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 Rahman sabeel.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 Just Wild About Harry The Method Formerly Known as Prints
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Sunday, May 30, 2004
Just Wild About Harry
JB
Billmon notes this Washington Post essay suggesting that George W. Bush will beat John Kerry in the same way that Harry S Truman defeated Thomas Dewey in 1948. Billmon's right that if you have to start comparing an incumbent president to Harry Truman in May of an election year, things are bleak indeed. Truman and Bush did face Congresses controlled by the Republican Party, which Truman ran against to great effect. However since Bush is himself a Republican, it seems unlikely that running against the do-nothing Republican Congress will prove an equally effective strategy.
In 1948 Truman also took a series of courageous stands on civil rights, much more courageous than his precedessor Franklin Roosevelt felt up to. After appointing a civil rights commission in the previous year, (which produced the famous report "To Secure These Rights,") Truman adopted many of its recommendations, proposing new civil rights legislation, including the abolition of the poll tax and anti-lynching laws. He issued executive orders desegregating the military and the civil service and ran his 1948 campaign as a champion of civil rights.
How does this compare with Bush? Well, let's see, Bush's great act of courage was endorsing a constitutional amendment that would prevent gays and lesbians from ever attaining equal civil rights.
Yes, it's true: the similarities really are quite astonishing.
I've been doing a lot of thinking about Truman in the past several months because this year marks the 50th anniversary of Brown v. Board of Education. What does that have to do with Harry Truman, you might ask? Plenty. Most people don't realize it, but there's a pretty strong argument that without Harry Truman's courage, Brown v. Board of Education (and progress in civil rights for blacks) would have been delayed for many years.
Not only did Truman get behind civil rights through his executive orders, and not only did he appoint William Hastie to the Third Circuit court of appeals, which was at that point the highest federal judicial appointment given to any African-American, but Truman's Justice Department continuously pushed for civil rights before the Supreme Court, particularly in the 1948 case of Shelley v. Kramer.
In 1950 the Truman Justice department asked the Supreme Court to overrule the separate but equal doctrine of Plessy v. Ferguson in a trio of cases, the most famous of which is Sweatt v. Painter. The Justices, however, were not so bold as Truman; they simply struck down Texas's dual law school system without overturning Plessy. Two years later, when a series of cases led by Brown v. Board of Education came to the Supreme Court, the Truman Justice department again asked that Plessy be overruled. Two years later, in 1954, the Supreme Court finally agreed, striking down state segregation of public schools in Brown and segregation of public schools in the District of Columbia in the companion case of Bolling v. Sharpe.
Putting the prestige of the Justice Department and the Solicitor General's office behind ending Jim Crow was an important step in paving the way for Brown and Bolling. But probably the most important thing Truman did to make Brown happen was desegregating the Armed Forces by executive order in 1948. Most people don't realize how crucial this act was in shaping everything that happened in the next decade.
To see why, suppose that Truman had not been so courageous. Suppose he does not desegregate the Armed Forces, the war in Korea becomes a long hard slog, as before, and Brown and Bolling come before the Court in 1952, just as Eisenhower assumes the Presidency.
The first question the Justices will have to decide is whether overturning the separate but equal doctrine of Plessy v. Ferguson will have any consequences for federal segregation in other programs, in particular, the military. Bolling v. Sharpe said that the federal government couldn't segregate the D.C. schools. But the Court might well have thought twice about that result if they knew that the next case would concern military desegregation. That's because in general courts do not like to interfere with military decisionmaking and they generally like to defer to military judgments. Case in point is Korematsu, in which the Court upheld internment of Japanese aliens and Japanese-Americans, despite acknowledging that racial classifications were disfavored and subject to the most searching scrutiny.
The fear that ordering desegregation of the D.C. public schools in Bolling would quickly lead to a court challenge to desegregation of the military would put strong pressure on the Court not to order desegregation of the D.C. public schools. And if the D.C. schools can remain segregated, it looks quite bad to say that the schools in the South must desegregate. (This is, in fact, one reason why Bolling and Brown are decided at the same time. In Bolling Warren says it would be "unthinkable" to desegregate state schools and not the D.C. schools. But this logic cuts in both directions).
