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.

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.

The growing size of computer fingerprint databases makes this issue still more acute. As a database grows in size, the probability that a number of people will have strikingly similar prints also grows. Instead of ignoring the issue, forensic scientists need to investigate the frequencies of different ridge characteristics and develop difficult proficiency tests that examine the capability of fingerprint experts to accurately differentiate between superficially similar prints.

The FBI called the resemblance between Mayfield and Daoud's prints "remarkable." What is truly remarkable is that we simply do not know how often different people's prints may significantly resemble one another, or how good examiners are at distinguishing between such prints. DNA profiling provides what is called a "random match probability": the odds that the DNA of someone picked at random would match the profile in question. With fingerprinting, we entirely lack the information to provide an equivalent statistic. Yet without this knowledge we cannot accurately evaluate the evidentiary value of a supposed fingerprint match.

JB

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.

JB

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.

JB

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.

JB

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.

It began shortly after Sept. 11, with President Bush's breezy announcement that he wanted Osama bin Laden "dead or alive — either way. It doesn't matter to me." The administration also offered a multimillion-dollar reward for Bin Laden, although such statements and bounties have traditionally been viewed as contrary to the laws of war and U.S. military regulations. Soon after, Bush signed a secret intelligence order permitting the CIA to expand covert actions, which, as one senior U.S. intelligence official put it, gave the agency "the green light to do whatever is necessary. Lethal operations that were unthinkable pre-Sept. 11 are now underway."

In his 2003 State of the Union address, Bush continued to imply that legal niceties were of little importance in the war on terror, commenting that while some Al Qaeda members had been arrested, others had "met a different fate." What kind of fate? "Let's put it this way," he said: "They are no longer a problem to the United States."

Vice President Dick Cheney, Atty. Gen. John Ashcroft and Rumsfeld wasted no time establishing their own tough-guy credentials after 9/11. Rumsfeld insisted that military detainees in Afghanistan "do not have any rights" under the Geneva Convention. At home, Ashcroft asserted that foreign terrorist suspects "do not deserve the protections of the American Constitution." Cheney stuck to the same script, insisting that terrorism suspects "don't deserve" judicial "guarantees and safeguards." Never mind the fact that due-process protections are designed not to give the guilty what they "deserve" but to ensure that the innocent, who may be wrongly accused, get the rights that they deserve.

The Bush administration has been similarly cavalier about the use of torture-like practices against detainees. In 2002, a series of media stories reported that U.S. detainees in Afghanistan were hooded, deprived of food, water, sleep and pain medications, forced to remain in agonizing positions for hours, kept naked, and beaten. The truth of these allegations was tacitly acknowledged by numerous senior national security officials (none willing to be named). As one official said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job. I don't think we want to be promoting a view of zero tolerance on this."

No high-level administration official either denied the reports or publicly promised to investigate. Indeed, their response consisted of little more than winks and nods: As J. Cofer Black, then head of the CIA's Counterterrorist Center, told the House and Senate intelligence committees, "all you need to know [is this]: There was a before 9/11, and there was an after 9/11. After 9/11, the gloves come off."

Over the last year, prisoners released from Guantanamo Bay have alleged they too were subjected to brutal and humiliating detention conditions and interrogations. Maj. Gen. Geoffrey Miller, the former Guantanamo commander recently sent to oversee Iraqi detention facilities, wrote in a report last fall (based apparently on his Guantanamo experiences) that military guards in Iraq should be "enablers for interrogations," actively "engaged in setting the conditions for successful exploitation of the internees." When pressed on how conditions at Abu Ghraib prison would be reformed to prevent further abuses, Miller told reporters, "Trust us. We are doing this right."

"Trust us" has been the sole assurance the Bush administration has offered in the face of concerns about possible abuses. In its response to court cases brought on behalf of detainees at Guantanamo, the administration has insisted that executive branch actions at Guantanamo cannot be reviewed by any U.S. court. When judges on the U.S. 9th Circuit Court of Appeals asked Justice Department lawyers whether the administration position would be the same "even if the claims were that it was engaging in acts of torture or that it was summarily executing the [Guantanamo] detainees," the administration's lawyers said yes.

Similarly, in recent U.S. Supreme Court arguments involving two U.S. citizens being held by the U.S. military as alleged "enemy combatants," the administration insisted that it had the right to designate any citizen an enemy combatant on the basis of secret and unchallengeable evidence and to hold such a person as long as it wanted, without charge or any right to counsel, and with no mechanism for the detainee to challenge detention conditions. (The administration claimed that allowing access to counsel would undermine the "trust and dependency that is essential to effective interrogation.") When asked directly by Justice Ruth Bader Ginsburg whether the administration would acknowledge any judicial check to prevent the use of torture against detainees, Deputy Solicitor Gen. Paul Clement ducked the question. He disparaged "judicial micromanagement" and informed the court that "you have to trust the executive."

