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Last Night's Sopranos & The President

Slate's "Mob Experts on the Sopranos" feature has been a real kick this season. In the last installment, however, two of the contributors (mob mouthpiece Jerry Shargel and Slate TV critic Dana Stevens) both equated Tony Soprano and President Bush. Somewhat surprisingly, at least to me, their fellow contributor Jeff Goldberg spanked them but good:

Are you equating a well-meant (and if you read Woodward, you'll see this is true) effort to liberate oppressed people (yes, most Iraqis actually wanted to be liberated from Saddam's regime), and to pre-empt a rogue dictator's attempts to re-acquire the sorts of weapons he already used to murder thousands, to Tony Soprano's desire to maintain control over the New Jersey strip-club industry? I'm like most of the rest of the pro-invasion crowd; I can't believe no one thought to plan for the day after, and I find the administration's arrogance disconcerting. But I don't think that George Bush needs to feel morally conflicted about liberating Iraq in the same way that Tony Soprano needs to feel moral doubt over, oh, murdering his cousin, for example.

I'm an ambivalent agnostic on the invasion, but I agree with Goldberg that there is a big moral difference between Tony and W. Unfortunately, the bulk of the left (both here and, especially, abroad) has come completely unhinged due to their inability to acknowledge that Bush has any moral legitimacy.

As for the show, I liked it a lot better than the Slate analysts did. I'm a big fan of David Chase's character-driven slice of life approach. It doesn't especially bother me when some plot lines peeter out without resolution (although, yes, I too wonder whatever happened to that Russian out in the woods). Instead, I relish tiny moments of wit and power. The scene in which Tony and Carmela come to grips with AJ's potential career in event planning, for example, was just priceless. Ditto the moment we thought the bear was coming back. Ditto Christopher's great line about Adrianna: "She was willing to rat me out because she couldn't do five years? I thought she loved me." Sure it was slow paced and the ending too contrived, but at the end of the hour I thought watching the show had been time very well spent. Other than World Poker Tour, there isn't much on TV these days about which I would say that.

The Europeans Protesting Bush

As expected, segments of the European street are frothing at the mouth over President Bush's visit. Bush did a credible job of responding during an interview with Tom Brokaw. It reminded me of one of Ronald Reagan's old lines. In his famous "tear down this wall" speech, Reagan noted the protests against his visit to Europe and, in particular, Berlin:

I have read, and I have been questioned since I've been here about certain demonstrations against my coming. And I would like to say just one thing, and to those who demonstrate so. I wonder if they have ever asked themselves that if they should have the kind of government they apparently seek, no one would ever be able to do what they're doing again.

The Europeans apparently still are unwilling to ask themselves that hard question. Oh well. They were wrong about the cold war and they're wrong again about the war on terror. And Kudos to Bush for saying:

I'm not trying to be popular. What I'm trying to do is what I think is right. And what is right is to fight terror. And what is right is to spread freedom. And what is right, to stand on the the values that my country and our country upholds. And I will continue to do so.

An Alan Dershowitz Puzzle

Harvard law professor Alan Dershowitz is one of many law professors who have signed the forthcoming letter protesting the abuses at Abu Ghraib. The letter criticizes the administration for violating, inter alia, the Geneva Conventions:

International humanitarian law provides that those classified as prisoners of war are entitled to special protections against such abuses under the Third Geneva Convention, ratified by the United States in 1955. Inhabitants of occupied territories are protected under the Fourth Geneva Convention, also ratified by the United States in 1955, against physical or moral coercion to obtain information from them. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994, requires that States party take measures to prevent both torture, and other acts of cruel, inhuman, or degrading treatment.

The letter further, at least by implication, opposes the use of coercive interrogation techniques (technically the letter only calls for Congressional study of whether such techniques should be used, but the overall tone strongly supports an inference that the authors oppose their use).

In his widely cited column on terrorism, however, Dershowitz opined:

THE GENEVA Conventions are so outdated and are written so broadly that they have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists. These international laws have become part of the problem, rather than part of the solution.

And, he goes on:

The treaties against all forms of torture must begin to recognize differences in degree among varying forms of rough interrogation, ranging from trickery and humiliation, on the one hand, to lethal torture on the other. They must also recognize that any country faced with a ticking-time-bomb terrorist would resort to some forms of interrogation that are today prohibited by the treaty.

Am I missing something? It's hard to believe the author of those words could sign the law professors' letter, which embraces the Geneva Conventions and the treaties against torture with such enthusiaism (not to mention advocating an expansive and disputed view of their interpretation). Could there be a little partisanship at work? (Nah. Law professors are never partisan, are they? Heh.)

Personally, I'd be willing to sign a letter based on Dershowitz's measured and thoughtful column; I'd suggest he try to organize one instead of signing on to the circulating draft.

Law Professor Letter re Abu Ghraib

A bunch of law professors are drafting a letter to be sent Congress protesting the abuses at Abu Ghraib prison. You can access the draft letter and list of signatories here. The letter pretty much assumes the worst about the administration and the military, while adopting the most liberal interpretation of relevant law. Clearly, therefore, it is to be regarded as more of a partisan political act than opinio juris.

Update: For an alternative perspective on the relevant legal rules, see former Bush administration legal expert John Yoo's column Terrorists Have No Geneva Rights.

Update2: For yet another alternative perspective, be sure to check out the next post on the puzzling disconnect between the law professors' letter and signatory Alan Dershowitz's column harshly criticizing the same legal rules.

Note to Leiter readers: Contrary to what you may have inferred from Brian's remarks, I have never claimed that my blog is non-partisan. Nor do I object to partisanship in letters like the one in question. What I object to is this bunch of law professors pretending to be non-partisan. If you've read that letter and have any doubts as to its partisanship, you lack eyes with which to see.

Using Chesterton to Reply to Solum on the Martial Virtues

In response to my post on the martial virtues, Larry Solum quotes a description of the trial of Socrates, from which he then poses the following excellent questions:

Are the martial virtues true human excellences? How do the martial virtues relate to the virtues of justice and beneficience? These are deep questions, but surely there are no easy answers.

I certainly agree that there are no easy answers, but in the spirit of continuing the discussion (always an enjoyable task when Larry is in the mix), let me quote an apropos passage from G.K. Chesterton's essay on Rudyard Kipling (which a reader was kind enough to pass along):

Now, Mr. Kipling is certainly wrong in his worship of militarism, but his opponents are, generally speaking, quite as wrong as he. The evil of militarism is not that it shows certain men to be fierce and haughty and excessively warlike. The evil of militarism is that it shows most men to be tame and timid and excessively peaceable. The professional soldier gains more and more power as the general courage of a community declines. Thus the Pretorian guard became more and more important in Rome as Rome became more and more luxurious and feeble. The military man gains the civil power in proportion as the civilian loses the military virtues. And as it was in ancient Rome so it is in contemporary Europe. There never was a time when nations were more militarist. There never was a time when men were less brave. All ages and all epics have sung of arms and the man; but we have effected simultaneously the deterioration of the man and the fantastic perfection of the arms. Militarism demonstrated the decadence of Rome, and it demonstrates the decadence of Prussia.

I take it that Chesterton's point is that the evils of militarism tend to arise when the martial vitues cease to be civic virtues. Alternatively, I suppose, the disconnect between martial and civic virtues may put a society in the position of, say, late Roman Gaul, powerless to resist the engulfing tide. Either way, while not claiming there are easy answers, I would claim that the growing disconnect between the martial and civic virtues is cause for grave concern.

I would further claim that the legitimacy of such concern can be found in the mores of the American Founding. Clayton Cramer has unearthed a very interesting report sent by President George Washington to Congress on the necessity of a militia:

An energetic national militia is to be regarded as the capital security of a free republic, and not a standing army, forming a distinct class in the community.

It is the introduction and diffusion of vice, and corruption of manners, into the mass of the people, that renders a standing army necessary. It is when public spirit is despised, and avarice, indolence, and effeminacy of manners predominate, and prevent the establishment of institutions which would elevate the minds of the youth in the paths of virtue and honor, that a standing army is formed and riveted for ever.

Is this not an appeal to ensuring a perpetual linkage between the martial and civic virutes, grounded on much the same concerns as motivated Chesterton? Is not the final sentence of Washington's report a call to action for our own times, of which I fear he has given a precise account?

Max Boot on Iraq and the Problem of Martial Virtue

Max Boot makes an interesting point in the LA Times ($):

The panic gripping Washington over the state of Iraq makes it clear we have been spoiled by the seemingly easy, apparently bloodless victories of the last decade. From the Persian Gulf War of 1991 to the Afghanistan war of 2001, we got used to winning largely through air power. There were casualties, of course, but few of them were on our side. In Kosovo, we managed to prevail without losing a single person. We forgot what real war looks like. Iraq is providing an unwelcome reminder of how messy and costly it can be.

By comparison with the wars of the last decade, what's happening in Iraq appears to be a terrible failure. Things look a little different if you compare it with earlier conflicts.

I would argue that the problem goes deeper than Boot suggests. It is not just that we have become spoiled, it is that we as a people have largely lost the martial virtues. The United States, of course, historically has a far more ambivalent attitude towards those virtues than did, say, the Romans of the Republic or the hoplite Greeks. Admittedly, there is a strong streak of pacifism and isolationism in our history. Yet, even so, it is hard to deny the claim made by Geoffrey Perret that we are A Country Made By War . Americans have waged war often and, usually, effectively. If it were not so, we would still be British colonists clinging to a narrow strip of Atlantic coastline.

Today, however, a far different ethic holds:

"Personal peace and affluence." Those would be the only values left, predicted Francis Schaeffer, as American culture drifted further and further from its biblical foundations. Americans would be willing to sacrifice their faith, their morality, their families, and even their freedoms, as long as they could feel peaceful inside and enjoy the luxuries of material prosperity.

Now we are faced with an enduring choice: will we really sacrifice all that for a false peace or will we rediscover the martial virtues? Can we again expouse the Western Way of War?

I do not know the answer, but I fear that we cannot. And, I feel constrained to lay some of the blame at the feet of President Bush. His Pentagon hides away our honored dead at Dover air base, as though we should be ashamed of them. He does not call upon those of us who are too old to serve to make other sacrifices. He tries to avoid huring anybodys feelings by denying that this war is a clash of civilizations and cultures, not a border dispute. Indeed, I cannot name one thing Bush has done that seems intended to restore the martial virtues.

Granted, I do not believe John Kerry would be any better. To the contrary, since the modern American left is overtly hostile to the martial virtues, a Kerry administration doubtless would be even worse. Yet, I cannot help but wonder where we could find an Abraham Lincoln or a Teddy Roosevelt when we need one.

Update: My reply to Larry Solum is here.

Uh oh. Bush may be in real trouble.

The other day, Profs. Levy and Reynolds opined that Bush may be in trouble because he's losing the Libertarian vote; I scoffed. Now, however, comes a real worry for those of us who support the President (however ambivalently at times); namely, that Bush is losing the Clancy vote:

A brand name author with many admirers in the military criticized the U.S.-led invasion of Iraq, citing it as proof that "good men make mistakes." That same writer said he almost "came to blows" with a leading war supporter, former Pentagon adviser Richard Perle.

The author is Tom Clancy.

The hawkish master of such million-selling thrillers as "Patriot Games" and "The Hunt for Red October" now finds himself adding to the criticism of the Iraq war, and not only through his own comments. His latest book, "Battle Ready," is a collaboration with another war critic, retired Marine Gen. Anthony C. Zinni. "Battle Ready" looks at Zinni's long military career, dating back to the Vietnam War, and includes harsh remarks by Zinni about the current conflict. [Ed.: Zinni's list of 10 mistakes by the administration in fact is quite damning.]

My guess is that Clancy readers represent a much larger percentage of Bush's base than do readers of libertarian law professor blogs. Clancy's Jack Ryan, after all, is resolutely pro-military, devoutly Catholic, and moderately anti-abortion; all of which resonates with a lot of the GOP base. So if Bush can't get folks like Clancy and Zinni back on board soon, he will be in very deep trouble.

Mark Helprin's Must Read Column

Mark Helprin's WSJ ($) op-ed, available to nonsubscribers via OpinionJournal.com, is a damning indictment of both political parties' handling of the war on terror/Iraq:

In a war that has steadily grown beyond expectations, America has been poorly served by those who govern it. The Democrats are guilty of seemingly innate ideological confusion about self-defense, the Republicans of willful disdain for reflection, and, both, of lack of imagination, probity, and preparation--and, perhaps above all, of subjecting the most serious business in the life of a nation to coarse partisanship. Having come up short, both parties are sorely in need of a severe reprimand and direct order from the American people to correct their failings and get on with the common defense.

I don't entirely agree with either his assessment of the facts or his proposed solutions, but it is a provocative must-read column.

Hard versus Soft America

Michael Barone in today's LA Times (R):

It has long been my observation that American 18-year-olds are more incompetent than 18-year-olds in other advanced countries, but that American 30-year-olds are the most competent 30-year-olds in the world.

...Why should this be so? I think it's because from ages 6 to 18 Americans live mostly in Soft America, while from ages 18 to 30 they live mostly in Hard America.

Let me define my terms. Hard America is made up of all those parts of American life where you have competition and accountability. Soft America is made up of those parts where you don't. Hard America includes, among other things, the high-tech private sector. Soft America includes, among other things, high school, at least for the large majority of kids who aren't applying to selective colleges.

You know what? I think he's right:

Two East County high school teachers were placed on paid leave yesterday after students in their classes saw images and heard American Nick Berg being beheaded in Iraq.

We're at war, folks ... a war that probably will be dragging on when those students are my age. They need to know what we're up against. We do them no favors by hiding them away from hard truths.

Two Approaches to Conservative Commentary

Hugh Hewitt's latest post is unabashed Bush cheerleading:

Newsweek has the latest poll that shows (1) a drop in President Bush's approval ratings, and (2) a dead-heat in the Bush-Kerry poll. Proving what? That Americans wish progress was quicker in Iraq, but that even in the face of the worst 45 days of news since 9/11, the president is still understood as a war leader and Kerry is an implausible replacement. There's a stature gap when it comes to dealing with the enemy which John Kerry will never fill, which is why I remain very optimistic about the fall vote. The American people know that a vote for Kerry will be a vote to cut-and-run, and they also know that there is no way to withdraw from a war we didn't start and we cannot end, as the execution of Nick Berg reminded demonstrated again this week. ...

