JB

I was reading through the Sunday New York Times story about Howard Dean's history when I came across this rather puzzling argument at the very end:

Then there are the questions about whether a man whose chief political experience has been running a governor's office has the skills to run the federal government.

"A C.E.O.'s skills are essentially the same, no matter the size of the company," Dr. Dean said. "Clearly, with the presidency, you've also got to deal with defense. But otherwise, the basic problems are the same and the difference is the number of zeroes in the budget."

That may be understating the difference, even close supporters believe.

"The governor's staff was maybe five or six people, plus clerical help, and only two or three of those are really close to you," said Dick Mazza, a veteran Vermont senator and an ally. "You have, what, one state police officer assigned to you? It's a lot different from being president of the United States."

Whoever wrote this article probably has forgotten that it's very common for recent presidents to be governors. The current president, George W. Bush was governor of Texas, a state in which the governor has less executive power than in the average state and in which the legislature only meets every other year. (Perhaps the writer was suggesting that George W. Bush is not doing a very good job because he was a former governor.) The president before Bush was Bill Clinton, who when elected was the governor of Arkansas. Ronald Reagan and Jimmy Carter were also governors before they became President, although in Reagan's case several years passed before he won the Presidency. (And don't forget Franklin Roosevelt, who was Governor of New York, and Woodrow Wilson, who was Governor of New Jersey, before each became President). It is pretty hard to say that governors do less well in the job of president than the average president precisely because so many governors-- in the 20th century, at least-- have become presidents. Put another way, the average president in the 20th century *is* a former governor. It is worth considering why this should be so.

Although governors are usually not national politicians before they run for the presidency, they are the most likely to win the presidency, compared to Senators or Congressmen. Only former Vice Presidents can compare with them. In the ninteenth century, other members of the President's cabinet, for example the Secretary of State, often became president. But this becomes more rare in the 20th century. (The last two examples are Taft, who was Secretary of War before he became President in 1908, and Herbert Hoover, who was Secretary of Commerce before becoming president in 1928.) Since Franklin Roosevelt, at least, the most common job a President holds before becoming President is Governor or former Governor, and the second most common is Vice-President or former Vice-President. John F. Kennedy, a senator from Massachusetts, and Warren G. Harding, a Senator from Ohio, are the only two examples of a successful presidential campaign by a sitting Congressman or Senator in the twentieth century.

Why is this? Governors have two things going for them in mounting a successful presidential campaign. First, they have an executive and political staff already formed around them. (That is something that Vice-Presidents also have). Second, and probably more important, they can more easily portray themselves as outsiders than Senators, Congressmen, or former Vice Presidents can.

Party affiliation also is an important factor. A governor from a party opposite that of the incumbent president (or incumbent vice-president seeking to succeed an incumbent president) has a particularly strong advantage in portraying himself as an outsider to Washington politics. We can see this configuration at work in the following matchups: Roosevelt (D) versus Hoover (R), Carter (D) versus Nixon/Ford (R), Reagan (R) versus Carter (D), Clinton (D) versus George H.W. Bush (R), and George W. Bush (R) versus Clinton/Gore (D).

The ability of new faces to challenge the status quo from the hinterlands is an important but underappreciated feature of American federalism: Governors play a key role in keeping a party's fortunes alive when the party no longer controls the federal government. They are the farm team from which a party out of the White House can form a successful counter-insurgency. A party in the wilderness can still regroup by capturing governorships, and from these governorships new leadership often arises that can challenge the status quo, represented by the incumbent President (or Vice-President) of the other party.

Adlai Stevenson's case is the exception that proves the rule. Stevenson was a Democratic governor succeeding an incumbent *Democrat*, Harry Truman, who was very unpopular at the time, and he lost to the Republican, Dwight Eisenhower. Because Truman was from the same party as Stevenson, Stevenson was unable to establish himself as the outsider candidate in contrast to Eisenhower, while Eisenhower had the dual benefit of being a national hero and not a professional politician. The real exception is not Stevenson but the Republican Thomas Dewey, governor of New York, who lost to the incumbent Democrat, Franklin Roosevelt in 1944, and again in 1948 to the Democrat Harry Truman. I suppose you could argue that Dewey lost in 1944 because the country was not willing to change horses in mid-stream during World War II, and that in 1948 Truman successfully ran against the "Do Nothing" Republican Congress. Instead, I would simply acknowledge that sometimes the incumbent President (or, Vice-President running to succeed the incumbent President) can stave off a challenge from a sitting governor of the other party. It happened in 1944, it happened in 1988 (when Michael Dukakis, governor of Massachusetts, failed to defeat George H.W. Bush, the incumbent Vice-President) and it may happen in 2004 for all we know: Military success in Iraq and a booming economy may lead Americans to reward the incumbent, George W. Bush. Or a second terrorist attack (God forbid) may make Americans wary of changing horses in midstream.

In any case, the outsider-governor versus insider-incumbent-President matchup has happened so many times in the twentieth century that it suggests that governors have a definite advantage in Presidential matchups, despite the fact that they are usually not national politicians and have little if any experience in foreign policy before they take office. Whether this will continue to be the case in 2004 is anyone's guess. But it is hard to assert, as the New York Times article seems to, that Dean will have problems serving as president because he's a governor.