Thus, the problem of military segregation might have made the Court much more cautious, and tipped the scales the other way in Bolling and Brown. In the alternative, Chief Justice Warren might have gotten a majority to overrule Plessy, but faced dissents from Justices Jackson, Clark, and Reed, based on their fears of what this would mean for the military, especially given the United States's recent experience in Korea. (The one thing Warren wanted to avoid was a dissenting opinion in Brown, particularly from a Southerner like Reed. The strong threat of a dissent from one or more of these Justices might have made Warren and the other Justices think twice.).
Warren wouldn't have gotten much support elsewhere, either: The Joint Chiefs would have been opposed to desegregation, as they were when Truman was President, and there is no reason to think that Eisenhower, who thought Brown premature, would have gotten behind a decision that might have led to judicial supervision of the Armed Forces.
The conclusion seems inescapable: Without Truman taking the issue of desegregation of the military off the table in 1948, Brown is a very, very hard sell. On the other hand, because Truman set a precedent by desegregating the Armed Forces, he made it possible for the State Department to urge the Court to overrule Plessy a few years later, arguing, as it did, that Jim Crow had become an embarrassment that was hurting American foreign policy interests overseas. The United States was fighting a battle for the hearts and minds of the newly independent countries of the Third World. Jim Crow was the best propaganda weapon that the Soviet Union had. The "Cold War imperative" for Brown became much stronger once the Armed Forces had been desegregated and the South remained the one part of the country that still practiced Jim Crow.
Truman is widely acknowledged to be a great president for many reasons. But he does not get enough credit for his civil rights policies, which were among his most important achievements. It is true that some of these decisions also benefited him politically. But not all of them did, and many of them took enormous moral courage, the sort of moral courage one rarely finds these days in the White House. George W. Bush is supposed to have once told New Yorker writer Ken Auleta: "No President has ever done more for human rights than I have." That statement is laughable on its face. But the more one learns about Harry Truman, the more one has to conclude that he is one of the great defenders of human rights among American Presidents.
Posted 9:57 PM by JB [link] (9) comments Saturday, May 29, 2004
The Method Formerly Known as Prints
JB
Jennifer Mnookin explains why it was possible for three professional FBI fingerprint experts to mistakenly insist that Oregon lawyer Brandon Mayfield's fingerprint matched a partial print found on a bag in Madrid that contained explosive detonators:
Fingerprinting, unlike DNA evidence, currently lacks any valid statistical foundation. This is gravely troubling. Even if we assume the unproven hypothesis that each fingerprint is unique when examined at a certain level of detail, the important question is how often two people might have fingerprints sufficiently similar that a competent examiner could believe they came from the same person. This problem is accentuated when analyzing a partial print, as those recovered from crime scenes frequently are. How often might one part of someone's fingerprint strongly resemble part of someone else's print? No good data on this question exist. Posted 9:49 AM by JB [link] (22) comments Friday, May 14, 2004
JB Misleading the Surpremes The Supreme Court did not know of the revelations about Abu Ghriab when the Administration argued the Guantanamo Bay, Hamdi, and Padilla cases before it last month, and the Administration did not volunteer the information. Indeed, when Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement in the Hamdi cases whether judicial review should be foreclosed even in cases of alleged torture, Clement dodged the question. "Our executive," he insisted, doesn't engage in torture. "Judicial micromanagement" was inappropriate in wartime; "you have to trust the executive."
In fact, the Justice Department did know about-- and approved-- the Administration's "stress and duress" techniques, like "water boarding"-- forcibly holding prisoners under water and making them believe that they will drown unless they cooperate. But conveniently, the government has defined the concept of "torture" to exclude these techniques so that it can technically claim that it "tortures" no one. Perhaps even worse, it has placed prisoners in the hands of other governments with the expectation that even more aggressive techniques will be employed, a practice that also violates the Geneva Conventions. All of this was kept from the Court at oral argument.
Although the Guantanamo Bay, Hamdi and Padilla cases have distinct legal issues from those raised in the current prison abuse scandals in Iraq, the question of whether the Administration can be trusted to protect human rights lies at the heart of all of these cases. The government's argument has been that the Administration needs no judicial oversight because the U.S. would never detain innocent people as enemcombatantsts and would never torture or abuse prisoners in its custody. These promises have turned out to be hollow.
