Balkinization  

Saturday, February 14, 2004

JB

The U.S. Army Is Taking Names At Academic Conferences on Islam

The U.S. Army sent intelligence agents to investigate a conference about women and Islam held at the University of Texas School of Law, were I taught for six years.

UT law student and organizer Sahar Aziz was shocked at the Army's interest and methods.

"It was not a terrorism related conference. It was very benign … The reason why we put it together is there had been a lot of debate on campus about these issues due to the burka [face-covering mask worn by Muslim women] in Afghanistan and Iraq," she said.

A few days later, two U.S. Army intelligence agents showed up and wanted a list of all the people who attended the conference.

They approached Jessica Biddle, who helped Aziz get funding for the event.

"[I said] that he was intimidating me and is there a problem? His response was 'no, no problem, we're investigating a couple of people who attended the conference and we need to see the list,'" Biddle said.


What the Army did may or may not violate anybody's constitutional rights. But there's a larger threat to free expression and association that we shouldn't overlook here. By attending conferences and asking for names, the Army is sending a message: if you are the sort of person who goes to these conferences, we may choose to create a file on you. For many people, that will be a strong disincentive to attend conferences, exchange ideas, and speak freely, especially if they have controversial or unpopular views. Moreover, it will also make it more difficult for groups like Biddle's and Aziz's to hold conferences on Islam and get funding for them, because some people will be afraid to attend, and potential sponsors will be afraid to become associated with conferences that the Army may be spying on.

I don't have any problem with the government investigating terrorism. I do have a problem with its doing so in a way that chills protected expression and reinforces unjust stereotypes about Islam. That's particularly true when people are trying to think about how the Islamic tradition is connected to equality, democracy, and human rights. Our government should be welcoming this kind of intellectual exchange. Instead, it's discouraging open and honest dialogue.


JB

The Cost (Plus) of No-bid Contracting in Iraq

The New York Times reports that Vice President Cheney's former firm, Halliburton, which received lucrative contracts in Iraq without having to go through the usual competitive bidding process, is coming under increasing scrutiny:

On Thursday, two Democratic members of Congress informed the Pentagon that two former Halliburton employees had come forward with a variety of accusations about wasteful spending of government money, saying Halliburton "routinely overcharged" for its work in Iraq.

"High-level Halliburton officials frequently told employees that the high prices charged by vendors were not a problem because the U.S. government would reimburse Halliburton's costs and then pay Halliburton an additional fee," the two Congressman — Henry Waxman of California and John D. Dingell of Michigan — wrote in a letter to Pentagon auditors.

One of the former employees, according to the letter, said "a Halliburton motto was: `Don't worry about price. It's cost-plus.' "

In the letter, the congressmen said the two men approached Mr. Waxman after leaving jobs with Halliburton for personal reasons last month. The letter said the employees told them Halliburton worked hard to avoid putting purchases out for competitive bidding and therefore overspent for many purchases as well as common items.


War profiteering is a despicable practice; it is even more despicable when the profiteering is by the President's and Vice-President's friends, who are hand picked without having to go through normal channels of competitive bidding, and who happily pass on their overcharges to the public. There is nothing patriotic about using the war to line the pockets of your friends and campaign contributors. It is bad enough when the Administration moves its friends to the head of the line. It is even worse when if the companies use the opportunity to gouge the public.

This is crony capitalism, the sort of thing one would expect in a third world country.

The press should spend less time going over Bush's national guard service in 1973 and more time on this. The Administration's contracting practices in the Iraq war are the real military scandal; they speak volumes about the President's character, and his apparent belief that he is entitled to use the public treasury as his personal plaything to reward his friends regardless of the cost to the country.


JB

Federal Marriage Amendment Suffers From Drafting Errors

The Washington Post reports that the proposed Federal Marriage Amendment, which I have discussed here, is so poorly drafted that even the people who wrote it disagree about its meaning.

What is particularly remarkable is that some fairly prestigious legal talent-- including Judge Robert Bork, Professor Robert George of Princeton and Professor Gerald Bradley of Notre Dame-- was involved in drafting the FMA. Yet the language is so shoddy and confusing that I would probably flunk a student who submitted it in a final exam question. (And if you know anything about Yale Law School's grading system, that's saying a lot!).

