Tuesday, November 07, 2006

More thoughts on America and "losers"

Sandy Levinson

I think that Jack's posting immediately below is typically insightful about the dynamics of American politics. But it contains the equivalent of a ticking time bomb with regard to what the Democrats actually do when regaining power. Begin with two years ago: With regard to the war (and not, say, appointments to the Supreme Court or changes in administrative regulations involving environmental poicy), how many of you are really and truly sorry that John Kerry did not become President? Does anyone amongf us believe that the man who had no coherent policy on Iraq throughout his campaign would have so mesmerized the country upon taking the oath of office (as a minority president, relative to the popular vote, if his victory had been achieved by a switch of 75000 votes in Ohio) that he would have avoided being flayed by the same Republicans who are busy trying to figure out what to do with their own loser President? Wouldn't we have heard a steady diet of how the Repubicans would never have forced us into the position of a completely ignominious retreat, etc., etc.? Wouldn't Kerry be doomed to be a one-term president (possibly facing a primary challenger)?

This is why I continue to believe that Iraq is far, far more serious and catastrophic even than Vietnam, though, recall, that the death rate for Americans has been far less (in part because so many people are surviving a seriously wounded and maimed, with huge costs to the American economy and psyche in the next decades). The reason is, as I have argued earlier, is that one could coherently, albeit controversially, argue that we "deserved" to lose that war and that the world would be better, overall, if we did lose. Though there is obviously mixed evidence--think of the takeover of Cambodia by Pol Pot immediately after our withdrawal--one can argue that, overall, that's turned out to be the case. China is now being defended by Balkinization conservatives as a model of capitalist probity, thinking only of profit maximization, and Vietnam has recently been described in somewhat similar terms as a onrushing economic tiger.

No serious person can look forward to an American defeat in Iraq. It's one thing to label Bush and Rummy, correctly, as "losers" in the specific sense of being clueless as to how to proceed. It's another thing entirely to say that the American public is ready to accept a stunning loss in Iraq, with potentially devastating consequences for the region and the world (including, who knows, the use of oil as a weapon by regimes that are less neo-capitalist than China is now purported to be).

If the Democrats do take power, and if they hope to take the presidency, then they will have to come up with a coherent policy on how to explain the loss of the Iraq--and, possibly, the Afghan--War. I don't know that the public will settle for a "simply blame Republican incompetence" strategy if that is used to justify a Saigon-like hasty retreat from Baghdad. I have not detected general acceptance by Democrats of Rep. Murtha's views. Some President is going to have to explain to Americans that many of their sons, daughters, mothers, fathers, best friends, etc., basically died in vain because of bi-partisan cowardice and incompetence. I wouldn't want to be the Democrat who is charged with offering the explanation.

Happy election night!

A Brief History of Wedge Politics


Consider the different ways that a political party can gain a majority in a democracy. The most obvious way, and one that the Framers anticipated, was to appeal to divisions in wealth and income, hoping to gain the votes of the poor, working class and middle class against the interests of the wealthier parts of society. (At the time of the founding, people did not speak of class divisions in precisely this way, but the basic idea is the same, and that is one reason why they distrusted parties.)

Because the wealthy are smaller in number, this might seem to be a winning strategy (unless, that is, you can keep lots of poor and working class people from voting.) The party seen to represent the interests of the rich will always lose to the party of everyone else, if the opposition party can manage to split the vote in this way and form coalitions based along lines of class and wealth. The party of the rich can insist that there are no class divisions in America, and it can insist that what benefits the wealthy also benefits the average American. These strategies work suprisingly well in a country that does not like to view itself as divided by class, but they can only take you so far.

Hence the development of a more effective counter-strategy: the use of status conflict and status anxiety to divide the electorate in a different way, and seize the larger piece. A party that is seen to represent the interests of the rich can attempt to break up the opposition coalition based on class and wealth politics by making the most salient issues those that divide people along lines of race or religion, or that promote aggressive nationalism and xenophobia. If the party of the wealthy is successful in this attempt, it becomes the party more strongly identified with the interests of (for example) white people, religious Christians, or the fervently patriotic.

But that hardly ends the matter. This counter-strategy, in turn, leads to a counter-counter strategy. When alliances based on class politics have been fractured by status politics, there are two options. One is to try to make class issues salient once again (this worked during the Great Depression); the other is to find still other issues that can divide the electorate in a different way. There are two such issues: The first is corruption versus good government, the second is losers versus winners. People like governments they think are clean and moral, and they love winners, no matter how the victory is obtained. (Note the potential tension between these two statements). Conversely, people hate to be governed by corrupt officials or officials they think immoral; and even more than this, they hate to be governed by losers.

If the Democrats succeed in taking back one or more houses of Congress today, it will be because they effectively invoked this counter-counter-strategy. The Democrats will have defanged the counter-strategy of status politics and aggressive nationalism that had worked so well for the modern Republican Party since Richard Nixon by arguing (1) the Republicans are corrupt and venal; and (2) the Republicans are incompetent and have dragged America into a war in Iraq that they are losing and don't know how to win. Corruption isn't everything: Americans can forgive rascals who manage to win-- look at Bill Clinton-- but what they cannot abide is losers. And if you are viewed as both corrupt and a loser in American politics, then you are radioactive.

That is why it has not been enough for the Republicans to say that the Democrats don't have a plan to end the war in Iraq. What people understand is that the people in power are clueless, and are losers. Voters whose self-conception is tied up with being a proud part of the world's most powerful nation simply can't abide that. It may sound cruel to say it, but among the many things you can do to make people despise you, being seen as a loser is perhaps the most effective. The Democrats learned that lesson all too well in the past; now the Republicans are learning it too.

For some time Democrats have been looking for the magic elixir that will return them to majority status. Some thought it was becoming more like the Republicans on issues of the economy and religion; others thought it was moving even more strongly to the left, and still others thought it was seeking to heal divisions in society, calling for common values and common sacrifice. What ended up working for them was a little bit of everything, but most importantly, finding a new way to split the Republican coalition: not based on lines of class or status politics, but on the most basic things we expect from governments: don't be corrupt and don't be a loser.

Monday, November 06, 2006

Domain Napping (and Cresceat Sententia's New Address)


Will Baude writes that Cresceat Sententia has moved to As he explains,
In September, without my knowledge or consent, our old domain was purchased by a Search Engine Optimization firm that intends to make money by either reselling the domain for a pretty penny to somebody greedy for its pagerank, or by using that pagerank to sell links to sites eager to trick Google. The webpage up there now is not this blog (it's an old cache that he will have to take down soon), and this blog is the current and future home of crescat.

Because of the switcheroo, I can't post a notice over there telling everybody where we've gone, so we're reliant on people updating their blogrolls, and on word of mouth. With your help, hopefully we can minimize the disruption this has already caused.

If you are interested in the legal remedies for such a domain napping, read this post by Dan Solove over at Concurring Opinions and the comments that follow.

Sunday, November 05, 2006

George Bush and the revival of Marxism 101

Sandy Levinson

Today's Washingto Post includes a story with the telling title "Bush Says US Pullout Would Let Iraq Radicals Use Oil as Weapon." It includes the following paragraph:

"You can imagine a world in which these extremists and radicals got control of energy resources," he said at a rally here Saturday for Rep. Marilyn Musgrave (R-Colo.). "And then you can imagine them saying, 'We're going to pull a bunch of oil off the market to run your price of oil up unless you do the following. And the following would be along the lines of, well, 'Retreat and let us continue to expand our dark vision.' "

There is, no doubt, much to this argument. One can scarcely be happy with the prospect of the world's oil supply being increasingly controlled by Iran and groups basically loyal to Iran (or simply zealously anti-Western). That being said, one would think that the Administration might be at least as concerned about the extent to which the US economy, because of incredible fiscal irresponsibility on the part of the Bush Administration and its allies in Congress, is increasingly in thrall to those foreign states that have, for whatever reason, chosen to subsidize our national profligacy by buying American debt. The number one example, of course, is China, which could presumably trigger a collapse of the US economy by selling off the dollar and putting it into, say, Euros. Presumably they don't do that in part because it would harm their own economy (and, of course, they are hindered by being such a strong holder of dollars that could not, in fact, be sold overnight). But, then, Iran has no incentive to bring down the Western economy, only to profit as much as possible from selling oil to it.

