Brick Wall

I never thought I'd say, but kudos to Bill O'Reilly. He questioned Bush quite aggressively about waterboarding, and didn't back down. Andrew Sullivan has the excerpt.

His superb efforts notwithstanding, O'Reilly did not get any actual information out of the obfuscator-in-chief. Bush almost comically defiant in answering O'Reilly's questions.

O'REILLY: Now Brian Ross of ABC said — reported the CIA water boarded Mohammed. That is dunked him in water, tied him down and then that broke him. Is that true?

BUSH: We don't talk about techniques. And the reason we don't talk about techniques is because we don't want the enemy to be able to adjust. We're in a war.

O'REILLY: Is water boarding torture?

BUSH: I don't want to talk about techniques. And — but I do share the American people that we were within the law. And we don't torture. We — I've said all along to the American people we won't torture, but we need to be in a position where we can interrogate these people.

O'REILLY: But if the public doesn't know what torture is or is not, as defined by the Bush administration, how can the public make a decision on whether your policy is right or wrong?

BUSH: Well, one thing is that you can rest assured we're not going to talk about the techniques we use in a public forum. No matter how hard you try because I don't want the enemy to be able to adjust their tactics if we capture them on the battlefield.

Re-read the answer to that last question. Question: How can the public judge your policy if you refuse to tell us what your policy is? Answer: "You can rest assured" we won't tell you the policy!

Gosh, I'll rest easy! That's not an answer, that's Bush telling me he won't answer and I better like it, dammit! I suppose I should thank him for the privilege that he deigned to tell me that much.

Of course, substantively, Sullivan notes that any terror suspect who hasn't figured out that waterboarding is a possibility is a moron. So Bush's refusal to say exactly what policies he is implementing "to make America safer" isn't because it's a security risk. It's because Bush has a pathological fear of oversight. And given some of the abuses that haoccurredred and have been endorsed under his watch, I'd say he has good reason to fear.

Fighting Terrorists and Dark Wizards

I know I'm not the first blogger to link to Rick Santorum's rather ludicrous "Eye of Mordor" article. I love The Lord of the Rings as much as anyone, but I'm not sure I want to create foreign policy around it. But anyway, that isn't the point. I just want to express my amazement at a particular argument I've heard made that I think has serious moral problems. Rick isn't the only one whose made it by any means, but he certainly framed it more colorfully than most:

"As the hobbits are going up Mount Doom, the Eye of Mordor is being drawn somewhere else," Santorum said, describing the tool the evil Lord Sauron used in search of the magical ring that would consolidate his power over Middle-earth.

"It's being drawn to Iraq and it's not being drawn to the U.S.," Santorum continued. "You know what? I want to keep it on Iraq. I don't want the Eye to come back here to the United States."

Generally, the more sober version of the argument is the classic "better to fight terrorists in Iraq rather than here at home." (Or as a classic Doonesbury had an Iraq-deployed soldier question Bush "You really think Iraqi troops are poised to invade Yankton, South Dakota....I mean, yes, better here than in Yankton, sir!"). The problem with this line of reasoning, from a moral perspective, is it basically justifies plunging any random country into chaos and destruction so they have to bear the brunt of al-Qaeda's assualt instead of us. It effectively uses Iraqi civilians as human shields in our conflict with terrorism. If the terrorists who would have been attacking America are now attacking Iraq, then the counterfactual is that if we weren't in Iraq, the terrorists wouldn't be attacking Iraqi civilians either (because they'd be fighting us here). Now, like Garry Trudeau's soldier, I'm skeptical that Salafist radicals were poised to attack Yankton. But, under this line of argument, the reason we should be celebrating the Iraq war is because it's worthless Iraqis who are dying, not precious America lives. That's wrong morally, and utterly demolishes any claim these advocates have that we truly care about the prosperity and well-being of the Iraqi people.

Interfaith Exchange

Well this is just precious:

A Muslim journalist facing charges of sedition for advocating ties with Israel was recently attacked and beaten by a crowd in Bangladesh that allegedly included leading officials of the country's ruling party, The Jerusalem Post has learned.

Salah Uddin Shoaib Choudhury, editor of the Weekly Blitz newspaper, an English-language publication based in the Bangladeshi capital of Dhaka, was working in his office on October 5 when nearly 40 people stormed the premises.
[...]
No arrests were made, and police refused to allow Choudhury to file charges against his attackers.

As the Post first reported last month, Bangladesh is moving forward with plans to try Choudhury on charges of blasphemy, sedition, treason and espionage in connection with his articles critical of Islamic extremism and favorable to Israel.

After several delays, his trial is due to start in Dhaka on Thursday. If convicted, Choudhury faces the death penalty.

The charges stem from November 2003, when Choudhury was arrested at Dhaka's International Airport as he was preparing to board a flight on his way to Israel, where he was due to deliver a speech on promoting mutual understanding between Muslims and Jews.

There's something deliciously ironic about arresting someone for preaching tolerance. All I can say is, hopefully Keith Ellison fares better.

Keith Ellison To Visit Israel

Keith Ellison, who, if (as is expected) elected, would become the first Muslim representative in Congress, has announced he will visit Israel immediately upon election, Shmuel Rosner reports in the prestigious Israeli paper Ha'Aretz. Ellison, who is running in a Minneapolis-based district, has received the endorsement of local Jewish groups, but has been plagued by allegations of anti-Semitism and links to the the Nation of Islam (Powerline has been pushing this line rather hard). The trip to Israel can be seen as an effort to show Jewish voters he's not antagonistic to his interest. I took with particular note his rhetoric on the current status of the Israeli/Palestinian conflict:

"The template set forth by the roadmap for peace currently provides the best outline for achieving a two-state solution to bringing about a lasting settlement. Right now Hamas represents the greatest obstacle to this path, and until Hamas denounces terrorism, recognizes the absolute right of Israel to exist peacefully and honors past agreements, it cannot be considered legitimate partners in this process."

That's strong (and sensible) language, and it sounds legitimate to me. Rosner notes that a Muslim congressman giving support to Israel is important--worth the trade-off even if he votes with Israel 70% of the time as opposed to 100% for an AIPAC peon. Of course, that depends on what the particular votes are (in both directions: blind support for Israeli policies--or more accurately, AIPAC's conception of Israeli interests--benefits nobody, including the Jewish community). But in general, I think it is important to build these bridges, and I hope soon-to-be Rep. Ellison can serve in that role. Certainly, his issues page on the subject is all I could ask for and more.

In a somewhat related note, Israeli PM Ehud Olmert called for peace talks with Lebanon and a face to face meeting with Lebanese Prime Minister Fuad Saniora, who rejected the proposal within hours. Saniora proclaimed that Lebanon would be the "last Arab state" to make peace with Israel. But assuredly, they can be trusted to disarm Hezbollah.

Schlesinger Takes The Hard Line

The three-way Connecticut Senate debate between Ned Lamont, Joe Lieberman, and Alan Schlesigner just went off. Apparently the line is that Schlesigner was surprisingly strong. But I just wanted to focus on the "hard-line" approach he took on immigration:

"Alan Schlesigner is the only one on this stage who has a tough policy. I want to build the walls. I want to make sure there is no road to residency. I am the son of a legal immigrant. There are people today who attempted to come here as legal immigrants and died. Now we've got people flooding into this nation for no other reason than they want a better life for themselves...."

A better life for themselves? For shame! We must stop them at once!

Kos says this rhetoric might result in Schlesigner peeling away enough White blue-collar voters from Lieberman to give Lamont the victory. I shudder to think that criticizing the desire for a better life suddenly became a winning political tactic.

Classic Homophobia

University of Minnesota Law Professor Dale Carpenter helps illustrate how the conservative response to the Mark Foley scandal falls into classic homophobic patterns that have been used to discriminate against homosexuals for generations. He cites Yale Law Professor William Eskridge as arguing that

anti-gay prejudice has been marked historically by three characteristics. These are: (1) "hysterical demonization of gay people as dirty sexualized subhumans"; (2) "obsessional fears of gay people as conspiratorial and sexually predatory"; and (3) "narcissistic desires to reinforce stable heterosexual identity . . . by bashing gay people." The primary historical traits of homophobia are thus hysteria, obsession, and narcissism.

And goes on to show how the Republican response to Foley illustrates all three; hysteria by trying to transport Foley's problem onto the gay community as a whole, obsession by conjuring an uber-powerful "Velvet Mafia" that tied the hands of the GOP leadership and protected Foley from punishment, and narcissism by arguing to themselves that the only way to check future Foleys is to reinforce their radical right, anti-gay agenda.

