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Balkinization
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Saturday, October 04, 2003
JB
Rush Limbaugh Explains the Importance of Colorblindness
From an October 5th, 1995 radio show (courtesy of Ellis Henican and Newsday):
"What this says to me," he told his listeners that day, "is that too many whites are getting away with drug use. Too many whites are getting away with drug sales. Too many whites are getting away with trafficking in this stuff. The answer to this disparity is not to start letting people out of jail because we're not putting others in jail who are breaking the law. The answer is to go out and find the ones who are getting away with it, convict them and send them up the river, too." I think we've been taking Limbaugh's remarks about Donovan McNabb out of context. It's now clear that they were much more than the smug posturings of a rabble rouser who simply wants attention. Rather, they reflect a deep moral commitment: Just as Limbaugh doesn't want black quarterbacks to get a free pass from the sports media, he doesn't want white drug abusers like himself to get a pass from the criminal justice system.
When Limbaugh turns himself into authorities and demands to be treated no differently than African-Americans arrested and convicted of drug offenses, we will all see how wrong we all were about this man.
UPDATE: All sarcasm aside, if Limbaugh has become addicted to drugs, he deserves our sympathy, no matter what our views about his politics, and no matter whether he broke the law. As the above quote suggests, in the past Limbaugh himself has had nothing but scorn for people who have come to that sorry state. That disdain reflects less his conservative political views than the fact that he has, for most of his public life, been a callous, insensitive bully. Moreover, he has learned that being a callous, insensitive bully has gotten him a loyal audience and enormous adulation from a public that likes raw, obnoxious ranting from their political commentators. He has learned to enjoy the high he gets from being outrageous and merciless and goading his listeners into similar feelings of outrage and mercilessness. That is to say, Limbaugh has become as addicted to verbal thuggery as he has to painkillers.
If he is now addicted to drugs, we should be sympathetic to his plight, for addiction is no small matter, and living with it is a lifelong struggle. But we should also hope that he learns something from the troubles that are now raining down upon him-- that he, like the rest of us, is fallible and imperfect, and therefore deserving of love, and deserving of mercy. It is true that he is not a man much given to forgiveness, and that he has made a very successful living out of bullying, aggression and hatred. But perhaps he will discover, in a time of darkness, that there is more to life than aggression and demagoguery, and we, in turn, will discover that there is much more to him than the rather obnoxious and unsympathetic character he portrays on the radio. If he can turn his life around, and learn to bestow mercy on others as well as receive it, he might be well on his way to ridding himself of both of his addictions.
Friday, October 03, 2003
JB
Fair and Balanced Pays Off
James Grimmelman writes about a new report concerning how mass media affect the American public’s attitudes toward the Iraq war. The study, conducted by the Program on International Policy Attitudes, finds that a significant proportions of the American public had false beliefs about (1) whether Saddam Hussein was working closely with al Qaeda before the war; (2) whether weapons of mass destruction have been found in Iraq; and (3) whether world public opinion favored the U.S. invasion. (For those who are wondering, no evidence has been found linking Saddam to 9/11 or demonstrating that that he was working closely with al Qaeda before the war, no WMD’s have been found in Iraq, and world opinion did not favor what the U.S. did.).
Sixty percent of the American public held one or more of these misperceptions, although only 20% held two and 8% held all three. The study further suggests that support for the war is highly correlated to holding one or more of these misperceptions. Among those who held none of these misperceptions, only 23% supported the war.
The extent of these misperceptions, the study reports, varies considerably based on Americans’ sources of news about the war. Those receiving most of their information about the war from NPR or PBS were least likely to have these three misperceptions about the war (Only 23% did followed by people who read the print media generally at 47%). On the other hand, those who received most of their information from Fox News are more likely than average to hold one or more of these misperceptions. (80 percent did, followed by 71 percent for CBS). The study corrected for demographic differences between the different sets of audiences, and found that the pattern held even when comparing the views of particular demographic subgroups. People who support the President are much more likely to hold one or more of these misperceptions, regardless of their party affiliation.
The study suggests that disinformation conveyed by the news media can shape public attitudes about important questions before the public. It also suggests what politicians have long known: propaganda works.
JB
Why Preemption Was Such A Good Idea
David Kay gave his long awaited interim report from the Iraq Survey Group, explaining that none of the chemical and biological weapons that were a primary justification for the war against Iraq had been found.
``We have not yet found stocks of weapons, but we are not yet at the point where we can say definitively either that such weapons stocks do not exist or that they existed before the war, and our only task is to find where they have gone,'' Kay said in an unclassified version of his testimony released by the CIA.
Members of his Iraq Survey Group, Kay said, have discovered weapons ``activities'' and equipment that were concealed from U.N. inspectors when they returned to Iraq late last year. Those include apparent biological weapons research and Iraqi attempts between 1999 and 2002 to import technology for 900-mile range missiles from North Korea, he said.
Reaction from intelligence committee members ranged from support for Kay's work to frustration over the limited findings, to dismay that one of the central justifications for war had not been proved.
``This raises real questions about the doctrine of pre-emption,'' said Sen. Jay Rockefeller, of West Virginia, the ranking Democrat on the Senate intelligence committee. ``You just don't make decisions like we do and put our nation's youth at risk based upon something that appears not to have existed.''
The committee chair, Sen. Pat Roberts, R-Kan., declared himself ``not pleased with what I heard today.''
