Tuesday, April 20, 2004


Running on Empty

The American war effort is running low on cash and experts say that the military needs a supplemental increase in spending soon, the Washington Post reports. The White House's position is that, to the contrary, there is plenty of money to pay for all operations and there will be no need to ask Congress for more until early next year, well after the elections.

The Administration's reticence is understandable. Asking for more money now on the heels of the previous request for 87 billion to fund operations tends to suggest (a) that the Administration hasn't been forthcoming about the real costs of its Iraq venture, (b) that the Administration doesn't have a good plan for winning the war, (c) that our forces are increasingly getting bogged down by insurgents, (d) that the entire Iraq venture is a sinkhole and a serious error of judgment, or (e) all of the above.

Moreover, a renewed debate over appropriations would call into question whether the Administration has a clue about how to resolve the Iraq situation. Congressmen and Senators will certainly want the Administration to make a good showing that it has a plan that can work before they start throwing more money down the sewer. After all tax cuts, the new Medicare bill, and the Bush Administration's multiple other spending priorities have already produced enormous deficits. Why throw good money after bad and risk wrecking economic recovery in the process?

Thus, the Administration has abundant political reasons not to ask for more money now, because it wants to avoid a whole host of embarrassing questions about its stewardship of the country. Even so, it has no good policy reasons for failing to ask for more money. American troops need to be fully funded if they are to have any chance at waging the war successfully. Squeezing the troops to avoid having to answer difficult questions about one's policies is simply not a good strategy for winning a war, and, not to put to fine a point on it, it's not in the least bit patriotic either.

Either we make the effort and the sacrifices necessary to win this thing, stabilize Iraq, and put it on the road to a semblance of democracy, or we should stop needlessly sacrificing lives. The one thing we should not do is help secure defeat by half-hearted measures that are politically convenient to those in power. We've been down that road before; it did not turn out at all well.

Monday, April 19, 2004


Oil For State Secrets?

Among the more interesting parts of Woodward's book:

But, it turns out, two days before the president told Powell [about his plan to go to war with Iraq], Cheney and Rumsfeld had already briefed Prince Bandar, the Saudi ambassador.

”Saturday, Jan. 11, with the president's permission, Cheney and Rumsfeld call Bandar to Cheney's West Wing office, and the chairman of the Joint Chiefs, Gen. Myers, is there with a top-secret map of the war plan. And it says, ‘Top secret. No foreign.’ No foreign means no foreigners are supposed to see this,” says Woodward.

“They describe in detail the war plan for Bandar. And so Bandar, who's skeptical because he knows in the first Gulf War we didn't get Saddam out, so he says to Cheney and Rumsfeld, ‘So Saddam this time is gonna be out, period?’ And Cheney - who has said nothing - says the following: ‘Prince Bandar, once we start, Saddam is toast.’"

After Bandar left, according to Woodward, Cheney said, “I wanted him to know that this is for real. We're really doing it."

But this wasn’t enough for Prince Bandar, who Woodward says wanted confirmation from the president. “Then, two days later, Bandar is called to meet with the president and the president says, ‘Their message is my message,’” says Woodward.

Prince Bandar enjoys easy access to the Oval Office. His family and the Bush family are close. And Woodward told 60 Minutes that Bandar has promised the president that Saudi Arabia will lower oil prices in the months before the election - to ensure the U.S. economy is strong on election day.

Woodward says that Bandar understood that economic conditions were key before a presidential election: “They’re [oil prices] high. And they could go down very quickly. That's the Saudi pledge. Certainly over the summer, or as we get closer to the election, they could increase production.

Well, at least we know one foreign leader that isn't supporting John Kerry. And in return for access to state secrets-- after all, what are a few state secrets between old friends?-- he's manipulating oil prices to help keep Bush in office.

Bandar's been in the news lately for another reason-- the disturbing possibility that he or his associates may have been financing terrorism:

A federal investigation into the bank accounts of the Saudi Embassy in Washington has identified more than $27 million in "suspicious" transactions—including hundreds of thousands of dollars paid to Muslim charities, and to clerics and Saudi students who are being scrutinized for possible links to terrorist activity, according to government documents obtained by NEWSWEEK. The probe also has uncovered large wire transfers overseas by the Saudi ambassador to the United States, Prince Bandar bin Sultan. The transactions recently prompted the Saudi Embassy's longtime bank, the Riggs Bank of Washington, D.C., to drop the Saudis as a client after embassy officials were "unable to provide an explanation that was satisfying," says a source familiar with the discussions.

A Saudi spokesman strongly denied that any embassy funds were used to support terrorism and said Bandar chose to pull the embassy's accounts out of Riggs. The Saudis point out that an earlier FBI probe into embassy funds that were moved to alleged associates of the 9/11 hijackers has not led to any charges. The current probe, by the FBI and Treasury Department, is one of the most sensitive financial inquiries now being conducted by the government and is being closely monitored by the White House. The federal commission investigating 9/11 was also recently briefed on developments, sources say. U.S. officials stress that they have identified no evidence of any knowing Saudi aid to terrorist groups. But they express frustration at their inability to penetrate a number of large and seemingly irregular transactions. "There's a lot of money moving in a lot of directions—maybe not all that carefully," said one senior law-enforcement official. "Everyone wants to get to the bottom of it."

One would think that President Bush, who has pledged to do everything in his power to keep America safe from terrorism, would be sounding the alarm. After all, the Administration has thrown Muslims in jail and kept them incommunicado on much less evidence than this. Instead, the President is keeping mum, and his old family friend-- the one who had access to top secret war plans-- is making sure that the President will have oil prices low enough to keep him in power.

This doesn't smell good at all.


Only Elitists Worry About Being Misled

So the President tells us:

[S]ays Woodward: “He chastised me at one point because I said people were concerned about the failure to find weapons of mass destruction. And he said, ‘Well you travel in elite circles.’ I think he feels there is an intellectual world and he's indicated he's not a part of it … the fancy pants intellectual world. What he calls the elite.”

For example, there are all those elitist families whose sons and daughters are fighting in Iraq:
[Debbie] Pratte is angry. She thinks that President Bush hoodwinked Americans into a conflict that put her youngest child in harm's way, as a gunner with the Crisfield-based 1229th Transportation Company.

"It's not right that I have to sit here worrying about my son for something the president lied about," she said, alluding to White House claims about weapons of mass destruction. "If it takes everything I have, I will never let him go back there."

And this woman sounds particularly elitist:
Jean Prewitt, 53, of Birmingham, Ala., mourned the loss of her 24-year-old son Kelley, during fighting south of Baghdad last April. A former supporter of Bush, Prewitt said she refuses to vote for him now after he waged a war based on alleged weapons of mass destruction in Iraq that have yet to be found.

"My son died in vain, and I'm frustrated and mad," Prewitt said at the demonstration outside the White House. "I believed our president, but he didn't come clean. He never attended a funeral of a slain soldier and he won't even show remorse."

Sunday, April 18, 2004


Not Wanting To Talk, Not Wanting to Hear

Colin Powell comes off pretty good in the excerpts from Bob Woodward's book that I've read so far, but there is one passage that is particularly disturbing:

In all the discussions, meetings, chats and back-and-forth [about whether to go to war], in Powell's grueling duels with Rumsfeld and Defense, the president had never once asked Powell, Would you do this? What's your overall advice? The bottom line?

Perhaps the president feared the answer. Perhaps Powell feared giving it. It would, after all, have been an opportunity to say he disagreed. But they had not reached that core question, and Powell would not push. He would not intrude on that most private of presidential space -- where a president made decisions of war and peace -- unless he was invited. He had not been invited.

This says as much about Powell as it does about Bush. Bush has a reputation for not liking to hear unpleasant truths, but didn't Powell have a duty at some point to tell the President that he thought the war was a bad idea? After all, the lives of countless human beings, both American and Iraqi, were at stake, as well as the potential for serious long term consequences for American interests in the Middle East. Even if Powell believed that the President would ultimately be guided by Cheney and Rumsfeld, didn't Powell have a duty to say, "Look, you haven't asked me what I thought, and you may not want to hear it anyway, but I'm not only your Secretary of State, I'm also a military man, and unlike some of your other advisors, I've actually fought a war in Iraq, and this is what I think about what you are about to do."

I'm generally an admirer of Powell's. But his reticence at this point is unpardonable. What is the point of being an advisor to the President if you don't have the guts to risk his displeasure and give him the advice he needs?

Friday, April 16, 2004


The Republican Theory of The Second Amendment and Its Ironies

The (civic) republican theory of the Second Amendment holds that the citizenry's right to bear arms is necessary to prevent tyrannical governments from abridging liberty. The Second Amendment is a fail-safe; if the central government becomes oppressive, or if a conquering or colonizing force takes power, the citizens can band together in militias to overthrow the government. In the alternative, they can provoke the oppressive government to expend resources in putting down the rebellion, in the process weakening or delegitimating it. Thus, for example, the Boston Tea Party led Britain to clamp down on Boston, and this may have had the perverse effect of drawing more people to the side of the revolutionaries.

