. The Defense of Marriage Act is designed to alleviate any responsibility that other states might have for recognizing same-sex marriage if one state legalizes it.
Siva wants to know if the Privileges and Immunities Clause of Article IV, section 2 would require states to recognize same sex marriages despite DOMA.
The Privileges and Immunities Clause of Article IV, section 2 does not apply because a state that does not recognize same-sex marriage is not treating outsiders from other states differently than it treats its own citizens, who cannot engage in same-sex marriages.
It is more likely that if DOMA is unconstitutional it is because of the Full Faith and Credit Clause of Article IV section 1, which provides that "Full Faith and Credit shall be given in each State to the public Acts, and Records, and judicial Proceedings of every other State." Although the Supreme Court has held that divorces are "judgments" that must be recognized in all states, unless the state of divorce lacked subject matter jurisdiction, Williams v. North Carolina, 317 U.S. 287 (1942), it has never held the same for marriages. However, marriages are arguably "acts" or "records" for Full Faith and Credit Purposes. If so, then one important question is whether the Clause means what it says or whether states may refuse to give recognition to marriages that violate their public policy. This question is unsettled.
Assuming that marriages are "acts" and that there is no public policy exception, then DOMA arguably allows States to refuse to give effect to rights protected by Article IV of the Constitution, and is therefore unconstitutional. Nevertheless, the next sentence of Article IV, section 1 states that "And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." Supporters of DOMA could argue that Congress is merely refusing to give effect to same-sex marriages or other forms of domestic partnership. The problem with this argument is that if Congress can by legislation let states refuse to give same-sex marriages any effect at all, (as to opposed to specifying the nature of the effect) it has undermined the purpose of the Full Faith and Credit Clause. This question is also unsettled. Congress has invoked its powers under the Clause to require states to give effect to certain judgments (e.g., child support judgments) but the question is whether it may permit states to refuse to give any effect at all to out of state judgments.
Monday, September 08, 2003
JB
Why Dissent Remains Important
Secretary of Defense Donald Rumsfeld has recently grumbled to reporters that criticism of the Administration's war policies can encourage terrorists and make America's war on terrorism more difficult, Newsday reports.
Many, I assume, will accuse Rumsfeld of trying to stifle dissent. My objection is somewhat different. I think Rumsfeld does not properly recognize the reason why dissent about the war can be important to the success of American foreign policy, even if it does complicate the Administration's efforts.
Rumsfeld and other members of the Administration have shown a decided penchant for disdaining the views of people who disagree with them. They were supremely confident about how easy it would be to topple Saddam and install a friendly democratic state in Iraq. We would be greeted as liberators, we were told, and our victory would smooth the Israeli-Palestinian peace process. How naive these assertions now sound in light of recent events.
The Administration also refused to disclose how much its Iraq adventure would cost, and how long American troops would have to stay. Rumsfeld was determined to show that a war of preemption could be performed on the cheap, with minimal forces, and without dragging the U.S. into a quagmire. He and others in the Administration wanted to show that preemption was a viable policy for the future, and that we could act without very much international cooperation.
The Administration's critics protested repeatedly that the Administration was underestimating the dangers of a preemptive attack on Iraq, that even if victory would be swift, stabilizing the country would take many years and great expense, and that an unacceptable number of American lives would be lost in the process. Critics also argued that the Administration's overconfidence, its refusal to level with the American people about how much the war woud cost and how long it would take, and its thumbing its nose at nations that disagreed with its policies would come back to haunt it someday.
Almost all of these warnings of critics have come to pass. The President has given up the triumphalist tone of his May 1st strut around the deck of the U.S.S. Abraham Lincoln, in which he asserted "Mission Accomplished." He now has somberly informed the American public that he will need 87 billion dollars to stabilize the country, an astonishing sum if you consider that it is more than the cost of the 1991 Persian Gulf War. He has grudgingly come to agree that international assistance will be necessary, although he cannot yet bring himself to request help. Instead he simply notes that other countries "should" help the United States.
This brings me to the value of dissent. If the President and his Administration had listened to the dissenters in this country and throughout the world, and taken their arguments seriously, he might well have chosen a wiser path, even if he did not follow their advice in all respects. He might have prepared more thoroughly for the occupation. He might have spent more time working out the details of how to search for weapons of mass destruction in the chaos of war. He might have waited until October and picked up the support of more countries, or even gotten the U.N.'s blessing.
The President and his advisors did not listen to dissenters before, dismissing them as pessimists and mere impediments to the realization of his grand plan. They proved to be much more able and prescient than he was willing to believe. He has now grudgingly come to see the value in much of what they said.
Given this lesson, perhaps the President might try listening more closely to those who disagree with him and consider their objections and concerns more seriously. Dissent provides a crucial counterweight to wishful thinking. If the Administration simply dismisses the dissenter today, as it did in the past, it risks making the same mistakes it made in the past two years-- the mistakes of hubris, the mistakes of overconfidence, the mistakes of a naive belief that the truth and good and righteousness lie only on your side, and that all those who disagree with you are either fools or knaves.
The Administration has made those mistakes once before, and now is beginning to see the consequences of its arrogance and its blindness. Isn't it time for it to gain a bit of humility, and begin recognizing the practical value of dissent?
UPDATE In my original posting, I posted to a Washington Post story at the following location that had the same quotes as the Newsday story. (A version of that story from Reuters, by Tabassum Zakaria, is here.) However, a day later, a different story by Dana Milbank, which omitted all of Rumsfeld's quotes about dissent, had replaced the original story. Does anyone know why this would be the case?