JB

The decision was 2-1. The majority opinion is here. The dissent is here. The decision appears to turn on whether the President can unilaterally declare a citizen captured on U.S. soil an enemy combatant or whether Congress must approve such detentions. The majority stated that "[w]here, as here, the president's power as commander in chief of the armed forces and the domestic rule of law intersect, we conclude that clear Congressional authorization is required for detentions of American citizens on American soil."

Note the use of the word "clear" here. It is easy to argue that the Congressional resolution authorizing the President to retailiate against the 9/11 attacks is Congressional authorization. The September 18th, 2001 resolution authorizes the President "to use all necessary and appropriate force" against nations, organizations or individuals responsible for the 9-11 attacks or who are engaged in acts of international terrorism. However, the point of requiring a clear statement is to force Congress to consider whether it really wants to suspend the basic right of American citizens to the protections of the Bill of Rights by suspending the writ of habeas corpus, and whether it is willing to take the political heat for doing so. Note that the President seems perfectly willing to take the heat. But Congress is a multimember body that reflects multliple constituencies. It might not want to authorize the President to rescind-- according to his sole determination-- the most basic freedoms that Americans enjoy. The Second Circuit's clear statement rule is not much of a protection for civil liberties, but it is something.

JB

Thomas Kean, the former Republican Governor of New Jersey, and chairman of the independent commission investigating 9/11, said that failures by government officials leading up to September 11, 2001 allowed the tragedy to occur:

"As you read the report, you're going to have a pretty clear idea what wasn't done and what should have been done. I mean, this was not something that had to happen," said Thomas Kean during an interview on the CBS Evening News.

Kean, a former Republican governor of New Jersey, said government officials in decision-making positions did not do their jobs in the weeks and months leading up to Sept. 11, 2001, or on that day, and should be held accountable.

"They failed. They simply failed," said Kean. He said if he were in charge, some of these people would still not be in their jobs today.

The story from CBS online offers additional details:

To find out who failed and why, the commission has navigated a political landmine, threatening a subpoena to gain access to the president's top-secret daily briefs. Those documents may shed light on one of the most controversial assertions of the Bush administration – that there was never any thought given to the idea that terrorists might fly an airplane into a building.

"I don't think anybody could have predicted that they would try to use an airplane as a missile, a hijacked airplane as a missile," said national security adviser Condoleeza Rice on May 16, 2002.

"How is it possible we have a national security advisor coming out and saying we had no idea they could use planes as weapons when we had FBI records from 1991 stating that this is a possibility," said Kristen Breitweiser, one of four New Jersey widows who lobbied Congress and the president to appoint the commission.

The widows want to know why various government agencies didn't connect the dots before Sept. 11, such as warnings from FBI offices in Minnesota and Arizona about suspicious student pilots.

"If you were to tell me that two years after the murder of my husband that we wouldn't have one question answered, I wouldn't believe it," Breitweiser said.

Kean admits the commission also has more questions than answers.

Asked whether we should at least know if people sitting in the decision-making spots on that critical day are still in those positions, Kean said, "Yes, the answer is yes. And we will."

Kean promises major revelations in public testimony beginning next month from top officials in the FBI, CIA, Defense Department, National Security Agency and, maybe, President Bush and former President Clinton.

I have long wondered when the 9/11 commission was going to begin making the story of 9/11 public. If Kean is able and willing to tell the whole story, this could be pretty interesting.

JB

Tom Friedman asks people on the left to get behind the rebuilding and democratization of Iraq.

For my money, the right liberal approach to Iraq is to say: We can do it better. Which is why the sign I most hungered to see in London was, "Thanks, Mr. Bush. We'll take it from here."

Friedman and I agree that we cannot simply leave Iraq but must make the best of it. Having invaded Iraq, (which he supported and I did not) we must put it on the right course toward democracy. If we do not, we will be in much worse shape in the long run.

But Friedman's argument betrays the difficulty of his position. On the one hand, he insists that "[t]he next six months in Iraq - which will determine the prospects for democracy-building there - are the most important six months in U.S. foreign policy in a long, long time." On the other, he describes the Bush team as "a partisan, ideological, nonhealing administration" and concludes that the task of democratiziation "is way too important to leave it to the Bush team alone." I think he is right on both counts. We are at a crucial crossroads in American foreign policy and the Administration has shown that it is simply not up to the task. It has proven much better at invading and destroying than rebuilding.

What Friedman has not explained is what liberals should do in this crucial six month period given that Bush seems to show no signs of wanting to listen to anyone but his own advisors. It's one thing to say that liberals should work for a more democratic Iraq. It's quite another to support a President who will not listen to what they say and is likely to mangle the situation as badly as he has mangled the previous six months. If Friedman is correct, by the time the Democrats regain the White House (if they do!) it may well be too late. Bush may have ruined the possiblity of a democratic Iraq for years to come. And Democrats will be left to clean up the mess created by this most unwise adventure in world domination. What infuriates many people on the left, I would suggest, is that given Bush's track record so far, they do not believe that he is really serious about making the tough choices necessary to democratize Iraq, particularly with an election coming up in less than a year. For Bush is above all a political animal, who will do what it takes to win reelection. Even if he is defeated in 2004, Democrats will inherit a much more dangerous world and a financially strapped government as a result of his bad policies. The Bush Administration has not only misplayed its hand, it has created a mess that will be very difficult to clean up no matter who is in office. Under the logic of Friedman's argument he should be wishing that election were held today rather than a year from now. For if Friedman is right, and there is no time to lose, he well understands that the wrong people are at the helm.