There is no direct evidence that the Solicitor General's office knew at the time it argued these cases about the Justice Department's approval of coercive CIA interrogation techniques, or that it knew about the Red Cross's report given to the Bush Administration in 2003 detailing prisoner abuse and estimating that some 70 to 90 percent of the detainees in Iraqi prisons were innocent of any wrongdoing. At the very least, however, it would have been prudent for the government's lawyers to ask its client-- and other Justice Department officials-- before arguing its case before the Supreme Court. In light of these revelations, the government's representations that "our executive" doesn't engage in torture were seriously misleading. For more on the controversy, see Eric Muller and Unfogged.
Posted 9:01 AM by JB [link] (7) comments Thursday, May 13, 2004
JB Formalism and High Politics I've been meaning for some time to comment on Larry Solum's interesting theory of formalist judging which he offers as a corrective to what he regards as the downward spiral of politicized judging. Matthew Yglesias's recent posting on the subject offers a useful entry point. Larry argues that the politicization of constitutional law, which he believes has had terrible consequences for the Rule of Law, can be avoided if judges commit themselves to a certain kind of formalism, by which he means super-strong respect for precedent.
I've never thought that respect for precedent is at all inconsistent with my (and Sandy Levinson's) view that constitutional judging reflects differences of constitutional vision that get worked out in constitutional doctrine-- what we have called "high politics"-- and that constitutional change often occurs through doctrinal developments that further those constitutional visions. The reason is simple: There's usually more than one way to argue from existing precedents in most important and controversial cases in constitutional law. "More than one," by the way, doesn't mean an infinite number. It means, simply, more than one. There are many arguments that are completely off the wall given existing precedents, and the existing configuration of legal doctrine, but the fact that many answers are off the wall doesn't mean that only one answer is not. (Nor do I assume that Larry would ever suggest such a thing). Rather, existing precedents usually underdetermine the results of the sorts of cases that tend to come before the Supreme Court. On this I assume both Larry and I are in full agreement.
Moreover, as Karl Llewellyn pointed out many years ago, lawyers have a wide variety of techniques for reading precedents broadly and narrowly, drawing analogies from existing precedents, and formulating new principles from older precedents. All of these techniques are generally called "following precedent." But they sometimes lead to very different results. Indeed, much of constitutional adjudication involves dueling examples of Llewellyn's catalogue of precedental techniques, so that it is very often the case that both sides of a dispute can plausibly claim that they are following precedent, (while insisting that the other side is not, because they are using those techniques quite differently and with a different result).
Now it is not clear to me whether Larry wants to contend that some subset of Llewellyn's catalogue of common law practices of precedental argument is illegitimate for formalist judges. If he does not, and if he accepts the common law tradition as part of what he means by formalist judging, then it's not clear how much he and I disagree, and I'm proud to sign on as a formalist at least to that extent. However, if he thinks that substantial parts of this catalogue of precedental techniques are illegitimate, then he has a lot of explaining to do in showing how his theory of judging fits the actual practices of judges over the last several centuries. Put another way, my claim is that the actual practices of what lawyers call "following precedent" are quite flexible. The politicization of the judiciary that Larry decries has not occurred outside of those practices. To the contrary, it has occurred largely within them. And the reason why the work of precedental argument is so flexible is that over the years it has served a variety of different functions. One of those functions is allowing strong conflicts of political principle to be mediated by and worked out through professional discourses of law.
Please note the claim being made here: It is not that anything goes in legal adjudication generally. The claim is only that in the sort of high profile constitutional cases that come before the Supreme Court, precedents usually underdetermine the result, so that people with very different visions of the Constitution, and different varieties of what Levinson and I have called "high politics," can argue for somewhat different results given the existing body of materials and the various techniques of precedental argument. Over time, that doctrinal development can lead to very significant change. That is, following precedents does not simply prevent change, it is also how judges effect change.
Judges cannot come to just any result through precedent-- for precedent and the techniques of precedental argument really do impose constraints on professionally socialized lawyers. But there is enough play in the joints that people with different constitutional visions can often believe in good faith that very different results are the best ones and the best way of following previous precedents.
What this means is that disputes about constitutional high politics get worked out *through* precedental arguments, not outside of them.