November's choice cannot now be understood as other than a referendum on how America is going to conduct itself over the next two decades. The Bush path is clear, and means aggressive confrontation of the enemy up to and including invasion if necessary, versus the Kerry approach of talk to the Security Council and get some subpoenas issued. The Bush approach is hard and costly, both in lives lost among the military and huge appropriations. The Kerry approach is suicidal.

I have a lot of respect and admiration for Hugh, but all of this strikes me as far too glib. Contrast Hugh's unsquelched optimism about Bush with Jonathan Last's take in today's LA Times. Last is no lefty; he's an editor at the neocon Weekly Standard, but he sees Bush in a clear and harsh light:

The Republican theory of victory in November is that John Kerry will by then have become an unacceptable choice for voters because of his well-documented penchant for flip-flopping on issues. It's a smart theory with only one problem: George W. Bush would not be immune to the same charge.

Last then cites a bunch of examples, of which a number go directly to Hugh's claim that the "Bush path is clear":

In the immediate aftermath of Sept. 11, Bush spoke as if the war on terrorism would be waged against all terrorist organizations, saying, "Anybody who houses a terrorist, encourages terrorism, will be held accountable." On another occasion he said, "We are planning a broad and sustained campaign to secure our country and eradicate the evil of terrorism." And later the president proclaimed, "If any government sponsors the outlaws and killers of innocents, they have become outlaws and murderers themselves."

By November 2001, however, Bush had modified his position: "Where terrorist groups exist of global reach, the United States and our friends and allies will seek it out, and we will destroy it." The important clause "of global reach" was added to justify ignoring regional terrorism in Ireland, Spain, Chechnya, the Philippines and Israel.

In March 2003, the president was asked if he would call for a vote on the proposed U.N. Security Council resolution backing the use of force in Iraq, which faced near-certain defeat. "No matter what the whip count is," Bush said, "we're calling for the vote. We want to see people stand up and say what their opinion is about Saddam Hussein and the utility of the United Nations Security Council. And so, you bet. It's time for people to show their cards, to let the world know where they stand when it comes to Saddam." The vote was never taken.

The list goes on. After saying the U.N. would have only a perfunctory role in rebuilding Iraq, Bush went back to the world body seeking aid in September and more recently looked to U.N. special envoy Lakhdar Brahimi to help form an interim government in Iraq. After announcing he would file an amicus brief opposing affirmative action at the University of Michigan, Bush instructed his solicitor general to file a last-minute brief that essentially punted on the issue.

Personally, I have no doubt that I'll vote for Bush in November. But don't count on me for a ton of rah-rah cheerleading. The Iraq mess daily raises serious new questions about the competence of the Bush administration. As Fouad Ajami argues: "We have been doing Iraq by improvisation, we are now "dumping stock," just as our fortunes in that hard land may be taking a turn for the better." Ajami further raises the competence question by observing "the confusion--and panic--of our policies in the aftermath of a cruel April."

Conservatives do their cause no good by ignoring those questions; instead, we are going to have to make the case that Bush deserves reelection despite those legitimate questions. We also need to hold Bush 43's feet to the fire, so that the Bush 2.1 administration runs the war more competently than this one has.

James Joyner on Iraq

Making typically good sense:

I’ve never been confident that Western-style democracy was going to be the end game in Iraq, especially in the short term. Not so much because Arabs are somehow unsuited for democracy—although I do think fundamentalist Islam and our vision of democracy are mutually exclusive—but because that change needs to come from internal forces rather than imposed from outside. I thought—and still maintain—that the gamble was worth taking if we were committed to the excercise. President Bush emphasized time and again that this was a long-term struggle and I fully expected us to maintain a heavy presence in Iraq for years to come. The signals have become decidedly mixed on this front in recent weeks, however.

It’s hard to conceive of a situation in Iraq worse than we faced with Saddam or his sons in charge. Regime change was worth the price paid. But we’ve paid a far higher price for the follow-on mission of stabilization and democratization, goals which we are a long way from achieving. I hope our commitment to finishing the job remains strong. I don’t expect to turn Iraq into Norway, but a stable country with a government and some reasonable measure of freedom for its citizens has to be in place before we can leave.

Condi at Vandy

Clayton Cramer has a great post excerpting and commenting on Condalezza Rice's speech at Vanderbilt:

Make no mistake about this. This is not a struggle over money, or oil, or land, or any of a number of relatively minor matters. This is a struggle over whether or not we want to live in a world where Nick Berg's killers continue their operations of death and torture.

Yep. Go read the whole thing. (Please!)

The Nick Berg Video

You can find it at Wizbang or Outside the Beltway. [Update: Apparently James has taken it down at OTB. Kevin's got an updated list of links here.] Appalling. This is a war we must win, because our foes will show us no mercy.

WSJ Op-Eds on Iraq

Two must read columns in today's WSJ ($). Fouad Ajami on The Curse of Pan-Arabia:

Consider a tale of three cities: In Fallujah, there are the beginnings of wisdom, a recognition, after the bravado, that the insurgents cannot win in the face of a great military power. In Najaf, the clerical establishment and the shopkeepers have called on the Mahdi Army of Muqtada al-Sadr to quit their city, and to "pursue another way." It is in Washington where the lines are breaking, and where the faith in the gains that coalition soldiers have secured in Iraq at such a terrible price appears to have cracked. We have been doing Iraq by improvisation, we are now "dumping stock," just as our fortunes in that hard land may be taking a turn for the better. We pledged to give Iraqis a chance at a new political life. We now appear to be consigning them yet again to the same Arab malignancies that drove us to Iraq in the first place.

Ajami raises a question that is really beginning to worry me; namely, the competence of those who are setting our Iraq policy:We can't have this peculiar mix of imperial reach, coupled with such obtuseness. ... Our goals in Iraq are being diluted by the day. There has been naivete on our part, to be sure, and no small measure of hubris. We haven't always read Iraq right, but if we abdicate the burden and the responsibility -- and the possibilities -- that came with this war, our entire effort will come to grief.

Then there's Bernard Lewis' Iraq, India, Palestine, which criticizes our increasing reliance on the feckless UN:

The line that Americans are degenerate, soft and pampered -- "hit them and they will run" -- has been a major theme of Islamic terrorists for some time now. It was temporarily silenced by the campaigns in Afghanistan and Iraq, but then revived by what was seen as public dithering and wavering. The turn to the U.N. will be perceived, or at least presented, as final and conclusive evidence of their view of America, and may well serve as the starting point of a new wave of terrorist action against Americans, reaching far beyond Iraq and perhaps even as far as these shores.

We must hope that the Journal puts these columns up on OpinionJournal.com, so that they can receive the wide audience they so richly deserve. In the meanwhile, though, if you're not a WSJ subscriber consider buying a copy today.

Rummy

My friend and fellow lawyer Howard Klein sent along the following question:

I wonder how many of the Congressional Democrats who are in full throat calling for Rumsfeld's head on a platter made any noise at all 10 years ago when then AG Janet Reno ordered the assault in Waco that resulted in the incineration of more than 80 souls. Maybe someone can check the record?

I'll publish the results if anybody wants to crosscheck it.

VDH on Abu Ghraib

It's a pity Victor Davis Hanson's essay on the Abu Ghraib abuses is only available on the WSJ's pay site, as it is probably the best balanced commentary I've seen yet. On the one hand, Hanson makes clear that such abuses cannot go unpunished:

These seemingly inhuman acts are indeed serious stuff. They also raise a host of dilemmas for the U.S. - from the pragmatic to the idealistic. We must insist on a higher standard of human behavior than embraced by either Saddam Hussein or his various fascist and Islamicist successors. As emissaries of human rights, how can we allow a few miscreants to treat detainees indecently - without earning the wages of hypocrisy from both professed allies and enemies who enjoy our embarrassment? In defense, it won't do for us just to point to our enemies and shrug, "They do it all the time."

I think VDH is basically right here. Absent WMD, unseating a brutal dictator remains the strongest argument for Bush's intervention. As such, our own people must be purer than Caesar's proverbial wife. On the other hand, as VDH explains later in his essay, there is an important difference between the sort of systematic, yet often purposeless, policy of torture and brutality under Saddam's regime and what we may still hope will prove to be the unauthorized acts of a few rogue elements.

The guards' alleged crimes are not only repugnant but stupid as well. At a time when it is critical to win the hearts and minds of the Iraqi people, a few renegade corrections officers have endangered the lives of thousands of their fellow soldiers in the field. Marines around Fallujah take enormous risks precisely because they do not employ the tactics of the fedayeen, who fire from minarets and use civilians as human shields.

Some Roman general or another supposedly said: "Let them hate us as long as they fear us." I doubt whether that policy has ever worked. Carrying that policy into effect today, moreover, would require a level of violence that would violate every norm of just war and human rights. Yet, conduct that inspires hatred, without inspiring fear, arguably is even worse. Such conduct not only violates those norms, but also ultimately proves self-defeating because it perpetuates the cycle of violence (as illustrated by the long wars in Northern Ireland and Israel/Palestine). Put another way, even if one believed the ends justified the means, which I emphatically do not, that argument is especially inapt here where the immoral means seem unable to accomplish the immoral end.

On the other hand, Hanson appropriately reminds us that there is in fact a double standard at work here:

The Arab world - where the mass-murdering Osama bin Laden is often canonized - is shocked by a pyramid of nude bodies and faux-electric prods, but has so far expressed less collective outrage in its media when the charred corpses of four Americans were poked and dismembered by cheering crowds in Fallujah. The taped murder of Daniel Pearl or a video of the hooded Italian who had his brains blown out - this is the daily fare that emanates now from the television studios of the Middle East.

Finally, Hanson takes a shot at those who cannot put it in conext:

We who are appalled in our offices and newsrooms are not those who have had our faces blown off while delivering food in Humvees or are incinerated in SUVs full of medical supplies - with the full understanding that there will be plenty of Iraqis to materialize to hack away at what is left of our charred corpses. War is hell, and those who do not endure it are not entirely aware of the demons that are unleashed, and thus should hold their moral outrage until the full account of the incident is investigated and adjudicated.

One thinks of Henry V's decision to murder the prisoners at Agincourt. It is almost impossible today to judge Henry's decision because one cannot know the stresses battle imposed. To be sure, this does not excuse what happened (and I don't believe VDH intends it to do so). Instead, I suspect VDH intends to invoke the Christian balancing act of hating the sin while still loving the sinner.

Staying the Course

Being both an educator and a stay the course guy, I was very interested by this Pew polling data analysis:

While people with more education hold no different views from the rest of the nation regarding whether it was the right decision to take military action in Iraq in the first place, there is a significant educational gap over staying the course. College graduates overwhelmingly favor keeping troops in Iraq until a stable government is established there (by a 67% to 27% margin), and people who have had some college generally agree (57% vs. 35% who want to bring troops home). But those with no more than a high school diploma are divided on this question, with nearly half (49%) saying the U.S. should bring its troops home as soon as possible, and just 44% preferring to keep troops in Iraq.

Hmmm. So much for Gertrude Stein's claim that "education does not make very much difference."

The Guantanamo Hearing

Reading the accounts of the Supreme Court's oral argument yesterday on the Guantanamo prisoner appeal, I am struck yet again by the unweening arrogance of the US judiciary. Set aside the substantive merits of the case, of which I believe Justice Jackson's aphorism "the Constitution is not a suicide pact" more than adequately disposes (see also my friend and colleague Eugene Volokh's more substantive critique). Instead, consider how offended some members of the Court seemed to be by the notion that any aspect of American life might lie outside their reach. Breyer, for example, complained: "It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check."

Apparently only the Supreme Court is "free to do whatever they want ... without a check." If five of the nine unelected old men and women on that court agree, they can strike down any law or executive action. And our elected representatives have essentially no power to constrain them other than the impractical route of amending the Constitution. We have allowed the Supreme Court to tell our elected representatives that they cannot pass morals legislation, for example, while a Supreme Court majority is free to impose its moral judgments on all of us. It is nothing short of judicial tyrrany.

My bet, by the way, is that the Court will rule that US courts have jurisdiction. And then we'll get some left-liberal judge (probably on the 9th Circuit) deciding to let the terrorists go.

Iraq planning

There's a very disturbing report on the front page of today's WSJ on planning failures by the Bush administration with respect to Iraq. Mismanagement on a wide scale seems to have been the order of the day. Unfortunately, the Journal is available to subscribers only, because this report deserves wide attention. I haven't changed my mind that we need to stick it out or that Bush will do a better job than Kerry on the war, but I am convinced planning needs to be a damn sight better in Bush 2.1 than it has been in Bush 2.0 to date.

Bush and the Saudis

A letter to the editor in today's WSJ ($) makes a very good point:

15 of the 19 hijackers on 9/11 were Saudis, and Osama bin Laden is a Saudi. Islamic fundamentalism began in Wahabbist schools in Saudi Arabia. There is an absolute connection between Iran and Syria and terrorists. Each one of the above countries is run by tyrannical regimes. Each brutalizes its population. Yet I haven't heard any calls to attack any of them. In fact, Saudi Arabia is seen as an ally.

I've long thought Bush's Saudi ties and the kid glove treatment his administration seems to give the Saudis are among his major weaknesses. Interestingly, Kerry seems to see an opening here too:

John Kerry on Monday voiced unwavering support for special U.S. ties with Israel and vowed to end "sweetheart relationships" with Arab countries like Saudi Arabia that he said funded terror. ...

Offering a guarantee he would maintain the close U.S.-Israel relationship if he were elected president on Nov. 2, Kerry said: "I understand not just how we do that, but also how we end this sweetheart relationship with a bunch of Arab countries that still allow money to move to Hamas and Hezbollah and Al Aqsa Brigade."

I could see this becoming a substantial issue in the debate. And it should. A rethink of our relationship with the Saudis seems long overdue.

Gorelick Redux

Must read WSJ editorial today, available free at OpinionJournal.com, on 9/11 Commissioner Jamie Gorelick and her failure to resign.

Rabinowitz on the 9/11 Widows

The WSJ's Dorothy Rabinowitz has a longstanding track record of speaking uncomfortable and unpopular truths. If you haven't read her piece on the 9/11 widows, available free on Opinion Journal, you should.