One does wonder, of course, what sorts of deals are being made behind the scenes to keep China happy. Might this help to explain US reluctance to do anything really of substance in Darfur, a major source of oil for China? Who knows? But Bush's admission that the US is in fact vulnerable to those who control the means of production and/or the finance capital necessary to maintain a capitalist system (do I hear a revival of Marxism in the wings?) has all sorts of implications for envisioning the likely future of an America that has been subjected to the rule of mendacious incompetents like those who have been in power the past six years. What would a cogent economic policy look like in the age of globalization? I take it that visions of autonomy--whether sketched by Pat Buchanan or Ralph Nader--are increasingly untenable. So what does make sense? I assure you I mean this as a genuine question. Are we likely to hear a serious discussion of this in the runup to 2008 from any mainstream Republicans or Democrats?

The Haggard Story: Not Just Hypocrisy, But Lack of Self-Knowledge


The story of Ted Haggard's resignation from the Presidency of the National Association of Evangelicals and the leadership of the megachurch he founded reminds us that our political system and our cultural system have not yet caught up with a simple fact: there are a lot of gay and bisexual people in the United States.

Because in our country homosexuality has long been viewed as deviant and sinful, many of these people do not disclose their sexual orientation to others, while others are not even willing to admit it to themselves.

Instead, like Ted Haggard, they view their sexual orientation as a sin and a moral failing that they must constantly struggle against.

In fact, the very presence of these desires, which they conceptualize as sinful urgings, confirms in their mind how dangerous homosexuality is. Precisely because they possess these feelings, they know how close every human being is to sin. And therefore it becomes all the more important to denounce it, to fight it, and to prevent it from undermining the country.

If you start from the assumption that homosexuality is sinful, and you know that you have deep and powerful feelings of attraction to persons of the same sex, how can you not believe that the Devil himself is perpetually waiting outside your doorstep? How can you not fear that the country is on the verge of sliding into moral bankruptcy, for you are always on the brink yourself. And indeed, in Haggard's case, you have repeatedly fallen, and you can't stop falling.

Many progressives have never quite understood why the most vehement religious opponents of homosexuality view it as such a threat. I myself have always assumed that it is because religious opponents are devoted to the preservation of traditional gender roles, which sustain a male/female hierarchy. But the Ted Haggard story suggests a different reason-- at least for that segment of religious opponents who, like a significant proportion of the population generally, share same-sex or bisexual orientations and desires.

Viewed from Ted Haggard's perspective-- a man who, despite his shame and guilt, is attracted to other men-- gay marriage and the gay lifestyle really are a threat to heterosexual relationships and heterosexual marriage. That is because they are a threat to his heterosexual identity and his heterosexual marriage. He knows the Devil is always tracking him, waiting for him to slip up. That is because he conceptualizes his sexual desires as sin and as alienation from God, and not as the expressions of something that might actually become valuable to him if accepted them as part of himself. If Haggard accepted that he was bi-sexual or even gay, and that it was morally permissible to be either of these things, he would have to change his understandings of his own desires and what they mean. He would have to view himself and his relationship to God very differently. But he has not been able to accept these things, because he is closeted from himself. That is why he has been a vocal opponent of people he has a great deal in common with.

I don't know how many of the fiercest opponents of gay rights in the religious community have some same-sex desires. I only know that it makes perfect sense that among the very religious those with same-sex desires will be among the most vehement denouncers of gays. It is not simply hypocrisy-- it is also lack of self-knowledge.

The Haggard story is a story not only about Haggard, but about America itself. Our country has not yet accepted that it is morally ok to be gay or bi-sexual, even though America has millions of gay and bi-sexual people who are our friends, co-workers, and family members; moreover, we are a country with many gay and bi-sexual people who themselves won't accept that it is morally ok to be gay or bi-sexual. Therefore we as a nation hate ourselves, fear ourselves, fight ourselves and try to banish ourselves from the face of the earth. It should be obvious enough that such a strategy is doomed to failure, but the real tragedy is how long-- and at what cost in human suffering-- it will take us to recognize it.

Call Me Irresponsible

Ian Ayres

The infamous Call Me ad that the Republican National Committee ran against Democratic Tenessee Senatorial Candidate, Harold Ford, Jr., raises interesting question of both campaign finance and civil rights.

Ford's Republican opponent Bob Corker called upon the RNC to pull the ad. And the RNC did stop airing it. But Corker, in making his request, may have crossed the line and inappropriately coordinated with RNC. Coordinated expenditures are treated differently than independent expenditures. Just because the coordination was done in public does not exempt it from the law. It seems clear that Corker should be able to state his opinion about the content of the ad, but equally clear that he shouldn't be able to say "I call upon RNC to recut the ad with an African-American model" and still claim that the recut ad is an independent expenditure.

The civil rights issue is equally difficult. In someways, Democrats who charge that the ad is racist are saying "How dare the RNC insinuate the Ford DOESN'T discriminate." The claim is that the ad would have been less racist if it had used an African-American model to say the tag line "Call me." [It would might still be tacky and sexually inappropriate, but it would not be racist.] But why should it be troubling for the RNC to run an ad suggesting that Ford doesn't discriminate on the basis of race in deciding who to date? It's only troubling if voters think that not discriminating is wrong. Both candidates have been steadfast in refusing to respond to any of the questions about whether the ad is racist. But a more pointed question that the ad puts in play is to ask Corker and Ford whether they think there is anything wrong with whites and blacks dating. Or someone might still ask Corker, "Before you were married, would you have considered dating (or did you ever date) an African American?"

Two Texts: An Election Eve Meditation

Scott Horton

"It may be that despotizing moralists, in practice blundering, often violate rules of political prudence by taking or proposing decisions too quickly; but experience will gradually set them aright and lead them on to a better course. However, the moralizing politician, by glossing over principles of politics which are opposed to right with the pretext that human nature is not capable of the good as reason prescribes it, only makes reform impossible and perpetuates the violation of law.

"Instead of possessing the practical science they boast of, these politicians have only practices; they flatter the power which is then ruling so as not to be remiss in their private advantage, and they sacrifice the nation and, possibly, the whole world. This is the way of all professional lawyers (not legislators) when they go into politics. Their task is not to reason too nicely about the legislation but to execute the momentary commands on the statute books; consequently, the legal constitution in force at any time is to them the best, but when it is amended from above, this amendment always seems best, too. Thus everything is preserved in its accustomed mechanical order. Their adroitness in fitting into all circumstances gives them the illusion of being able to judge constitutional principles according to concepts of right (not empirically, but a priori). They make a great show of understanding men (which is certainly something to be expected of them, since they have to deal with so many) without understanding man and what can be made of him, for they lack the superior perspective of anthropological observation which is needed for this. If with these ideas they go into civil and international law, as reason prescribes it, they take this step in a spirit of chicanery, for they still follow their accustomed mechanical routine of despotically imposed coercive laws in a field where only concepts of reason can establish a legal compulsion according to the principles of freedom, under which alone a just and durable constitution is possible. In this field the pretended practical man thinks he can solve the problem of establishing such a constitution without the rational idea but solely from the experience he has had with what was previously the most lasting constitutions constitution which in many cases was opposed to the right.

"The maxims which he makes use of (though he does not divulge them) are, roughly speaking, the following sophisms:

"1. Fac et excusa. Seize every favorable opportunity for usurping the right of the state over its own people or over a neighboring people; the justification will be easier and more elegant ex post facto, and the power can be more easily glossed over, especially when the supreme power in the state is also the legislative authority which must be obeyed without argument. It is much more difficult to do the violence when one has first to wait upon the consideration of convincing arguments and to meet them with counterarguments. Boldness itself gives the appearance of inner conviction of the legitimacy of the deed, and the god of success is afterward the best advocate.

"2. Si fecisti, nega. What you have committed, deny that it was your fault--for instance, that you have brought your people to despair and hence to rebellion. Rather assert that it was due to the obstinacy of your subjects; or, if you have conquered a neighboring nation, say that the fault lies in the nature of man, who, if not met by force, can be counted on to make use of it to conquer you.

"3. Divide et impera. That is, if there are certain privileged persons in your nation who have chosen you as their chief (primus inter pares), set them at variance with one another and embroil them with the people. Show the latter visions of greater freedom, and all will soon depend on your untrammeled will. Or if it is foreign states that concern you, it is a pretty safe means to sow discord among them so that, by seeming to protect the weaker, you can conquer them one after another.

"Certainly no one is now the dupe of these political maxims, for they are already universally known. Nor are they blushed at, as if their injustice were too glaring, for great powers blush only at the judgment of other great powers but not at that of the common masses. It is not that they are ashamed of revealing such principles (for all of them are in the same boat with respect to the morality of their maxims); they are ashamed only when these maxims fail, for they still have political honor which cannot be disputed--and this honor is the aggrandizement of their power by whatever means.