Here's a simple example. In the 2000 case of United States v. Morrison, the Supreme Court considered whether the Violence Against Women Act (VAWA) was within Congress's powers to regulate interstate commerce. The dissenters argued that violence against women had cumulative effects that affected interstate commerce, and therefore, under the reasoning of Wickard v. Filburn, VAWA was within Congress's power. They read Wickard and earlier cases broadly to mean that if Congress could reasonably conclude that a particular activity affected interstate commerce, that activity could be regulated under the Commerce Clause. They read the Supreme Court's 1995 decision in Lopez narrowly to hold that in close cases, when Congress had not produced sufficient findings of fact of the effects on interstate commerce, the Court did not have to pretend that these cumulative effects existed. The majority opinion written by Chief Justice Rehnquist, by contrast, read Lopez broadly and Wickard and older cases narrowly. Rehnquist created a new doctrinal distinction that he claimed explained all of the Court's previous cases. That distinction was between economic activities and non-economic activities. In his view, Wickard and earlier cases stood for the proposition that Congress could regulate economic activities that had a cumulative effect on interstate commerce, but this reasoning did not apply to non-economic activities like violence against women. The New Deal was about economic regulation, and nothing more. Hence VAWA was unconstitutional.
Both the majority and the dissent claimed that they were following existing precedents. The dissent argued that Rehnquist was making his new economic/non-economic distinction out of whole cloth. Rehnquist argued that the distinction was implicit in the logic of the previous cases.
The majority and the dissent offered contrasting techniques for reading existing precedents. Undergirding those contrasting techniques were opposed visions about the role of the Federal government, the meaning of the New Deal and the Civil Rights Movement, and the meaning of VAWA. The dissenters saw VAWA as ordinary social and economic legislation, (consistent with the New Deal settlement), and, moreover, as a federal civil rights provision. Since the 1964 Civil Rights Act, protecting civil rights through regulations of interstate commerce had been part of the Federal government's job. This was the larger constitutional meaning of the New Deal and the Civil Rights Movement. The majority, by contrast, read the meaning of the New Deal and the Civil Rights Movement more narrowly. They did not see VAWA as a civil rights law. Rather, they regarded it as nothing more than Congressional grandstanding that intruded on traditional state subjects like family law and criminal law. (Yes, I know it sounds odd given the current debates over the Federal Marriage Amendment, but back in 2000, conservatives insisted that family law was a traditional subject of local regulation that the federal government should stay out of.).
Thus, immanent within the precedental arguments in Morrison were opposed constitutional visions, opposed versions of "high politics." The clash of high politics was not inconsistent with precedental arguments and with following existing precedents; rather it was worked out through those arguments and through different techniques for following precedent. Put another way, existing precedents shape, mediate between, and articulate competing constitutional visions. In this way precedents constrain the boundaries of constitutional adjudication and help transform what might otherwise be political disagreements into legal disputes. High politics and the clash of opposed constitutional visions is not foreign to precedental argument; rather it is immanent in disputes about the meaning of past precedents. Precedents, and indeed all of the modalities of constitutional argument, are the vehicles through which highly politicized disputes can be debated through the professional discourse of law. That is how precedents serve the function of channeling political disputes into a professional discourse that subjects those disputes to values associated with the Rule of Law. The system of precedental argument hardly perfect or foolproof, but it has a point to it. It serves, however, imperfectly, important Rule of Law values. But at the same time it also serves as the vehicle for constitutional development, mediating the struggle between opposed constitutional visions. It does both of these things at one and the same time. Indeed, I would suggest that if it did one of these tasks without doing the other, it would not be doing its job.
Posted 8:11 PM by JB [link] (30) comments Wednesday, May 12, 2004
JB My God Can Torture Your Idol As if the public relations debacle couldn't get any worse, it appears that Lt. Gen. William G. "Jerry" Boykin, the deputy undersecretary of Defense for intelligence, may have been involved in the recommendation to use questionable methods to soften up detainees for interrogation. Boykin became controversial for his statements that in the war on terror the United States is a "Christian nation" fighting Satan and for his considered opinion of the religious beliefs of a Muslim Somali warlord: "I knew my God was bigger than his. I knew that my God was a real God and his was an idol."