Of course, the civic republican theory is premised on a romantic notion of militias made of sturdy yeoman farmers determined to protect their families and their homeland in the name of liberty. Civic republican theory assumed that in the face of oppression the People as a whole would rise up-- that is, that when militias exercised their right of revolution, they would succeed only to the extent that they more or less represented a broad spectrum of popular discontent with a tyrannical government. But in practice, militias do not always consist of the whole people, but rather of particularly angry and aroused segments and factions of the population. And, perhaps more to the point, often the militias that arise to contest a hated government are not always composed of people with particularly admirable aims. Think of Honduras and El Salvador in the 1980's. Indeed, you might say, at the risk of hyperbole, one person's militia is another person's death squad.

In any case, before our very eyes, we are witnessing a demonstration of the republican theory of the Second Amendment, and the role of firearms in contesting a hated government in Iraq. That government, unfortunately, happens to the the provisional authority run by the United States. It is not clear whether the various Sunni and Shiite factions that are momentarily making common cause against the government in place-- that is, the United States of America-- truly represent the People of Iraq. There may, in fact, be no such thing as the People of Iraq. But there are people in Iraq, and many of them seem to hate the provisional authority (and the United States) very much, to the point that they are willing to take up arms against it. Or to put the point more piquantly, one person's minuteman is another person's mujahideen.

One of the interesting features of the new Iraqi Interim Constitution, as I have previously noted, is that it conspicuously does *not* guarantee the right to bear arms: Article 17 states: "It shall not be permitted to possess, bear, buy, or sell arms except on licensure issued in accordance with the law." That provision makes perfect sense if you are the occupier who wants to stabilize the country. The first thing you need to do is disarm the population. So you can see why the Americans don't want anything like the Second Amendment in Iraq. Nor does any occupying power. Nor, for that matter, does any tyrant or illegitimate regime. But the whole point of the civic republican theory is that the government doesn't get to decide whether it is legitimate or tyrannical; that decision must be left to the people themselves. That's why they need the right to bear arms.

Meanwhile, back at home, we see the Republican (with a capital R) theory of the Second Amendment in operation:

When the National Rifle Association opens its annual meeting here on Friday, it will do more than celebrate hunting, weaponry and the Second Amendment. It will also kick off a vigorous campaign to whip up support among its nearly four million members for President Bush's re-election.

Before tens of thousands of gun owners at the Pittsburgh Convention Center, the association's leadership plans to label Mr. Bush's likely Democratic opponent, Senator John Kerry of Massachusetts, as a liberal threat to gun ownership. It is a message they will repeat again and again until Election Day, using the Internet, mailings, television advertising and their formidable nationwide network of gun clubs.

Now you may wonder why the NRA thinks that the Second Amendment is so necessary to democracy in the United States, but doesn't think it necessary in Iraq. After all, to quote President Bush himself:
Some of the debate really centers around the fact that people don't believe Iraq can be free; that if you're Muslim, or perhaps brown-skinned, you can't be self-governing or free. I'd strongly disagree with that.

I reject that. Because I believe that freedom is the deepest need of every human soul, and if given a chance, the Iraqi people will be not only self-governing, but a stable and free society.

It couldn't be, could it, that the NRA thinks that brown-skinned people in Iraq can't be trusted to have the basic civil rights that Americans have?

Well, perhaps there's a better way to make sense of the NRA's support for Bush. Perhaps it's not that brown-skinned people will misuse the right to bear arms. Perhaps its that you don't want people to have the right to bear arms when there is a serious chance that they will use it to overthrow the wrong government. That is to say, an armed populace may mistake the guardians of peace, democracy and security for an oppressive and tyrannical regime and exercise their Second Amendment rights in the wrong way.

But if that's so, then the Republican theory of the Second Amendment clearly isn't the republican theory of the Second Amendment.


The Verdict of History

From Woodward's new book:

Asked by Woodward how history would judge the war, Bush replied: "History. We don't know. We'll all be dead."

Yes, George, but the whole problem with starting wars is that some people will be dead before others.

Wednesday, April 14, 2004


Why did the Chicken Cross the Road? To Get To the Other Side!

Bush's Top Ten Answers to the Question: "Why are you and Vice President Cheney insisting on appearing jointly before the 9-11 Commission?"

(from last night's press conference).

10. "Because the 9-11 commission wants to ask us questions, that's why we're meeting."

9. "And I look forward to meeting with them and answering their questions."

8. "Because it's a good chance for both of us to answer questions that the 9-11 commission is looking forward to asking us."

7."And I'm looking forward to answering them."

6. Because they want to ask us questions, see?

5. We can't answer the questions unless we appear before them.

4. What part of "so we can answer their questions" don't you understand? Are you, like, stupid or something?

3. OK. Let me put this real simple. They-- that's the 9-11 commission-- have QUESTIONS. You get it? Q-U-E-S-T-I-O-N-S. And we-- that's Dick Cheney and I-- we want to ANSWER them.

2. Maybe you don't speak English. OK, mi amigo. Tienen las preguntas y tenemos las respuestas!

1. Next Question.

The Real Top Ten Reasons Why Bush Insists On Appearing With Vice-President Cheney Before the 9-11 Commission

10. We're a team: He gives me bad advice, and I follow it!

9. I tend to fall asleep in meetings longer than twenty minutes.

8. He knows the name of that Arab guy.

7. I tend to lose my train of thought in answering long complicated questions.... What were you asking again?

6. Condi couldn't make it.

5. He's read a lot of long reports, some of them are over three pages long!

4. You'd better not be mean to me, because my Vice-President can beat up your Vice-President!

3. I have a bad sense of direction and I might not be able to find the conference room by myself.

2. The dog ate my homework.

1. He's a *much* better liar than I am.

Tuesday, April 13, 2004


This Does Not Inspire Confidence

From the President's press conference:

QUESTION: Thank you, Mr. President.

In the last campaign, you were asked a question about the biggest mistake you'd made in your life, and you used to like to joke that it was trading Sammy Sosa.

You've looked back before 9-11 for what mistakes might have been made. After 9-11, what would your biggest mistake be, would you say, and what lessons have learned from it?

BUSH: I wish you'd have given me this written question ahead of time so I could plan for it. [WHAT!]

John, I'm sure historians will look back and say, gosh, he could've done it better this way or that way. You know, I just -- I'm sure something will pop into my head here in the midst of this press conference, with all the pressure of trying to come up with answer, but it hadn't yet. [That's because nobody briefed me on what mistakes I should say I made. I'm not trained to be humble or to admit that I've ever done anything wrong]

I would've gone into Afghanistan the way we went into Afghanistan. Even knowing what I know today about the stockpiles of weapons, I still would've called upon the world to deal with Saddam Hussein. [In other words, I would have done exactly what I did. No admission of mistakes so far]

See, I'm of the belief that we'll find out the truth on the weapons. That's why we sent up the independent commission. I look forward to hearing the truth as to exactly where they are. They could still be there. They could be hidden, like the 50 tons of mustard gas in a turkey farm. [In fact, I won't even admit I was wrong about the existence of WMD's]

One of the things that Charlie Duelfer talked about was that he was surprised of the level of intimidation he found amongst people who should know about weapons and their fear of talking about them because they don't want to be killed. You know, there's this kind of -- there's a terror still in the soul of some of the people in Iraq.

BUSH: They're worried about getting killed, and therefore they're not going to talk. But it'll all settle out, John. We'll find out the truth about the weapons at some point in time. [Still no admission that he was wrong about WMD's or anything else for that matter]

However, the fact that he had the capacity to make them bothers me today just like it would have bothered me then. He's a dangerous man. He's a man who actually not only had weapons of mass destruction -- the reason I can say that with certainty is because he used them. [Still no admission of any mistakes, even on the WMD's]

And I have no doubt in my mind that he would like to have inflicted harm, or paid people to inflict harm, or trained people to inflict harm, on America, because he hated us. [And still no admission of any mistakes]

I hope -- I don't want to sound like I have made no mistakes. I'm confident I have. I just haven't -- you just put me under the spot here, and maybe I'm not as quick on my feet as I should be in coming up with one.

My goodness, the man is clueless. From these remarks it appears that he has absolutely no sense that he has screwed up about anything. Indeed, he says only what he has been carefully prepared to say by his advisors, and when someone asks him a question that requires even the slightest degree of intelligent self-reflection, he freezes up, blames the questioner for ambushing him, and then incoherently babbles on about how everything he did was perfectly correct, and how we are still going to find those weapons of mass destruction.

This is the most embarassing combination of stupidity, stubborness, and self-delusion I have seen from a President of the United States in my lifetime.

And perhaps what is most chilling, this man is in charge of our armed forces. He holds the lives of millions, and the fate of our country, in his hands.

May God have mercy on our souls.


John Ashcroft, Bane or Boon to Terrorists?

Compare and discuss:

1. Ashcroft ignores terrorism before 9/11:

Draft reports by the independent commission investigating the Sept. 11 attacks portray Attorney General John Ashcroft as largely uninterested in counterterrorism issues before Sept. 11 despite intelligence warnings that summer that Al Qaeda was planning a large, perhaps catastrophic, terrorist attack, panel officials and others with access to the reports have said.