"All these twistings and turnings of an immoral doctrine of prudence in leading men from their natural state of war to a state of peace prove at least that men in both their private and their public relationships cannot reject the concept of right or trust themselves openly to establish politics merely on the artifices of prudence. Thus they do not refuse obedience to the concept of public law, which is especially manifest in international law; on the contrary, they give all due honor to it, even when they are inventing a hundred pretenses and subterfuges to escape from it in practice, imputing its authority, as the source and union of all laws, to crafty force.

"Let us put an end to this sophism, if not to the injustice it protects, and force the false representatives of power to confess that they do not plead in favor of the right but in favor of might. This is revealed in the imperious tone they assume as if they themselves could command the right. Let us remove the delusion by which they and others are duped, and discover the supreme principle from which the intention to perpetual peace stems. Let us show that everything evil which stands in its way derives from the fact that the political moralist begins where the moral politician would correctly leave off, and that, since he thus subordinates principles to the end (putting the cart before the horse), he vitiates his own purpose of bringing politics into agreement with morality."

- Immanuel Kant, Zum ewigen Frieden – II. Anhang über die Mißhelligkeit zwischen Moral und Politik (1795) in Sämtliche Werke (Großherzog Wilhelm Ernst ed.), vol. 5, pp. 695-97

"Political realism refuses to identify the moral aspirations of a particular nation with the moral laws that govern the universe. As it distinguishes between truth and opinion, so it distinguishes between truth and idolatry. All nations are tempted--and few have been able to resist the temptation for long--to clothe their own particular aspirations and actions in the moral purposes of the universe. To know that nations are subject to the moral law is one thing, while to pretend to know with certainty what is good and evil in the relations among nations is quite another. There is a world of difference between the belief that all nations stand under the judgment of God, inscrutable to the human mind, and the blasphemous conviction that God is always on one's side and that what one wills oneself cannot fail to be willed by God also.

"The lighthearted equation between a particular nationalism and the counsels of Providence is morally indefensible, for it is that very sin of pride against which the Greek tragedians and the Biblical prophets have warned rulers and ruled. That equation is also politically pernicious, for it is liable to engender the distortion in judgment which, in the blindness of crusading frenzy, destroys nations and civilizations-in the name of moral principle, ideal, or God himself."

- Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York: Alfred A. Knopf, 1978, pp. 10-11).

In one day, America votes. This election cannot be viewed as a series of individual candidates contesting specific seats, though American tradition counsels such an approach. It must instead be viewed as a referendum on George W. Bush, Dick Cheney and Donald Rumsfeld, the troika who have wielded America's awesome power in a series of historic misadventures. This is what Bush called an "accountability moment." As my friend Andrew Sullivan says, it is an opportunity for an intervention of the sort that social workers counsel for alcoholics and drug addicts. An intervention for those intoxicated with a lust for power. At this juncture it is important to see Bush and his conduct with some rigor and clarity, but also to consider the moral underpinnings of his actions. For this I propose that we look to the great moral philosopher Immanuel Kant, the man whose writings provided the fundamental architecture for the world order that emerged following the Second World War.

Kant welcomes the political moralist, but he warns us ardently of the moralizing politician, a species best viewed with great circumspection. In a fascinating passage of the Appendix on Divergences Between Politics and Morals, Kant gives us some practical tools. When can we distinguish between the two? How can we identify the wolf in sheep's clothing who presents himself on the public stage as a man of morals but in fact is morally corrupt? There is, writes Kant, a three-part test that gives us an unfailing peek at the political scoundrel.

First, does he seek every opportunity to assert the right of the state he controls over its own people and over other peoples? This is a question of aggrandizement of power, but for Kant it must be measured simultaneously – against his own people, and against other states.

Second, does he accept the principle of accountability for his own misdeeds – or does he in fact try to pass off to others every mistake that occurs?

Third, does he rule through the sowing of discord and division? After coming to power, does he identify other potential rivals to power and attack them or set them to battle, one against the other? Is he a "divider" or a "uniter" of his people?

America in its history has known great, mediocre and truly lamentable presidents. But in its entire history, America has had only one leader who clearly passes Kant's three-point test to detect the political scoundrel. His name is George W Bush. Is it even necessary to reherse the test?

First, Bush more than any other leader in the nation's history has asserted an ahistorical theory of presidential power, claiming ascendancy over the other branches of government and the right to act above the law, even in violation of the criminal law. This asserted tyrannical power is aimed both at the American republic, and even more menacingly, at states abroad. The fundamental strictures of skepticism and care are disregarded. The vital role of public debate and discourse as a precursor to use of the awesome war-making powers is corrupted. An Orwellian National Surveillance State is being crafted, the extent of which few in this country appreciate.

Second, Bush's refusal to accept responsibility for his erroneous judgments is now legendary. Hurricane Katrina was a defining moment for most Americans. But in this election, the war in Iraq reflects colossal, tragic misjudgments that have brought ruin and destruction to the Middle East and cost America immense blood and treasure. Yet, even now, Bush lies about the situation, talks about "winning" and "victory" and calls the performance of his Secretary of Defense "fantastic." (Which as Christopher Hitchens notes, it literally is, namely performance based on fantasy rather than reality).

Third, as the New York Times recently observed in an editorial, the historical moniker for Bush is now fixed: he is the Great Divider. No president has consciously worked to vilify his political rivals in quite so disgraceful and destructive a fashion as he has. He has been enabled in this horrifying project by a press which was pliant for six years, and only now shows ambiguous signs of awakening from an extended trance. Too late, perhaps.

Bush can be judged by his words and his conduct. More precisely, his words should be weighed against his conduct, as Hans Morgenthau writes. With some prompting from Greg Djerejian, I include his thoughts here for this proposition. Morgenthau may well be the anti-idealist; the anti-Kant. He is nevertheless a powerful and important thinker. And he too grasps the proper role of morality and the critical need to form careful judgments about those who cloak themselves in moralizing garb. Is his view fundamentally all that different from Kant's? Not on this point.

I fear for my country at this time. I fear for all of us and our world. Many of you may disagree with me. But I ask all to weigh this vote with care. This vote may be your last.

Saturday, November 04, 2006

You Call It "Torture"; We Call It "Coming Into Possession of Classified Information"

Marty Lederman

Why can't Majid Khan have a lawyer, according to the Department of Justice? Because he might tell the lawyer how he was treated by the U.S. government. Think about that for a second.

The theory of the government's case here is contained in the remarkable tenth paragraph of the Declaration of Marilyn Dorn, CIA Information Review Officer. Dorn writes:
Information relating to the CIA terrorist detention program has been placed in a TOP Secret/SCI program to enhance protection from unauthorized disclosure. Because Majid Khan was detained by the CIA in this program, he may have come into possession of information, including locations of detention, conditions of detention, and alternative interrogation techniques, that is classified at the TOP SECRET/SCI level.
Joe Marguiles, quoted in the Post article, is right: This goes beyond Orwell into Lewis Carroll territory, topping the formidable list of jaw-dropping Bush Administration euphemisms.

Khan "came into possession" of top secret classified information, eh? And how might that have happened? Part of his job at the CIA? A leak from a rogue CIA employee? By finding a lost memo sitting around some blind alley somewhere?

Or is it, perhaps, that he "came into possession" by virtue of the fact that he is the "classified information"? That is to say, it was the CIA's torture of Khan -- sorry, its "application of alternative interrogation techniques against him" -- that was how Khan "came into possession" of our most closely guarded secrets.

As DOJ sees it, Khan can't have a lawyer because of the risk that he'll tell the lawyer about that classified info that he now "possesses." (Here's the DOJ Brief.)

This argument apparently presumes -- is fundamentally predicated on the notion -- that we could lawfully prevent Khan from announcing to the world the manner in which the U.S. Government has treated him. But is that right?

Of course, the CIA, like other intelligence agencies the world over, is legally authorized to do certain nasty things to people outside our borders. And our intelligence agencies in fact do many things to such people that go close to or over the legal limits. There is ususally very good reason for keeping secret the CIA's tactics and methods. And as a general rule, it makes perfect sense that the agency's sources and methods are presumptively classified under U.S. law. Thus, if the CIA lets you in on those secrets -- say, because you are employed by the agency, or you are a Senator overseeing the agency, or a judge adjudicating a dispute -- it can ordinarily condition your access on a promise that you won't publicly reveal the secrets. (See generally Snepp.) (I remain unconvinced that it is necessary to classify the legal limits on the CIA's interrogation techniques. But for the purposes of this post, I'll assume that there are valid reasons to classify certain information about what the CIA has actually done in particular cases -- an assumption that in turn depends in part on the contested assumption that the CIA's actions were lawful.)

