Support For Bush Eroding on Iraq

The Christian Science Monitor reports:

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

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

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

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

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

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

Posted 9:51 PM by JB

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

Quiddity makes a guess.

Posted 6:22 PM by JB

The President Needs A Vacation

He's back at the ranch:

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

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

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

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

Posted 12:02 PM by JB

Translator's Story: Condi's Lying

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

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

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

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

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

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

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

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

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

Posted 12:38 AM by JB

George W. Bush: A Uniter, Not A Divider

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

Posted 11:20 PM by JB

Things Fall Apart

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

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

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

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

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

President Bush, meanwhile, seems to think it's no big deal:

In the wake of the burst of violence, President Bush, speaking in El Dorado, Ark., on Tuesday, said he did not foresee changing plans to turn over sovereignty to Iraq on June 30.

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

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

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

Posted 1:23 AM by JB

Bush Agrees to Release Clinton Files

The Seattle Times reports:

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

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

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

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

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

Posted 10:55 AM by JB

Ruling Through The Administrative State

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

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

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

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

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

Posted 9:14 AM by JB

Hiding Clinton's Files

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

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

Posted 11:21 PM by JB

Flip Flop

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted 11:07 PM by JB

Prosecution by the Dashboard Light

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

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

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

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

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

Posted 10:41 AM by JB

Divide Iraq Up?

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

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

Posted 11:14 PM by JB

Justice Department to Intervene in Oklahoma Dispute about Headscarves

CNN reports:

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

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

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

I discussed this story back in October here.

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

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

Posted 3:07 PM by JB

The Best Laid Medicare Plans

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

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

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

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

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

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

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

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

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

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

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

Posted 9:01 AM by JB

Stuart Buck Hospitalized

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

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

Posted 12:00 PM by JB

Rice Will Testify in Public and Under Oath

Sunday:

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

Today:

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

Here's the official explanation:

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

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

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

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

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

Posted 10:45 AM by JB

Jesus Is Back

And boy, is he pissed at the U.N.

Posted 12:34 AM by JB

More Fun With The New Iraqi Constitution

The New York Times reports:

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

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

From the Interim Iraqi Constitution:

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

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

Isn't constitutional law fun?

Posted 12:28 AM by JB

I-95 in Connecticut

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

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

Posted 9:24 AM by JB

Digital Cops in a Virtual Environment

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

Posted 8:40 AM by JB

Senate Passes Unborn Victims of Life Act

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

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

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

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

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

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

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

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

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

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

Equally interesting is the death penalty provision:

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

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

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

Posted 8:14 AM by JB

Hoisted By His Own Petard?

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

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

Posted 10:41 PM by JB

Impervious to Facts

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

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

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

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

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

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

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

I do think it's time for a change.

Posted 10:36 AM by JB

What's Law Got To Do With It?

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

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

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

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

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

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

Posted 10:34 PM by JB

Ernie Miller Joins the Copyfight

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

Posted 9:53 AM by JB

Federal Marriage Amendment Revised

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

The revised amendment reads as follows:

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

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

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

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

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

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

Posted 10:38 AM by JB

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

From the Washington Post:

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

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

And there's this:

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

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

Posted 8:28 AM by JB