Friday, January 21, 2005

Another Step Back

Following in the wake of a federal court's decision to uphold the Defense of Marriage Act, the great state of Indiana has given us another step backwards in the fight for equality. In Morrison v. Sadler, an Indiana Court of Appeals has upheld that state's own Defense of Marriage Act. Unlike the other two recent DOMA cases, Wilson v. Ake (the federal court case) or In re Kandu and Kandu (the bankruptcy court case), however, this case is logically atrocious. The case frames its discussion thus:
"We begin by noting one of the Plaintiffs' overarching arguments, namely their claim that recognizing same-sex marriage would not directly harm the traditional institution of opposite-sex marriage and the State's interest in marital procreation. We conclude the Plaintiffs' claim that recognizing same-sex marriage or unions will not harm the institution of opposite-sex marriage is not dispositive of the constitutional issue before this court. The key question in our view is whether the recognition of same-sex marriage would promote all of the same state interests that opposite-sex marriage does, including the interest in marital procreation. If it would not, then limiting the institution of marriage to opposite-sex couples is rational and acceptable under Article 1, § 23 of the Indiana Constitution."

This framework is wholly illogical. No one group is particularly likely to satisfy the entire array of "state interests" outlined by Indiana. This is especially so considering the manner in which the court defines the state's interest, which seems tailor made to exclude homosexuals. The court emphasized that it is far easier for heterosexual couples to have children, and therefore the risk of them doing it without considering the situation fully is far greater. Marriage thus offers an incentive for these groups to stay together. Homosexual couples don't need that incentive because "those persons wanting to have children by assisted reproduction or adoption are, by necessity, heavily invested, financially and emotionally, in those processes." However, there are many responsible heterosexual couples who need no such incentive to stay together, they are not "promot[ing] all of the...state interests" either. When the state endeavors to prevent a certain group from receiving a benefit (especially when it is "similarly situated," as hetero- and homosexual couples who might desire children are), it must at the very least show why the restriction is based on some legitimate interest. The state has no interest in denying the benefits of marriage to homosexual couples who might, now or in the future, wish to raise children. But by recasting the standard as whether homosexual couples could meet every single situation the state may have had in mind when drafting its marriage laws, the court manages to dodge this obvious point of justice in order to justify its discriminatory practices. As Michigan Law Professor Catherine Mackinnon notes:
"[T]o require that one be the same as those who set the standard—those which one is already socially defined as different from—simply means that...equality is conceptually designed never to be achieved. Those who most need equal treatment will be the least similar, socially, to those whose situation sets the standard against which one’s entitlement to be equally treated is measured."

Furthermore, the standard, as articulated, is a motivator for bad behavior. The argument of the court is essentially that heterosexuals deserve special privileges because without them they are more likely to abandon their children. This, once again, raises Oxblog's question: which side is really degrading marriage? Indiana is prohibiting homosexual couples from getting married not in spite of the fact, but because of the fact that they are more likely to stay together and support any children that are the product of their relationship. Heterosexual couples are afforded the privileges of marriage apparently because of their tendency to philander and break up relations at the drop of the hat (though the national divorce rate seems to suggest they can do that even with the "stabilizing" influence of marriage).

Finally, the court's argument fails on its own terms, because it mischaracterizes how the state's interest in promoting familial stability is achieved. If a couple gets married, and then divorces the next day, the state has not achieved its goal of a stable family. The point isn't entering the relationship (indeed, any time two people decide together to either have a child or have sexual intercourse, they have entered a "relationship"), it's maintaining the relationship. And once one gets past the threshold of entering the relationship, the likelihood of the relationship staying together is not much different for hetero- and homosexual couples. Indeed, the social stigma that is implicit in legal codes that categorically refuse to recognize the value or worth of homosexual couples staying together could easily act as an incentive for them to break up. This would suggest that Indiana is actually hampering its own objective by restricted same-sex marriage. If Indiana is concluding that, without proper incentives, couples with (or expecting) children are at risk of breaking up, then it needs to equally provide a remedy to all in that situation, not just some.

Fall into the Gap

One of the core themes behind my statecentrism critique and my "Left Cross" article was the gap between Bush's (and the Republican Party's) rhetoric and his policies. Bush says he's serious about conducting the war on terrorism, but he constantly is making political decisions that severely undermine the fight. To liberals such as myself who support the rhetorical goals Bush outlines, this is maddening. It forces us to toe a very narrow (nuanced?) line, where we support the same goals Bush says he supports, but protest the way he goes about doing them. Politically, it's brilliant, because liberals don't have any credibility on the matter and nobody would even consider questioning a neo-conservatives commitment to fighting a war. So Bush happily continues to chirp away at the refrain of war, strength, and sacrifice, all the while never being held accountable by anyone for totally ignoring those very values in the real world.

