Balkinization  

Sunday, October 12, 2003

JB

Headscarves and Religious Accommodation

CNN reports that an 11-year-old Oklahoma girl, Nashala "Tallah" Hern, has been suspended from a public school because officials said her Muslim head scarf violates dress code policies, originally instituted to prevent wearing gang paraphenalia. The school's policy makes no exception for religious headgear, and school officials stated that they would not create one:

"As I see it right now, I don't think we can make a special accommodation for religious wear," said school attorney D.D. Hayes. "You treat religious items the same as you would as any other item, no better, no worse. Our dress code prohibits headgear, period."

He added that, under the dress code, a Jewish child would not be allowed to wear a yarmulke, the skullcap traditionally worn by orthodox Jews, to school.


Because of a 1990 Supreme Court decision, Employment Division v. Smith, rules of general application do not violate the Free Exercise Clause even if they impinge more heavily on minority religions. That case is, I think, wrongly decided. But, in any case, there is no constitutional problem with a school making religious accommodation for religious headgear. When the Supreme Court held that the military's interest in esprit de corps allowed it to keep a serviceman from wearing a yarmulke without violating the Free exercise Clause (this was before the 1990 decision in Smith), Congress promptly passed a bill mandating accommodation for religious items to be worn with uniforms. Generally speaking, the Establishment Clause does not prevent government from lifting a burden on religion it has itself imposed through a rule of general applicability. Such a rule could be unconstitutional if it specifically mentioned particular religions by name for exemption, or if it gerrymandered the exemption with the intention of benefiting some religions for accommodation but not others. But a well drafted rule can usually avoid such problems.

Congress passed a statute, the Religious Freedom Restoration Act (RFRA) in 1993, to counteract the Smith decision, and to require the federal and state governments to make religious exemptions under certain conditions, but the Supreme Court struck it down in 1997 as beyond Congress's powers as applied to state governments. Many states then passed their own versions of RFRA. Oklahoma is one of them. If the Oklahoma statute is like the federal one, then the student has a strong case for arguing that failure to make an exemption for religious headgear in the school dress code violates the law.

I'm not sure whether the above quote is simply due to a mindless bureaucratic mentality or is due to the fact that the school officials in question are implementing a regulation created at a state level that they do not have authority to change. If the former, their argument that they must treat religious clothing the same as all other clothing is specious. If the latter, I would think that school officials should do everything in their power to interpret the law so as not to apply to religious headgear, and, as I have noted, it's quite possible that the law violates Oklahoma's version of RFRA.

Other accounts of the story seem to suggest that the dress code is not statewide but is the policy of Benjamin Franklin Science Academy, and that the school has defended its decision on the grounds that there is no federal right to religious exemption. That may well be true, but it is irrelevant to the question whether the school is *permitted* to make such an exemption under the Establishment Clause.




Saturday, October 04, 2003

JB

Rush Limbaugh Explains the Importance of Colorblindness

From an October 5th, 1995 radio show (courtesy of Ellis Henican and Newsday):

Even though blacks and whites break the drug laws in roughly equal percentages, [Limbaugh] noted, black druggies go to prison far more often than white druggies do. But to the liberal-bashing host, this was no reason to ease up on blacks.

"What this says to me," he told his listeners that day, "is that too many whites are getting away with drug use. Too many whites are getting away with drug sales. Too many whites are getting away with trafficking in this stuff. The answer to this disparity is not to start letting people out of jail because we're not putting others in jail who are breaking the law. The answer is to go out and find the ones who are getting away with it, convict them and send them up the river, too."


I think we've been taking Limbaugh's remarks about Donovan McNabb out of context. It's now clear that they were much more than the smug posturings of a rabble rouser who simply wants attention. Rather, they reflect a deep moral commitment: Just as Limbaugh doesn't want black quarterbacks to get a free pass from the sports media, he doesn't want white drug abusers like himself to get a pass from the criminal justice system.

When Limbaugh turns himself into authorities and demands to be treated no differently than African-Americans arrested and convicted of drug offenses, we will all see how wrong we all were about this man.