Back before the war, in September 2002, I argued that Bush was the most dangerous person on Earth. Not because he was evil, or bad hearted, or opposed to freedom, but because he was a gambler, cocksure, arrogant, and altogether convinced of his own rectitude. He and his Administration are the last people we should be trusting to handle this most delicate moment in American foreign policy. The war was unwise because it made us less safe, and weakened our hand in the war on terror. Now we must make the best of a bad situation. The first step is voting the person who made this terrible mess out of office as soon as possible.

JB

I was pretty much in agreement with David Brooks' column arguing for same sex marriage, until I got to this last little bit of prose:

The conservative course is not to banish gay people from making such commitments. It is to expect that they make such commitments. We shouldn't just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity.

When liberals argue for gay marriage, they make it sound like a really good employee benefits plan. Or they frame it as a civil rights issue, like extending the right to vote.

Marriage is not voting. It's going to be up to conservatives to make the important, moral case for marriage, including gay marriage. Not making it means drifting further into the culture of contingency, which, when it comes to intimate and sacred relations, is an abomination.

Brooks' conservative case for marriage is based on the notion that everyone (and if you read the whole column, you will see that he especially means everyone who has sex) should be married, and that it is "scandalous" that people who "claim to love each other" should not be married. On this Brooks and I disagree: I reject his insinuation that if you love another person you must also want to marry them or else you don't really love them. Marriage is not for everyone. The notion that everyone must conform in lock step to the same set of social practices is the darker side of Brook's so-called conservative case for same-sex marriage, and it conflicts with the view of many conservatives (and liberals too, I might add) that individual choice about the most important matters in one's life should be respected.

Yet the question is more complicated than simply one of liberty versus conformity. Like Brooks, I believe that stable families are a good thing, particularly (but not exclusively) because of children. For that reason, I also agree with him that it is important to encourage marriage and fidelity. But marriage is hardly a perfect institution; it still contains within it the remnants of older ways of thinking about families that can be stifiling and oppressive, particularly to women. Given its imperfections, we should not assume that if a person does not want to get married that signals that there is something wrong with them or that they are incapable of real love. That conclusion is insulting; moreover, it assumes that there is nothing wrong with the institution of marriage that could cause a reasonable person to avoid it.

JB

I've been thinking about the proposed Federal Marriage Amendment (FMA), whose text is available at the website of the Alliance for Marriage. The proposed text of the amendment reads:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The Alliance for Marriage argues on their website that this language is designed to keep courts from imposing same sex marriage on the states, and to keep legislatures from passing laws authorizing same-sex marriage, but it does not prohibit state legislatures from passing laws creating civil unions for same-sex couples.

I'm not so sure. The text is cleverly and confusingly written: The amendment says that no "state or federal law shall be construed to require" that "the legal incidents of" marriage may be enjoyed by same-sex couples. These legal incidents include a whole bundle of rights in family law, pension law, tort law, property law, and so on. What the text seems to say is that everyone who is sworn to uphold the law, including not only judges, but executive and administrative officials, would be prohibited from construing the law to give same sex couples this bundle of rights or any part of them. Since the law cannot be construed to do this, it cannot be enforced to this effect either. Private employers who give same sex couples benefits simlar to those of married couples would be able to do so, but they would not be permitted to construe any federal or state law as requiring them to do so, and no government official could enforce such an interpretation against private businesses. Thus, California's laws, which now give same sex couples many (but not all) of the same rights as married couples, and Vermont's civil unions law, which gives almost all of the same rights, would probably be made unenforceable by the Amendment's second sentence.

If the FMA had been designed to do what its proponents claim it will do, it should have been drafted as follows:

Section 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status be conferred upon unmarried couples or groups.

Section 2. Nothing in the first section of this Article shall be construed to prevent either Congress or the legislatures of the several states from providing any other benefits, rights, or privileges, or combinations thereof, to unmarried couples or groups.

Thus, Congress and state legislatures may provide all of the incidents of marital status except marital status itself. As you can see, such an amendment is not particularly difficult to draft. The fact that there is a gap between what the text says and what the Alliance for Marriage says the text will do suggests to me that they are not being entirely forthcoming about the reasons for the Amendment.

JB

Massachusetts's highest court has struck down the state's ban on same sex marriage, following the lead of Vermont. The decision was 4-3. The Supreme Judicial Court gave the Massachusetts legislature 180 days to come up with a legislative solution to the problem. This is roughly similar to what the Vermont Supreme Court did. However, Massachusetts politicians have already been considering an amendment to the state constitution that would prohibit same sex marriage. One of the key factors in the Vermont case was that the Vermont Constitution is very difficult to amend. If the Massachusetts Constitution is like most state constitutions, is entirely possible that the Supreme Judicial Court's decision will be overruled. Both Alaska and Hawaii amended their state constitutions to prevent same sex marriage when it looked as if courts would strike down legislative bans.

The Massachusetts case will probably cause renewed calls for a protection of marriage amendment at the federal level, which will probably not succeed, because it is so difficult to amend the U.S. Constitution. More importantly, it threatens to place same sex marriage in the middle of the 2004 elections. Republican politicians will probably view this as a new wedge issue to beat up Democrats with, especially in the South. Nevertheless, it's still unclear what the fallout will be. It makes a great deal of difference that this decision has come after the Supreme Court's opinion in Lawrence v. Texas rather than before it, even though the two issues are analytically distinct.