Bush's inauguration speech was a tragic continuation of this theme. As he has so often in the past, Bush spoke at length and emphatically about the need to spread freedom, democracy, and human rights around the world. Noble sentiments, and ones that I wholeheartedly agree with. The problem, as The New Republic's Ryan Lizza points out, is that Bush has expressed zero interest in doing any of these things. Sure, he's taken strides towards installing democratic regimes in Iraq and Afghanistan--and he should applauded for doing so. But that isn't the real test of ones commitment to principle. As Lizza notes:
"It takes no courage to call for a democratic revolution in the public squares of one's enemies. It's easy to call for the overthrow of the mullahs in Iran or the lunatic in North Korea. The real test of Bush's sincerity "to seek and support the growth of democratic movements and institutions in every nation and culture" is whether he is willing to demand reform from America's autocratic allies. Unfortunately, despite the rhetoric, on Bush's watch America's relationship with tyrants has grown closer."

The US simply doesn't have the credibility to lecture Cuba on human rights when it is busy feeding honey-soaked praise to Saudi Arabia, Pakistan, and Russia, as well as silently cooperating with China, Uzbekistan, Egypt, Oman, Qatar, The United Arab Emirates, Kyrgyzstan, and Tajikistan. Indeed, almost a quarter of the countries labeled "not free" by Freedom House are official US allies in the war on terror. It is positively Orwellian, and it is enough to make someone like me physically ill.

The gap between rhetoric and reality can only last for so long before it triggers brutal consequences. I argued in a previous post that:
"the perception, however frail, that the world does care, at some level, about the plight of the global periphery and will work to alleviate it [is one of the key factors preventing the poor from exploding in anti-western/anti-American rage]. International institutions such as the UN, where the lowliest nations stand as equals with the US, Britain, and other powers, have done much to convince the global poor that they too are members of the world community, and as such they will be cared and provided for. If the US is seen as abandoning what--to the rest of the world--is a solemn commitment to work for the betterment of mankind, a sense of betrayal will quickly emerge, likely to be followed by resentment and hatred."

More immediately, the rhetoric/reality gap is having a real negative impact on our efforts to rebuild Iraq.
"...Iraqi mistrust of US democratization efforts isn't because of any hostility on the part of the Iraqi's to democracy per se. It speaks volumes about the character of the Iraqi people that the most powerful national figure, Ayatollah Ali Sistani, is also a committed democrat. Rather, the mistrust stems from a mistrust of motives, Iraqi's know (from personal experience and from basic observation of their neighbors) that the US has been perfectly willing to subvert democratic institutions and install friendly dictators when it serves American economic and realist interests to do so. Furthermore, the US has usually coached these actions in the same pro-liberal, pro-democratic rhetoric that we hear from the Bush administration today (cite: Chile, Vietnam). Hence, Iraqi's are understandably paranoid that President Bush's committment to liberalization is a facade, and every misstep and misstatement by the US occupying regime only amplifies these fears. Worse yet, US tolerance and praise of other dictatorships (in Saudi Arabia, Uzbekistan, Pakistan, and elsewhere), compounds the problem."

The gap is quickly expanding into a chasm, with the vast majority of the oppressed people of the world caught on the wrong side. I pray that the US will change course, but it will never happen unless the media and the people are willing to call Bush out on the hypocrisy of advocating for freedom without acting on it.

Thursday, January 20, 2005

The Grand Finale

Well, we're coming down to the Iraqi election wire. And there are some interesting developments. As many of you know, one of the key factors that unites all of Iraq together is the desire to see the US leave. The problem, of course, is that is about the only thing that unites Iraq, and the odds of the central government being strong enough to contain those divisions is slim. So basically, if US troops leave, then the country collapses into civil war with no way to stabilize it. On the other hand, if US troops don't leave, the new government is automatically discredited and the country collapses into civil war anyway. Lovely options.

However, today Iraq'd reports that while establishment candidate Iyad Allawi has now jumped on the US withdrawal bandwagon, the front-running United Iraqi Alliance has begun to dilute its calls for a withdrawal. As the UIA gets closer to victory, it is starting to realize that immediate withdrawal of US troops would be catastrophic. However, if it is seen as breaking from the anti-occupation line, its support amongst the population could collapse.

