A Transformative Election Without A Transformative Candidate

JB

I caught the debates tonight. Both candidates acquitted themselves well, but in the current political context this is greatly to the advantage of Bush.

Political scientist Walter Dean Burnham famously argued that American democracy features pivotal and transformative elections, (which Burnham called "critical elections") during which the parties realign, new political collations form, and one party begins to dominate. These elections occur roughly every 36 years; examples are the elections of 1824, 1860, 1896, 1932, and 1968. The last major transformative election of this sort-- i.e., one that produced a major realignment-- occurred in 1968, as the New Deal coalition began dissolved and the South moved from the Democratic to the Republican parties. The 1980 and 1994 elections confirmed and solidified this change. Thirty-six years from 1968 is 2004. Thus, the time is ripe for another transformative election, one in which, one might think, the Democrats would form a new winning coalition.

The problem is that the current Democratic presidential candidate, John Kerry, does not appear to be a transformative candidate. He does not offer a message of transformation. Rather, he offers a message of greater competence and better judgment in prosecuting the war on terror. 2004 will not be a transformative election unless the people of the United States see a clear choice between the status quo and a new approach, and believe that by choosing one candidate they are making a decisive change in the direction of the country. Although it is certainly possible that Kerry might produce such a change, there are few signs of this in his campaign or in the way he delivers his message. This is probably his greatest weakness as a candidate. He is offering competence and judgment when he should be offering a decisively different vision for leadership. He should be campaigning for a decisive rejection of the politics of the past and offer a bold vision for the future. This, so far, he has failed to do.

There are two possible explanations of the current situation. One is that the country is indeed ripe for a transformative election, but it will not occur until 2008, when, tried of eight years of incompetence and kleptocracy by George W. Bush, the people of the United States will decisively reject his policies. The other, and far more troubling possibility from my perspective, is that 2004 is indeed a transformative election, but the transformative candidate is George W. Bush, who is ushering in a long-term Republican majority.

If the second scenario holds, the best analogy would be to the 1896 election, in which the Republicans forged a new winning coalition that replaced the configuration that emerged directly after the Civil War. The Republicans dominated the Presidency from 1860 to 1896, and they dominated the Presidency from 1896 to 1932, but the Republican Party had changed greatly in the interim.

I hope that the second scenario does not come to pass. If it does, I fear greatly for the future of my country, for the new Republican party that Bush appears to symbolize is a toxic combination of plutocracy, intolerance, and foreign misadventure.

Posted 11:10 PM by JB [link] (27) comments

Ashcroft: We Need More Death

JB

Attorney General Ashcroft is unhappy that juries around the country seem less and less interested in killing people, the Los Angeles Times reports:

Shortly after arriving at the Justice Department nearly four years ago, Atty. Gen. John Ashcroft was faced with a new internal study that raised serious questions about the application of the federal death penalty.

A small number of federal districts, including pockets of Texas and Virginia, were accounting for the bulk of death cases. Experts decried the geographical disparities.

For Ashcroft, an ardent supporter of capital punishment, the solution was to seek the death penalty more often and more widely.

Since then, he has pushed federal prosecutors around the country — often over their objections — to be more aggressive in identifying prosecutions that could qualify as federal capital cases. Much of that effort has been in states that have banned or rarely impose capital punishment.

But Ashcroft's quiet campaign, which has been overshadowed by his prosecution of terrorism cases, has made few inroads.

With public support for the death penalty in decline, jurors have rebuffed calls for the death penalty in 23 of the 34 federal capital cases tried since 2001, according to the Federal Death Penalty Resource Counsel Project, a court- funded group that assists defense lawyers in capital cases.

Whether one supports or opposes the ability of the state to sentence people to death, one should applaud rather than decry the fact that juries in this country seem less willing to impose it. That trend has been produced by the individual decisions of members of the local communities all over the United States, who are supposed to represent, however imperfectly, the conscience of their communities. Even if one grants, as one must, that prosecutors and existing legal precedents play a role in the decrease in jury sentences of death, the trend is clear.

Juries all over the country are telling the courts that death is a matter of last resort, to be used sparingly, and only in the most serious cases. In many places they do not want it to be used at all. This is not timidity. It is not lack of empathy for victims. It is not insufficient concern with justice. It is civilization. By comparison with these juries all around the country, who regard the taking of a criminal defendant's life with supreme seriousness, Attorney General Ashcroft seems a savage, bloodthirsty brute.

Why is such a man the nation's chief law enforcement officer?

Posted 9:11 AM by JB [link] (34) comments

Remember the Election of 2000

JB

It seems that the ghost of Bush v. Gore is rising again to haunt American democracy. A recent Vanity Fair article has sparked renewed attention about the 2000 Election, and about the badly reasoned Bush v. Gore opinion. Jeff Rosen has pointed out in the New Republic that the political parties are gearing up for fights over recounts along the example of the 2000 election, making use of Bush v. Gore as a precedent. And there is the possibility that there will be a constitutional challenge to Colorado's referendum proposal to split the state's electoral votes by percentage of the popular vote received, based on arguments first offered in Bush v. Gore.

After the last election I did a painstaking legal analysis of both Bush v. Gore and the work of the Florida Supreme Court that led to it. You can find that article here. I concluded that, despite the many criticisms the Florida Supreme Court has received, it didn't do all that bad a job, given the statute it had to work with, and the most controversial judgments it did make (for example, changing the date of certification) weren't essential to the ultimate outcome. When you look at the statutory framework carefully, you discover that, all in all, the Florida Supreme Court has gotten a bum rap. On the other hand, the Bush v. Gore decision-- especially the part concerning the remedy-- was really quite shoddy. Several academics have offered articles defending the decision, but you really have to rewrite the opinion to do that. The decision that the Court actually produced doesn't make that much sense, and it strongly suggests (perish the thought) that ideological considerations may have (consciously or unconsciously) influenced the Justices.

But the important point to remember, as we head toward another election, is that neither the Florida Supreme Court nor the U.S. Supreme Court would have been involved at all, but for another very serious violation of law. Operatives of the Florida Republican Party violated the federal Voting Rights Act by keeping a sizeable number of blacks from voting using inaccurate lists of disqualified felons. For the details, see the discussion in the first pages of this article, written in 2001.

People go on and on about the butterfly ballot, and Bush v. Gore, but the real tragedy of the 2000 election was the calculated and ultimately successful disenfranchisement of African-American voters. This is the real injury to democracy that occurred in 2000, and there is every sign that supporters of the current Administration are up to their old tricks again, not only in Florida, but in other states as well.

I consider myself second to no one in my disdain for the way the Supreme Court conducted itself in Bush v. Gore. But in the larger scheme of things, Bush v. Gore was small potatoes. The real injury to democracy in 2000, and the real threat today, is the theft of the franchise by political operatives who will stop at nothing to keep their party in power.

Posted 10:22 AM by JB [link] (21) comments

"Plagiarism" correction and elaboration

Mark Tushnet

It's been pointed out to me that my assertion that I hadn't read Balkin's book was incorrect -- or, at least, that if I hadn't read it I shouldn't have written a blurb for the jacket! Indeed, I did read the book in manuscript for purposes of writing a blurb (although it remains true that I haven't read "the book" understood to refer to the thing between hard covers). [I don't blurb books that I haven't read at least in manuscript.]

This, though, actually supports a couple of the points I made. (1) I simply forgot that I had read the manuscript a couple of years ago. Were I still working on something about Brown v. Board of Education, and had one of the book's chapters put something I wanted to say in an interesting way, it's entirely possible that I would generate the same phrasing, thinking it was my own. (2) The book contains a narrative of the case's background. There are a limited number of events to deal with, they happened in the order they did, and there are therefore a limited number of ways to provide the narrative. Similarities at least in presentation are inevitable. Combined with (1), one might even find things that look like "copying" even though there was no conscious appropriation of someone else's work.
Posted 7:24 PM by Mark Tushnet [link] (19) comments

"Plagiarism" by Legal Academics

Mark Tushnet

The recent flap regarding Charles Ogletree's work and some follow-ups going after, among others, Laurence Tribe prompt me to recount some incidents in my scholarly life. [Disclosure: I read Professor Ogletree's book in manuscript and did not catch the material drawn from Jack Balkin -- I hope because (my bad) I hadn't read Balkin's book.]