It's good stuff. H/T: VC

Class Application

Some of my veteran readers may remember my posting on Fisher v. Lowe, a 13 line Michigan court decision distinguished only by the fact that it is presented in rhyming couplets. It's funny in of itself, but I never thought it would have any real significance, classroom or otherwise.

But alas, today I was proven wrong, as my Political Science professor used Fisher to press on the issue of what makes something recognizably a judicial opinion (drawing from Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L. Rev. 551 (1982)). Because while Fisher is certainly not a classic opinion, most people, upon reading it, would recognize it as one--especially if they saw it in a legalistic context (e.g., a reporter). But of course, not everything a judge writes would be so recognized--if a judge sent West a copy of his grocery list and said "report this", there would probably be some push back.

So what about it? What makes an opinion recognizably judicial?

So Very Very Tired

This week has been brutal, and things don't look to clear up until at least the weekend. And right now I got a booming headache for no discernable reason. So that's why posting has been so sporadic. Sorry guys.

The Cynic In Me

"Do not commit the error, common among the young, of assuming that if you cannot save the whole of mankind you have failed." --Jan de Hartog

Blog emperor Jim Chen (no offense, Paul Caron!) has revealed that he regrets his decision to go to law school. Over at Joint Strike Weasel, law student Ivan Ludmer explains why he does not want to become a legal academic, contrasting himself to little ol' me, for whom it is the "dream" job. Dissatisfaction in the ranks? Maybe I should re-evaluate.

So why do I want to become a law professor? Well, just in terms of tangible concerns, it's a pretty sweet gig. Good benefits, solid pay, interesting work, and "time off" in the summer. Yes, I know that this "time off" isn't actually just downtime, but that's just it: I actually enjoy this stuff. It isn't "work" in the sense that pushing papers or filling in data sets is.

But generally, there is another context in which I end a statement with "that's why I want to become a professor." It stems from pure and total disillusionment. One of Ivan's objections to the noble professoriate is that the vast majority of the scholarship is both unread tripe. And even if it is read, it isn't being read by the right people. I think he might be slightly overstating the case, but I'll concede the general point. Insofar as I still hang on to my "save-the-world" mentality, a professor is in a surprisingly bad position to do it. However, I'm sufficiently disenchanted with the world such that I don't think I'll be able to save it (or that it is savable) from any positon I choose to take.

Hence we get our phrase. "That's why I want to a professor. I want to sit back and hurl rocks at the establishment from my Ivory Tower." The ideal, of course, is that one of them might bludgeon a stray politician on the way down, and he, upon waking up, might pull a Paul of Tarsus and see the light. That's the dream. And just in case I hit that lottery, I want to be in a position so that my rocks actually contain good ideas. Put differently, if I became, say, a lobbyist, the odds that I'd have an impact on the world would be significantly higher than the odds as a professor, but the odds that the impact would be good would be quite a bit lower. I'd rather fail at doing good, than succeed at doing evil (or to be more charitable, succeed while remaining acquiescent in the big injustices).

But at the end of the day, my desire to become a professor isn't really dependent on even that tiny beacon of hope that I might not only have the freedom to create The Idea That Saves Humanity, but implement it as well. I don't believe it will happen. I just want to be left alone. You can continue to make dumb arguments, and oppress gay people, and wonder just how excruciating the pain has to be before torture becomes torture. Just let me have my little slice of tenure, and stay off my turf.

One can certainly chide me on this regard. It's a cheap way out to assert that, just because the world doesn't behave exactly as you like it, the solution is to retreat into a few isolated fortresses of intellegensia and barcade yourself from external hate and misery. Hit the trenches, man! Charles Fried once admonished: "As so often happens, the skeptic here is a disappointed absolutist, taking his revenge on the world for depriving him of all the right answers at once." Maybe so. But when the world continually answers wrong on the simple yes/no question, "it's okay to tolerate genocide", I feel some degree of cynicism is justified. I'd turn the question around: If I'm not the only academic-prone person who feels this way (and I know I'm not), what is causing this ailment? What is it that is causing despair to win out over hope?

The cynic, as I once read, is rarely someone who doesn't care but someone who cares too much. And while the post comes on a downswing, I do vacilate between focusing on the possibility that the world could come to its senses on the issue of, say, genocide (yay!) versus the reality that it hasn't (boo!). Even so, and even though I may be a particularly bad case, I do think that this sort of disenchantment is setting in earlier than normal on my generation. And I think we have to ask ourselves why.

Homosexuality versus Pedophilia

Mark E. Pietrzyk has a quite fascinating article on the alleged link between homosexuality and pedophilia. He examines the question on two axes: The scientific data as to whether homosexuals are more likely to be pedophiles, and the analytic argument as to whether liberal views on sexuality are breaking down the "traditional" norms present in the Judeo-Christian ethos which serve as the primary barrier to adult-child sexual relations. In both cases, he finds that the Christian right has completely abused the statistics and the history to suit its agenda. The scientific data proves the exact opposite of their point, and the history of both Medieval Judaism and Medieval Christianity show a shocking acquiesence to pedophilia, especially regarding the sexual betrothment of pre-pubescent girls. In fact, he argues, the modern taboo against child sexual relations has only recently (past two centuries) begun to solidify, and reflects the enlightenment liberal tradition which places particular emphasis on the ability of children to consent (as well as more modern liberal norms about the automatic power imbalance between adults and children in a relationship, and the physical and psychological harms such relationships can cause).

A brief snippet of the scientific section, because I think that point is really important:

A. Nicholas Groth is a pioneer in the scientific study of sexual offenders against women and children, who has treated over 3000 child molesters over the course of two decades. A former director of the Sex Offender Program at the Connecticut Department of Corrections, Groth is the author of Men Who Rape: Psychology of the Offender, a work widely regarded as a classic textbook on the psychology of sexual violence. In his work, Groth has found that approximately one‑third of all cases of child molestation involve an underage boy and an adult male, a statistic which has been used incessantly by certain conservative activist groups in an effort to prove that homosexuals are disproportionately responsible for acts of child molestation. However, Groth explicitly states that it is a myth that men who molest boys are homosexual.

According to Groth, child molesters can be divided into two types: "fixated" and "regressed." The fixated offender is attracted primarily to children and has little or no interest in adult relationships; such a person is known in clinical terms as a "pedophile." The regressed offender is interested in and capable of adult sexual relationships; however, this person may on occasion regress to sexual encounters with children, often as a result of difficulties and frustration in his adult relationships.

Groth writes that the fixated offender, or pedophile, tends to select boys more often than girls, but for reasons having nothing to do with homosexuality:

In general, fixated child molesters are drawn to children sexually in that they identify with the child and appear in some ways to want to remain children themselves. It is for this reason that the trend for fixated offenders is to target boys as victims. . . . They see the boy as a projected representation of themselves. They feel themselves to be more child than adult – more boys than men – and therefore find themselves more comfortable (especially sexually) in the company of children. . . .

Groth stresses that "these same individuals are uninterested in adult homosexual relationships. In fact, they frequently express a strong sexual aversion to adult males, reporting that what they find attractive about the immature boy are his feminine features and the absence of secondary sexual characteristics such as body hair and muscles." The second type of offender, the regressed offender, is predominantly heterosexual. However, he may temporarily turn to boys or girls as a result of complications in his adult relations. Although regressed offenders are more likely to choose girls than boys as victims, writes Groth, what attracts the regressed male offender to boys are the feminine characteristics of pre‑ pubescents. Groth found no cases of boy molestation in which the offender had an adult homosexual orientation. Concludes Groth,

Homosexuality and homosexual pedophilia are not synonymous. In fact, it may be that these two orientations are mutually exclusive, the reason being that the homosexual male is sexually attracted to masculine qualities whereas the heterosexual male is sexually attracted to feminine characteristics, and the sexually immature child’s qualities are more feminine than masculine. . . . The child offender who is attracted to and engaged in adult sexual relationships is heterosexual. It appears, therefore, that the adult heterosexual male constitutes a greater sexual risk to underage children than does the adult homosexual male.

The religion part of Pietrzyk's article is eye-opening. The science section is just a classic smackdown. The entire thing is worth reading.