UPDATE: David Krinsky writes:

the MA constitution is quite difficult to amend; doing so
requires a vote of two consecutive sessions of the legislature
followed by a statewide referendum. See Mass. Const. art. XLVIII.

Even if such were likely to pass--and in MA, I have my doubts, since
anti-gay-marriage amendments have been successfully defeated
before--there's absolutely no way that it can happen until today's
ruling has been in effect for over a year, even with the 180-day stay.

JB

Today I'm off to NYC to a conference on electronic gaming, including multiplayer games in networked environments and virtual worlds. It's called The State Of Play, and it's jointly sponsored by New York Law School's Institute for Information Law and Policy, and Yale's Information Society Project, of which I am the director.

The schedule of events is here. Wired News is covering the event, and there's an article about it here,with a quote from yours truly. I'll be talking about freedom of speech as it relates to game development and game behavior, and what happens when the boundaries between the game space and real space are blurred or transgressed.

JB

If you are wondering what all those rumors swirling around Prince Charles are about, you can find the answer here. The Straits Times is not bound by the court order which constrains the U.K. press from reporting details on the story. In the meantime, the tabloids in the U.K. adopted their familiar method of getting around court orders and threatened libel suits: "continually printing the same odd photograph of Prince Charles standing with another man in a field, without explaining why the photograph had any significance."

The growing media scandal shows how foolish the U.K.'s rules about prior restraints on speech are. In the age of the Internet, it's pretty easy to find out in other papers what the British papers can't publish. Anyone who knows how to use Google's news function can pretty quickly find the substance of the rumors.

JB

Many progressives are distressed that Howard Dean has chosen to forgo matching funds for the primary season, believing that it heralds the death of campaign finance regulation. I am somewhat less concerned.

There are three basic reasons to restrict campaign finance. The first is that you don't want elections decided simply by who raises more money so that the policy differences between the candidates become essentially irrelevant to determining who wins. The second is that you are worried that the drive to raise funds will produce an arms race that will divert representatives from governing because it will force them to spend more and more time raising funds and cuddling up to wealthy donors. Third, you are worried that there will be corruption or at least the appearance of corrpution-- Even if large donations do not result in quid pro quos, they do help secure access to the candidate and thus predispose candidates toward the interests of the very rich and powerful.

Raising funds through the Internet, which the Dean campaign has pioneered, changes the picture somewhat. The Internet makes it possible to raise lots of money in relatively small sums from a very large number of people. That means that an increasing percentage of a campaign's money comes from small scale Internet donations. Then the second concern is reduced because it takes less of the candidate's time to raise money. Rather, the candidate needs a better infrastructure to organize and deliver contributions. He or she can spend more time campaigning rather than courting individual donors because campaigning reaches a broader audience and thus produces more funds. The third concern is reduced because the distribution of contributions is flatter. That means that there are fewer people who can genuinely claim the right to specialized access, which tends to lessen the problem of corruption or the appearance thereof. And, I would argue, the first concern is somewhat reduced because the ability to raise funds is more genuinely correlated with popular support. The candidate who raises the most money is the candidate who can energize the most people to support him or her financially.

Is Internet financing of campaigns a panacea? No, not by a long shot. But we can hope that Dean's Internet model eventually comes to dominate the model that President Bush has adopted, which relies on contributions from wealthy individuals whom the President has rewarded with very large tax breaks. When you think about it, the President and his donor base have been engaged in a not very subtle quid pro quo: He lowers tax rates on the wealthiest Americans, and they, in turn, do their best to get him elected. Bush's strategy raises all three of the concerns mentioned above-- money displacing votes, the arms race, and the danger of corruption-- much more than the Internet model.

So there is reason to be glad about what Dean is doing. If he demonstrates that his model works, and and if both major parties turn to the Internet and to a broad base of smaller contributions as the best way to finance a campaign, we will ameliorate the influence of money on politics. That is not because there will be less money in the system, but because it will be raised and delivered to the candidates in ways less corrosive of the democratic process. There is still much more that we could do: for example, we could make candidates less dependent on fundraising by creating a bank of media time distributed to candidates for public office. In any case, the campaign finance system in this country is badly broken; we need to think how to make it work for democracy rather than against it.

JB

Howard Dean is getting lambasted for remarks he's made about gun control and the Confederate flag recently. On Saturday he said that he wanted to be "the candidate for guys with Confederate flags in their pickup trucks."

But to me, at least, an earlier Dean remark is much more important. Speaking in South Carolina on February 13, Dean remarked: "There's no reason why white guys who have a Confederate flag in the back of their pickup truck shouldn't be walking side-by-side with blacks, because they don't have health insurance, either."