The 9/11 Commission

Watching Ben Veniste in action left me with very little confidence in the 9/11 Commission. Jamie Gorelick's refusal to resign - or at least recuse herself - after the disclosure that she drafted one of the policies preventing intelligence agencies from communicating with one another leaves me with zero confidence in them. After all, as even left-liberalism's paper of record admits, Gorelick "has been especially aggressive in questioning Bush administration witnesses." One can but conclude that the Democrats on the commission are now using the process solely for partisan advantage and without regard for basic moral scruples. Or, as the New York Post put it:

The national 9/11 commission has been hijacked by political shills -- men and women eager to subordinate truth to partisan advantage; who hold a transitory victory on Election Day more dear than American victory in the war on terror.

Shrill? Yes. Breathless? Yes. Lacking nuance? Yes. True? I'm afraid I believe so. As Steven Taylor put it in more measured terms:

This memo is very much about the rules that bound the actions of those institutions and the culture of both pre-911. To pretend that the memo is just the Bush administration playing politics and therefore to ignore the significance of its contents, is to say that one really doesn't want to understand why 911 happened, and how to prevent such attacks in the future, but rather one simply hopes that the commission damages the Bush administration.

Bush's Speech on Iraq: Immediate Reaction

Before the Iraq war began, I was skeptical of Bush's policy, but once the decision was made to invade, I concluded that we simply could not be perceived as cutting and running. As I wrote back on December 14th of last year:

When I was in law school, we cut and ran from Lebanon. When I was still a relatively new law teacher, we cut and ran from Somalia. I have no doubt that this pattern of cutting and running emboldened al Qaeda. We simply cannot afford to cut and run from Iraq, lest our foes be emboldened to new and even more devestating attacks. Even if attacking Iraq was imprudent, once we went in I concluded we had to stay the course. There could be nothing - nada, zilch - less prudent than cutting and running. Having gone ahead with the war, our permanent interests now require that we win the peace.

So I wanted Bush's speech to make the case Larry Miller made in the Weekly Standard this week:

Say that the world is a very bad place and has been for a long time, and that we're going to stop it in its tracks and make it better because we have to, and because, as Tony Blair said when he spoke to Congress, "It's your destiny." ... And then win. Win in Iraq, and then look around for other threats like a silverback gorilla after slapping the head off of an upstart.

The speech and the Q&A; had moments in which Bush made such a case, but I must confess to be a bit disappointed. I wanted steely Churchillian resolve, but got resolve mixed with an awful lot of nation-building side issues. Again, I quote Larry Miller:

Yes, yes, Iraqi girls can be very empowered by seeing a female colonel running an outreach program, and we can all chip in for the posters that say "Take Your Daughters To Mosque Day," but in the meantime, would you please win.

I suspect Bush has the requisite resolve, but because we live in a democracy he has to make the case for resolve to the American people. He desperately needs a Churchillian or at least Reaganesque ability to communicate with the American people, and I just don't think this speech did it. One did not come away with the dominant impression being one of fire and brimstone, that we're going to kick butt and take names, that messing with America is a fatal mistake.

Larry Miller on Iraq

The world is in a very strange place when a humorist from LA is making more geopolitical sense than anybody in the Bush administration or the Democratic opposition:

I support the president in all of this, but what he should have done then, in my opinion, is what he can still do now. What I've been waiting for. What the whole country needs, for, against, and in between.

A speech. A big one. A grave one. Say that the world is a very bad place and has been for a long time, and that we're going to stop it in its tracks and make it better because we have to, and because, as Tony Blair said when he spoke to Congress, "It's your destiny."

Stand next to a map of Iraq, and another one of the world, and point out what's good and what's bad, what's been done and what's left. Say, "You may disagree, but here's where we are, and here's where we're going." ...

And then win. Win in Iraq, and then look around for other threats like a silverback gorilla after slapping the head off of an upstart. ...

Win. Stopping building schools. Win. There's plenty of time and need for hospitals, but first . . . Win. Yes, yes, Iraqi girls can be very empowered by seeing a female colonel running an outreach program, and we can all chip in for the posters that say "Take Your Daughters To Mosque Day," but in the meantime, would you please win.

Yep. As the say, go read the whole thing.

I Don't Know How This One Got By the Times' Censors

The LA Times (R) actually ran an op-ed today favorable towards the role President Bush's faith plays in his decisionmaking:

In many respects, questions about the role of faith in Bush's presidency are a replay of those raised during Ronald Reagan's administration, when the former president called the Soviet Union an "evil empire" and talked about a spiritual battle against communism. Critics then predicted a possible nuclear Armageddon caused by a president bent on fulfilling prophecy. In reality, what Reagan's faith brought him was a deeper understanding of the Cold War, that it was less about missiles and geopolitics than about core principles. His faith morally clarified the superpower conflict, and according to some dissidents behind the Iron Curtain, encouraged them to further resist the Soviet system.

Faith has played an equally important role in Bush's administration, morally clarifying for him the war on terrorism and encouraging patience in the light of tremendous pressure. But Bush's critics have it backward: It's not so much that Bush thinks God is on his side; rather, he wants to be on God's side and make the correct moral choices. He doesn't think God has given him a blank check; rather, to make the correct decisions, he believes he must study and embrace Judeo-Christian principles. ...

His friend Doug Wead, a former aide to George H.W. Bush, recounted for us a discussion he had with the current president a few years ago on the story of the good Samaritan. Wead was reminding Bush of the story about our moral obligation to help strangers in distress when the president, in typically blunt fashion, asked: What if we got there 20 minutes earlier, when the traveler to Jericho was being attacked. Don't we have an obligation to help him then too? Such thinking not only influenced his decision to liberate Iraq but also fueled his commitment to combat AIDS in Africa. ...

Bush read [Oswald] Chambers devotionals throughout 2003, and Chambers is hardly what you would call a hawk. "War is the most damnably bad thing," Chambers wrote. "Because God overrules a thing and brings good out of it does not mean that the thing itself is a good thing." Far from making Bush gung-ho, his Bible readings create an unusual cocktail of courage and patience. ...

Even those who don't share Bush's religious convictions should see them as a good thing. His faith compels him to wrestle with ethical questions that less religious men might simply ignore. And his strong faith offers us visible guideposts by which we can evaluate his performance as president. Find me a commander in chief who lacks core convictions rooted in something greater than himself, and you'll have a leader who lacks an identifiable moral compass and will, accordingly, be prone to drift off course.

Somebody clearly was asleep at the switch at the Times. I'm glad, however, as it restored a lot of my faith in Bush. I urge you to go read the whole thing, even at the cost of complying with the Times' intrusive registration requirements.

LA Times on the PDB

The Times' (R) reporting on the infamous PDB shows the usual Times bias. In a story whose main gist is that the PDB should have been viewed as a warning, and as damaging Rice's and Bush's credibility, complete with bullet points explaining why, we find this factual nugget buried deep within the story (after the turn):

Yet less than one-fifth of those polled by Newsweek said the Bush administration should be blamed for the attacks; almost one-fourth said the Clinton administration bore the responsibility, and the largest group — nearly 40% — said both were equally culpable.

We Get Mail re Chris Matthews and Condi

Reader John Brennan wrote:

NPR's morning edition did Matthews one better this morning. They played the quoted dialogue between Dr. Rice and Mr. Ben-Veniste. Without comment, however, they edited out the entire exchange from when Dr. Rice says "Now, the…" through Dr. Rice saying "You said, did it not warn of attacks." The edit was skillfully done. I had not idea that anything was omitted until I read the transcript on your blog. The only purpose the edit could have is to avoid letting the audience hear how Ben-Veniste got caught out trying to mislead, then silence Dr. Rice.

It' an old (and cheap) trick in litigation to ask a compound question, which is improper and to which an objection will be sustained. If defending counsel is asleep at the switch, the witness may not be quick enough to see both questions or will forget the first question by the time she finishes answering the second.

The idea is to make the first question the damaging one and the second question one which the witness is likely to know and answer in an affirmative way, either by saying yes or by providing or confirming the information. Witnesses will almost always answer the last question first because it is recent and because it is one they can answer affirmatively. Most witnesses will either forget or bobble the first and damaging question.

It's a no-lose question with no defense counsel to catch you it and no judge to admonish you (as in real adversarial processes). If the witness fails to answer the first question, you score it as a yes. (Headline: Rice confirms warning of attack!) If the witness tries to answer the second question after answering the first, you respond by cutting them off and pretending that it is they who are acting improperly by trying to say more.

No surprise to me that Mr. Ben-Veniste would do this. I began my litigation career clerking for the lawyers defending Bob Haldeman in the Watergate trial, where Ben-Veniste first came to national notice. He never missed a cheap shot or a sneer during that trial.

Boy these litigators are tricky!

More mail:

Another point that Matthews misrepresented is that she answered the "title" question first thing, without hesitation -- yet he says "The direct question – she didn’t want to give a direct answer." The first thing she did was give a direct answer.

Another reader spotted the same thing:

I was just as offended by the *second* brazen misrepresentation Matthews made in the passage you quoted: "she didn't want to give a direct answer." In fact, Rice *did* give a direct, immediate -- and apparently correct - answer to the question about the title *before* she began to answer Ben-Veniste's other question. There was no basis at all for Matthews to claim that Rice "didn't want to give a direct answer."

Chris Matthews Misrepresented Rice's Testimony

On Hardball, which I was just watching, Chris Matthews played this excerpt from Condoleezza Rice's testimony for the 4 9/11 widows he was interviewing:

BEN-VENISTE: Isn't it a fact, Dr. Rice, that the August 6th PDB warned against possible attacks in this country? And I ask you whether you recall the title of that PDB?

RICE: I believe the title was, "Bin Laden Determined to Attack Inside the United States." Now, the...

BEN-VENISTE: Thank you.

RICE: No, Mr. Ben-Veniste...

BEN-VENISTE: I will get into the...

RICE: I would like to finish my point here.

BEN-VENISTE: I didn't know there was a point.

RICE: Given that -- you asked me whether or not it warned of attacks.

BEN-VENISTE: I asked you what the title was.

RICE: You said, did it not warn of attacks. It did not warn of attacks inside the United States. It was historical information based on old reporting. There was no new threat information. And it did not, in fact, warn of any coming attacks inside the United States.

Then Matthews said this:

He didn’t say warn. He asked what the title was. The direct question – she didn’t want to give a direct answer. How did that hit you?

He did say warn! Here again is the question Ben-Veniste asked: "Isn't it a fact, Dr. Rice, that the August 6th PDB warned against possible attacks in this country?" Rice was perfectly correct that he had asked it and, of course, perfectly entitled to answer the question as asked. It's bad enough for a partisan thug like Ben-Veniste to misrepresent a question he just asked, but this was either the dumbest thing Chris Matthews ever said or the most brazenly partisan lie he's ever told. He had, after all, just played the tape of Ben-Veniste asking if the PDB "warned"!

Bush's Iraq Policy

If Bush is going to run mainly as a war president, it strikes me that he's getting into deep trouble when a conservative bastion like the WSJ's editorial page is slamming his Iraq policy as directionless:

Americans will support their President in war--far more than liberal elites appreciate. But they won't support a President who isn't fighting with enough force and the right strategy to prevail. Unlike Mr. Bush's determination to topple Saddam Hussein, the transition back to Iraqi rule has been marked in recent months by drift and indecision. Especially in the runup to the transfer of power on June 30, the worst Iraqis are rushing in to exploit this uncertainty. ...

We trust that Mr. Bush knows that his reaction to Fallujah and Mr. Sadr matters far more to his re-election prospects than does Richard Clarke's book tour. Americans realize that the current 20-20 Beltway hindsight over 9/11 is mostly political. But they also know that Iraq was Mr. Bush's undertaking, and they will hold him responsible for any failure of will.

Also for failures of common sense, planning, and honesty. Right now, feckless is the word that comes to mind when I consider the administration's Iraq.

Forgetting v. Forgiving

In light of my post the other day on the Battan Death March, I was struck by this post from Gail Heriot:

Americans really don’t remember. For good or ill (and I think it’s both), we’re a forgetful people. If there’s anybody in the entire country still stewing about something that occurred in 1759, they won’t admit it. That kind of memory isn't much admired. Remembering is for Europeans–Serbs and Croatians, Greeks and Turks, or English and Irish. Many of us are descended from people who came here precisely to get out from under long, bitter, and useless feuds.

It's a very thoughtful post and I urge you to go read the whole thing.

As Gail suggests, a national policy of forgetfulness has costs. The proper way of dealing with grudges is to forgive rather than to forget.

I'm reminded of this each time I attend Mass. As you doubtless know, the Islamic terrorists at work in Spain aren't just mad about Palestine or the US presence in Saudi Arabia. They're mad about the Moors having been driven out of Spain in 1492:

Their desire is to recover the "Ummah," or nation of Islam, that ruled the Iberian peninsula for almost eight centuries, until the last Muslim king was forced out of Andalucia in the conquest of Spain by Roman Catholic King Ferdinand and Queen Isabella in 1492. ... In the minds of Islamic militants, the loss of the Alhambra and the expulsion of the Moors from Spain 500 years ago is what Al Qaeda's leading ideologist, Ayman al Zawahri, called in a videotaped message "the tragedy of Al-Andalus" -- the Moorish name for Andalucia.

My parish, St. Victor, is named after the first African Pope. In his days, North Africa was a Christian heartland; home of such lights as St. Augustine. Yet, during the 7th Century AD, Muslim armies waged a war of aggression that rapidly gave them control of North Africa and provided a basepoint for their jumping off point against Spain. Even at their most tolerant, the Muslim rulers of North Africa required Christians to pay an extra tax; at their least tolerant, they turned lose the mobs, persecuted, and enslaved Christians. Eventually, they almost eradicated Christianity in North Africa, leaving behind minor and oft-persecuted remnants like the Copts.

By the "logic" of the terrorists in Spain, if Islam has a right to seek redress for the "tragedy of Al-Andalus," does not Christendom have an earlier and better right for redress for the tragedy of the Muslim conquest?

Perhaps it is a good thing that Americans don't remember these sort of things. We left behind the sort of internicine warfare that plagues places like Northern Ireland, the Balkans, and so on. 9-11 taught us, however, that we have enemies whose memories of long-lost causes still burns hot. We need to learn to achieve justice, to forgive, but then still remember. The Muslim conquest of North Africa is too old to be a valid subject for acts of justice, with too much back and forth since for the moral case to be clear. 9-11 isn't. We still await justice. I hope we can eventually forgive. But I also hope we never forget at least until that day when our enemies prove capable of forgetting their own centuries-old complaints, because until that day comes we need to be on our guard.