But even if the classification itself were valid, can it really be the case that the persons against whom the CIA employed its methods may be prevented from disclosing such historical facts to the public?

There is not, to my knowledge, any statute purporting to restrict such publication. Indeed, at least to the extent that the writer's audience includes the U.S. public, I would assume that the victim of U.S. government actions has a First Amendment right to publish the story, even if he is an alien abroad (see Lamont). (Perhaps there's a Sixth Amendment right to counsel implicated, too, but I'm less interested in that just now.)

So, for example, if and when Khan is released from U.S. custody, he will be free -- both legally and as a practical matter -- to publicly describe his treatment at the hands of the CIA, even though a CIA employee, or Senator overseeing the agency, might not be likewise free to do so because of the classification. Indeed, several CIA detainees have publicly told the stories of their detention and interrogation, including the book-length treatment by Moazzam Begg and the declaration, in the Khan case itself, of Khaled al-Masri, who was held with Khan in the "Salt Pit." We could not detain Khan because he threatened to reveal what the CIA did to him -- that would be an impermissible prior restraint. (This information does not, in other words,fall within one of the small handful of categories of information -- such as the direction of future troop movements (see Near v. Minnesota) -- whose publication the government may unconditionally prohibit.)

Therefore, even if Khan is legally detained for other, valid reasons, it seems to me that we cannot use the fact -- the fortuity -- of his detention as an excuse for preventing his public speech that would otherwise be constitutionally privileged.

Am I missing something? Are there other cases in which a government has been permitted to restrict, say, inmate speech because of a risk that the inmate will reveal classified information about the way in which he has been treated by the state? Has the issue ever even been addressed in court cases? Thanks in advance for any insights.

Excuse me, waiter, this wasn't the war I ordered.


David Rose offers a peek at his Vanity Fair article on neo-con buyer's remorse about the war they so eagerly sought.

Interestingly several of the subjects interviewed blame President Bush for being incompetent, unserious, or unprincipled, but Michael Ledeen at AEI offers the most interesting and bizarre explanation of the disconnect between neo-con hopes and reality. He blames the ladies: "Ask yourself who the most powerful people in the White House are. They are women who are in love with the president: Laura [Bush], Condi, Harriet Miers, and Karen Hughes." (Ledeen offers no opinion on any feelings of love traveling between Bush and Donald Rumsfeld, Dick Cheney, and the people actually running the war.) This sounds like a new self-help book by Robin Norwood: Women Who Love Presidents Too Much, and The Wars They Screw Up.

We could tell you how we torture people, but then we'd have to kill you


According to this Washington Post story, the Bush Administration has argued that persons detained in secret CIA prisons should not be permitted to reveal what techniques were used on them to get them to talk, even to attorneys who are trying to determine if the Administration engaged in cruel, inhuman, or degrading treatment, or otherwise broke the law.
The government says in new court filings that those interrogation methods are now among the nation's most sensitive national security secrets and that their release -- even to the detainees' own attorneys -- "could reasonably be expected to cause extremely grave damage." Terrorists could use the information to train in counter-interrogation techniques and foil government efforts to elicit information about their methods and plots, according to government documents submitted to U.S. District Judge Reggie B. Walton on Oct. 26.

Conveniently, keeping secret what the CIA has done to detainees makes it difficult, if not impossible, ever to hold government officials accountable for breaking the law. This is consistent with the Administration's strategy in the Military Commissions Act of 2006: preserve the veneer of compliance with law but remove all external checks or judicial remedies that might determine whether the law has been violated and thus hold the executive accountable. President Bush informs us, with increasing implausibility, that all of the interrogation techniques we've been using are perfectly legal and that we do not torture. His Justice Department is now doing everything possible to make sure that we never catch him in a lie.

To the Memory of Alyssa Peterson

Scott Horton

"He has honor if he holds himself to an ideal of conduct though it is inconvenient, unprofitable or dangerous to do so."

- Walter Lippmann, A Preface to Morals (1929)

This week brings news of the circumstances of the death of Alyssa Peterson, an intelligence NCO, in Iraq on September 13, 2003. The facts of her death had been misrepresented by the Department of Defense and were uncovered due to the diligent pursuit of a Freedom of Information request by Kevin Elston, reporter for National Public Radio station KNAU in her hometown, Flagstaff, AZ. Alyssa was a devout Mormon with a flair for languages. She had done missionary work in the Netherlands and mastered Dutch in the process. She volunteered for military service and was assigned for Arabic language training. By all accounts her performance was consistently superior. Alyssa was also described by her contemporaries as a person of exceptional moral character and conscience. She also had more than the average share of patriotism and drive for service. In fact, she volunteered for assignment to Iraq in substitution for a contemporary who did not want to go.

But Alyssa's fate in Iraq was driven by events on the other side of the world, in a conference room in the Pentagon. In the summer of 2003, Donald Rumsfeld, at an intel briefing in the Pentagon, expressed his anger that he was not getting "good humint" out of Iraq. He banged his fist on the table and demanded that they "get Geoffrey Miller out to Iraq and gitmoize the situation." By the phrase "gitmoize," Rumsfeld meant the introduction of a palette of highly coercive interrogation techniques developed for use on detainees in Guantánamo. These techniques included cold cell, long-time standing, sound and light deprivation, and on several documented occasions, waterboarding. In implementation of this vocal command, which was entrusted to Dr Stephen Cambone and his deputy LTG William ("My God Can Beat Your God") Boykin, MG Miller traveled to Iraq at the end of the summer, visiting with LTG Ricardo Sanchez in Baghdad and traveling out to Abu Ghraib itself to speak with senior military intelligence personnel. Throughout this process, Miller advocated the introduction into Iraq of Guantánamo techniques – techniques which are plainly seen in the photographs that emerged in April 2004 when 60 Minutes and The New Yorker broke the Abu Ghraib story. Miller also advocated the use of military police forces to "prepare" detainees for interrogation – in breach of military doctrine concerning the training and deployment of military police personnel. He specifically discussed and advocated the use of military dogs for purposes of terrorizing detainees. Contemporaneously with Miller's visit, and in the weeks before, instructions went out throughout the military intelligence network in Iraq, to "take the gloves off." Physical assault on detainees was authorized and occurred in hundreds of documented cases.

The Guantánamo techniques, ultimately determined to be unlawful by a Supreme Court ruling in Hamdan, under which Common Article 3 of the Geneva Conventions was found applicable to Guantanamo detainees, were designed from the outset not to conform to the Geneva Conventions. The order given by Rumsfeld to introduce those techniques into Iraq – which was clearly covered by the Third and Fourth Geneva Conventions – was a criminal act, a "grave breach" in the language of the Geneva Conventions. Rumsfeld's strategy to avoid indictment and prosecution has, up to this point, focused on retaining his position as Secretary of Defense and using the massive power associated with that office to shield himself and to scapegoat others. As demands for Rumsfeld's removal mount (including the editorial of the Army Times which will appear on Monday, an editorial which gives voice to the near unanimous view of the senior brass in the Pentagon), it is clear that Rumsfeld's desire to avoid prosecution is a major factor behind his clinging to power. Indeed, Augusto Pinochet, the former Chilean dictator, has been stripped of immunity and bound over for trial on charges which are extremely close to those which Rumsfeld will face – giving authorization for the torture and abuse of detainees.

Alyssa Peterson was serving in Tal-Afar, in northwestern Iraq near the Syrian border. Following the Rumsfeld vocal command, her unit was directed to begin the use of a series of brutal, highly coercive techniques, likely including physical assaults on prisoners. Alyssa reacted to this with shock and she refused to participate.

“Peterson objected to the interrogation techniques used on prisoners. She refused to participate after only two nights working in the unit known as the cage. Army spokespersons for her unit have refused to describe the interrogation techniques Alyssa objected to. They say all records of those techniques have now been destroyed. ...".

After tracking down and interviewing other members of her unit, Elston states that there was a consistent theme. All stressed that she strongly, vehemently objected to the interrogation practices that had just been introduced - practices quite different from what she and her cohort had learned at Fort Huachuca. After this conflict with her command authority, Alyssa was given training for suicide watch and sent to supervise Iraqi guards. An investigation concluded that on the night of September 13, she committed suicide using her service rifle.