They said the draft reports, which are expected to be completed and made public during two days of hearings by the commission this week, show that F.B.I. officials were alarmed throughout 2001 by what they perceived as Mr. Ashcroft's lack of interest in terrorism issues and his decision in August 2001 to reject the bureau's request for a large expansion of its counterterrorism programs.

The draft reports, they said, quote the F.B.I.'s former counterterrorism chief, Dale Watson, as saying he "fell off my chair" when he learned that Mr. Ashcroft had failed to list combating terrorism as one of the department's priorities in a March 2001 department-wide memo.

2. Ashcroft uses 9/11 to attack his critics and accuses those who disagree with his policies of helping terrorists:
Attorney General John Ashcroft lashed out Thursday at critics of the administration's response to terrorism, saying questions about whether its actions undermine the Constitution only serve to help terrorists.

"To those who pit Americans against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve," Ashcroft told the Senate Judiciary Committee. "They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil.

Come on, John, seriously, who really helped the terrorists the most? The ACLU, or you?

Monday, April 12, 2004


They Don't Write Racist Propaganda Like They Used To

I took the Little Green Footballs/Late German Fascists quiz and scored 92%. It was actually pretty easy to tell which comments were from Nazi propagandists and which were from the comments section of the Little Green Footballs blog. The former generally had more old fashioned sentence structures; the latter tended to make references to a state (i.e. a Palestinian state). This doesn't mean that I thought that the selected LGF comments were significantly less racist. It just means that it was possible to separate the two groups based on their prose style.

Sunday, April 11, 2004


Unconstitutional Laws You'd Like To See

Jacob Levy and Matthew Yglesias have been tossing around two questions:

(1) What laws do you think are constitutional that you oppose as a matter of policy?
(2) What laws do you support as a matter of policy that you think are unconstitutional?

Question (1) should be particularly easy for most people, because most constitutional scholars in the post-1937 period think that lots of social and economic regulations are constitutional that strongly disagree with.

Jacob thinks that "For most originalists, the question is easier still because they think most things are constitutional."

Actually the question is a bit harder for most originalists, because originalism has a much more constricted view of federal regulatory power than current doctrine recognizes. So one presumes that lots of laws which regulate the economy (including, I suspect, a fair number of federal civil rights laws, environmental protection laws, labor laws, and consumer protection laws) would be unconstitutional under the original understanding of Congress's commerce power. I also think there's a pretty strong argument that independent federal agencies like the Federal Reserve and the Federal Communications Commission are unconstitutional under the original understanding. In fact, there's also a pretty good argument that issuing paper money as legal tender is unconstitutional under the original understanding.

Question (2), Jacob thinks, is more interesting. I agree. There are a number of things that I think are good public policy but are clearly unconstitutional. Many of them have to do with structural features of the Constitution that are rarely if ever litigated. Here are some examples:

(1) People who are not natural born citizens should be able to run for President.

(2) The electoral college should be reformed and/or replaced with a runoff system.

(3) The method for deciding who becomes president and vice president if there is no majority in the electoral college is positively looney and should be scrapped.

(4) Supreme Court Justices should serve for fixed terms of eighteen years according to a method set by Congress which would guarantee the President exactly two selections per term in office.

(5) Appointments to Article III judgeships should require 60 votes for confirmation, in order to promote Presidential- Senate bargaining and more moderate candidates. (That is, the Senate filibuster rule, rather than being abolished, should be made into a formal policy for judgeships). In fact, there is an argument that it might be better to require a two-thirds vote.

If you are interested in a large number of such examples, I recommend Bill Eskridge and Sandy Levinson's book, Constitutional Stupidities/Constitutional Tragedies.


Restoring Integrity to the White House

Cynthia Tucker tells it like it is:

As a candidate, President Bush pledged to restore integrity to the White House. Against the backdrop of President Clinton's repeated lies about a sordid adulterous affair, Bush ran on his claims to be a man of strong character -- a politician of plain speaking and straight talk. He wouldn't lie to us.

Yet, this administration has produced more dissembling and distortion, more fabrications and pseudo-facts, than any White House in recent memory -- Richard Nixon's included. They lie brazenly and repeatedly, refusing to back down even when caught in the web of their own contradictions.

The falsehoods aren't limited to Iraq. In domestic policy, Bush administration officials have shaded the truth, spread lies, and even threatened underlings who believed in a moral obligation to honesty.

As just one example, the chief Medicare actuary, Richard S. Foster, has said his supervisor, Thomas Scully (who recently joined an Atlanta-based law firm that lobbies on behalf of hospitals and drug companies), threatened to fire him if Foster revealed to Congress the true costs of the proposed prescription drug benefit for Medicare. While the administration was ramming the costly benefit through Congress -- promising that its price would be no more than $400 billion over 10 years -- Foster had calculated the actual costs at between $500 billion and $600 billion, figures the White House disclosed after the bill passed.

But there is no area that better demonstrates the Orwellian quality of the Bush administration -- its insistence that black is white, up is down, war is peace -- than its deceptions about Iraq. Testimony under oath before the Sept. 11 commission and the Iraq uprising make increasingly clear that the central underpinning of the president's re-election campaign -- that he has conducted a tough-minded war on terror -- stands the truth on its head. . . .

The entire premise of the Bush presidency -- that he is a man of principle, of honor, of candor -- is crumbling. The chaos engulfing Iraq is not just the result of guileless miscalculations. It is the inevitable outcome of a policy built on mendacity.

Saturday, April 10, 2004


PDB Shows CIA Tried to Get Bush's Attention Prior to 9/11

The White House has declassified and released the August 6th, 2001 President's Daily Briefing, which is entitled "Bin Ladin Determined To Strike in US." What is important about this document is not, as Condi Rice suggested, whether or not it offers "historical" information. What is important about the PDB is that the CIA was pretty clearly trying to get Bush's attention and explain to him that something needed to be done. As the Washington Post story on the PDB puts it:

As one former administration official who has read the PDB said last week, "The agency doesn't write a headline like that if it doesn't want to get attention." In this case, the former official said, "the CIA did not believe Bush policymakers were taking the threat to the U.S. seriously."

The PDB puts Rice's testimony in a very different light, and undercuts her claim that everything that could reasonably have been done before 9/11 was done. Indeed, it suggests that both Rice and the President were altogether too passive. The issue at the hearings was whether Rice should have "shaken the tree" to get various lower level agencies to cooperate and put together information that might have alerted the White House to an imminent attack. What seems clear from the PDB is that the CIA was trying to "shake the tree" in the opposite direction; it was trying to get the President to move on an issue that it regarded as of great importance.

The President seems to have been negligent at just the wrong moment. He and Rice owe the nation a long overdue apology.


The Price of March versus October

Although I opposed the war in Iraq, I wondered at one point why the President did not wait until October 2003 rather than March 2003 to begin the war. The weather would have gotten cooler again. If Iraq maintained its intransigence through the summer, most of the U.N. would have felt pressure to tip to the American side and support a resolution for war. A war conducted by the U.N. would have had much greater legitimacy and international support. Equally important, it would have made it easier for many countries to share the burden of reconstruction.

Fareed Zakaria's review of Hans Blix's new book seems to confirm that the Bush Administration made a serious blunder:

But if getting Iraq right was tough, getting the diplomacy right was much easier. Reading this book one is struck by how, at the end, the United States had become uninterested in diplomacy, viewing it as an obstacle. It seems clear that with a little effort Washington could have worked through international structures and institutions to achieve its goals in Iraq. Blix and ElBaradei were proving to be tough, honest taskmasters. Every country -- yes, even France -- was coming around to the view that the inspections needed to go on for only another month or two, that benchmarks could have been established, and if the Iraqis failed these tests the Security Council would authorize war. But in a fashion that is almost reminiscent of World War I, the Pentagon's military timetables drove American diplomacy. The weather had become more important than international legitimacy.

Had Washington made more of a commitment to diplomacy, Saddam Hussein would probably still have been deposed. Blix's book provides ample evidence that the Iraqis would most likely not have met the tests required of them. But the war would have been authorized by the Security Council, had greater international support and involved much more burden sharing. Countries like India and Pakistan, with tens of thousands of troops to provide, made it clear that they needed a United Nations mandate to go into Iraq. The Europeans and Japanese (who now pay for at least as much of the reconstruction of Afghanistan as the United States does) would similarly have been more generous in Iraq than they are today.

Most important, the rebuilding of Iraq would be seen not as an American imperial effort but as an international project, much like those in Bosnia, Kosovo, East Timor and even Afghanistan. America is paying a price in credibility for its mishandling of Iraq. But the real price is being paid by the Iraqi people, whose occupation has been far more lonely and troubled than it needed to be.

Friday, April 09, 2004


Support For Bush Eroding on Iraq

The Christian Science Monitor reports:

As violence and US casualties mount in Iraq, President Bush is facing a precarious political situation at home - and a potentially critical moment in the presidential campaign.