These thoughts are mostly about using the work-product of research assistants. I don't use my research assistants "very well," because my experience is that I know what I need better than they do, even when I am careful about giving them instructions, and I can locate it more quickly than they can. In doing work in archives, I can tell what's important to me far better than they can. Still, sometimes I do ask them to produce memoranda that I think will be helpful to me.

Once I had a very good research assistant who I asked to summarize the interpretations scholars had offered of the discussions within the Supreme Court prior to Brown v. Board of Education, thinking that I would re-work it into a "literature review" section of the article I was writing. Her memorandum was so good -- and, because I knew the literature, I knew the memo was quite accurate -- that I simply incorporated the memorandum into the article, which was published as by Mark Tushnet with Katya Lezin.

More recently I've asked some research assistants to develop "case histories" of important recent Supreme Court cases including Boerne v. Flores and Atwater v. Lago Vista. Some of these case histories have been done very well. The research assistants wrote up the case histories, largely from newspaper accounts, and supplied me with the background material they relied on, such as the articles or transcripts of radio interviews. I read the material and re-worked the case histories I had been given, sometimes changing the order of the presentation, sometimes supplementing some of the quotations the RA had picked out of the newspaper articles. But, when the case history was done well, the final product was not that different from what the research assistant had given me initially. [One question is whether I did enough with the case histories that the published product could fairly be regarded as "mine." Another is whether, when I did change the presentation, the marginal improvements, if any, were worth the effort.]

Here there are questions of attribution. The most interesting arise in connection with a publication format that was not receptive to law-review style footnoting, and did not give me a chance to produce an "acknowledgements" page. For the case histories in that format, I have a long endnote listing the newspaper articles, etc., from which the account is drawn. I remain a bit nervous about not including an acknowledgement of the research assistant in each of those endnotes, at least where my judgment is that the case history is at least as much his as mine.

The case histories raise an additional issue. Once I received a manuscript review from a university press in which the reviewer criticized me for having drawn material from her book without attribution. As it happened, I hadn't even read her book. The issue arose because she and I both dealt with the drafting history of some Supreme Court opinions. There's a limited supply of sources for this, the sequence of events is straight-forward, and anyone with some judgment will know which sentences and phrases are worth quoting from the sources. So, what happened was that my account did indeed read quite like hers even though they were independently written. (Anybody here remember Arnstein v. Porter?) That is, the similarity resulted from the constraints of the sources and the form in which the material was to be published. [In the end, I inserted citations of the form "see also" to her work.]

A final, slightly different problem, not about "copying" but about "sourcing." When you write a long-ish book over a several-year period of research and writing (and don't have law review editors to check your footnotes), the probability approaches 1 that either or both of these problems arise: (a) You quote something and include a note identifying the source, and the identification is inaccurate [for material from archives, you've miscopied the box number in which the document was located; for material from newspapers, you've miscopied the date of publication; and the like), and (b) You read something early in your research that makes a point in an interesting way, but you're not ready to write the material up then; when you are, you write something that's strikingly like what you read a year or two earlier and think that you've come up with a nice way of making the point, not realizing that you are unconsciously "copying" something someone else had written. (Even checking the footnotes wouldn't catch the second of these.) I am quite confident that I've done at least the first of these, and probably the second -- although in the nature of things I don't know where I've done them. But, what my knowledge has done is make me a bit more tolerant than others are about at least minor failings in the transcription-attribution-writing process.

None of these comments are directly responsive to the particular questions that have recently been raised about others' work, but I thought it might be helpful to make them available in the blogosphere.
Posted 1:57 PM by Mark Tushnet [link] (35) comments

The Pledge Protection Act of 2004

JB

The House of Representatives has passed the Pledge Protection Act of 2004. (from NYT). The act strips the federal courts of the ability to hear constitutional challenges to the governmentally mandated use of the words "under God" in the federal Pledge of Allegiance. The Senate has not acted on the bill, and probably will not do so for some time.

The Pledge Protection Act of 2004 is a shameless act of political pandering. It is also unconstitutional. The first statement needs no explanation. Explaining the second is the purpose of this post.

The bill provides:

`Sec. 1632. Limitation on jurisdiction

`No court created by Act of Congress shall have any jurisdiction , and the Supreme Court shall have no appellate jurisdiction , to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance , as defined in section 4 of title 4, or its recitation.'.

Representative F. James Sensenbrenner, Republican of Wisconsin and chairman of the House Judiciary Committee, explained that the purpose of the bill was to allow individual states to decide whether or not to use the phrase "under God" in recitations of the Pledge of Allegiance: "A federal judge sitting hundreds of miles away from your state will not be able to rewrite your state's pledge policy."

The authors of this statute must have assumed that, following the Newdow decision, it was too risky to allow either the lower federal courts or the Supreme Court pass on the question whether the use of the term "Under God" in the pledge of Allegiance is unconstitutional under the federal Establishment Clause. By contrast, they believed that only a few state courts would interpret the Federal Constitution in this way, and those that did could not impose their decision on the other states. As Sensenbrenner explained, the bill would allow each state to determine its policy with respect to the Pledge of Allegiance.

This, in a nutshell, captures the basic problem with jurisdiction stripping statutes of this kind, particularly when they affect constitutional questions. There are many legitimate reasons for Congress to limit the jurisdiction of the federal courts. But one reason that is not legitimate is the one that Sensenbrenner offered-- to ensure that each state gets to decide for itself what is consistent with the Federal Constitution and what is not. Legislation passed for this purpose violates a key structural principle, because it strips the Supreme Court of appellate jurisdiction in these cases.

The Supreme Court plays an important structural role in our constitutional system. It provides the possibility of uniformity in the interpretation of federal law, and particularly the interpretation of federal Constitution. To play that role it does not have to enforce uniformity immediately whenever a conflict arises. Indeed, in some situations, imposing immediate uniformity may not be desirable. First, it may be a good idea if the Court lets issues percolate for some time in the lower courts and the state courts. Second, "protestant" constitutional interpretations from various courts, legislators, and members of social movements, play an important role in the formation of constitutional understandings and the shape of constitutional doctrine over time. The circulation of multiple constitutional interpretations in the public sphere is part of how the system works. Nevertheless, the Supreme Court (or a federal court equivalent) has to be available, in the last instance, to harmonize conflicting decisions by state and lower federal courts about questions of federal law and particularly federal constitutional law. Although different interpretations about a particular question might circulate for some time, the Supreme Court would always be available to provide a single judicial construction when necessary.

What the House of Representatives proposed would not serve the structural purposes mentioned above, because the Supreme Court would never play its assigned role of harmonization. Instead, the law of the Establishment Clause would be forever fragmented between the decisions of various state courts.

Oliver Wendell Holmes, Jr., once said "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states." He meant that the Supreme Court plays an important role in harmonizing conflicting constitutional interpretations about the constitutionality of state statutes. This point applies equally well, I think, to the case of jurisdiction stripping in cases involving the construction of federal law.

In the 1816 case of Martin v. Hunter's Lessee, Justice Story took a similar view. He pointed to the

necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution. Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself: If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different States, and might perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable. . . .

My colleague Akhil Amar has argued that Story's structural argument has a textual basis in Article III of the U.S. Constitution. Amar argues that Congress must preserve federal court jurisdiction for federal questions, including questions of federal constitutional law, as well as admiralty cases and cases involving ambassadors (which are within the Supreme Court's original jurisdiction). In all other cases, for example, diversity cases (those involving suits between citizens of different states), Congress may limit the federal courts' jurisdiction. Amar points to the fact that Article III says that the judicial power "shall extend to all cases" in the first group-- federal question, admirality, and cases involving ambassadors, but does not use the same phrase in reference to the second set of cases. He calls this the "two-tiered" theory of federal jurisdiction.