For some time now, the Republican Party has successfully taken a two-track approach to cultural and economic politics, pushing populist appeals on social issues while promoting economic policies that benefit largely the well-to-do, defending the latter on the grounds that a rising tide will lift all boats. Democrats, on the other hand, have long stood for economic policies that, I believe, are more in the interests of poor and working class Americans. Republican cultural appeals on issues like abortion, the flag, gun control, feminism, homosexuality and affirmative action have sought to prevent a multiracial coalition of working class Americans from forming; they have repeatedly pulled white working class voters, and particularly white working class men, away from the Democrats. Simultaneously, the Republican party has tried to cast the Democrats as the party of elitist snobs out of touch with mainstream values. I have always believed that such accusations are deeply unfair: it is clear from the last Presidential election that the vast majority of the people who vote Democrat are middle class and working class people. Nevertheless, the accusation of cultural elitism has been extremely valuable for the Republican Party's electoral chances. Perhaps in the long run the Democrats may win the fight over values, but in the short run they will lose a lot of elections.

Dean's statement about forming a coalition of whites and blacks who have similar interests in health care, reflects, I think, a perfectly sensible approach. The Democrats should be a more populist party, focusing on *both* the interests and the values of working class and middle class Americans. That means that liberal Democrats will have to compromise on cultural issues that part of the party's liberal base thinks important.

Many people don't trust the Democrats because they believe, rightly or wrongly, that the Democrats want to take away their guns. I remember a billboard in Texas during the presidential election in 1988, with a quote from Michael Dukakis saying that he just didn't believe that people should own guns. It is that kind of message that turns large numbers of Americans off the Democratic Party.

The reason is that the gun control question is about much more than the specific issue of gun regulation. It is a cultural indicator or cultural signal-- one of a small number of highly resonant cultural symbols that people use to ascertain a person's larger set of values and commitments. The Republican Party has understood and manipulated this feature of human psychology particularly well since 1968, deliberately choosing appeals on a key set of issues that allow many Americans to feel that the Republican party stands for their values, even if Republican candidates by and large are not working in their economic interests.

Speaking as a liberal Democrat, I would much rather compromise on what is in practice a largely symbolic issue like gun control than on economic issues that hit ordinary people where they live. (It is largely symbolic because the only laws that can be passed at the national level will have only minor effects in combating the misuse of guns while distinguishing these cases from the appropriate use of guns by law abiding citizens.).

I would rather that the Democratic party be more populist than it currently is. Let me be clear: I don't particularly like Dean's way of exemplifying the working class Americans he wants to appeal to: the Confederate Flag, after all, reemerged into popular consciousness as a symbol of massive resistance to Brown in the 1950's and 1960's. But I do think that it is important to show people who have a gun rack on their pickup trucks-- to change the metaphor-- that the Democratic Party is working in their interests. In my view, the elitists that people should be worried about are not cultural elitists but economic elitists, people who want to grab everything and leave ordinary Americans to fend for themselves. The Democratic Party will do much better if it compromises on a few cultural issues like gun control while promoting the economic issues that more Americans can identify with.

It is already quite clear to me that the Republicans would like to fight the 2004 election on cultural issues like patriotism, guns, and the flag, and they will try to paint the Democratic nominee, whoever he or she may be, as elitist and dangerously out of touch with mainstream American values. Dean's views on gun control will help counteract that strategy. One must combat a serious misunderstanding here: It is not a simple either-or choice between maintaining egalitarian and progressive values on the one hand, or surrendering to the conservative Republican cultural agenda on the other. The Republican cultural agenda is not a natural collection of positions that logically go together; it was carefully selected and honed to create a winning political coalition and split the Democratic coalition apart. Thus, the strategy for the Democrats is to find a different combination of positions, some liberal, some moderate, that appeal to the values as well as the economic interests of more Americans. Dean's more moderate approach on gun control may not by the only way to do that, but it is certainly one way.

JB

The blogosphere has been abuzz over the cease and desist letter issued to Atrios by Jeffrey J. Upton, an attorney purporting to represent Donald Luskin, an NRO Online Contributor:

You recently linked to Mr. Luskin's October 7, 2003, posting on his website entitled "Face To Face With Evil," in which he chronicles his attendance at a lecture and book signing presented by Paul Krugman. You chose the unfortunate caption "Diary of a Stalker" for your link. More importantly, your readers, in responding to your invitation to comment, have posted numerous libelous statements regarding Mr. Luskin. Picking up on the theme you introduced, several have made false assertions that Mr. Luskin has committed the crime of stalking. Such a statement constitutes libel per se, an actionable tort subjecting both the author and the publisher to liability for both actual and punitive damages. As a result of your control over and participation in the comment section of your site, as well as the fact that Mr. Luskin has personally brought these libelous comments to your attention already, you face personal liability for their distribution. Determining your identity for the purpose of making service of process can be easily accomplished through a subpoena to Blogspot.com.

This is a nuisance suit. Unfortunately, Atrios will have to hire an attorney, but he should win easily. Despite Mr. Upton's suggestions to the contrary, Atrios is not liable for the postings in the comments section. And he has no duty to take them down. This is a consequence of section 230 of the 1996 Telecom Act. See my previous discussion on when bloggers can be sued for libel:

What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 states that " no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

This does not mean that bloggers are immune from libels they themselves write. It means
that they are immune from (for example) libels published in their comments section (if they have one) because these comments are written by other people and the blogger is merely providing a space for them to be published. Congress wanted to treat operators of chatrooms and other interactive computer services differently from letters to the editor columns in a local newspaper.

So if bloggers defame somebody, they can still be sued for what they say, just not for what
someone else who publishes on the blogger's site says.