Current polls suggest that public opinion on the conflict could be approaching a tipping point. While Americans have always been divided over the war, a majority has consistently held that the US made the right decision in deposing Saddam Hussein. But some polls now find a majority disapproving of Mr. Bush's handling of the situation in Iraq, and, according to a recent Pew survey, a sizable margin believes the administration does not have a plan to bring the conflict to a successful conclusion. The number of Americans calling for the troops to come home is rising, with just a bare majority now favoring keeping US troops in the region.

Things are not all lost for Bush. The economy is improving. Bush can still pull things out and win reelection if he pacifies the situation in Iraq and hands over power to a legitimate government by June 30th, or even failing that, by the end of the summer. But right now even this goal looks increasingly unlikely.

Bush, whose support came from appearing strong and decisive, is starting to look weak and clueless.

We now know that from the earliest days of his Administration, the President and his advisors were set on overthrowing Saddam, whatever the cost.

He got his way. And now he is discovering the cost.


What Was In the Presidential Daily Briefing for August 6th, 2001?

Quiddity makes a guess.


The President Needs A Vacation

He's back at the ranch:

[Secretary of State Colin] Powell served as the administration's point man while President Bush spent the second straight day out of public view on his ranch in Crawford, Tex. . . .

Bush spent the morning watching national security adviser Condoleezza Rice's televised testimony to the commission investigating the Sept. 11, 2001, attacks, then toured his ranch with Wayne LaPierre Jr., chief executive of the National Rifle Association, and other leaders of hunting groups and gave an interview to Ladies' Home Journal. On Sunday, he is to appear in public at nearby Fort Hood, the home base for seven soldiers recently killed in Baghdad. . . .

This is Bush's 33rd visit to his ranch since becoming president. He has spent all or part of 233 days on his Texas ranch since taking office, according to a tally by CBS News. Adding his 78 visits to Camp David and his five visits to Kennebunkport, Maine, Bush has spent all or part of 500 days in office at one of his three retreats, or more than 40 percent of his presidency.

Spending 40 percent of his Presidency on vacation is clearly a cry for help. The poor fellow is seriously overworked. I'm very much afraid he's going to work himself sick if we don't do something to help him. It's time for an intervention. The man needs-- no he deserves-- a permanent vacation from the Presidency.


Translator's Story: Condi's Lying

I don't quite know what to make of this story, which has been in the foreign press for some time now, but hasn't yet cracked the mainstream media in the United States:

US officials knew months before September 11, 2001, that the al-Qaeda network planned to use aircraft to commit a terrorist attack, according to a former FBI translator interviewed in a British newspaper yesterday.

Sibel Edmonds told The Independent that a claim by US President George Bush's National Security Adviser Condoleezza Rice that there had been no such warnings was "an outrageous lie".

The report comes as the White House said Dr Rice would testify under oath on April 8 before the September 11 commission. The former translator with the FBI said that she had provided information about her claims to the commission.

Ms Edmonds told The Independent: "There was general information about the timeframe, about methods to be used - but not specifically about how they would be used - and about people being in place and who was ordering these sorts of terror attacks. There were other cities that were mentioned. Major cities - with skyscrapers."

The 33-year-old Turkish-American translator said that based on documents she had seen during her time with the FBI, after September 11, it was "impossible" that US intelligence officials had no warning of the attacks.

The Independent reported that the Administration had sought to silence Ms Edmonds and had obtained a gag order from a court.

The Washington Times mentions Edmond's charges of sloppiness in the FBI's translation unit in her testimony before the 9-11 commission, but it says nothing about her charges about warnings of Al Qaeda attacks.

Dan Froomkin points out that the Edmonds story is one of the stories circulating in the international press that you won't read in the United States, at least yet. Well, thank goodness for the Internet. Here are stories from the Toronto Star and the Independent.

Thursday, April 08, 2004


George W. Bush: A Uniter, Not A Divider

He's united the Democrats against him, he's united many of our former allies against him, and now it appears he's even united the Shiites and the Sunnis!

Wednesday, April 07, 2004


Things Fall Apart

Six Iraqi cities have fighting, the New York Times reports.

American forces in Iraq came under fierce attack on Tuesday, with as many as 12 marines killed in Ramadi, near Baghdad, and with Shiite militiamen loyal to a rebel cleric stepping up a three-day-old assault in the southern city of Najaf, American officials said.

In Falluja, where last week American security contractors were killed and their bodies mutilated, American warplanes fired rockets at houses, and marines drove armored columns into the heart of the city, where they fought block by block to flush out insurgents. Several arrests were made.

It was one of the most violent days in Iraq since the fall of Saddam Hussein, with half a dozen cities ignited. One of the biggest questions at day's end was the role of most of the majority Shiites previously thought to be relatively sympathetic to American goals.

The heaviest fighting raged in Falluja and Ramadi, strongholds of the Sunni minority favored by Mr. Hussein that have been flash points of anti-American resistance.

President Bush, meanwhile, seems to think it's no big deal:
In the wake of the burst of violence, President Bush, speaking in El Dorado, Ark., on Tuesday, said he did not foresee changing plans to turn over sovereignty to Iraq on June 30.

Bush is between a rock and a hard place. He insisted on the June 30th date originally because he wanted sovereignty transferred well before the elections so that he could boast that he had liberated Iraq from the evil dictator Saddam and fulfilled his promise to return the country to the Iraqi people. So intent was the Administration on this political strategy that they clung to it despite all indications that there will not be time to put together a stable government that can stand on its own. If the administration has a plan to deal with the deteriorating situation in Iraq, we have yet to see it.

Now Bush's stubbornness and his reckless pursuit of short-term domestic political gain are coming home to roost. If the Administration announces that it is going to delay handing over sovereignty, it will suggest that the Americans can be pushed around by violence and threats of violence. At the same time some Iraqis will opportunistically accuse the United States of going back on its word and seeking to make Iraq into a colony or a puppet state. On the other hand, if Bush sticks to his guns and refuses to budge, he may not have a viable government to hand power over to. Then the Administration will find itself forced either to take the reins of power again and rule the country de facto or risk the very real possibility that Iraq will descend into civil war.

The predicament in which the U.S. now finds itself is a direct result of colossal hubris, short-sighted policies, and lack of preparation for the period following the fall of Baghdad. Members of the Bush Administration foolishly assumed that wars of preemption would be easy to win and could be fought on the cheap. How wrong they were. Saddam is long gone, but in his place Bush has created an awful mess, and one can have no confidence that he has any idea of how to clean it up. Our country and the Iraqis will pay for his arrogant folly for many years to come.

Saturday, April 03, 2004


Bush Agrees to Release Clinton Files

The Seattle Times reports:

In its second high- profile turnabout of the week, the Bush administration agreed yesterday to give the independent commission investigating the Sept. 11 attacks full access to the papers of former President Clinton.

The decision came after commission officials pressed the White House to turn over thousands of pages of documents that had been shipped from the former president's archives for review by the commission.

The White House received 11,000 pages of Clinton documents, but turned over less than 25 percent of them to the commission despite repeated requests for all of them, according to commission officials and a top aide to the former president.

The decision to release all the Clinton papers came two days after President Bush announced that White House national-security adviser Condoleezza Rice would testify publicly before the commission.

Do you think the Administration understands how bad this sort of thing looks? They are doing everything in their power to make it appear as if they have something to hide.


Ruling Through The Administrative State

This New York Times article on how the Bush Administration has fundamentally reshaped environmental policy shows why it matters so greatly who controls the White House.

A very large number of government policies, in areas ranging from environment, to labor, to consumer protection are shaped below the radar screen by administrative decisionmaking. Administrative agencies, called upon to carry out statutory schemes that often have fairly open-ended directives, can issue regulations that have the force of law. Presidents can staff these agencies with political appointees to carry out the President's ideological agenda. Although Congress can vote to overturn these regulations, there are simply too many for Congress to exercise effective oversight in many cases, and, in any case, the President can veto any such attempts if he likes what his political appointees are doing. In this way the President, if he is so determined, and if he stocks the administrative agencies with ideological loyalists, can have enormous impact on federal law in a relatively short period of time.

During the Reagan Administration, and later, the Clinton Administration, presidents used administrative regulations to achieve goals that could not be achieved directly because Congress was controlled by members of the opposite party. Indeed, in Clinton's case, after 1994, the President, far from working under the radar screen, actively trumpeted the work of administrative agencies as his own in a series of pronouncements in order to show that he could govern without the cooperation of the Republican-controlled Congress.

In the Bush Administration, of course, one party controls all the branches of government. And yet the Administration is still making full use of its powers to reshape law according to its ideological agenda through the administrative state. The reason is that most administrative regulation escapes public comment unless, as in this New York Times story, it is specifically mentioned and critiqued. Congress might balk at the most radical reforms, and many Republicans will not want to be on record as voting for changes that could get them into trouble with swing voters, especially when reforms can be achieved through new administrative regulations (or effective repeal of older regulations). Hence using the administrative state to change environmental law allows the President to get rid of regulations he does not like and impose his ideological vision on a wide array of areas of regulation while protecting members of the President's own party in Congress from political criticism.