UPDATE: All sarcasm aside, if Limbaugh has become addicted to drugs, he deserves our sympathy, no matter what our views about his politics, and no matter whether he broke the law. As the above quote suggests, in the past Limbaugh himself has had nothing but scorn for people who have come to that sorry state. That disdain reflects less his conservative political views than the fact that he has, for most of his public life, been a callous, insensitive bully. Moreover, he has learned that being a callous, insensitive bully has gotten him a loyal audience and enormous adulation from a public that likes raw, obnoxious ranting from their political commentators. He has learned to enjoy the high he gets from being outrageous and merciless and goading his listeners into similar feelings of outrage and mercilessness. That is to say, Limbaugh has become as addicted to verbal thuggery as he has to painkillers.

If he is now addicted to drugs, we should be sympathetic to his plight, for addiction is no small matter, and living with it is a lifelong struggle. But we should also hope that he learns something from the troubles that are now raining down upon him-- that he, like the rest of us, is fallible and imperfect, and therefore deserving of love, and deserving of mercy. It is true that he is not a man much given to forgiveness, and that he has made a very successful living out of bullying, aggression and hatred. But perhaps he will discover, in a time of darkness, that there is more to life than aggression and demagoguery, and we, in turn, will discover that there is much more to him than the rather obnoxious and unsympathetic character he portrays on the radio. If he can turn his life around, and learn to bestow mercy on others as well as receive it, he might be well on his way to ridding himself of both of his addictions.



Friday, October 03, 2003

JB

Fair and Balanced Pays Off

James Grimmelman writes about a new report concerning how mass media affect the American public’s attitudes toward the Iraq war. The study, conducted by the Program on International Policy Attitudes, finds that a significant proportions of the American public had false beliefs about (1) whether Saddam Hussein was working closely with al Qaeda before the war; (2) whether weapons of mass destruction have been found in Iraq; and (3) whether world public opinion favored the U.S. invasion. (For those who are wondering, no evidence has been found linking Saddam to 9/11 or demonstrating that that he was working closely with al Qaeda before the war, no WMD’s have been found in Iraq, and world opinion did not favor what the U.S. did.).

Sixty percent of the American public held one or more of these misperceptions, although only 20% held two and 8% held all three. The study further suggests that support for the war is highly correlated to holding one or more of these misperceptions. Among those who held none of these misperceptions, only 23% supported the war.

The extent of these misperceptions, the study reports, varies considerably based on Americans’ sources of news about the war. Those receiving most of their information about the war from NPR or PBS were least likely to have these three misperceptions about the war (Only 23% did followed by people who read the print media generally at 47%). On the other hand, those who received most of their information from Fox News are more likely than average to hold one or more of these misperceptions. (80 percent did, followed by 71 percent for CBS). The study corrected for demographic differences between the different sets of audiences, and found that the pattern held even when comparing the views of particular demographic subgroups. People who support the President are much more likely to hold one or more of these misperceptions, regardless of their party affiliation.

The study suggests that disinformation conveyed by the news media can shape public attitudes about important questions before the public. It also suggests what politicians have long known: propaganda works.


JB

Why Preemption Was Such A Good Idea

David Kay gave his long awaited interim report from the Iraq Survey Group, explaining that none of the chemical and biological weapons that were a primary justification for the war against Iraq had been found.

Kay's report is likely to intensify the debate over whether the administration intentionally misled the public on the threat posed by Iraq's weapons programs.

``We have not yet found stocks of weapons, but we are not yet at the point where we can say definitively either that such weapons stocks do not exist or that they existed before the war, and our only task is to find where they have gone,'' Kay said in an unclassified version of his testimony released by the CIA.

Members of his Iraq Survey Group, Kay said, have discovered weapons ``activities'' and equipment that were concealed from U.N. inspectors when they returned to Iraq late last year. Those include apparent biological weapons research and Iraqi attempts between 1999 and 2002 to import technology for 900-mile range missiles from North Korea, he said.

Reaction from intelligence committee members ranged from support for Kay's work to frustration over the limited findings, to dismay that one of the central justifications for war had not been proved.

``This raises real questions about the doctrine of pre-emption,'' said Sen. Jay Rockefeller, of West Virginia, the ranking Democrat on the Senate intelligence committee. ``You just don't make decisions like we do and put our nation's youth at risk based upon something that appears not to have existed.''

The committee chair, Sen. Pat Roberts, R-Kan., declared himself ``not pleased with what I heard today.''