Amar summarizes his argument in the following five propositions:

First, Article III vests the judicial power of the United States in the federal judiciary, and not in state courts, or in Congress. Second, the federal judiciary must include one Supreme Court; other Article III courts may -- but need not -- be created by Congress. Third, the judicial power of the United States must, as an absolute minimum, comprehend the subject matter jurisdiction to decide finally all cases involving federal questions, admiralty, or public ambassadors. Fourth, the judicial power may -- but need not -- extend to cases in the six other, party-defined, jurisdictional categories. The power to decide which of these party-defined cases shall be heard in Article III courts is given to Congress by virtue of its powers to create and regulate the jurisdiction of lower federal courts, to make exceptions to the Supreme Court's appellate jurisdiction, and to enact all laws necessary and proper for putting the judicial power into effect. Fifth, Congress's exceptions power also includes the power to shift final resolution of any cases within the Supreme Court's appellate jurisdiction to any other Article III court that Congress may create. The corollary of the power is that if Congress chooses to make exceptions to the Supreme Court's appellate jurisdiction in admiralty or federal question cases, it must create an inferior federal court with jurisdiction to hear such excepted cases at trial or on appeal; to do otherwise would be to violate the commands that the judicial power "shall be vested" in the federal judiciary, and "shall extend to all" federal question and admiralty cases.

Whether or not the use of the words "shall extend to all" in Article III is by itself decisive, the structural argument that motivates Amar's textual argument is quite powerful; it is what makes that particular reading of the text persuasive. At the very least, if Congress's purpose in jurisdiction stripping legislation is to free state courts from harmonization of federal law by the Supreme Court, this violates the structural purposes of Article III.

Posted 1:00 AM by JB [link] (22) comments

Republican Judicial Activism

Mark Graber

Just got my copy of Thomas M. Keck, The Most Activist Supreme Court in History (University of Chicago Press). Bush v. Gore was not an aberration. The Rehnquist Court has declared far more federal laws unconstitutional than any other tribunal in American history, with Scalia and Thomas being the leading culprits. Rehnquist Court justices are also competitive with the Warren Court when declaring state laws unconstitutional. The federal and state practices declared unconstitutional include campaign finance reform, cigarette and liquor advertising, federal laws banning rape, the Religious Freedom Restoration Act, sections of the Americans with Disabilities Act (Scalia and Thomas want to get rid of a bigger chunk), affirmative action, laws protecting the environment, laws banning discrimination against homosexuals, and laws preventing the establishment of majority black Congressional districts. Professor Keck does a nice job documenting all of this, demonstrating how contemporary judicial activism is rooted in opposition to liberalism, not in any sense of judicial restraint.

What is wrong with this picture. We might note that the Rehnquist Court consistently uses judicial power to support the "haves" of American society. The Warren Court decides Clarence Gideon has a right to an attorney. The Rehnquist Court decides that states cannot prevent Philip Morris from appealing to children. The Warren Court decides the federal government can outlaw literacy tests. The Rehnquist Court declares that Congress cannot enforce the equal protection clause by making violence against women a federal crime.

From another perspective, little is wrong with this picture. Many of us believe that an incumbent administration is entitled to appoint justices committed to pursuing its constitutional vision. You lose too many elections. You lose the court. My guys should be free to staff the court with progressive justices. I have no problem with Clinton (and Kerry) appointing justices who will deny state power to criminalize abortion and sodomy. You win enough elections. You get to control the judiciary. This is not crass partisanship. While I believe that Bush and company believe fundamental rights are matters to be politically trifled with, I have many intelligent friends who will articulately defend Rehnquist Court policymaking. Sincerity is not the issue.

All I want is that defense to be public. As Keck suggests, a big difference exists between Kerry and Bush. Kerry is honest about his judicial commitments and constitutional vision. The Democratic party is committed to keeping abortion legal, to allowing some forms of affirmative action, to not punishing homosexuality. We have a good idea who Kerry justices will be. Breyer and Ginsburg clones. You agree or disagree. What are the Republican commitments? Will Bush go for Scalia, Jr., or O/Connor, Jr. No one knows and they are not saying. The President raises the banner of traditional morality when talking to evangelicals, the Vice President tells suburban Republicans the administration is really committed to liberty. In New York, Republicans sound like Democrats. In West Virginia, they sound like the Spanish Inquisition. President Bush and Justice Scalia give speech and speech decrying judicial activism. They never talk about their support for decisions declaring laws unconstitutional. No one asks the President why he so admires the two greatest judicial activists in American history.

If we are to have conservative judicial activism, it should be subject to public debate. Kerry is consistently questioned about his support for judicial decisions keeping abortion legal. Republicans ought to be asked about their constitutional commitments. The President needs to explain why, if we need a constitutional amendment when one state court legalizes gay marriage, no response of any sort is appropriate when the Supreme Court rules that the federal government cannot punish rape? Does his consistent praise of Justices Thomas and Scalia mean that President Bush will use his influence over the judiciary to ensure that the federal government has no power under the Fourteenth Amendment to prevent violence against women?

Posted 1:27 PM by Mark Graber [link] (17) comments

An Admission of Failure

JB

The Justice Department has agreed to release Yaser Hamdi, whom it held for more than two years in solitary confinement, to return to Saudi Arabia. Under the terms of the agreement, Hamdi will surrender his U.S. citizenship and will agree to report on any terrorist activities he discovers to the local authorities.

This is little more than a face saving maneuver. For two years the Justice Department insisted that this man was dangerous and could not be released or he would once again join the forces of terrorism against the United States. It refused to allow Hamdi a hearing to contest its assertions. It held him in solitary confinement and refused him access to a lawyer until very recently, repeatedly insisting that any communication with the man would jeopardize national security. When the Supreme Court ordered a hearing, the Justice Department, rather than allowing its assertions to be tested before an impartial arbiter, chose to save embarrassment and released Hamdi. It now appears that Hamdi posed no threat, just like the 5000 other persons John Ashcroft detained in the wake of 9/11. Ashcroft thumped his chest and insisted that he was keeping our country safe. What he was really doing, it turns out, was engaging in demagoguery.

Hamdi's arrest and detention was not a victory in the War on Terror, as the Bush Administration insisted. Far from it: The Bush Administration mangled our Constitution and defied the rule of law. This was an embarrassment for our country. It was a defeat for our valued way of life. The Bush Administration has loudly proclaimed that giving it unchecked authority to arrest and detain is the surest way to victory in the War on Terror. We may say of the government's policies what Justice Hugo Black once said of another dubious denial of civil liberties: "Another such victory and I am undone."

Posted 10:10 AM by JB [link] (20) comments

The Pride of our Nation

Mark Graber

Some excerts from Seymour Hirsch's new book, Chain of Command

But the interrogations at Guantánamo were a bust. Very little useful intelligence had been gathered, while prisoners from around the world continued to flow into the base, and the facility constantly expanded. The CIA analyst had been sent there to find out what was going wrong. He was fluent in Arabic and familiar with the Islamic world. He was held in high respect within the agency, and was capable of reporting directly, if he chose, to George Tenet, the CIA director. The analyst did more than just visit and inspect. He interviewed at least 30 prisoners to find out who they were and how they ended up in Guantánamo. Some of his findings, he later confided to a former CIA colleague, were devastating.

"He came back convinced that we were committing war crimes in Guantánamo," the colleague told me. "Based on his sample, more than half the people there didn't belong there. He found people lying in their own faeces," including two captives, perhaps in their 80s, who were clearly suffering from dementia. "He thought what was going on was an outrage," the CIA colleague added. There was no rational system for determining who was important.

"I was told," a senior intelligence official recalled, "that the military guards were slapping prisoners, stripping them, pouring cold water over them, and making them stand until they got hypothermia. The agents were outraged. It was wrong and also dysfunctional." The agents put their specific complaints in writing, the official told me, and they were relayed, in emails and phone calls, to officials at the department of defence, including William J Haynes II, the general counsel of the Pentagon. As far as day-to-day life for prisoners at Guantánamo was concerned, nothing came of it.

