June 17, 2004
Analogies
Michael Barone notes that if McClellan had defeated Lincoln, the South would have won the Civil War, and uses this as an argument against replacing Bush in the middle of the war for Iraq. (I guess this is the official acknowledgement that "Mission Accomplished" is no longer the operative spin.)
But of course McClellan was running on a platform which virtually committed him to accepting defeat; this year's Democratic Platform, it is safe to say, will make no such commitment.
Barone doesn't attend to what seems to me a more compelling analogy. If Hitler had been killed or overthrown anytime between the fall of France in June of 1940 and the invasion of Russia a year later -- leaving the conduct of the German side of World War II and its associated diplomacy to the highly competent professionals of the German armed forces and diplomatic corps -- Germany would very probably have won.
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What would the Sheriff of Mayberry
think of the Mayberry Machiavellis?
Lean Left has some sobering reflections on the changing meaning of "conservative."
Hat tip to Body and Soul.
Concurring in part, dissenting in part
Everyone from Kevin Drum to Pejman Yousefzadeh seems to believe that the announcement that Moqtada al-Sadr has ordered his militiamen to go home is good news.
Now good news has been pretty scarce of late, and I don't enjoy raining on my friends' parade, so I'll agree that this is good news.
Just one thing, though: I sorta doubt it's good news for our side.
The subtext seems to be that we're going to let the murder charge slide and allow Sadr to set up a political party. Since our own polling shows him to have picked up enormous popular support by running a guerrilla war against us, and has him currently the second-most-popular figure in (non-Kurdish) Iraq, running only slightly behind Ali al-Sistani, this looks like a pretty terrific outcome from al-Sadr's viewpoint. And he remains our bitter enemy.
Now maybe we're about to double-cross al-Sadr and toss him in the clink as soon as his troops disband. And maybe we could get away with it. But right now this looks to me like a second Fallujah.
So if this is the best you've got to offer as good news, do me a favor: don't show me the bad news.
Update Glenn Reynolds is cheerful, too, even while linking to this Reuters story noting the administration's climb-down from the position that al-Sadr was a thug to be imprisoned to the position that he's welcome to participate in the politics of the new Iraq.
The way I learned my Clausewitz, winning on the battlefield but not achieving the aim for which you were fighting doesn't count as winning.
We sought a confrontation with al-Sadr. We were fighting to take him off the table as a political figure. Now the fighting is over, and he's apparently a more popular and potent political figure than ever. Maybe my eyes are getting tired, but from where I sit it looks as if he just won and we just lost.
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June 16, 2004
Rumsfeld ordered prisoner held off the books
I'm going to have to get either my tinfoil hat or my dosage of antipsychotics adjusted.
After all, thinking that the United States Secretary of Defense might find himself the defendant at a war-crimes trial meets DSM-IV diagnostic criteria for "stark, staring bonkers." And yet I don't see any other way to read this story.
Update Oh, you wanted substance instead of snark? Michael Froomkin at Discourse.net has it.
Michael notes that, having identifed XXX as a detainee of such stratospheric intelligence value it was worth breaking treaties to keep him away from the IIRC, DoD and the CIA then promptly lost track of him.
All I can say about this is, once again, to quote Michael Walzer: There is neither profit nor glory in doing evil badly.
A Discourse.net commenter points to this Newsday story about hostage-taking: holding some Iraqis as an inducement for their relatives to give themselves up. This isn't a new tactic for the Coalition Forces; see this post from last August concerning a similar incident. Newsday reports that its use is widespread.
[Paperwight notes that, in addition to war crimes, Mr. Rumsfeld probably committed perjury when he told the Senate in May that everyone captured in Iraq was being treated under the Geneva Conventions.]
Another Discourse.net commenter asks whether Mr. XXX, if he was in fact a high official of Ansar al-Islam, could possibly be a POW. Answer: Yes. The Bush Administration has announced that everyone captured in Iraq (unlike the al-Qaeda and Taliban folks captured in Afghanistan) will be treated under the Geneva Conventions. And The applicable convention requires a hearing in order to deny someone captured in a war zone of POW status. (See Article 5 of the 1949 Convention.)