H/T: Andrew Sullivan

Midget Insurgents and Other Tales

Via Kevin Drum, Time Magazine printed a letter from a Marine officer stationed in Iraq, kind of a High School year book "best..." "most..." "coolest..." "worst..." type of thing. There's plenty of depressing news in it, I'll spare you the details. Instead, I'll just pick out the funniest stories.

Most Surreal Moment -- Watching Marines arrive at my detention facility and unload a truck load of flex-cuffed midgets. 26 to be exact. We had put the word out earlier in the day to the Marines in Fallujah that we were looking for Bad Guy X, who was described as a midget. Little did I know that Fallujah was home to a small community of midgets, who banded together for support since they were considered as social outcasts. The Marines were anxious to get back to the midget colony to bring in the rest of the midget suspects, but I called off the search, figuring Bad Guy X was long gone on his short legs after seeing his companions rounded up by the giant infidels.
[...]
Coolest Insurgent Act -- Stealing almost $7 million from the main bank in Ramadi in broad daylight, then, upon exiting, waving to the Marines in the combat outpost right next to the bank, who had no clue of what was going on. The Marines waved back. Too cool.
[...]
Best Chuck Norris Moment -- 13 May. Bad Guys arrived at the government center in a small town to kidnap the mayor, since they have a problem with any form of government that does not include regular beheadings and women wearing burqahs. There were seven of them. As they brought the mayor out to put him in a pick-up truck to take him off to be beheaded (on video, as usual), one of the Bad Guys put down his machinegun so that he could tie the mayor's hands. The mayor took the opportunity to pick up the machinegun and drill five of the Bad Guys. The other two ran away. One of the dead Bad Guys was on our top twenty wanted list. Like they say, you can't fight City Hall.

Oh, by the way, the Marine has been IDed. He's Col. Pete Devlin, Chief of Intelligence for the Marine Corps, and the author of the report claiming that we have lost the Anbar province. Interesting.

Swift-Boated

Navy Lt. Commander Charles Swift, military attorney for Salim Hamdan (e.g., the plaintiff in the landmark case of Hamdan v. Rumsfeld), is out of the Navy (involuntarily) after being denied a promotion to full Commander. The Navy has an "up-or-out" system whereby persons not promoted to Commander are then retired from the Navy. Swift received word he would not be promoted two weeks after defeating the Bush administration in front of the Supreme Court as to the subject of whether the President could unilaterally deprive Hamdan and other detainees of due process rights and the right to a trial in front of a regularly constituted courts (rather than the mutant abominations of justice we call military tribunals). The Seattle Times illuminates just how unjust this decision is:

n the opinion of Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, Swift was "a no-brainer for promotion," given his devotion to the Navy, the law and his client.

But, he said, Swift is part of a long line of Navy defense lawyers "of tremendous distinction" who were not made full commander and "had their careers terminated prematurely."

"He brought real credit to the Navy," said Fidell. "It's too bad that it's unrequited love."

Swift's supervisor, the Pentagon's chief defense counsel for Military Commissions, said the career Navy officer had served with distinction.

"Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, a former American Civil Liberties Union attorney, calling it "quite a coincidence" that the Navy promotion board passed on promoting Swift "within two weeks of the Supreme Court opinion."

In June, the prestigious National Law Journal listed Swift among the nation's top 100 lawyers, with such legal luminaries as former Bush administration Solicitor General Theodore Olson, 66; Stanford Law constitutional-law expert Kathleen Sullivan, 50; and former Bush campaign recount attorney Fred Bartlit, 73.

"Quite a coincidence" indeed. Let's be clear: the above accolades show quite clearly that Swift was not denied his promotion because he was unqualified. He was denied it because he was too qualified. Swift was a Pentagon appointee to this case, and apparently they were taken aback by the zeal with which he defended his client. So they got rid of him.

It's also worth noting that this sordid episode obliterates any claim towards the independence of the "military tribunals" that Bush wants to be the ultimate arbiters of guilt and innocent for detainees. Swift did his job as a defense attorney for the military. And he was kicked out. I'm quite confident all the other JAGs and military personnel who would be assigned to defend alleged terrorists have got the message loud and clear.

In the spirit of a true Navy lawyer, Swift says that he would do it all over again, even if he knew that defending Hamdan woul lead to the premature end of his military service. Good for him. And thanks to the broke no dissent culture of the Bush administration, the Navy has lost one of its best.

Tasty, Tasty Diversity

One of things that is rarely noticed in the affirmative action debate is that business loves AA. And the reason is because a diverse workforce is a more productive and a more profitable one. Workplace Prof Blog tells the interesting story of Frito-Lay utilizing its diversity to drill its introduction of "Guacamole" flavored Doritos. The Wall Street Journal elaborates on how businesses are starting to devote more attention and manpower to diversity issues, giving the executives in charge a greater mandate, and greater top-level executive involvement. The article also outlines five challenges diversity programs face today:

Challenge 1: The difficulty of communicating effectively when diversity-related data include sensitive information such as age, gender, ethnicity, religion and sexual orientation.

Challenge 2: The slowness of change and progress brought about through diversity initiatives, which is especially difficult in fast-paced cultures that want to see immediate results.

Challenge 3: Obstacles to ensuring the consistent and rigorous implementation of diversity programs across large, dispersed organizations.

Challenge 4: "Diversity fatigue," which occurs when employees become desensitized to the many diversity messages they receive through diversity training, recruitment programs and outreach projects.

Challenge 5: Keeping white males from feeling overlooked in diversity programs.

In related news, Eric Rauchway comments on Walter Benn Michaels's new book, The Trouble with Diversity, whose thesis is getting kicked around the blogsphere. Michael's thinks that liberals focus too much on diversity, and too little on inequality. I think that diversity is a really important way to end inequality, primarily because inequality is a particularly non-diverse descriptor.

Target Identified

Michael Crowley reports on a recent MSNBC talkingfest, where conservative pundit Armstrong Williams called for hawkish action against North Korea, and its mysterious leader "Jon Kim Il" (aka "Jon Kim Yung"). Of course, the actual leader of North Korea is Kim Jong Il. But no matter, it is absolutely, positively crucial that we attack what-his-face over there!

Pluralism Among The Survival Set

Twisty of the well-known "I Blame The Patriarchy" blog remarks on women who defend their enjoyment of certain patriarchal trappings (think Carleton's "Feminists for the use of mascara" group):

[P]atriarchy, though ubiquitous, is largely invisible. Women are understandably reluctant to concede that their deep attachment to the trappings of patriarchy (marriage, femininity, gender, fashion, porn, religion, beauty, the nuclear family, pink tool kits, et al) is not the manifestation of empowered personal autonomy, but rather a survival skill.

There's something to this, but I'd modify it to say that it is very difficult to disentangle a genuine preference from a "survival skill" in a world as bound up in patriarchy as this one. I'd unwilling to simply assert that these preferences are (period, stop) the result of patriarchy. Counterfactuals are tough, and people are idiosynchratic. I'm skeptical of folks who think they have The Answers when it comes to why people choose the way they do, especially when it comes down to structurally deterministic factors. This isn't to say that Twisty's point is wholly without merit--I have no doubt that women subsume the impact of patriarchal structure on their decisions for precisely the reasons Twisty says they do. I'm just not willing to say that represents the whole story for the whole gender.

Via Feministe

Evil of a Different Sort

I've been debating with Mark Olson about the relative horribleness of the detainee treatment bill. As far as I can tell, we both now agree it does some really bad things, and only disagree as to how evil it is. But since Mark seems to agree that a) the torture stuff is really bad and b) the inability for any person in any situation who is detained to assert habeas is bad, I can safely claim vindication in my original lamentation of the bill and the blot it puts on America's conscience.

Several months ago, I penned a post on a wholly different topic: The 4th Circuit case of Jordan v. Alternative Resources Corporation. The 4th Circuit is the most conservative in the nation, but even I was shocked at how far they descended to obliterate civil rights protections here. Here are the facts and judgment of that inkblot:

Jordan worked for IBM. As many of you know, the "DC Sniper" was operating in our area, causing much fear and tension. The two snipers (both of whom were Black) were caught while Jordan was at work. One of his fellow employees, seeing the news, proclaimed: "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." Jordan consulted with several of his other coworkers, who confirmed that this particular employee had made comparable comments many times in the past. Pursuant to IBM policy, which mandated that employees report racial harassment, Jordan filed a complaint. His supervisor responded by changing his work hours to less convenient times, making a derogatory gesture and comment towards him at an office party, and within a month firing him. It does not appear that anyone is seriously arguing that these actions were not retaliatory. Incredibly, the Court found that this did not constitute a retaliatory action in violation of Title VII, because Jordan could not even have reasonably believed that his coworkers action could have created a hostile work environment.