There was, obviously, a difference between the reality of prison life in Guantánamo and how it was depicted to the public in carefully stage-managed news conferences and statements released by the administration. American prison authorities have repeatedly assured the press and the public, for example, that the al-Qaida and Taliban detainees were provided with a minimum of three hours of recreation every week. For the tough cases, however, according to a Pentagon adviser familiar with detainee conditions in mid-2002, at recreation time some prisoners would be strapped into heavy jackets, similar to straitjackets, with their arms locked behind them and their legs straddled by straps. Goggles were placed over their eyes, and their heads were covered with a hood. The prisoner was then led at midday into what looked like a narrow fenced-in dog run - the adviser told me that there were photographs of the procedure - and given his hour of recreation. The restraints forced him to move, if he chose to move, on his knees, bent over at a 45-degree angle. Most prisoners just sat and suffered in the heat.
One of the marines assigned to guard duty at Guantánamo in 2003, who has since left the military, told me, after being promised anonymity, that he and his enlisted colleagues at the base were encouraged by their squad leaders to "give the prisoners a visit" once or twice a month, when there were no television crews, journalists, or other outside visitors at the prison.

Some questions.

Do you believe this is more true than false?

Do you believe President Bush and his cabinet members are aware of what is generally taking place?

Is this what Americans stand for or should Americans stand for this?

Posted 9:32 PM by Mark Graber [link] (16) comments

How To Get Tough With Civil Liberties. Oops, I Meant Terrorists

JB

David Cole reports that although Attorney General John Ashcroft has detained over 5000 persons since 9/11 as suspected terrorists, he has not obtained a single conviction. (via Talkleft):

On Sept. 2 a federal judge in Detroit threw out the only jury conviction the Justice Department has obtained on a terrorism charge since 9/11. In October 2001, shortly after the men were initially arrested, Attorney General John Ashcroft heralded the case in a national press conference as evidence of the success of his anti-terror campaign. The indictment alleged that the defendants were associated with al Qaeda and planning terrorist attacks. But Ashcroft held no news conference in September when the case was dismissed, nor did he offer any apologies to the defendants who had spent nearly three years in jail. That wouldn't be good for his boss' campaign, which rests on the "war on terrorism." Here, as in Iraq, Bush's war is not going as well as he pretends.

The Detroit case was extremely weak from the outset. The government could never specify exactly what terrorist activity was allegedly being planned and never offered any evidence linking the defendants to al Qaeda. Its case consisted almost entirely of a pair of sketches and a videotape, described by an FBI agent as "casing materials" for a terrorist plot, and the testimony of a witness of highly dubious reliability seeking a generous plea deal. It now turns out that the prosecution failed to disclose to the defense evidence that other government experts did not consider the sketches and videotape to be terrorist casing materials at all and that the government's key witness had admitted to lying.

Until that reversal, the Detroit case had marked the only terrorist conviction obtained from the Justice Department's detention of more than 5,000 foreign nationals in anti-terrorism sweeps since 9/11. So Ashcroft's record is 0 for 5,000. When the attorney general was locking these men up in the immediate wake of the attacks, he held almost daily press conferences to announce how many "suspected terrorists" had been detained. No press conference has been forthcoming to announce that exactly none of them have turned out to be actual terrorists.

Posted 8:29 AM by JB [link] (16) comments

Fooling Enough of the People Enough of the Time

JB

President Bush has a lead, and there are less than six weeks left in the campaign. But the situation in Iraq is falling apart. What's an incumbent President to do?

Lie about it. Tell everyone we are on the road to democracy, and that your critics are not interested in making America safe.

It doesn't matter whether you are blowing smoke. Most Americans don't know what is going on in Iraq, and they believe exactly what the media tell them. The media is too busy worrying about fonts on selectric typewriters and other trivialities, which have sucked all the air out of public discourse. Nobody's looking. Nobody's going to hold you accountable. Just Lie.

Repeat a few simple phrases that suggest that you are confident that the country is on the right track, and you can coast to victory. It doesn't matter if you can't offer any persuasive details to justify your assertions. In today's world, people like simple statements and simple answers. They like confidence. They want to be reassured.

Be Relaxed. Be Confident. Say reassuring things. It doesn't really matter if they are true. People don't know and don't care about the truth. They can't handle the truth.

Scare people and then tell them everything will be all right if they stick with the devil they know. Do this repeatedly. Scare and reassure. Scare and reassure. Tell people they are in danger from forces they can't control, and that you will keep them safe. Tell people that everying is going fine and that you will stay the course. You don't have to say anything substantive. In fact, it's best if you don't. You are manipulating people's emotions, not appealing to their intelligence.

Just keep it up for six more weeks, and then you can do anything you want. You'll win, and the mass media will fall all over themselves saying what a great leader you are.

The Democrats will wonder why they picked such a bad candidate for President, and the self-immolation of the Democratic Party will begin.

Posted 7:21 AM by JB [link] (19) comments

The Separate Harms of Reckless Sex

Ian Ayres

Even though a new Illustrated report casts Kobe Bryant in an unsavory light, the collapse of the Bryant prosecution is likely to be the first step toward redemption of the star’s reputation. To many, he is guilty of nothing worse than adultery. His wife has forgiven him. Expect Bryant Nike commercial before the end of the year.

But regardless of whether the sex was consensual or not, Bryant did something dangerous in that hotel room. He had unprotected sex with someone less than 2 hours after they met. Magic Johnson’s earlier example teaches us that reckless sex can endanger the lives of literally dozens of others. Reckless sex deserves separate censure.

This kind of behavior is not the norm. Most people use condoms for one-night stands. According to two different national studies, the majority of adults report using condoms in casual, or non-ongoing, relationships. Some of these people use condoms to prevent disease, some to prevent pregnancy.

But Bryant was not concerned enough about these risks to use a condom. At a minimum, he was reckless in ways that can cause serious harms.

The lion’s share of sexually transmitted infections are caused by first-time sexual encounters. Almost all of these diseases could be prevented with condom use.

Unprotected first-encounters are also correlated with coercion. Few men careful enough to use a condom are reckless enough to rape. The same recklessness that causes men to overlook the risk of disease and pregnancy can also lead them to overlook whether the woman has truly consented.

When rape happens early in a relationship, male misperception is a major cause. Indeed, in a statement yesterday, Bryant has explicitly conceded just this kind of misperception. After unconditionally apologizing “for [his] behavior that night,” Bryant admitted: “Although I truly believe [sic] this encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did. After months of reviewing discovery, listening to her attorney, and even her testimony in person, I now understand how she feels that she did not consent to this encounter.”

The dismissal of Kobe Bryant’s case highlights the need for a new kind of criminal law that would both promote public health and help reduce the tragedy of sexual coercion.

A new crime of “reckless sexual conduct” should target unprotected first encounters. To convict, prosecutors would need to show beyond a reasonable doubt (i) a first-time sexual encounter between the defendant and the victim; and (ii) no use of a condom. The defendant would then have the opportunity to prove, by a preponderance of the evidence, that the victim consented to the unprotected sex.

Giving men a new incentive to wear a condom in first-time sexual encounters should significantly reduce both the risk of sexually transmitted infections and the tragic lack of communication that often gives rise to the illusion of consent. The very act of stopping to put on a condom should increase deliberation and communication. The more deliberation and communication, the lesser the likelihood of acquaintance rape. If Bryant had paused to use a condom, the tragedy of this event might never have occurred.

The crime of reckless sexual assault would also be a powerful prosecutorial tool for the thousands of acquaintance rape cases that are simply not winnable under current law. It represents a way to partially overcome the “he said/she said” dilemma. For some, reasonable doubts remain whether William Kennedy Smith or Mike Tyson raped, but there is no doubt that they engaged in unprotected, first-encounter sex.

Proof of this type of reckless conduct should be sufficient to shift the burden to men to prove consent. The message to men is not necessarily to forego one-night stands, but rather to use a condom or communicate enough so that you can trust your partner.

The new crime of reckless sex would not replace current rape laws and it would not immunize men who rape with condoms from prosecution under existing law. This supplementary crime need not be punished that severely. But, like DUI laws, its very existence would send a clear message that society can punish reckless behavior because it is physically and emotionally damaging, even if it is not motivated by animus..

We are all hurt by a world in which sex is reduced to a base, non-communicative physical act. People on the right and the left side of the political spectrum can agree that extremely casual, unprotected sex does little good for anyone and has the potential to do much harm.