``Everybody involved in this effort would have hoped by now there would have been a breakthrough,'' he said. Jay Rockefeller is on to something. If you are going to employ a doctrine of pre-emption, you had better have confidence that the threat you are facing is real and worth the risks of war. If you go to war on the basis of bad intelligence, or, even worse, if you engage in wishful thinking and employ trumped up intelligence reports to justify your support for war, you may cause yourself a great deal of trouble in the long run. For example, you may get stuck in a costly occupation with no end in sight, and instead of being hailed as liberators, you may find yourself bogged down in a lengthy guerilla war.
Nah, couldn't happen.
Thursday, October 02, 2003
JB
What Caused Wilsongate? Some Thoughts About Institutional Incentives
What caused the Wilson scandal, and why did the story break into the mainstream press when it did? We can start to answer these questions by thinking in terms of institutions rather than individuals. The institutions are the Bush Administration, the CIA, and the mainstream press.
Begin first with the Bush Administration’s attempt to divert blame. Administration officials originally claimed that Saddam’s weapons of mass destruction and likely nuclear capabilities fully supported their decision to go to war. Later, when no WMD’s were uncovered, they argued either that their decisions were reasonable extrapolations from available intelligence, or failing that, that there was an intelligence failure; i.e., that the CIA had not done its job correctly.
The latter claim cast aspersions on the professionalism of the CIA. The CIA resented the Bush Administration’s attempt to use them as a scapegoat. But after Wilson wrote his op-ed on July 9th, responding to insinuations of CIA incompetence, senior members of the Bush Administration went one step further. They leaked information about Wilson’s wife’s identity as a CIA operative. The evident purpose of this was to say, both to Wilson, and to anyone who might have similar ideas in the future: “Screw with us and we will screw with you.”
At this point, however, the Bush Administration stepped over the line, at least from the CIA’s perspective. It was bad enough that the Administration attempted to impugn their professionalism and shift the blame to them. But now Administration officials had outed a CIA operative in response to criticism, partly as payback and partly as a warning. As a result, the CIA has struck back by requesting that the Justice Department investigate the leak.
Two questions:
Why did the CIA take so long to respond, from July 22d, when Novak’s story was published, to the end of September?
Why did the mainstream press take so long to take up this story?
The answers to both these questions concern institutional incentives.
When Novak’s story was first published, several bloggers complained vigorously about the administration’s leak, but the mainstream press paid very little attention (and at that point Novak himself obviously believed that the Administration had done nothing very seriously wrong). Why did the press hesitate? To answer this question we have to recognize the institutional incentives of the Washington press. Reporters do not like to disclose their sources. The more important a story becomes, the greater the chance that reporters will be called to testify before a grand jury, because, obviously, they know who leaked the story to them. Given their professional norms, the reporters will then refuse to disclose their sources, and the press will look bad for breaking the story and then refusing to assist with ascertaining the truth. That is, if the matter goes to the grand jury, there is a danger that the press itself will become the story, not the miscreants who leaked the information to the press.
All of this explains why, in the run of the mill story about leaks, the press is less than interested. The mainstream press has no incentive to make a big deal about leaks *to the press itself.* For this reason, it is often said that investigations about leaks in Washington tend to go nowhere. But they go nowhere not because the information is not readily available– it is readily available, the reporters have it! They go nowhere because reporters don’t want to testify about their sources, and government officials are usually not willing to take the political heat for putting them in jail if they don’t testify. (The institutional calculus is somewhat different with respect to local reporters in jurisdictions outside of the Beltway, so you actually do see the occasional reporter jailed for refusal to testify). Put another way, the ongoing (some would say incestuous) relationship between national politicians and the Washington press corps leads to the received wisdom that the source of leaks cannot be uncovered. And it also led to the mainstream press not picking up on the story for over two months after the Novak column originally appeared.
The CIA’s request to the Justice Department, however, changed the equation considerably. Once the CIA started to push back at the Bush Administration in order to defend its reputation and its institutional prerogatives, it produced a story that could not be buried. The story had to be covered, even though the idea of putting mainstream reporters in harm’s way makes the institutional press quite nervous. The Bush Administration, recognizing the natural hesitancy of the mainstream press to push hard on stories where the press’s own interests are involved, has wanted this to be a story about leaks, which are a common enough occurrence in Washington, and which are governed by the unspoken rules between politicians and the Washington press corps. Thus, if this remains a story about leaks, then it will go nowhere.
It is likely that Valerie Plame and her immediate superiors wanted to push back at the Administration almost immediately after she was outed. But the CIA bureaucracy may have resisted for some time, hoping that the press would pick up the story. The mainstream press did not do so, for the institutional reasons I have just recounted, and therefore at some point the CIA felt it necessary to force matters into the open by requesting an investigation from the Justice Department.
Many people, I suspect, will want to see this story as about political machinations between Democrats and Republicans. Surely there is plenty of that going on. But if one focuses only on the partisan aspects of the story, one will miss the much more interesting and intricate conflicts between institutions that have set these events in motion.
UPDATE: Jerry Newmark writes that the CIA actually did make an informal request for an investigation within a week of Novak's story. An account appears here. He argues that the CIA only made a formal request (thus bringning on press scrutiny and, possibly, a full criminal investigation) only after the White House and the Justice Department failed to respond to its informal suggestion:
JB
If At First You Don't Succeed, Spend, Spend Again
The New York Times reports that President Bush will ask Congress for 600 million dollars to continue the search for weapons of mass destruction in light of the interim report of the Iraq Survey Group which is expected to state that no such weapons have been found.
Approximately 300 million dollars has already been spent in a so far fruitless search for weapons of mass destruction. The Administration wants to double that amount, in what is reported to be a classified portion of the Pentagon's appropriation request to Congress.
One suspects that if the Administration is willing to spend that much money, they could simply purchase the weapons of mass destruction and deposit them in Iraq.
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):
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Books by Balkinization Bloggers 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)
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