``Everybody involved in this effort would have hoped by now there would have been a breakthrough,'' he said.


Jay Rockefeller is on to something. If you are going to employ a doctrine of pre-emption, you had better have confidence that the threat you are facing is real and worth the risks of war. If you go to war on the basis of bad intelligence, or, even worse, if you engage in wishful thinking and employ trumped up intelligence reports to justify your support for war, you may cause yourself a great deal of trouble in the long run. For example, you may get stuck in a costly occupation with no end in sight, and instead of being hailed as liberators, you may find yourself bogged down in a lengthy guerilla war.

Nah, couldn't happen.



Thursday, October 02, 2003

JB

What Caused Wilsongate? Some Thoughts About Institutional Incentives

What caused the Wilson scandal, and why did the story break into the mainstream press when it did? We can start to answer these questions by thinking in terms of institutions rather than individuals. The institutions are the Bush Administration, the CIA, and the mainstream press.

Begin first with the Bush Administration’s attempt to divert blame. Administration officials originally claimed that Saddam’s weapons of mass destruction and likely nuclear capabilities fully supported their decision to go to war. Later, when no WMD’s were uncovered, they argued either that their decisions were reasonable extrapolations from available intelligence, or failing that, that there was an intelligence failure; i.e., that the CIA had not done its job correctly.

The latter claim cast aspersions on the professionalism of the CIA. The CIA resented the Bush Administration’s attempt to use them as a scapegoat. But after Wilson wrote his op-ed on July 9th, responding to insinuations of CIA incompetence, senior members of the Bush Administration went one step further. They leaked information about Wilson’s wife’s identity as a CIA operative. The evident purpose of this was to say, both to Wilson, and to anyone who might have similar ideas in the future: “Screw with us and we will screw with you.”

At this point, however, the Bush Administration stepped over the line, at least from the CIA’s perspective. It was bad enough that the Administration attempted to impugn their professionalism and shift the blame to them. But now Administration officials had outed a CIA operative in response to criticism, partly as payback and partly as a warning. As a result, the CIA has struck back by requesting that the Justice Department investigate the leak.

Two questions:

Why did the CIA take so long to respond, from July 22d, when Novak’s story was published, to the end of September?

Why did the mainstream press take so long to take up this story?

The answers to both these questions concern institutional incentives.

When Novak’s story was first published, several bloggers complained vigorously about the administration’s leak, but the mainstream press paid very little attention (and at that point Novak himself obviously believed that the Administration had done nothing very seriously wrong). Why did the press hesitate? To answer this question we have to recognize the institutional incentives of the Washington press. Reporters do not like to disclose their sources. The more important a story becomes, the greater the chance that reporters will be called to testify before a grand jury, because, obviously, they know who leaked the story to them. Given their professional norms, the reporters will then refuse to disclose their sources, and the press will look bad for breaking the story and then refusing to assist with ascertaining the truth. That is, if the matter goes to the grand jury, there is a danger that the press itself will become the story, not the miscreants who leaked the information to the press.

All of this explains why, in the run of the mill story about leaks, the press is less than interested. The mainstream press has no incentive to make a big deal about leaks *to the press itself.* For this reason, it is often said that investigations about leaks in Washington tend to go nowhere. But they go nowhere not because the information is not readily available– it is readily available, the reporters have it! They go nowhere because reporters don’t want to testify about their sources, and government officials are usually not willing to take the political heat for putting them in jail if they don’t testify. (The institutional calculus is somewhat different with respect to local reporters in jurisdictions outside of the Beltway, so you actually do see the occasional reporter jailed for refusal to testify). Put another way, the ongoing (some would say incestuous) relationship between national politicians and the Washington press corps leads to the received wisdom that the source of leaks cannot be uncovered. And it also led to the mainstream press not picking up on the story for over two months after the Novak column originally appeared.