A crime of reckless sex, by encouraging men to protect their sexual partners from disease and pregnancy, can simultaneously encourage men to deliberate and communicate in a way that promotes public health and greatly reduces unnecessary and damaging sexual violence.

We have drafted a model statute (just 200 words) expressly codifying this new crime. In a forthcoming law review article in The University of Chicago Law Review, we provide a more in depth defense of the statute. You can download a prepublication copy here.

Posted 4:03 PM by Ian Ayres [link] (68) comments

Resignable Offenses

Mark Graber

During the Clinton impeachment imbroglio, I suggested Americans needed to think about constitutionally resignable offensive. European politicians who screw up resign. Americans might benefit by following their example. Lying about sex, even under oath, may not be a high crime or misdemeanor under the constitution, but Clinton’s behavior was sufficiently disgraceful to warrant resignation. Government officials, in this view, have a legally unenforceable constitutional obligation to resign under two conditions. First, they are responsible for a clear policy disaster that casts doubt on their professional competence and judgment. Second, they engage in misbehavior that casts doubts on their professional integrity and capacity to achieve their policy aims. Getting votes for more progressive policies is difficult enough without having to support candidates with stupid extraneous baggage.

Members of the Bush Administration have clearly committed constitutionally resignable offenses. The prison abuse scandal is an obvious example. The confident claim that Iraq had weapons of mass destruction is another. The way one takes responsibility for these fiascos is not by blithely declaring, "my bad," but by resigning. That no member of the Bush cabinet has resigned indicates they do not regard the prison abuse scandal or the failure of find weapons of mass destruction as serious policy mistakes.

Dan Rather should resign for the same reasons. The evidence seems overwhelming that the Killian memos were sufficiently dubious as to make their publication a gross abuse of professional judgment. Doing so has done great damage to the credibility of CBS and distracted political attention from what a responsible network ought to consider the main issues of the day. Rather’s actions were unprofessional, they have ruined his professional reputation, and weakened causes he may have thought he was promoting. The decent thing to do is leave.

Rathergate is also an episode in stunning political stupidity. Suppose I forge a memo in which Bush’s high school teacher complains that George doesn’t pay much attention to British poetry. What’s the point? Does anyone out there need convincing that our president as a lad was probably not a keen student of British poetry? Or that he probably took advantage of his pull during Vietnam? Does either have any relevance to public issues? Maybe if Rather goes, someone at CBS might actually investigate administrative responsibility for the prison abuse scandal, or allegations of torture at Guantanamo Bay. Maybe not. Anyone heard the rumor that John Kerry bragged about a B+ on a paper that actually received a B/B+. Fox News here we come.

Posted 8:51 AM by Mark Graber [link] (18) comments

The President as Homecoming King

Mark Graber

The Framers anticipated the President would be a distinguished American who would rise above party to ensure a faction-free politics. No contemporary politician fits that description in large part because the unforeseen rise of the two-party system in 1800/1828 made most original intentions obsolete. John McCain probably comes closest. John Kerry can at least point to a solid to good long career in public service. George Bush led an undistinguished existence until the 1990s and has demonstrated no capacity as president to rise above party.

The twentieth century presidency pioneered by Theodore Roosevelt emphasized an executive sufficiently immersed in policy to govern the administrative/welfare state. By this measure, Kerry fares quite well. Good faith disagreements exist on the merits of what Kerry would do as President but no one thinks he is uninformed or uninterested in the major issues of the day. Bush is a disaster when judged by the T. Roosevelt model of the presidency. Outside of his election, major league baseball, and possibly the oil industry, he exhibits little knowledge or interest in the details of any policy, from health care to the Sudan.
The best way to think of the Bush presidency is that the United States is in the process of transitioning from the president as policy leader to the president as homecoming king. The metamorphous began under Reagan, is fueled by the modern media, and is being perfected by Bush. The main responsibilities of the president as homecoming king is to cheer lustily for our team. In every way, the president must communicate that our nation is number one (whatever that means), has no serious flaws, and is capable of overcoming any obstacle. Bush does this well. Kerry rather poorly.

Consider how recent events highlight the presidency as homecoming king. Only partisan Democrats care that Bush used family connections to limit service during Vietnam. Past achievement, after all, is a qualification of the presidency envisioned by the Framers. The homecoming king must be well liked, but need not have a record of any achievement. By comparison, Kerry has been damaged by revelations that he complained of atrocities during Vietnam. Of course, everyone knows American soldiers in Vietnam did commit atrocities and war crimes. The only serious issues are how pervasive was such behavior (both then and in Iraq) and what can be done to limit future atrocities. These questions are matters for a president expected to exhibit policy leadership. The homecoming king never acknowledges that our team has any faults (or what faults exist are to be blamed on a few individuals).
Bush fell from grace only once during the campaign, when he indicated that the war on terrorism could not be won. Had we been in the era of the Roosevelt presidency, a sensible debate might have followed on how terrorism could best be contained over the long run. As we move to the era of the president as homecoming king, such statements must be recanted. Presidents must assert that our team will fully triumph over all foes. No nuance is permitted in public. That everybody knows such triumphs are utopian matters not in the least.

As a fan of high school and college football, I like homecoming kings and queens as much as the next person. A reasonable case can be made that they serve national purposes. Witness the English monarchy. But England also has a prime minister, who acts as a Rooseveltian policy leader. Elections are more about policy than popularity. The greatest danger in the presidency as homecoming king is that public debate over policy in the United States is rapidly being reduced to who can cheer the loudest for the home team.

Posted 8:58 AM by Mark Graber [link] (18) comments

How To Make Your State Irrelevant

JB

As this map from electoral-vote.com shows, Colorado has 9 electoral votes and is a swing state, currently swinging in Kerry's direction. Why aren't both candidates spending more time in Colorado? There are several reasons, but one of them is that Colorado is holding a referendum this fall on whether to go to a proportional vote in the Electoral College. If it passes, the state of Colorado's 9 electoral votes will split 5-4, meaning that Colorado immediately becomes among the least valuable pickups for either candidate. (Of course, every little bit helps, and if this rule had been in place in 2000, Al Gore would have won the presidency, not even talking Florida into account. Then again, if almost anything had been different, Al Gore would have won the presidency. Then again, he actually did win the Presidency, but don't get me started....).

If Ohio, Pennsylvania, Florida, and other swing states were to adopt proportional electoral college voting, they too would become irrelevant just like Colorado, because both candidates could assume that they would pick up at most one or two electoral votes from winning. That would mean no candidate visits, and no saturation of the airwaves for months with political advertisements. (Hmmm, this is starting to sound like a pretty good deal.) The downside is less Presidential attention and less pork for the state during the years immediately preceding an election.

What would happen if all of the states went to proportional voting in the electoral college? As mentioned above, one result would be that the current swing states would be much less important, because candidates could expect to pick up only a net of one or two votes. Small states would still have an advantage in theory, but candidates' attentions would be more widely dispersed than they are now, and their attentions would shift to those states where the net gains would likely be more than one or two votes. Those would include the biggest (most populous) states, and states where a candidate might plausibly win by a landslide (greater than say, 55 or 60 percent) in the hopes of picking up an extra vote or two.

Is this a better system than we have now? Perhaps. But the change that would make the most sense is getting rid of the electoral college entirely. I suspect that if John Kerry were to win the electoral college but lose the popular vote, finally, there might be support for change. Generally speaking, the electoral college remains because the combination of winning the electoral college and losing the popular vote happens so infrequently, and because at any point in our nation's history one major political party believes that it has an advantage under the current system. That effectively blocks a constitutional amendment. However, if the candidate who won the popular vote was denied the Presidency twice in two successive election cycles, and if each political party lost a chance at the Presidency because of the current system, there might finally be strong bipartisan support for a change.

Posted 7:21 AM by JB [link] (35) comments

Help! I'm Turning Libertarian!