So even if, as seems plausible, Mr. XXX could properly have been deprived of POW status, the mere fact of his being a terrorist doesn't do so automatically, and we never bothered to touch second base.
Ogged at Unfogged got it right: George W. Bush's defining characteristic is his refusal to play by the rules, along with his bland assurance that the rules don't really apply to him.
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"The problems of Almighty God"
So how did this howler slip into a Supreme Court decision?
Eugene Volokh reports:
At page ten of his opinion, the Chief Justice purports to quote President George Washington's first Thanksgiving proclamation as follows:
"Whereas it is the duty of all Nations to acknowledge the problems of Almighty God, to obey His will, to be grateful for his benefits, and humbly to implore his protection and favor. . . ."
The use of the word "problems" in that quotation is, of course, an error. The word that President Washington actually used is "providence."
My bet: spellcheck did it, with a rushed or sleepy typist clicking "Change" rather than "Ignore" or "Learn." Mistyping seems possible, but less likely.
WTF? Fox News likes F9/11?
I hate it when people try to monkey with my prejudices. Unlike the White Queen, I'm not capable of believing more than one impossible thing before breakfast. (And I have breakfast pretty darned late.)
According to two of my most dearly-held prejudices, Michael Moore is incapable of doing anything that isn't dishonest and meretricious, and Fox News is merely an arm of the RNC.
I fully intended not to see Fahrenheit 9/11, even though I criticized Disney for refusing to distribute it and gleefully anticipated all the 30-second spots to be spun off from the trailer, especially the golfing scene at the end). I assumed that the Palme d'Or at Cannes mostly reflected the jury's political views rather than its cinematic judgment. No doubt the MPAA was acting on some mixture of poor judgment and pure political cowardice in giving the film an R rating, but that belief doesn't make me want to sit through the thing myself.
So I'm completely at a loss when a reviewer for Fox calls Farenheit 9-11
"a really brilliant piece of work, and a film that members of all political parties should see without fail ... a tribute to patriotism, to the American sense of duty — and at the same time a indictment of stupidity and avarice."
bzzzzzzt ... Does not compute ... does not compute ... does not compute ... bzzzzzzt
Hey! I've got it! Maybe the review is a fake, and someone hacked the Fox website to put it up.
Okay, that's my story, and I'm sticking with it. Otherwise I might have to change my mind and actually see the damned thing.
June 15, 2004
The velocity of money
Randy Paul of Beautiful Horizons has found the perfect motto for the Bush Maladministration:
The buck doesn't even pause to catch its breath here.
Jane Galt and Glenn Reynolds on torture
Jane Galt notes, in response to my argument about the actual risks of terrorism directed at the United States and whether those risks actually justify extreme measures such as torture, that people don't in fact respond to risks of mass murder for political ends as they respond to risks of ordinary murder, nor to the risks of ordinary murder to risks of inintentional injury.
That's right, and they're right to respond differently. "Even a dog," said Justice Holmes, "knows the difference between being stumbled over and being kicked." But I think that leaves my initial point standing: We're not dealing with the sort of truly society-threatening risk that might justify, or at least profoundly tempt, a violation of the rule "Do not torture."
Glenn Reynolds makes a point of central importance, one that is well illustrated by the revelations now coming out of Abu Ghraib and Guantanamo:
I find it hard to respond to these things in terms of cost-benefit. My law school mentor Charles Black once said that of course you can come up with scenarios -- the classic ticking-nuclear-bomb example -- where torture might be justified. And you can be sure that, in those cases, if people think it'll work they'll use it no matter what the rules are. But there's a real value to pretending that there's an absolute rule against it even if we know people will break it in extraordinary circumstances, because it ensures that people won't mistake an ordinary remedy for an extraordinary one.
The White House, DoJ, and DoD torture memos are all designed to do precisely the reverse.
So now we have a choice, as voters: Are we going to ratify the decision to make torture (described in various weaselly ways) part of the policy of the United States, or are we going to reject it by replacing those responsible?