The CIA’s request to the Justice Department, however, changed the equation considerably. Once the CIA started to push back at the Bush Administration in order to defend its reputation and its institutional prerogatives, it produced a story that could not be buried. The story had to be covered, even though the idea of putting mainstream reporters in harm’s way makes the institutional press quite nervous. The Bush Administration, recognizing the natural hesitancy of the mainstream press to push hard on stories where the press’s own interests are involved, has wanted this to be a story about leaks, which are a common enough occurrence in Washington, and which are governed by the unspoken rules between politicians and the Washington press corps. Thus, if this remains a story about leaks, then it will go nowhere.
The CIA’s decision to complain, on the other hand, suggests that to the CIA, at least, this is a story about the Administration trying to push the CIA around, and interfere with its professional status and its prerogatives. For that reason, if the Administration pushes the CIA, the CIA is going to push back. From the CIA’s standpoint, the Bush Administration (and all future administrations) must be shown that if it screws with the CIA, the CIA will screw with them. Karl Rove may think that he is Don Corleone, and that he can put the metaphorical equivalent of a horse’s head in Joseph Wilson’s bed, but two can play at that game. And, given the fact that the CIA probably has enough evidence in its files to undermine any sitting president, it is probably not a good idea for the Bush Administration– or any administration for that matter-- to use the CIA as a whipping boy.

It is likely that Valerie Plame and her immediate superiors wanted to push back at the Administration almost immediately after she was outed. But the CIA bureaucracy may have resisted for some time, hoping that the press would pick up the story. The mainstream press did not do so, for the institutional reasons I have just recounted, and therefore at some point the CIA felt it necessary to force matters into the open by requesting an investigation from the Justice Department.

Many people, I suspect, will want to see this story as about political machinations between Democrats and Republicans. Surely there is plenty of that going on. But if one focuses only on the partisan aspects of the story, one will miss the much more interesting and intricate conflicts between institutions that have set these events in motion.


UPDATE: Jerry Newmark writes that the CIA actually did make an informal request for an investigation within a week of Novak's story. An account appears here. He argues that the CIA only made a formal request (thus bringning on press scrutiny and, possibly, a full criminal investigation) only after the White House and the Justice Department failed to respond to its informal suggestion:

Along the lines you've presented, I've got a slightly different take on why
it took so long for the CIA to submit a formal request (and publicize it in
a way that is unusual for them). The CIA did make an informal request for a
Justice Department review shortly after the Novak article was published.
This may be seen as message to the White House that while the CIA wanted
someone's head to roll, they would rather not pursue a criminal
investigation. There are good institutional reasons for this - a formal
investigation would necessarily involve having the FBI investigate CIA as
well as White House personnel and the animosity between the CIA and FBI is
well known - as well as practical concerns about being able to control the
scope of an investigation once it has begun. Only after it was clear that
Justice and the White House were not going to act on their own accord did
the CIA raise the stakes.


JB

If At First You Don't Succeed, Spend, Spend Again

The New York Times reports that President Bush will ask Congress for 600 million dollars to continue the search for weapons of mass destruction in light of the interim report of the Iraq Survey Group which is expected to state that no such weapons have been found.

Approximately 300 million dollars has already been spent in a so far fruitless search for weapons of mass destruction. The Administration wants to double that amount, in what is reported to be a classified portion of the Pentagon's appropriation request to Congress.

One suspects that if the Administration is willing to spend that much money, they could simply purchase the weapons of mass destruction and deposit them in Iraq.


Tuesday, September 30, 2003

JB

Precision Worthy Of A Lawyer

Columnist Robert Novak reported in July that Valerie Plame, the wife of diplomat Joseph Wilson, was an undercover CIA operative specializing in weapons of mass destruction. Wilson believes that his wife's name was publicized by administration officials either to discredit him or as revenge for Wilson's statement that the Bush Administration exaggerated intelligence claims in order to justify the Iraqi war. The Justice Department is now investigating the matter.

In a recent statement, Novak defended the Bush Administration

"Nobody in the Bush administration called me to leak this," Novak said on CNN's "Crossfire," of which he is a co-host. "There is no great crime here."

"They asked me not to use her name, but never indicated it would endanger her or anybody else. According to a confidential source at the CIA, Mrs. Wilson was an analyst, not a spy, not a covert operative and not in charge of undercover operators," Novak said.


What Novak did not say is as important as what he did say. He did not say that Bush Adminstration officials did not leak the information to him. Rather, he said that they did not call him to leak it. He did not say that they mistakenly divulged the information in a slip of the tongue. Rather he said that after disclosing the information, they asked him not to divulge it.