JB

This powerful indictment of Bush's presidency by Doug Bandow of the Cato Institute confirms a trend that I have suspected for a while and others have noted as well. In the current political context, and given the huge deficits created by one-party government and the Iraq war, there is less and less distance between libertarians like Bandow and liberals like myself. Obviously, we can and will differ over issues of economic regulation and campaign finance, but those issues, important as they surely are, do not seem to be most important for the country's future at the present moment. The big issues are Iraq, terrorism, foreign policy generally, civil liberties, the health of the economy, and restoring some semblance of sanity to the federal budget. On many of these issues-- including civil liberties, libertarians and liberals can find much common ground.

One of Clinton's most important political innovations was to argue that (and demonstrate how through his policies) Democrats could and should be the party of fiscal discipline. The Democratic Party was and is committed to social programs that will open up opportunities for working class and poor people. But Clinton's point was that one had to pay for these programs. That meant one had to adopt a pay as you go strategy. You had to argue for taxes to pay for new social programs. Without those taxes, you couldn't have the programs.

The President's first term has busted the U.S. budget. His civil liberties policies have been a disaster. His secrecy and mendancity has brought shame on the country. His incompetent handling of the Iraq war has ensnared us in a quagmire that has destroyed our influence abroad and made our foreign policy going forward much more difficult. Under these circumstances, liberals must put first things first. We must restore fiscal discipline, raise taxes, and resolve the Iraq mess in the way least damaging to our long term interests. We must invest in real and practical forms of homeland security and develop new strategies for dealing with terror that do not unduly burden civil liberties. Libertarians can find common cause with most if not all of these goals. Although libertarians may not like raising taxes, many now recognize that this is necessary given the mishandling of the Nation's budget by the present Administration.

Bush's recent rhetoric about an "opportunity society"-- in which the government works to make genuine opportunities for success available for all of its citizens-- is completely consistent with liberal principles. That should not be surprising, given that when Bush seeks to engage in centrist rhetoric he often borrows heavily from successful liberal themes. (See, for example, his lovely Inaugural Address). In a liberal democracy, the government should show equal concern and respect to all of the members of the political community, and it must put in place the conditions that make equal opportunity possible. Given the track record of Bush's first term, however, I doubt that the Republican Party led by George Bush is sincerely interested in the sorts of policies that would make this a reality. In fact, three and a half years of this President have demonstrated that he is not really serious about public policy at all. Rather, he has given away the store to his base-- Christian conservatives, business interests, and wealthy contributors, and done rather little to increase opportunity for the average American, much less for the poor. Bush talks a good game-- and he has great speechwriters-- but when the chips are down he does nothing to show that he is at all serious about the high minded principles that he espouses in his best speeches.

In this political climate, libertarians should find a Kerry Administration much more palatable to their principles, especially if Kerry adopts some version of Clintonism-- fiscal discipline coupled with social libertarianism. Although many on the right simply don't trust Kerry, and have a gag reflex at the thought of voting for a Democrat, they must recognize by now that the Republican candidate, George Bush, has an established track record as president, and he has been a disaster. Kerry with a Republican Congress is much more likely to produce sensible fiscal policies that libertarians could live with than the one party rule we have lived under for the past three and a half years.

If the nation's fiscal health is restored, and if we successfully extricate ourselves from Iraq, the interests of libertarians and liberals may well diverge again. But in the short term-- the next five or so years-- they will have and should have a number of common goals. One of those goals, and perhaps the most important, is getting rid of this mendacious and incompetent Administration.

Posted 1:19 PM by JB [link] (18) comments

Bush Accuses Kerry of Saving 1000 American Lives and 200 Billion Dollars

JB

From the Washington Post:

CHILLICOTHE, Ohio, Sept. 10 -- President Bush charged on Friday that Saddam Hussein would still be ruling Iraq if John F. Kerry's view had prevailed, as the Bush campaign continued to press its case that Americans should not trust the Democratic presidential nominee to keep them safe.

Pretty hard hitting stuff, if you ask me.

Posted 8:26 AM by JB [link] (19) comments

Paul and George

Ian Ayres

Okay, this is almost too easy. . .

Name the top 5 reasons that Bush is the Paul Hamm of Presidents:

5. They both "won" because of disputed counts.

4. They both had appelate tribunals that refused to review the substance of the dispute because of timing issues.

3. The legitimacy of both victories was questioned (see supra 4 and 5).

2. The arrogance of both has angered the rest of the world.

And the number 1 reasons that Bush is the Paul Hamm of Presidents . . .

1. Both, by refusing to share his victory, have tarnished their legacy.

Paul Hamm refused to share his gold medal. Who is this guy's business manager? He destroyed his endorsement potential. Would you buy a product endorsed by this guy? Hamm never realized that you can become more famous by giving things away. Think Linus Torvald or Pincess Di.

Even more important, Bush refused to share his presidency. With so much happening since 911, its hard to remember that there was a brief moment just after the Supreme Court's decision in Bush v. Gore when many Democrats and Republicans were urging W. to respond to his legitimacy deficit by, well, being a "uniter not a divider." Bush might have called for a unity presidency that would promote a more bi-partisan agenda. But the nomination of Ashcroft pretty quickly nipped that idea in the bud.

Posted 6:48 AM by Ian Ayres [link] (9) comments

Guest Blogger: Ian Ayres

JB

I'm delighted to announce that my friend, colleague and fellow Kansas Citian Ian Ayres of Yale Law School will be guest blogging on Balkinization. Apart from being a prolific writer and a major law and economics scholar, Ian has also done seminal work in a wide range of areas in public policy, ranging from campaign finance regulation to empirical studies of civil rights law and race and sex discrimination. It's wonderful to have him here!

Posted 1:22 PM by JB [link] (17) comments

The meaning of consent

Ian Ayres

The day that the case against Kobe Bryant was dismissed, Bryant released a statement that said in part:
"Although I truly believe this encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did. After months of reviewing discovery, listening to her attorney, and even her testimony in person, I now understand how she feels that she did not consent to this encounter."

Pop Quiz: Do these sentences contradict each other?

As a first cut, the simple answer is "Yes." Bryant says (using the present
tense) that he believes the encounter was consensual - which means he believes that he consented and that he (presently) believes that she consented. But this second implication - that Bryant presently believes that she consented is contradicted by the last half of the sentence "I recognize now that she did not . . . view this incident the same way I did. . . . I now understand how she feels that she did not consent. . ."

It is a logical impossibility that Bryant could presently believe that she consented and simultaneously believe that she did not consent. If so the brave editor might insist on placing a [sic] after the "believe."

The whole problem could have been avoided if Bryant had used the past tense "Although I truly believed the encounter was consensual, I recognize now that she did not and does not view this incident the same way I did." This would not have been an admission of criminal or civil liability which turns on Bryant reasonable beliefs at the time of the encounter.

But there is a second, more sublte interpretation of this rather amazing apology. The law distinguishes between subjective and objective meanings of consent. Bryant might have meant: "I truly believe that accuser's conduct objectively manifested her consent -- and therefore was consensual in a legal sense, but I recognize now that she as a personal, subjective matter did not believe she was consenting."

No matter how you cut it, Bryant's apology by saying "believe" instead of "believed" is emphasizing the continuing reasonableness of his original beliefs, notwithstanding what he claims to have learned in the interim.

Pop Quiz Teaser Question for my next blog: Name three reasons why "Bush is the Paul Hamm of presidents."

Posted 11:14 AM by Ian Ayres [link] (16) comments

They're Called the Secret Service Because They Keep Dissent Secret

JB

From the Washington Post:

Officially, the Secret Service does not concern itself with unarmed, peaceful demonstrators who pose no danger to the commander in chief. But that policy was inoperative here Thursday when seven AIDS activists who heckled President Bush during a campaign appearance were shoved and pulled from the room -- some by their hair, one by her bra straps -- and then arrested for disorderly conduct and detained for an hour.

After Bush campaign bouncers handled the evictions, Secret Service agents, accompanied by Bush's personal aide, supervised the arrests and detention of the activists and blocked the news media from access to the hecklers.