Update: James Joyner and Steve Strum continue the discussion, while Gail Heriot replies.

Mercenaries

Alex Tabarrok has all sorts of interesting data and links on private military firms (PMFs). Personally, my favorite PMF is still Falkenberg's Legion. I just wish Jerry Pournelle would get off his duff and write some more Falkenberg stories.

The SEC will be doing its part ...

... in the war on terror under legislation pushed through Congress by Frank Wolf (R-Va), which establishes an Office of Global Security Risk in the SEC charged with identifying all companies on U.S. exchanges operating in terrorist-sponsoring states designated by the State Department and ensuring that all companies traded on U.S. exchanges operating in terrorist states disclose such activities to investors. No word yet from the SEC on implementation. Candidly, I'm skeptical of these sort of rules: They add additional information for investors to slog through, thereby adding to the incentives for investors to be rationally apathetic. The benefits, in contrast, seem slight. Surely there are other government agencies tracking this sort of thing besides the SEC, which has quite a lot on its plate without becoming part of homeland security.

Tung Yin is fair and balanced ...

... on the subject of Richard Clarke. Really a must read post.

Still at war

As the 9/11 Commission grinds on with its increasingly partisan focus, here come some timely reminders that we should be thinking proactively rather than retroactively:

Khalid Shaikh Mohammed, al Qaeda's purported operations chief, has told U.S. interrogators that the group had been planning attacks on the Library Tower in Los Angeles and the Sears Tower in Chicago on the heels of the September 11, 2001, terror strikes. Those plans were aborted mainly because of the decisive U.S. response to the New York and Washington attacks, which disrupted the terrorist organization's plans so thoroughly that it could not proceed, according to transcripts of his conversations with interrogators.

Decisive action by the Bush administration may have spared Chicago and LA, but the threat remains very real:

An al Qaeda plot to blast London was dramatically foiled by police today. Seven hundred police swooped in a series of 6am raids in the capital and the Home Counties. They found half a tonne of fertiliser explosives - enough for a series of terror "spectaculars." The terrorist suspects arrested by police are believed to have chosen "soft targets" for bombings including pubs and clubs. One of the suspects being held had a job at Gatwick Airport, immediately raising concerns over airlines and passengers. A total of eight men - all of them British citizens of Pakistani descent, three of them teenagers - were arrested in the operation, with police from five forces searching a total of 24 addresses across London and the South-East.

And:

The Philippines says it has foiled a "Madrid-level" terror attack on shops and trains in the capital Manila by arresting four suspected Islamic militants and seizing a large amount of explosives.

As Jeff Jarvis observed: "This is war. It's not an encounter session. It's war."

David Frum's Reply to Clarke

Exactly right:

The things the administration didn’t say to make its case for Iraq; the things it isn’t saying to explain why it over-ruled Richard Clarke – these omissions have been and are damaging. The more fully the Bush administration lays out its case, the more convincing that case is.

This administration came into office to discover that al Qaeda had been allowed to grow into a full-blown menace. It lost six precious weeks to the Florida recount – and then weeks after Inauguration Day to the go-slow confirmation procedures of a 50-50 Senate. As late as the summer of 2001, pitifully few of Bush’s own people had taken their jobs at State, Defense, and the NSC. Then it was hit by 9/11. And now, now the same people who allowed al Qaeda to grow up, who delayed the staffing of the administration, who did nothing when it was their turn to act, who said nothing when they could have spoken in advance of the attack – these same people accuse George Bush of doing too little? There’s a long answer to give folks like that – and also a short one. And the short one is: How dare you?

Another item from the "Why doesn't this surprise me?" department

A team of French lawyers is offering to defend Saddam. Naturally. After all, it was the French who defended him in the Security Council for all those months before the war.

Clarke

Fred Kaplan says Richard Clarke is "too shrewd to write or say anything in public that might be decisively refuted." Then how does he explain this transcript of a background briefing given by Clarke in 2002? (As Kevin Drum observes, "there's not much question that the tone of this briefing sure doesn't sound much like the tone of the book.") And how would he respond to this damning op-ed? What it all comes down to is that Clarke's got an axe to grind and a book to flog, while everybody in both the Clinton and the Bush administration has asses to cover and partisan points to score. Mistakes were made and there is blame in plenty to go around, and nobody has the guts to stand up and say "look, I screwed up, but here's how I'm going to fix it." As Kevin Drum observed, that's going to happen just as soon as pigs fly.

The 9/11 Commission

The more I watch the 9/11 Commission in action, the clearer it becomes that the Commission is not about fact-finding, if it ever was. Instead, it has become a mere exercise in covering one's ass and scoring partisan points. The whole thing is a massive joke and ought to be shut down.

Gordon Smith on Entrepreneurship in Iraq

American entrepreneurs in Iraq have become targets for insurgents, but still the entrepreneurs show. At least we know this: being an entrepreneur in Iraq today is not more dangerous than being an opponent of Saddam before the war.

More tidbits and a link at Venturprenuer.

Speaking of our French Allies

In response to my post on the trans-atlantic rift, an alert reader sent me the link to this story:

The navies of China and France begin joint exercises today off the north Chinese coast in what Beijing says will be the "most comprehensive" military drills with a foreign power by a fleet under the command of the People's Liberation Army.

Although they are being conducted some distance from Taiwan, the exercises will take place just days before sensitive presidential elections on the island. China claims sovereignty over Taiwan.

< SARCASM >Yeah, that sounds like a good idea. It'll promote democracy and self-determination.< /SARCASM > (Update: Glenn Reynolds has more coverage. See also the Reuters story here.)

The Trans-Atlantic Rift

From Expatica-France comes this analysis of why the US-German rift over Iraq is healing faster than that between the US and France:

"The German side tried for political and economic reasons to improve ties with the United States, which was certainly a more deliberate choice than any French desire to do so," said Frank Umbach, of the German Council on Foreign Relations.

"It's also because America treats them differently. In Washington, they're still more irritated about France than about Germany."

Rightly or wrongly, many Americans perceived German opposition to the war as reflecting an understandable (and even desirable) post-World War II German pacifism and equally understandable (if not desirable) opportunistic posturing by German Chancellor Gerhard Schroeder during a tough election fight. In contrast, French opposition seemed to be rooted in institutionalized anti-Americanism. (Last December, liberal warhawk Roger Simon cuttingly opined: "the storied [French] anti-Americanism now seemed almost the pathetic gesture of a failed state.") Hence, we expected the rift with Gremany to be temporary, being based on reflecting short-term disagreements, while the rift with France may well be indefinite, being based on long-standing antipathy and, indeed, even long-term strategic competition. (As even liberal blogger Kevin Drum once observed, "France does indeed insist on playing the role of spoiler far, far too often.") [Ed.: Today's OTB traffic entry].

Why I Predict an October Surprise

I don't claim any special expertise in warblogging, but even I can read the tea leaves when they're this obvious. The Madrid bombing seemingly reflects both a reduction in al Qaeda's tactical abilities and an increase in its strategic sophistication. On the tactical front, the WSJ ($) reports:

[Matthew Levitt, a] former FBI terrorism analyst, says evidence suggests the Madrid bombings were carried out by operatives on the fringes, who operated without much central control. It is a pattern, he says, that fits many of the post-9/11 bombings that have been credited to al Qaeda. "It suggests that affiliated groups are taking center stage because we've done so much damage to the inner core," Mr. Levitt said. "It presents a very different kind of threat."... The attack on commuter trains ... represented a shift from high-value symbolic targets, such as New York's World Trade Center, to more mundane targets that are virtually impossible to defend but yield high casualties.

Yet, look at the strategic value of the attack. It changed the complexion of the Spanish election, bringing into office a party far less likely to support the US.

Al Qaeda's involvement in the Madrid attacks also would confirm fears among Western intelligence officials that the group's political sophistication has been growing. Speaking before the Madrid bombings, a senior German counterintelligence official said the first taste of this came last Nov. 20, when the British consulate and an office of a British bank were bombed in Istanbul. "The attack was a masterpiece of political timing," the official said, noting that it coincided with massive demonstrations in London, where President Bush was meeting British Prime Minister Tony Blair during a high profile three-day state visit. "Millions of people turned on their TV for news about Istanbul and were frozen to their screens as the networks toggled between the protests in London and the carnage in Turkey," said the official....

If this analysis is correct, and it strikes me as highly plausible, October could be a very dangerous month here in the States. (Update: Pejman Yousefzadeh has a very extensive roundup of blogosphere reactions, with commentary).

We're still at war

Jeff Jarvis writes:

Donald Rumseld is getting crap for having a piece of the debris from the 9/11 attack on the Pentagon in his office.

Well, I say he should keep it there. And he should give it to his successor, who should never forget whom we're fighting and what we're protecting.

And there's more. I suggest going over and reading the whole thing. BTW, I've added Jeff's BuzzMachine blog to my blogroll - well overdue.

Democracy for us but not for you

Our French "allies" have decided to oppose President Bush's initiative to promote democracy in the Middle East, claiming it would amount to "interference." Personally, after 9/11 and today's bombing in Madrid, among other things, I think a little interference might just be warranted. Apropos of which, Stephen Green asks: "Isn't it time we made that American sentiment 'Live free or die' into a godd*mn ultimatum?"

The Politics of the Bombing

Steven Taylor makes an important point (albeit one he candidly acknowledges risks being seen as insensitive):

It occurs to me that the administration is in something of a catch-22: they believe that we are at war against terrorism, but if there are no major attacks, citizens have to wonder if the war rhetoric isn’t just hyperbole. However, if attacks do take place, which confirm the idea that there is indeed an ongoing process of attack on the US and its allies, then does not a successful attack mean that the US and its allies have failed in the war?

To put it simply: no attacks, and people ask, what war? A successful attack and people will assert: we are losing the war!

People might also ask whether some of the troops tied down in Iraq couldn't be better used in Afghanistan tracking down bin Laden and the rest of the al Qaeda leadership. I was always taught to finish one job before starting another. Granted, law school taught me to multi-task, but it does seem like we let al Qaeda slip in the priority list while taking out Saddam.

WSJ on September 11th Families for Peaceful Tomorrows

The blogosphere has been all over this story for a couple of days (see, e.g., Instapundit's roundup post), but the WSJ weighed in today with a strong editorial on the links between September 11th Families for Peaceful Tomorrows, the group spearheading criticism of President Bush's use of 9/11 imagery, and various left-liberal organizations, including at least one funded in large part by Theresa Heinz Kerry. The editorial also offers up some crocodile tears for the press corp with respect to its failure to expose these ties:

What we have, instead, are politically motivated activists standing willingly as a front organization for the Democratic Party. They've traded on the press's reluctance to question their motives, hoping for a free run to impugn Mr. Bush every time he discusses terrorism from now until the election. Peaceful Tomorrows is hardly alone; scratch the surface and many of the other groups and individuals making a fuss have similar ties.

We sympathize just a little with the failure of the press corps to get to the bottom of this, given how difficult it has become to track groups like Peaceful Tomorrows. One of the entirely predictable consequences of the new campaign finance laws is that political money has diverted into myriad "non-profits" and other creatures of the tax-code, all claiming to be "nonpartisan" and therefore with little obligation to explain where they get their money.

Even though the Journal got beat to the story by the blogosphere and even the NY Post, the editorial is still worth reading - and its available free at Opinion Journal.

Annoy France. Vote Bush. II

When John Kerry announced the other day that certain unnamed foreign leaders are hoping he wins the Presidency, I speculated that our French "allies" likely were among those alleged leaders. I'm now convinced I was right. In today's WSJ ($), Le Monde editor Jean-Marie Colombani opines that "John Kerry is, a priori, perceived with so much sympathy" by the French and other old Europeans because Kerry will be a multilateralist.

Colombani wrote the post-9/11 Le Monde entitled "We Are All American." In his WSJ column, Colombani makes clear that the French (and, he claims, Europeans generally) will only remain "American" if Bush is defeated. If so, the price is too high.

It frequently strikes me that the French have never really recovered from the dream of world power inspired by Louis XIV and Napoleon. Although France has sunk into a quasi-socialist economic torpor and remains militarily significant only by virtue of having a few nukes (and the willingness to intervene unilaterally in former colonies whenever it feels like it ... so much for multilateralism), France still dreams of being the superpower it once was ... and never will be again. (I often suspect the French see the EU as a way of restoring the Napoleanic empire and wonder why other Europeans don't see that.) It obviously galls the French that the US wields the kind of global hegemony of which the French dreamt. Unable to compete, they seek to shackle the United States to multilateralism within a multi-polar world order. The problem I have with Kerry is that he seems willing to go along, despite occasional denials. (See Erik Erikson's telling critique of Kerry's foreign policy.)

Colombani says "if we do not do anything, "in the long run" we shall become strangers to one another." Good. Let the French sell us their wine and their cheese, but let us recognize the reality that they are strategic competitors rather than allies. In the meanwhile, lets really annoy them by reelecting Bush.

Update: Via Vodkapundit, I came across Charles Krauthammer's column on Colombani, which hits the ground running:

Look. I know it is shooting French in a barrel. But when yet another insufferable penseur -- first Chirac, then de Villepin, now the editor of Le Monde -- starts lecturing Americans on how they ought to conduct themselves in the world, the rules of decorum are suspended.

Then the gloves really come off. Worth reading even despite the Washington Post's intrusive registration requirement. (I would like to point out, however, that this post was put up three days before Krauthammer joined the fray!)

Must Read Lileks Column

James Lileks writes:

Let's just be blunt: The North Koreans would love to see John Kerry win the election. The mullahs of Iran would love it. The Syrian Ba'athists would sigh with relief. Every enemy of America would take great satisfaction if the electorate rejects the Bush doctrine and scuttles back to hide under the U.N. Security Council's table. It's a hard question, but the right one: Which candidate does our enemy want to lose? George W. Bush.

And some conservatives will be happy to help, it seems. ...

At least we'll have a clear choice in November. Bush is serious about the war. The Democrats are serious about the war against Bush.

You MUST go read the whole thing.

Bush's WMD Panel (II)

As I predicted the Democrats are criticizing the composition of President Bush's WMD panel. Or, more precisely, the Democrats' surrogates in the media are criticizing it. The LA Times "reports," for example:

The selections puzzled many in Washington. Some questioned why the administration picked so many members with seemingly limited experience in intelligence matters or background working in high-level national security positions.