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June 13, 2004
Unethical
Any psychiatrist who purports to offer a "diagnosis" of a public figure he hasn't professionally examined ought to have his medical license taken away.
And anybody who pays attention to such crap other than for pure amusement ought to have his head examined.
Kudos to Rivka at Respectful of Otters for her even-handedness.
Update:
A reader criticizes me, politely and correctly, for overstatement. Using a psychiatric credential as a weapon in political warfare ought to be treated as a violation of professional ethics, but license revocation or suspension should be reserved for flagrant and persistent violators, such as Charles Krauthammer.
Another reader points out that experts opine on television all the time, often on matters they haven't bothered to become personally familiar with, and asks why psyciatrists should be different. My answer is that psychiatrists (and clinical psycnologists) aren't merely experts; they're licensed healers. Using that license to wound is by its nature an abuse.
Since mental illness is profoundly stigmatized (in a way that physical illness largely isn't anymore) the capacity of psychiatrists to damage the public standing of other people is immense, and it ought to be under correspondingly tight control.
More torture documents coming
Interrogation abuses were 'approved at highest levels'
By Julian Coman in Washington
New evidence that the physical abuse of detainees in Iraq and at Guantanamo Bay was authorised at the top of the Bush administration will emerge in Washington this week, adding further to pressure on the White House.
The Telegraph understands that four confidential Red Cross documents implicating senior Pentagon civilians in the Abu Ghraib scandal have been passed to an American television network, which is preparing to make them public shortly.
According to lawyers familiar with the Red Cross reports, they will contradict previous testimony by senior Pentagon officials who have claimed that the abuse in the Abu Ghraib prison was an isolated incident.
"There are some extremely damaging documents around, which link senior figures to the abuses," said Scott Horton, the former chairman of the New York Bar Association, who has been advising Pentagon lawyers unhappy at the administration's approach. "The biggest bombs in this case have yet to be dropped."
[The last time I checked, the Telegraph was a Tory paper.]
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Just asking
What was being done to "Prisoner XXX" that Gen. Sanchez didn't want the Red Cross to know about?
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This isn't World War IV
A year ago March, before torture had become the hot issue it is today, but after evidence emerged that torture was being used against some al-Qaeda suspects, I posted some thoughts on the topic. Kieran Healy did me the favor of reminding me of that post -- which I had long since forgotten -- by quoting from it.
Rereading that old post, I found myself nodding in agreement: indeed, completely won over by myself to my own viewpoint. My only regret was the title, which confusingly referred to "World War III" rather than "World War IV" in discussing the current conflict between radical political Islam and the liberal world order.
Since self-linking is regarded as vulgar, and since I have nothing to say right now nearly as well worth reading as that old post, I'm reposting it verbatim.
This isn't World War IV
In the ongoing debate about the use of torture against al-Qaeda captives, proponents of torture (most recently Stuart Taylor in National Journal) like to invoke the slogan "The Constitution is not a suicide pact." That seems to me a complete misunderstanding of what Justice Jackson's dictum means and of the situation in which we currently find ourselves vis-a-vis terrorism. We are simply not under the kind of threat that Justice Jackson imagined in his Terminiello dissent, or that really obtained during the Civil War, World War II, and the Cold War.
Justice Jackson, like Lincoln before him, was thinking about a situation in which upholding the letter of our Constitutional liberties might lead to a complete collapse of the Constitutional order. Lincoln's defense of his suspension of habeas corpus in the face of serious Copperhead subversion, supporting an active rebellion whose troops threatened the capital city -- "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" -- finds its echo in Jackson's dissent, following a description of the near-riot between Fascist and Communist mobs incited by Terminiello's speech:
This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a world-wide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe. Increasingly, American cities have to cope with it. One faction organizes a mass meeting, the other organizes pickets to harass it; each organizes squads to counteract the other's pickets; parade is met with counterparade. Each of these mass demonstrations has the potentiality, and more than a few the purpose, of disorder and violence. This technique appeals not to reason but to fears and mob spirit; each is a show of force designed to bully adversaries and to overawe the indifferent. We need not resort to speculation as to the purposes for which these tactics are calculated nor as to their consequences. Recent European history demonstrates both.