In four year's time the Administration has strongly reshaped environmental law, weakening protections against pollution. One only wonders what it would do given a free hand for eight years.

Thursday, April 01, 2004


Hiding Clinton's Files

The New York Times reports that the Bush Administration has withheld approximately 75 percent of the 10,800 pages from President Clinton's files that the former president had agreed to hand over to the 9-11 Commission.

These files contain sensitive information about Al Qaeda and the Clinton Administration's policies towards terrorism, which are certainly relevant to the 9-11 Commission's work. Why is the Bush White House stonewalling on these documents? There are many possible reasons, but one particularly worrisome reason might be that these documents tend to show that the Clinton Administration was far more serious about combatting terrorism than the Bush Administration proved to be.


Flip Flop

Terry Neal provides a list of Bush's changes in position:

The Bush campaign has received a lot of mileage out of characterizing Kerry as a serial flip-flopper. The campaign is already spending millions of dollars on television and radio ads pillorying Kerry's record and tagging him as someone who can't make up his mind. That line of attack has helped chip away at Kerry's early lead in the polls.

But by making this such an issue, Bush draws attention to his own record.

The Associated Press recently compiled a list of recent Bush flip-flops:

•The president initially argued that a federal Department of Homeland Security wasn't needed, but then devised a plan to create one.

•He resisted a commission to investigate Iraq intelligence failures, but then relented.

•He opposed, and then supported, a two-month extension of the 9/11 commission's work, after the panel said protracted disputes over access to White House documents left too little time.

•He initially said any access to the president by the commission would be limited to just one hour but relaxed the limit earlier this month.

His flip-flops take on added weight because he himself has upped the ante. The underlying theme of every Bush campaign is that he is a man of honor, while his opponent is a liar or a hypocrite. Of course, Bush doesn't use those exact words. But make no mistake, that's what he meant when in the 2000 Republican primary he described Sen. John McCain (Ariz.) as a politician who "says one thing and does another" and characterized Vice President Gore as a politician who will "say anything to get elected."

Kerry campaign spokesman David Wade said the Bush administration has "this nasty habit of flip-flopping the only time political pressure is applied, any time they see that their own positions are untenable. It's incredible how transparent their flip-flops are... The great irony is that this administration makes these baseless attacks when in fact not only is George Bush a walking contradiction, but clearly he is the candidate in the race that has the known credibility problem."

Bush campaign spokesman Terry Holt defended the president, drawing a distinction between Bush's and Kerry's reversals.

"The president is very consistent on points of principle and as regards to the foundational policies that he is advocating," Holt said. "John Kerry has a pattern and a record of contradiction. Rather than consistency as a rule, inconsistency is more the pattern."

Holt said of the decisions to create the 9/11 commission and to allow Rice to testify: "Those are process decisions and not an issue of to tax or not to tax. And that's a huge difference."

But the liberal Center for American Progress has compiled an even longer list of Bush flip-flops, including reversals on "foundational issues," as Holt would say -- positions such as steel tariffs, gay marriage, campaign finance reform and mediation of the Israeli-Palestinian conflict.

People often confuse arrogance with steadfastness and principle. They are not the same thing. Bush is a very able politician with excellent political instincts. He changes his positions in order to win votes, he shifts with the political winds when necessary. Then he simply denies that he has made a change or ever been wrong about anything, assuming that in most cases the press will be too disorganized or too dependent to call his bluff. His success has come from making people believe that he is a straight shooter and acts on principle rather than political considerations. His bullying attitude plays into this image. But it is a manufactured image, not a reality, and three years into his presidency, his ability to preserve this image is being severely tested.


Prosecution by the Dashboard Light

Matthew Yglesias notes this story from Virginia in which a 21-year-old woman was arrested for performing oral sex on a man in a parked car at 3 a.m. Both were charged with crimes against nature, which includes oral and anal intercourse; the man pled to a charge of indecent exposure of the genitals in public.

The woman claims that prosecution under the Virginia crimes against nature statute is unconstitutional after Lawrence v. Texas. She is correct. Lawrence holds, at a minimum, that both heterosexual and homosexual sodomy cannot be criminalized. Having sex in public is a different matter; Lawrence notes that it does not decide that question. The woman could be prosecuted for a statute that made it a crime to have sex in public. However, Virginia's crimes against nature statute does not punish people for performing sex acts in public; it punishes all sodomy, even in the privacy of one's own home. And Virginia's indecent exposure law probably does not reach what the woman did (she did not expose her genitals in public), although it presumably would reach what the man did.

The D.A. in this case is passing the buck, saying that it was up to the officer to make the call on whether to prosecute and therefore the case must go to trial. This is hogwash. If the D.A. believes that a vice statute is unconstitutional, she can exercise discretion, save the state and the defendant time and money, and simply drop the charges. Indeed, prosecutors have some discretion to choose not to prosecute even when a statute is fully constitutional. That is why prosecutions for sodomy were rare even when such statutes were on the books.

Nothing in Lawrence, as I read it, prohibits states from making it a crime to have sex in public. If Virginia wants to punish people for that, they should pass a law that makes that conduct a crime. But this case should be dismissed.

UPDATE: Several readers have pointed out that the woman was *receiving* oral sex from the man, in which case she could possibly be charged with indecent exposure. However, the man, not the woman, actually pled to indecent exposure; although we don't know all the facts, perhaps he was also naked at the time.

Wednesday, March 31, 2004


Divide Iraq Up?

Bruce Fein argues that "The United States should declare its post-Saddam nation-building enterprise a failure. It should begin immediately to arrange the partition of Iraq by regional self-determination plebiscites."

Although I have to agree with Fein that the Administration's post-war policies have not been a great success, I don't think that the solution is to divide Iraq up into separate regions. For one thing, the Turks would never stand for an independent Kurdish government. For another, there are significant numbers of Shiite Muslims in the Sunni-dominated regions. Any attempt to divide Iraq up into different countries is likely to destabilize the situation further.


Justice Department to Intervene in Oklahoma Dispute about Headscarves

CNN reports:

The Justice Department announced Tuesday the government's civil rights lawyers have jumped into a legal case to support a Muslim girl's right to wear a head scarf in a public school.

Assistant Attorney General for Civil Rights Alex Acosta said government lawyers would support 11-year-old Nashala Hearn, a sixth-grade student who has sued the Muskogee, Oklahoma, Public School District for ordering her to remove her head scarf, or hijab, because it violated the dress code of the Benjamin Franklin Science Academy, which she attended.

The girl continued to wear her hijab to school and was subsequently suspended twice for doing so.

I discussed this story back in October here.

I applaud the Justice Department, and Attorney General Ashcroft for intervening in this case. According to the complaint, the school's dress code allows students to wear some things on their heads but not others. It does not specifically mention the hijab, the traditional Muslim headcovering for women, but school officials held that it fell within the policy. The school's justification for the policy is that the ban on headgear is designed to prevent gang activity.

If these facts are correct, there is a good chance that the school will lose, as they should. The limited nature of the school's policy demonstrates that it is not completely opposed to all head coverings, and the hijab has no relationship to gang activity. So the policy may violate the equal protection of the laws because it discriminates between permitted secular reasons and religious reasons for wearing headgear. There would be a more difficult federal case if no headgear was permitted under any circumstances, but there still might be an argument that the policy violates Oklahoma state law.


The Best Laid Medicare Plans

The Miami Herald explains why the Administration's Medicare reforms didn't quite go as expected. (Link via Healthlawblog):

Enactment of a sweeping Medicare reform law last year was supposed to be the crowning achievement of President Bush's "compassionate conservatism" as he readied himself for re-election.

By providing a federally subsidized prescription-drug benefit for senior citizens, albeit a limited one, administration officials felt they usurped a major issue from the Democrats and cut into Democratic support among seniors age 65 and over -- an especially important voting bloc in key battleground states such as Florida.

But less than four months after he signed it into law on Dec. 8, Bush's Medicare-reform dream has turned into a nightmare and a potential drag on his bid for re-election.

-- The Bush administration deliberately didn't tell Congress that the measure could cost more than $100 billion more than advertised.

-- House Republican leaders abused House rules to push the measure to a narrow victory. There are also allegations of threats and bribes that are under investigation.

-- The Bush administration spent millions of taxpayer dollars on public service TV ads touting the Medicare reform law that look suspiciously like Bush campaign commercials. Those, too, are now under investigation.

-- Polls show that a majority of Americans don't like the Medicare reforms.

"It's something that's eating away at the credibility of the administration in an election year on a bill that he (Bush) thought was a building block for his re-election," said Stephen Hess, a political analyst for the Brookings Institution, a centrist think tank, and a former aide to President Eisenhower.