So, yeah. Nuts case. My usage of "evil" in that case was less serious than with regards to torture, and more "why does the 4th circuit not care about basic principles of justice." So, it's not as bad as, say, extra-judicial torture. But it's still pretty sucky. Anyway, Dan Filler reports that, by a 5-5 vote, the 4th Circuit has voted to deny en banc review, effectively killing any hope of overturning the ruling. So now, in my homestate of Maryland and throughout the 4th circuit realm, your corporation can mandate that you report racist remarks, then fire you for reporting them, and then you can be subjected to the indignity of a court telling you that you were "objectively unreasonable" for believing that a co-worker with a history of racist remarks talking about putting "two black monkeys in a cage with a bunch of black apes and let[ting] the apes fuck them" might create a hostile work environment.

Hooray for judicial conservatism!

We Know Whose Fault This Is

So the latest GOP spin on Foley-gate is that it's the fault of the all powerful gay Republican organization. Kevin Drum terms this "The Velvet Mafia." I don't have anything to add to the story, except regarding the name. "Velvet Mafia" is okay, but if we're talking about a secretive cabel of homosexual powerbrokers, the obvious name choice is "The Mauve Hand" (yes, I'm stealing from Robin Williams). I mean, seriously. Get with it, people.

In any event, this sordid story could put the final nail in Tom Reynolds' coffin at least. Even Hastert hasn't gotten rocked by this story as the New York congressman has.

Tag! You're Detained!

Mark Olson takes issue with my criticism of the Magna Carta Repeal Act of 2006. He claims I don't provide an alternative. The argument only works because he shoehorns me into one utterly implausible "alternative" of Mirandizing combatants on the battlefield. We can't do that, so clearly we should just assume the power to randomly detain people without show of cause. Somehow, in all the twists and turns of my hyperactive imagination, I have to think there is a middle ground. And wouldn't you know it, there is! Habeas review, pride of the West since 1215. So there's my alternative: post-detention habeas review.

Here's the full critique of Mark's post, and why some form of impartial review of detainee status is both a) plausible and b) required under Geneva.

When we detain someone (for example, capturing them on the battlefield), I presume there is some form of processing. Name, rank, and serial number if they are members of a legitimate army. Al-Qaeda is not a legitimate army, but I'm sure we try and extract something out of these people to identify them, and even if we can't even get a name, we can take a picture or jot down notes. If they challenge the detention, we can say "you were caught here, on this date, carrying arms, out of uniform." Case dismissed. Gosh, that was easy.

Of course, there are many cases where things aren't so cut and dry. Cases where the "capturing" was done not by coalition forces, but by local bounty hunters who might have found an actual terrorist, or who might have plucked Ahmed Schmoe off the street to try and get a reward (or more likely, had a grudge against ol' Ahmed and decided accusing him of terrorism would be an excellent way to exact revenge). Both cases have been documented. Since it is bad for innocent Ahmed Schmoe to be indefinitely detained and subjected to "harsh interrogation techniques" (what a rapper might term "slappin' fools just for livin'"), we need to find a way for Ahmed to at least argue that he's the wrong guy. Not providing said mechanism is not just unfortunate. It is profoundly and unambigiously evil, and I have no compunction against calling it such. To be blunt, I cannot think of a more fundamental guarantee of a free society than for innocent people to be able to assert said innocence to a impartial judicial body upon arrest. That's absolutely bedrock. So the spin I'd put on Mark's "provide an alternative" argument is that he has to do the same: He has to demonstrate some mechanism of letting the innocent assert their innocence and have a realistic shot of going free (or else just admit that he's ready to sacrifice rule of law outright). If he doesn't like my proposal to secure these rights, then suggest an alternative. But don't pretend like you've got a "better solution" just because you ignore a wholly different set of crucial moral values.

I see no particular reason why properly constituted federal courts can't make us both happy. What parade of horribles would occur if we just allowed them to hear the evidence against the accused? No Mirandizing, no brigade of lawyers, just good old fashioned "show me something." I'd even be okay with establishing a special Article III court (in the line of FISA) if we're worried about security clearances. But it's patently absurd to just throw up our hands and say "war sucks, so bring on arbitrary detention!"

And that's the crux of the matter. Yes, most detainee protections (but not all, see below) do not apply to illegal combatants. But before we can get that far, we have to determine that they are an illegal combatant first. Geneva is quite clear on this. Article 45:

"Should any doubt arise as to whether any [detained person] is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal."

That might offend your tender sensibilities, Mark, but it offends mine a lot more to think that we can detain innocent people indefinitely without any proof they did anything wrong. One is somewhat aggravating, the other is tyrannical.

It's also worth noting that even illegal combatants have some protections under the laws of war. These can be divided into two parts: protections while in combat (or prior to detention, as in the surrender scenario) and once detained. The section Mark cites to refers to standards for determining POWs--i.e., post-detention--and is inapplicable to the former case, I'll get to it later. As to in combat, there are clearly certain lines we cannot cross even in combat with terrorists. If we dropped horrible burning acid on terrorists then slowly chopped off their extremities bit by bit, I'd call that a war crime and object strenuously. Such actions are just wrong, even when applied to the bad guys. The scenario Mark outlined, refusing to accept the mortar guys surrendering after they fired from a Mosque, would be a war crime. I have no qualms about saying that, and I am rather shocked that Mark would even consider otherwise. Article 41 specifically protects "persons" who are hors d'combat from attack, and Article 40 prohibits "giving no quarter" or even threatening it. There is no indication either is restricted only to those who would be eligible for POW status--and I don't see any reason to make that extension. Perfidy (fake surrendering) is also a war crime (Article 37), and can be prosecuted/treated as such. Put simply, we have an obligation to accept real surrenders, and no obligation to accept fake surrenders. Admittedly, perfidy is a sucky tactic from our perspective, as most immoral deceptions are. Deception makes life difficult, no question about it. But Mark's response--and I could say this for his entire sad grappling with this issue--of completely punting our moral obligations as a result betrays a profound misunderstanding of what morality is. It would be nice if we lived in a perfect world, but morality still exists in a world with immoral people. To argue otherwise is to sanction barbarianism of the worst sort. "We're fighting evil-doers, dammit" is not a response, it's a capitulation to darkness.

Moving to the post-detention case. Most important to the discussion of illegal combatant rights post-detention are Articles 45 and 75 of the Geneva Conventions. Article 45, section 3, specifically says that combatants who are not POWs (i.e., illegal combatants) still have Article 75 protection:

"Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol."

Also in Article 45 is the provision that:

"If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated."

In general, Article 45 codifies the principle that the status determination has to occur prior to other prosecution. In addition, the same article provides that the prisoner be allowed to attend the proceedings here, with the provision for "exceptional" cases where state security makes this impossible. These cases, of course, should actually be "exceptional"--making it the rule by definition makes it no longer an exception.

Article 75 contains "fundamental guarantees" that are given to every detainee regardless of status (POW or not). What is included here?

Section 2 prohibits

"at any time and in any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental well-being of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and (iv) mutilation; (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form or indecent assault; (c) the taking of hostages; (d) collective punishments; and (e) threats to commit any of the foregoing acts."

Incidentally, it's worth noting that the bill in question severely dilutes this definition, primarily by adding an "intent" requirement where Geneva has a categorical prohibition, thus circumventing the treaty.

Section 3 demands that any person detained be informed (in a language they understand) as to why they are detained.

Section 4 gives a laundry list of rights that such detainees have in any trial they are faced with. They include the right to be tried in front of an "impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure", innocence until proven guilty, right to confront witnesses and obtain witnesses in favor [with caveats for practicality], right to avoid self-incrimination, right to be present for proceedings, and generally "all necessary rights and means of defence."

***

Woof, that was long. Let's sum up:
1) Selecting people to be imprisoned forever and possibly tortured via a process that has all the procedural fairness of pointing a finger is hideously unfair and immoral.

2) Having to give Miranda rights to people on the battlefield would be dumb. Fortunately, nobody seems to advocate it.

3) Post-detention Habeas review to determine if there are grounds for detention--tried and true since 1215!--seems to be a reasonable way of adjudicating the original status claim. Some comparable procedure is required under Article 45 of the conventions anyway, and this seems to work well enough. This would help prevent random innocent people from accidently being caught up in the detention system, which is a recurring problem in the status quo.