Hitler summed up the strategy of the mass demonstration as used by both fascism and communism: 'We should not work in secret conventicles but in mighty mass demonstrations, and it is not by dagger and poison or pistol that the road can be cleared for the movement but by the conquest of the streets. We must teach the Marxists that the future master of the streets is National Socialism, just as it will some day be the master of the state.' First laughed at as an extravagant figure of speech, the battle for the streets became a tragic reality when an organized Sturmabterlung began to give practical effect to its slogan that 'possession of the streets is the key to power in he state.'
The present obstacle to mastery of the streets by either radical or reactionary mob movements is not the opposing minority. It is the authority of local governments which represent the free choice of democratic and law-abiding elements, of all shades of opinion but who, whatever their differences, submit them to free elections which register the results of their free discussion. The fascist and communist groups, on the contrary, resort to these terror tactics to confuse, bully and discredit those freely chosen governments. Violent and noisy shows of strength discourage participation of moderates in discussions so fraught with violence and real discussion dries up and disappears. And people lose faith in the democratic process when they see public authority flouted and impotent and begin to think the time has come when they must choose sides in a false and terrible dilemma such as was posed as being at hand by the call for the Terminiello meeting: 'Christian Nationalism or World Communism-Which?'
This drive by totalitarian groups to undermine the prestige and effectiveness of local democratic governments is advanced whenever either of them can win from this Court a ruling which paralyzes the power of these officials. This is such a case. The group of which Terminiello is a part claims that his behavior, because it involved a speech, is above the reach of local authorities. If the mild action those authorities have taken is forbidden, it is plain that hereafter there is nothing effective left that they can do. If they can do nothing as to him, they are equally powerless as to rival totalitarian groups. Terminiello's victory today certainly fulfills the most extravagant hopes of both right and left totalitarian groups, who want nothing so much as to paralyze and discredit the only democratic authority and can curb them in their battle for the streets.
It is possible for us now to look back on Justice Jackson's opinion and find it to have been misguided. After all, his opinion was a dissent; Justice Douglas's more libertarian view became the controlling law. Yet there was no outbreak of political street violence as a result.
But, looking back at the then-recent history of the Weimar Republic, it wasn't unreasonable for Justice Jackson to worry about the same sort of thing happening here, or to think that somewhat extending the bounds of the "fighting words" doctrine might be an acceptable solution to a sufficiently grave threat.
That is not our current situation. Al-Qaeda and the terrorist groups it typifies represent absolutely no threat to the continuity of our government, our way of life, or our Constitution, except through their capacity to empower those who for other reasons are enemies of liberty and friends of tyranny and who might use the al-Qaeda attacks, as they previously used Communism, as a convenient excuse for shredding the Bill of Rights. That the Chief Justice and the Attorney General both seem rather inclined to favor the tyrannical side is not an encouraging fact, but even so there is no actual threat to basic liberty or Constitutional government, and will not be even if the terrorist problem gets worse.
The best one-line summary I've ever heard of a free way of life is the proclamation that used to be (as far as I know still is) made to Jews arriving in Israel under the Law of Return: "You are now citizens, free to vote and criticize the government." A generation from now, we will be having elections whose results are both uncertain and important, and Americans will be able to say that their President is a fool and a scoundrel whether that is true or not, regardless of whether al-Qaeda or one of its competitors succeed in mounting another 9-11-type attack, or even a series of them.
Taylor and others interpret Justice Jackson's dictum to mean that whenever there is an active threat that many people will die unless torture is used, the clear bars to using it created by the Constitution and international law must magically disappear. All Taylor asks to suspend the rules is "a reasonable chance of eliciting information that might help foil future attacks." He rather callously adds, "It's a good bet that Khalid Shaikh Mohammed has felt some pain. And if that's the best chance of making him talk, it's OK by me."
No doubt it is. The human capacity for courage in the face of pain felt by strangers is always pretty impressive, and fear and hatred can make that capacity virtually boundless. Taylor disapproves of "actual torture," for example breaking bones or tearing out fingernails, but even then makes a reservation for what he calls "extreme circumstances."