Now here's where it gets interesting. The head of the UIA is Ayatollah Ali Sistani, probably the most respected and influential man in Iraq. If anybody can hold the country together while negotiating a reasonable US departure time, it is him. However, as Iraq'd notes, firebrand cleric Moqtada al-Sadr stands ready to exploit any mistakes made by Sistani. Al-Sadr also has significant support, especially in the slums, and he will certainly gain some at Sistani's expense if Sistani is seen as not sufficiently anti-occupation. So the stage is set for a royal rumble between two of Iraq's biggest players. Can Sistani hold off al-Sadr for long enough to get the US out? It will be a battle for the epics, with Iraq's future on the line. Count me as a Sistani supporter.

Wednesday, January 19, 2005

Federal Court Upholds DOMA

The US District Court for the Middle District of Florida has upheld the Defense of Marriage Act in Wilson v. Ake. Technically the first decision on DOMA's constitutionality was In Re Kandu and Kandu, but that was a Bankruptcy Court case and thus has no precedential value. Like Kandu, the opinion is quite well-written and supported. It made very few new findings of law, instead making clear arguments based on precedent that showed why its hands were tied.

One of the cases in which the Court relied upon (in order to reject the plaintiff's "rational basis" objection) was Lofton v. Department of Children and Family Services, (en banc rehearing denied). Since the ruling was by the 11th circuit court of appeals, and this district court is bound to that precedent, the court rightly said it could not go against Lofton, and I don't dispute that. I just want to take this time to reiterate my objection to that case, which I think was legally shoddy and logically incoherent. Had Lofton gone the other way, then I think the Court could have easily rejected the federal government's rational basis defense (whether it would have is another question).

Meanwhile, Oxblog makes a great point with regards to why allowing gay marriage is a Conservative position. Drawing from the text of the majority opinion in Goodridge v. Department of Public Health (the Massachusetts gay marriage case), we get quotes like this:
"[C]ivil marriage enhances the "welfare of the community." It is a "social institution of the highest importance." Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private rather than public funds, and tracks important epidemiological and demographic data.

Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. "It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.""

Compare the dissent:
"The marriage statutes do not disqualify individuals on the basis of sexual orientation from entering into marriage. All individuals, with certain exceptions not relevant here, are free to marry. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court."

As Oxblog correctly asks: "tell me again, which side is trivializing marriage?"

Statecentrism and the War on Terror

In a recent post I referred to statecentrism as one of the primary blindspots the Bush administration has when conducting the war on terror. There are others, listed here, which have nothing to do with statecentrism. However, since many people seized on this particular aspect of my attack for challenge, I will explain and defend why I think statecentrism is a poor model for fighting the war on terror, and why an alternative (call it "terrorcentric") method would work better.

First, let's define what statecentrism is. A statecentric worldview is one that looks at problems (at least foreign policy problems) through the prism of sovereign states. As it relates to terror, it means we take out a map, look at the nations of the world, ask ourselves "which ones support terrorists," and the blow them (the terror harboring states) to hell. Mark Schulman explains it in this manner:
Terrorists do not exist in a stateless vacuum. In each state in which they have refuse, there are two other actors: the people, some of whom are sympathetic to the terrorists and some who are not; and the government, which may (1) actively support, (2) condone, (3) actively oppose, or (4) be unable to oppose the terrorists. While the terrorists may welcome death and have little or no physical assets, at least some of the general population prefers life to death and the government does have an infrastructure that it is responsible for protecting.

The objective of a deterrence policy -- more precisely, a warning that the U.S. will respond with a nuclear attack on targets of our choosing, including Islam's holy sites -- should be to cause ordinary people and governments to fear the consequences if terrorists explode one or more nuclear weapons on our soil. By making the nuclear second strike doctrine public, it would hopefully have enough credibility to alter the behavior of people and governments. The specter of devastation should be an incentive for both people and governments to stop supporting terrorists and for governments to root them out. The less fanatical of the terrorists, recognizing these changes, may decide to pursue other, less deadly, activities.