4) Once that claim has been determined, prosecutions of illegal combatants can proceed under the rules articulated under Article 75, which guarantee basic procedural rights of the accused. Treatment of the detainees also is governed by Article 75.

5) Not adhering to the rules set down in Articles 45 and 75 constitute treaty violations.

Everyone clear?

Debater Hell

My Political Science professor handed back a paper of mine yesterday, tarring one of my arguments as "a debater's point." This, apparently, is a point I make just so I can say I've covered that base, without actually thinking the argument is important (she also responded with a (direct quote) "oh please" to another one of my claims. I love this professor). In any event, this utterly unwarranted slur against debaters notwithstanding, it seems that the political sphere is being inundated with arguments that would make any debater blanche. Seriously, what are these people thinking?

David Adnesik received a mailing from soon-to-be-ex Pennsylvania Senator Rick Santorum. It tells a harrowing tale of the horrible economic slump of 1993, caused by Bill Clinton's tax increase. Yes, I remember the 90s well. Those were dark days. Anybody who claims otherwise is suffering from irrational exuberance.

John Cole has a round-up of particularly absurd responses to Foley-gate.

Speaking of Foley, Feministe explains the issue of consent, slowly, to those having troubl with it.

A CBS segment blames massacres on the teaching of evolution and legal abortion.

Dean Barnett: Torturing innocents is a "moral compromise" we need to make in war.

I actually like the Obsidian Wings bloggers, so I won't go too harsh here, but this post on the relative power of governments and corporations by Andrew is pretty weak. It is, of course, less weak than arguments of "hooray torturing innocents" vein, so I'll spend more time on it. First, he argues that "the core principle of the Democratic Party seems to be that government is a good thing." Jon Chait has noted the falsity of this claim. Democrats are entirely agnostic to government. We don't think (like libertarians) that it is a "necessary evil", but we don't worship it as a demigod either. We like government when it works, and feel that it can work more often that people give it credit for. If it can't work, or something else can work better, that's cool too. But the real fallacy is in Andrew's cavalier dismissal of the statement that corporations have grown more powerful than government. He says they don't have the power to coerce you into buying their products, which is only true if one believes coercion to only consist of "gun-to-the-head." But even in the most narrow sense, there are definite cases where corporations have outstripped the power of government. My favorite example is Ecuador, where the government wanted to stop Texaco from engaging in rampant environmental exploitation in the eastern jungles. It couldn't, though, because Texaco's annual revenue was 4x that of the entire country's GDP. Put simply, it was entirely under the company's heel. Examples of corporations hiring out paramilitary groups in Southeast Asia abound, making even the "gun-to-the-head" example a reality. Finally, the geographical fluidity of many companies makes even basic law enforcement difficult. The New York Times reports on a case of toxic waste dumping in the Ivory Coast, which "came from a Greek-owned tanker flying a Panamanian flag and leased by the London branch of a Swiss trading corporation whose fiscal headquarters are in the Netherlands." Where on earth do we start? Andrew is far too sanguine about the growing pernicious influence of MNCs.

Violence Against Women As Violence Against People

Redundant? Perhaps. Or perhaps not. USC Law Prof Ann Bartow points me to an interesting post at terrorism directed at women:

Unfortunately as women, we have no nation, we have no police force, we have no military and so we cannot launch any war on this terrorism which is waged against us every day, every night, and has been for millennia. More unfortunately, these acts are not even recognized as terrorism. But that is precisely what these acts are. They are acts of terrorism intended to subjugate the people of women and to keep us enslaved, intimidated, silenced.

This violence is pervasively underreported and underestimated. Bartow quotes prominent feminist Catherine MacKinnon in her book Are Women Human? as saying that as many women are murdered by men as were killed in the 9/11 attacks. Yet there is little outcry beyond the individual incident, or demand for systematic reform.

In the same vein, I highly recommend this article by Ayaan Hirsi Ali, on the virtual enslavement faced by many Muslim women in Europe. Ali calls on a long overdue effort by government to stamp out this brutal and oppressive practice, where even stepping outside the home is grounds for an "honor killing."

Forgotten Refugees

I found this Wikipedia entry about the Jewish exodus from Arab lands to be quite interesting. Obviously, it's wikipedia, so take it with whatever grain of salt you give to that august research tool. I kind of vaguely knew that many Jews fled Arab countries as the 20th century progressed, but I had no idea it was this bad. The cause of the exile was rather standard fare (for Jews)--violence, oppression, anti-Semitic riots, anti-Jewish legislation. But it's the magnititude that is truly astounding. The entry claims that the Jewish population in Arab states declined 99 percent from 1945 to the present day, from a base population of between 758,000 and 866,000 Jews to fewer than 7,000. To compare, the article claims that the Arab population in Israel has actually rebounded to exceed its pre-1948 level.

Of course, few people talk about the Jewish refugees. One reason is that most have resettled in Israel, rather than being held in an indefinite limbo by the UNRWA because nobody was willing to take them (this, in itself, is a rarity for Jews, as prior to Israel most states, including America, were quite skittish about admitting Jewish immigrants). Another reason, to be blunt, is that the victims are Jews, and exile and oppression are just par for the course. I truly believe that the international community has incorporated a base of violence and oppression against Jews that is considered to be the norm, and will only condemn gross deviations from that norm. They are not at all interested in lowering that baseline or (perish the thought) eliminating anti-Semitic ideologies and actions in the global sphere. The idea of a Jewish refugee isn't shocking to anyone who has internalized the "mark of Cain" narrative about the Jewish people. What is shocking (and unsettling) is that these people found a homeland which has greeted them with open arms and full acceptance. That is an unforgivable sin.

Most Trusted Institution

This editorial by Charles Dunlap, an Air Force JAG, on the use of the military in civilian law enforcement, is interesting all around. But there was a really intriguing tidbit that I wanted to point out particularly:

Americans don't seem especially worried about increasing the full-time military's role. Despite troubles in Iraq and detainee abuse scandals, polls show that the armed forces are the most trusted institution in American society. Nevertheless, few models exist around the world in which the recurring use of militaries in law enforcement furthers democratic values.

I have to admit, I was a bit surprised to read that the military is "the most trustd institution" in America. Not because I don't hold a high respect for our armed forces. But when I think of states where the military is held in higher esteem than any other institution, I think of states like Turkey--imperfect democracies where the people rely on the military to preserve internal order and are willing to accept some degree of military control over government to do it.

I think this is indicative of a broader American perspective coming into view now, that is rapidly losing its mistrust of centralized authority or power. Times were that Americans were overwhelmingly suspicious of having an army at all--a proposal by Elbridge Gerry to limit the size of the armed forces was defeated only when George Washington demanded a corrallary limiting invading armies to the same size. American's no longer fear loss of liberty, so we've become complacent. The result is the pro-torture and anti-habeas corpus fiasco congress just passed.

H/T: Kenneth Anderson

They Know Not What They Do

It's pretty rare you're hear this blogger quoting Jesus on any subject. But I'd imagine the man would have some pretty choice words on the issue of torture specifically, and being railroaded to "justice" without cause generally. And while I am optimistic that the courts will enjoin at least some of the more appalling provisions, it is every person's duty stand up and oppose this hideous blot on our nation's character and conscience.

The bill itself is, to put it gently, indefensible. The Washington Post sums up just a few of its naked violations against the civil rights we've expected since the era of the Magna Carta:

The Senate joined the House in embracing President Bush's view that the battle against terrorism justifies the imposition of extraordinary limits on defendants' traditional rights in the courtroom. They include restrictions on a suspect's ability to challenge his detention, examine all evidence against him, and bar testimony allegedly acquired through coercion of witnesses.

It's important to note that the most horrifying portions of this bill are how they eviscerate protections at the procedural level. One can believe that we should treat illegal combatants differently than POWs--I agree. But as was pointed out by Stanford Law Professor and detainee expert Jenny Martinez, it is an inversion of basic principles of justice to apply said punishment as part of the procedure for determining who deserves the punishment itself. Or to use her rhetoric:

Holding military commission trials that do not afford basic due process is...like saying that the best way to deter street crime is by subjecting street criminals to kangaroo courts. The necessary deterrence ought to be provided by the ultimate punishment imposed, not by the process itself. [emphasis added]

Or in otherwords, "you're a terrorist, so you can't challenge whether you're a terrorist, because that would give terrorists rights." It's unreal.

