an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[T]he security professionals who stayed at their station on Sept. 11 soon found they had philosophical differences with the neo[conservatives] in the shelter. They were empiricists: They took in as much information as they could and derived their conclusions on that basis. And, as Clarke and many of his fellow professionals were soon to discover, this has been a tough administration for empiricists.
Step back a minute and look at who has left this administration or blown the whistle on it, and why. Clarke enumerates a half-dozen counterterrorism staffers, three of whom were with him in the Situation Room on Sept. 11, who left because they felt the White House was placing too much emphasis on the enemy who didn't attack us, Iraq, and far too little on the enemy who did.
But that only begins the list. There's Paul O'Neill, whose recent memoir recounts his ongoing and unavailing battle to get the president to take the skyrocketing deficit seriously. There's Christie Todd Whitman, who appears in O'Neill's memoir recalling her own unsuccessful struggles to get the White House to acknowledge the scientific data on environmental problems. There's Eric Shinseki, the former Army chief of staff, who told Congress that it would take hundreds of thousands of American soldiers to adequately secure postwar Iraq. There's Richard Foster, the Medicare accountant, who was forbidden by his superiors from giving Congress an accurate assessment of the cost of the administration's new program. All but Foster are now gone, and Foster's sole insurance policy is that Republican as well as Democratic members of Congress were burnt by his muzzling.
In the Bush administration, you're an empiricist at your own peril. Plainly, this has placed any number of conscientious civil servants -- from Foster, who totaled the costs on Medicare, to Clarke, who charted the al Qaeda leads before Sept. 11 -- at risk. In a White House where ideology trumps information time and again, you run the numbers at your own risk. Nothing so attests to the fundamental radicalism of this administration as the disaffection of professionals such as Foster and Clarke, each of whom had served presidents of both parties.
The revolt of the professionals poses a huge problem for the Bush presidency precisely because it is not coming from its ideological antagonists. Clarke concludes his book making a qualified case for establishing a security sub-agency within the FBI that would be much like Britain's MI5 -- a suggestion clearly not on the ACLU's wish list. O'Neill wants a return to traditional Republican budget-balancing. The common indictment that these critics are leveling at the administration is that it is impervious to facts. That's a more devastating election year charge than anything John Kerry could come up with.
Because, as I have noted previously, presidential systems have inherent tendencies to corrupt the policy making process, I think that what Meyerson is describing is a matter of degree, rather than kind. But at some point, differences of degree become quite worrisome indeed, and this Administration seems to have reached a tipping point in a wide range of different areas. Clarke's story is making front page news because it concerns a key issue in Bush's re-election campaign-- the President's boast that he has kept America safe. As we learn more details about how the Administration's foreign policy has been conducted, this boast looks increasingly empty. However, as Meyerson points out, the same corruption of the policy process has occured in other areas ranging from fiscal policy to environmental policy.