When I say I "critique" statecentrism, it does not mean that I think we should ignore states entirely. What it means is that we should recast the lens. In my worldview, we look at where the terrorists are. After that, we examine what, if any, relation the terrorists have to the states they inhabit. Is the state supporting them, or fighting them, or indifferent to them, or some variation thereof? In some cases, a terrorcentric and statecentric mindset will yield the same result. If I examine Iran as a state, I will quickly note that it supports terrorism. If I'm looking for terrorists, I will quickly note that they gain support and aid from Iran. So even though the methodology is different, the result is the same. To use Mark's taxonomy, Iran is a "1" state (actively supports terror), but if we can credibly threaten to annihilate them, that will go a long way to ending their support for terror. That option makes sense from either the terrorcentric or statecentric worldview.

But let's take another example, Somalia. Contrary to Mark's suggestion, Somalia is a perfect example of terrorists existing in a "stateless vacuum," because there isn't really a "state" in Somalia. Ideologically, the statecentric viewpoint discounts the terror threat of Somalia since there isn't state support. This, once again, misstates the threat, because al-Qaeda can operate just fine in Somalia, and they can still base attacks on American interests from Somalia, regardless of whether the state is assisting or not. Pragmatically, the statecentric approach also cannot deal with Somalia. We can't threaten the central government to stop harboring terrorists, because one doesn't exactly exist. Mark's "deterrence" policy utterly collapses in this situation, because there is not an entity that is even capable of responding to a US threat, let alone act on it. If followed to its logical conclusion, the statecentric threat, as applied to Somalia, would go over something like this:
Bush: Alright, Somalia. You got to stop harboring the evildoers, or else we're going to have to send a message.
Somalia: [silence]
Bush: Nuke 'em.

Is anyone really being deterred here? Deterrence rests on motivating good behavior over bad behavior. It presumes a choice on the part of the regional actors as to whether they are acting "good" or "bad." In regions with failed states, the people, at least as represented by the "state," aren't capable of making that choice.

Another problem with statecentrism is it misplaces priorities. The quote by Professor Drezner in my last post elucidates. The US was faced with a comparative choice: either neutralize a state, which supports terrorists (Iran); or neutralize a non-state actor who supports terrorists (A.Q. Khan). They chose the former. However, ironically, Schulman's own analysis demonstrates why it is the latter that is far more threatening. The reason is simple: we can deter Iran rather easily. If they touch us, or if there fingerprints are on someone who does touch us, we can bomb them off the face of the earth. They know it, and we know it, and it doesn't take a big shift in US policy to drive that point home (nor does it require Pakistan's support in any way). Shadowy nuclear proliferation networks, outside the guidance of states, by contrast, cannot be deterred by conventional means. We can't bomb them out of existence. They aren't geographically fixed, they emphasize small players, they are, well, shadowy. Opportunities to shut them down are far, far, rarer than opportunities to deter nation-states. Terrorcentrism would look at what's more likely to enable terror, and act that way, which sometimes means attacking (or threatening to attack states) and sometimes doesn't. It's in the latter case where the Bush administration is offbase.

The third advantage of terrorcentrism is that it prevents us from getting bogged down in protracted, distracting military campaigns. If we invade, oh, Iraq, we're stuck there for awhile until we rebuild what we've broken. The hundreds of thousands of troops necessary to do that are now occupied, and can't be used to trackdown actual terrorists. Sure, we'll bag some in the host country that we're in the middle of rebuilding. But gunning terrorists in the Philippines, or Sudan? Forget about it. In his comment on my original post, Randomscrub argues that this is the best case scenario considering the logistical problems of going after terrorists in a more ad hoc manner. I disagree. The use of light and special forces operations, targeted bombing campaigns, and other more focused endeavors all can accomplish tasks with far lower resource allocations than full-fledged military invasions. Sure, it raises sovereignty implications, but can we all agree that at this point sovereignty has been shot to hell regardless of what policy we choose? Randomscrub's objection is legitimate, but the alternative isn't any better: we simply don't have enough troops to invade every single country that harbors terrorists. So since we're going to have to implement my lightweight options at least partially (or alternatively, ignore terrorists outside of Iraq and Afghanistan entirely), we might as well use it whenever it's most effective. Furthermore, even when we do hit the "jackpot" ("hey, this state is linked to terror and we have the troops to take it out!"), statecentrism skews our tactical and strategic perception on the ground. In Afghanistan, for example, we took out the "state" (the Taliban) quite effectively. We were much less effective in taking out the "terrorists" themselves, many of whom escaped to Pakistan and elsewhere. This doesn't mean that Afghanistan wasn't a "success," but it does require us to look more critically at what "success" means. From a statecentric view, we "won" in Afghanistan because we replaced a terror-supporting state with a terror-fighting state (sort of). From a terrorcentric view, it's more complicated than that, because many of the terrorists are still at large and can still plan attacks on the US and the world.