The Post story explains that the drafting was done by a committee rather casually, without much concern for precision, and in order to satisfy various conservative constituencies. Some of the drafters believed that the language banned both same sex marriages and civil unions, others believed that it banned only same sex marriages, and still others believed that it prevented courts from holding that civil unions were required by federal or state constitutional law but did not prevent legislatures from creating such unions by statute.

In 1987 the Senate didn't think that Bork could be trusted to interpret the Constitution as a Supreme Court Justice. I must say that this episode does not speak well for his skills at drafting a constitution either.



Friday, February 13, 2004

JB

I Left My Heart and (Got My Marriage License) in San Francisco

On February 12th, the birthday of the Great Emancipator, Abraham Lincoln, the Mayor of San Francisco ordered the city clerk's office to begin awarding marriage licenses to same sex couples, the Los Angeles Times reports.

Because existing California law (which preempts municipal law to the contrary) defines marriage as the union of a man and a woman, the city's tactic will fail unless it can get the California courts to hold that the California law is unconstitutional. My guess is that the courts will not agree, and we may even see a proposed amendment to the California Constitution to reemphasize that fact.

Given that the mayor's stunt will almost certainly fail legally in the short run, is it a wise strategy in the long run? Yes, because the push is coming from an elected official and not from a court. Even if courts guarantee same sex couples the right to marry, that right won't be fully secure until lots of public officials support the practice. Right now a significant number of national politicians support civil unions, but not very many are on record as supporting same sex marriage. To be sure, one might expect that the Mayor of San Francisco would be among the first politicians to push hard for same sex marriage. But even if his action doesn't sway lots of people in California, or the nation as a whole, it's an important start.


JB

The Black Hole of Gitmo

The New York Times reports: "Senior Defense Department officials said Thursday that they were planning to keep a large portion of the detainees at Guantánamo Bay, Cuba, there for many years, perhaps indefinitely."

When the U.S. government denies people access to the courts and further declares that it is not bound by the Geneva Convention, this is pretty much what you would expect. Without the rule of law to restrain the government, it will be arbitrary. That is why courts and the procedural protections of the Bill of Rights and international legal agreements exist: because those who hold absolute power do not cede it willingly.

We hold ourselves out as a nation that believes in human rights and the rule of law, and we repeatedly state that we want our values to spread to other nations, particularly those with histories of arbitary arrest, detention and confinement. The best way to show why our values are important is to practice them ourselves. For if we cannot be bothered to protect human rights and the rule of law when they are inconvenient for us, how can we persuade other countries to adopt them?


JB

Kerry and Bush: Media Double Standards?

Is John Kerry unfairly being given a pass by the mass media with respect to Matt Drudge's allegations of infidelity with a young intern, while George W. Bush is being unfairly pilloried for the possibility that he was AWOL in 1972 and 1973? Glenn Reynolds wants to know.

I think it's entirely possible that a double standard will occur, but the key point I would emphasize is that it hasn't happened yet. Remember that the mass media didn't do much with the Bush AWOL story for a long time. It came and went in 1994, it came and went again in 2000. It took persistent repetitions of the story in the blogosphere, an intemperate question by Peter Jennings, a noncommittal response by Wesley Clark, and a strong endorsement of the theory by the chairman of the DNC to finally get the ball rolling. None of those things has happened yet with Drudge's accusations about Kerry's infidelity (which may not be infidelity at all if he was unmarried at the time that the alleged liaison occurred). The press takes time before it is willing to broach such a story. If one of the Democratic candidates vouched for the story in public, or if the chairman of the RNC started to assert it, then the mainstream press would almost certainly begin to cover it. They would cover it because Dean or Edwards or Clark or the chairman of the Republican National Committee or the White House Press Secretary said it on the record. But no mainstream politician has been willing to step up to the plate.