"There are no former Cabinet members, no former senior ambassadors and no former" top military commanders, said Jeffrey Smith, former general counsel at the CIA. "In other words, nobody who has, on a day-to-day basis, made the kind of decisions in foreign policy that the president and his Cabinet must make."

Note that though "many" are puzzled and "some" are questioning, Times reporter Greg Miller managed to find only one to quote. Reporter Miller also fails to tell us that Smith was CIA general counsel during the Clinton administration.

In any case, let's look again at the composition of the WMD Panel:

Panel Member	Credentials
Chuck Robb	Ex-Marine officer. Long-time member of the Senate Foreign Relations, Intelligence, and Armed Services Committees.
Lloyd Cutler	Counsel to President Clinton and Counsel to President Carter. Special Counsel to the President on Ratification of the Salt II Treaty (1970-1980); President's Special Representative for Maritime Resource and Boundary Negotiations with Canada (1977-1979); and Senior Consultant, President's Commission on Strategic Forces (Scowcroft Commission, 1983-1984).
William Studeman	Admiral, USN. Director of Naval Intelligence (1985-88). Director National Security Agency (1988-92). Deputy Director, CIA 1991-95. [Ed.: "no former top military commanders," huh?]
Laurence Silberman	Ambassador to Yugoslavia (1975-77). [Ed.: "no former senior ambassadors," huh?] General Advisory Committee on Arms Control and Disarmament and the Department of Defense Policy Board (1981-85).
Patricia Wald	Judge, International Criminal Tribunal for the Former Yugoslavia.
John McCain	Naval aviator. Senate Armed Services Committee.

The panel is replete with people with experience at senior government levels in intelligence, the military, and international law. My complaint is not only that reporter Miller and counselor Smith misrepresented the facts. My complaint is that they insult our intelligence with reportage and quotations that are so easily checked and refuted.

Bush's WMD Panel

Given the composition of the WMD commission as named by President Bush, it will be difficult for the Democrats to blast the Commission as a Bush lapdog or pre-determined whitewash (which won't stop them from doing it, of course). The Democrats named - Chuck Robb, Lloyd Cutler, and Pat Wald - are all serious people. Wald is a particularly interesting choice. Her long experience on the DC Circuit Court of Appeals and the International Criminal Tribunal for the Former Yugoslavia gives her considerable expertise in assessing evidence and international law. Appointment of maverick GOP Senator John McCain was an interesting choice too. It's doubtful whether he's carrying a torch for George Bush, after all! Update: As I predicted, the Dems are blasting the panel. Refutation here.

Niall Ferguson on Politics in the American Empire

From the WSJ ($):

Many pundits and, I suspect, most voters would prefer this year's election to be about domestic bread-and-butter issues. But this is a typical symptom of American imperial denial -- to believe that you can invade and occupy a sovereign state one year and then campaign about Medicare the next. The reality is that this year's debate needs to be about Iraq -- not to mention Afghanistan. Like it or not, the candidates' plans for national security matter more than their plans for Social Security.

Ferguson then asks what lessons we should draw from the Vietnam experience for present day issues:

First, fighting the war in Vietnam was not a mistake. Abandoning it was the mistake. I have just returned from a short tour of that country, which allowed me to see firsthand what three decades of Communist rule have achieved there. The very best that can be said is that they achieved nothing. The worst that can be said is that by throwing in the towel in 1973, the U.S. condemned South Vietnam to 30 years of repression, corruption and poverty. And the best proof that these were truly "lost years" for the people of Vietnam are the current frantic efforts of the country's leaders to bring back capitalism. ... South Vietnam might be where South Korea is today if the U.S. had not quit.

In many ways, of course, the U.S. finds itself in a quite different predicament in Iraq today. It went to war in the belief that Saddam posed a threat not just to Iraqis but to Americans. In a matter of weeks, the enemy's conventional forces were smashed. Now U.S. forces control virtually the entire country. The levels of military commitment and of casualties are much lower than in Vietnam. Yet in one respect there is a similarity. If the U.S. withdraws prematurely from Iraq the chances that it will prosper as an economically liberal democracy are slim. It could become an Islamic republic. More likely, it could descend into civil war. In either case, it would take Iraqis a generation to recover, just as it has taken the people of Vietnam a generation to get over the miseries of Marxism-Leninism.

It cannot be said strongly enough: cutting and running is not an option.

The Chicago Trib Spring Offensive Kerfuffle

While I was out on sick leave, there was a blogosphere flurry over the Chicago Tribune's story reporting on a planned US spring offensive into Pakistan to clean out Al Qaeda. Dan Drezner tried to figure out whether the leak was intentional or unintentional or an "an unintentional intentional leak," an exercise that sent him reaching for an aspirin. Citizen Smash says the leak was either "either a disinformation campaign, or treason." Personally, this whole thing sounds like a Rumsfeld operation. Anyway, as to the question of whether the Tribune should have reported this story, let me offer a historical footnote. As the invaluable Wikipedia relates, the Tribune in 1942 betrayed national security by disclosing that US Navy experts had broken the Japanese naval code:

Public notice had actually been served that Japanese cryptography was inadequate by the Chicago Tribune, which published a series of stories just after Midway in 1942 directly claiming -- correctly, of course -- that the victory was due in large part to US breaks into Japanese crypto systems (in this case, the JN-25 cypher, though which system(s) had been broken was not mentioned). Fortunately, neither the Japanese nor anyone who might have told them, seem to have noticed either the Tribune or stories based on the Tribune account published in other US papers.

I doubt whether Al Qaeda will be quite so dense. Freedom of the press is a wonderful thing, but it's worth remembering that the Chicago Tribune has a history of abusing the privilege.

Kay's Report

The Democrat presidential candidates use David Kay's final report to lambaste the President:

"They ought to be held accountable for using the weapons of mass destruction argument," Kerry of Massachusetts said on CBS' "Face the Nation" program. "Dick Cheney and others in the administration misled the American people with respect to the true status of the weapons of mass destruction in Iraq." ... Asked if the administration claims were the result of bad intelligence or intentional deception, Kerry told "Fox News Sunday," "I don't know the answer to that, but we ought to know the answer to that in America."

It becomes obvious that Kerry is concerned only with partisan advantage, however, when one learns that:

[David Kay] told National Public Radio on Sunday he didn't think Bush owed any explanations. "I actually think the intelligence community owes the president, rather than the president owing the American people," Kay said. "It is not a political gotcha issue. It is a serious issue of how you could come to the conclusion that is not matched by the future."

I always thought Bush erred by making the WMD issue the centerpiece of the justification for taking Saddam out, but I agree with Kay that this is not an appropriate "political gotcha issue." Not that that will stop Kerry and his ilk.

The Price of Freedom

From Australia's The Age newspaper:

"We have always stood up for freedom, in our own country, and for other people." Any student of history knows that this is true. America saved the Western world from communism. America saved Australia and, for that matter, France from a system that would stop you from reading this newspaper. ... The price of freedom is high. You might think you would not sacrifice your life for it, but maybe you don't have to. After all, 20-year-old Americans are doing it for you, every day.

Wow.

Warblogging the SOTU Replay

As I watched the SOTU on CNBC, I was reading along with the White house transcript. I thought Bush did the best job he's ever done on explaining the rationale for the Iraq war:

I know that some people question if America is really in a war at all. They view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted and tried and convicted, and sent to prison. But the matter was not settled. The terrorists were still training and plotting in other nations, and drawing up more ambitious plans. After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States, and war is what they got. (Applause.)

Some in this chamber, and in our country, did not support the liberation of Iraq. Objections to war often come from principled motives. But let us be candid about the consequences of leaving Saddam Hussein in power. We're seeking all the facts. Already, the Kay Report identified dozens of weapons of mass destruction-related program activities and significant amounts of equipment that Iraq concealed from the United Nations. Had we failed to act, the dictatator's weapons of mass destruction programs would continue to this day. Had we failed to act, Security Council resolutions on Iraq would have been revealed as empty threats, weakening the United Nations and encouraging defiance by dictators around the world. Iraq's torture chambers would still be filled with victims, terrified and innocent. The killing fields of Iraq -- where hundreds of thousands of men and women and children vanished into the sands -- would still be known only to the killers. For all who love freedom and peace, the world without Saddam Hussein's regime is a better and safer place. (Applause.)

Great zinger of the French, delivered with that trademark smirk:

From the beginning, America has sought international support for our operations in Afghanistan and Iraq, and we have gained much support. There is a difference, however, between leading a coalition of many nations, and submitting to the objections of a few. America will never seek a permission slip to defend the security of our country. (Applause.)

I think Bush really believes this, which is one of the things I like best about him:

We also hear doubts that democracy is a realistic goal for the greater Middle East, where freedom is rare. Yet it is mistaken, and condescending, to assume that whole cultures and great religions are incompatible with liberty and self-government. I believe that God has planted in every human heart the desire to live in freedom. And even when that desire is crushed by tyranny for decades, it will rise again. (Applause.)

The end of the war section of the speech was a great closing line:

America is a nation with a mission, and that mission comes from our most basic beliefs. We have no desire to dominate, no ambitions of empire. Our aim is a democratic peace -- a peace founded upon the dignity and rights of every man and woman. America acts in this cause with friends and allies at our side, yet we understand our special calling: This great republic will lead the cause of freedom. (Applause.)

I've been an agnostic on the Iraq war, but I thought Bush made a strong defense of his policy tonight. Update: The economy part of the speech was really boring.

Robert Reich's Hardball Whopper

So I was peacefully watching Hardball when I heard Robert Reich claim that George Bush lied during the 2000 election because Bush never told the American people that he wanted regime change in Iraq: "Paul O'Neill said very, very clearly in not only the interviews but also in the book, that right from the beginning this administration wanted to get rid of Saddam Hussein. That is very different from the Clinton administration. ... But the most important thing is, remember this is a man, George W. Bush, who was elected by saying during the campaign, no intervention, no regime change." Wrong on both counts. From the Wake Forest debate:

BUSH: The coalition against Saddam has fallen apart or it’s unraveling, let’s put it that way. The sanctions are being violated. We don’t know whether he’s developing weapons of mass destruction. He better not be or there’s going to be a consequence, should I be the president.

Q: You could get him out of there?

BUSH: I’d like to, of course. But it’s going to be important to rebuild that coalition to keep the pressure on him.

So Bush told us in 2000 that he'd like to get Saddam out of Iraq. Doesn't mean Bush made the right decision, but it does mean Bush isn't the one who's lying.

Of course, when you go back to the 2000 debates, you also discover that regime change was a bipartisan goal. In the Vice Presidential debates, Senator Joe Lieberman said:

The fact is that we will not enjoy real stability in the Middle East until Saddam Hussein is gone. ... And that's why I was proud to co-sponsor the Iraq Liberation Act, with Senator Trent Lott; why I have kept in touch with the indigenous Iraqi opposition -- broad-based -- to Saddam Hussein. Vice President Gore met with them earlier this year. We are supporting them in their efforts, and we will continue to support them until the Iraqi people rise up and do what the people of Serbia have done in the last few days -- get rid of a despot. We will welcome you back into the family of nations where you belong.

Update: In dissing Paul O'Neill, Instapundit laid out more evidence that regime change is a longstanding bipartisan policy. Poliblogger Steven Taylor has even more pre-2000 hints from Bush about Saddam's future.

Terrorism, Domestic Intelligence, and Civil Rights

Excellent posts today by CE Petit and Kevin Drum. First, Petit on the need to go beyond a mere terrorism watch list:

The … culture of the FBI is simply not adaptable to preventive measures. The FBI is pretty good at dealing with matters after the fact—that is, catching criminals after the crimes have occurred. But its training, its leadership, its culture, and its capabilities are simply not appropriate to preventing serious actions, whether petty crimes or terrorism.

Unlike every other Western democracy, the US has no nonblack agency that is staffed with intelligence personnel that is also allowed (and indeed encouraged) to run domestic operations. (Aside: This is one of the most outlandish inventions of Fox's 24.) The problem is not the wall between criminal and counterintelligence investigations. The problem is that we don't have both an MI5 and an MI6. The CIA, the NSA, and the DIA are all chartered for foreign operations only. The wall is necessary precisely because when they do have information relevant to work inside the US, they have the mirror image of the FBI's problem: they have little or no training, culture, or capability to work within the civil rights accorded within the US.

To put it another way, the problem is not that the information didn't get to the right people; it's that we don't have the right people. Our structure omits an agency to handle domestic counterterrorism that does not report principally to a law enforcement agency, and then to the Attorney General. … The irony is that a separate agency would actually be easier to control and train in terms of respect for civil liberties—the fact that it might fill the same role as the Okhrana (the Czar's secret police) does not mean that it must behave the same way.

Then Drum on the nature of those liberties: "in most western democracies — including America — you still need to have probable cause and actual evidence in order to arrest and hold someone. Being on a government watch list doesn't count." Kevin then adds a clarifying postscript:

I'm obviously in favor of keeping track of suspected terrorist sympathizers, and the United States certainly has the right to refuse entry to anyone it wants. However, we don't have the right to demand that suspects be arrested just because they're on our list, and that goes double or triple if the list is as crappy as the WSJ article suggests.

I'd say "yep" to both gents.

What are They Thinking? The Terrorism Watch List(s)

After the 1993 World Trade Center bombing, we learned that the US did not maintain a single terrorism watch list. Instead, multiple agencies maintained multiple lists, which allowed terrorists to slip through the cracks between them. After 9/11, we learned that the US still did not have a single watch list. The WSJ ($) reports today that we still don’t have a unified, up-to-date watch list: "U.S. agencies are continuing to work from at least 12 different, sometimes incompatible, often uncoordinated and technologically archaic databases." As a result, the much bally-hooed canceling of those Air France flights turns out to have been more of an embarrassment than an intelligence triumph:

According to French officials, what they uncovered wasn't an international terrorist plot, but a huge case of mistaken identities: one name matching that of the leader of a Tunisian-based terror group turned out to be that of a child. Another "terrorist" was a Welsh insurance agent. Another was an elderly Chinese woman who once ran a restaurant in Paris. The remaining three were French citizens. Extensive interrogations in the presence of officials from the U.S. Transportation Security Administration revealed nothing sinister, French officials said. ...

[FBI agents] said that had a single database system been developed as envisioned, it might have provided critical pieces of intelligence and biographical information, and could have potentially spared the U.S. the embarrassment of confusing a terrorist leader with a small child.