The point, again, isn't to ignore states, it's to focus on terror. Terror sometimes operates within the context of state support, and sometimes not. The organizations of terror have gotten very good at using non-state entities, markets, and practices to aid their cause. Beyond residing in failed states, they also use international finance, smuggling networks, informal trade, and the internet to facilitate their cause. None of these problems can be deterred simply by looking to states, and any practice that tries to address them solely by way of states is doomed to failure from the start. Looking at the problem holistically, at what is most likely to destroy terrorism, requires us to think outside the statecentric box. Sometimes, focusing on states will work just fine. Often it won't, and the Bush administration's failure to realize that is hopelessly crippling our efforts against terror.

Tuesday, January 18, 2005

Southern Rumble

Alabama and Mississippi seem determined to wage a battle to death on which can forestall joining the 20th century for the longest period of time (we'll work on getting them to century 21 later).

In Alabama's corner, Legal Fiction provides a reminder of former Chief Justice Roy Moore's lawless antics while on the Alabama Supreme Court. To the state's credit, the judges kicked Moore out of office for ignoring a federal court order to take down his two-ton statue of the 10 commandments. To their immense detriment, the voters then elected Moore protege Tom Parker to the court, who ran explicitly on a 10 commandments platform. Judges who run based on ignoring the law? Sounds like judicial activism to me...

Of course, reckless disrespect for the constitution isn't the only thing that Parker had going for him. He also is a neo-confederate with links to several racist groups, including the Council for Conservative Citizens and the neo-secessionist League of the South.

And that isn't the only way Alabama reminds us that they hate black people! They also voted down a state constitutional amendment that would have stricken language in the constitution that mandated segregated schools, poll taxes, and asserted there was no right to a public education. Because 1954, 2004...what's the difference? But let's give a big hand to the Christian Coalition of Alabama, without whose opposition the amendment almost certainly would have passed. Way to spread Jesus' word!

In the face of all this, Mississippi has a tough task, and I admit they don't quite seem up to it. Their ace-in-hole is their celebration of Martin Luther King day, or should I say Martin Luther King/Robert E. Lee day (hat tip: The Moderate Voice). Because what is more logical than grouping together the greatest civil rights leader of our times, and the general who led the army which sought to preserve the enslavement of black people. It just makes sense.

So far, that's all I've found for Mississippi, which obviously doesn't hold a candle to the Alabamian antics. However, there's still plenty of time to come back! The title is still out there for the taking!

Central Values and Conservative Blindspots

Thought at the Meridian has written a post delving into the justification and rationale behind centrism (link: American Future. I agree with much of what TATM says. Like him, I am liberal on social issues but would be considered more "conservative" on foreign policy (I put in the quotations marks because I don't consider my position conservative at all, see here for details). This in particular was quite eloquent:
"Being centrist means to not want to buy the whole package of either Left or Right. It means being more concerned about issues than ideological consistency. A centrist position can hold strong principles, but it tries not to get tied down by stale ideologies...

Some people sneer at the centrist position. It is often said to be the viewpoint of the willy-nilly, wishy-washy and undecided. I strongly disagree with this view. I think that many people today don't want to, like I said, buy a whole ready-made package deal of leftist or rightist ideas. Many people hold leftist views on some issues, and rightist views on others. There is nothing strange or weak about this position. On the contrary, it takes careful consideration on every separate issue. I, for my own part, am more to the left when it comes to social justice-issues, but more to the right when it comes to foreign policy and the war on terror.

Instead of going to the extremes of the political scale, i. e. to the left or to the right, I prefer to go deeper into the centre. To delve down to the roots of things. A radically democratic view, if you like. Most centrists also have an instinctive dislike of political extremes and the all-too political, which is why so many centrists also are antitotalitarian, i. e. they combat extremism whatever shape it takes, be it Fascism, Nazism, Communism or Islamofascism."