Boykin is free to believe whatever he likes. But the costs of putting him in such a position of responsibility have now been made apparent. There could be nothing worse for the United States than to have a top military official who publicly proclaims that this is a holy war enmeshed in a scandal involving the abuse and torture of Muslim detainees, the vast majority of whom appear to be innocent of any crime at all.
Posted 2:20 PM by JB [link] (8) comments
JB Anything Goes Rosa Ehrenreich Brooks, a professor at Virginia who has also served as a senior advisor to the State Department on Human Rights policy, connects the dots:
Since Sept. 11, high-level administration spokespeople — including the president — have repeatedly asserted that the executive branch of the U.S. government is free to ignore both the laws of war and the U.S. Constitution, and that executive branch actions are essentially unreviewable by the courts. There are two related points here. One is about executive power. The other is about the value of respecting international law. The lesson about executive power is simple: Unrestrained power without accountability will lead to abuses. It has happened before in human history. It is happening now. It does not matter how noble people are or how just they believe their cause to be. Power without out accountability leads to corruption. That is why the American Constitution creates checks and balances between separated powers of government and it is why executive action must ultimately be subject to judicial review. The lesson about international law is slightly different: International legal convenants like the Geneva Conventions help to create a system of mutual restraint that give countries with very different political interests reasons for mutual forbearance. If Country X believes that Country Y is mistreating its prisoners of war and/or killing them, it may have no incentive (other than its sense of morality) to behave any better. The result is a downward spiral of abuse, torture, and death. By agreeing beforehand to minimum standards of decency for the treatment of prisoners of war, signatories can check each other through shaming in the court of world opinion, even if there is no supranational dispute resolution body with the power to enforce the standards. That is precisely what is happening now in the context of Abu Ghraib. America is not (yet at least) being dragged into court for what it has done. But the United States is suffering a public relations disaster around the world that is seriously harming its foreign policy interests.
In this sense, the Geneva Conventions are doing precisely what they should do: act as a focal point that can be used to shame the United States for misbehavior. The lesson, however, is that America should never have let itself get into this situation in the first place. It should have taken the Geneva Conventions seriously from the start. Instead, after 9/11 it decided that "anything goes." Its Iraq policy is now suffering the consequences of that failure.
Posted 1:42 PM by JB [link] (7) comments Tuesday, May 11, 2004
JB Manipulating the Definition of "Torture" My friend and co-author Sandy Levinson writes in this week's Village Voice about how the United States has manipulated the legal definition of torture:
For over a decade, the United States has lived with a loose definition of "torture" that is significantly out of line with that of most of the rest of the world and invites the kind of manufactured distinctions that give lawyering a bad name. Moreover, officials in both Congress and the executive branch have winked and nodded at practices such as sending prisoners to countries that will do our dirty work for us. Our chief executive, in our name, professes to be shocked, just shocked, that scandalous practices are occurring in Afghanistan and Iraq. Perhaps George W. Bush would offer the excuse that he reads no newspapers; he gets his information only from self-serving courtiers. There is no excuse for presumably better-read members of Congress and, most of all, those of us who did read the stories and simply went on with our lives as if they had nothing to do with us and concerned only the various "others" living in strange and faraway places. Posted 10:11 PM by JB [link] (7) comments
JB The World According to Inhofe As others condemned the reported abuse of Iraqi prisoners, U.S. Sen. James Inhofe on Tuesday expressed outrage at the worldwide outrage over the treatment by American soldiers of those he called "terrorists" and "murderers." You tell'em Jim, it's the fault of that goddamn Red Cross sticking its nose in where it doesn't belong! We don't need your stinking human rights! After all, we didn't come to Iraq to promote democracy and human rights, we came to ..... Uh, what exactly was the reason again? P.S. Flash from the past: Inhofe exposes global warming as a scientific hoax. Posted 12:58 PM by JB [link] (3) comments Saturday, May 08, 2004
JB Mon Dieu! Européens n'aiment pas le Président Bush! To no one's surprise (except those Republican pundits who insist that John Kerry must be lying) the New York Times reports that most Europeans in a wide swath of countries can't wait to see Bush thrown out of office:
Across Europe, anti-Bush feeling has contributed to a consensus that the coming American election is of singular importance: for the United States, certainly, but also for the rest of the world. Anxieties about the direction America is going are accompanied more often than not by a passionate desire, cutting across national borders and party lines, to see President Bush voted out of office in November. Meanwhile, John Kerry is enjoying support in Europe, not because of his policies, but simply because he isn't Bush. I think it's a mistake to believe that the tensions with Europe will completely disappear if Bush loses the election. American and Europe will continue to have different interests on many subjects. The real question is whether there will be a more constructive way to deal with those differences. Moreover, the Administration has so badly handled American-European relations that the many common ends that Europe and America continue to possess-- and which formed the cornerstone of the European-American alliance for decades-- have been overshadowed in the process. The tolerance and goodwill that keeps mutually beneficial alliances together in good times and bad has been systematically squandered. This combintation of senseless beligerence and incompetence is among the Bush Administration's greatest foreign policy failings. It is one thing if the Administration's policies address real differences with European allies that cannot be papered over. It is quite another if the Administration's policies foment differences and disagreements that really shouldn't be there in the first place.