It seems there are two minds among commenters opposed to this radical abuse of power. The basic question is whether or not the Senators and Representatives really recognized the gravity of what they've done. Two of the most respected legal scholars in America today could barely contain their shock over the bill's provisions:

University of Texas constitutional law professor Sanford V. Levinson described the bill in an Internet posting as the mark of a "banana republic." Yale Law School Dean Harold Koh said that "the image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it's not clear that most of the members understand what they've done."

On the one hand, it seems impossible that anyone could dispassionately look at these provisions, realize they are essentially disregarding the basic panoply of rights that have been protected since the 13th century, and still vote in favor of the bill. I can't believe that there are over 60 senators that really have that little respect for basic legal protections. On the other hand, this debate was public, open, and it seems equally impossible to believe that our elected representatives wholly ignored the huge cry of alarm that arose from those who recognized this bill for what it was. What exactly have they been doing over these past few weeks?

My own belief is that the people who voted for this bill deluded themselves. They are vaguely aware of how awful it is. But they have managed to convince themselves (by any number of intellectual gymnastics that I can't even fathom) that the bill is necessary, or not so bad, or that these are terrorists and we can do whatever we want to them, or soemthing. And thus they vote "yea", because they don't want to look weak (or they want to make Democrats look weak). After all, for all the desperate attempts for our constitutional guardians to sound the alarms, this bill went off with a whimper, not a bang. Whatever the reason, these people are not living in reality.

And as far as I can tell, I'm not living in America.

Marginalize Lott. Vote Dem

Trent Lott on Iraq:

President Bush barely mentioned the war in Iraq when he met with Republican senators behind closed doors in the Capitol Thursday morning and was not asked about the course of the war, Sen. Trent Lott, R-Mississippi, said.

"No, none of that," Lott told reporters after the session when asked if the Iraq war was discussed. "You're the only ones who obsess on that. We don't and the real people out in the real world don't for the most part."

Lott went on to say he has difficulty understanding the motivations behind the violence in Iraq.

"It's hard for Americans, all of us, including me, to understand what's wrong with these people," he said. "Why do they kill people of other religions because of religion? Why do they hate the Israeli's and despise their right to exist? Why do they hate each other? Why do Sunnis kill Shiites? How do they tell the difference? They all look the same to me."

Now, aside from the weird implication that the only form of violence Lott understands is against people who don't "look the same" (which is a lovely sentiment coming out of Mississippi), I think we can agree that there are plenty of "real people" who care about what is happening in Iraq. Lott apparently isn't one of them. Since I want people who do care about what's going on in Iraq to be setting Iraq policy, I want to marginalize Lott as much as possible. How do I do that? By voting Democrat and relegating him to the back bench.

It's about priorities. And Lott and the GOP don't share mine.

What a Quaint Speech

In a must-read post, Publius puts the words of the President side-by-side against relevant portions of the detainee treatment act. I'd say it's pure gold, if it wasn't so bitter to read.

But read you must. The fate of America's soul lies in the passage or failure of this bill.

Pro-Life Principles

Amy Uelman offers three principles that she thinks should bring together all "pro-life" persons, regardless of party affiliation:

1) Both agree that abortion is moral tragedy for all of the people directly involved and for society as a whole.

2) Many (perhaps not all, but the bulk) agree (either explicitly or tacitly) that the criminal law is too blunt to be the principal instrument for regulation of this complex social problem.

3) When considering various regulatory paths, many (again, perhaps not all, but the bulk) agree that practical solutions should weigh very heavily the host of public health problems that would arise if abortion is driven underground.

I won't say that I wholeheartedly endorse these principles, but they do have some appeal to me, and strike me as a point where persons of all persuasions on the issue of abortion can try and unite over common ground.

See also the Democrats' 95-10 plan on abortion. The plan seeks to reduce the abortion rate in the U.S. by 95% over the next 10 years through a variety of mechanisms, like increased access to contraception, increased healthcare options for young women, better sex ed programs, tax credits for adoptions, and child-care services for mothers in college. It has support from both pro-life and pro-choice Democrats, because it demonstrates a just and humane solution to a difficult social problems.

Even pro-choice Democrats don't cheer the act of abortion. We cheer access to the procedure, to be sure. We think that the availability of abortion is important to granting women a equal position in the American polity. But no women gets excited and flush-faced at the prospect of abortion. Nobody throws a party for an intrusive medical procedure. Reducing the number of abortions doesn't stand in opposition to a pro-choice sentiment, as long as the methodologies we use in the effort fundamentally respect a woman's equal status and are cognizant of her health, welfare, security, and freedom. The more the Democrats can push that message, the better off they'll be.

Pony Up

Kevin Drum on "debating" Iraq policy:

Various luminaries in the liberal foreign policy community have been proposing Iraq policies right and left for over three years now. First, that perhaps we should have kept our focus on Afghanistan and stayed out of Iraq altogether. Then, once we were there, liberal thinkers suggested more troops, dialogue with Iran, a multilateral council to accelerate regional investment in Iraq's progress, a variety of counterinsurgency strategies, a variety of partition plans, more serious engagement in Israeli-Palestinian talks (Tony Blair practically begged for this), and on and on. Every single one of these suggestions was ignored.

Would they have made any difference? Who knows. But to blame Democrats now for not being aggressive enough in trying to trisect this angle is like blaming Gerald Ford for losing Vietnam. George Bush fought this war precisely the way he wanted, with precisely the troops he wanted, and with every single penny he asked for. He has kept Don Rumsfeld in charge despite abundant evidence that he doesn't know how to win a war like this. He has mocked liberals and the media at every turn when they suggested we might need a different approach. The result has been a disaster with no evident solution left.

It's one thing to ask for "debate," but it's quite another to ask for a pony that doesn't exist anymore and to blame Democrats when they're unable to produce yet another one after three years of trying. That makes no sense.

As if "sense" is the goal of these sort of charges. Still, point well taken (for what it's worth).

I Love My State

Via Steve Benen, two excellent ads in the Maryland Senate race. The first, by Republican Michael Steele, is a pre-emptive strike against negative advertising, warning voters of "grainy images" and scary voices telling them that he hates puppies or other such non-sense. It's very well executed and hits very good notes with me. This is very much akin to the type of ad that I'd like to see politicians run more often. At the end, Steele also informs that in reality, he loves puppies. I, of course, actually do hate puppies, but I wasn't voting for Steele anyway.

The Democratic Senate Committee released a response ad, and it's quite good as well. It's theme is that Steele may like puppies, but he loves George W. Bush. It's also got a very light, mocking tone to it that I very much prefer to scary voices and grainy images. Steele is running away from the Republican label (it's never mentioned in his ad) because, well, he's running in Maryland. But Democrats are going to hang his support for George W. Bush over him like a weight.

Only in the Old Line State.

Holy Smokes!

Andrew Sullivan gives a Malkin Award to Rep. Marilyn Musgrave (R-CO), for this sentence in a debate:

As we face the issues that we are facing today, I don't think there's anything more important out there than the marriage issue

Me, I just blanche at the horrible lack of rhetorical skill. "As we face the issues we are facing today"?

Upon hearing this revealing description of Musgrave's legislative priorities, her Democratic opponent responded:

Holy smokes, we're at war, we've lost nearly 3,000 people and thousands more are maimed. We have over 46 million Americans without health insurance.

I'm not sure that's the most effective response, but it certainly captures my goggly-eyed amazement upon hearing that maintaining anti-gay discrimination is a more pressing issue to America than anything else on our plate.

Movers and Shakers

My dorm room at Carleton College is quite excellent. It is a massive quint at the top (4th) floor of the nicest dorm on campus. The 4th floor has only two rooms on it (our, and a quad), and the dorm itself is one of the more (psychologically if not spaitially) isolated on the campus.

Among my roommates, our room includes the head of the Sci-Fi Alliance at Carleton, the Guildmaster of the Assassins' Guild on campus (which is huge here), and myself, the President of the Debate Team. In other words, we are geek kingpins, and there is alot of nerd power concentrated in our litte tower.

I am the only Jew of my roommates, and despite leading the debate team I am the only Jew who is a member of the program there is well. All of this is to segue into a devastating review of a book that appears to be quite interested in resurrecting the myth of the Jewish conspiracy. It tells the tale of Sidney Korshak, a fixer for the mob and general shady behind-the-scenes powerbroker. Who, I guess it bears mentioning, is Jewish. It's worth mentioning because the author uses Mr. Korshak's story as a jump-off for discussing how the Jewish community writ large has a propensity for being part of these shadowy organizations--the hand behind the scenes that got things done for the public face.