In any case, if the press does begin to take up the story at some point, we also have to consider what the Kerry story, if true, tells us about Kerry, and what the Bush story, if true, tells us about Bush. These are different things, and the press might think that the stories concern different issues. In Bush's case, for example, the issues concern whether he is a shirker, whether he is a hypocrite for sending people off to die when he avoided service, whether he broke applicable military regulations, whether he got special consideration in his initial assignments and special treatment thereafter because he was well connected, whether he avoided punishment for shirking for similar reasons, whether his ability to "work things out" with the military so he could attend Harvard Business School instead of completing his service like the average person is evidence of special treatment, whether his failure to take a medical examination was an attempt to hide features of his past that are even more embarrassing, and whether his selective release of dental records in recent days is indicative of the Administration general inability to be straight with the American people. Kerry's story, if proven true, would suggest other things about Kerry, some of them quite unflattering, but they would be different things. For example, Kerry has not yet promised to be forthcoming on the question at hand and the next day withheld evidence that he promised on national television he would provide. The Bush story is in a different posture and has a different history than the Kerry story. That is another reason to wait a bit before we declare them morally equivalent in all respects.

Finally, we have to ask whether the degree of evidence in both stories is the same or different. In Kerry's case, we have a single anonymous source reported by Drudge. In Bush's case, we have various records of and statements about his military service and multiple statements by identified persons that have led many people to conclude that Bush has not been entirely forthcoming about the circumstances of his National Guard service. In neither case do we have clear and convincing evidence that the allegations are true, but in Bush's case there much is more evidence for the press to consider precisely because the story has been brewing for so many years.



Thursday, February 12, 2004

JB

Justice Department Seeks to Invade Privacy of Women Who Have Had Abortions

The New York Times has the story here.

The Justice Department seeks to subpoena medical records of women who have had abortions in order to prove that partial birth abortions are medically unnecessary and were "just the doctor's preference to perform the procedure." This is truly grotesque. Doctors do not perform D&X abortions because they have a particular fondness for gruesome procedures; they do so because they believe it is the safest procedure available for women who are in difficult circumstances. This is a pretty blatant attempt to scare doctors away from performing the procedure and invade the privacy of their patients in the process. The key quote from the Justice Department's brief:

Citing federal case law, the department said in a brief that "there is no federal common law" protecting physician-patient privilege. In light of "modern medical practice" and the growth of third-party insurers, it said, "individuals no longer possess a reasonable expectation that their histories will remain completely confidential.

All of which begs the question whether people *should* have their medical privacy protected. Is there nothing that John Ashcroft won't stoop to?



Wednesday, February 11, 2004

JB

President Bush To Urge Bans On Civil Unions, All Benefits for Same Sex Partners

At least, that is what will happen if he comes out in favor of the proposed Federal Marriage Amendment.

The reasons why here.


JB

Rumsfeld and Friends Now Washing Their Hands of the Iraq Mess

Joseph Galloway has the details. By the way, why isn't anyone making more of the war profiteering stories coming out of Iraq? This is an absolute disgrace. (Especially given that many of these contracts were awarded without the usual competitive process). We need a Congressional investigation.



Tuesday, February 10, 2004

JB

Bill O'Reilly Apologizes

The San Diego Union Tribune has the story.

Good for him.



Monday, February 09, 2004

JB

Peggy Makes Excuses

Here is Peggy Noonan's justification for Bush's lackluster performance in Sunday's Meet The Press interview:

Democrats have minds that do it through talking points, and Republicans have minds that do speeches. (Mr. Bush has given a dozen memorable speeches already; only one of his Democratic challengers has, and that was "I Have a Scream.") And the reason--perhaps--is that Democratic candidates tend to love the game of politics, and Republican candidates often don't. Democrats, because they admire government and seek to be part of it, are inclined to think the truth of life is in policy. How could they not then be engaged by policy talk, and its talking points?

Republicans think politics is something you have to do and that policy is something you have to have to move things forward in line with a philosophy. They like philosophy. But they are bored by policy and hate having to memorize talking points.

Speeches are the vehicle for philosophy. Interviews are the vehicle of policy. Mr. Kerry does talking points and can't give an interesting speech. Mr. Bush can't do talking points and gives speeches full of thought and assertion.

Philosophy takes time. If you connect your answers in an interview to philosophy, or go to philosophy first, you can look as if you're dodging the question. You can forget the question. You can look a little gaga. But policy doesn't take time. Policy is a machine gun--bip bip bip. Education policy, bip bip bip. Next.