We faced truly extreme circumstances in 1861, and again in 1941, and again until 1989. We do not face them now. The threat of terrorism is a real threat, but it is not a threat of such gravity that it forces us to chip away at the Constitution to preserve the Constitution itself. The terrorists can't conquer us or overthrow our government. The worst they can do is kill some of us, and we're all going to die some day anyhow.
Lest someone attribute to me the same sort of callousness of which I accuse Taylor, let me bring this down to a personal level. About 3000 people died on 9-11, out of 300 million Americans. If the next attack were as successful, and its risks were spread evenly over the population, each of us would face a risk of 1 in 100,000 of dying in that attack. (If the risks of ordinary homicide and of automobile accidents were evenly spread, each of us would have about 1 chance in 15,000 of being murdered this year and about 1 chance in 7500 of being killed by a car.)
Imagine, then, that torturing the next al-Qaeda suspect has one chance in ten of preventing a disaster that great, and thus one chance in a million of saving you, personally, from being killed by that terrorist act.
Would you choose to be a citizen of a country that practices torture to avoid one chance in a million of dying suddenly? I wouldn't.
Update
If at first you don't succeed, try, try again. Having attracted almost zero attention when first posted, this item has now picked up links from Matt Yglesias (largely agreeing), Jane Galt (raising a related question), and Glenn Reynolds (adding an argument I'd missed).
Jane Galt notes that my argument about the actual risks of terrorism directed at the United States and whether those risks actually justify extreme measures such as torture, that people don't in fact respond to risks of mass murder for political ends as they respond to risks of ordinary murder, nor to the risks of ordinary murder to risks of inintentional injury.
That's right, and they're right to respond differently. "Even a dog," said Justice Holmes, "knows the difference between being stumbled over and being kicked." But I think that leaves my initial point standing: We're not dealing with the sort of truly society-threatening risk that might justify, or at least profoundly tempt, a violation of the rule "Do not torture."
Glenn Reynolds makes a point of central importance, one that is well illustrated by the revelations now coming out of Abu Ghraib and Guantanamo:
I find it hard to respond to these things in terms of cost-benefit. My law school mentor Charles Black once said that of course you can come up with scenarios -- the classic ticking-nuclear-bomb example -- where torture might be justified. And you can be sure that, in those cases, if people think it'll work they'll use it no matter what the rules are. But there's a real value to pretending that there's an absolute rule against it even if we know people will break it in extraordinary circumstances, because it ensures that people won't mistake an ordinary remedy for an extraordinary one.
The White House, DoJ, and DoD torture memos are all designed to do precisely the reverse.
So now we have a choice, as voters: Are we going to ratify the decision to make torture (described in various weaselly ways) part of the policy of the United States, or are we going to reject it by replacing those responsible?
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A significant silence
Kieran Healy links to a post by Eugene Volokh disclaiming any intention of commenting on the torture memos. Eugene gives plausible reasons for his decision not to wade into the issue, and of course he's right to say that no blogger has an obligation to comment on any particular matter.
It's worth noting, however, that the torture memo from DoD embraces two separate issues: the legality of torture, and the supposed "inherent power" of the President as Commander-in-Chief to ignore the law (both statute and treaty) whenever in his sole and unreviewable judgment the public safety requires it. It's possible to express an opinion on that second claim without getting into the guts, so to speak, of the torture problem.
I find it striking that, in a situation where President Bush is being widely and harshly criticized for (at least) not disclaiming the astonishing claim made on his behalf by his appointees, no one who isn't actually on his payroll has stepped forward to defend those claims. If the attacks on the Presdient were even a little bit unfair, one would have expected that, even if Eugene decided to remain silent, one of the less weighty conservative law-bloggers could have been found to rise to the President's defense. (Glenn Reynolds, who has been silent so far this round, presumably isn't available, given his unprintable response last time the torture issue came up.)
Sometimes silence conveys more information than speech. Indeed, as Leo Strauss never tired of reminding his readers, sometimes silence is intended to convey information about which speech would be inconvenient, or information too important to be written or spoken. This may be one of those cases.
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