Of course, Luskin could sue Atrios for Atrios's own comments, for example, that Atrios suggested that Luskin was a stalker. But read in context, Atrios' post is (a) not an allegation of actual criminal behavior, and (b) is a protected statement of satire and opinion. He is making fun of Luskin's own comparison of himself as someone who stalks Paul Krugman. Luskin's argument that Atrios has libeled him shouldn't survive a motion for summary judgment. Of course, the real problem is that getting to that point will cost Atrios money to defend himself.

Luskin should be ashamed of himself for having any part in sending this letter. It's a disservice to the blogging community, and inconsistent with respect for freedom of expression.

What's most upsetting is that he is employing a frivolous lawsuit in order to punish someone for exercising their First Amendment rights and that he is piggybacking an abusive subpoena to expose Atrios' identity. So he's not only engaged in frivolous litigation (aren't conservatives against frivolous lawsuits?), but also an abuse of the discovery process (aren't conservatives opposed to the dirty tricks of trial lawyers?). I guess Luskin is only opposed to frivolous lawsuits by other people, and dirty tricks by lawyers who are not representing him.

That's a protected statement of opinion too, by the way.

JB

The Washington Post reports that Iraq did not even have an active program to construct nuclear weapons:

According to records made available to The Washington Post and interviews with arms investigators from the United States, Britain and Australia, it did not require a comprehensive survey to find the central assertions of the Bush administration's prewar nuclear case to be insubstantial or untrue. Although Hussein did not relinquish his nuclear ambitions or technical records, investigators said, it is now clear he had no active program to build a weapon, produce its key materials or obtain the technology he needed for either.

JB

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

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

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

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

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

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

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

JB

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

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

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

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

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

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

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

JB

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

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

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

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

JB

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

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

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

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

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

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

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

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

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

Nah, couldn't happen.

JB

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

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

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

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

Two questions:

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

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

The answers to both these questions concern institutional incentives.

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

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

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

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

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

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

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

JB

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

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

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

JB

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

In a recent statement, Novak defended the Bush Administration

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

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

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

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

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

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

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

JB

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

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

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

JB

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

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

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

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

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

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

JB

The Guardian reports:

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

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

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

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

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

JB

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

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

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

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

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

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

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

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

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

JB

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

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

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

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

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

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

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

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

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

JB

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

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

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

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

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

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

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

Long live the rule of law!

JB

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

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

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

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

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

JB

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

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

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

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

JB

As Jay Bookman explains:

Last February, with invasion just weeks away, sources in the Bush administration told Newsweek that they were expecting a postwar occupation of Iraq of 30 to 90 days.

"Every day you get past three months, you've got to expect peacekeepers to have a bull's-eye on their head," the sources explained.

Even at the time, a spokesman for Defense Undersecretary Douglas Feith suggested that three months might be too optimistic. It was probably wiser to think five or six months on the outside, Lt. Col. Michael Humm said.

At the time, Pentagon officials also claimed that Iraq's oil wealth would make it unnecessary to ask other countries for financial help with reconstruction. "I don't see the need for panhandling like that," the Pentagon source said.

A month later, in a speech to the Veterans of Foreign Wars, Deputy Defense Secretary Paul Wolfowitz issued his own warning of how tough the occupation would be. Ruling Iraq, he said, would be like ruling liberated France after World War II.

He and his colleagues ought to be fired. Not only did they believe those fantasies, they also made their ideological pipe dreams the basis of our postwar planning, and today we're reaping the consequences.

And, to make you feel even more nostalglic, USA Today reports that the monthly expense of the Iraq and Afghanistan wars (*not* including the costs of reconstruction) is now comparable to the monthly expenses of the Vietnam War, adjusted for inflation.

Well, we should have the money for this. It's not as if we're running humongous deficits due to ill-advised tax cuts largely benefitting the rich.

JB

The noted copyright theorist Siva Vaidhyanathan asks whether if the Massachusetts courts hold that the state may not refuse marriage to same sex couples, this will have ramifications around the country under the federal constitution. The answer is that the decision would probably be rendered under the Massachusetts constitution, and therefore would not directly affect the construction of the Federal Constitution. If for some reason the Federal Constitution were invoked as a justification, the court will probably also find independent grounds under the Massachusetts Constitution to prevent an appeal to the U.S. Supreme Court.

Siva's other question has to do with the effect of the Defense of Marriage Act (DOMA) and Article IV of the U.S. Constitution. The Defense of Marriage Act is designed to alleviate any responsibility that other states might have for recognizing same-sex marriage if one state legalizes it.

Siva wants to know if the Privileges and Immunities Clause of Article IV, section 2 would require states to recognize same sex marriages despite DOMA.

The Privileges and Immunities Clause of Article IV, section 2 does not apply because a state that does not recognize same-sex marriage is not treating outsiders from other states differently than it treats its own citizens, who cannot engage in same-sex marriages.

It is more likely that if DOMA is unconstitutional it is because of the Full Faith and Credit Clause of Article IV section 1, which provides that "Full Faith and Credit shall be given in each State to the public Acts, and Records, and judicial Proceedings of every other State." Although the Supreme Court has held that divorces are "judgments" that must be recognized in all states, unless the state of divorce lacked subject matter jurisdiction, Williams v. North Carolina, 317 U.S. 287 (1942), it has never held the same for marriages. However, marriages are arguably "acts" or "records" for Full Faith and Credit Purposes. If so, then one important question is whether the Clause means what it says or whether states may refuse to give recognition to marriages that violate their public policy. This question is unsettled.