However, not everybody is happy with the characterization of suicide that the Pentagon is so adamant about applying to this case. It is interesting that after publication of this account, a flood of letters arrived, most of which questioned the suggestion that she committed suicide and raised the prospect of a homicide. This fact pattern parallels closely the death of Col Ted Westhusing, the Army's leading ethicist, who died under mysterious circumstances after he uncovered strong evidence of corruption in the dealings of a powerful contractor. I discussed Westhusing's case and the concept of "honor" which had been the core of his academic work in this post. The Army insisted it was a suicide and trotted out a highly dubious psychologist's report to support this conclusion. Indeed, highly dubious psychologist's reports now seem to be emerging as a Rumsfeld Pentagon staple. (I expect we will be reading much more on this subject shortly).

In the debate which has emerged over detainee abuse practices, the great focus has been on the detainees and the suffering they incurred. I don't question this approach. But religious scholars and ethicists are quick to point out that torture and mistreatment presents damage at many levels. Obviously the victim. But what about the dignity and integrity of the uniformed service personnel who are ordered to use these techniques? They are morally compromised by this act. Many sustain long-term mental health damage as a result. The literature also suggests that interrogators who use abusive techniques frequently become demoralized and unruly, precisely because they question the moral authority of a command structure which authorizes such obviously immoral conduct.

And then we have the cases like Alyssa Peterson and Ted Westhusing. I am far from convinced that either of these cases is a suicide. But in both we have soldiers who held fast to the concept of honor, and for that both merit our respect. More than this, Peterson and Westhusing are two of the most clear-cut American heroes to fall in this conflict. And it is telling that the Department of Defense expends enormous energy falsifying the noble circumstances of their death. It is telling that they are ashamed of the concept of "honor." It is also strange that the Pentagon is hell-bent on making both of these cases into suicides. Indeed, it seems an overly convenient way to close a disturbing chapter.

Dick Cheney tells us that he pushed for torture to give our interrogators the tools they needed to go the job. But the truth is that the interrogators never asked for these tools, didn't want them, and were as a class offended by Cheney's depraved attitudes. The essential tools for our military, Mr Cheney, are not waterboarding and long-time standing, they are integrity and honor. So why are you determined to take these tools away?

Wednesday, November 01, 2006

The State of Play: Law, Games, and Virtual Worlds


Beth Noveck and I have edited a collection of essays on virtual worlds and the law that has just been published by New York University Press. It's called The State of Play, and it features articles by some of the leading experts in the field, including, in addition to Beth and myself, Richard Bartle, Yochai Benkler, Caroline Bradley, Edward Castronova, Susan Crawford, Julian Dibbell, Michael Froomkin, James Grimmelmann, David Johnson, Dan Hunter, Raph Koster, Greg Lastowka, Cory Ondrejka, Tracy Spaight and Tal Zarsky.

Here's a short description of the book:

Millions of people around the world inhabit virtual words: multiplayer online games where characters live, love, buy, trade, cheat, steal, and have every possible kind of adventure. Far more complicated and sophisticated than early video games, people now spend countless hours in virtual universes like Second Life and Star Wars Galaxies not to shoot space invaders but to create new identities, fall in love, build cities, make rules, and break them.

As digital worlds become increasingly powerful and lifelike, people will employ them for countless real-world purposes, including commerce, education, medicine, law enforcement, and military training. Inevitably, real-world law will regulate them. But should virtual worlds be fully integrated into our real-world legal system or should they be treated as separate jurisdictions with their own forms of dispute resolution? What rules should govern virtual communities? Should the law step in to protect property rights when virtual items are destroyed or stolen?

These questions, and many more, are considered in The State of Play, where legal experts, game designers, and policymakers explore the boundaries of free speech, intellectual property, and creativity in virtual worlds. The essays explore both the emergence of law in multiplayer online games and how we can use virtual worlds to study real-world social interactions and test real-world laws.

You can buy a copy at or Barnes and Noble.

A Concise Guide for Independent Voters on Nov. 7

Brian Tamanaha

Best reason to vote for Republican candidates for Congress: Keep the feckless, bumbling (thanks for the timely reminder, Kerry), backbone-lacking, stand-for-little Democratic Party from gaining a majority.

Best reason to vote for Democratic candidates for Congress: Take away majority control of Congress from the corrupt, big-spending, huge deficit-creating, radical religious right-pandering, cut taxes for the rich to help them get richer and give corporations everything they want Republican Party.

Tie breaker for the undecided: The Bush Administration flouts the rule of law, promotes torture (while hiding behind hypocritical double-speak denials), and has taken the country into a disastrous, mismanaged war that has increased the threat of terrorism against the United States and has resulted in the deaths of many tens of thousands of people (with more added to the toll every day). In the absence of a Democratic majority in Congress, the Bush Administration, facing no further elections, will have a free hand to do whatever it wants for the next two years.

U.S. citizen alleges he was tortured in U.S. custody inside the U.S.


From ABC News:
WASHINGTON, Oct. 31, 2006-- Attorneys for Jose Padilla make some explosive new allegations in recent court filings, claiming the so-called "dirty bomber" was tortured and given psychedelic drugs -- such as PCP and LSD -- while the U.S. military held him as an enemy combatant.

In recently filed court documents asking a federal judge to dismiss the terrorism charges against him, Padilla's attorneys claim he was "tortured by the United States government without cause or justification."

The forms of torture included isolation, prolonged sleep deprivation, exposure to extremely cold temperatures and shackling in "stress positions" for hours at a time, according to the documents.

The Bush administration had no immediate response to the charges. The Justice Department has until mid-November to respond.

Padilla was arrested in Chicago in May 2002 and accused by then U.S. Attorney General John Ashcroft of plotting an attack using a radiological or dirty bomb. But Padilla was transferred to military custody because U.S. authorities at the time decided it was more imperative to interrogate him without regard to a pending trial.

Last year, the government decided to charge Padilla in civilian court -- but the charges against him made no mention of the dirty bomb plot or any statements he made during the more than three years he had been held in a military brig in South Carolina.

The new charges alleged he was part of a North America terrorism cell supporting Islamic radicals.

Here are specific quotes from the filing by Padilla's lawyers:

"[Padilla] had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla. Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations."

"In an effort to gain Mr. Padilla's 'dependency and trust,' he was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live."

"A substantial quantum of torture endured by Mr . Padilla came at the hands of his interrogators. In an effort to disorient Mr. Padilla, his captors would deceive him about his location and who his interrogators actually were. Mr. Padilla was threatened with being forcibly removed from the United States to another country, including U.S. Naval Base at Guantanamo Bay, Cuba, where he was threatened his fate would be even worse than in the Naval Brig. He was threatened with being cut with a knife and having alcohol poured on the wounds. He was also threatened with imminent execution. He was hooded and forced to stand in stress positions."

"His isolation, furthermore, was aggravated by the efforts of his captors to maintain complete sensory deprivation . His tiny cell -- nine feet by seven feet -- had no view to the outside world. The door to his cell had a window, however, it was covered by a magnetic sticker, depriving Mr. Padilla of even a view into the hallway and adjacent common areas of his unit."

The U.S. government maintains it does not torture.

Several things are interesting about this story.

First, Padilla lists a number of different techniques, some of which may be torture, but others of which probably fall into the category of cruel, inhuman and degrading treatment. The fact that they do not rise to the level of torture, however, certainly does not make them legal.

Second, Padilla alleges that he was mistreated on U.S. soil. Whatever your views about the extraterritorial reach of the Bill of Rights, the Eighth Amendment clearly applies in South Carolina.

Third, Padilla's allegations sound quite similar to and overlap with the "alternative sets of procedures" that the Administration has sought to use on al Qaeda operatives outside the United States. (Padilla does not claim he was waterboarded; conversely, I am not aware of allegations that the U.S. government used LSD on high-value al Qaeda detainees.) You may remember that before the Hamdi and Hamdan decisions the Administration argued that the Geneva Conventions did not apply to those it believed were al Qaeda members and that the Bill of Rights did not apply to persons (including citizens) that the President designated as enemy combatants. What that meant was that U.S. officials could, at least in theory, engage in the same interrogation techniques against U.S. citizens in the U.S. as it did in Guantanamo Bay or in secret CIA prisons. Padilla's allegations are the first to suggest that this legal possibility may also have been a reality.

It's worth stepping back and letting that sink in: According to the logic that the Office of Legal Counsel was offering in the first two years after 9/11, the President had complete authority to arrest U.S. citizens on U.S. soil, hold them in military prisons without any of the procedural guarantees of the Bill of Rights, and apply brutal interrogation techniques. And if Padilla's allegations are correct, that's exactly what the U.S. government did to him. What kind of government claims the right to do that? Certainly not a democracy.

Fourth, Padilla is now in the criminal process. That means that he has the rights to give evidence and call witnesses to prove his allegations of mistreatment during the period before the Hamdi decision, the very rights that the government sought for years to deny him. It will be quite interesting to see how these charges proceed in court.