I wouldn't go so far as to call the bill a "nightmare" for the Republican Party. It simply hasn't turned out to be the clear winner that people expected. The problem is that the bill doesn't seem to mesh well with the Republican self-image of low taxes and low domestic spending, which or course, is why in the past the Democrats have usually been the party that pushed for new domestic expenditure programs. (Defense expenditures, are, of course, another matter.). The Administration had to hide the costs of the bill from the members of its own party, and then twist arms to get the final couple of Republican votes. The result was a distinct sense that something fishy was going on in the bill. The fake journalism segments and the disguised campaign ads also added to the notion that the Administration wasn't being entirely honest.

This was a wasted opportunity for the Republicans, who could have lived off of the glow of this new entitlement program for some time.

Tuesday, March 30, 2004


Stuart Buck Hospitalized

All our prayers go out for fellow blogger Stuart Buck, whose wife Farah reports that he has been hospitalized with a stroke.

The blogosphere is more than a debating society. It is a community, full of flesh and blood people who we come to care about the more we engage with them. Here's hoping you are on the mend soon, Stuart, and once again filling the pages of your blog with your own distinctive take on the world.


Rice Will Testify in Public and Under Oath


Nothing would be better, from my point of view, than to be able to testify,” Rice told Ed Bradley of CBS’s “60 Minutes.” “I would really like to do that. But there is an important principle involved here: It is a long- standing principle that sitting national security advisers do not testify before the Congress.


Principle? What principle? Come on, this Administration doesn't boldly assert constitutional principles and then abandon them when the poll numbers start to drop. You must have us confused with another Administration.

Here's the official explanation:

White House legal counsel Alberto Gonzales has sent a letter to the commission stating that Rice is prepared to testify publicly as long as the administration receives assurances from the panel that this is not precedent setting, the official said.

That is, there is a principle, but we can violate it when it's convenient for us as long as everybody promises that nobody will use our inconsistency against us later when it becomes convenient to invoke the principle again.

Now that's the sort of constitutional principle I think everybody can get behind.

Frankly, despite these assurances (which apparently, the White House demands must be in writing), I don't see how Rice's testimony can *avoid* becoming a precedent. Much of the institution of the separation of powers is a set of informal arrangements between the branches, which continually look to previous practice (as opposed to judicial precedents). Whatever the Administration says, people will remember that Rice testified and the circumstances under which she did so. Saying that this won't be a precedent is a little like the Supreme Court in Bush v. Gore saying that its decision was limited to the specific facts of that case. It's not the sort of statement that induces much confidence in the principled nature of the decision.

The White House handled this badly from the beginning. It would have been far better for the White House to have taken the position early on that it would allow a national security advisor to testify, but only under the most extreme or important circumstances. Avoiding a decline in poll numbers is not such a circumstance, while getting to the truth about one of the most important events in recent American history is. Under that line of reasoning, however, the Administration should have consented to Rice's testimony a long time ago. Now it looks as if the only reason why the Administration is acquiescing is a concern about the upcoming election, a concern which should be completely irrelevant (and inappropriate) from a constitutional standpoint. By stonewalling the way it has, the Administration has set a precedent, and of the wrong kind.

Monday, March 29, 2004


More Fun With The New Iraqi Constitution

The New York Times reports:

American soldiers shut down a popular Baghdad newspaper on Sunday and tightened chains across the doors after the occupation authorities accused it of printing lies that incited violence.

Thousands of outraged Iraqis protested the closing as an act of American hypocrisy, laying bare the hostility many feel toward the United States a year after the invasion that toppled Saddam Hussein.

From the Interim Iraqi Constitution:
Article 13.
(B) The right of free expression shall be protected.
(C) The right of free peaceable assembly and the right to join associations freely, as well as the right to form and join unions and political parties freely, in accordance with the law, shall be guaranteed.
. . .
(F) Each Iraqi has the right to freedom of thought, conscience, and religious belief and practice. Coercion in such matters shall be prohibited.

Fortunately for the Americans, the new Iraqi Constitution they insisted upon doesn't apply to them, and, moreover, it doesn't take effect for several months!

Isn't constitutional law fun?

Saturday, March 27, 2004


I-95 in Connecticut

Has become I-47 1/2 and I-47 1/2.

Traffic should be fun for the next couple of weeks, with potentially important long term side effects.

Friday, March 26, 2004


Digital Cops in a Virtual Environment

Today The Information Society Project at Yale Law School (of which I am the director) begins its three day conference on cutting edge issues in cybercrime. We've gathered together a number of top experts and it promises to be one of the biggest events of its kind. You can learn more about the conference here.


Senate Passes Unborn Victims of Life Act

The Senate passed the Unborn Victims of Life Act, which amends existing federal crimes to allow prosecution of persons who cause death to a fetus during the commission of a federal crime.

Opponents of the measure feared it would undermine Roe v. Wade. That is because of the definition section, which says that fetuses are defined to be "children":

`(d) As used in this section, the term `unborn child' means a child in utero, and the term `child in utero' or `child, who is in utero' means a member of the species homo sapiens, at any stage of development, who is carried in the womb.'.

Undermining Roe may be the purpose of one or more of its original sponsors, but it won't have that effect. Roe is a constitutional rule, and cannot be overturned or limited by statute. Congress can call a fetus a child but that doesn't change the constitutional right to abortion.

In any case, the statute by its own terms does not reach abortions:

`(c) Nothing in this section shall be construed to permit the prosecution--

`(1) of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;

`(2) of any person for any medical treatment of the pregnant woman or her unborn child; or

`(3) of any woman with respect to her unborn child.

This produces a perverse result for pro-life forces: Congress officially says that a fetus is a child, but also officially says that ending the life of this child through abortion is legal. Should a pro-life Senator vote for such a bill?

Equally interesting is the death penalty provision:

`(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.

This produces another perverse result: it distinguishes between born children and unborn children (as defined by the statute). Crimes against born children may deserve the death penalty under federal law; however, according to Congress, no crimes against the latter do. Why should this be, if fetuses are defined as children? Are pro-life forces conceding that the life of a born child is more valuable than the life of a fetus? Again, should a pro-life Senator vote for such a bill?

One suspects that most pro-life politicians will say, yes, on the theory that half a loaf is better than none; by defining the unborn as children, the bill symbolizes disagreement with Roe. But the symbolism cuts both ways, for the bill as actually written doesn't treat unborn children the same as other children, and it actually undermines the claim that abortion is the functional equivalent of murder.

Thursday, March 25, 2004


Hoisted By His Own Petard?

Today at lunch I was explaining the legal issues in the Newdow case (which concerns the Pledge of Allegiance) and why as a predictive matter Newdow is likely to lose no matter how good his legal arguments on the merits (see my previous post for a summary).

Suddenly it occurred to me: If Newdow wins his case, it will prove that atheism is wrong, because it's going to take a miracle.


Impervious to Facts

Harold Meyerson argues that the Bush Administration has a problem with empiricism:

[T]he security professionals who stayed at their station on Sept. 11 soon found they had philosophical differences with the neo[conservatives] in the shelter. They were empiricists: They took in as much information as they could and derived their conclusions on that basis. And, as Clarke and many of his fellow professionals were soon to discover, this has been a tough administration for empiricists.

Step back a minute and look at who has left this administration or blown the whistle on it, and why. Clarke enumerates a half-dozen counterterrorism staffers, three of whom were with him in the Situation Room on Sept. 11, who left because they felt the White House was placing too much emphasis on the enemy who didn't attack us, Iraq, and far too little on the enemy who did.

But that only begins the list. There's Paul O'Neill, whose recent memoir recounts his ongoing and unavailing battle to get the president to take the skyrocketing deficit seriously. There's Christie Todd Whitman, who appears in O'Neill's memoir recalling her own unsuccessful struggles to get the White House to acknowledge the scientific data on environmental problems. There's Eric Shinseki, the former Army chief of staff, who told Congress that it would take hundreds of thousands of American soldiers to adequately secure postwar Iraq. There's Richard Foster, the Medicare accountant, who was forbidden by his superiors from giving Congress an accurate assessment of the cost of the administration's new program. All but Foster are now gone, and Foster's sole insurance policy is that Republican as well as Democratic members of Congress were burnt by his muzzling.

In the Bush administration, you're an empiricist at your own peril. Plainly, this has placed any number of conscientious civil servants -- from Foster, who totaled the costs on Medicare, to Clarke, who charted the al Qaeda leads before Sept. 11 -- at risk. In a White House where ideology trumps information time and again, you run the numbers at your own risk. Nothing so attests to the fundamental radicalism of this administration as the disaffection of professionals such as Foster and Clarke, each of whom had served presidents of both parties.

The revolt of the professionals poses a huge problem for the Bush presidency precisely because it is not coming from its ideological antagonists. Clarke concludes his book making a qualified case for establishing a security sub-agency within the FBI that would be much like Britain's MI5 -- a suggestion clearly not on the ACLU's wish list. O'Neill wants a return to traditional Republican budget-balancing. The common indictment that these critics are leveling at the administration is that it is impervious to facts. That's a more devastating election year charge than anything John Kerry could come up with.