Assuming that marriages are "acts" and that there is no public policy exception, then DOMA arguably allows States to refuse to give effect to rights protected by Article IV of the Constitution, and is therefore unconstitutional. Nevertheless, the next sentence of Article IV, section 1 states that "And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." Supporters of DOMA could argue that Congress is merely refusing to give effect to same-sex marriages or other forms of domestic partnership. The problem with this argument is that if Congress can by legislation let states refuse to give same-sex marriages any effect at all, (as to opposed to specifying the nature of the effect) it has undermined the purpose of the Full Faith and Credit Clause. This question is also unsettled. Congress has invoked its powers under the Clause to require states to give effect to certain judgments (e.g., child support judgments) but the question is whether it may permit states to refuse to give any effect at all to out of state judgments.

JB

Secretary of Defense Donald Rumsfeld has recently grumbled to reporters that criticism of the Administration's war policies can encourage terrorists and make America's war on terrorism more difficult, Newsday reports.

Many, I assume, will accuse Rumsfeld of trying to stifle dissent. My objection is somewhat different. I think Rumsfeld does not properly recognize the reason why dissent about the war can be important to the success of American foreign policy, even if it does complicate the Administration's efforts.

Rumsfeld and other members of the Administration have shown a decided penchant for disdaining the views of people who disagree with them. They were supremely confident about how easy it would be to topple Saddam and install a friendly democratic state in Iraq. We would be greeted as liberators, we were told, and our victory would smooth the Israeli-Palestinian peace process. How naive these assertions now sound in light of recent events.

The Administration also refused to disclose how much its Iraq adventure would cost, and how long American troops would have to stay. Rumsfeld was determined to show that a war of preemption could be performed on the cheap, with minimal forces, and without dragging the U.S. into a quagmire. He and others in the Administration wanted to show that preemption was a viable policy for the future, and that we could act without very much international cooperation.

The Administration's critics protested repeatedly that the Administration was underestimating the dangers of a preemptive attack on Iraq, that even if victory would be swift, stabilizing the country would take many years and great expense, and that an unacceptable number of American lives would be lost in the process. Critics also argued that the Administration's overconfidence, its refusal to level with the American people about how much the war woud cost and how long it would take, and its thumbing its nose at nations that disagreed with its policies would come back to haunt it someday.

Almost all of these warnings of critics have come to pass. The President has given up the triumphalist tone of his May 1st strut around the deck of the U.S.S. Abraham Lincoln, in which he asserted "Mission Accomplished." He now has somberly informed the American public that he will need 87 billion dollars to stabilize the country, an astonishing sum if you consider that it is more than the cost of the 1991 Persian Gulf War. He has grudgingly come to agree that international assistance will be necessary, although he cannot yet bring himself to request help. Instead he simply notes that other countries "should" help the United States.

This brings me to the value of dissent. If the President and his Administration had listened to the dissenters in this country and throughout the world, and taken their arguments seriously, he might well have chosen a wiser path, even if he did not follow their advice in all respects. He might have prepared more thoroughly for the occupation. He might have spent more time working out the details of how to search for weapons of mass destruction in the chaos of war. He might have waited until October and picked up the support of more countries, or even gotten the U.N.'s blessing.

The President and his advisors did not listen to dissenters before, dismissing them as pessimists and mere impediments to the realization of his grand plan. They proved to be much more able and prescient than he was willing to believe. He has now grudgingly come to see the value in much of what they said.

Given this lesson, perhaps the President might try listening more closely to those who disagree with him and consider their objections and concerns more seriously. Dissent provides a crucial counterweight to wishful thinking. If the Administration simply dismisses the dissenter today, as it did in the past, it risks making the same mistakes it made in the past two years-- the mistakes of hubris, the mistakes of overconfidence, the mistakes of a naive belief that the truth and good and righteousness lie only on your side, and that all those who disagree with you are either fools or knaves.

The Administration has made those mistakes once before, and now is beginning to see the consequences of its arrogance and its blindness. Isn't it time for it to gain a bit of humility, and begin recognizing the practical value of dissent?

UPDATE In my original posting, I posted to a Washington Post story at the following location that had the same quotes as the Newsday story. (A version of that story from Reuters, by Tabassum Zakaria, is here.) However, a day later, a different story by Dana Milbank, which omitted all of Rumsfeld's quotes about dissent, had replaced the original story. Does anyone know why this would be the case?

JB

Although the number of soldiers killed in Iraq has been widely reported, the number of wounded is far larger. The Pentagon, however, has treated the exact number of soldiers wounded as classifed, as Bill Berkowitz reports. The Florida Sun Sentinel reports that around 10 soliders a day are wounded in action, although the news of these injuries is not routinely covered by the media:

The number of those wounded in action, which totals 1,124 since the war began in March, has grown so large, and attacks have become so commonplace, that U.S. Central Command usually issues news releases listing injuries only when the attacks kill one or more troops. The result is that many injuries go unreported.

The rising number and quickening pace of soldiers being wounded on the battlefield have been overshadowed by the number of troops killed since President Bush declared an end to major combat operations May 1. But alongside those Americans killed in action, an even greater toll of battlefield wounded continues unabated, with an increasing number being injured through small-arms fire, rocket-propelled grenades, remote-controlled mines and what the Pentagon refers to as "improvised explosive devices."