JB
Wounded Soldiers in Iraq-- Classified and Forgotten
Although the number of soldiers killed in Iraq has been widely reported, the number of wounded is far larger. The Pentagon, however, has treated the exact number of soldiers wounded as classifed, as Bill Berkowitz reports. The Florida Sun Sentinel reports that around 10 soliders a day are wounded in action, although the news of these injuries is not routinely covered by the media:
The rising number and quickening pace of soldiers being wounded on the battlefield have been overshadowed by the number of troops killed since President Bush declared an end to major combat operations May 1. But alongside those Americans killed in action, an even greater toll of battlefield wounded continues unabated, with an increasing number being injured through small-arms fire, rocket-propelled grenades, remote-controlled mines and what the Pentagon refers to as "improvised explosive devices."
Indeed, the number of troops wounded in action in Iraq is now more than twice that of the Persian Gulf War in 1991. The total increased more than 35 percent in August -- with an average of almost 10 troops a day injured last month.
Fifty-five Americans were wounded in action last week alone, pushing the number of troops wounded in action since May 1 beyond the number wounded during peak fighting. From March 19 to April 30, 550 U.S. troops were wounded in action in Iraq. Since May 1, the number totals 574. The number of troops killed in Iraq since the beginning of May already has surpassed the total killed during the height of the war.
Pentagon officials point to advances in military medicine as one of the reasons behind the large number of wounded soldiers; many lives are being saved on the battlefield that in past conflicts would have been lost. But the rising number of casualties also reflects the resistance that U.S. forces continue to meet nearly five months after Hussein was ousted from power.
With no fanfare and almost no public notice, giant C-17 transport jets arrive virtually every night at Andrews Air Force Base outside Washington, on medical evacuation missions. Since the war began, more than 6,000 service members have been flown back to the United States. The number includes the 1,124 wounded in action, 301 who received non-hostile injuries in vehicle accidents and other mishaps, and thousands who became physically or mentally ill.
At Walter Reed Army Medical Center in Washington, a half-hour drive from Andrews, Maj. Gen. Kevin C. Kiley, the hospital's commanding general, said there were only two days in July and four in August that the hospital did not admit soldiers injured in Iraq. Sunday, September 07, 2003
JB
Bush Approved War Strategy For Iraq in August 2002
According to a classified report, obtained by the Washington Times.
The report, prepared last month, said the search for weapons of mass destruction was planned so late in the game that it was impossible for U.S. Central Command to carry out the mission effectively. . . .
The report also shows that President Bush approved the overall war strategy for Iraq in August last year. That was eight months before the first bomb was dropped and six months before he asked the U.N. Security Council for a war mandate that he never received.
Senior U.S. officials, including Deputy Defense Secretary Paul Wolfowitz and Deputy Secretary of State Richard Armitage, conceded in recent weeks that the Bush administration failed to predict the guerrilla war against American troops in Iraq. Saddam loyalists and foreign fighters have killed more than 60 soldiers since May 1, mostly with roadside bombs and rocket-propelled grenades.
The Congressional Budget Office projected yesterday that the demands of troop rotations globally will leave the Pentagon without any fresh Army units for Iraq in 2004 unless tours are extended beyond one year.
The Joint Chiefs report reveals deficiencies in the planning process. It says planners were not given enough time to put together the best blueprint for what is called Phase IV — the ongoing reconstruction of Iraq.
JB
Bush Reasserts Connection between Iraq War and War on Terror
In his Sunday speech to the nation, President Bush once again artfully attempted to suggest a connection between deposing Saddam Hussein and the war on terror that began with the September 11th attacks:
This is cleverly done, but in fact, there is still no evidence that Iraq was behind the 9/11 attacks. Nor does there seem to be any evidence that the Administration's policy in Iraq has made Americans safer at home, or successfully deterred future attacks on American soil. Indeed, the evidence points to the opposite conclusion. By attacking Iraq, we diverted resources from Afghanistan, which has fallen into increasing political chaos, and from needed expenditures on homeland security. As a result of our attack, terrorist groups and Islamic fundamentalists who have no love for the U.S. have been pouring into Iraq to assist with the guerilla war now being conducted against our troops. That war, and the cost of rebuilding the country, have sapped American resources even more. And, as I have repeatedly suggested in this blog, there is also the very unsettling possibility that if weapons of mass destruction, or materials used to construct them, did exist before the war (a prospect that seems increasingly less likely, see the post below), were spirited out of the country as a result of the chaos produced by our attack on Iraq, and are now in the hands of terrorist groups.
Our show of strength, as the President puts it, has had exactly the opposite effect that the President claims it would have. Instead it seems that President Bush is the one offering the nation "false comfort" when he suggests that his Iraq policy and his refusal to fund homeland security at proper levels has made Americans safer.
JB
Iraq Survey Report Due Soon
The Iraq Survey Report, which took over the task of finding weapons of mass destruction from the U.S. Army, is due to issue an interim report in the next week. The Survey headed by David Kay, has been especially tight lipped about its findings. The New Zealand News reports, however, that recent statements by British and U.S. officials suggest that they believe that the report will state that no weapons have been found, and that, at best, the Iraqi weapons programs were in a state of what is has been called "suspended animation;" i.e., preserving a coterie of scientists who would make it possible for Iraq to develop these weapons some day.
If so, this cannot be heartwarming news to either the Administration or to Tony Blair's government, which asserted repeatedly that Saddam actually possessed weapons of mass destruction and offered this as grounds for war. Indeed, in his Sunday night speech to the nation, President Bush said nothing about the hunt for Saddam or Osama bin Laden, nor the search for the missing weapons of mass destruction.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |