The Wayback Machine - http://web.archive.org/web/20040326214645/http://lawandpolitics.blogspot.com:80/
blog*spot

Thursday, March 25, 2004

GONE FISHIN' 

Not really, but I am going out of town tonight for a wedding in Alabamie, so I doubt that I'll be posting anything until Sunday night or Monday morning (though it's possible I might post something tomorrow). Before I go, I want to leave you with a couple of thoughts:

Kerry has jumped on Bush for making jokes about the absence of WMDs at the Correspondents' Dinner. While I think that a joke is a joke, it's obvious that Bush did not read my post on "plausible demagoguery." I mean, I can't think of something that can be more mindlessly demagogued than this joke. I'm guessing they didn't run the joke by Karl Rove, the master of plausible demagoguery. What's that John Lennon line - "Instant Karma's gonna get you?"

[Update: Ok - Have a good weekend. I'll be back on Monday. In the meantime, you should definitely check out a couple of posts. First, Billmon gets it exactly right regarding the US veto of the UN Resolution condemning the Yassin assassination. Second, Gadflyer has posted an NPR interview with Clarke in which he offers three very specific reasons why the war in Iraq undermined the war on terror. Here are a couple of the money quotes:

There are more police in Manhattan – not the city of New York, but just Manhattan – there are more police in Manhattan than the United States put troops into Afghanistan. And yet we were supposed to secure and stabilize the country so that never again would it be a base for terrorism. We were supposed to be draining the swamp.

Well, we haven’t. And one of the reasons we haven’t is that we withheld forces that should have been going into Afghanistan. We withheld them for the war in Iraq.
. . .

The third way is that, al Qaeda had been saying, bin Laden had been saying, that the United States is the “new crusader,” the new westerner come to occupy an Arab country, an oil-rich Arab country. And we did exactly that. We did exactly what bin Laden said we would do: We invaded and occupied an oil-rich Arab country that had not been threatening us. And the sights on Arab television of American troops fighting in Iraq, and now occupying Iraq, have infuriated Arab opinion.

The Pew Charitable Trust does opinion polling, very reliable opinion polling in countries such as Morocco and Jordan and Turkey, Indonesia, Pakistan. Many of those countries – the government, at least – is our friend. We consider them allies, and we consider them moderates. And yet the opinion polls now show that up to 90 percent of people in those countries either hate the United States or have a very negative opinion of the United States. Osama bin Laden is a very popular figure in some of those countries. The most-often given name to new children in Pakistan after 9/11 was Osama.



THE PROS AND CONS OF CLARKE 

After I read the descriptions of Clarke’s testimony by both Glenn Reynolds and Fred Kaplan, I found it hard to believe that the two people could have watched the same testimony and drawn such radically different conclusions. It’s actually a perfect example of the much larger problem Americans face – the lack of reliable objective news sources. But even this statement would anger some liberals who argue that it is conceding too much to say this is merely a “liberals-said/conservatives-said” issue. I’m not going to get into all of that today. But I do want to try to rise above the fray so to speak and offer some perspective on the Clarke book and testimony. Though I haven’t finished the book, Clarke is essentially raising two charges against the Bush administration officials: (1) they ignored the threat of terrorism pre-9/11 (as a commentator noted - it's more accurate to say "they didn't do enough to fight terrorism pre-9/11); and (2) their invasion of Iraq undermined the war on terror post-9/11. Let’s look at each.

Though I’m certainly finding little merit in anything Condo-liar Rice says (who is appearing in every possible public forum except the 9/11 commission), I think the first claim has been overstated. I think it’s unfair to look at Bush’s (and Clinton’s and Reagan’s) pre-9/11 actions through the lens of 9/11. Though there was certainly suggestive intelligence that seems coherent in hindsight, let’s not forget how unthinkable 9/11 was. I mean, it “changed everything,” right? Even if the Bush team was slow to realize the threat, I think the slowness was more reasonable when you view it without the 9/11 hindsight (though that’s the sort of nuanced explanation that’s almost impossible in the modern TV age – Kerry would have “plausible demagoguery”). It's more important to understand why we failed than it is to assign blame in a partisan way.

That said, Clarke’s second critique – that the war in Iraq undermined the war on terror – is right on. This critique is my most basic and deeply-felt disagreement with the Bush administration. On the one hand, Clarke’s account corroborates other evidence that Bush and the neocon elements seized upon 9/11 as a way to justify (for good or bad) the war in Iraq that they had long been wanting to fight. Some examples of the corroborating evidence can be found in the writings of the neocon shadow cabinet in the 90s, Paul O’Neill’s book, some of Tony Blair’s officials, and even Bob Woodward’s book in which he showed that if certain people had their way, we would have invaded Iraq before Afghanistan. More will come as more records, emails, and memos become publicly available.

The other aspect of Clarke’s critique that is important is the way it undermines Bush’s argument that his greatest strength has been the war on terror. To be sure, I agree with many of Bush’s post-9/11 actions, especially the invasion of Afghanistan. But the invasion of Iraq hurt – it did not help – the war on terror. Clarke provides some support for what I said earlier in response to Andrew Sullivan’s obsessive “we’re-at-war” arguments. We can agree that we’re at war, but disagree about Bush’s tactics in fighting that war. I think that Bush has been given a free ride on his statements that he has fought terror well. Clarke’s account will at least allow everyone to debate that point, rather than just take it as a given. I for one have strongly resented how Iraq and the war on terrorism have been linked in the administration’s statements to the public. It’s very hard for many conservatives to accept the fact that people on the left can agree with the goals of the war on terror, and disagree about whether invading Iraq was an appropriate way to fight that war.

[Update: In defense of my slap at Rice, I would point readers to today's CAP Progress Report complete with documentary verification.] [Updating the Update: Apparently, CAP hasn't posted the 3/25 Progress Report yet (I get it via email). My post links to the 3/24 report. But if you're interested, keep checking back and read the 3/25 Report - that has the reaction to the Clarke testimony and Rice's comments last night.]

Wednesday, March 24, 2004

ADDRESSING THE ROOT CAUSES OF TERROR - Insights from Game Theory 

As many have pointed out lately, I have not offered many kind words about the President’s war on terrorism. But at some point, progressives have to stop griping and offer their own positive vision about what to do. As I stated before, the war on terrorism will never succeed unless the root causes of terrorism are dealt with. Targeted military force must and should be one aspect of any larger anti-terrorism strategy. And though I have criticized Bush for not addressing the root causes, I have yet to offer any alternative. Lacking expertise, I can’t rattle off specific policy proposals, but I can offer a roadmap of sorts of what I think is necessary. Islamic terrorism will never end, regardless of how many terrorists are killed, until two things happen: (1) something must be done about the deteriorating Israel-Palestine situation (something other than “Let Sharon do whatever he wants”); and (2) young Arabs must believe they have some stake in the future. Today, I want to focus specifically on the second point. I would also note that a lot of what I’m going to say applies equally well to solving domestic problems such as crime, drug use, and even teen pregnancy in poor areas. To understand why, we need to introduce some basic principles of game theory.

The question of why people behave morally has been debated as long as people have been debating. Some think that there is a religious dimension to our conscience and that drives us to act morally. Others think that behaving morally is a product of evolution (e.g., groups of humans that adopted certain moral codes tended to reproduce more). Another explanation that has been offered by game theorists traces morality to so-called “iteration,” or repeat-game scenarios. For example, let’s say your next door neighbor needs help packing groceries in. Obviously, you don’t want to help her and you get no reward for doing it. But you still do it - why? Game theorists would say that even though you don’t get any immediate benefit or reward, helping your neighbor today makes it more likely that you will be helped by her in the future. That’s because you have repeated - or “iterated” - interactions with her. You see her every day, and so you’re better off in the long run by helping her today. Acting morally today (by helping her) increases the chances of future rewards. By contrast, if you are visiting a friend in some other neighborhood, you’re much less likely to help the neighbors because you know you’ll never see them again. In other words, there is no future reward in it for you.

This last point is critical and goes a long in explaining why the Cold War never escalated into an all-out nuclear Holocaust. The USA and the USSR cooperated (by not destroying each other) because they each had a stake in the future. When people have a stake in the future - when they have something to look forward to - they are much less likely to act in ways that jeopardize that future. In other words, they are much less likely to act immorally and risk the punishment from society. That's why invading North Korea would be so dangerous. The only thing keeping North Korea's bombs at bay is its basic instinct for self-preservation. If, however, the leadership thought it was about to be invaded (thus removing North Korea's stake in the future), the missiles might fly.

If you understand this point, you can begin to understand why so much arguably “immoral” behavior occurs disproportionately in poor areas. In America, for example, poor areas experience much higher crime rates, drug abuse rates, and teen pregnancy rates. Unless you think poor areas systematically produce bad people, you could reasonably conclude that something about these areas’ poverty leads to the antisocial behavior. And you would be right. The reason poor people act “worse” than richer people (statistically speaking) is that poor people have little (or less) stake in the future. Prep school kids who have a bright future ahead of them are (statistically) much less likely to engage in behavior that threatens that future because they have a reason for hope -- that reason being the promise of future rewards. These kids have a stake in the future. Many poor people, though, have much less hope for a promising future. Accordingly, there is less to be lost by engaging in antisocial or immoral behavior because they don't see any future rewards for good behavior. Before poor people will turn away from crime and drug use, they must have something to look forward to - some reason or incentive for acting morally.

I think you can see where I’m going with this with respect to terrorism. If my theory is correct, we would expect terrorism to have the most appeal in areas where the population is the most hopeless. And that’s exactly what seems to be happening. Terrorism is thriving in the Middle East Muslim nations - nations that, not by coincidence, are some of the poorest, least educated nations in the world. It also thrives in the poor Muslim ghettos in Europe and northern Africa. Although it’s convenient for rich nations to view all terrorist-sympathizers as pure evil, the truth is more complex. You’ve got to imagine what it’s like to be an unemployed, 20-year old man in the slums of Gaza or the hills of western Afghanistan. You have no prospect for future success. You look to the future and you see only poverty and misery. In short, you see nothing that makes you think the future offers any hope. Then, imagine that you suddenly hear people put the blame on Israel and the USA, which causes you to channel your economic frustrations (mixed in with racial and religious animus) towards those scapegoat nations. These young men are more willing to die because there is so little to look forward to. If they had the chance to be successful businessmen, they would be a lot more hesitant to go blow themselves up.

That’s the challenge for the West. How do we go about providing these people with a stake in the future? Unfortunately, my advice ends here. I don’t know. But again, I think the roots of terrorism are largely economic, and not religious (though both are important), so the answer must include economic reform. For example, the gross income disparities in countries like Saudi Arabia must be addressed. Ownership must be expanded. Education must be expanded. To be honest, I wonder if the appropriate response to 9/11 wouldn’t have been to quadruple the student visas to American universities for young Muslims. Expanding educational opportunities might help create a progressive middle class in these countries - and the middle class does have a stake in the future.

One obvious answer is exactly what Bush is trying to do – impose democracy on the Middle East. That may be the only way (though I'm not sure it can be imposed). My problem with Bush is not so much his democracy-building. It’s the way he went about democracy-building. Iraq is not even close to developing the preconditions for democracy (markets; strong middle class; etc.). Iran, however, is. I strongly believe that the first successful switch to democracy will be in Iran. That’s where I wish Bush had concentrated his efforts. Through a mix of carrots and sticks, perhaps we could have helped the young reform movement. But again, our unilateral charge into Baghdad may have set the Iranian reformers back. Perhaps it didn’t and Bush will actually have the last laugh. But I doubt it. I fear we’re heading into a drawn-out civil war that will impede democracy unless we’re willing to leave massive amounts of troops there for a generation.

That's my two bits. It's a little vague I know. But I think it's a start.


BUSH POLL NUMBERS 

Clarke's allegations may already be affecting Bush's numbers, according to this Rasmussen Report:

March 22 - Bush 48; Kerry 45
March 24 - Bush 44; Kerry 47


Obviously, both are within the margin of error, so take these numbers for what they're worth.

FIRST THOUGHTS ON THE CLARKE BOOK 

I’m roughly one-third into the Clarke book. So far, he’s given a good account of what it was like on the ground, inside the White House during the chaos of the morning of 9/11. And I came away with a greater admiration for how quickly our government got things under control. Clarke also provides an excellent summary of the history of American actions in the Middle East and the roots of bin Laden and the 9/11 attacks. He makes a strong case that America’s weak response to terrorism played some role in encouraging future attacks like 9/11. But interestingly, the weak will was not merely Clinton’s, but extended back to Reagan and Bush as well. For example, Reagan’s cowardly retreat from Beirut after the Marines were killed sent all the wrong signals to aspiring terrorists.

But what struck me most of all is how misguided certain aspects of yesterday’s massive, coordinated media attack on Clarke were. Sometimes I think that political junkies like myself tend to be somewhat awe-struck by the ruthless efficiency of the Bush communications team and give it more credit than it deserves. I’ll certainly concede that the Bushies have the most disciplined and coordinated media communications tactics in American history. And it was a little scary how quickly all the top officials came together and blitzkrieged the airwaves. But efficiency only gets you half-way home. To win in the media wars, your message must also be good. I mean, the Ku Klux Klan could have an efficient communications operation, but that efficiency serves nothing if the underlying message is wrong or even dumb. In this case, I think some of the Bush team’s strategy was just dumb, and certainly misleading.

For example, one part of the strategy was to associate Clarke with both Clinton and Kerry, which implies that he is anti-Republican and thus was making stuff up or presenting facts in a partisan light. I think that the Bushies would have been better off waiting a day and coming up with a better message, because this one is so bad that it’s almost beneath them. I’m only 75 pages in and here’s what I’ve learned so far. First, Clarke was in no way “out of the loop” or some liberal Clinton holdover. If Clarke is telling the truth, he chaired the first “Principals” meeting on the morning of 9/11 in the White House Situation Room after Condi Rice anointed him “the crisis manager.” Obviously, the meeting was very important and was essential in coordinating the government’s immediate response to the attacks that morning. Second, Clarke served throughout the Reagan presidency. During this time, he worked with Richard Perle and even agreed with him about the ineptitude of the hippies at the CIA. Clarke also pushed for a stronger alliance with Israel. Third, after Iraq invaded Kuwait, Clarke accompanied Cheney, Wolfowitz, Schwarzkopf and others to Saudi Arabia to make the case for allowing U.S. troops to be stationed there. Billmon has a wealth of other information, all of which demostrates that Clarke was very much a terrorist hawk and even adopted positions that would become dear to the neocons. Drezner agrees.

I’m not trying to be a blind partisan for Clarke. I think one can raise valid criticisms of his objectivity. For example, perhaps Clarke hated the second Iraq War so much that it clouded his memory. My point, however, is that it is emphatically not a valid criticism to dismiss Clarke’s allegations as the angry spewings of a partisan who actually had little relevance. This guy was trusted enough to go to Saudi Arabia and make the case for war in a Republican adminstration. He was also trusted enough to undertake massive responsibilities on 9/11 and in its immediate aftermath - again, in a Republican administration. He had been in government for 30 years. His opinions have weight and everyone knows it - otherwise the response would not have been so massive.

So, I can offer only two explanations for the Bush team’s “he’s a Democrat” line of attack. One, it was merely a dumb decision that will haunt them if the press decides to abandon their lazy “he said-she said” template for writing newspaper articles. The second explanation (the two are not mutually exclusive) was something that Kevin Drum observed. He explained that the massive response indicated that the White House was really worried about Clarke. So, the goal of the often contradictory attacks was to raise a challenge to his credibility (by invoking partisanship) and hope that America will view this as just another “conservatives said-liberals said” issue and forget about it. I’ll hopefully have more to say on this latter point later today.

[Update: Fred Kaplan (as usual) has a great piece in Slate providing more detail about Clarke's background and credibility.]

Tuesday, March 23, 2004

ZELL MILLER - Sane No More 

I'll be honest -- I'm more confused than I am angry about Zell Miller's leap from the middle of the Democratic Party to the extreme right-wing of the Republican Party. There's a new Hill article (via Southern Appeal) that I read today in which Miller blasts Kerry and promises to help Bush "any way [he] can." This from a man who praised Kerry in 2001 as "one of this nation’s authentic heroes, one of this party’s best-known and greatest leaders — and a good friend.”

There are several possible explanations. First, Miller could be sincerely disgusted about some of the changes in the Democratic Party. I just don't buy this entirely. If the Democratic Party has changed since the days of JFK, these changes were apparent long before Bush took office, and were certainly present back in 1992 when Miller was a strong supporter of Clinton and in 1994 when he ran for governor without bashing Democrats. Miller rails against the interest groups that now supposedly dominate the Democratic Party - especially labor. Tell you what Zell, if you didn't like labor (the same ones who helped elect you in 1990, along with blacks), then you should have gotten off the train in 1932. I agree that the Democrats have changed since 1960 (especially on social issues), but, if anything, the Democratic Party has been drifting rightward since 1992, which presumably would make the Party more, not less, attractive to Miller. The final reason why I think something more than substantive disagreement is influencing him is that Miller is now 100% Republican. The GOP can do no wrong, and the Dems can do no right. I would expect that someone who had spent his entire life fighting Republicans on certain economic issues - such as the ones who opposed his universal college proposals in Georgia - would at least acknowledge that Republicans were wrong sometimes. The Republicans haven't changed all that much, so Miller's unwavering, unconditional support calls many of his prior positions into question.

Second, Miller is getting old, and he could be losing it. Obviously I don't know, but some of his Senate speeches are sounding more and more like someone who is losing his mind - especially in light of his prior positions (such as accepting labor's help in 1990). Check out these excerpts from an article describing his Senate speech last month:

In his fiery floor speech, Miller quoted the Old Testament prophet Amos' caution of a "famine in the land" and argued that is exactly what the country is facing now.

"Yes, there's a deficit to be concerned about -- a deficit of decency," Miller said. "So, as the sand empties through my hourglass at warp speed -- and with my time running out in this Senate and on this earth, I feel compelled to speak out. For I truly believe that at times like this, silence is not golden. It is yellow."

Miller spent part of his speech blasting the now-infamous Super Bowl halftime show, although he said the antics between Janet Jackson and Justin Timberlake should have been no surprise considering their song included the lyrics "I'm going to get you naked." "I'm not talking just about an exposed mammary gland with a pull-tab attached to it," Miller said. "Does any responsible adult ever listen to the words of this rap-crap? I'd quote you some of it, but the sergeant of arms would throw me out of here, as well he should."

Then, Miller elaborated on his comments from Wednesday in which he called Kid Rock an "ignoramus" for performing while draped in a poncho designed to look like the American flag. "And then there was that dancing, prancing, strutting, rutting guy evidently suffering from jock itch because he kept yelling and grabbing his crotch," Miller said. "But then, maybe there's a culture of crotch in this country that I don't know about."


Oooo-kay.

Third, and this is my guess, Miller is merely shifting with the political winds in Georgia, or "flip-flopping," in the hope of some future benefit. With the New Deal Democrats dying off, Georgia is becoming steadily more Republican. I suspect that Miller has calculated that we're about to enter an era of GOP dominance, especially in the South. So, I'd urge everyone to keep an eye on his activities after (thank god) his term is finished. I suspect that Miller is jockeying for a prime spot in the second Bush administration, or is trying to be a player in local politics. I'll be keeping an eye on him and his family, along with his citations to angry Old Testament prophets.

JUAN COLE ON ARIEL SHARON 

Everyone in New York and D.C. should team up with every soldier in Iraq and write Ariel Sharon a thank-you note saying:

Thanks sir for endangering my life. Thank you for creating thousands of new terrorists in a single day. Thank you for giving al Qaeda and the Iraqi insurgents an effective advertising tool. Your terrorism against terrorism is making the world a safer place.

Juan Cole explains why.

WHEN HE'S ON, HE'S ON 

Josh Marshall was definitely on in this post.

It reminded me of the old Animotion song, Obsession.

You are an obsession
I cannot sleep. . .
I will have you
Yes, I will have you
I will find a way and I will have you
Like a butterfly
A wild butterly
I will collect you and capture you. . .
You are an obsession
You're my obsession. . .
My fantasy has turned to madness
And all my goodness
Has turned to badness
My need to possess you
Has consumed my soul



JANE AUSTEN, OTHELLO, AND IRAQ 

If you have never read Jane Austen’s Pride and Prejudice, or if you haven’t seen the movie Mystic River, then you might not want to read the post today because I’m going to spoil the endings for you. You’ve been warned. Maureen Dowd – who wrote excellent columns in the 90s – still stumbles on to a good idea every now and then. In last Thursday’s column, she drew an interesting parallel between Elizabeth Bennett (the protagonist in Pride and Prejudice) and the Bush policy on Iraq. In light of the Clarke revelations, it’s worth examining the parallel in more detail because it reveals something even more frightening than the possibility that the administration lied – perhaps they were telling the truth, except that their “truth” was only true in a fantasy world distorted and clouded by their own desire. But let’s back up.

The more I thought about the Clarke accusations, the more my anger evolved into confusion, or even puzzlement. The post-9/11 responses of various officials like Bush and Rumsfeld just seem downright strange. I mean, look at Clarke’s exchange with Rumsfeld:

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

Bush’s response is equally odd:

"I said, 'Mr. President. We've done this before. We have been looking at this. We looked at it with an open mind. There's no connection.' He came back at me and said, ‘Iraq! Saddam! Find out if there's a connection.' And in a very intimidating way. I mean that we should come back with that answer.”

I suppose one could argue that Rumsfeld and Bush were just pretending to sound odd, which would of course be a clever way to hide the fact that they knew they finally had a pretext for invading Iraq. But I don’t quite buy that. To me, it seems that these are the words of people who just knew that Iraq played a role in 9/11. In their minds, it was no longer up for debate.

So here’s what’s nagging me. It seems clear that many sources (including the terrorist czar) informed them that Iraq had nothing to do with 9/11. They were also told that the evidence of Iraq’s WMDs was shaky, at best. One possibility is that they knowingly lied about the threat. It’s almost certain that Cheney’s office lied to, or withheld information from, Bush. But I’m not sure that the others knowingly lied. Another possibility - the more frightening one - is that the Bushies were so disconnected from reality that they sincerely believed that the fantasy world in their head existed. In other words, their desire to attack Iraq and their hatred for Saddam were so strong that these emotions actually began to distort and taint their perception of the world and their own cognitive processes. And this is where Jane Austen comes in.

As humans, our cognitive ability is often subservient to our emotional state. Put more simply, emotions are stronger than our mind. For example, think back to when you were a child and you were alone in your room at night. When you were in an emotional state of fear, your mind began to create monsters from blurry shadows. The fear was so strong that it actually affected the process of perception. You essentially were looking into an inkblot test, but your fear created a coherent image from that blur.

Variations of this human mental weakness have been featured in novels, plays, and films throughout history. For example, in Pride and Prejudice (one of my favorite books), Elizabeth is motivated by her own pride and insecurity to develop a negative assessment of Mr. Darcy, about whom she knows very little. Austen’s genius is that the reader thinks Darcy is a snob too because we share her perspective. But as the novel goes on, we learn that Elizabeth’s perceptions were distorted by her irrational contempt for Mr. Darcy.

The movie Mystic River also plays on this theme. Sean Penn’s character is so angry and enraged that once the suspicion is initially triggered, everything he sees seems to fit into a coherent narrative. His anger infects his perception of the world, and he begins to see his own monsters in the dark. Same deal in Othello. Once Othello gets the initial suspicion of infidelity in his head, his jealousy (and insecurity) clouds and distorts his cognitive abilities and he begins to see imaginary monsters.

Is it possible that something similar was going on in the minds of the Bush administration? It’s an interesting possibility. Kevin Drum linked to an article yesterday that explains clearly just how convinced the neocons had become, back in the 90s, that Saddam was practicing terror against the United States. And Bush had his own reasons for seeing Saddam as a monster after he tried to assassinate his father. It’s possible that all of these people, for one reason or another, began suspecting that Saddam wanted to carry out terrorist attacks against the United States. And once this suspicion was in place, it’s possible that their emotions began seeping into their cognitive perceptions, and began distorting them. In other words, the current administration might have been seeing monsters in the dark. How else to explain Rumsfeld’s strange quote? To me, Rumsfeld sounded like someone who didn’t even question whether Saddam had played a role. He had. Maybe this happened to Bush and even the much-reviled Cheney office. That’s why it would almost be better if they had lied. At least we would know they had been connected to reality when they sent us off to war. What’s more disturbing is that each of them had descended so far into a cloud of anger and suspicion that every act of terrorism really did come from Saddam in the fantasy world their emotions had constructed.

And into this fantasy world walked Ahmed Chalabi and he knew exactly what needed to be said to stoke the fires. He was the Iago of this tragedy, and Bush played the dumb, insecure, simple-minded Othello.

IAGO
I told him what I thought, and told no more
Than what he found himself was apt and true
(Act V, Othello).


Monday, March 22, 2004

RESPONSE TO SOUTHERN APPEAL 

Feddie over at Southern Appeal takes issue with my recent originalism post. My reply will be posted shortly as an update to the original post. [Update: It's now up.]

Sunday, March 21, 2004

REFLECTIONS ON CLARKE - An Introduction to "Plausible Demagoguery" 

Listening to Richard Clarke tonight, I thought about a lot of things. I thought about the wounded soldiers whose lives will never be the same. I thought about the families and friends of soldiers who are in Iraq. I thought about the daily hell that all of them must endure. I thought about the fallen. And I thought about the permanent emptiness in the lives of the families of the lost soldiers. But what really burns me - what triggers my absolute rage - is that the war was unnecessary and that George Bush - for whom combat is a vague abstraction - sent those people to die for his Macbethian intoxication.

If it were done when ’tis done, then ’twere well
It were done quickly. . .
But in these cases
We still have judgement here, that we but teach
Bloody instructions which, being taught, return
To plague th’inventor. This even-handed justice
Commends th’ingredience of our poisoned chalice
To our own lips.
(Macbeth I.vii)

It never ceases to amaze me how relevant Shakespeare remains. But anyway . . . the point of today’s post is that I fear little will come of Clarke’s damning account. To be more precise, I don't think Kerry can get much out of it (though that won't stop the blogosphere) And the reason is that, on the issue of Iraq, the Republicans have successfully attained what I call “plausible demagoguery.” Sadly, the goal of modern political debate in the Internet age is not to engage in a discussion of the issues, but rather to adopt a position that can be protected through plausible demagoguery. The term is my own and so I’ll try to explain exactly what I’m talking about.

To understand “plausible demagoguery,” you must first understand that the overwhelming majority of the people get their news from television. A Democratic strategist I know claimed that a majority of Americans get their information about the world from their local news shows. To be blunt, television - and especially local and national news shows - is a horrible way to get information about the world, at least compared to print or the Internet. In a newspaper, you get background history, context, and you can learn more details about what each side is saying. This thoroughness is impossible to convey on television given the time constraints of a 30-minute news show. Thus, political campaigns have to adapt to the demands of the medium - i.e., television. Everything must be as simple as possible so that it can be expressed clearly within the exceedingly short amount of time allotted to it on TV. Rove realizes this (all too clearly) and that’s why Bush’s sound bites are so simple, and why all issues are reduced into clear black-and-white terms. In the world of television, there is no time for an extended explanation, no time for nuance, and no time to engage in an intellectual discussion. That’s also why talking points are so important - and so frustrating to those of us who get our news from print.

The problem with the TV world is that it makes it impossible for politicians to take positions that require more than 30 seconds of explaining. Accordingly, the best thing that can happen to a candidate is for his or her opponent to adopt a position (or do something) that can be demagogued. Candidates can’t just make stuff up, but as long as their demagoguery is plausible (not accurate, just plausible), it works. Clinton was a master of this. After the government shutdown, Clinton could plausibly say that Dole wanted to destroy Medicare. Dole’s position was a lot more complicated than that, and of course, Newt and Dole were correct in that we have to do something about entitlement spending at some point (even though their remedy was extreme). But it didn’t matter. Clinton’s message was clear, simple, and played on popular prejudices. It was pathos rather than logos.

The modern GOP is even better because they use our troops when they demagogue issues. Poor Max Cleland - he could never make people understand that his vote against the Homeland Security Department had nothing to do with terrorists, but with restrictions on workers’ rights. It didn’t matter - that was enough for him to be plausibly demagogued. And he was - and he lost. Another example was the war resolution in 2002. It was brought to a vote one month before the election precisely for this purpose. Anyone who opposed it could be plausibly demagogued as being soft on terror in the next month’s election. The Bushies made it largely impossible for anyone to vote against the resolution given all the bullshit about mushroom clouds they were spouting. For example, it's hard to respond when your opponent can plausibly say, "My opponent voted for letting Saddam keep his nuclear weapons."

And as we saw from Bush’s speech on Friday, demagoguery is the GOP’s strategy to defend its bullshit, lives-destroying war. For politicians who speak out against it (like Sen. Kennedy), Bush can respond, “Well, if Ted Kennedy had his way, Saddam would still be in power and so would his mass graves.” Obviously, that’s the grossest simplification ever. The war to topple Saddam is not justified because Saddam was toppled. But to explain why requires more than 30 seconds - and if you’re explaining, you’re losing.

Another demagoguery tactic that Republicans use is to hide behind the troops. (“You that hide behind walls. You that hide behind desks.” - Bob Dylan, Masters of War) When people express doubts about the war, the Bushies can respond, “Are you saying those troops died for nothing?” That position is equally stupid. The logic seems to be that the war was justified because we lost troops to fight that war. But logic isn’t the point. The point is to be able to make 30-second ads or talking points that demagogue political opponents for “opposing” our troops. (By the way, why is opposing unnecessary wars "opposing" our troops. I tear up every time I see the wounded or the surviving family of lost soldiers on TV - and I am told by some that I "oppose" our troops. Well, my position on Iraq didn't require them to get killed, for whatever that's worth.).

And Kerry is really going to get it for his vote against the $87 billion. Get ready to hear that over and over. Again, notice how simple and clear the argument becomes: “John Kerry voted against funding our troops.” The statement is not true, it’s merely within the range of the plausible (barely). And we’ve already seen how nimbly Kerry has responded to this charge. He’s going to have to get it together or this issue might cost him the election. If I were in charge, I'd advise him to demagogue it right back in their crooked, lying faces, “I wanted those who benefited from the tax cuts to sacrifice for America, just as our troops are sacrificing. Are you saying that the wealthy shouldn’t sacrifice? Are you against our troops?” Something like that.

It’s all very depressing. I’m depressed that Democrats do it. I’m depressed that Republicans do it. But what’s even more depressing is that intellectuals (on both sides) cannot run for office, or if they do, they must lie about what they think. I mean, does anyone really think that John Kerry opposes gay marriage? Of course he doesn’t, but he can’t say that. Demagoguing queers is in this year.

[Update: I didn't wrap that up well. The obvious conclusion that follows from Clarke's revelations is that the war on Iraq was not part of the war on terror. In fact, invading Iraq undermined the war on terror and, as Howard Dean said, has not made America safer. But, and this is what I was trying to get at, Kerry can't say what's obvious - "Iraq was a mistake." On the one hand, his vote makes it hard to say that. But if he actually said that Iraq was a mistake, he could be demagogued as a Saddam-lover and as a troop-opposer. But again, we all know that Kerry thought it was a mistake, even if he can't say anything. So we'll spend this election speaking in code.

And what the hell is wrong with Joe Lieberman? And no, I don't consider his statements defending Bush as the same as McCain's when he defended Kerry. McCain had some sort of factual basis for his comments. Has Lieberman even read the book? What evidence does he have that the head terrorism official who worked for Reagan, Bush I, Clinton, and Bush II was making it up? He doesn't. Lieberman, like Andrew Sullivan, has staked his historical legacy upon Iraq being part of the war on terror. It wasn't and Lieberman and Sullivan are neck-deep in blame. I won't go far as Billmon regarding Lieberman, but he was a little frustrated with Holy Joe: "If I see nothing else accomplished before I die, I hope I at least live long enough to watch that stinking whore run out of the Senate, and, if possible, out of the Democratic Party."

SHOULD WE AMEND THE FIRST AMENDMENT? 

Frank Rich (as usual) has an excellent, though disturbing, article in today's NYT that lists many of the recent attacks on free speech in the name of values. The attacks are numerous enough that I think it's fair to say that they are not isolated responses to inappropriate speech/behavior, but reflect something more systematic. Take a look:

- FCC investigations and threats of fines for the Janet Jackson Super Bowl incident

- Clear Channel's removal of Howard Stern (which happened after Stern turned on Bush)

- Removal of Sandra Tsing Loh - a "longtime commentator" on LA public radio - for failing to bleep an expletive

- Introduction of the "Clean Airways Act" - If enacted, this law would impose criminal sanctions for the words`shit', 'piss', `fuck', `cunt', `asshole', and the phrases `cock sucker', `mother fucker', and `ass hole.'" So, Trey Parker and Matt Stone could go to jail for episodes of South Park. (Type in H.R. 3687 here.)

- Bill Maher was removed from ABC for post-9/11 comments after Ari Fleischer stated that people should "watch what they say"

- The FCC is now reopening the case involving Bono's use of "fucking brilliant."

- Clear Channel pulled the Dixie Chicks from all its stations after the lead singer questioned Bush's Iraq crusade

- Clear Channel pulled "Bubba the Love Sponge" for indecency

- CBS dropped "The Reagans" after the public uproar

This is scary stuff. Lest it be forgotten, every religion throughout history has suppressed or tried to suppress speech in the name of its own values. In the past, censorship was applied when someone dared to say that the earth orbited the sun. Today, if certain elements of the GOP get their way, people can be censored for saying the word "asshole" - perhaps even me.

Now I'm sure people will respond that many of these acts are not "censorship" because the government was not involved. That's technically accurate. The First Amendment applies only to governmental restrictions on speech. Clear Channel is free to do whatever it wants. My question to everyone, however, is whether its time to extend First Amendment protections against some kinds of private actors. Here's why I'm worried:

When the First Amendment was passed (and subsequently applied to state governments after the Civil War), it was inconceivable that private actors could possibly limit speech to the same extent that Congress could. There were large companies, to be sure, but these companies did not own the media ("mediums") of expression. In other words, there was no Clear Channel (who now owns over 10% of all radio stations) and there were not five media conglomerates who contolled all the major television stations. [The 10% actually understates Clear Channel's control. Their stations are concentrated in 248 of the 250 top radio markets (i.e., cities). And they control 60% of rock programming.] Back then, government could shut down speech, but there was no equivalent private actor who could inflict the kind of financial damage that Clear Channel can (just ask Stern's advertisers) in retaliation for certain types of speech.

That's the problem. To protect speech, we must also protect the pathways through which that speech is transported in the modern digital age. Simply protecting against governmental intrusion may not be enough if the government can get private actors to do its work for it. For example, as Rich pointed out, Clear Channel has a long history of financial association with Bush and the Bush administration. It also has a vested interest in getting favorable rulings from the FCC. So, the current administration can exert leverage over Clear Channel. And so when the Dixie Chicks criticized the war, it's plausible to say that Clear Channel dropped them from the playlists either out of loyalty to the Bush administration or in the hopes of getting favors in the future. Because Clear Channel has such an enormous market share, this move really hurts the Dixie Chicks (financially) and it puts other bands on notice that they need to "watch what they say" (because Clear Channel has enormous economic leverage over the bands and their distributors).

Punishing anti-war speech is about as close to the central purpose of the First Amendment as you can get. And to their credit, even some conservatives such as Sean Hannity have expressed skepticism about the recent attacks on speech. A more difficult question is how much the government should intrude on the freedom of private actors in order to protect speech. I'm no First Amendment specialist, but I'm confident some workable doctrine could be applied, even in the absence of a constitutional amendment. After all, Clear Channel and the TV conglomerates all enjoy the benefits of broadcasting on the publicly owned "spectrum." Spectrum is roughly analagous to a large real estate development that is divided up into smaller tracts. The federal government owns the entire development, and "leases" parts of that land to broadcasters who must agree to certain conditions. Again, this may be an obvious point, or may be obviously wrong, (I haven't done much research - so I'd welcome suggestions from those who have), but I see no reason why a court could not prevent private actors on the spectrum (perhaps with a certain amount of market share) from punishing expressions of protected speech. Under this doctrine, dropping the Dixie Chicks for the war statements would be an obvious violation of the First Amendment. Dropping Howard Stern would be a tougher case, which would require an investigation into whether dropping Stern was a response to political statements he had made against Bush. The point is that those who use the public spectrum are entitled to First Amendment protections. Obviously, there are a lot of murky areas (what if Clear Channel simply refused to play a band for political reasons but stated that their musical abilities were poor.). But something needs to be done.

I may try to read up on this area of the law some more, because I could very well be missing something obvious. But even so, it's disturbing to know that private actors can chill political speech just because they are owning more and more of the mediums of expression - i.e., radio stations, TV stations, news organizations. We can protect the content of speech all we want, but if we have no outlet for that speech, the protection is worthless. I think we have reached a point where we must, in order to preserve the purpose and goals of the First Amendment, extend those protections deeper into the private communications market.

Saturday, March 20, 2004

SATURDAY VACATION 

I generally take Saturdays off from the blogosphere. Today, I won't be posting but will instead be rooting for Duke to get beat.

Friday, March 19, 2004

KRAUTHAMMER - Master of Nuance 

I usually at least try to read Charles Krauthammer's op-eds in the Post. But today I stopped and moved on after reading the first two lines:

When confronting an existential enemy -- an enemy that wants to terminate your very existence -- there are only two choices: appeasement or war.

In the 1930s Europe chose appeasement. Today Spain has done so again. Europe may follow.


I've explained why this reasoning is so absurd in an earlier post.

SCALIA'S ORIGINALISM - How to Respond 

No, I’m not going to discuss the duck hunting trip. I’m going to discuss something more important - Scalia’s recent speech at William & Mary. In this speech, you can find everything that I both admire and hate about conservative jurisprudence. What I admire is that legal conservatives like Scalia have adopted a coherent, compelling, and even aesthetic narrative to describe their policy preferences. What I hate is that this narrative is sort of like fancy window dressing on a turd. It looks pretty on the surface, but once you actually dig into the substance, it stinks. Today’s post is especially important for current law students, who undoubtedly have to deal with originalism and who need to be able to explain why it’s so ridiculous. [Disclaimer: Today’s post is rather long and sort of law-heavy. So if non-lawyers don’t like this stuff, I suggest skipping today. And I use "originalism" and "original understanding" interchangeably.]

Before I begin, I should say that I admire Scalia. Actually, I admired the old Scalia, not the hate-filled, Lear-like man who now goes by that name. Like Scalia, I consider myself a textualist, though not an originalist (the liberal textualist godfather is Justice Hugo Black). For the non-legally trained, “originalism” is a legal doctrine that holds that the meaning of constitutional text should be whatever the meaning or understanding of that text was at the time of the Framing (late 1780s-1790s). I prefer to call the doctrine “constitutional creationism,” but we’ll get to that in a second. Here’s the excerpt from the article describing Scalia’s speech. The very first sentence shows how far Scalia - once a great mind - has descended into the hate-filled prejudice that is now too often directed to those who do not share his views (e.g., the “so-called homosexual agenda”).

"I do not like bearded, sandal-wearing weirdos who go around burning the flag," he said last night at the College of William and Mary. But because the First Amendment protects the right to criticize the government, Scalia said he had no choice but to join the court's majority in ruling that flag-burning is a constitutionally protected form of political expression.

In a freewheeling and often funny speech to an audience of more than 1,000, Scalia said he belongs to a minority of only two members of the court - Clarence Thomas is the other - who base their legal decisions on what the Constitution says rather than their personal feelings. While the other justices and the majority of the legal world believe in a "living Constitution" whose meaning must be interpreted in light of changing times, Scalia said he and Thomas subscribe to a belief that the Constitution still means exactly what it meant when it was adopted. Though most judges and lawyers these days adhere to the idea that their approach keeps the Constitution alive and vital, Scalia says, what they're really doing is insisting the nation's central legal document means whatever they happen to believe.


Aside from the inappropriateness of publicly ridiculing his fellow Justices, let’s look at the substance of what he’s saying. At first glance, it sounds good. He believes the Constitution means what it said at the Founding. Therefore, he doesn’t believe in interpreting the Constitution according to one’s personal feelings. Notice how attractive the narrative is. He invokes the Founding Fathers, who are back in fashion these days. His narrative also makes it sound like he’s following the actual text, while the other Justices are just making shit up and ignoring the text. Non-lawyers should know that there are literally armies of passionate young law students, lawyers, clerks, and judges who feel the same way. And they’re slowly infesting the federal judiciary through their connections within Federalist Society networks.

Here’s the dirty little secret about originalists - they’re making shit up too. To be more precise, they too believe in a "living Constitution" that incorporates their personal preferences. They just have a better way of justifying it. In other words, they have a better narrative to defend their actions. When “librul” judges make a decision that conservatives disagree with (for good reasons or bad ones), these judges are accused of interpreting the Constitution according to their political preferences. When conservative judges do the same thing, they are not being “activist.” They are merely returning to the “original understanding” of the Constitution. It’s a truly genius rhetorical strategy. By adopting it, you'll never lose. It allows you to call out other judges for being activist, yet when you do the same, you can say that you're merely “restoring the original spirit of the Constitutional text” – which by some coincidence happens to be more consistent with your political preferences (an added bonus).

As I see it, there are three profound flaws with originalism. First, it assumes that constitutional text is determinate (or that it has a meaning that can possibly be known). Second, even assuming the text has a meaning, it assumes that we can discover what that meaning is. Third, even assuming we know all of that, it assumes that we should follow that meaning.

Taking the last “flaw” first (i.e. that we should follow originalism), it truly baffles me why so many very intelligent people feel such a devotion to original understanding. The whole problem with the “living Constitution” (which is merely a pejorative term for those who feel that modernity should play a role in constitutional interpretation) is that it’s supposedly illegitimate. The judges aren’t elected, so they shouldn’t impose their personal politics on the nation (though I agree that this is exactly what the Court did in Roe v. Wade). But as Michael Klarman for one has explained (in “Antifidelity”), original understanding is equally undemocratic because it requires that we be ruled by the understandings of dead people who lived in the 1780s, regardless of whether those understandings would be absurd in modern society. That’s why I call original understanding “constitutional creationism” - it doesn’t accept the Enlightenment. It’s anti-rational. We are to live by a set of understandings even if those understandings would lead us to economic or military collapse.

The godfather of this movement - Robert Bork - exemplifies everything that is good and bad about original understanding. First, he’s clearly brilliant and is a great writer - and he makes the doctrine sound attractive. But he’s also scary, and after reading his book, I’m glad he was rejected from the Court. Under Bork’s Constitution, as he concedes in “The Tempting of America,” the poll tax and the literacy test would be found constitutional (these were the methods Southern whites used to keep those pesky negroes from voting). He also claims that Brown v. Board is consistent with originalism, but that’s a big-time stretch. As I have stated before, originalism strikes me more as a religion than a rational post-Enlightenment judicial philosophy that deserves to be followed. But before we can even get to the issue of whether we should adopt it, we need to ask whether it’s even possible to adopt it.

As I said, the first problem with originalism is that it assumes that Constitutional text actually has some determinate meaning. The Constitution includes many inherently indeterminate words such as “unreasonable,” “due process,” “equal protection,” and “cruel and unusual.” These words have no inherent meaning - they're relative terms, much like "hot" and "cold". Thus, beware when anyone says that “unreasonable” meant "X" at the time of the Founding. Whether consciously or unconsciously, that person is merely reading their personal preferences into the indeterminate text. For example, Scalia and Thomas have tried in the past to define an “unreasonable search” as what was unreasonable at the Founding. Because “unreasonable” has no determinate meaning, I can only conclude that Thomas is actually projecting his personal preferences on to the text.

But even assuming that constitutional text has some discernible meaning, how do we go about discovering that meaning? Here’s how modern originalists attempt to discover it. First, they take a word like “commerce.” Then people like Randy Barnett (over at Volokh) find a few snippets of how “commerce” was used (or was arguably used) in the 1780s, and voila, that’s the original understanding of the Constitutional text. In other words, we are to be governed by the historical conclusions of Randy Barnett. No thank you. I’ll take something more democratic and legitimate.

There are so many conceptual problems with this approach that it’s hard to count them all. For example, how does one go about discovering the common “understanding?” How widely used must the term have been? What if the term was only used in certain regions or among certain classes? Is the historical evidence (newpapers; pamphlets; court records) so reliable that we can say with confidence that commerce meant “X” in 1789? Are we so confident that we think our conclusion should be incorporated into the Constitution in 2004?

I don’t mean to be disrespectful. I don’t deny that historical evidence can provide some evidence of Constitutional meaning. But it’s certainly not dispositive. To be honest, I continue to be utterly baffled as to why so many people find original understanding so compelling given all the problems I’ve outlined. I hope these people will one day experience a moment of clarity and say, “Wow, this is absurd.”

But here’s what’s really going on, in my opinion. As I've said, Constitutional text is indeterminate in many places. And because it’s indeterminate, people will inevitably (and necessarily) read their personal preferences into the text (consciously at times and unconsciously at other times). Originalism remains popular today because it provides an ostensibly neutral set of rules that, in reality, help to impose conservative political preferences on to the Constitutional text. In other words, conservatives believe in the “living Constitution” too. They just have adopted a pretty narrative that makes it seem like they’re not doing what they are in fact doing. It’s not so much conscious lying. It’s sort of what Marx said - people tend to adopt beliefs and ideologies that serve their own self-interest. That’s why originalism is still around. It’s an intellectually compelling narrative that provides window dressing for what are, in reality, political preferences. Or window-dressing on a turd, if you prefer.

[Update - Reply to Feddie: First, it is true that my original post was a bit too acerbic. I usually find Feddie to write very thoughtful and rational posts. So I was a little surprised at the intensity of his attack. But it should be expected. Originalists have been bullying people at law schools for about fifteen years, and I for one am sick of it and others should stand up to it as well. Before I reach the merits of Feddie’s rebuttal, I want to point out some of the clever rhetorical tools he used.

First, in the spirit of the Crusader-in-Chief, Feddie boils the issue down into a simplified black-or-white dichotomy. If you’re not an originalist, you’re apparently a “living Constitutionalist.” I am not saying that original understanding should never be considered. For example, “four years” does not mean “six years” just because 200 years have passed. My point is that original understanding is merely one of many tools that judges should use (including text, structure, precedent, and policy). My argument is that it should not be the dominant (or only) tool. But everything is all-or-nothing with these people.

The second thing about Feddie’s post that was clever (and also in the spirit of our Crusader-in-Chief) was his subtle burden-shifting. For example, he wrote, “What's your alternative, sir?” See what happened? He shifted the burden on me to defend an alternative. This is exactly what Bush did with respect to the war. The burden of taking a country to war is a strong one. Bush instead effectively shifted the burden to those who would oppose it. In other words, opponents of invading Iraq had to justify why we should not invade. That’s why the GOP is winning - they’re better at rhetoric. Anyway. . . on to the merits.

I don’t want this to descend into a nyah-nyah-nyah debate. Again, I read Southern Appeal every day and find it to be very thoughtful, even if I disagree. To summarize my earlier post, before originalism can be adopted, there are at least four obstacles that it must overcome (I had only mentioned three earlier): (1) it must assume that terms such as “commerce” and “unreasonable” and “cruel and unusual” have a determinate meaning; (2) if #1 is satisfied, it must assume that people in 2004 can discover that meaning from scattered historical evidence; (3) assuming #1 and #2 are satisfied, it must determine whether the original understanding can be “translated” to new, unforeseen developments such as a stronger executive or Internet pornography; and (4) assuming all these conditions have been met, it must establish that we should follow it. Take your pick – it fails at every step. Since Feddie didn’t really respond in any detail to the first two criticisms (though I know he’s well-read in the history), I’ll wait until he does. I want to focus on #4, and then offer my “alternative.”

Quite simply, I’m not sure why we should make it our guiding principle. First, original understanding is equally undemocratic because we are being governed by a minuscule minority of the total population in 1789 (all of whom are dead). Second, the ratifiers excluded all blacks, women, immigrants, and poor people. Again, I’m not saying that the Constitution is illegitimate, but only that we should be a little more humble about it. Third, if you really take original understanding seriously, here’s a list of highlights that would follow: literacy tests could be reimposed; poll taxes could be reimposed; schools could be segregated; the right to vote could be denied because of poverty; all environmental statutes would be unconstitutional; all civil rights statutes would be unconstitutional (under Randy Barnett’s “exchange theory” of “commerce”); the administrative state would be unconstitutional (that’s a big one); states could ban sex outside of marriage; and some even contend that the Bill of Rights would not apply to states (that opens a Pandora Box of its own). Sounds like a fun place to live, no? That’s why the whole thing is absurd. Originalists stop applying originalism when they find the results distasteful. Again, it’s just pretty wrapping paper over policy preferences.

So my alternative is Hugo Black/Akhil Amar textualism. The main virtue of originalism is that it arguably constrains judges. I’m all for that - the Supreme Court has traditionally acted in favor of conservative property interests, so I’m a big believer in judicial restraint (though you wouldn’t know it from Feddie’s false dichotomy). In this respect, the Warren Court is a historical anomaly. But again, I agree that judges must be restrained, but I think Amar presents a more compelling (and democratic) way to constrain them. For those who are interested in an alternative to originalism, I would recommend reading Amar’s “Intratextualism” in Harvard Law Review, and especially, "The Document and the Doctrine" - read the second one first. Amar’s point (and he draws heavily from Hugo Black) is that the text and structure provide us with guides to interpret indeterminate language. My theory of interpretation mixes Black/Amar and Posner. I think judges should make policy decisions (because I adopt the Enlightenment), but only within the scope of the text. In other words, unless a strong (not plausible, strong) argument can be made that striking down a statute fits within the text and structure of the Constitution, then judges should get out of the way, regardless of how stupid the law is. My theory would not allow a Court to outlaw abortion. But it would allow affirmative action to be upheld as consistent with the text (see Amar on this point). And to be fair, Amar does draw on history, but he does not let his interpretation become a slave to the understandings of dead men. For Amar, new text combined with new circumstances are much more important than Randy Barnett’s historical conclusions.

But even if you disagree with my alternative, that is in no way relevant to the other charges I make against adopting original understanding as the end-all be-all of constitutional interpretation. Again, to sympathetic law students out there, don’t let them simplify the issue into a black-and-white dichotomy. And don't let them bully you.

Thursday, March 18, 2004

DOMINO EFFECT 

This is not the type of domino effect that Bush Inc. was hoping for in Iraq. It seems that Spain's imminent withdrawal has triggered a different sort of domino effect -- withdrawal from the coalition of the willing.

Absent a UN resolution, we know that Spain is out. Honduras followed Spain. El Salvador and Guatemala (who sent troops together with Honduras) are now considering pulling them out.

And now - Poland is considering withdrawing the troops early. The Polish president added, "Naturally, one may protest the reasons for the war action in Iraq. I personally think that today, Iraq without Saddam Hussein is a truly better Iraq than with Saddam Hussein . . . But naturally I also feel uncomfortable due to the fact that we were misled with the information on weapons of mass destruction."

Poland is actually important because it provides about 2,500 troops - the fourth largest contingent behind us, Britain, and Italy. I am not happy out this - and I'm not gloating. This increases the danger to our troops and increases the financial burden we must bear. And Bush is responsible - he's responsible not only for failing to assemble a coalition, but also for creating conditions that made international cooperation impossible. He should be tarred and feathered. You know, if it were possible for officials to be tarred and feathered, maybe they would be better leaders. Just a thought.

MUST-SEE TV - The New MoveOn Ad 

The new MoveOn Ad hits Rumsfeld pretty hard. Kerry needs to hire these people.

WHY THE NEW IRAQ CONSTITUTION IS BETTER THAN OURS  

Several commentators have been debating the wisdom of certain aspects of the Iraqi constitution. Jacob Levy (at Volokh and TNR) has a good rundown of the main critiques. The biggest problem that most people have is that the Iraqi constitution gives local provinces too much power, which will ultimately (the argument goes) lead to disintegration of the country. For example, the TAL (the new constitution) lets the various regions (arguably) keep their militias and it allows them essentially to nullify or amend federal law. Levy responds that these features are both good and necessary given the reality on the ground. I agree. The ethnic groups have no compelling interest in combining to form a nation, so local autonomy is the only possible way to keep the country together (though I still doubt it will be enough - even assuming the TAL ever actually becomes law). I'm far from an expert on these matters, but I did find the contrast between the TAL and our Constitution interesting. In fact, a strong argument can be made that the TAL is a better document in some respects than our own revered Constitution -- largely because of the nullification provision.

One of the great American myths is that the Constitution worked. Today, you often hear people say something like, "We shouldn't change the Constitution. It's been successful for over 200 years." No. That's wrong. In the words of Dick Gephardt, the Constitution was a miserable failure. It has only been successful from 1865 through today - which is not bad. But you have to remember that the Constitution was unable to resolve the conflict of slavery within the structures it created. The country had to settle the dispute in an extra-Constitutional way -- war. To be frank, the country created by the Constitution disintegrated in 1861 and a new nation was founded in 1865 with the new amendments.

But it's important to identify the actual flaw in the Constitution that led to the nation's disintegration. The biggest problem with the pre-Civil War Constitution was that it did not identify who would be the final arbiter in constitutional debates. In other words, the Constitution did not it make it clear who got the final say-so on what was or wasn't constitutional. Some argued that the states should have the final say. Others argued that the federal government should. Both were plausible because the Constitution didn't provide a clear answer. That's what "nullification" was all about. Calhoun and others were arguing that states could decide for themselves that certain laws were unconstitutional even if the federal government said they were. Because, as Calhoun correctly pointed out, the Constitution was silent on who the final arbiter was (the supremacy clause doesn't help us determine the meaning of the Constitution - so it didn't resolve these disputes). The Constitution never resolved this debate, and so, the question of who got to interpret the Constitution was ultimately decided on the battlefield -- and the federal government won (thankfully).

It's a fascinating question to ask whether the Civil War would have happened if there had been a nullification clause, similar to the one in the TAL. It's possible that the nullification clause might have averted civil war, but it would have ultimately caused other problems such as economic chaos. That's very possible. A better answer would have been to include some explicit provision in the original Constitution saying that the federal government is the final arbiter of all constitutional questions. It's questionable, of course, whether states would have gone along with that provision, but it would have at least provided clear guidance. And without this clear guidance, the Confederacy felt justified in leaving the Union. The TAL has not made this mistake. To be sure, it may turn out that the TAL's nullification clause will hurt more than it will help. But at least it will make clear who has the final word in controversial debates - and that goes a long way in defusing potential crises.

I am obviously NOT saying that I don't agree with the results of the Civil War. But you can't look at this issue ahistorically. The Confederacy almost won. And if it did, slavery would have been around for a very long time -- and all because the Constitution failed America. And, to make clear, I'm not praising the TAL's nullification clause per se, I'm just praising their efforts to identify a final arbiter in the debates that may arise.

[Follow-up: It seems that my understanding of the TAL was not quite complete, though I stand by my points about our own Constitution. Spencer Ackerman has a good post describing some of the details about Iraqi judicial review. For example, Article 44c says, "Should the Federal Supreme Court rule that a challenged law, regulation, directive, or measure is inconsistent with this Law, it shall be deemed null and void." Thus, this provision indicates that the Supreme Court will be the final arbiter of what does or doesn't violate the law. That's still an improvement on our own. While it's true that our Supreme Court does the same thing (judicial review, basically), that power is not explicitly granted in the Constitution. It's conceivable that the Constitution's silence may again haunt us in the form of a new constitutional crisis - assuming we ever get a President who chooses not to enforce the Court's decisions (with respect to abortion, for example). But Ackerman thinks that the judicial review provision adds little and that the provinces will still be the ultimate arbiters. Because the Iraqi Supreme Court could only overturn the Kurdish "amendments" with a 2/3 supermajority, Ackerman thinks that judicial review will rarely be successful. So, in practice, the provinces would still be the final arbiters. Either way, the Iraqi Constitution provides a clear process for who has the final say. The real question of course is whether the Iraqi federal government could enforce its Supreme Court decisions. If the Kurds (or anyone) ignore the Supreme Court, then we're back in Little Rock in 1954, except this time the federal and state governments are roughly equal in power. Scary stuff.]

Wednesday, March 17, 2004

WORLD OPINION AS AN EPISTEMOLOGICAL GUIDE 

Billmon (as usual) has a great post that explains in some detail why our alliance with Europe and others might actually be crumbling. I think there has been, on the American side, a sense that although Europe may be pissed, it was never actually going to stop being our ally. We may, however, be reaching that tipping point:

Something similar may be happening now, although the danger for America isn't encirclement -- it's isolation. Ever since it emerged as a global superpower in World War II, the United States has taken great pains to surround itself with allies and embed itself in a framework of collective security arrangements -- the better to both leverage and legitimize its power.

Since 9/11, however, the neocons and their masters (Cheney, Rumsfeld and Bush) have attacked those same arrangements with a peculiar ferocity, apparently in the belief that America no longer needs, or can afford, to cloak its hegemony in the trappings of multilateralism.

But with the meltdown in Spain, it appears its finally dawned on many conservatives that America really might be alone, or fast heading that way -- and that this might not be such a good thing after all.


I would add one last thought about why we need to respect world opinion. This is something that gets lost in the debates. World opinion, in addition to conferring legitimacy, can serve an epistemological function as well. In other words, the opinion of the world can help us come to know whether a given policy is good or bad. We could and should use it as evidence (in an empirical sense) of whether our proposed actions are sound.

Let's apply that reasoning to Iraq. The war was opposed by majorities in every country except the United States and Israel -- two countries whose objective vision (one might argue) is clouded by anger from Islamic terror. So over 90% of the world thought that our proposed action in Iraq was wrong (and I'm being generous - it may have been more than 90%). There are two ways of interpreting that opposition. The whole world is wrong and we are right. Or, we are wrong and the world is right. It can't be both. And so, we need some way to determine whose position was more sound. And that's the point - when 90% of the world disagrees with a given policy, that (to me) is strong evidence that the minority should rethink the wisdom of its position. Again, I'm not saying that supermajorities are always right. But supermajority support or opposition is very strong evidence (in an epistemological sense) that perhaps we've adopted the wrong position.

There's nothing radical here. I'm merely applying the scientific method to world politics. When 90% of scientists come to a certain belief, and 10% of scientists hold the opposite view, the 90% are generally correct.

[Update: The LA Times has a very disturbing article that includes some polls showing increasing anti-American hostility. Here's an excerpt: "It is disturbing that Americans are the only ones surveyed who believe the war in Iraq helped, rather than hurt, in fighting Al Qaeda," said Madeleine Albright."]

[Update 2: Dana Milbank also writes about these new polls. You know, this is exactly what some opponents of the war said would happen. The world would hate us and terrorism would increase. These polls suggest these critiques were right on. Support for suicide bombing is up, not down. People in the Middle East aren't scared of us - Andrew Sullivan - they want to kill us even more than they did pre-Iraq.]

Tuesday, March 16, 2004

GOP ECONOMICS 101 - A Case Study from Kentucky 

A few weeks ago, I made a series of arguments that Republicans hold power in part because many Americans don’t understand basic principles of economics (such as diminishing marginal utility of wealth; opportunity costs, etc.). I’d encourage new readers to check these posts out (here and here). Today, I want to offer you a case study of sorts that provides a concrete example of exactly what I was talking about. The recently elected GOP governor in Kentucky (Ernie Fletcher) is currently trying to push through a tax plan in last few days of the legislative session. The tax plan shows all too clearly just how awful GOP economics actually are. Understanding the Kentucky tax plan will help you understand why the Bush Inc. plan is equally terrible.

First, it’s important to remember that not all taxes are created equal. Taxes can be either progressive or regressive. Progressive taxes require people to pay more as they earn more. Regressive taxes require people to pay more as they earn less. Examples will make it more clear. An income tax is the most common progressive tax. People who earn $1 million a year pay more (in terms of percentage of income) than those who make $10,000. A sales tax, by contrast, is one of the most common regressive taxes. For example, let’s say that the sales tax on a Burger King Whopper is one dollar. That Whopper tax costs the same for those who make $10,000 as it is does for those who make $1 million. Thus, when you consider the tax in terms of proportion of income (which you must), the Whopper tax is much more expensive for the poorer person. The tax is 1/10,000th of the first’s person’s income, and 1/1,000,000th of the second person’s income. And the less money you earn, the more expensive these kinds of regressive taxes become. Property taxes are also usually regressive, but less so than sales taxes. They are often flat rates (e.g. 10% for all incomes), which tend to benefit those with more money – largely because of the principle of the diminishing marginal utility of wealth (explained here).

Generally, federal taxes are progressive and state taxes tend to be regressive. This is because federal revenues rely heavily on progressive income taxes, while state revenues rely heavily on sales and property taxes. Many states don’t even have income taxes, which is ALWAYS a victory for the wealthier classes (except perhaps in tourism-heavy places). Now you can begin to understand why Bush’s tax cuts are, from an economic perspective, so morally objectionable. When federal taxes are cut, which results in defunding of state programs like Medicaid, states usually have to raise taxes to make up the difference. The Center on Budget and Policy Priorities (always a good source) has released a report showing that federal tax cuts have resulted in higher state taxes and cuts in state services (which are mathematically indistinguishable from a tax increase). You must understand that Bush really isn’t cutting taxes, he’s merely shifting taxes to the states. And in doing so, he’s shifting the burden from progressive federal taxes to regressive state taxes. In other words, he’s shifting the tax burden away from the more wealthy classes and to the middle classes. And – surprise surprise – those are the very people who show up to his little $2,000-a-plate fundraisers. This is what John Edwards (bless him) was saying when he charged the Bush administration with shifting the nation’s tax burden from “wealth to work.” It’s just another type of interest group legislation, with the interest group being the more wealthy business classes.

With these lessons in mind, let me show a more concrete example going on right now in the state of Kentucky. Fletcher (the first GOP governor in 30 years) promised to bring “tax modernization” to the state. Some taxes would be raised, others would be cut, but they would be “revenue-neutral,” so as not to offend Grover Norquist and his email list. Not everything about Fletcher’s plan is bad – it does have some good provisions. But the overall effect of the plan is simply to shift the tax burden to poorer people (Kentucky, like other states, has a big deficit right now). And it looks like the Kentucky Democrats are going to let it happen. By the way – if you think the Democrats in DC are spineless, just come look at the Kentucky Democrats and their mortal fear of being seen as anything other than Republicans.

Some of the specifics are unknown, largely because Fletcher has taken a page from the Bush playbook and has not offered all the relevant details even though he wants the legislature to vote on it. But we know the some of the main provisions. The primary tax cuts will be made to the personal income tax ($257 million), the business tax rate (which is progressive), and the repeal of the corporate license tax ($393 million). I’m not sure how the $393 million is divided up between the two latter taxes, but I know the business tax rate is progressive and I’m guessing that the license tax is either a flat rate or progressive. So that’s roughly $650 million in cuts – all from progressive or flat-rate taxes. To balance this out, Kentucky will increase taxes on cigarette sales, alcohol sales, and taxes on satellite broadcast services. Combined, these increases will generate roughly $400 million. Notice anything different about these taxes? They’re all regressive. I hope everyone understands this clearly. Fletcher and the Kentucky GOP are shifting the tax burden by making people pay more regressive taxes. And that helps wealthy people and it hurts the middle class.

To be fair, I should point out that Team Fletcher is also raising some taxes on businesses. For example, he claims that he can close some corporate loopholes and tax some businesses that had not previously been paying a dime in taxes. The total of these tax increases would be about $315 million. He’s also eliminating taxes on people who make less than $12,000, which is admirable, but it doesn’t add up to much money. And besides, he’ll probably get back all of their money from the cigarette and satellite broadcasting taxes (rural areas without cable services tend to have more satellites). Regardless, Fletcher is still relying heavily on regressive taxes to provide revenues that had previously come from progressive taxes.

So why aren’t middle class people marching the streets? Because his plan will create "7,100 jobs," of course. People just don’t understand that GOP job forecasts are not intended to predict the future or to be honest empirical assessments. They’re intended to trick people who don’t understand economics into thinking that what’s good for rich people is also good for them.

IRAQ - Today's Carthage? 

Via Rain Storm, I just read a short but interesting post that draws eerie parallels between Gulf War II and the Third Punic War (between Rome and Carthage). It's worth a read.

Monday, March 15, 2004

SPAIN AND THE EYE OF THE BEHOLDER 

The more I think about the Spanish election, the more I realize its profound importance. I mean, this thing is HUGE. For good or bad (though I suspect bad – for America), the consequences of this election will be far-reaching. I’m not going to pretend I’m an expert in Spanish politics. And I’m sure the nation’s real experts are busy writing articles that will help us make sense of it. So today, I’m going to focus instead on the American response to the Spanish election. What’s most interesting to me is that the American response tells us less about the objective reality of the Spanish election and more about the politics of our own debate on terrorism. In other words, like everything else in the country, the Spanish election has become politicized and one’s perception of it is necessarily colored by one’s view of Bush’s war on terrorism. And that makes it really difficult to get an objective perspective.

Before I explain more clearly what I mean, it is important to understand some of the background to the election. I’ve been trying to read the European papers to get a better perspective on it. The Guardian has a great roundup of all the stories, and this roundup includes Howard Kurtz-type collections of what various Spanish and European newspapers are writing. From what I have read, it seems that Americans are (typically) simplifying the causes of the Socialist Party victory. I’m not denying that the bombing didn’t persuade voters to vote against Aznar, but we need to look at the election in context. First, I get a strong sense from the Spanish editorials and the other European papers that the voters were truly outraged at the government’s deception in trying to pin the blame on ETA (the Basque terrorists/rebels). Try to imagine if we had been voting for President three days after 9/11 and on the day before the election we found out that Bush (or Clinton) blatantly lied in an attempt to use the tragedy for political gain. I think the deception is probably the best explanation for the sudden swing. After all, the early conventional wisdom (before the lies) was that the bombing would help the Popular Party – which sort of undermines the argument that Al Qaeda was trying to get the Socialists elected.

Second, I think that the lying about the bombing was seen as the last straw in a series of frustrations with Aznar and terrorism. The war in Iraq was opposed by overwhelming majorities (as high as 90% in some polls). But like Bush, Aznar bullied his country by simplifying everything into black-and-white, you’re-either-for-us-for-against-us language. People didn’t buy Aznar’s repeated, and bullying, attempts to link Iraq to terrorism, and the anger grew even stronger when it turned out the war was based on false information. One voter explained her vote:

The problem is the government has made us feel like we've come out of this divided. The People's party exudes a feeling that you are either with them and Spain or you are somehow unpatriotic or against them.

Sound familiar? The point, though, is that Spain had endured nearly two years of Aznar's bullying arguments about Iraq, all of which turned out to have no basis in fact (as the voters suspected). Then, on top of this simmering frustration and two days after the biggest tragedy in modern history, the government is caught lying about terrorism for political gain. It was simply too much to endure in light of recent circumstances.

The lesson here is that the American blogosphere should be a little more humble in the explanations of the election than it has been. For example, Andrew Sullivan, John Derbyshire, and Glenn Reynolds have all simplified the election by saying that the Spaniards voted for Osama; that they appeased terrorists; that they fail to understand the terrorist threat; etc. What’s fascinating about this collective response is that it’s more of a reflection of their own thoughts than it is an assessment of the election. They’re not really engaging Spanish politics, they’re responding to their American critics on the issue of Bush’s war against terrorism. For them (and others on the other side of the spectrum), the Spanish election has simply become an inkblot test and these people are projecting their values upon it to justify their domestic policy preferences.

Let me more clear. I think that everyone agrees that al Qaeda (and terrorism more generally) presents a serious threat and that it must be dealt with. The real debate, however, in both America and the world is about tactics. In other words, everyone agrees that we must fight terrorism, but people disagree on how we should go about it fighting it. As for Bush, people aren’t disagreeing with his goal of eliminating terrorism. They’re disagreeing about whether Bush’s tactics (specifically, the war on Iraq) are helping or hurting the cause.

That’s my biggest problem with Andrew Sullivan’s defense of Iraq and Bush more generally. He stresses (over and over and over) that we are at war; that this is not a law enforcement operation; that we must appreciate the war-like aspects of this war we are fighting (did I mention that we’re at war?). Fine. For the moment, I’ll concede that, Andrew. We’re at war. But here’s the problem – just because we’re at “war” does not mean that everything that Bush has done is an appropriate way to fight that war. One can agree that we’re at war but disagree with invading Iraq on the grounds that it was an inappropriate, counterproductive way of fighting that war. And I’m getting sick and tired of people classifying my disagreement with Bush’s anti-terrorist strategy as an indication that I don’t realize that we’re at war, or that I don’t sufficiently understand the threat. Bullshit. This is just bullying. It’s framing the debate in such a way that you either agree with everything they're saying or you’re voting for Osama. There is no room for claiming that maybe, just maybe, there are different ways of fighting that war and some ways may be better than others.