Monday, October 30, 2006

A couple of observations on next Tuesday

Sandy Levinson

1) If the Republicans keep the Senate, it will not be because a majority of American voters prefer a Republican Senate. It will, instead, be because of two of the hard-wired stuctural aspects of the Constitution: a) The absurd overrepresentation of small states. It continues to appear likely, for example, that Democrats will win seats in two large states, Pennsylvania and Ohio, and even 3-4% victories will add up re the absolute vote totals. And, to be sure, Democrats will probably pick up seats in two small states, Montana and Rhode Island and and retain a seat in another small state, Vermont. But recall that over the last three election cycles Democratic candidates for the Senate have collectively won 3 million more votes than their Republican opponents. The advantage that Republicans have in the Senate is entirely a function of small state overrpresentation. If I had a ranch, I'd bet on a Democratic victory in the overall popular vote total, even if the Iowa prediction market turns out to be correct re continued Republican control of the Senate. b) The fact that only 1/3 of the Senate is up in any given election. This means, almost by definition, that the impact of electoral "tsunamis" is limited re the Senate. I have no doubt that a lot of Republican senators are absolutely delighted not to be running for re-election this year. It remains to be seen whether 2008 will be a more attractive year for them.

2) Brian suggests that not much will change with a Democratic victory. He's right, but not only for the reasons he gives. What will be important about a change of control will be some awful legislation that is now sure not to pass, which is no small matter, and the ability to engage in some real oversight. But there is no possibility of any significant legislation being passed by a Democratic Congress, again for two reasons: a) the filibuster in the Senate, which the Republicans will use shamelessly (and shamefully) to block any innovate legislation; and b) the presidential veto. The best one can hope for is a variety of votes on symbolic issues, such as the minimum wage. But one cannot seriously hope that there will be a real attack on the harmful things done by this Administration. If it takes legislation, it can be easily fended off by the Republicans. And if it takes reversal of administrative regulations, it takes electing a president, which is still extremely dicey so far as Democrats are concerned.

This won't lessen my jubilation if the Democrats win next Tuesday. It should simply be kept in perspective.

A liberal manifesto

Ian Ayres

Bruce Ackerman and Todd Gitlin have written a manifesto for liberals that has just been published in The American Prospect.

Here is the manifesto in its entirety:

As right-wing politicians and pundits call us stooges for Osama bin Laden, Tony Judt charges, in a widely discussed and heatedly debated essay in the London Review of Books, that American liberals -- without distinction -- have "acquiesced in President Bush's catastrophic foreign policy." Both claims are nonsense on stilts.

Clearly this is a moment for liberals to define ourselves. The important truth is that most liberals, including the undersigned, have stayed our course throughout these grim five years. We have consistently and publicly repudiated the ruinous policies of the Bush administration, and our diagnosis, alas, has been vindicated by events. The Bush debacle is a direct consequence of its repudiation of liberal principles. And if the country is to recover, we should begin by restating these principles.

We have all opposed the Iraq war as illegal, unwise, and destructive of America's moral standing. This war fueled, and continues to fuel, jihadis whose commitment to horrific, unjustifiable violence was amply demonstrated by the September 11 attacks as well as the massacres in Spain, Indonesia, Tunisia, Great Britain, and elsewhere. Rather than making us safer, the Iraq war has endangered the common security of Americans and our allies.
We believe that the state of Israel has the fundamental right to exist, free of military assault, within secure borders close to those of 1967, and that the U.S. government has a special responsibility toward achieving a lasting Middle East peace. But the Bush administration has defaulted. It has failed to pursue a steady and constructive course. It has discouraged the prospects for an honorable Israeli-Palestinian settlement. It has encouraged Israel's disproportionate attacks in Lebanon after the Hezbollah incursions, resulting in vast destruction of civilian life and property.
Make no mistake: We believe that the use of force can, at times, be justified. We supported the use of American force, together with our allies, in Bosnia, Kosovo, and Afghanistan. But war must remain a last resort. The Bush administration's emphatic reliance on military intervention is illegitimate and counterproductive. It creates unnecessary enemies, degrades the national defense, distracts from actual dangers, and ignores the imperative necessity of building an international order that peacefully addresses the aspirations of rising powers in Asia and Latin America.
The misapplication of military power also imperils American freedom at home. The president claims authority, as commander in chief, to throw American citizens into military prison for years on end without any hearing, civil or military, that would allow them to confront the charges against them. He claims the power to wiretap Americans' conversations without warrants, in direct violation of congressional commands. These usurpations presage what are likely to be even more drastic measures if another attack takes place on American soil.
At the same time, the president is unconstitutionally seizing power on other fronts. He seeks to liberate himself from the rule of law by issuing hundreds of "signing statements" asserting, with unprecedented sweep and aggressiveness, his right to ignore congressional control. Such contempt for the people's representatives verges on monarchical pretension.
The administration's politics of panic diverts attention from pressing questions of social justice and environmental survival. The president remorselessly seeks to undermine the principle of progressive taxation. Under cover of patriotism, he promotes vast tax cuts to the rich at the expense of policies that strengthen the common ties that bind us together as a community.
We reaffirm the great principle of liberalism: that every citizen is entitled by right to the elementary means to a good life. We believe passionately that societies should afford their citizens equal treatment under the law -- regardless of accidents of birth, race, sex, property, religion, ethnic identification, or sexual disposition. We want to redirect debate to the central questions of concern to ordinary Americans -- their rights to housing, affordable health care, equal opportunity for employment, and fair wages, as well as physical security and a sustainable environment for ourselves and future generations.
Instead of securing these principles, the president and his party view the suppression of votes indulgently and propose new requirements for voting that will make it still harder for the poor and the elderly to exercise their democratic rights.
The administration's denial of reality reaches a delusional peak in its refusal to acknowledge basic science describing the massive climate change now under way. Against the advice of all serious experts, the government has grossly failed in its responsibility to our descendants. It has consistently sought to undermine the Kyoto treaty and refused to encourage energy conservation. We insist on a clean break with this shameful record. Our government should be taking the lead in reducing greenhouse gases, recognizing our responsibilities as the world's leading polluter. We should be investing massively in energy sources that carry out a commitment to environmental stewardship and help restore our manufacturing base at the same time.
The administration's contempt for science is of a piece with its general disdain for reason -- a prejudice that any modern society ought to have left behind. Whether confronting scientific research, evolution, birth control, foreign policy, drug pricing, or the manner in which it makes decisions, the Bush administration has defied evidence and logic, sabotaging its own professional civil servants. It refuses serious consultation with experts and critics. It acts secretly, in defiance of the powers of Congress. It refuses to identify those whose advice it solicits, even concealing the names of the vice president's staff. It stifles civil servants attempting to do their jobs. It appoints cronies whose political loyalty cannot compensate for their incompetence. When challenged, it responds with lies and distortions.
Reason is indispensable to democratic self-government. This self-evident truth was a fundamental commitment of our Founding Fathers, who believed it was entirely compatible with every American's First Amendment right to the free exercise of religion. When debating policy in the public square, our government should base its laws on grounds that can be accepted by people regardless of their religious beliefs. Public commitment to reason and evidence is the bedrock of a pluralist democracy. Nevertheless, it has been eroded by the present administration in an ongoing campaign to pander to its hard right wing.
This government's failures to respect the process of public reason have generated predictable consequences -- none of them good. The Bush administration has failed to protect its citizens from disaster -- from foreign enemies on September 11, 2001, and from the hurricane and flood that afflicted the Gulf Coast in 2005. It has driven the war in Iraq to an impasse. It is incapable of presenting a plausible strategy to bring our military intervention to a tenable conclusion.
We insist that America be defended vigorously against its real enemies -- the radical Islamists who organize to attack us. But security does not require torture or the rejection of basic guarantees of due process. To the contrary, this administration's lawless conduct and its violations of the Geneva Conventions only damage our moral standing and our ability to combat the appeals of violent ideologues. By defending torture, the Bush administration engages in precisely the kind of ethical relativism that it purports to condemn. Meanwhile, it refuses to confront its responsibility for the human-rights violations at Abu Ghraib, Guantanamo, and elsewhere. Having failed to plan for obvious contingencies, it has scapegoated low-level military personnel when it should be identifying and punishing broader command failures.
We refuse to confine our criticisms to personalities. We believe that the abuses of power that have been commonplace under Bush's rule must be laid not only at his door -- and the vice president's -- but at the doors of a conservative movement that has, for decades, undermined government's ability to act reasonably and effectively for the common good.
We love this country. But true patriotism does not consist of bravado or calumny. It resides in faithfulness to our great constitutional ideals. We are a republic, not a monarchy. We believe in the rule of law, not secret prisons. We insist on justice for all, not privilege for the few. In repudiating these American ideals, the Bush administration disgraces America and damages our claim to democratic leadership in the larger world.
It will take hard work to undo this damage. It will take more than defeating the hard-line right at the polls. We must engage in large acts of political imagination and inspire a new generation to take up liberal principles and adapt them inventively in a new century.