The only quarrel I have with his otherwise excellent post is that he seems to only implicate the left for weakness in the war on terror (to his credit, he also takes a swipe at the isolationist right, but it is much smaller). He writes:
Today we face a new totalitarian threat: Islamofascism. This has not yet dawned upon the Left. Or rather, there is the Reactionary Left to whom it will never dawn, as they do not wish to know. Instead, they will try to support totalitarianism in opposition to "Western" or perhaps more commonly "US imperialism." Then there is the Liberal Left, who has turned out to be even more naive than I expected it to be, indirectly supporting tyrants and dictators, believing that "violence will only make things worse." The political quietism and pacifism of the Liberal Left, and the openly totalitarian and anti-democratic ideals of the Reactionary Left will risk undermining our Western democratic way of life if we don't start acting against these forces as well as against Islamofascism itself. So far, a great part of the Right has seemed to understand the totalitarian threat we're up against, except of course for the rabid, far-right "America first" isolationists who, like the Islamofascists, think that America is rotting from the inside because of the "decadence" going on there.

However, the right's ideological blindspots are as harmful to the war on terror as the left. First of all, the right still is stuck in its cold war glory days; it refuses to break out of the statecentric model which targets the "host states" of terror (Iraq, Afghanistan, Iran) rather than the terrorists themselves (al-Qaeda et. al.). I fleshed the point out in an earlier post:
In off-blog conversations about the Bush administration, I've argued that this presidency has, more than any Democrat, viewed the war on terror through a pre-9/11 mentality that emphasizes the importance of states rather than the non-state actors (IE: Al-Qaeda) that actually threaten us. In both Sudan and Afghanistan, terrorist groups have shown that they can survive and thrive without a supporting state structure (both of those countries had, at best, anemic central governments not in control of the whole country). Hence, the policy of attacking states rather than attacking terrorists is counterproductive, as Al-Qaeda can just "stick and move," dodging recrimination as we get bogged down in Iraq and Afghanistan and whatever other states we decide to intervene in.

Daniel Drezner sees this same problem at work in US policy towards Iran. After linking to an article which claimed that the US was trading the extrication of A.Q. Khan (the mastermind of Pakistan's blackmarket nuke trading ring) for support in any military action against Iran, Drezner notes:
"If this is true, it suggests the administration really believes that the threat posed by nuclear-armed states is greater than the threat posed by a black market proliferation network that could sell to states and non-state actors alike."

That's a very, very, scary thought, and shows a deep misunderstanding of the type of threat we face.

I listed off a plethora of other obstacles within conservative politics and ideology that prevent them from prosecuting the war on terror effectively. They get no political benefit from doing it, as the public sees them as strong on defense regardless of the particular policy stances they take. And ideologically, Conservative belief in free market principles and the inability of government to affect social change both hamper American efforts to defend our country and to defeat the root causes of terror, respectively. Looking over Bush's foreign policy and homeland security record, I see this pattern written all over. A lot of talk, a few high-profile initiatives, precious little substantive action at the detail level. And while it may be subtler, it isn't taking the threat of islamofascism any more seriously than the hard left.

Monday, January 17, 2005

Defending Friedman

Powerline approvingly links to Tom Friedman's latest column on Iraq. He, Powerline, and I all agree that the problems in the Arab world stem from corrupt, autocratic governments that deny freedom to their people. Hence, the US actions which have sought to change that situation--in Somalia, in Kuwait, in Afghanistan, and yes, in Iraq, are laudable. But Powerline is in despair: Why, they ask, why does Mr. Friedman still seek to blame President Bush for the problems we face?

Powerline thinks the only answer can be Friedman's partisan loyalty to the Democratic party. As usual, I'll have to let slide the audacity of Powerline accusing anyone of partisanship (and their usual defense, "they're the media, they're supposed to be objective!" doesn't fly here. Friedman's an editorialist, he can say whatever he wants), and just address the claim on it's merits.

Now, everyone at the table here apparently agrees that bringing Democracy to the Middle East is the only way to provide longterm solvency to the problem. The question is--is President Bush furthering that goal? Friedman says no, and I concur. Let's start with the obvious. Something has gone awry in Iraq. We weren't greeted with flowers, democracy didn't just sprout up like magic, and a few "dead-enders" has morphed into a large and growing insurgency. Something has gone wrong.