But now you can understand why Sullivan got so upset about the Spanish election. He and the other pro-Iraq war people have a nagging insecurity about whether it was actually the right thing to do in light of the failure to find weapons or a true terrorist link. In short, postwar developments have called Sullivan’s thesis into question – that invading Iraq was a necessary part of the war on terror. And that’s why he (and others) are trying so desperately to paint this election as an appeasement of terror or a vote for Osama. They don’t want to admit that people can oppose terror AND the war in Iraq at the same time and still be good people. Or more precisely, they can oppose the Iraq war at the same time they appreciate that we're at war. Look, al Qaeda may benefit from the election. And it will certainly hurt America’s policy in Iraq, and that is upsetting. That said, it’s stretching plausibility to say that the voters were endorsing Osama or appeasing terror three days after millions of people took to the streets to mourn the nation’s worst terrorist attack in history. These people were voting against Aznar’s dubious attempt to exploit fear of terrorism in order to gain support for his policies (both pre and post-3/11). They were also rejecting Bush’s tactics in fighting terrorism, which Aznar had adopted so enthusiastically.

That’s my take on the reaction. A lot of people have a vested interest in convincing everyone that Iraq was both a necessary and effective tactic in the broader war on terror. And if you disagree with them, they’ll say you’re soft on terror or that you think this is a law enforcement operation. What they won’t admit is what the Spanish election showed all too clearly – that opposition to Bush’s tactics is not necessarily opposition to fighting terror.

[Update: The Post editorial is a perfect example of the logical errors I'm talking about. Here's the relevant excerpt:

Whatever the prewar situation, al Qaeda's tactics now have made explicit the connection between the continuing fight in Iraq and the overall war on terrorism. Mr. Zapatero said his first priority would be to fight terrorism. Yet rather than declare that the terrorists would not achieve their stated aim in slaughtering 200 Spanish civilians, he reiterated his intention to pull out from Iraq in less equivocal terms than before the election. . . . The danger is that Europe's reaction to a war that has now reached its soil will be retreat and appeasement rather than strengthened resolve.

The logical leap of faith here is the "connection" now supposedly established between Iraq and terrorism. Again, the WP is saying that unless you approve of Bush's Iraq strategy you are "appeasing" terrorists. Another way of seeing this, however, is that Spain is still going to fight terrorism, but withdraw from an operation that is doing nothing but creating more terrorists given its lack of legitimacy. Notice that he said that Spanish troops would remain if the UN took over. That suggests it's not an appeasement of terrorism, but a rejection of Bush's efforts to fight terrorism. Everyone agrees on the ends, they just disagree on the means. This all assumes that the Socialists really will crack down on terrorists -- which I concede is the most important assumption I've made.]

[Update 2: Juan Cole has more - and he's uncharacteristically pissed.]

[Update 3: Atrios also has a roundup.]

FINALLY - A Challenge to the Tax Cut Rhetoric 

Finally, a major newspaper (WP) has an article that raises an empirical challenge to the claim that tax cuts spur growth and higher taxes cause unemployment. It's about time. Voters need to realize that merely saying something is true doesn't mean it's actually true.

When President Bill Clinton raised taxes in 1993, the unemployment rate dropped, from 6.9 to 6.1 percent, and kept falling each of the next seven years. When President Bush cut taxes in 2001, the unemployment rate rose, from 4.7 to 5.8 percent, then drifted to 6 percent last year when taxes were cut again.

It has become conventional wisdom in Washington that rising tax burdens crush labor markets. Bush castigated his political opponents last week for "that old policy of tax and spend" that would be "the enemy of job creation."

Yet an examination of historical tax levels and unemployment rates reveals no obvious correlation.



THE TWO FRONTS AGAINST TERRORISM - Why Bush's Strategy is a Failure 

So much to talk about today – I’m shocked that Spanish voters would turn on a party that pursued policies that were overwhelmingly opposed by the electorate, and which tried to exploit a national tragedy for political purposes. This is a classic example of Bush’s chickens coming home to roost. When leaders take actions that are passionately opposed by majorities in democratic countries, it doesn’t take a genius to figure out that the opposition will soon be reflected in electoral victories for the party not in power. That’s how democracy works. And Tony Blair and others will soon be finding their own heads on the electoral chopping block. But what really pisses me off is that dumbasses like Andrew Sullivan are arguing that the Anzar government lost because it chose not to “appease” terrorists. Ugggh. With all that in mind, I do want to post what I had originally intended to post. It actually provides a good lead-in to the implications of this week’s Spanish elections and to why Sullivan is (as usual) so very wrong on this issue. And the point of today’s post is that Bush cannot possibly win the “war” on terrorists because he doesn't understand the nature of the battle.

As I have explained before (in a discussion of poverty), I think that when conservatives see terrorism, they tend to focus on the moral culpability of the individual terrorists, which translates into a desire to “kill ‘em all.” When liberals see terrorism, they tend to focus on the structural causes of terrorism – poverty, lack of education, hopelessness of young Arabs, the Israel-Palestine war. In a post 9-11 world, I think the answer has to include elements of both. I think Bush’s problem is that he is focusing solely on the first strategy – in other words, Bush thinks he can beat terrorism by killing the terrorists. He can’t. It’s a war with two fronts and Bush is ignoring the most important front.

Perhaps the best analogy to explain the error in Bush’s approach comes from a speaker I heard in high school. The speaker told the following story: Imagine that you are sitting on a river bank having a picnic. Suddenly you see an infant floating down the river in danger of drowning. You rush in and save the baby. Five minutes later, another baby comes floating down and you jump in again and save it. And the babies just keep coming. At some point, you’re going to have to leave and go see what’s causing the babies to float down the river in the first place. The point of the story is that you can’t solve a problem if you don’t address the root causes of that problem. It’s an apt lesson for Bush. With respect to terrorism, a similar story could be told. Bush is sitting on the river bank. A terrorist floats by and he kills him. Another terrorist floats by and he kills him. But at some point, Bush has to get up and go stop whatever it is that’s causing the terrorists to float down the river in the first place.

Of course, the obvious response is that the Iraq invasion was intended to address the root causes. I don’t buy this argument for two reasons. First, the main players in the administration have wanted to invade Iraq for ten years. 9/11 just provided them an advertising tool. But second, even if the Iraq invasion was intended to address the root causes of terrorism, it was a incredibly stupid way to go about doing it. Instead of reducing the causes of terrorism, Bush’s crusade has exacerbated the root causes of terrorism AND has diminished our ability to deal with real terrorism because of his arrogant disregard of the world.

Again, I’m not backing off what I said this weekend. Afghanistan was justified and necessary. Iraq was completely different. First, Saddam had no connections to Al Qaeda terrorists and everyone knew it. Second, it was (at best) unclear whether Saddam had weapons, especially nuclear ones. The burden to go to war is a strong one (it should be much stronger than the criminal system’s “beyond a reasonable doubt” burden). Afghanistan met this burden, Iraq did not. This is what paranoid dimwits like Andrew Sullivan fail to grasp. Iraq was not about fighting terrorism. Do you really think that the European countries hate America so much that they would rather risk death than to support anything that America does? No. They were smarter than we were and their vision wasn’t clouded by 9/11. They didn’t oppose Afghanistan, and they did oppose Iraq because they knew it was either not a threat, or that war was premature given the limits of our knowledge. This is what self-righteous hawks like Andrew Sullivan fail to grasp. Just look at his asisine post today:

But there's the real ironic twist: if the appeasement brigade really do believe that the war to depose Saddam is and was utterly unconnected with the war against al Qaeda, then why on earth would al Qaeda respond by targeting Spain? If the two issues are completely unrelated, why has al Qaeda made the connection? The answer is obvious: the removal of the Taliban and the Saddam dictatorship were two major blows to the cause of Islamist terror. They removed an al Qaeda client state and a potential harbor for terrorists and weapons of mass destruction. So it's vital that the Islamist mass murderers target those who backed both wars. It makes total sense. And in yesterday's election victory for the socialists, al Qaeda got even more than it could have dreamed of. It has removed a government intent on fighting terrorism and installed another intent on appeasing it.

Sullivan, like Bush, equates the war on Al Qaeda with the war in Iraq. And what’s really annoying about Sullivan is he thinks it’s so self-evident and beyond the realm of doubt. According to him, it’s not even plausible to argue that perhaps Iraq was unrelated and that’s why Europe didn’t go along. The “removal of the Saddam dictatorship” was not a blow to the cause. It has energized the cause, because it is seen throughout the world as illegitimate and in violation of international law (which it was). And to answer his question, targeting Spain only became “related” to Al Qaeda after Bush invaded Iraq. The attack itself provides no justification for Bush’s initial decision to go into Iraq under the guise of fighting terrorism.

But getting back to the point, Bush’s approach to Iraq showed that he had no regard for addressing the structural causes of terrorism. To me, these root causes can only be addressed with the cooperation of the world. Thus, the biggest problem with the manner of the invasion was Bush's failure to get the support of any international institution that could provide legitimacy for the invasion and occupation. Legitimacy really matters. Let me repeat, LEGITIMACY REALLY MATTERS. For one, it fuels the insurgency because it gives young, angry Arabs a way to justify terrorism in their own heads because America looks more like a colonial occupier than an international law enforcer. In their minds, America’s arrogance makes terrorism more, not less, attractive. Sullivan is right in that Europe and the world’s rejection of Bush’s policies gives encouragement to the terrorists. But that’s not Europe’s fault – that’s Bush’s fault. Instead of finishing Al Qaeda off in 2002 when he had the hearts of the entire world on his side, he adopted a policy that everyone knew would be passionately opposed by most of the world. Spain’s Socialist Party is not the problem. Bush is the problem. His arrogance forced Europe to take strong anti-Bush positions (because Europe is democratic)– positions that, as a matter of unfortunate coincidence, terrorists will inevitably see as helping their cause.

Legitimacy also provides political cover for leaders who don’t agree with the policy. Had the UN approved the invasion, the world’s opposition would be far more muted. That’s the beauty of deciding big issues after a vote. People can air out their views, try to persuade people, and then vote. Leaders could then tell their people, “Hey, I disagree, but the UN has spoken.” Arabic regimes could better justify it to their peoples as well. Legitimacy is whole premise behind voting and democracy more generally. It's also why we have a right to a jury in a criminal trial. The jury may be wrong, but it adds legitimacy to the result (Francis Fukuyama wrote extensively about the importance of "legitimacy" in his masterpiece, "End of History"). But when Bush saw that he would lose the vote, he withdrew from the process and robbed the invasion of any international legitimacy - and you reap what you sew. And here’s what we’re reaping: No one except Britain (who may also drop out after the next election) is helping us stabilize and reconstruct Iraq. It’s essentially our troops and our money. If this continues, we will be leaving Iraq sooner than we need to and civil war and instability will fill the vacuum. We will then have created terrorist safe havens and America will be too war-weary to do anything about it. We have also lost the goodwill of governments who we desperately need to obtain intelligence and assistance in tracking down and arresting terrorists. Even worse, we are actually losing those few allies (of any importance) that were inclined to help. Bush’s actions have given rise to anti-Bush candidates (because democratic governments reflect the will of the populace). And having been elected on an anti-America platform, these leaders will not (on the margins) be that inclined to help us in our efforts against terrorism.