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.

JB

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.

JB

Shameless:

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."

"I'm probably not the only one up at this table that is more outraged by the outrage than we are by the treatment," the Oklahoma Republican said at a U.S. Senate hearing probing the scandal.

"These prisoners, you know they're not there for traffic violations," Inhofe said. "If they're in cellblock 1-A or 1-B, these prisoners, they're murderers, they're terrorists, they're insurgents. Many of them probably have American blood on their hands and here we're so concerned about the treatment of those individuals."

Coalition military intelligence officers estimated that about 70 percent to 90 percent of the thousands of prisoners detained in Iraq had been "arrested by mistake," according to a report by Red Cross given to the Bush administration last year and leaked this week.

The report also said the mistreatment of prisoners apparently tolerated by U.S. and other coalition forces in Iraq involved widespread abuse that was "in some cases tantamount to torture."

In heated remarks at odds with others on the Senate committee who took aim at the U.S. military's handling of prisoners at the Abu Ghraib prison outside Baghdad, Inhofe said that American sympathies should lie with U.S. troops.

"I am also outraged that we have so many humanitarian do-gooders right now crawling all over these prisons looking for human rights violations, while our troops, our heroes are fighting and dying," he said.

P.S. Flash from the past: Inhofe exposes global warming as a scientific hoax.

JB

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.

Europeans are in general more liberal than Americans, and among Europe's mainstream liberals, rejecting Mr. Bush is a matter of course. But a strange thing seems to have happened to many conservatives, who would ordinarily be the American president's cheerleaders. Even those who favor him seem loath to admit to wholehearted support, tempering their praise with caveats and qualifications.

It is as if admiring Mr. Bush is seen as slightly shameful among thinking Europeans, like confessing a preference for screw-top wine bottles.

"I must say, he's not very popular," said Sergio Romano, an Italian teacher and commentator who has served as ambassador to NATO and to the former Soviet Union. "It's quite understandable that he wouldn't be popular with the bulk of the center-left European intelligentsia, but he's not very popular with the conservatives or moderates either."
. . . . .

In poll after poll, Europeans have shown themselves to be fervently anti-Bush. In Britain, America's staunchest ally in the war in Iraq, a poll of 1,007 people taken last month for The Times of London by the British polling company Populus found support for Senator John Kerry over President Bush by a margin of 56 to 22 percent.

From America, a poll of people in nine nations conducted by the Pew Research Center for the People and the Press in March found that opinion of the president and, by extension, the United States, had plummeted across Europe since Mr. Bush took office.

In France, the poll found, the president had an 85 percent negative rating; in Britain, 57 percent; in Germany 85 percent; and in Russia, 60 percent.

"People say, 'I'm very frustrated that I can't vote in the U.S. elections, because these are the ones that affect my way of life more than anything else,' " Ken Dubin, a political scientist at Carlos III University in Madrid, said in an interview.

Referring to the prewar meeting last year of President Bush, Prime Minister Tony Blair of Britain and José María Aznar, who was then the prime minister of Spain and whose recent election loss was attributed to antiwar feelings by Spanish voters, Mr. Dubin said, "I've heard the comment, 'One down, two to go.' "

In an editorial in March, the left-leaning British newspaper The Guardian put it more starkly. "Senator Kerry carries the hopes not just of millions of Americans but of millions of British well-wishers, not to mention those of nations throughout Europe and the world," the newspaper wrote. "Nothing in world politics would make more difference to the rest of us than a change in the White House."
. . . .

"The thing that Europeans cannot understand is how you can vote for a liar," said Peter Schneider, a German essayist and novelist. "Here is somebody who lies about something that leads to a war where tens of thousands of people's lives are involved."

Nor are Europeans thrilled about the American values they feel Mr. Bush has encouraged, in which anti-Europeanism is applauded as a virtue, people boycott French wine in protest at the French position on Iraq and Senator Kerry is ridiculed by the Republicans for being able to speak French.

"The idea that you have a leader of the U.S. who's not interested in listening to his allies is important in the way people perceive Bush," Guillaume Parmentier, director of the French Center on the United States at the French Institute of Foreign Relations, said in an interview. "He has a very simplistic view of the world, which we find difficult to accept. In fact, that we find dangerous."

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.

JB

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.

The Red Cross repeatedly warned the White House, the Pentagon and the State Department in confidential reports and closed-door meetings since last spring that U.S. troops were abusing inmates at various military-run prisons in Iraq.

The now-infamous photos of U.S. military police abusing prisoners at Abu Ghraib were taken in November, and a classified report of the Pentagon investigation largely focused on incidents at Abu Ghraib beginning in October.