Now, this war is the Bush administration's baby. They orchastrated it, they set the policies, and they ran the operations. The responsibilty for what has happened rests squarely on their shoulders. Now, there are two conclusions one can draw from this. The first is that the Bush administration, somewhere along the line, screwed up. Badly. One can quibble about the details (Was it disbanding the army? Or focusing too much on mystical WMDs? Or not bringing enough troops? Or not lining up world support? Or refusing to secure the country in the invasion's aftermath? Or...etc), but obviously the Bush administration did something wrong, or else the situation wouldn't be what it is today. The second conclusion is that the Bush administration did everything right. That, in turn, suggests that the current chaos and mayham is the best case scenario that could have ever come out of Iraq. If that is the position Powerline wants to take, that's fine, but it would suggest to me that perhaps their favored policy option--invading countries to depose hostile and tyrannical leaders--isn't the panacea they've made it out to be. And if Iraq is the best we can do, then Powerline and I must part ways--I cannot reasonably support actions whose best case outcome is modern-day Iraq.

But Bush's flaws go beyond specific any policy faults we might find. Contrary to Powerline's assertion, Bush hasn't adopted the same view as Friedman as to the root causes of anti-American hatred. Friedman says that the hatred stems from autocratic tyrannies which shunt simmering resentment, poverty, and misery into generic hate for the infidel. Bush, by contrast, has argued that they "hate us for our freedoms." These are hugely different arguments. Bush argues that the cultures clash and there is no commonality, Friedman argues that the commonality has been suppressed and that causes the clash. Friedman's allows for eventual inclusion, Bush's stance is constantly alienating.

Sure, some of Bush's statements have (laudably) emphasized that the Arab world is perfectly capable of embracing Western values and democracy. However, his metaphilosophy mistakenly divides the world into pure good and pure evil. In the Arab world, that means the terrorists (evil, unable to be reconciled) and the rest (good, shafting under the oppressive regime of the terrorists). That is far too simplistic. For many (I might even daresay most) of the Arab world, terrorist sympathies grow in those who would otherwise be most receptive to American ideals. These are people who feel the US has abandoned them, that the US doesn't care about Muslims or worse, is actively hostile to them. As Friedman notes, this view is badly misplaced, but Bush's "us vs. them" rhetoric exacerbates the situation by reinforcing the notion that the US will never address any of the grievances, some of them legitimate, held by the Arab world against America.

You Cannot Be Serious

Way back in the glory days of the election season, I wrote a short post explaining to Glenn Reynolds and Jonah Goldberg that the reason we weren't focusing on toppling the Iranian regime is because we were--well, a bit distracted at the moment by that other "I" country in the region.

But, ask, and ye shall receive. CNN reports that the US is gearing up to possibly attack Iran. Because when one war isn't enough, two are just right...

Don't get me wrong, I'm fully aware of the danger Iran poses to the United States. In fact, I'd argue that they are more dangerous than Iraq ever was--or had the potential to be. However, as Donald Rumsfeld so aptly reminds us, "you go to war with the army you have, not the one you wish you had." And we don't have an army anymore, or at least not one that isn't tied up in current combat environments. There simply aren't enough troops left in our reserve to launch ANOTHER front in the war on terror (hell, there are barely enough troops to win the war we're conducting now).

Frankly, I don't think this is going to happen. Even Kos is skeptical. But still, with the old neo-cons still running the ballgame, you gotta wonder if they might just be serious.

Sunday, January 16, 2005

The Post and Powerline on Gonzales

The Washington Post has just announced its opposition to the nomination of Alberto Gonzales for Attorney General. This was not a preordained conclusion, as they supported the nomination of John Ashcroft and the war in Iraq, both signature GOP initiatives that have come under heavy fire from the liberal left.

Powerline attacked three of the editorial's arguments. They claim that the Post erred in saying that not giving detainees to determine if they are illegal combatants was a violation of the Geneva Conventions; they argue that the methods of interrogation authorized by Gonzales might have been more effective than the previous standards, at least within the realm of argument; and finally they claim that the Post was wrong to imply that the Supreme Court's repudiation of Gonzales' positions rendered him unfit for office.

I agree with the last attack by Powerline, but I think the first two deserve some scrutiny. On the first issue, Powerline cites AU Law Professor Kenneth Anderson, who claims that while not giving detainees a hearing is unwise, it is not illegal under the text of the convention. The relevant clause is as follows:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." [Article 5, Paragraph 2, 3rd Geneva Convention, emphasis added]

Anderson proceeds to argue:
"The Bush Administration was--and is--not in violation of Article 5 of the Third Geneva Convention. Read it. It does not say that a "competent tribunal" shall determine whether any doubt has arisen with respect to the POW status of a detainee. It says, rather, that "should any doubt arise" as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open--it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required."