The Bush campaign has made unprecedented efforts to control access to its events. Sometimes, people are required to sign oaths of support before attending events with Bush or Vice President Cheney. At times, buses of demonstrators are diverted by police to idle in parking lots while supporters are waved in. And the Secret Service has played an unusual role; one agent cooperated with a plan by the Bush campaign last month to prevent former senator Max Cleland (Ga.), a Kerry ally, from handing a letter to the agent outside Bush's Texas ranch.
. . .
One uniformed Secret Service agent complained to a colleague that "the press is having a field day" with the disruption -- and the agents quickly clamped down. Journalists were told that if they sought to approach the demonstrators, they would not be allowed to return to the event site -- even though their colleagues were free to come and go. An agent, who did not give his name, told one journalist who was blocked from returning to the speech that this was punishment for approaching the demonstrators and that there was a "different set of rules" for reporters who did not seek out the activists.

In the confusion, even Sen. Arlen Specter (R-Pa.) had to cool his heels for 10 minutes before the Secret Service would let him leave the building.

The purpose of the Secret Service is to guard the President's safety, not to keep him from hearing protestors. More generally, under our first amendment, police officers and other government officials do not have the power to stifle protest simply because it is unpleasant to the candidate. There was no evidence that a riot or other forms of physical violence were about the break out. Indeed, the only physical violence was performed by members of the Bush team, grabbing protesters by their hair and roughly shoving them out of the room. And it was completely illegal for the Secret Service to keep press reporters from talking to protesters. There is no reason to think that such communications would have added to any danger of violence or disturbance. Showing favoritism among reporters depending on whether they seek to interview critics of the President is a blatant violation of constitutional rights.

The Secret Service not only acted unconstitutionally here, it also betrayed its underyling purpose as a professional institution. It confused the candidate with a King who needs to be protected from any unpleasant experiences by his Palace Guard.

As the Post article details, this is only one in a recent trend of incidents in which the area around candiates-- and particularly President Bush-- has started to become a de facto First Amendment free zone. One could attribute it simply to the decidedly authoritarian streak in this particular Administration, but I think it also reflects a deeper malady. In a future post, I'll outline the reasons why I think this is happening.

Posted 9:57 AM by JB [link] (32) comments

The Real Stories

Mark Graber

Article II, Section 1, paragraph 5 declares, "neither shall any Person be eligible to [the presidency] who shall not have attained to the Age of thirty five years." Implicit in this provision is an understanding that good deeds at age 25 do not qualify one for the White House and that a candidate who behaved rather badly at that age is entitled to claim, as George Bush did in 2000, that "when I was young and foolish, I was young and foolish." If you are convinced that the greatest risk to the United States is that we will refrain from using military force when necessary, and not that we will inappropriate use military force, you should not care very much about the extent to which Bush used political connections to limit service during the Vietnam Era. The real issue is the connections to be drawn being the young men and the candidates for president they became, an issue that to the best of my knowledge is barely being discussed by the candidates or the media. These connections are severalfold.

To what extent do the events of 30 years ago highlight enduring features of Kerry and Bush? One reason why many Kerry supporters do not go ga-ga is that the brave, intrepid soldier of Vietnam does not seem to have become a brave intrepid political actor. A perfect decent liberal Senator, and that’s good enough to get my vote, but if you were to write a Profiles in Political Courage over the past ten years, would Kerry be included? On the other hand, Bush the adult exhibits many traits of Bush the young man. He has virtually no personal achievements that were not procured through birthright connections. Worse, his fundamental interest seems to be politics (and making money). Bush the young man who left his original national guard unit to work on political campaigns seems closely related to Bush the president who seems more interested in using the war of terror for partisan advantage than actually figuring out what is moving the crucial political actors in the Middle East. And, to highlight a point Jack Balkin has made in previous post, Bush is quite intelligent when interested, and he is very interested in his reelection. He simply isn’t interested in learning about other nations. True then, true today.

The second connection is what the candidates have learned from their experiences as a 25 year old. Here, Kerry comes off better. Kerry has experienced military conflict in a divided society with mores quite different from the United States. It’s not pretty and very unromantic. It’s not five bad guys repressing a bunch of soccer mom wannabees and middle-class Joes. Frightened soldiers far from home are prone to atrocities unless very closely supervised. Bush, have never served and (as important) have little interest in the world outside of his election has no sense of what happens on the ground in such countries as Vietnam and Iraq, and with his romantic notions, has little sensitivity to the pressures that promote torture and other human rights violations. Kerry correctly predicted the postwar chaos partly because as a youth he had experiences that Bush throughout his life has avoided. A Kerry administration is less likely to have prison abuse scandals because members of that administration have some sense of what American soldiers in war-torn countries experience.


To a fair degree, I am putting words in Kerry’s mouth. It’s his job to make this case to the country, and so far neither he nor the Democratic Party has made it. But if there is a story here, the story is not how badly Kerry bled or the extent to which Bush pulled strings, but whether these events highlight permanent features of their characters and whether lessons learned in 1970 have any bearing on capacity to make intelligent policy in 2004.

Posted 8:29 AM by Mark Graber [link] (17) comments

Ghost Detainees

JB

This Washington Post story about "ghost detainees"-- prisoners held secretly out of the knowledge of the International Red Cross, or anyone else, for that matter-- is particularly important given the Supreme Court's recent decisions in Hamdi and Rasul. The right to habeas corpus means nothing if you can't raise the issue because no one knows that you are being held. The same goes for the protections of international law.

Ghost detainees are usually people thought to be higher up in terror networks, and therefore potentially more dangerous. However, given the Adminstration's remarkably bad track record at accusing people of terrorism and later having to confess that it had exaggerated such claims, one begins to lose confidence in this sort of excuse. Moreover, one cannot defend hiding people from the Red Cross because one wants to prevent the outside world from knowing how they are being treated or what sort of interrogation techniques are being used on them. One should not be able to defend violations of international agreements signed by the United States on the grounds that this will help prevent the discovery of even more serious violations.

In the past three and a half years we have repeatedly seen this Administration choose secrecy and lack of accountability over Rule of Law values. It is a sorry legacy, and each new revelation only makes one wonder what else they are hiding that is even worse.

Posted 12:01 AM by JB [link] (19) comments

John Kerry Flip Flops Yet Again

JB

From the New York Times:

President Bush said on Wednesday that he wanted to give a new national intelligence director "full budgetary authority,'' a sharp shift from an earlier position and an acquiescence to a major recommendation of the Sept. 11 commission.

Mr. Bush was acting after weeks of intense election-year pressure from Democrats and members of his own party, who have repeatedly told the White House that an intelligence director without budget authority would be powerless to push through significant reform. Mr. Bush also said he would submit his own proposal to Congress to overhaul the nation's intelligence agencies.

Rand Beers, Mr. Kerry's national security adviser, said in an interview that Mr. Bush was swaying in the political winds much as he did when he opposed the creation of the Department of Homeland Security, then endorsed it when it became a political inevitability.

"The pattern is pretty clear that the president stakes out positions and holds them as long as it is politically tenable," Mr. Beers said. "And when it becomes politically untenable, he puts forward partial measures in order to appear to be a proponent and to co-opt the issue. And then he slow-rolls to avoid doing anything serious to follow up."

I *really* wish John Kerry wouldn't change his mind for crass political reasons like that. It kinda makes you lose confidence in the guy's seriousness about governing the country.

UPDATE: I have just been informed that this story is about President Bush shifting his positions repeatedly for crass political reasons. Well, that's different. No problem. Carry on.

Posted 11:20 AM by JB [link] (23) comments

Dick Cheney: Vote For Kerry

JB

From the New York Times:

"It's absolutely essential that eight weeks from today, on Nov. 2, we make the right choice," Mr. Cheney told a crowd of 350 people in Des Moines, "because if we make the wrong choice then the danger is that we'll get hit again and we'll be hit in a way that will be devastating from the standpoint of the United States."

Doctor Evil knows what he's talking about. Look what happened the last time the country made the wrong decision. They say it doesn't really matter who becomes President. Cheney knows that's not the case. As Dick himself might put it, do you really think Al Gore would have invaded Iraq and given away the candy store to the top tax brackets?

Nevertheless, I think that Cheney's being a little unfair to Bush. I mean, even if Bush had read and understood the August 6th presidential daily briefing, who could have guessed that Osama bin Laden was determined to attack the United States?

Come on Dick, stop trying to scare people about a second Bush Presidency. Stop impugning Bush's competence and patriotism with your slash and burn speeches! Stop that right now!