This is completely consistent with Administration officials intending to leak the information to discredit or seek revenge against Wilson by revealing his wife's identity as a CIA operative. Officials do not have to call columnists like Novak to leak information; rather the columnists are continuously attempting to contact them. Officials know this. Moreover, to reveal such information in the course of a conversation about another topic is probably the most prudent way to leak information. Finally, a request not to disclose the information is not the same as a demand that the information not be disclosed or the reporter will suffer consequences.

Like any good journalist, Novak is defending his sources. He is not only defending their identities, but also any claim that the officials have violated the law by deliberately leaking the information. However, read carefully, what he said is not an adequate defense.


UPDATE: Compare Novak's recent statement with the one published shortly after his story appeared, on July 22 (thanks to Atrios for the link):

Novak, in an interview, said his sources had come to him with the information. "I didn't dig it out, it was given to me," he said. "They thought it was significant, they gave me the name and I used it."




Friday, September 26, 2003

JB

Colin Powell, Diplomat

A nice quote from today's New York Times editorial on the interim Iraq Survey Report:

[I]t was the fear of weapons of mass destruction placed in the hands of enemy terrorists that made doing something about Iraq seem urgent. If it had seemed unlikely that Mr. Hussein had them, we doubt that Congress or the American people would have endorsed the war.

This is clearly an uncomfortable question for the Bush administration. Yesterday, Secretary of State Colin Powell met with Times editors. Asked whether Americans would have supported this war if weapons of mass destruction had not been at issue, Mr. Powell said the question was too hypothetical to answer. Asked if he, personally, would have supported it, he smiled, thrust his hand out and said, "It was good to meet you."




Wednesday, September 24, 2003

JB

And, Apparently, No Weapons of Mass Destruction of Any Kind

The BBC now reports that the interim report of the Iraq Survey Group will state that they have discovered no weapons of mass destruction in Iraq and that it is very likely unlikely that Iraq distributed such weapons to Syria before the war began.

Mr Neil said that according to the source, the report will say its inspectors have not even unearthed "minute amounts of nuclear, chemical or biological weapons material".

They have also not uncovered any laboratories involved in deploying weapons of mass destruction and no delivery systems for the weapons.

But, Mr Neil added, the report would publish computer programmes, files, pictures and paperwork which it says shows that Saddam Hussein's regime was attempting to develop a weapons of mass destruction programme.


My greatest concern had been that the reason why no WMD's were found is because they were spirited out of the country by terrorists during the chaos of the war. But if this report about the Iraq Survey Report is to be believed, there were no weapons to spirit out at all. At most there was were plans for a program that was in "suspended animation"-- i.e., with various elements placed around the country so that Iraqi scientists could begin working on starting up a weapons program as soon as international inspectors turned their attention away from Iraq. This is the dispersion and reassembly theory mentioned in my previous post.

In my previous post I suggested that such a discovery might take some of the heat off the Administration. But on further reflection, I am not so sure anymore. If the weapons programs would remain in suspended animation as long as eyes were on Iraq, then a strategy of containment was probably fully adequate to deal with the future threat posed by Iraq, precisely what the Bush Administration denied in the months leading up to the war. Thus, even though the Administration may want to take some comfort out of findings of a dormant weapons program, those very findings suggest that it badly misjudged the situation in Iraq and chose the wrong strategy for dealing with the threat of WMD's.


Sunday, September 21, 2003

JB

And No Smallpox, Either

The Guardian reports:

A team of US government scientists has turned up no evidence that Saddam Hussein was making or stockpiling smallpox.

"Team Pox", a six-member group hunting for laboratories manufacturing the deadly virus, found nothing more sinister than equipment covered in cobwebs, and nothing to suggest a smallpox programme, according to military officials involved in the project, who leaked the information to the Associated Press.

"We found no physical or new anecdotal evidence to suggest Iraq was producing smallpox or had stocks of it in its possession," one military official said.

In the run-up to the conflict, George Bush regularly used the smallpox example to drive home the immediacy of Iraq's threat to ordinary Americans.