-- Bruce Ackerman and Todd Gitlin

I was proud to add my name to the list of signatories. And you can too by
e-mailing this address.

Can the Republicans Gain a Lasting Majority?


The key sentence in this premature requiem for Karl Rove's political influence in the Republican Party is the last one, in which Rove states matter of factly that the fate of the conservative movement does not stand or fall on the results of the 2006 elections: "1938 was a huge wipeout for the Democrats -- do you think that was the end of the New Deal?"

The comparison speaks volumes about what Rove and Bush are attempting: a fundamental realignment of American politics that will create a conservative Republican majority for a generation. In this analogy, 2000 is to 1932 as 2004 is to 1936, and as 2006 might be to 1938. But there is one important difference between the two time periods. Democrats won by landslides in 1932 and 1936, racking up sizeable majorities in the House and the Senate. They lost some ground in 1938-- in part due to unpopularity over court packing, in part due to a deteriorating economy-- but they did not lose control of either house of Congress. And in 1940 Roosevelt was elected to an unprecedented third term, while maintaining sizeable Democratic majorities in both houses of Congress. Similarly, during the heyday of Lyndon Johnson's Great Society, the Democrats not only controlled all the branches of government, they also controlled both houses of Congress by decisive margins.

To make the lasting kinds of changes that Bush and Rove seek, the Republicans need to gain a significant majority of American voters over a sustained period. They have not managed to do that yet.

There have been no Republican landslides for the Presidency since the 1980s, or for Congress since 1994. Since 1994 they have never had more than 232 seats in the House, or 55 seats in the Senate. (After the 1964 elections, the Democratic numbers were 295 and 68, respectively; after the 1936 election they were an astonishing 334 and 76-- with a smaller House and Senate!)

Even in the current six years of one party government, the Republicans have never enjoyed the sheer power that liberal Democrats had when they transformed American society during the New Deal and the Civil Rights Revolution. (Indeed, to put it another way, even after their losses in 1938 the Democrats had larger majorities in both the House and the Senate than the Republicans have ever had in their most *successful* years since 1994: 262 seats in the House, 69 seats in the Senate. Rove may call that a "huge wipeout" for the Democrats, but I'll bet he'd be delighted to have Republican majorities that large.) In the 1980s, Ronald Reagan was checked by a Democratic-controlled Congress. When the Republicans tried to dominate American politics after the 1994 elections (with considerably smaller majorities than the Democrats enjoyed during the New Deal and the Civil Rights Revolution), they were beaten back by Clinton in the government shutdown showdown. When they sought to impeach Clinton, they failed to remove him and even lost seats in the 1998 elections.

Repeatedly the conservative movement has tried to achieve the hegemonic status that the Democratic Party enjoyed during the 1930s and then briefly during the 1960s-- significantly altering assumptions of government and constitutionalism. Each time they have come close, they have either been stopped or have stumbled due to self-inflicted wounds.

Rove may have hoped that the 2000 and 2004 elections would be the beginnings of a fundamental transformation like the New Deal and the Civil Rights Revolution. But 2000 wasn't a landslide-- Bush didn't even win a popular majority, and 2004 was a moderately close contest. And things haven't turned out exactly as Rove hoped since the 2004 election. Even so, Rove is correct that what happens in 2006 won't necessarily settle things once and for all. If Bush had been turned out of office in 2004, that would tell a very different story. But a loss in mid-year elections in 2006 doesn't necessarily spell the end of the Republican Revolution.

Much depends on whether the Republicans can successfully recreate a National Security/Values Coalition, find a movement conservative to win the Presidency decisively in 2008, regain Congress by significant margins, and grow those margins over time, just as the Democrats did in the 1930's. If they can do all of these things, then Rove's plan will be vindicated. But that means that we won't know whether Rove's plan succeeds for many years.

Rove may know something about the 2006 elections that everyone else doesn't. Or he may be counting on 2008 to provide the landslide victory that will cement a Republican majority for a generation. If Iraq continues the way it has been, this does not seem likely. But politics has a way of changing very quickly in a very short period of time. On September 10th, 2001, the Bush Presidency seemed stalled. A day later, it had new life and a new set of political goals-- fighting the War on Terror-- that it had every reason to believe would unite the Republican Party and finally carry it to a permanent majority.

Another Sign of a Likely Democratic Party Victory on November 7, and that Little Will Change

Brian Tamanaha

Among the many polls and other indications of the likely Congressional gains by the Democratic Party on November 7th, one of the most compelling signs is this report in the New York Times about a flurry of late giving to Democrats by corporate groups. For example, from January of this year through September, Pfizer had given 67 percent of its donations to Republicans, but it gave 59 percent to Democrats in October; similarly, Lockheed gave 70 percent to Republicans through September, but 60 percent to Democrats in October.

Clearly, the smart money is now betting on Democrats. The article reports that this is the "first double-digit October switch since 1994," when the Republicans seized control of Congress.

Democratic operatives can barely contain their glee at the sudden flow of money and attention they are now receiving from corporate lobbyists. "People are excited," said the Executive Director of the party's Congressional committee, after a recent party briefing attended by more than 100 lobbyists. Pausing to dab the drool off her chin, she continued, "It was, by far, the best attended one ever." (Okay, I made up that drool part.)

The article describes one Democratic candidate, who "has already been telephoning some members of the Washington business lobby, offering an opportunity to begin a good relationship if he wins election." "Many of these meet and greet sessions will have a dual purpose: political action committees will offer contributions to help candidates wipe away debt their campaigns accrued during the race."

That says a lot about the prospects that a Democratic controlled Congress will enact meaningful lobbying reforms.

Centrist Democratic Representative Adam Smith said, "I hope that the new Democratic majority will take a more open and cooperative approach. I hope there won't be a sense of, 'Oh, you gave too much money to Republicans, so we're not going to talk to you.'"

There is nothing wrong with "talking" to corporate interests, of course. The problem is that these corporate interests funnel and withhold huge sums of money--$2.6 billion in this mid-term election--that inevitably has an impact on the decision making of legislators. Corporations would not be investing that kind of money without getting a real return. Yet legislators from both parties piously insist that these contributions have no impact.

The situation reminds me a bit of a study I read about a decade ago of pervasive corruption in the Indonesian Court system. Judges were routinely given money by litigants in the cases before them. Since they were given money by both sides in the case, however, they insisted that the contributions did not improperly sway their decisions.

Using the same kind of reasoning, corporations are not buying the favors of one political party or the other, because they give tons of money to both. Of course, the difference with the Indonesian situation is that corporate money is not matched or balanced on the other side (please don't say labor unions, environmental groups, and plaintiff's lawyers give lots too--it is a piddling amount by comparison). Corporate interests don't need to pick one party over the other when they can effectively buy special consideration from both parties. Republicans might be more friendly to corporate interests, but Democrats want to be friends as well.

What is more cynical: corporations using big money to sway the decisions of legislators, or legislators eagerly seeking corporate money, suggesting that it will be money well spent?

Corporations can at least justify their conduct as consistent with maximizing profits, which is their purpose (though some would say that corporations also have duties to their community). However, how do legislators justify their aggressive solicitation of money from private interests--that expect something in return--when their duty is to the public good?

Here's the answer: "That's the way the system works, Tamanaha, so stop being naive."

Saturday, October 28, 2006

Commodifying Commitment

Ian Ayres

One of the critiques of commodification is that putting prices on certain activities may drain all the joy out of life. But in this Forbes column, Barry Nalebuff and I suggest that in certain contexts this kind of commodification effect might be a good thing. Commitment contracts might help people lose weight or quit smoking. Instead of paying $500 a year to use Weight Watchers, you might be better off to pay $1000 at the beginning of the year and then have Weight Watchers pay you $10 every week that you show up to be weighed.

Commitment contracts could even promise to pay very substantial interest rates IF you promise to lose and keep weight off.

The commitment idea could also help people be better eco-warriors. Environmentalists tell us to get off our butts and go across the room to turn off the unused light, because the electric company doesn't charge the true social cost of wasted electricity. But the electric company could pay you $1000 at the beginning of the year, if you promised to pay more for kilowatt hours. Now you'll go across the room because it really will cost you a lot for extra electricity.