Posted 7:41 AM by JB [link] (4) comments

The Whole Truth and Nothing But the Truth--- Not!

JB

Matthew Yglesias takes us on a guided tour of President Bush's acceptance speech at the Republican National Convention. It's not pretty.

Posted 12:01 AM by JB [link] (6) comments

WWJVF?

JB

Alan Keyes explained that Jesus would not vote for Barack Obama in the Illinois Senate race. (link via Crooked Timber).

I'll say. Jesus isn't even registered to vote in Illinois!

Come to think of it, is Keyes?

Posted 10:53 PM by JB [link] (3) comments

"Lawyers and Accountants"

Mark Tushnet

I'm afraid that I couldn't resist the allure of a return appearance on something with some modest legal connection.

Has anyone else noticed the -- um-m-m -- tension between two positions George W. Bush is taking on taxes, tax cuts, and restoration of prior tax rates? (1) The tax cuts he proposed and got enacted were very important in producing (whatever degree of) recovery we've experienced from an economic downturn generated by things other than his policies. (2) Restoring the tax rates on those making more than $200,000 would be ineffective (and would lead to tax increases on those making less, to pay for Kerry's programs) because the rich have lawyers and accountants (who will devise strategies that allow the rich to "evade" the higher tax rates). [Nice bit of bashing the rich there, incidentally.]

Now, did the rich not have lawyers and accountants before the tax cuts? If they did, the tax cuts didn't make anything available to them they didn't have before the tax cuts (except, maybe, what they saved in payments to lawyers and accountants). And if that's so, how could the tax cuts have helped generate recovery from the economic downturn? (Maybe the tax cuts for the less-than-rich were the cuts that mattered for the recovery, but then restoring the prior tax rates for the rich wouldn't have bad economic consequences in itself.)

One possibility I've thought of is that Bush is a devotee of behavioral economics, and thinks that there's an endowment effect (or something like that): Prior to the tax cuts, the rich were resigned to paying taxes, and didn't think they could engage in avoidance activities by hiring lawyers and accountants. After the tax cuts, they "have" something they didn't have before, and are willing to devote resources to preserve it even though they weren't willing to devote resources to getting it when they didn't have it.

There is, of course, a more parsimonious explanation.
Posted 4:25 PM by Mark Tushnet [link] (9) comments

Civil Liberties in Wartime II

Mark Graber

Last week, I noted that civil liberties and rights were as often expanded as restricted in wartime. One pattern is that administrations use war to pursue preexisting agendas. Roosevelt administration attacks on white only primaries during World War II reflected FDR’s ongoing efforts to build up more electoral support for the New Deal in the South. The Bush administration’s effort to increase police surveillance has far more to do with that administration’s stunted view of due process than winning the war on terrorism. Witness administration refusals to require security checks at gun shows where suspected terrorists have purchased weapons.

Wars have the potential to unite as well as divide. While groups perceived as disloyal, often for racist reasons, suffer severe repression, those perceived as loyal to the cause often gain stature because of military conflicts. Many restrictions on persons of color in the north during the Civil War fell by the wayside as the need for African-American troops increased and stories of their bravery in battle disseminated. 18 year olds gained the right to vote as a direct consequence of Vietnam. Military needs trumped claims for status hierarchy.


The Bush administration will have none of this. Prejudice continues to trump military need when the two conflict. Linguists who specialize in Arabic are being dismissed from the United States military because they are homosexuals. Persons not previously known for advocating gay rights are pleading for the Bush administration to abandon existing restrictions on homosexuals in the military. Donald Hamilton, a member of the National Commission on Terrorism, declares that "(w)e face a drastic shortage of linguists, and the direct impact of Arabic speakers is a particular problem." "It’s not a gay rights issue," one discharged translator insists, "I’m arguing military proficiency issues–they’re throwing out good, quality people." An editorial in the Omaha World Herald proclaims, "(i)t makes no sense for the military to deny itself the use of these soldiers' competence in Arabic, on the grounds cited, at the very time when such expertise has unprecedented value for U.S. defense." An editorial in the normally conservative New York Daily News declares,


All available resources must be marshaled for this life-and-death struggle. How frustrating that this is often not the case. The Pentagon, for instance, has just cashiered nine linguists, six of them Arabic-language specialists, for being gay. Apparently, its new policy is don't ask, don't tell, don't translate. That's madness. We have a potentially deadly shortage of Arabic speakers, and the Defense Department is getting tough on gay translators?
Apparently, however, the Bush administration has other priorities. Pleasing religious conservatives is far more important than having competent Arabic translators. Remarkably, a media that daily praises Bush’s steadfast commitment to victory (whatever that means) never asks why he repeatedly champions his most extreme followers’ domestic concerns when they conflict with wartime needs (whoever fought for tax reduction during a serious war). But, of course, no commission will ever be able to prove that the next terrorist act might have been prevented had a slightly more competent translator seen some materials. As is the case with Bush’s lack of curiosity before 9/11, the ban on gays in the military simply makes an attack somewhat more probable. I guess Karl Rove has decided that politics makes that gamble worth taking.


Besides, what politically motivated gay person would want to serve after watching the smear campaign against John Kerry. Read the headlines in 2024. "Democratic Iraqi War Veteran May Have Exaggerated Heroism" (only saved seven lives, not nine as reported). Politically ambitious twenty year olds are better advised to booze and carouse than serve their country.

Posted 11:23 AM by Mark Graber [link] (9) comments

Dangerous Times

JB

Criticism of Zell Miller's keynote address at the Republican National Convention on Wednesday has been particularly harsh. And with good reason. The problem, as William Saletan explains, is that Miller essentially equated opposition to the President with opposition to the country.

"[W]hile young Americans are dying in the sands of Iraq and the mountains of Afghanistan," Miller argued, "our nation is being torn apart and made weaker because of the Democrats' manic obsession to bring down our Commander in Chief." That is to say, things wouldn't be going so badly in Iraq and Afghanistan if the Democrats weren't trying to prevent Bush from getting another four year term. The Democrats, Miller insisted are "[m]otivated more by partisan politics than by national security." The problem, Miller insisted, is that Democrats hate America: In their "warped way of thinking America is the problem, not the solution. They don't believe there is any real danger in the world except that which America brings upon itself through our clumsy and misguided foreign policy." Although Miller hastened to add that he was impugning the Democrats "judgment," and not their "patriotism," his remarks did precisely that. The leader of the Democrats, John Kerry, Miller insisted, would sell out our security to the hated French: Kerry "would let Paris decide when America needs defending."

The crowd at the Republican Convention roared in approval. Matthew Ygelsias, who was there, said he actually felt a little bit afraid.

The fact that Miller is still registered as a Democrat did not change matters in the slightest. The RNC and the Bush campaign vetted the text of his remarks beforehand. He was delivering the message they wanted delivered. And that message is what is so troubling.

Does the Republican leadership, or for that matter, the Republican rank and file actually believe that political opposition to the President's policies is truly disloyal? If so, this is a serious problem for the health of American democracy. It's fair game to call your opponents stupid and their policies unsound. It's even OK to say that what they are proposing will be bad for the country and for the cause of freedom around the world. But you cross the line when you argue that political opposition is designed to weaken America at the hands of its enemies, and that the other party seeks to sell America out.

That is one reason why I thought Anne Coulter's recent book entitled "Treason" was a sorry comment on the state of American democracy. One can dismiss Coulter as a freak show, although she gets plenty of air time on the cable channels. But when Coulter's basic message-- that political opposition is disloyal-- is delivered by a keynote speaker at the Republican National Convention to a wildly cheering audience, these sentiments can no longer be seen as isolated examples of fringe lunacy. Instead, they now are being employed as a key campaign strategy.

Terrorism around the world makes the world a dangerous place. What happened the other night at the Republican Convention makes things dangerous in an entirely different way.

Posted 8:55 AM by JB [link] (27) comments

Shorter Republican Covention, Day 3

JB

Be afraid. Be very afraid.

Democrats are traitors. They are French.

The United Nations is French.

George Bush is not French.

Posted 11:06 AM by JB [link] (8) comments