Nevertheless, according to a report by the Washington Times, David Kay, who is heading the Iraq Survey Report, has told senators that his report will conclude that Iraq did have an active biological weapons *program* at the time the United States attacked Iraq, although he has not yet offered any proof for this claim. Apparently, according to a report by the Boston Globe at the end of August, Kay will argue that Hussein spread plans and parts for the manufacture of chemical, biological and nuclear weapons around various parts of Iraq with the idea of assembling them to produce weapons of mass destruction when U.N. inspectors left the country. This dispersion and reassembly theory would take some of the political heat off the Administration by offering an explanation of why Saddam was as dangerous as the Admnistration claimed even though no actual weapons of mass destruction were found. Needless to say, a great deal is at stake in the results of the Iraq Survey Report, for if Kay can make a convincing case that WMD's were in a ready to be manufactured state, his report could not come at a better time for the Bush Administration, which has lost considerable credibility on this issue.



Thursday, September 18, 2003

JB

Blix: No Iraq WMD's since 1991

Chief U.N. Arms Inspector Hans Blix has concluded that Iraq probably had destroyed its weapons of mass destruction by 1991 and had none in its possession for over a decade, the Belfast Telegraph reports (also see this story from ABC News (Australian):

Mr Blix, who retired in June, told the Australian state broadcaster ABC: "I'm certainly more and more to the conclusion that Iraq has, as they maintained, destroyed all, almost, of what they had in the summer of 1991." . . .

Mr Blix, speaking from his home in Sweden, said that he thought it unlikely that non-UN experts deployed by the coalition forces to search for weapons of mass destruction would find anything beyond "some documents of interest". He added: "The more time that has passed, the more I think it's unlikely that anything will be found."


Blix also criticized the American and British governments for their decision to go to war on insufficient evidence of weapons of mass destruction, Reuters reports:

Blix attacked the "spin and hype" behind the U.S. and British allegations that Iraq had weapons of mass destruction.

Blix, who said this week he believed Iraq had destroyed such weapons 10 years ago, told BBC radio that Washington and London "over- interpreted" intelligence.

Comparing them to medieval witch-hunters, he said the two countries convinced themselves on the basis of evidence that was later discredited.

"In the Middle Ages when people were convinced there were witches they certainly found them. This is a bit risky," said Blix, whose inspectors left Iraq on the eve of war in March after just a few months of inspections.


I should note that despite Blix's confidence that there were no WMD's in Iraq when the Americans and British attacked, the Iraq Survey Group's report has yet to be released, and we will see whether any new evidence has emerged. Certainly the members of the survey have every incentive to find weapons of mass destruction if they are in fact there.

JB

To The Max!

Former Senator (and head of the Veterans' Administration) Max Cleland's op-ed in the Atlanta Journal Constitution (via Daily Kos) pretty much nails it:

Instead of learning the lessons of Vietnam, . . . , the president, the vice president, the secretary of defense and the deputy secretary of defense have gotten this country into a disaster in the desert.

They attacked a country that had not attacked us. They did so on intelligence that was faulty, misrepresented and highly questionable.

A key piece of that intelligence was an outright lie that the White House put into the president's State of the Union speech. These officials have overextended the American military, including the National Guard and the Reserve, and have expanded the U.S. Army to the breaking point.

A quarter of a million troops are committed to the Iraq war theater, most of them bogged down in Baghdad. Morale is declining and casualties continue to increase.

In addition to the human cost, the war in dollars costs $1 billion a week, adding to the additional burden of an already depressed economy.

The president has declared "major combat over" and sent a message to every terrorist, "Bring them on." As a result, he has lost more people in his war than his father did in his and there is no end in sight.

Military commanders are left with extended tours of duty for servicemen and women who were told long ago they were going home. We are keeping American forces on the ground, where they have become sitting ducks in a shooting gallery for every terrorist in the Middle East.

Welcome to Vietnam, Mr. President. Sorry you didn't go when you had the chance.




Monday, September 15, 2003

JB

The Return of Bush v. Gore

Today the Ninth Circuit Court of Appeals issued an injunction staying the California recall election on the grounds that about 44 percent of the California population will be using outmoded punch card technology to cast their ballots, leading to the likelihood that many of their votes will not be counted. (More on the court's decision here). The court argued that this violated the Equal Protection Clause of the Fourteenth Amendment, citing prominently as justification the Supreme Court's decision in Bush v. Gore.

For those of us who were deeply skeptical of the politics if not the reasoning of the Bush v. Gore opinion, the 9th Circuit's use of it to delay-- at least for the moment-- a Republican plan to replace California's elected Democratic governor with a Republican candidate is deeply amusing. Nevertheless, there are several important differences that are worth noting.