I don't understand why this isn't a bigger story. Creating a single, up-to-date watch list seems like such a basic precaution. Why is it taking so long? According to the Journal, one is supposed to be in the works at the Terrorist Screening Center, but is still months or even years (!) away from completion:

According to FBI officials and congressional staff recently briefed ... on TSC operations, the center has yet to make any headway integrating all the lists. Problems ranged from the lack of a dedicated budget to ongoing failures to obtain the cooperation of several agencies to share their information with the center.

The blogosphere is sometimes credited with forcing the media to pay attention to stories like Trent Lott's comments about Strom Thurmond. If those of us in the blogosphere wanted to do something really useful, however, we would be demanding that the Administration and Congress get off their collective duffs and get this job done.

Rights of First Refusal in Corporate Law and International Relations

On Chris Matthew's MSNBC show, Wesley Clark said:

The real foundation for peace and stability in the world is the transatlantic alliance. And I would say to the Europeans, I pledge to you as the American president that we'll consult with you first. You get the right of first refusal on the security concerns that we have. We’ll bring you in.

As my friend and colleague Eugene Volokh pointed out (we always talk about each other that way), the highlighted statement is now roiling the blogosphere. For reasons to be discussed below, I can't bring myself to get very worked up about it, but I think I can shed some light on the relevant issues.

Rights of first refusal are very common in shareholder agreements in close corporations. Long time readers of this blog will not be surprised to learn that I wrote about rights of first refusal in my treatise Corporation Law and Economics (pages 812-816). Of course, long time readers also will not be surprised that I manged to work a plug for the book into this post. (Makes a great Christmas gift!) Anyway, I explained that:

The well drafted shareholders agreement always contains some sort of buyout provision. Such provisions can provide a contractual exit for close corporation shareholders, giving them liquidity, while also ensuring that the remaining shareholders have some control over who owns stock in the corporation. The critical "deal points" are three fold: What events trigger a buyout? Does the buyout create a put (giving the shareholder the right to force a sale), a call (giving the corporation the right to mandate a sale), or both? How are the shares to be valued?

A right of first refusal is a commonly used solution to these problems. Typically, the would be seller is obliged notify the corporation and/or his fellow shareholders of the terms of the proposed sale. Some rights of first refusal allow the corporation and/or its shareholders to purchase the would be seller's stock at book value. Book value is likely to be far less than fair market value, of course, given its focus on historical cost and disregard of going concern values. Because book value thus is almost certain to be much lower than the price an otherwise willing buyer likely would pay, such a provision deters outsiders from bidding. Why should an outsider invest time and effort in making a deal when the other shareholders can almost certainly under bid the outsider's offer? As a result, such provisions substantially limit shareholder liquidity. (Of course, as we saw in the preceding section, restrictions on liquidity are often desirable in small businesses where the identity of one's co venturers is important.)

A seemingly more transfer friendly pricing provision requires the corporation and/or other shareholders to purchase the would be seller's stock at the same price offered by the prospective purchaser. One key advantage of such a provision is that it, in effect, creates a market price for the shares, which allows one to avoid messy valuation questions. The price an outsider is willing to pay, however, likely will reflect both a marketability and minority discount. In addition, the outsider still must invest time and resources in deciding what to pay. This is a sunk cost. The right of first refusal means that the outsider likely won't get the shares, however, so the outsider will be unwilling to invest significant sunk costs in accurately pricing the shares. In turn, this means that the outsider will further discount the price for uncertainty. Accordingly, relying on a right of first refusal to create a "market" price is likely to result in a value much lower than the shares' fair value. Finally, such a provision does not fully resolve the liquidity problem, as a shareholder can only get out by finding a willing buyer.

(Readers thus will note that what Eugene said about the legal meaning of a right of first refusal was correct.) What have we learned so far? (1) Contrary to what Daniel Drezner's post initially seemed to suggest, a right of first refusal does not give the holder thereof a de jure veto over the transaction. It can, however, give the holder thereof a de facto veto, depending on the extent to which the right of first refusal reduces the liquidity of the asset subject to the right. (2) I think Eugene is correct in suggesting that applying the term "right of first refusal" to our security relationship with Europe makes no sense. If meant literally, Clark would seem to be saying that he would give the Europeans first crack at solving security problems just as the holder of right of first refusal to buy shares must be given first crack at buying them when a third party offer is made to the shareholder whose stock is subject to the right. Let's review: I own 100 shares of stock. I give Eugene a right of first refusal to buy my shares. If somebody comes along and offers to buy my shares, I have to go to Eugene - not some vaguely defined coalition of the willing, but Eugene himself and nobody else - and offer to let Eugene buy my stock on the terms defined by the provisions of the right of first refusal. If I give the right of first refusal to both the corporation and one or more shareholders, I have to extend the offer to each holder of the right. Granted, I don't need their permission, but I do have to let them decide whether they want to exercise the right. Only after they all turn me down can I sell to the third party bidder. Okay, so a right of first refusal is an option to purchase an asset. What's the asset here? Presumably a security problem. It's hard to see what else it could mean. What does it mean to purchase that asset? Presumably to deal with it by force. Again, it's hard to see what else it could plausibly mean. If "right of first refusal" is apt, it thus would mean that the US (the grantor of the right) becomes aware of the security threat. The US then goes to, say, the EU as holder of the right of first refusal. The US gives the EU an opportunity to deal with the problem itself. Only if the EU declines to do so would the US then go deal with the problem. We don't need their permission to act, but we do have to give them the first chance to act. I just don't see how that is apt. (3) I suspect what Clark really meant was that he would consult with our European allies in hopes that we and they would act together, which seems to be how Mark Kleiman and Kevin Drum interpret it. (For the reasons set forth above, however, I disagree with Kleiman to the extent that he defends Clark's use of the phrase "right of first refusal" as apt.) The "right of first refusal" language probably was a spur-of-the-moment attempt to say "And when I promise to consult with you, I really really mean it." That's a perfectly legitimate position to take, albeit one with which reasonable people can differ (hopefully reasonably). But it's not a right of first refusal. Hence, I find Clark's phrasing inapt, maybe even inept, but surely not unpatriotic. (4) I do think we could have a legitimate debate about whether such a commitment unduly reduces our national security, just as one can debate whether the grantor of a right of first refusal was wise to accept the reduction in liquidity imposed by such a right.

Let us suppose, however, that Clark really meant that we should give our European allies a right of first refusal. In that unlikely event, I would hope one of his advisors would draw Clark's attention to the my book's discussion of drafting rights of first refusal:

Identifying the transactions that trigger the right of first refusal is a critical drafting issue. Judge Richard Posner's decision in Frandsen v. Jensen-Sundquist Agency, Inc., nicely illustrates the key issues. The Jensen family owned 52 percent of the JensennSundquist Agency, Inc. (JSA), which in turn owned a majority of the shares of the First Bank of Grantsburg (FBG). Dennis Frandsen owned 8 percent of JSA. The parties' shareholders agreement contained a right of first refusal pursuant to which the Jensen family was obliged to offer their shares to Frandsen before selling to an outsider. If Frandsen exercised the right of first refusal, he was obliged to pay the same price as that offered by the prospective purchaser. If Frandsen did not exercise his right of first refusal, however, the Jensen family was obliged to offer to buy Frandsen's stock at that price. This is a so called "take me along" or "equal sharing" provision.

First Wisconsin Corp. wanted to buy FBG. If First Wisconsin had directly bought the FBG shares from JSA, no problems would have arisen. The right of first refusal only applied to a sale of the Jensen's family's JSA stock, not to a sale of FBG stock by JSA. For reasons that remain unclear, however, the parties initially structured as a merger in which all of the JSA shareholders would be bought out for cash. Frandsen objected, claiming the merger triggered the right of first refusal and that he was therefore entitled to purchase the Jensen family's JSA shares. The Jensen family and First Wisconsin thereupon restructured the deal so that First Wisconsin would buy the FBG stock directly from JSA. The issue presented was whether the court should construe the right of first refusal clause as being triggered by a merger in which all shareholders would participate. (Although the merger would give Frandsen cash for his shares, he apparently preferred owning FGB to being cashed out.) Judge Posner held that the right of first refusal was not triggered. The clause stated that if the Jensen family "at any time [should] offer to sell their stock" in JSA, they had to give Frandsen a right of first refusal. Because a merger has different legal implications than a sale of stock, and because an experienced businessman like Frandsen should have recognized that distinction and protected himself, the court declined to give the term "offer to sell" an expansive construction encompassing a merger. (Note the similarity to de facto merger doctrine, in that the court is elevating form over substance. ) Other courts have likewise tended to give rights of first refusal fairly narrow constructions, thereby putting a premium on careful ex ante negotiation and drafting.

Given the disparity in defense capabilities of Europe and the US, the "premium on careful ex ante negotiation and drafting" would seem especially high in this context.

Finally, if Clark is looking for a better contractual analogy, I could again direct him to my book (pages 814-15; notice how useful it's proving?):

An alternative to the right of first refusal as a solution to the problem of setting the price at which the buyout is to occur is illustrated by the agreement at issue in Helms v. Duckworth. The agreement included a buyout provision applicable when one of the two shareholders died. The buyout clause provided: "The price which the surviving stockholder shall pay for the stock of the deceased stockholder shall be at the rate of $10.00 per share; provided, however, that such sale and purchase price may, from time to time, be re determined and changed in the following manner: During the month of January in any year while this agreement remains in force, the parties of the first and second part shall have the right to increase or decrease the sale and purchase price by an instrument in writing...."

In other words, we promise to consult with you and negotiate in good faith. Which is probably all Clark meant. Evaluating whether that promise ought to be made is a task for another day.

Libya

I've been a skeptic of the Iraq war on prudential grounds, but in light of the developments with Libya I have to admit that the war's supporters were right to claim that attacking Iraq would deter other rogue states from pursuing WMDs. The timing is the tip-off:

Libya made its first overture to U.S. and British leaders in mid-March, officials said, on the eve of the military campaign against the government of Saddam Hussein. "I can't imagine that Iraq went unnoticed by the Libyan leadership," a senior U.S. official said.

It's not just the timing of the overture, however. I doubt whether it was an accident that the final agreement came just days after Saddam was captured. Granted, as Kevin Drum points out, Iran and Syria will be tougher nuts to crack, not to mention North Korea. If this begins the oft-predicted cascade effect in the region, however, the war may yet make us safer -- a lot safer.

Ninth Circuit: Guantanamo Prisoners May Get Counsel and Trials - Revised and Reposted

Justice Jackson famously remarked that the Constitution is not a suicide pact. Apparently 9th Circuit Judge Stephen Reinhardt disagrees,^* as he has decided that US courts have jurisdiction to hear the claims by enemy combatants being held offshore at the Guantanamo navy base that they are entitled by the US Constitution to counsel and trials. My first reaction? If that's true, why didn't we try German and Japanese POWs during WWII?

Admittedly, I haven't had a chance to read the opinion yet, but it's worth remembering that Reinhardt "is one of the most overturned judges in history." If you want a detailed analysis of the legal problem, however, check out the DC Circuit's opinion on the very same issue, which held that US courts have no jurisdiction. See also Tung Yin's careful comments. For a thoughtful analysis of the problem from the other side of the issue, see CE Petit's take.

Via Howard Bashman we learn that the 9th Circuit panel stayed issuance of its mandate pending the Supreme Court's decision in Al Odah v. US, which presents the same legal issue.

Note, by the way, this is not the Jose Padilla case, in which the decision that Padilla is entitled to a civilian trial seems far more defensible.^**

Update: After reading the opinion, I've concluded that Eugene Volokh is exactly right:

When the U.S. took German and Japanese soldiers prisoner during World War II, it imprisoned them without a fixed term (it did release them after the end of hostilities, but no-one knew how long this would be). It imprisoned them regardless of their formal citizenship. It did not give them access to civilian courts, or allow challenges in any civilian judicial forum (the judicial forum that Reinhardt seems to be calling for). Imagine what it would have been like if the government had to defend hundreds of thousands of habeas cases brought by enemy soldiers. Giving such rights to enemy soldiers would simply give them an extra weapon they could have used to fight us. That's no way to effectively wage war.

The ability to detain enemy soldiers, in a military system with no civilian court review -- the ability that Judge Reinhardt is condemning -- is a basic, traditional, and necessary prerogative that any nation that's fighting a war must have. It can certainly be abused, as the other military prerogatives (say, of killing enemy soldiers in the field, or dropping bombs on enemy targets) can be abused. But that's no reason to shift this military matter into civilian courts.

UPDATE: UNC law brof and blawgger Eric Muller has a long post disputing the derision with which the Padilla and Gherebi decisions were received in the blogosphere. He's also got a link to his 1999 review of Chief Justice Rehnquist's book on civil liberties in wartime. Both well worth checking out. I find his analogy to Korematsu far more persuasive with respect to Padilla than Gherebi. It's one thing to indefinitely hold a US citizen who is taken into custody on US soil and held in a jail on US sil. It's something quite different to hold offshore foreign nationals captured in a war zone. For me, only the former looks remotely like the Japanese internment case.

^* Okay, I'll admit that that crack strayed a bit far into hyperbole. I have a hard time restraining myself when it comes to Reinhardt, who has been aptly described as "a gasbag whose posturing hurts his cause far more than it helps it." Unlike some of us other old gasbags, Reinhardt's posturing actually matters in the real world.

^** The good thing about all this is that I beat both Volokh and Reynolds to the blog punch - posted at 1:22 PM PST.

Cardinal Martino on Saddam

Drudge has flagged an article in which Cardinal Martino comes off looking like an idiot:

"I felt pity to see this man destroyed, (the military) looking at his teeth as if he were a cow. They could have spared us these pictures," he said.

"Seeing him like this, a man in his tragedy, despite all the heavy blame he bears, I had a sense of compassion for him," he said in answer to questions about Saddam's arrest.

Even with Cardinal's qualifier that Saddam bears "heavy blame," this is still pretty appalling. Despite Christ's teaching that we should love our enemies, it's hard for me to feel "pity" and "compassion" for a mass murderer just because he got his teeth checked on TV.

Mark Shea takes a moderate approach to criticizing the Cardinal:

I think Martino's remarks are, if quoted accurately, inept since they give the impression that poor Saddam is regarded by Martino as a bigger victim than his victims. However, I doubt that Martino thinks this and I think his "heavy responsibility" remark is intended to convey that. I do not, however, think that these remarks constitute some sort of proof that "Christ is dead in the Vatican" a la Lauryn Hill's grandstanding. And spoken a few weeks hence, I such remarks would be mostly unremarkable since they are largely reminders that even this despicable man is made in the image of God and so forth.