There are so many things wrong with this that it is hard to know where to start. Republicans hate political gamesmanship and Democrats love it? Has she ever met Tom Delay and Newt Gingrich? Or Karl Rove or George W. Bush himself for that matter? I'll concede that (some) Democrats (like Clinton, for example) like good public policy, but can she really be serious in claiming that Republicans are by nature philosophers? Has any one ever accused George W. Bush of a great love of philosophy? Perhaps she means that Republicans are a social movement party driven largely by ideology and therefore don't care about the details of making good public policy as long as their ideological preferences are satisfied. She may be right about that, but it doesn't speak well for putting them in charge of the government.

Finally, the idea that speeches read from a teleprompter are inherently vehicles of philosophy while talking points memorized and spat out in press interviews are vehicles of policy is absurd. Speeches are used for policy announcements all the time; conversely, talking points are often designed to describe a candidate's larger philosophy without getting into specifics. (Here Peggy Noonan is trying to do a clever McLuhanesque spin but I suggest she go back and read her McLuhan again.). The reason why Bush does better in speeches than in interviews is because he has great speechwriters and he's not very quick on his feet.

I will agree with Peggy on one thing-- the President has absolutely no interest in public policy. But that's not because he's a philosopher. It's because he's primarily interested in holding onto power. See the following posts here and here for more details.


JB

Kevin Drum Blows the Lid Off the Bush AWOL Story

Details here.

Drum obtained documents from a FOIA search conducted in 2000 by Bob Fertik. According to Drum, it appears that because Bush stopped going to drills begining in May 1972 and refused to take a physical (why would he do that?) he was grounded and transferred to a unit called ARF. This is essentially a disciplinary action that requires no drills but makes one available for active duty (However, the odds that a Congressman's son would be sent to Vietnam were small at best). Bush didn't, as he suggests, make up his original Texas Guard Unit time in 1973. In fact, other documents Drum has uncovered suggest that there was no actual duty after May 1972.

This story gets increasingly interesting. The question is whether the mainstream media will pick up on it.



Sunday, February 08, 2004

JB

Transcript of Bush's Interview on Meet the Press

can be found here.

JB

Niccolo's Advice for the Mayberry Machiavellis

Since the term "Mayberry Machiavelli" has been bandied about so much in recent times to describe President Bush and his administration, I thought it might be useful to go back to the source to see how well the President has been following Niccolo's advice. The answer is, quite well in some respects. However, as I shall also suggest at the end of this post, Machiavelli also shows how George W. Bush is vulnerable:

Here is what Machiavelli has to say about leadership in the eighteenth chapter of The Prince:

Everyone admits how praiseworthy it is in a prince to keep faith, and to live with integrity and not with craft. Nevertheless our experience has been that those princes who have done great things have held good faith of little account, and have known how to circumvent the intellect of men by craft, and in the end have overcome those who have relied on their word. . . .

But it is necessary to know well how to disguise this characteristic, and to be a great pretender and dissembler; and men are so simple, and so subject to present necessities, that he who seeks to deceive will always find someone who will allow himself to be deceived. One recent example I cannot pass over in silence. Alexander VI did nothing else but deceive men, nor ever thought of doing otherwise, and he always found victims; for there never was a man who had greater power in asserting, or who with greater oaths would affirm a thing, yet would observe it less; nevertheless his deceits always succeeded according to his wishes, because he well understood this side of mankind.

Therefore it is unnecessary for a prince to have all the good qualities I have enumerated, but it is very necessary to appear to have them. And I shall dare to say this also, that to have them and always to observe them is injurious, and that to appear to have them is useful; to appear merciful, faithful, humane, religious, upright, and to be so, but with a mind so framed that should you require not to be so, you may be able and know how to change to the opposite. . . .

For this reason a prince ought to take care that he never lets anything slip from his lips that is not replete with the above-named five qualities, that he may appear to him who sees and hears him altogether merciful, faithful, humane, upright, and religious. There is nothing more necessary to appear to have than this last quality, inasmuch as men judge generally more by the eye than by the hand, because it belongs to everybody to see you, to few to come in touch with you. Every one sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the state to defend them; and in the actions of all men, and especially of princes, which it is not prudent to challenge, one judges by the result.