First, the objectionable portion of Bush v. Gore was not its equal protection holding, but rather the remedy, which was inconsistent with the equal protection theory. Indeed, the only thing odd about the equal protection holding was that it was a liberal innovation supported by the Court's most conservative members, who usually fight shy of such social engineering, at least where election of Republican Presidential candidates is not at stake.

Second, the Bush v. Gore decision, by its own terms, limited the scope of its equal protection holding to the precise facts of the case, that is, the rules governing hand recounts by the judiciary. Although the case made noises about the fact that punch card ballots were more likely to be spoiled than other forms of balloting, the court stopped well short of holding that different voting technologies violated the equal protection clause. For had it so held, it would have opened the door to a much more extensive complaint about the Florida election. Nevertheless, the dissenting justices noted that the logic of Bush v. Gore might well apply to technological differences as well.

One possible distinction is that technological differences in ballot spoilage do not necessarily mean that there has been any sort of deliberate intent to discriminate against voters or deny them the right to have their ballots counted. The Bush v. Gore holding could be read narrowly to hold that judicial hand recounts required a single standard in order to avoid invidious discrimination against voters. That is to say, the Bush v. Gore opinion may be about the Court's distrust of the Florida judiciary's bona fides in conducting the recount. That would pose a different problem than the problem of different voting technologies used in different parts of the state.

Nevertheless, the Court's precedents in the voting area do not always require bad intent in order to find a violation of voting rights under the Fourteenth Amendment. The principle of one person, one vote should, in theory, apply whether the dilution of the voter's rights was deliberate or negligent. Hence the Ninth Circuit's argument, even though it does not follow directly from Bush v. Gore, nevertheless makes some sense in the light of the Court's other voting rights precedents.

Nevertheless, there is a delicious irony in watching Bush v. Gore used in this way. The Supreme Court apparently believed that it could resolve the 2000 election by issuing an opinon that would never be used or cited by any court again. It hoped to expand equal protection doctrine for this one case but then hold that the decision was limited to the precise facts of Bush v. Gore. The Ninth Circuit has called its bluff, suggesting, in effect, that if the Supreme Court wants us to believe that Bush v. Gore was a legal opinon, then it should be treated as law, with real precedental consequences, rather than as a one-time imposition of will by five Justices who wanted to install the Republican candidate, George W. Bush, as President.

Long live the rule of law!


JB

Report On WMD's Will Surface After All

The London Times reported Sunday (an abbreviated account can be found here) that both the U.S. and Great Britain had blocked release of the Iraq Survey Group report on WMD's because the report failed to find any evidence of WMD's. CBS News now reports that the report will be published after all, but that it will be inconclusive.

The Times reports the decision by Britain and America to delay the report's release comes after efforts by the Iraq Survey Group, a team of 1,400 scientists, military and intelligence experts, to search Iraq for the past four months to uncover evidence of chemical or biological weapons ended in failure.

In July, David Kay, the survey group's leader, suggested that he had seen enough evidence to convince himself that Saddam Hussein had had a program to produce weapons of mass destruction. He expected to find "strong" evidence of missile delivery systems and "probably" evidence of biological weapons.

But last week, Defense Secretary Donald Rumsfeld said he had met with Kay, and that the onetime weapons inspector had not informed him of any finds.



UPDATE: CBS originally reported, consistent with the Times article, that the WMD report would be blocked indefinitely, but later was informed that the report would in fact be issued. It seems clear, at any rate, that once the original story alleging that the report would be blocked ran in the London Times, the report would eventually have to be released to the public whatever the Bush and Blair Adminstrations' qualms about it might have been.

JB

No Nukes in Iraq

A UN arms inspectors report leaked to the Associated Press suggests that Iraq had no nuclear program worth worrying about:

International Atomic Energy Agency chief Mohamed ElBaradei reiterated that his experts uncovered no signs of a nuclear weapons program before they withdrew from Iraq just before the war began in March.

"In the areas of uranium acquisition, concentration and centrifuge enrichment, extensive field investigation and document analysis revealed no evidence that Iraq had resumed such activities," ElBaradei said in the report, made available to the AP by a diplomat.

"No indication of post-1991 weaponization activities was uncovered in Iraq," he said.



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