How much of this is fact and how much legend is for the reader to decide. There is a lot of gossip here, guilt by association, innuendo - Russo quotes an actress named Selene Walters who says she was raped by Reagan in 1952, two weeks before he married Nancy Davis - but Korshak was clearly an influential figure. The system needed him, so he appeared. The problem is with the broader context Russo paints, in which Korshak and a handful of men with Jewish-sounding names are seen less as freely acting individuals than as cogs in a secret machine. Again and again, Russo strikes the sort of taboo-breaking pose that makes me nervous, the way any sentence that follows the phrase "Let's be honest" makes me nervous. Whenever I started to get caught up in the story, I ran into sentences like this: "Throughout history, the Jews were never the public leaders; they were always the kingmakers and the power brokers. ... They worked surreptitiously, choosing to focus on the substrata of a business or event." Or: "The Jews' historical Diaspora (dispersion) and relative lack of national roots helped them to identify and exploit more quickly the most lucrative emerging markets."
[...]
I'm not saying Korshak was not powerful, was not connected, did not know how to get a project moving or shut down. He was and did all these things, and that's what makes his story so interesting. It just seems to me - sensitive Ashkenazi that I am - that in making his case Russo deploys some very old notions of Jewish double-dealing and conspiracy, without which his larger ideas about Korshak and the world would fall apart. The fact is, every immigrant community in this country has spawned an underworld and every underworld has needed guys like Korshak. This does not make him a typically Jewish figure. It makes him a typically American figure. Or as Bellow's Augie March proclaims, "I am an American, Chicago born."

It reminds me of the routine in which Dave Chappelle talks about first learning of the stereotype about blacks and fried chicken. "All these years, I thought I liked chicken because it was delicious," Chappelle says. "Turns out I am genetically predisposed to liking chicken. I got no say in the matter." Well, I felt the same way when I finished "Supermob": I thought Sidney Korshak became a powerful figure because he was crooked and ambitious and smart. Turns out he was just Jewish.

I feel the same way. I have amassed my fair share of power here at Carleton (and before I go on, I want to stress that I feel very comfortable as a Jew on this campus for the most part, and do not feel like people think of me as the power-hungry Jew), most of it without being the explicit front-figure. For example, though I'm not technically a member of the college Democrats, I know virtually everyone who is, and I write for the flagship liberal paper on campus. Even in debate, my treasurer is the public face of debate for most of the dealings with the college. Shady Jew? Fits the framework, maybe. But I'm honestly not interested in taking over any worlds. More importantly, the same relational structure could apply to many of my roommates (who also have power in a variety of indirect ways), but since they're not Jewish, they'd never get tagged with the model.

There are good Jews and there are bad Jews. There is not an over-arching Jewish conspiracy or psyche that channels these Jews into positions of power and influence. The myth has gone on long enough.

Glimmer of Hope

Pass this. For the love of God, pass this. The compromise is no compromise. Bush won the right to continue to torture. This amendment can mitigate at least some of the damage.

Get it done, and damn the political expense.

Sunstein Tops

I don't feel at all guilty saying that Cass Sunstein's defense of the Obama hype makes mine look positively weak. Sunstein worked with Obama at the University of Chicago (where he was a part-time lecturer in Constitutional Law), and is absolutely effusive in his praise. But he also notes the facile nature of the "if he weren't Black" line of inquiry:

I have no idea how Obama would be regarded if he were white. (He might be regarded as this generation's Jack Kennedy; the two have a similar quickness, youth, charisma, and capacity for humor.) But for any successful politician, there are many necessary conditions for their success. Would George W. Bush be president if his last name were not Bush? Would Al Gore have become vice-president if his last name had not been Gore? Would Senator McCain be a serious candidate for the presidency if he had not been held prisoner in Vietnam? Would Bush, Gore, or McCain be where they are today if they were African-American or Hispanic? (What kinds of questions are these?)

Well spoken, Professor.

Today in Jew

A couple issues of importance to the Jewish community.

Eugene Volokh reports that the NAACP is suing a Jewish-run dental and health clinc because it closes on Saturday. This, apparently, amounts to the imposition of Jewish religion on the clinic's patrons (most of whom are poor minorities). If ever there was a case of Christian normativity screaming for recognition, this was it. And of course, this certainly does not help revive the faltering Jewish/Black relationship.

***

Also over at the VC, David Bernstein reports on the mechanics of Columbia University's speech invitation to Mahmoud Ahmadinejad. It fell through, but it is ironic that the prestigious university invited an on-the-record Holocaust denier to speak on Rosh Hashanah.

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Via my colleagues at The Moderate Voice, another thinker (Ed Lasky) proposes that it is time for Jews to join the GOP. It follows the usual pattern--cite the Democratic anti-Israel far left for anecdotal evidence, and show that Republicans are generally more reflexively pro-Israel than Democrats are. The problems are multiple. As TDL readers know, I keep a wary eye on said left fringe, and would just as soon see them take their illiberal views to another party. But it is facile to say it is controlling. In a caucus that contains over 200 members, Lasky never cites an anti-Israel vote that broke even 50 Democrats. Democratic foreign policy elites--with a few exceptions--continue to be strong on Israel issues. And the poll data Lasky cites still shows a strong plurality of Democratic voters who support Israel over its enemies. Moreover, Lasky skates over (to say the least) the fact that many of the worst offenders on the Israel issue were defeated in Democratic primaries when Jewish voters raised their ire (Earl Hillard and Cynthia McKinney--twice). More fundamentally, while Jews trend strongly pro-Israel, that does not mean we request blind loyalty or single-minded trumpeting of "do-whatever-it-takes" tactics. Because Jews have a personal stake in this conflict, we are more likely to want to see a stable, lasting, just peace. This does not mean that we are any less pro-Israel, but it does mean that most of us would not object to a provision (called for by minority leader Nancy Pelosi and criticized by Lasky) asking that Israel do its best to limit civilian casualties. In addition to simply being the moral thing to do, every innocent who dies in this conflict adds fuel to the fire and makes it less likely that a moderate consensus will coalesce in the Arab world that respects Israel's sovereignity and security concerns. In other words, being "pro-Israel" doesn't necessarily mean what

But far and away the biggest flaw in Lasky's analysis is that he inexplicably thinks of Jews as single-issue voters. But of course, there are many issues of importance to Jews, of which Israel is but one. The Jewish community has and continues to have a broadly liberal consensus on a variety of issues, which also keeps us firmly Democratic camp. Israel isn't even the only issue that affects Jews qua Jews in America. At least as important to us is issues of Church/State separation, the abandonment of which would rapidly make us second-class citizens in our own country. The Republican record on this issue is, to say the least, abysmal. Indeed, numerical fringes not withstanding (and recall, you can find them among Republicans too--Pat Buchanan rises to mind), Jews right now have the best of both worlds--both parties reflect a broadly pro-Israel consensus, so Jews can comfortably vote on the basis of other issues of concern--like economic justice, church/state separation, civil rights, etc.. On those issues, Democrats remain clearly in command from a Jewish perspective. Republicans will never get our votes unless and until they realize we aren't single-issue Israel zombies.

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Phoebe Maltz has a great post on Jewish neo-conservatives (and "neo-conservatives").

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Happy Rosh Hashanah!

The Great Hope

For a while, it had been so long since there has been a White heavyweight champion in boxing, that any potential challenger (no matter how fringe) was invariably labeled "The Great White Hope." It was an odd mix of patronizing and racist, and I didn't like it (with the rise in dominance of Russian bloc heavyweights, it has become less common). On the flip side, the dearth of truly national Black political figures means that often the punditry will nominate certain Black political figures as the "Great Black Hope," at even the slightest inkling of a national following. This, too, is bad, but for very much opposite reasons--it pigeon-holes even spectacularly talented Black politicians as being there "just because they're Black," thus convienantly bracketing them off and assuring the general population that, no matter what the hype is, they aren't really all that great.