Now, Anderson is a law professor, and I'm not. So obviously, take what I'm saying with a grain of salt. Anderson is perfectly correct when he says that the text is ambiguous. It doesn't specify how doubt can "arise," nor how or by whom that is determined. What I don't understand is how Anderson reaches his conclusion: that the text therefore indisputably gives the President or Secretary of Defense sole authority to determine the classification without any guidance or oversight. That's one possible interpretation, but as Anderson admits, the text is ambiguous. It's equally possible that the law's intent is precisely the opposite: that all persons detained should be allowed to assert they deserve POW status, and are entitled to a fair hearing to determine this.

Anderson addresses this attack in part further on, claiming that:
"But it is not merely through a technical oversight that Article 5 was drafted this way, as the treaty drafting history indicates. It was designed to take account of the following kind of situation. Suppose the US Navy picks up drug smugglers with tons of cocaine onboard their vessel, out in the Caribbean. One of them claims POW status -- "I am a FARC member from Columbia! I am a POW!" Now, if a hearing were held, obviously that claim would be rejected forthwith...Should that claim by drug smugglers to be entitled to POW treatment pending a fullblown hearing be required? Article 5 was drafted precisely to make clear that you do not have to afford a hearing in every case, only in those cases where some doubt has arisen--and it is not required, under the language of the treaty, for a tribunal to make that determination. In the case of the drug smugglers, it makes perfectly good sense for the commanders to make the determination that doubt has not arisen. It does not make sense, nor is it fair, in the case of fighters picked up in Afghanistan--but it is within the literal wording of the text. It is not a violation of international law."

Specifics of the case notwithstanding (do FARC members even get POW protection?), I don't think it provides an adequate warrant for Anderson's point. What that situation shows is that America doesn't have to entertain frivolous motions for POW status. I'm not even sure I buy that argument--is it really that much of an imposition to have a petition sent to a tribunal who will summarily reject it? However, even granting it as true, it ignores a key distinction: the claims of the Afghan detainees are not necessarily frivolous. Certainly, it is not so cut-and-dry that the executive branch can unilaterally make the determination of "no doubt" for the entire class of detainees. In the case of the single FARC claimant, it is one person making a claim that is almost certainly false and/or irrelevant. In the case of the Guantanomo Bay detainees, it is an entire class of persons, some of whom conceivably have valid claims. These are distinct situations, and especially given the ambiguity of the clause, not to mention the clear intention of the treaty which was designed to prevent government's from inflicting arbitrary abuse on captured warriors, the treaty still seems, to me, to mandate a hearing for the Guantanomo Prisoners.

Powerline's second objection can be parsed down to this sentence:
"But if those who (unlike Powell) were actually in charge of the interrogations had believed that preexisting techniques were effective, the issue of whether it is lawful to employ additional techniques would never have come up."

This seriously misstates the issue at hand. First of all, it's entirely possible that the current tactics were working fine, and the military might still want to have available more aggressive techniques. They might want them for unforeseen contingencies, or they may be satisfied with the current results but want to keep their options open, or they might just be lusting for more power. But more fundamentally, the point is wholly irrelevant to the debate at hand. Part of being a Democracy is that we go into combat with one hand tied behind our back. We cannot utilize every single action or tactic that our enemies might avail themselves to. It's unfortunate, in a sense, but it also gives us the moral legitimacy that justifies us fighting in the first place. Powerline argues that "[l]ike so many liberals, the Post's editors want to assume away any tension between the need for effective interrogation and the desire not to use harsh techniques." That isn't true. We might acknowledge a "tension" in certain circumstances, however in a constitutional form of government we cannot unilaterally decide to toss out rule of law whenever circumstances would make that a convenient option. Maybe in cases of overriding national importance (like a nuclear warhead hidden in New York City), I could see the logic behind Powerline's position. But it is repugnant to our legal traditions to make this the default standard. Nor does the government's claim that "we are at war," and thus every action can be justified as "self-defense," save the argument. Again, in certain circumstances that works just fine, but it can't be applied prospectively to every possible threat that might hit our borders. There is a qualitative difference between seeking to avert a vague, looming, or potential threat; and acting to defuse an imminent attack on our nation. The Bush administration papered over this difference with Iraq, and their defenders are doing again here.

Powerline attacks on the Post's editorial fundamentally lack merit. They rest on a flawed view of what the Geneva Conventions require, and they are all too quick to negate the rule of law and constitutional governance which give our nation legitimacy. There may be some room for argument on the fitness of Gonzales to serve as Attorney General. But the Post's argument is quite rational, and to me quite persuasive.