Instead of GM buying down the price of gasoline to $1 per gallon if you pay it up front by buying a car, Toyota or Ford (or even GM) should offer to pay you if you'll agree to increase the price per gallon that your willing to pay for gas.

Friends and family members have been helping each other with commitment contracts for a long time. The cursing jar, and private weight loss bets are just the tip of the iceberg. But there's no good reason why entrepreneurs or non-profits shouldn't mass-market commitment contracts to help us be what we want to be.

Yes, It's a No-Brainer: Waterboarding Is Torture

Marty Lederman

Following up on Jack's post, I would emphasize again that despite its constant pleas that it cannot publicly discuss the legality of particular interrogation techniques -- an argument that ultimately depends on the notion that the rule of law is incompatible with fighting wars, because it is inapprorpiate to inform the enemy of what one's legal limits might be -- the Administration is more than happy to enumerate, in significant detail, which techniques are not legally available. As I wrote last month:
In his speech today, the President once again insisted that we "cannot describe the specific methods used -- I think you understand why -- if I did, it would help the terrorists learn how to resist questioning." In other words, if the detainees know what our legal limits are, they will know precisely which techniques they must resist in order to avoid revealing valuable information.

But this argument is no longer tenable (if it ever was), because we are now obviously very willing to disclose all sorts of limits beyond which we cannot go. The Administration's own bill today lists 27 specific forms of conduct that we ourselves will consider "war crimes" triable by military commission (pages 65-76). The Administration's draft amendment to the War Crimes Act (pages 79-84) contains nine categories of meticulously described conduct that could be punished as war crimes in the civilian criminal justice system. And, as noted above, the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified. It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families. Knowing that such techniques are legal would not make it any easier for detainees to resist them.
In other words, if, in the Administration's view, waterboarding were clearly unlawful, it would say so publicly. The fact that it is unwilling to do so means that it is leaving open the possibility that the CIA may legally employ waterboarding.

How can that possibly be? I understand how the Vice President might think it is a "no brainer" that waterboarding can be used, because he and his staff do not think that the law binds the Executive branch at all. [It really says something about the state of our Nation, doesn't it, that the Administration's ludicrous defense of the Vice President's remarks is that he was referring not to waterboarding but instead to dunking detainees in water? As if that torture technique -- you know, the one used to test suspected witches -- is more acceptable conduct for the greatest democracy on Earth in the 21st Century? As I've said before, the term "shameless" doesn't even begin to describe . . . .]

But let's put aside the Vice President. How could the Office of Legal Counsel possibly conclude that waterboarding is legal? The short answer is that if OLC were performing its role properly -- i.e., assisting the President's faithful execution of the law -- it couldn't ever have signed off on such a technique. Even if waterboarding were not "torture," as defined in the law, it would still violate at least three other legal prohibitions, even when conducted by the CIA (which is subject to fewer laws than the military). For example, waterboarding violates:

(i) The federal assault statute, 18 U.S.C. 113, which provides that simple assaults, or assaults by striking or beating, are misdemeanors if they occur "within the special maritime and territorial jurisdiction of the United States" (which includes "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership").

(ii) Common Article 3's prohibition on all "cruel treatment and torture."


(iii) The McCain Amendment's prohibition on cruel, inhuman and degrading treatment, which prohibits all conduct that would "shock the conscience" assuming the Due Process Clause applied. According to Justice Kennedy (almost certainly the dispositive vote as of now), this includes at the very least "torture or its close equivalents."

But one need not resort to these other legal constraints in this case, because waterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A. OLC apparently advised otherwise -- but how could that be? After all, waterboarding is perhaps the classic, paradigmatic technique of acknowledge torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains, the U.S. itself "has long considered waterboarding to be torture and a war crime.":
As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the 'water cure.' After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.
And plainly, if our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of torture. It is hard to imagine how OLC could possibly have concluded otherwise.

But I think I've figured out what OLC's "reasoning" was. The key is found in the replacement torture memo, the one issued in December 2004 to supersede the notorious August 2002 torture memo.

In one of my first posts here, I praised that 2004 memo, which is in numerous respects an enormous improvement over, and rebuke of, the horrifying memo that it superseded. But I continued to be bothered and befuddled by footnote 8 of the memo, which stated that notwithstanding the "various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." If, as reported, those OLC conclusions in 2002 included that waterboarding could be legal, how could the new memo's more reasonable legal analysis of the torture statute not affect what the CIA had been authorized to do?

Part of the answer is in the narrow way that Congress has defined torture. The Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute. The criminal statute thus defines torture as an act "committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"; and the statute in turn defines "severe mental pain or suffering" to require "prolonged mental harm."

Ans so, perhaps OLC concluded that when it comes to waterboarding, the mental pain and suffering is intermittent and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes or less, and is not intended to result in any lasting mental suffering. (Let's put to the side here the rather problematic point that severe long-term mental suffering is foreseeable in many cases.)

OK, but even if we assume that analysis is plausible (which is a stretch), and even assuming further that waterboarding does not result in physical pain, what about the prohibition on intended severe physical suffering? After all, the very purpose of waterboarding is to inflict a form of intense physical suffering that results in severe terror for one's life -- a terror that not even the most hardened criminals are said to be able to resist. According to one account reportedly promulgated by the CIA itself, "[u]navoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

The whole point of waterboarding is to induce severe physical suffering. Therefore it is torture, even under the limited definition in U.S. law.

It ought to be as simple as that, right? Indeed, the idea that Congress would not have considered the acute suffering caused by waterboarding to be "torture" (particularly in light of the historical consensus that it is a paradigm case of torture) is so utterly implausible that it is hard to imagine the Office of Legal Counsel even considering, let alone adopting, any interpretation of the statute that would exclude such a technique from its ambit. Under a reasonable mode of statutory construction, one could start with the understanding that waterboarding is torture, and work outward from that truism to see what it reveals about the meaning of the statute for other techniques.

Ah, but take a look at the runover paragraph at the top of page 12 of the 2004 OLC memo -- a passage that I unfortunately overlooked when I first analyzed the memo. In that paragraph, OLC concludes that in order to constitute "torture," "severe physical suffering "would have to be a condition of some extended duration or persistence as well as intensity." The category is, OLC reasoned, "reserved for distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory."

This legal "analysis" is simply made of whole cloth. Well, not even. There's no cloth there at all. It is completely unsupported by, and contrary to, the plain words and structure of the statute -- which require that severe mental suffering be "prolonged" in order to constitute "torture," but that conspicuously fail to include a similar duration requirement for severe physical suffering. Nor is OLC's "duration" requirement supported by any other evidence or rule of statutory construction. OLC doesn't cite anything in support of its conclusion -- nothing worthy of mention in serious conversation, anyway. (In a footnote, OLC canvasses some dictionary definitions of the word "suffering." Suffice it to say that the footnote is so desperate, half-hearted and unconvincing -- indeed, it undermines OLC's interpretation of the statutory phrase -- that the less said about it the better, for the sake of OLC's long-term reputation. That those dictionary definitions were the best -- indeed, the only -- authorities OLC could come up with speaks volumes about its attempt to intepret the phrase "severe physical suffering" so as not to cover profound but "transitory" physical suffering, such as that resulting from waterboarding.)

Once I focused on it, it became obvious that OLC wrote that particular paragraph of the 2004 OLC Opinion not in order to provide any legitimate legal advice about the meaning of the phrase "severe physical suffering," but instead precisely with waterboarding in mind (since the whole point of waterboarding is that the suffering it induces is so severe and acute that it doesn't take long to "work"), and for the specific purpose of being able to conclude that OLC's former absurd advice -- that waterboarding is not "torture" -- was not affected by the new 2004 analysis of the statute. It is a desperate, horrifying piece of legal analysis -- as craven and unconvincing as (almost) anything in the 2002 memo.

It pains me to say that, not only because I think the 2004 memo is otherwise such a needed and welcome improvement over what came before, but also because I am a proud alum of the Office with great respect for the role OLC had traditionally played in our constitutional system. But OLC's analysis of the phrase "severe physical suffering" -- a disingenous bit of ipse dixit evidently ginned up merely in order that the Office would not have to condemn waterboarding as illegal -- is an unfortunate example of the Office at its nadir, acting not in its proper role as honest and faithful interpreter of law, but instead as apologist for the torturer, who, as the Court has noted, "has become--like the pirate and slave trader before him--hostis humani generis, an enemy of all mankind."

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