Indeed, the number of troops wounded in action in Iraq is now more than twice that of the Persian Gulf War in 1991. The total increased more than 35 percent in August -- with an average of almost 10 troops a day injured last month.

Fifty-five Americans were wounded in action last week alone, pushing the number of troops wounded in action since May 1 beyond the number wounded during peak fighting. From March 19 to April 30, 550 U.S. troops were wounded in action in Iraq. Since May 1, the number totals 574. The number of troops killed in Iraq since the beginning of May already has surpassed the total killed during the height of the war.

Pentagon officials point to advances in military medicine as one of the reasons behind the large number of wounded soldiers; many lives are being saved on the battlefield that in past conflicts would have been lost. But the rising number of casualties also reflects the resistance that U.S. forces continue to meet nearly five months after Hussein was ousted from power.

With no fanfare and almost no public notice, giant C-17 transport jets arrive virtually every night at Andrews Air Force Base outside Washington, on medical evacuation missions. Since the war began, more than 6,000 service members have been flown back to the United States. The number includes the 1,124 wounded in action, 301 who received non-hostile injuries in vehicle accidents and other mishaps, and thousands who became physically or mentally ill.

At Walter Reed Army Medical Center in Washington, a half-hour drive from Andrews, Maj. Gen. Kevin C. Kiley, the hospital's commanding general, said there were only two days in July and four in August that the hospital did not admit soldiers injured in Iraq.

JB

According to a classified report, obtained by the Washington Times.

A secret report for the Joint Chiefs of Staff lays the blame for setbacks in Iraq on a flawed and rushed war-planning process that "limited the focus" for preparing for post-Saddam Hussein operations.

The report, prepared last month, said the search for weapons of mass destruction was planned so late in the game that it was impossible for U.S. Central Command to carry out the mission effectively. . . .

The report also shows that President Bush approved the overall war strategy for Iraq in August last year. That was eight months before the first bomb was dropped and six months before he asked the U.N. Security Council for a war mandate that he never received.

Senior U.S. officials, including Deputy Defense Secretary Paul Wolfowitz and Deputy Secretary of State Richard Armitage, conceded in recent weeks that the Bush administration failed to predict the guerrilla war against American troops in Iraq. Saddam loyalists and foreign fighters have killed more than 60 soldiers since May 1, mostly with roadside bombs and rocket-propelled grenades.

The Congressional Budget Office projected yesterday that the demands of troop rotations globally will leave the Pentagon without any fresh Army units for Iraq in 2004 unless tours are extended beyond one year.

The Joint Chiefs report reveals deficiencies in the planning process. It says planners were not given enough time to put together the best blueprint for what is called Phase IV — the ongoing reconstruction of Iraq.

JB

In his Sunday speech to the nation, President Bush once again artfully attempted to suggest a connection between deposing Saddam Hussein and the war on terror that began with the September 11th attacks:

And for America, there will be no going back to the era before September the 11th, 2001, to false comfort in a dangerous world. We have learned that terrorist attacks are not caused by the use of strength. They are invited by the perception of weakness. And the surest way to avoid attacks on our own people is to engage the enemy where he lives and plans. We are fighting that enemy in Iraq and Afghanistan today so that we do not meet him again on our own streets, in our own cities.

This is cleverly done, but in fact, there is still no evidence that Iraq was behind the 9/11 attacks. Nor does there seem to be any evidence that the Administration's policy in Iraq has made Americans safer at home, or successfully deterred future attacks on American soil. Indeed, the evidence points to the opposite conclusion. By attacking Iraq, we diverted resources from Afghanistan, which has fallen into increasing political chaos, and from needed expenditures on homeland security. As a result of our attack, terrorist groups and Islamic fundamentalists who have no love for the U.S. have been pouring into Iraq to assist with the guerilla war now being conducted against our troops. That war, and the cost of rebuilding the country, have sapped American resources even more. And, as I have repeatedly suggested in this blog, there is also the very unsettling possibility that if weapons of mass destruction, or materials used to construct them, did exist before the war (a prospect that seems increasingly less likely, see the post below), were spirited out of the country as a result of the chaos produced by our attack on Iraq, and are now in the hands of terrorist groups.

Our show of strength, as the President puts it, has had exactly the opposite effect that the President claims it would have. Instead it seems that President Bush is the one offering the nation "false comfort" when he suggests that his Iraq policy and his refusal to fund homeland security at proper levels has made Americans safer.

JB

The Iraq Survey Report, which took over the task of finding weapons of mass destruction from the U.S. Army, is due to issue an interim report in the next week. The Survey headed by David Kay, has been especially tight lipped about its findings. The New Zealand News reports, however, that recent statements by British and U.S. officials suggest that they believe that the report will state that no weapons have been found, and that, at best, the Iraqi weapons programs were in a state of what is has been called "suspended animation;" i.e., preserving a coterie of scientists who would make it possible for Iraq to develop these weapons some day.

If so, this cannot be heartwarming news to either the Administration or to Tony Blair's government, which asserted repeatedly that Saddam actually possessed weapons of mass destruction and offered this as grounds for war. Indeed, in his Sunday night speech to the nation, President Bush said nothing about the hunt for Saddam or Osama bin Laden, nor the search for the missing weapons of mass destruction.