"The elements we found were tantamount to torture," Pierre Kraehenbuehl, operations director for the Swiss-based International Committee of the Red Cross, told reporters in Geneva. "They were clearly incidents of degrading and inhuman treatment."

He said the ICRC investigations showed "a pattern, a broad system" rather than "isolated acts of individual members of the coalition forces."

Kraehenbuehl said the "concerns … were regularly brought to the attention" of the U.S.-led coalition "throughout 2003."

He said the ICRC communicated "orally and in writing" with U.S. officials. The ICRC also had expressed concern to British authorities about inmates in British detention camps in Iraq, Kraehenbuehl said.

U.S. officials said the ICRC reports said that Iraqi prisoners in some cases were severely beaten by guards, some inmates were kept naked in dark concrete cells for days, and coalition forces had shot and killed at least seven inmates during prison disturbances.

Red Cross teams inspected 16 coalition-run prisons and interviewed tens of thousands of inmates between March and November last year, including a surprise inspection of Abu Ghraib in October. After the U.S. military replied Dec. 24 to its report, the ICRC returned to Abu Ghraib for four days in early January and again in March.

After each visit, the teams filed confidential reports of their observations and recommendations to prison commanders in Iraq, as well as to Bush administration officials in Washington. ICRC officials held separate meetings in February with L. Paul Bremer III, head of the occupation, and Army Lt. Gen. Ricardo S. Sanchez, commander of U.S. forces in Iraq.

"We had regular meetings with the Pentagon, the State Department and the White House to discuss these prison conditions as well as other issues," said Christophe Girod, the chief ICRC delegate in Washington. "It was part of our dialogue."

Under the Geneva Conventions, the ICRC monitors treatment of prisoners and detainees in war zones. The organization delivers its confidential reports directly to governments that run the prisons, however, and they rarely reach the public. ICRC officials said they were unhappy that details of their reports had leaked to the press.

Girod confirmed details cited in a Wall Street Journal report Friday that described a confidential 24- page summary of last year's prison visits.

The summary report, which was written in January and submitted to U.S. authorities in February, concluded that abuse of prisoners was widespread in Iraq.

JB

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.

JB

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.

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.

Mr. Moore's agent, Ari Emanuel, said that Michael D. Eisner, Disney's chief executive, asked him last spring to pull out of the deal with Miramax. Mr. Emanuel said Mr. Eisner expressed concern that it would endanger tax breaks Disney receives for its theme park, hotels and other ventures in Florida, where Mr. Bush's brother, Jeb, is governor.

"Michael Eisner asked me not to sell this movie to Harvey Weinstein; that doesn't mean I listened to him," Mr. Emanuel said. "He definitely indicated there were tax incentives he was getting for the Disney corporation and that's why he didn't want me to sell it to Miramax. He didn't want a Disney company involved."

Disney executives deny that accusation, though they said their displeasure over the deal was made clear to Miramax and Mr. Emanuel.

A senior Disney executive elaborated that the company has the right to quash Miramax's distribution of films if it deems their distribution to be against the interests of the company. Mr. Moore's film, the executive said, is deemed to be against Disney's interests not because of the company's business dealings with the government but because Disney caters to families of all political stripes and believes Mr. Moore's film could alienate many.

"It's not in the interest of any major corporation to be dragged into a highly charged partisan political battle," this executive said. (italics added).

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.

JB

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.

JB

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.

"My kids kept recognizing flaws in the presentation," said Mrs. Passmore, of Jackson, Ala. "You know — the whole `millions of years ago dinosaurs ruled the earth' thing."

So this week, the Passmores sought out a lower-profile Florida attraction: Dinosaur Adventure Land, a creationist theme park and museum here that beckons children to "find out the truth about dinosaurs" with games that roll science and religion into one big funfest with the message that Genesis, not science, tells the real story of the creation.

Kent Hovind, the minister who opened the park in 2001, said his aim was to spread the message of creationism through a fixture of mainstream America — the theme park — instead of pleading its case at academic conferences and in courtrooms.

Mr. Hovind, a former public school science teacher with his own ministry, Creation Science Evangelism, and a hectic lecture schedule, said he had opened Dinosaur Adventure Land to counter all the science centers and natural history museums that explain the evolution of life with Darwinian theory. There are dinosaur bone replicas, with accompanying explanations that God made dinosaurs on Day 6 of the creation as described in Genesis, 6,000 years ago. Among the products the park gift shop peddles are T-shirts with a small fish labeled "Darwin" getting gobbled by a bigger fish labeled "Truth."

"There are a lot of creationists that are really smart and debate the intellectuals, but the kids are bored after five minutes," said Mr. Hovind, who looks boyish at 51 and talks fast. "You're missing 98 percent of the population if you only go the intellectual route."