That’s the big point – terrorism will never be defeated without international assistance. The causes of terrorism are long and complex, and will require a sustained international effort. To face this historic task, we have a parochial, isolationist president with an anachronstic view of the world and our place within it. By not only disregarding world opinion - by actually telling the world to go fuck themselves, Bush has diminished our ability to defeat terrorism. Bush is only fighting one front of the two-fronted battle against terrorists (the terrorists themselves and the root causes). And until Bush is out, I suspect that few countries will find it in their heart to forgive him.

The big question of course is how you go about addressing the root causes, assuming you have international support. I’ll be focusing on that question very specifically in some of the posts to come.

[Update: Whiskey Bar has a couple of interesting posts up on the Spanish election, al Qaeda, and Bush. Although I think Billmon may be underestimating the effects of the Popular Party's effort to pin the attacks on the Basques, he does offer some analysis that is somewhat terrifying. He speculates that the European people may be (in light of Bush) becoming neutral in the fight against America and al Qaeda. In other words, the Europeans may be getting out of the fight. Here's what he says:

The Spanish Socialists may be totally sincere in their commitment to continue the fight against Al Qaeda (and I certainly hope they are.) But there does appear to be a trend running here, in which popular opinion in many countries, particularly in Europe, is beginning to feel caught in the middle -- not just in the war in Iraq, but in the struggle against terrorism as well. It isn't neutralism -- yet. But it seems to be leaning in that direction. And a neutral Europe, not to mention a neutral world, would be a grievous wound (albeit a largely self-inflicted one) for the United States.

Scary stuff.]


Sunday, March 14, 2004

MORE ON 3/11 - A Follow-Up to Yesterday 

Tonight I want to take a moment to address some of the angry comments and emails I got from yesterday's post. First, I think some people are misunderstanding what I was saying. I am NOT saying that we need to turn our backs on cultural tolerance, skepticism of military force, and civil liberties. I still think these positions are almost always preferable. I was just saying that 9/11 and global technology have forced me to rethink my earlier view - which was that these positions were ALWAYS right. I think that I had adopted these positions as "default settings," without assessing them in light of new circumstances. For example, immediately following 9/11, I did not support the war in Afghanistan because of my view that war always harms more than helps (unless you are actually being invaded). I was also adamant in my conversations that people should do more to understand the poverty and hopelessness of many young Arabs. Pre-9/11, my view was essentially that one culture cannot judge another culture because judging was merely projecting one's own values abroad. Again, these are still generally my views - except I no longer think they are ALWAYS true. I now support the war in Afghanistan, for reasons discussed yesterday. And though I think Americans should strive to understand the Arab mind and try to extend some empathy to these cultures, I also now think that it's ok to raise strong moral arguments against the way these governments and cultures operate. Part of the problem is that I grossly simplified some of the points I was making yesterday - part of that was my own sloppiness and part of that was simply that blogs are not books, and the argument I was making needed to be spelled out over 20 or 30 pages.

Also, at least one comment argued that people are overestimating the terrorist threat. Josh Marshall has made a similar point, arguing that the terrorists aren't really a threat to our way of life because they are not (in contrast to Communism) offering an alternative world vision that is attractive to any non-Muslims in the world. In other words, we will never "lose Europe" to Osama the way we could have lost Europe to the Soviet Union. I agree in part. Yes, there has only been one terrorist attack in America, and that single attack involved box cutters. So I agree that people like Andrew Sullivan have taken a bit of a dive of the deep end and are excessively paranoid. But on the other hand, you've got to remember the implications of having a globalized "inter-dependent" world economy. If - and this is a big if - the terrorists could get their hands on a nuclear weapon and detonate it in Manhattan or London, then millions could die and the markets could crash and general mayhem would ensue. When you consider what is plausibly possible, I think that Andrew Sullivan is too paranoid and that many liberals are not quite paranoid enough. Given what all we're hearing about the nuclear black market and Dr. Khan's night job, I think the threat is plausible and that we must take steps to avoid that from happening.

As I will explain tomorrow, Bush is failing miserably in addressing that threat and for very specific reasons. This latter point was going to be the focus of tonight's post. But I just got home from weekend travelling and am tired, so I'll be posting it in the morning rather than tonight.

Saturday, March 13, 2004

3/11, 9/11 AND THE END OF 60s LIBERALISM? 

My thoughts go out to the people of Madrid today. Slate has a good roundup of the international response to the latest terrorist strike. Like American liberals after 9/11, European liberals now find themselves at a crossroads - standing between two different paradigms of thought and not knowing which one to adopt. On the one hand, they have the mental frameworks (or paradigms of thought) forged in the 1960s. The values of this framework include an aversion to military force, a strong tendency toward cultural tolerance (or at least an aversion to thinking certain cultures are superior or inferior), and a religious belief in the rights of privacy. On the other hand, they have the reality of 3/11, which seems to shatter the foundations of the 60s framework. I'm still not convinced that it's time to give up on that framework, but I'm getting close. 3/11 may have finally killed what I so vaguely refer to as 60s liberalism (by which I really mean "late 60s" liberalism).

Thomas Kuhn was the first to use the term "paradigm shift." He used it in reference to scientific revolutions:

A scientific revolution occurs, according to Kuhn, when scientists encounter anomalies which cannot be explained by the universally accepted paradigm within which scientific progress has thereto been made. Once new discoveries are made that cannot be reconciled with a current paradigm and these results are independently confirmed by other scientists, then the scientific community is forced to create a new paradigm in line with the evidence. (via Wikipedia).

For example, Galileo's discoveries could not be explained within the existing scientific theories and frameworks of the day. Essentially, he destroyed them by calling their most basic assumptions into question (i.e., the sun orbits the earth). The same was true for Newton and Darwin - their discoveries blasted the foundations of the mental frameworks (or schema) that man had previously used to interpret and conceptualize the world around him.

3/11 and 9/11 may have done the same thing to the political frameworks that liberals had been applying to the world. The way we had previously seen the world was strongly influenced by the Cold War, Vietnam, and even Watergate. We learned to respect other cultures. We learned to resist the temptation to view American culture as superior given all the coups, killings, and just plain bad shit we did. After Vietnam, we became instinctually skeptical of the use of force. Watching the evils of totalitarianism, J. Edgar Hoover, McCarthy, and the horrors of southern state officials' racism, we adopted a religious devotion to civil rights and privacy. In other words, modern "liberalism" is in many ways a contingent response to the actions of our own government (and Western governments more generally) from the Cold War era.

My question is whether these views remain tenable post-3/11 and post-9/11? I want them to be, because I have always seen the world in this way - but that doesn't make them right, especially when new events call my assumptions into question. On all three fronts (cultural tolerance, use of force, and privacy rights), I’m beginning to question whether my old mental frameworks are appropriate or even useful.

Religion provides a way of understanding the thoughts I’m trying to articulate. I think that, in all religions, conflicts develop between the religion’s formal rules and the animating spirit that gave rise to the rules in the first place. For example, new religions (such as Christianity) are created (or adopted on an individual level) in moments of inspiration or revelation - we feel it to be true. But the feeling (like alcohol, acid trips, and infatuation) always goes away. Religions respond by trying to formalize that initial feeling with rules and rituals. This, in a nutshell, is the history of the rise and decline of the Catholic Church. The Church’s practices were initially inspired by the feelings and emotions of the earliest followers. But over the course of many centuries, the Church added so many rules and rituals that only priests or Latin-readers could understand what the hell was going on. The Protestant movement (much like Jesus was to formal Judaism) was a rejection of the Church’s excessively formalized rules and rituals that were divorced from the spirit of the movement. Over time, these rules no longer served as a way of maintaining a connection with the initial inspiration - they became an impediment to that inspiration.

I think something similar may be happening to the “church” of 60s liberalism. The initial positions we adopted - cultural tolerance, skepticism of force, and privacy rights - were initially inspired by feelings. We adopted this form of liberalism because it was more consistent with the ideas of “love thy neighbor” and the “brotherhood of man” that we felt so deeply - even in a secularized religious sense. Because we felt a deep bond with all humans and not those humans who were, by accident, born in our country or born with our contingent characteristics, we argued that we should respect the ways of foreign cultures - all foreign cultures. Because we experienced (again felt) the horrors of war, we became skeptical of it as a force for good. Because we felt so strongly the need for individual rights in the face of totalitarianism abroad and J. Edgar Hoover at home, we adopted a strong stand on civil rights and privacy. All of these positions could be seen as “rules” that we adopted to maintain our connection with the initial inspiration of liberalism - love and respect for all mankind and a deep desire to use government to free them from the amoral horrors of Darwinistic Nature.

So here’s the million dollar question - are these “rules” still consistent with the initial inspiration? Or, have these rules become an impediment to helping mankind - which of course was our initial inspiration and source for the rules? I’m beginning to think the latter is true. To help mankind, perhaps we need to be less culturally tolerant. To help mankind, perhaps we must now embrace force. To help mankind, perhaps we must surrender some of our civil liberties.

Let’s start with cultural tolerance. It’s entirely possible that tolerating the religion and culture of the Middle East is actually hurting more people than it’s helping. Our tolerance supports a religion and culture that: (1) destroyed centuries of Middle Eastern progress; (2) prevents Middle Eastern democracy; (3) ruthlessly represses women; (4) ruthlessly represses free speech; (5) gives so many angry young people a justification for these sorts of acts; (6) creates and maintains gross wealth disparities. At what point do we stop tolerating? At what point does toleration become an impediment to the goals for which we initially adopted toleration in the first place?

Next, the use of force. I find it impossible to argue against the use of force in Afghanistan (THIS IS NOT TRUE OF IRAQ). Here you had self-proclaimed terrorist training camps where people were taught how to effectively kill the most innocent people with the smallest amount of effort. And it was all out in the open - we knew for sure what these people were doing (unlike Iraq). And because there was no chance of the Taliban (which I no longer hesitate to classify as “evil”) ever doing anything about it, why not adopt force? Again, unlike Vietnam and Iraq, force in Afghanistan was necessary to achieve the goals that we believed in - helping mankind. From World War II through today, force always hurt people more than it helped them. But attacking the Al Qaeda camps, to me, furthered the initial goals of 60s liberalism. To protect mankind, force was necessary to eliminate these people.

Finally, civil liberties. Again, we adopted the “rule” of supporting strong civil liberties because that rule tended to help people. But in a globalized world with globalized technology, it may actually be necessary to surrender some civil liberties to achieve our goal of helping and loving mankind. We must always question whether our “rule” is consistent with our underlying inspired goals.

Again, I don’t know if 9/11 and 3/11 represented the sort of seismic paradigm shift that requires us to adopt new rules in pursuit of our “first principles.” But if it’s not, it’s close. This is something I’ve really struggled with since 9/11 and I welcome emails and/or comments.

SATURDAY MPRE 

I have my MPRE test today, so regular blogging will probably resume later this afternoon - and possibly while drunk. Later today I'm hoping to finish a post on 3/11. My thoughts go out to the people of Madrid.

Friday, March 12, 2004

ANOTHER VIEW OF THE BASE 

When Bush Inc. talks about energizing the "base," these are some of the people he's talking about:

In November, we will be voting for the president of the United States of America - the USA, not the CSA. Indeed, the chief tenets of Southern Orthodoxy are that the South had a right to secede, therefore it is still a sovereign nation illegally occupied by Federal troops, therefore it's up to us to decide when the South rises again. And I'm totally down with that. So, let me know when it's time for us to vote for the president of the CSA.

Until then, I will be using the power of my vote to do what I think is right for the USA. That means I'll be voting Republican come November.


It's a shame that all Southerners get lumped together with morons like this.

This page is powered by Blogger. Isn't yours?

Weblog Commenting and Trackback by HaloScan.com