Because, as I have noted previously, presidential systems have inherent tendencies to corrupt the policy making process, I think that what Meyerson is describing is a matter of degree, rather than kind. But at some point, differences of degree become quite worrisome indeed, and this Administration seems to have reached a tipping point in a wide range of different areas. Clarke's story is making front page news because it concerns a key issue in Bush's re-election campaign-- the President's boast that he has kept America safe. As we learn more details about how the Administration's foreign policy has been conducted, this boast looks increasingly empty. However, as Meyerson points out, the same corruption of the policy process has occured in other areas ranging from fiscal policy to environmental policy.

I do think it's time for a change.

Wednesday, March 24, 2004


What's Law Got To Do With It?

The Supreme Court heard arguments today in Elk Grove Unified School District v. Newdow, and it is very likely that Newdow will lose. The only question is whether the Court will reach the merits or will dismiss on standing grounds. That's not because the law is clearly against Newdow. Indeed, as William Safire puts it in his column, "The only thing this time-wasting pest Newdow has going for him is that he's right." Rather Newdow will lose because no matter what the existing doctrine says the Supreme Court is not going to hold that government officials' use of the phrase "under God" in the Pledge of Allegiance violates the Establishment Clause. The doctrine will simply be parsed or altered in such a way as to avoid this result.

Newdow's strongest argument is that under the Establishment Clause, government may not itself engage in religious activities or encourage citizens-- and particularly schoolchildren-- to affirm particular religious beliefs. When public school teachers lead their classes in the post 1954 version of the Pledge of Allegiance (which includes the words "under God") it is doing both of these things. Newdow can point to the fact that the Pledge was changed in 1954 due to a lobbying campaign by, among others the Knights of Columbus, to draw attention to the difference between God-fearing Americans and the godless Soviet Union.

The best response to this argument is that when government officials lead the post-1954 version of the pledge, they are neither engaging in religious activities nor are they encouraging citizens to affirm particular religious beliefs. They are not engaging in religious activities because the inclusion of the words "under God" does not make the Pledge religious in character any more than the inclusion of the words "In God We Trust" makes the distribution of coinage or currency a religious activity. They are not encouraging others to affirm particular beliefs because the Pledge does not assert the religious belief that God exists but merely acknowledges a historical association between patriotism and belief in God.

The first response, that no religious ceremony is occurring, is quite plausible. The second argument-- that there has been no endorsement of religious belief-- is quite tricky to pull off. One embarrassment is that many people who support the use of the words "under God" in the pledge do so precisely because they like the association of patriotism with religion and with belief in God: they want to affirm that the United States is a country that believes in God and places itself under Divine protection. However, this is not a theory that the Supreme Court can adopt. The most basic principle of Establishment Clause jurisprudence is that the state is not supposed to prescribe what is orthodox in matters of belief about religious questions.

Rather, the Supreme Court must come up with a way of arguing that the use of term "under God," despite the legislative history, has nothing whatsoever to do with affirming or endorsing particular beliefs about God but is purely ceremonial. In the alternative, they must show that it is a permissible form of "ceremonial Deism" that has no strongly religious overtones and carries no religious endorsement in the eyes of a reasonable person. Put another way, the Court must come up with a justification that insists, without directly saying so, that people who support the post-1954 Pledge because they think it endorses their religious beliefs are simply being unreasonable. In part this is because, as I pointed out last year, ceremonial Deism tries to have it both ways: it seeks to satisfy the religious sentiments and traditions of a large portion of the public while denying that anything particularly religious is going on. It can do this because the expression "under God" seems rather plain vanilla to most members of the public (that is, to those who are not atheists). If the words "under God" were changed to read "under Jesus Christ," or "under God whom we all believe in and adore" the religious meaning would no longer be backgrounded and the Court would not be able to accept the pledge as a form of ceremonial Deism. It is no accident that at the oral argument Solicitor General Olsen agreed that if the pledge included the words "under Jesus" it would go too far. The phrase "under God" is just bland enough to mean nothing to those who want it to mean nothing and to mean everything who want it to mean everything.

Mr. Dooley once said that the Supreme Court follows the election returns. That is, the Supreme Court never strays too far from the views of a national political majority. This case is a perfect example. Even without reading the briefs, it is all but certain which way this case will come out. As Tina Turner might say, what's law got to do with it?


Ernie Miller Joins the Copyfight

Congratulations to Ernie Miller, a fellow of Yale's Information Society Project, for joining Copyfight, which has just become a group blog. Ernie started the ISP's blog, Lawmeme, and he also runs his own blog, The Importance Of.

Tuesday, March 23, 2004


Federal Marriage Amendment Revised

The sponsors of the Federal Marriage Amendment have tinkered with its language, "saying the changes were intended to make it clear that they do not seek to bar same-sex civil unions allowed by state law," the New York Times reports. (My analysis of the previous version, explaining why it would ban civil unions, appears here).

The revised amendment reads as follows:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and woman.

Actually, this version still prevents *courts* (like the Vermont Supreme Court in Baker v. State) from holding that civil unions are constitutionally required, because it says that state constitutions may not be construed to require that the legal incidents of marriage be conferred on same sex couples. Civil unions bestow most if not all of the legal incidents of marriage except for the name.

The amendment would permit *legislatures* to pass civil unions laws in some cases. But there's a twist, because the proposed amendments' sponsors forgot that legislators interpret constitutional provisions too, and indeed, are normally required to do as part of their oaths of office.

The irony of the new version is that legislatures could pass civil unions laws as long as they did not believe that they were interpreting the state or federal constitution and promoting constitutional values-- such as equal protection of the laws-- by doing so. For then the legislature (or the executive official) would be construing the state or federal constitution to require civil unions.

Put another way, if legislatures sincerely believed that civil union laws were necessary to protect important constitutional values of equality and civil rights for gays and lesbians, they would not be permitted to pass such laws. On the other hand, if the legislature thought that a civil unions bill would bring more tourism into the state, that would be a permissible reason.

But of course, that's what the authors of the proposed amendment think about equal rights for gays-- they don't see it as an issue of civil rights. And that's precisely where they're wrong.

Monday, March 22, 2004


Clarke: Bush Ignored Al Qaeda, Used Iraq As Political Tool

From the Washington Post:

Although expressing points of disagreement with all four presidents [Reagan, George H.W. Bush, Clinton and George W. Bush that he served under], Clarke reserves by far his strongest language for George W. Bush. The president, he said, "failed to act prior to September 11 on the threat from al Qaeda despite repeated warnings and then harvested a political windfall for taking obvious yet insufficient steps after the attacks." The rapid shift of focus to Saddam Hussein, Clarke writes, "launched an unnecessary and costly war in Iraq that strengthened the fundamentalist, radical Islamic terrorist movement worldwide."

Among the motives for the war, Clarke argues, were the politics of the 2002 midterm election. "The crisis was manufactured, and Bush political adviser Karl Rove was telling Republicans to 'run on the war,' " Clarke writes.

And there's this:
Like former Treasury secretary Paul H. O'Neill, who spoke out in January, Clarke said some of Bush's leading advisers arrived in office determined to make war on Iraq. Nearly all of them, he said, believed Clinton had been "overly obsessed with al Qaeda."

I think what is particularly galling is the Administration's repeated assertions that only they know how to keep America safe and that those who disagree with them are appeasers or worse. For too long the Bush Administration has gotten a pass on their efforts to combat terrorism, and the President has been praised repeatedly for exercising strong and decisive leadership in the face of the 9/11 attacks. Clarke's book argues that there were, to the contrary, serious failures of leadership both before and after 9/11. I hope this opens a real debate about whether the Administration's foreign policy really has been effective and really has helped keep America safe.

Sunday, March 21, 2004


Bush: Weak On Terror, Confused On Policy

So says Richard Clarke, who has advised four presidents on terrorism policy, and was Bush's advisor leading up to the 9/11 attacks:

"Frankly," [Clarke] said, "I find it outrageous that the president is running for re-election on the grounds that he's done such great things about terrorism. He ignored it. He ignored terrorism for months, when maybe we could have done something to stop 9/11. Maybe. We'll never know."

Clarke went on to say, "I think he's done a terrible job on the war against terrorism."

. . . . Clarke says that as early as the day after the attacks, Secretary of Defense Donald Rumsfeld was pushing for retaliatory strikes on Iraq, even though al Qaeda was based in Afghanistan. Clarke suggests the idea took him so aback, he initally thought Rumsfeld was joking. . . . .

After the president returned to the White House on Sept. 11, he and his top advisers, including Clarke, began holding meetings about how to respond and retaliate. As Clarke writes in his book, he expected the administration to focus its military response on Osama bin Laden and al Qaeda. He says he was surprised that the talk quickly turned to Iraq.

"Rumsfeld was saying that we needed to bomb Iraq," Clarke said to Stahl. "And we all said ... no, no. Al-Qaeda is in Afghanistan. We need to bomb Afghanistan. And Rumsfeld said there aren't any good targets in Afghanistan. And there are lots of good targets in Iraq. I said, 'Well, there are lots of good targets in lots of places, but Iraq had nothing to do with it.