Posted 5:59 PM by JB [link] (4) comments
JB Red Cross: Abuse of Prisoners Widespread in Iraq U.S. Officials were warned about a broad pattern of prisoner abuse tantamount to torture a year ago, according to the Red Cross:
The international Red Cross documented cases of severe mistreatment of Iraqi prisoners far more numerous and far earlier than previously was known, U.S. and Red Cross officials said Friday.
Posted 10:30 AM by JB [link] (10) comments Thursday, May 06, 2004
JB Reaping What You Sow Both the civilian contractors accused of mistreatment of prisoners at Abu Ghraib and Jose Padilla are United States citizens. The contractors are entitled to the usual protections of the Bill of Rights, including the presumption of innocence, the right to counsel, the right to know the charges against them, and the writ of habeas corpus to test the legality of their detention if they are placed in jail. According to the Bush Administration, however, Jose Padilla, who has never been charged with any crime, is not entitled to any of these protections.
We are likely to see more revelations in the mistreatment of prisoners, in Iraqi, in Afghanistan, and in Guantanamo Bay. Numerous reports of mistreatment have surfaced over the past several months. But until now there have been no pictures to prove these allegations, only the statements of prisoners, which can easily be dismissed because they come from people who are deemed enemies of the state. We have no idea how many more instances of mistreatment and possibly torture have occurred, because the treatment of prisoners has largely been shrouded in that secrecy with which this Administration is so fond.
The Administration, and particularly Defense Secretary Rumsfeld, have been cavalier about American obligations under international law, including the Geneva Convention. International law and transparency, we are told, are unnecessary because, unlike all of the other countries in the world, we are Americans, and we naturally believe in human rights and the rule of law. We need no special incentives to be good. But if history teaches us anything, it is that when governments, no matter how well they think of themselves, decide to free themselves from constraints, they become unconstrained, and when they refuse to make themselves accountable, they abuse their power. The only thing that has been lacking until now has been the proof of what everyone should already have known: that unchecked power leads to hubris, hubris leads to corruption, and corruption leads to violations of human rights.
Americans are proud of their devotion to democracy, human rights, and the rule of law. But these cannot exist without institutional preconditions: they cannot exist if government officials insist on complete secrecy, mock international covenants, and refuse to allow their actions to be tested and constrained by law.
This Administration wanted secrecy. It wanted to be free of legal constraint. It wanted to do whatever it wanted whenever it wanted without ever having to be called to account for it.
Now it is reaping what it has sown.