As I reflect on it, I guess I wonder what Martino would be expected to say instead? In the typically measured cadences of a diplomat, he hailed the arrest as a "major step". He noted the obvious fact that Saddam bears a heavy responsibility (translation: "Whew, they caught this murderer. That's a good thing."). But he also sounded a note of caution against thinking this is a panacea and (by far most unpopular with us Americans) he pled for the human dignity of man nobody much feels like according human dignity to. That is, more or less, the Church's job, after all. So as irritating as it sounds, I think he was doing his job. I think he did his job rather ineptly, but I think he was trying to do it.

Fair enough. Yet remember Fouche's line - it was worse than a crime, it was a blunder. The Cardinal's remarks strike me as not just inept, but imprudent. They expose the Church to ridicule. They also undermine the Church's legitimate message. It is hard for middle-of-the-roaders like me, let alone neocons, to take seriously the Church's peace and justice message when it is advanced by people with views like those of Cardinal Martino. Yet, as Mark observes, the Church has important things to say about peace and justice in the Middle East. The furor over foolish remarks like these will lessen the likelihood that American leaders and people will be willing to listen. When the Church speaks out against executing Saddam, as it almost certainly will, for example, some of those who might have listened may be inclined to dismiss those arguments because the Church is perceived as thinking that he shouldn't even have had his teeth checked on TV.

It's surprising a supposedly seasoned diplomat would make such a blunder, moreover, which only encourage those conspiracy theorists who think the Vatican has some secret Middle East agenda. Martino is a heavyweight in the Vatican diplomatic service. A member of the diplomatic corp since 1962. Sixteen years as the Vatican's representative to the UN. And so on. Would such a seasoned diplomat really make such remarks out of ineptitude? I think so. We all have off days. But a top diplomat for the Vatican can't afford bad days. There are lots of nuts out there who believe all sorts of crazy conspiracy theories about the Vatican (even bestselling books like The Da Vinci Code). They won't think these remarks are inept. They will think they are deliberate, presumably as part of some secret Vatican plot. Cardinal Martino needed to bring his A game - and even on the most charitable interpretation of his remarks, I'd say he brought a D- game.

UPDATE: Robert Tagroda offers up some additional reasons to think the Cardinal was imprudent:

The Cardinal suggests that real compassionate treatment would have precluded images of the examination, or at least images capturing Saddam's haggardly appearance. But he fails to consider the alternative. If the coalition had announced the capture without accompanying pictures, Iraqis (as well as others throughout the Arab world) would have remained suspicious, undermining their collaboration with us. In turn, such a weakened relationship could have eventually led to resistance and perhaps bolstered the insurgency. How compassionate would we have been to pave the road to increased violence?

Relatedly, how compassionate would we have been to allow Iraqis to continue fearing the return of their tormentor? In his haste to express sympathy for Saddam, the Cardinal ignores the victims -- the very people who need and deserve Catholic support. Practically speaking, there would have been no other way to reassure them of their safety besides allowing them to see the capture for themselves.

Yep. It's one of those "I wish I had said it that way" posts. More here.

UPDATE on Kleiman: If you came here via Mark Kleiman's post, I'm glad you will have the opportunity to decide for yourself whether he made a "fair and balanced" presentation of my views. After an initial exchange of emails, I sent Kleiman the following email to explain why I had taken offense, to which he has not replied:

The passage to which I took offense was this one:

Not being enough of a Christian himself to want to love his enemies, Bainbridge doubts that the Cardinal is actually a Christian, and assumes that when Martino says he has compassion for Saddam Hussein despite his crimes, Martino actually means that he doesn't really think Saddam Hussein a criminal. Disbelieving that Martino is capable of loving his enemies, Bainbridge interprets Martino's remark as implying that Martino counts Saddam Hussein among his friends. Since (in non-Christian, worldly reckoning) the friend of my enemy is my enemy, that makes the Cardinal the Professor's enemy, as the Professor sees it.

Here's why I took offense. (1) I think you put words into my mouth that I would not have spoken. I do try to love my enemies. But I do not understand that command to encompass feeling sorry for a mass murder who got his teeth checked on TV. I may be wrong in my interpretation of the command, but that doesn't mean I don't "want to love my enemies."

(2) I do not assume "Martino actually means that he doesn't really think Saddam Hussein a criminal." I do think Martino is reflexively anti-American, but I assume Martino knows Saddam is a bad guy.

(3) I did not mean to suggest (and, frankly, don't think I did imply) that "Martino counts Saddam Hussein among his friends." I am perfectly prepared to accept that Martino thinks he was acting as one of Christ's disciples. The principal burden of my criticism, however, is that Martino forgot that Christ gave us more commands than just the one about loving your enemies. When Christ sent out his disciples, Matthew 10:16 tells us that he instructed them: "I send you forth as sheep in the midst of wolves: be ye therefore wise as serpents, and harmless as doves." Martino may have gotten the dove part right, but what about the serpent part? Was it wise to expose the Church to ridicule? Was it wise to undermine the Church's legitimate peace and justice message - including the likely eventual call for Saddam to be spared the death penalty - by publicly speaking out about such a trivial matter? Was it wise not to spend more than a single clause reflecting on Saddam's victims? I think not - and that was the intended thrust of my comments.

As they say, decide for yourself who's right. As for me, since his office is only about two football fields away from mine, I think I'll wander over one of these days and see if we can't bury the hatchet.

Prudence v. Just War, and Iraq

In commenting on my essay on the prudential aspects of the Iraq war, Mark Shea reminds us that prudential considerations are only part of the broader question of whether the war was a just one. Shea's running commentary on the Iraq war unfortunately all too often is overlooked by the mainstream blogosphere, but he has done all of us - Catholic or not - a service in keeping these issues on the radar screen despite considerable criticism.

On the just war issue, however, I actually think Bush was on fairly solid ground despite John Paul II's opposition. For a highly relevant treatment of Catholic just war doctrine, see George Weigel's Moral Clarity in a Time of War, which I found quite persuasive. Also highy important in persuading me that a war to overthrow Saddam satisfied the just war criteria were Robert P. George and Michael Novak. All of which might help explain why I thought it better to focus on purely prudential considerations.

Prudence in Iraq: Then and Now

Saddam has been captured, which is an unqualified good thing. I hadn't started blogging when the war began (or ended, for that matter). Since I started blogging a few months ago, I have occasionally acknowledged having reservations about the decision for war. Saddam's capture seems like an appropriate moment to reflect back on those reservations and look forward to on what our policy should be now.

When it comes to foreign affairs policy, I stand with conservative icon Russell Kirk who famously argued that:

A soundly conservative foreign policy, in the age which is dawning, should be neither 'interventionist' nor 'isolationist': it should be prudent.^*

Kirk's emphasis on prudence, of course, was based on his profound admiration for Edmund Burke, who echoed Plato in his assertion that prudence was the statesman's chief virtue. The prudent statesman is hesitant to pursue actions that may give rise to new and unforeseen abuses worse than the evil to be cured.

My concerns and reservations with respect to President Bush's Iraq policy - and my hesitation to endorse it - thus were based not on blanket opposition to war or even pre-emptive war, but rather on whether it was prudent. You all know the arguments by now, so I'm going to go through them pretty rapidly just to put my take on the record: If the rationale for war was WMD, why single Iraq out from Iran, North Korea, Pakistan (about which I actually worry most), and other states working on WMD? If the rationale was creating circumstances in which we could pull out of Saudi Arabia, why couldn't we have shifted operations to Qatar without attacking Iraq? If the rationale was the Saddam is a bad guy, was he really worse than the bad guys in places like Rwanda?

What about the unintended consequences? Could our downsized armed forces sustain the burden? The potential impact on the Reserves and Guard, which provide most military police and civil affairs troops was especially worrisome. This concern has been borne out to a considerable extent. Likewise, active divisions rotating out of Iraq are being allowed to fall below combat readiness levels. I grew up in an Army family during Viet Nam and the hollow Army era that followed, when my father's colleagues used to worry that the Army was in no shape to deal with minor emergencies, let alone Soviet divisions coming through the Fulda Gap. I worry we are heading back in that direction, while we face potential flashpoints in the Korean Peninsula and the Taiwan Straits.

A prudent foreign policy is one based squarely on American interests. Like Palmerston's Great Britain, America should have no permanent alliances, only permanent interests. I don't think Bush ever did a particularly good job of why overthrowing Saddam was consistent with those permanent interests. Ironically, I thought Tony Blair's speech to Congress came closest to doing so. If I had been in the Senate (god forbid), I still don't how I would have voted. I would have needed more persuading that Iraq was a clear and present danger to permanent US interests.

All this is water under the bridge, however. The question now is what to do next. My take on that question is informed by my experience growing up in that Army family. I saw the damage our cut and run strategy for getting out of Viet Nam did to Army morale and prestige, to the tone of our national politics, and our nation's standing in the world. When I was in law school, we cut and ran from Lebanon. When I was still a relatively new law teacher, we cut and ran from Somalia. I have no doubt that this pattern of cutting and running emboldened al Qaeda. We simply cannot afford to cut and run from Iraq, lest our foes be emboldened to new and even more devestating attacks. Even if attacking Iraq was imprudent, once we went in I concluded we had to stay the course. There could be nothing - nada, zilch - less prudent than cutting and running. Having gone ahead with the war, our permanent interests now require that we win the peace.

Has the Bush administration's post-war policy been a prudent one? As someone who's written a number of law review articles on privatization of state-owned enterprises, I found the administration's privatization policies have been misguided and likely to result in renationalization by a future Iraqi government. Newt Gingrich famously criticized the administration "for not quickly establishing some sort of Iraqi government, however imperfect." Arch-neocon William Kristol properly faulted the administration for making a tactical error in the timing of its announcement that France, Germany, and Russia would not be allowed to bid for Iraqi reconstruction projects. Finally, I thought Max Boot got it exactly right in his LA Times op-ed today:

Dick Cheney, Colin Powell, Donald Rumsfeld, Condoleezza Rice [have] been performing more like a squad of out-of-shape weekend players than a lineup of NBA superstars. Their missteps have been particularly glaring in the case of Iraq, and none more so than the decision last week to publicly release a memorandum signed by Deputy Defense Secretary Paul Wolfowitz specifying which countries are eligible for reconstruction work in Iraq. ...

What makes this memo truly boneheaded is that it was released the very day that President Bush was dialing the leaders of — you guessed it — Russia, France and Germany to ask them to grant Iraq billions of dollars in debt relief. Those must have been fun and productive conversations for the president.

I understand and sympathize with the impulse behind the memo: a desire to reward friends and punish enemies. But there are much cannier ways of doing so without any of the blowback that this overly blunt document has aroused.

... Watching one blunder after another, I can't help but wonder: Can't anybody here play this game?

Yep. As they say, go read the whole thing.

As I sort all this out, I have a lot of prudential reservations about what's going on in Iraq. Yet, even so, I saw a key sign for hope in Bush's remarks on Saddam's capture:

We've come to this moment through patience and resolve and focused action. And that is our strategy moving forward. The war on terror is a different kind of war, waged capture by capture, cell by cell, and victory by victory. Our security is assured by our perseverance and by our sure belief in the success of liberty. And the United States of America will not relent until this war is won.

Those are not the words of a man who is planning on cutting and running. Because I am firmly convinced that cutting and running would be the ultimate imprudent decision, I find these remarks tremendously reassuring.

^* I don't mean to endorse everything Kirk said in that speech. I favored the first Persian Gulf War, which Kirk opposed, for example, because I thought Saddam's invasion of Kuwait threatened the US' permanent hegemonic interests. I also disagree with Kirk's opposition to the neoconservative goal of exporting democracy and democratic capitalism. But those are topics for another day.

NRO Corner on Saddam

Lots of snarky posts at NRO's Corner about the (equally depressed) reaction among the anti-war left and the media to the news od Saddam's capture. Nothing yet about the paleos, but Frum will probably take care of that eventually.

They Caught Saddam

Good news - maybe this will help stabilize the situation. I wonder how they're sure it's not one of the doubles - haven't heard yet. If they really got Saddam though, everyone - whatever their views of the war - should be pleased that this bloodthirsty thug has finally been brought to bay.

UPDATE: Just heard on FOX that the Coalition used DNA tests to confirm they have in fact caught Saddam.

Posner and Yoo on the Patriot Act

U Chicago law profs Eric Posner and John Yoo offer some common sense on the Patriot Act:

Some think that even a small restriction of civil liberties can never be justified. These people think that, as a mark of our commitment to freedom, courts should not allow the government to invade our civil liberties even during emergencies. The truth is the opposite. Civil liberties throughout our history have always expanded in peacetime and contracted during emergencies. During the Civil War, the two world wars, and the Cold War, Congress and the president restricted civil liberties, and courts deferred; during peacetime, civil liberties expanded. ...

What of the charge that the administration is using public fear to consolidate political power? History shows that new security policies usually last only as long as the war or emergency. The president and Congress usually voluntarily give up their emergency powers; when they do not, courts step in. Despite a succession of wars and emergencies since the Civil War, civil liberties in our country have expanded steadily.

President Roosevelt said at the beginning of the Great Depression that the only thing we need to fear is fear itself. But he later realized that the absence of fear could be just as dangerous, because it prevented the United States from preparing for the coming war. It took Pearl Harbor to shatter the complacency of the American public. We can only hope the absence of an al Qaeda attack on American soil during the last two years will not lull us back into our pre-Sept. 11 stupor.

Perhaps they're too glib. The critics of the Patriot Act and related legislation have some valid points, such as CE Petit's recent criticism of the Protect Act, but amidst all the hysteria of late Posner and Yoo's analysis is a very timely corrective.

The Mises Bloggers are Stark Raving Nuts

In discussing Arnold Kling's argument that those of us who lean libertarian should hold our noses and vote for Bush in 2004, Karen de Coster opines:

I'll never understand the leaners and their support of hegemony, war, and false phraseology such as the "war on terrorism." That's the stuff that separates the wheat from the chaff, and ultimately, freedom from chains.

I'll concede that I'm still not sure the Iraq War was a good idea, but how can you call the war on terror "false phraseology"? Did she sleep through 9/11? Back in college I had a poli sci prof whose politics were straight out of the Scoop Jackson Democrat school. He always said that US politics were a circle rather than a spectrum. If you went far enough to the right, you ended up being a lefty. The Rothbard/Rockwell crew at the Mises Blog stand as proof he was right. I have a very hard time separating them from the nuts at ANSWER.