All of this sounds quite familiar: The judicious manipulation of religious language in Bush's speeches, the secrecy, the refusal publicly to admit mistakes, the blatant dissembling, the flagrant hypocrisy exercised before a fawning coterie of admirers.

But Machiavelli is far more important for other reasons. He has a great deal to tell us about how leaders succeed and how they ultimately fail. This from the twenty-fifth chapter of The Prince:

[T]he prince who relies entirely upon fortune is lost when it changes. . . .[H]e will be successful who directs his actions according to the spirit of the times, and . . . he whose actions do not accord with the times will not be successful. . . .

But a man is not often found sufficiently circumspect to know how to accommodate himself to the change, both because he cannot deviate from what nature inclines him to, and also because, having always prospered by acting in one way, he cannot be persuaded that it is well to leave it; and, therefore, the cautious man, when it is time to turn adventurous, does not know how to do it, hence he is ruined; but had he changed his conduct with the times fortune would not have changed.

Pope Julius II went to work impetuously in all his affairs, and found the times and circumstances conform so well to that line of action that he always met with success. . . . [T]he shortness of his life did not let him experience the contrary; but if circumstances had arisen which required him to go cautiously, his ruin would have followed, because he would never have deviated from those ways to which nature inclined him.

I conclude therefore that, fortune being changeful and mankind steadfast in their ways, so long as the two are in agreement men are successful, but unsuccessful when they fall out. For my part I consider that it is better to be adventurous than cautious, because fortune is a woman, and if you wish to keep her under it is necessary to beat and ill-use her; and it is seen that she allows herself to be mastered by the adventurous rather than by those who go to work more coldly. She is, therefore, always, woman-like, a lover of young men, because they are less cautious, more violent, and with more audacity command her.


These final passages sum up Machiavelli's most important views on the world of politics: Politicians follow the stratagems and approaches that stem naturally from their character; they succeed if their tendencies are in tune with the tendencies of the time. But no one succeeds forever, because people are insufficiently flexible to go against their natural tendencies. Given this fact, fortune favors the bold and impetuous, because by taking the offensive they have a greater chance of reshaping the situation to their advantage; acting agressively and forcefully requires others to respond to them and play their game. But even the bold and impetuous fail when the times call for caution and circumspection.

Looking over the three years of the Bush Administration so far, it seems clear (to me at any rate) that Bush has followed Machiavelli's advice admirably. He has shown himself by nature bold and reckless; by acting decisively, and refusing to compromise, he has forced first Congress, and later the world to dance to his tune. His domestic policies show little concern for what tomorrow may bring; and his bold maneuver into Iraq was made heedless of the consequences of a long occupation. In conformity with Machiavelli's remarks on fortune, Bush has acted "less cautious, more violent, and with more audacity;" he has treated fortune like a woman. And he has brazenly dissembled whenever dissembling was required to promote his aims. This is the source of his considerable success.

But Machiavelli warns that this course of action pursued consistently will eventually run into trouble. At some point conditions change; audacity fails to work as it did before; the piper must be paid. The President seems willing to bluff through his current difficulties, attempting to defer every looming problem and inconvenient fact until after the 2004 elections. The great question of the present moment is whether the strategy of the first three years will continue to be the right strategy for the next nine months, or whether the President, given his natural tendencies toward recklessness and gambling, will have played his hand too boldly too often. Only time will tell. But it is worth noting, with a certain degree of Machiavellian admiration, an Administration that, for a time, kept the country in sycophantic submission through bold moves and brazen deceit. Bush arrived at a point in American history when bullying and thuggishness were rewarded, when both his opponents and the press proved cowardly, corrupt, feckless and effete. He took advantage of those facts, and thus took advantage of us. We must marvel not only at his facility in gaining and holding power, but at the features of American politics that allowed such a man to seize the moment and misuse the country so badly in three short years while a servile press and the public fell fawning at his feet, his political opponents, corrupt and cowardly, ran for cover, and no one raised a finger to stop him.



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