Posted 12:39 AM by JB [link] (8) comments Tuesday, May 04, 2004
JB The Soft Censorship of Corporate Expectations The New York Times reports that the Walt Disney Company is preventing its Mirimax division from distributing a new Michael Moore documentary that criticizes President Bush's actions both before 9/11 and explores Bush's connections to prominent Saudis:
Disney, which bought Miramax more than a decade ago, has a contractual agreement with the Miramax principals, Bob and Harvey Weinstein, allowing it to prevent the company from distributing films under certain circumstances, like an excessive budget or an NC-17 rating. Here's the key quote: Disney came under heavy criticism from conservatives last May after the disclosure that Miramax had agreed to finance the film when Icon Productions, Mel Gibson's studio, backed out. This is the soft censorship of corporate expectations. The issue is not so much the film's politics but the fact that it has a politics that might either offend advertisers or government officials who, in turn, can decide to dry up the various spigots of wealth that advertisers and governments provide to very large media companies. All other things being equal, media corporations like their political messages bland and innocuous, and not clearly directed against particular politicians that might hurt them. This feature is perfectly consistent with media products having ideological slants. The issue is not whether they have a slant-- they very often do-- but whether they have the sort of slant that will get them into trouble and cost them profits. The soft censorship of corporate expectations suggests a generally unremarked problem with media concentration: It is often argued that media concentration can actually help foster diversity, because a monopolist will have an economic incentive to produce a diverse menu of media goods in order to capture an increasingly large audience share. But this reasoning neglects the fact that as media become vertically and horizontally integrated, they may become held responsible by politicians and advertisers for *everything* that they do. That leads them, all other things being equal, to avoid the kinds of attacks and controversies that will get them in hot water with politicians. Thus, although media concentration may produce products that are increasingly diverse from one perspective, they may be increasingly shallow from another. Conversely, in a world in which there are a large number of different players, the chances become higher than one of them is willing to risk the wrath of the powers that be.
Posted 11:53 PM by JB [link] (26) comments Sunday, May 02, 2004
JB Showing A Little Knee Jonathan Knee's op-ed in the New York Times argues that the government should make it a crime to pay or receive money for sex acts in order to wipe out pornography on the Internet. He argues that such a law would have no First Amendment implications. But of course it would. It is true that general rules that are not aimed at protected speech but that nevertheless have collateral consequences on freedom of speech may be constitutional. But if the avowed purpose of the law is to restrict protected expression, it violates the First Amendment.
It is also clear that Knee's purpose is not simply to protect children-- the standard justification for restricting pornography these days-- but to prevent adults from obtaining constitutionally protected material: As he puts it "the problem isn't only what minors see. With 70 percent of men aged 18 to 34 visiting a pornographic Web site at least once a month, this material affects everyone."
Pause and consider this last quote. What exactly are these effects on everyone other than the fact that people seek out things they want to see? Later Knee remarks that "one might want more empirical evidence of actual harm from the increased exposure to pornography before taking so radical a step." Indeed. If Knee thinks that pornography causes harm, other than offense to his moral sensibilities, he might consider that studies have repeatedly failed to show much desensitization (or indeed, much other harm for that matter) from non-violent pornography-- i.e., pictures and movies of couples who are not maiming or killing or torturing each other, but simply having sex-- and it is non-violent pornography that Knee wants to ban. In fact, the studies indicate that the desensitization from exposure to violent pornography comes not so much from the sexual content of the pornography, but from its violent content. R-rated slasher films do just as good a job as hard core violent porn. And these studies only show the possibility of desensitization among college students who were the test subjects, they do not show that exposure to even violent pornography causes an increase in crime.
If Knee is really serious about the effects of media representations, he should forget about pornography and focus instead on violence, although even here the studies are inconclusive. But then, of course, he would be taking on not the pornography industry, but the mainstream media itself.
Knee's proposal to ban pornography does not reach nude modeling, or simulated sex acts. This also undermines his claims of harm. If he thinks that non-violent pornography causes harm to adults, he's given no reason to think that exposure by adults to these other forms of pornography does not share the same bad tendencies. Indeed, if Knee really wants to prohibit speech that corrupts minds, desensitizes adults and leads them to do very stupid and wicked things, I'm afraid that the pornography industry is not the first place he should be looking to censor. There are many other, far more powerful influences.
In any case, a general principle of first amendment law is that the government is not permitted to prohibit adults from reading or watching expression because of the fear that adult minds will become corrupted. Conceivably Knee's own editorial might cause harm, because it might desensitize adults to the importance of freedom of speech and lead some officials to engage in behavior that subverts the First Amendment. Thankfully, this is not a sufficiently good reason to censor it.
Posted 10:29 AM by JB [link] (36) comments Saturday, May 01, 2004
JB When Dinosaurs Ruled The Earth-- 6,000 Years Ago A new creationist theme park has opened in Florida, the New York Times reports:
Robert and Schön Passmore took their children to Disney World last fall and left bitterly disappointed. As Christians who reject evolutionary theory, the family scoffed at the park's dinosaur attractions, which date the apatosaurus, brachiosaurus and the like to prehistoric times.
Posted 11:35 AM by JB [link] (32) comments
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