UPDATE: Followup posts responding to reader emails and other bloggers are here and here.

Where Should Osama be Tried?

Hugh Hewitt is repeatedly blasting Howard Dean for Dean's comments on whether OBL should be tried in the US or at the "World Court" (ICJ or ICC?) - here, here, here, here, and here. And, to top it off, his latest Weekly Standard column is up on the same topic. Whew. Hugh's a little worked up, but I don't blame him a bit.

I love tabular fisking

Robert Tagorda uses the NY Times (of all things) to fisk an LA Times story on Iraqi reconstruction and, moreover, does it in tabular form. (Actually, I guess it's technically not a fisking since Tagorda does acknowledge "It's hard to tell exactly who's right," but he seems to lean towards the NYT version.)

Bush in Iraq

I've been quite critical of President Bush lately on domestic policy issues. It's awfully hard for me to stay mad at him though when he goes to Iraq and says things like this:

Those who attack our coalition forces and kill innocent Iraqis are testing our will. They hope we will run. We did not charge hundreds of miles into the heart of Iraq, pay a bitter cost in casualties, defeat a brutal dictator and liberate 25 million people only to retreat before a band of thugs and assassins.

AP has the whole speech (link via Bros. Judd). Go read it.

Rumsfeld Brings Kaizen to the DoD

In reading Donald Rumsfeld's op-ed A 21st-Century DoD in today's WSJ (sub. req'd), I concluded that Rumsfeld's vision is informed more by management theory than military science:

Today, President Bush will sign into law landmark legislation that will help bring the Defense Department out of the industrial age, and into the information age. ...

[The bill] will provide civilian managers in the department with 21st-century management tools. ...

This legislation is an important step forward on the road to transforming the department. ... But this is only a step. Transforming is not an event. There is no moment at which the DoD moves from being untransformed to being "transformed." We will need to be continuously looking for ways to improve both the military and civilian sides of the department.

In business school-speak, the 21st century management tool Rumsfeld describes in the highlighted passages is known as "continuous improvement," the best known example of which is Toyota's famed kaizen process. Continuous improvement is based on the theories espoused by early 20th century theorist W. Edward Deming (so much for "21st century tools"!), who stressed the need for a constant cycle of research, design, production, and marketing, with continuous interaction among each function, so as to improve quality and customer satisfaction.

As someone for whom corporate governance is my vocation and military history a strong avocational interest, I am deeply skeptical of bringing business school management theories to bear on national security (see, e.g., the troubles Robert McNamara's "Whiz Kids" got us into). But I am especially skeptical about continuous improvement - Kaizening - of the military side.

In my article Privately Ordered Participatory Management: An Organizational Failures Analysis, which critiques kaizening, TQM, and other types of employee involvement, I quoted a worker at NUMMI (the Toyota-GM joint venture), who said:“Kaizening is supposed to be creative, but I mean how many times can you sit there and Kaizen a job after you’ve done it for four and one-half years? ... [J]ust keep me in a job and I’ll do it the way you want me to do it.” Hence, as I've explained in this space before, while kaizening works well as an engineering process, it's not at all clear that it makes an effective human resources tool (at least on the US).

The NUMMI worker quoted in the preceding paragraph is expressing an unconscious desire for formalization of her job—i.e., the creation of stable written rules, procedures, and instructions. For many workers, formalization is attractive because it reduces role conflicts and ambiguity, which increases work satisfaction and reduces feelings of alienation and stress.

Workers with a taste for formalization gravitate towards hierarchical workplaces. I documented this tendency in my article Corporate Decisionmaking and the Moral Rights of Employees: Participatory Management and Natural Law, where I explained that:

A recent study of transportation firms found that long-term use of employee involvement initiatives increased stress and decreased employee fulfillment—exactly contrary to the encyclicals’ expectations. A study of “empowered” employees versus a control group of unempowered employees within a single insurance company found no statistical difference between the two groups on such productivity-related issues as motivation or even on some job satisfaction measurements. Only about half of the participants in [one] case study were willing to change jobs in order to get more participation and that rate declined rapidly if doing so would require longer hours or lower pay. In unionized plants, rank and file workers have often resisted collective bargaining agreements that included employee involvement. In firms adopting self-directed work teams, ten to twenty percent of employees will resist the change because they prefer a mundane job to the greater responsibility and higher expectations associated with team membership. Other studies have found even higher rates of resistance: Participation rates in voluntary participatory management programs range from a low of 33% to a high of 68% of the eligible workforce. Conversely, a study of nonparticipating employees found interest in volunteering for employee involvement programs ranged from a low of 15% to a high of 63%. Anecdotal evidence suggests that firms using participatory management techniques are expending considerable effort in selecting employees who are psychologically equipped to work under those conditions, which is precisely what one would expect if some workers are not temperamentally suited for participatory workplaces. The existence of differing tastes among workers is similarly suggested by evidence that workforce demographics are correlated with the effectiveness of participatory management.

Why do such workers prefer hierarchy? Some are simply being economically rational. Behavioral patterns that are learned over many years, and reinforced by past rewards, are exceedingly difficult to change. As such, many firms will experience a path dependent resistance to participatory management. Introduction of participatory management within a firm typically entails substantial change, which will threaten vested interests in the workforce. Self-directed work teams threaten the seniority—and even the jobs—of foremen and other supervisory employees. Surviving supervisors are thrust into new positions as “team consultants” rather than bosses, with new and demanding responsibilities. Gain-sharing, pay for skills, and team-based compensation all threaten traditional seniority-based compensation. Training may be resisted by some workers: the old dogs who don’t want to learn new tricks. The job rotation and stress on “continuous improvement” characteristic of self-directed work teams will threaten those workers who prefer a more mundane set of job responsibilities.

How does all this relate to Rumsfeld? Could there be a more hierarchical or formalized workplace than the military? My experience growing up as an Army brat exposed me to a constant stream of formalized rules and regulations. I doubt it has changed all that much.

As we have seen, workers with a taste for formalization and hierarchy do not respond well to the demands of continuous improvement. Instead, workplaces dominated by such cultures tend to respond better to the management equivalents of Stephen Jay Gould's theory of punctuated equilibrium - such as management by exception. Under such approaches, periodic reviews are undertaken when circumstances have changed dramatically. These reviews result in adoption of new sets of rules. The review is then followed by a period of stability in which the rules are, at most, tweaked ever so slightly. Instead of continuous improvement, we see episodic improvement, which is less threatening to workers with a strong taste for fomalization and hierarchy.

I don't doubt that the end of the Cold War and 9/11 ushered in the need for a periodic review of our nation's military forces and strategy. I suspect we need an expeditionary force of the sort Max Boot so well described in The Savage Wars of Peace. I just doubt that the military will do well adjusting to Rumsfeld's demand for continuous improvement. Indeed, the many well-publicized examples of conflict between Rumsfeld and the brass look to me quite a lot like the sorts of conflicts I described in the excerpt above.

One solution is to let Rumsfeld just blow the place up and start over from scratch. But a good manager doesn't do that. A good manager manages to his/her people, not to the latest business school theory. Understanding your workers' tastes is the essential first step in making decisions about how workplaces are structured. I hope Rumsfeld has done that, but somehow I doubt it.

UPDATE: CE Petit who is both a really smart business (copyright) lawyer and former USAF officer has an excellent follow-up post in which he describes some of the management theories to which he was subjected during his military career and ponders about Rumsfeld's possible motivations.

Safire on Bush's Iraq Policy

Speaking of doubts about President Bush, William Safire's NYT column (reg. req'd) is essential reading for those quasi-paleoconservatives^* like me who are having doubts about the Iraq policy:

We thought we won the first Iraq war in 100 hours, but lost the peace to Saddam and his Baathist followers. We thought we won the second Iraq war decisively in one week, but Saddam's murdering class and his imported terrorists chose to run and fight from underground.

We are now six months into Iraq War III. The coalition is clearly winning on two of the three war fronts. As the team of ABC-TV and Time magazine reporters are persuasively showing this week, the people of Iraq's Shiite south and Kurdish north — 80 percent of the population of 23 million — are making substantial progress toward reconstruction and self-governance.

But the battle within the Sunni triangle around Baghdad — where Saddam's rapacious sons and secret police long victimized other Iraqis — is not yet won. ...

Although ... a retreat under fire would be euphemized as an "accelerated exit strategy," consider the consequences to U.S. security of premature departure: Set aside the loss of U.S. prestige or America's credibility in dealing with other rogue nations acquiring nuclear weapons. Iraq itself would likely split apart. Shiites in the south would resist a return of repression by Saddam's Sunnis and set up a nation under the protection of Iran. Kurds in the north, fearing the return of Saddamism, would break away into an independent Kurdistan; that would induce Turkey, worried about separatism among its own Kurds, to seize the Iraqi oil fields of Kirkuk.

One result could well be a re-Saddamed Sunni triangle. Baghdad would then become the arsenal of terrorism, importer and exporter of nukes, bioweapons and missiles. There is no way we can let that happen. Either we stay in Baghdad until Iraq becomes a unified democratic beacon of freedom to the Arab world — or we pull out too soon, thereby allowing terrorism to establish its main world sanctuary and its agents to come and get us.

I have my doubts about the decision to attack Iraq. I have my doubts about specific administration policies towards Iraq, such as the badly flawed privatization scheme. But I grew up in a military family during the Viet Nam war. I saw the damage our cut and run exit strategy did to Army morale and prestige, to the tone of our national politics, and our nation's standing in the world. When I was in law school, we cut and ran from Lebanon. When I was still a relatively new law teacher, we cut and ran from Somalia. There can be little doubt that this pattern of cutting and running emboldened our current foes. We simply cannot afford to do it again, lest our foes be emboldened to new strikes that make 9/11 look like a walk in the park. As long as Bush holds the course in Iraq, he will get my vote. Any sign of cutting and running, however, and I'll vote Libertarian.

^* UPDATE: To be clear, I'm not referring to the sort of paleo-cons David Frum attacked recently, but rather to those of us who stand in the tradition that goes back to Burke via Russell Kirk.

Iraqi privatization (again)

The WSJ (sub. req'd) asks:

Is the Bush administration pushing too hard on Iraqi privatization? ... Skeptics are leery of the administration's emerging economic blueprint, saying it could cause deeper unrest in the dangerous, turbulent country while exposing Iraq too rapidly to stiff outside competition. ... "[The plan] gives ammunition to the extremists who say the war was all about U.S. companies taking over Iraq," says Rubar Sandi, an Iraqi-American businessman who is investing widely in Iraq. Mr. Sandi says he is surprised the U.S. didn't "lay down at least some mandate to involve Iraqis with technology transfer or partnerships or training."

I was quite skeptical of the administration's initial plans for Iraqi privatization, as I explained here. The emerging version provides even more reason for skepticism. The US-imposed law allows for 100% foreign ownership and full rights to repatriate profits, which is far more liberal than laws many countries (including the US, which still has restrictions on foreign ownership in a few industries). Almost inevitably, there will be a perception among many Iraqis that US investors are buying up Iraq's formerly state-owned enterprises on the cheap with prices depressed by the war, the uncertain economy, and the continuing unrest. Such perceptions will only fuel hostility to the US and the privatized firms. As such, they likely will exacerbate the problems we already are having. As Mr. Sandi noted, moreover, it gives unnecessary ammo to the "no blood for oil" crowd (even though the current plan excludes energy enterprises) and the anti-Halliburton types.

In the long run, once the US ends its occupation, a future Iraqi government might well be tempted to renationalize the privatized firms. Lingering hostility towards the West can only make nationalization more likely. Nationalization, for example, was one of the first things the Iranians did after their revolution in 1979. (Interestingly, at least to me, one of my student law review notes was on litigation over an Iranian nationalization! 24 Va. J. Int'l L. 993 (1984).)

As I noted in my earlier post, the great conservative intellectual Russell Kirk argued that "a soundly conservative foreign policy, in the age which is dawning, should be neither 'interventionist' nor 'isolationist': it should be prudent." Gentle reader, I put it to you that this strategy is most imprudent.

UPDATE: Over at Power Line we read:

Twice in the last couple of months, first in Dubai and then at a meeting of Arab countries, the provisional government has made it clear that Israeli companies are not welcome to contribute to Iraq's rebuilding. If Iraq, right now, at the bottom of its curve, is willing to reject Israeli help, what might it do when it doesn't need the US so much?"

That is precisely the question I am trying to raise. If privatization aggravates the Iraqi nationalists too much, what will then do when they no longer need us (or, to look at it another way, when we're no longer there)? Renationalization seems a likely outcome, unless we manage the process very carefully.

UPDATE2: The privatization process in eastern Europe obviously presented different issues, but for a discussion of Slovenia's reasonably well-managed privatization, see my co-authored article Corporate Governance in Post-Privatized Slovenia.

Jeff Cooper on Iraqi Privatization

Jeff Cooper blogs at Cooped Up on news reports that "the Iraqi Governing Council is moving ahead with plans to privatize Iraq's state-owned industries":

Given the still-persistent effects of three decades of Ba'athist rule, there are really only two groups, at this point, who would have the resources to purchase Iraq's state-owned industries. The first is Ba'athist collaborators--those who grew rich under Saddam's regime--and I refuse to believe that these individuals would be viewed as a viable option. That leaves the second group: foreign investors.

At one level, this makes a certain amount of sense: foreign investors will have the business expertise to rebuild moribund industries. And yet the apparent decision to take this step now, at a time when the US continues to control the Iraqi government, is tone-deaf to the extreme. It's widely believed, in the middle east, in Europe, and even in this country, that the decision to invade Iraq represented an effort to take control of Iraq's resources. Moving ahead with privatization at this point--when buyers will almost certainly not be Iraqi and, indeed, will likely include a large component of Americans; when prices are likely to be depressed by the postwar disarray--will only reinforce the impression. The decision not to privatize the Iraqi oil industry stands as a counterweight, but how effective it will be remains to be seen.

I tend to agree more often with Prof. Cooper's wine tasting notes than his politics, but I think he nailed this one. In his book, The Politics of Prudence, the great conservative intellectual Russell Kirk argued that "a soundly conservative foreign policy, in the age which is dawning, should be neither 'interventionist' nor 'isolationist': it should be prudent." Exactly. And, for the reasons Cooper outlines, I think this strategy is most imprudent.