"Initially, I thought when he said, 'There aren't enough targets in-- in Afghanistan,' I thought he was joking.

"I think they wanted to believe that there was a connection, but the CIA was sitting there, the FBI was sitting there, I was sitting there saying we've looked at this issue for years. For years we've looked and there's just no connection." Clarke says he and CIA Director George Tenet told that to Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft.

Clarke then tells Stahl of being pressured by Mr. Bush.

"The president dragged me into a room with a couple of other people, shut the door, and said, 'I want you to find whether Iraq did this.' Now he never said, 'Make it up.' But the entire conversation left me in absolutely no doubt that George Bush wanted me to come back with a report that said Iraq did this.

"I said, 'Mr. President. We've done this before. We have been looking at this. We looked at it with an open mind. There's no connection.'

"He came back at me and said, "Iraq! Saddam! Find out if there's a connection.' And in a very intimidating way. I mean that we should come back with that answer. We wrote a report."

Clarke continued, "It was a serious look. We got together all the FBI experts, all the CIA experts. We wrote the report. We sent the report out to CIA and found FBI and said, 'Will you sign this report?' They all cleared the report. And we sent it up to the president and it got bounced by the National Security Advisor or Deputy. It got bounced and sent back saying, 'Wrong answer. ... Do it again.'

"I have no idea, to this day, if the president saw it, because after we did it again, it came to the same conclusion. And frankly, I don't think the people around the president show him memos like that. I don't think he sees memos that he doesn't-- wouldn't like the answer."

Clarke was the president's chief adviser on terrorism, yet it wasn't until Sept. 11 that he ever got to brief Mr. Bush on the subject. Clarke says that prior to Sept. 11, the administration didn't take the threat seriously.

"We had a terrorist organization that was going after us! Al Qaeda. That should have been the first item on the agenda. And it was pushed back and back and back for months.

"There's a lot of blame to go around, and I probably deserve some blame, too. But on January 24th, 2001, I wrote a memo to Condoleezza Rice asking for, urgently -- underlined urgently -- a Cabinet-level meeting to deal with the impending al Qaeda attack. And that urgent memo-- wasn't acted on.

"I blame the entire Bush leadership for continuing to work on Cold War issues when they back in power in 2001. It was as though they were preserved in amber from when they left office eight years earlier. They came back. They wanted to work on the same issues right away: Iraq, Star Wars. Not new issues, the new threats that had developed over the preceding eight years."

Clarke finally got his meeting about al Qaeda in April, three months after his urgent request. But it wasn't with the president or cabinet. It was with the second-in-command in each relevant department. For the Pentagon, it was Paul Wolfowitz. Clarke relates, "I began saying, 'We have to deal with bin Laden; we have to deal with al Qaeda.' Paul Wolfowitz, the Deputy Secretary of Defense, said, 'No, no, no. We don't have to deal with al Qaeda. Why are we talking about that little guy? We have to talk about Iraqi terrorism against the United States.'

"And I said, 'Paul, there hasn't been any Iraqi terrorism against the United States in eight years!' And I turned to the deputy director of the CIA and said, 'Isn't that right?' And he said, 'Yeah, that's right. There is no Iraqi terrorism against the United States."

Clarke went on to add, "There's absolutely no evidence that Iraq was supporting al Qaeda, ever." When Stahl pointed out that some administration officials say it's still an open issue, Clarke responded, "Well, they'll say that until hell freezes over."

By June 2001, there still hadn't been a Cabinet-level meeting on terrorism, even though U.S. intelligence was picking up an unprecedented level of ominous chatter. The CIA director warned the White House, Clarke points out. "George Tenet was saying to the White House, saying to the president - because he briefed him every morning - a major al Qaeda attack is going to happen against the United States somewhere in the world in the weeks and months ahead. He said that in June, July, August.

Clarke says the last time the CIA had picked up a similar level of chatter was in December, 1999, when Clarke was the terrorism czar in the Clinton White House. Clarke says Mr. Clinton ordered his Cabinet to go to battle stations-- meaning, they went on high alert, holding meetings nearly every day. That, Clarke says, helped thwart a major attack on Los Angeles International Airport, when an al Qaeda operative was stopped at the border with Canada, driving a car full of explosives.

Clarke harshly criticizes President Bush for not going to battle stations when the CIA warned him of a comparable threat in the months before Sept. 11: "He never thought it was important enough for him to hold a meeting on the subject, or for him to order his National Security Adviser to hold a Cabinet-level meeting on the subject."


Hate Speech Codes For Broadcasting?

Ernie Miller offers his take on the FCC's recent decision that Bono's use of the word "fucking" (as in "fucking brilliant") during the Golden Globes violated federal laws against broadcast indecency. This decision is known as the "Golden Globe Awards" decision.

A little background is necessary to understand why the Golden Globe Awards decision is so important. 18 USC section 1464 makes it a crime to broadcast obscene, profane or indecent programming. The government has given the FCC jurisdiction over violations of section 1464, which the FCC enforces through a combination of warning letters, fines, and, in extreme cases, revocation of broadcast licenses. The Supreme Court upheld the FCC's power to issue such sanctions in the Pacifica case in 1978.

The FCC defines broadcast indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." In its Golden Globe Awards decision, the FCC held that virtually any use of the F-word, as it is known at the FCC, was indecent, because it is always sexually suggestive. (For those of you who were wondering, the F-word in FCC stands for federal.). This decision strikes me as fucking implausible. Did that turn you on? No, I thought not.

Second, the FCC held that the F-word was also profane. The FCC has not, until this case, actively enforced section 1464's prohibition on profanity. One reason for this is that profanity traditionally meant blasphemy, and there would be serious first amendment problems with punishing speech because it was blasphemous. To solve this problem, the FCC has redefined profanity as "including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." That is to say, the new definition of profanity has nothing whatsoever to do with religious belief.

One question is whether the FCC is authorized to redefine statutory language in this way. But assuming that it does under the Chevron doctrine, there are many more problems.

Most news accounts assume that the FCC can ban indecency whenever it likes. This is not true. The Pacifica decision said that the FCC could punish indecency when children were likely to be in the audience. As a result, the FCC requires that indecent programming be relegated to what is called the safe harbor that falls between 10:00pm and 6:00am local time. In a 1995 case called Action for Children's Television v. FCC (ACT III) the D.C. Circuit held that the FCC could require that all indecent programming be broadcast in the safe harbor period.

The D.C. Circuit acknowleged that indecent speech, unlike obscenity, was constitutionally protected by the First Amendment and that the safe harbor requirement discriminated on the basis of the speech's content. Nevertheless, it held that the safe harbor requirement passed the constitutional test of strict scrutiny that the courts apply to content based restrictions on speech: The government had a compelling interest in the protection of children from indecency and a compelling interest in assisting parents in raising their children free from indecency. The D.C. Circuit did not require any showing of that indecency caused harm to children; instead it argued that it was common knowledge that exposure to indecent programming harms children. The D.C. Circuit also held that the safe harbor rule was narrowly tailored to achieve this compelling state interest because (most) children are presumed not to be watching during the hours of the safe harbor. Whether this justification holds water is disputable, and it becomes even more disputable given the possibilities for time shifting using VCR's and Tivo. ACT III is best understood as a compromise decision that holds that adults have to be given some period when they can watch indecent programming; Congress and the FCC simply settled on a particular time period and the D.C. Circuit more or less accepted it.

This set of rules describes the current state of the law regarding what you can and can't say on broadcast television and radio, and when you can say it. (Section 1464 does not apply to cable television, by the way; it only applies to broadcast stations, whether or not they are carried by cable).

Now the plot thickens. The FCC now takes the position that the safe harbor rule applies to profane speech as well as indecent speech. (Obscene speech, by the way, is constitutionally unprotected, so it can be banned 24 hours a day).

Ernie Miller's point is that the FCC's definition of profanity read literally would seem to include racial epithets and other forms of hate speech. After all, the N-word is much more likely than the F-word to be one "of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

If so, then presumably the FCC could impose a hate speech code on broadcast television within the safe harbor period. It would argue that under the reasoning of ACT III the state has a compelling interest in protecting children from profanity and assisting parents in raising their children free from profanity. The ban is narrowly tailored because, just as in ACT III, most children are presumed not to be in the audience during the safe harbor. The only way to avoid the force of this reasoning would be to deny that hate speech causes any significant harm to children. The FCC would have to say that although it is obvious that hearing the F-word is bad for children, hearing the N-word is not obviously bad for them. I'd like to see them try that one.

Of course, any decision to expand broadcast profanity to include hate speech would be highly politically charged, and therefore is likely to lead to accusations of political favoritism and censorship on the part of the FCC. But the decision to punish the F-world but not the N-word is itself hardly politically neutral. All of this suggests that the original decisions in ACT III and in Pacifica were on shaky ground, because they assumed that 1464 could be enforced in a way that did not favor one political ideology over another and did not chill very much protected speech. The FCC's expansion of its jurisdiction to cover what it defines as profanity puts that assumption under a great deal of strain. My advice to the FCC would be to stop now before they completely f*** things up.

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