John McWhorter makes precisely this argument with respect to Barack Obama--explicitly labeling him as an example of a "Great Black Hope," who is being overpromoted and for the hype is completely unjustified. He says that if Obama was White, we still wouldn't have heard of him no matter his rhetorical brilliance or crinkly smile. To which Noam Scheiber has a devastating two word rebuttal: John Edwards. Edwards got promoted to the national stage almost as quickly as Obama--VP shortlist after two years in the Senate, Presidential material after three. And, as Scheiber notes, not only does Obama have more political experience than Edwards did going in (State Senator, community organizer, constitutional lawyer), his skills (and I agree, this is not a slap at Edwards) simply dwarfs those of the North Carolinian. Edwards is a good speaker. Obama is breath-taking. Edwards is quite sharp. Obama is jaw-droppingly brilliant. They simply aren't on the same level. When it comes to Barack Obama, the hype is for real. It isn't just because he's Black (although I think that it is an excellent sign when so many White Americans are genuinely excited about having a Black President). It's McWhorter who is being patronizing--he can't even fathom that it might be the man's skills and talents that are exciting us. It has to be his race. McWhorter needs to listen more carefully to the Junior Senator. The hype is there because he's the real deal--the type of face we haven't seen in the halls of congress in a long while.

Then and Now

Compare:

With no hope of establishing the analogy on which his thesis about public discourse rests, Nyhan resorts to attacking Power Line. We stand accused of being over-the-top partisans who worship President Bush as a visionary. Even if this were true, it would do nothing for the argument Nyhan wanted to make unless he could show (and he can't) that we viciously attack conservatives who think less of the president than we do.

--Powerline, yesterday

Christine Whitman has written a book titled It's My Party, Too, which...has the temerity to impugn the President's re-election victory...When a Democrat [sic] like Richard Clarke betrays President Bush, that's one thing; when it's done by a Republican, it's unforgivable.

--Powerline, 1/3/05

Does ranting about Whitman's "temerity" to "impugn" Bush's re-election victory and accusing her of a "betray[al]" that's "unforgivable" count as a "vicious[] attack"? I think it just might qualify.

"Voted For Torture!"

U.S. Rep. Lynn Westmoreland (R-GA) said it. About himself. Proudly. A few days later, he backed off, saying that he "voted against the anti-torture bill." As The Plank notes, if you're anti-anti-torture, then you are....?

When queried on specific, Westmoreland had the following to say:

Pressed on whether that means he supports torture, he said, "What's torture? Torture is many things to many people ... people have different breaking points."

Asked whether he would support using electric shocks, he said, "Electric shocks are given to people during initiations to different clubs ... Is that torture? I don't know."

Asked about beatings, he said, "Are you talking about tying his hands behind his back and beating him in the head? No, I'm not for that."

Excuse me while I bash my head against a concrete wall.

Revelation: Jews Hate Genocide

Once again, the President of Sudan is blaming the Jews for all the nasty attention being given to his genocide in Darfur. And once again, my response is: AND PROUD. The speech was at the UN (where else?), and this time the President made the rather peculiar claim that Jews were focusing attention on Darfur to raise money for Israel. I'm sure somewhere in his twisted mind, that makes sense, but I can't decipher how it works, and have no interest in trying.

In the next issue of The New Republic (firewall), an ex-Israeli official argues that the UN is actually Israel's best friend, because by being such a parody of itself when it comes to the Jewish state, it ends up giving Israel a lot more leeway to act against terror than it would sober-minded people actually had to take the UN seriously. I actually disagree--I don't think it does Israel or anyone else favors when such an important geopolitical issue can't be discussed without immediately sounding like a revision of the Protocols. But alas, that seems to be the world we live in. And certainly, with enemies like Sudan, I'm not sure Jews really need friends.

Neighbors Unite Against Prussian Blue

Eugene Volokh reports that the new neighbors of the White supremacist pop group "Prussian Blue" (14-year old twins and their family) have posted flyers around their community notifying members of the group's radical racist agenda and declaring themselves to be in opposition to "hate."

The family is claiming harrassment. The neighbors disagree:

"This letter is not written as a means to harass the family or to begin a witch hunt," the flier said. "We wish the family no harm. Our goal is to peacefully communicate that this kind of hate and ignorance will not be accepted here in our neighborhood where we live and raise our families."

As Professor Volokh noted, since PB specifically decided to move to this town because the old one "wasn't White enough", it is perfectly fair for the neighbors to push back against being identified with that sort of racist sentiment.

What would really be great is if the neighborhood began to actively work to end the racial monotony that attracted PB to the area in the first place. But that might be too much to ask.

Neighbors Unite Against Prussian Blue

Eugene Volokh reports that the new neighbors of the White supremacist pop group "Prussian Blue" (14-year old twins and their family) have posted flyers around their community notifying members of the group's radical racist agenda and declaring themselves to be in opposition to "hate."

The family is claiming harrassment. The neighbors disagree:

"This letter is not written as a means to harass the family or to begin a witch hunt," the flier said. "We wish the family no harm. Our goal is to peacefully communicate that this kind of hate and ignorance will not be accepted here in our neighborhood where we live and raise our families."

As Professor Volokh noted, since PB specifically decided to move to this town because the old one "wasn't White enough", it is perfectly fair for the neighbors to push back against being identified with that sort of racist sentiment.

What would really be great is if the neighborhood began to actively work to end the racial monotony that attracted PB to the area in the first place. But that might be too much to ask.

The Kennedy Indication

Law.com has its preview of the upcoming term. Surprising approximately nobody, Justice Kennedy will play a crucial role in the proceedings.

However, there is some interest to be had in the eternal swing-vote watch. Specifically, there are two clusters of cases which challenge recently settled precedents in which Kennedy was on the dissent. I've predicted that Kennedy will tact to the center to fill O'Connor's role, acting as a balancer to prevent the Court from moving too far to the left or the right--even if that means staking out more liberal positions than he did when O'Connor was the chief moderator. These cases, which pit Kennedy's previously stated ideological commitments against the stability and continuity of precedent, put that theory to the test. The first set deals with school desegregation/affirmative action:

The replacement of O'Connor with Alito may also be determinative in the Court's two key affirmative action cases: Parents Involved in Community Schools v. Seattle School District #1, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.

Parents in both cases are challenging school integration guidelines that prevented their children from attending their school of choice because of their race or ethnicity. The Bush administration has intervened in the cases on the side of the parents, arguing that the guidelines involve "outright racial balancing" which is "patently unconstitutional."

The high court last visited the issue of affirmative action in 2003 when it upheld the affirmative-action admissions policy at the University of Michigan Law School, but struck down a differently constituted admissions policy at the undergraduate school. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003). O'Connor was the key vote and voice in the law school ruling; Kennedy was in dissent. If the school districts here lose, "It would really, in the context it is before the Court, signal the end of the Brown v. Board of Education desegregation era," said Temple's Rahdert. "What's left of school desegregation are these voluntary plans that try, at the margins, to combat the tendency of having patterns of one-race schools."

This one is less interesting, because I think it is likely that Grutter can be distinguished (not that it should be, or even that it is particularly coherent too, only that it is different enough so it seems a fairly plassible dodge) and the overarching question of affirmative action will be deferred for yet another day.

But the real intriguing one is the upcoming partial birth abortion ban case:

In Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, the Bush administration seeks to overturn rulings by the 8th and 9th circuits that struck down the federal Partial Birth Abortion Ban Act of 2003.

Every court to review the law has found it invalid, generally because it is overbroad and because it lacks an exception to protect the health of the woman -- a requirement established by a 5-4 high court decision in 2000 in Stenberg v. Carhart, 530 U.S. 914, which held that Nebraska's partial-birth abortion law was unconstitutional. O'Connor was the critical fifth vote to invalidate the law. Kennedy wrote a bitter dissent.

In enacting the federal ban, Congress explicitly found that a health exception was not necessary for this type of medical procedure.

There is no getting around the past precedent here. Kennedy was firmly on the dissent in Carhart. But it's still the law (for now), and Congress' response was basically to stick a middle finger in the eye of the court. It didn't even try to write a law consistent with the opinion. This type of challenge to the Court's supremacy is precisely the type of case where I can see Kennedy biting the bullet and voting for continuity even when his personal (and tabula rasa legal) beliefs dictate otherwise. While Lawrence might be an exception, in general, Justice Kennedy does not like to play fast and loose with precedent--and he definitely doesn't like it when Congress takes it upon itself to overturn precedents it finds disagreeable. Ultimately, I think Carhart II will be the biggest indicator of where Justice Kennedy's jurisprudence will point to for the years to come.

Paul Butler for Coolest

Paul Horwitz wants to know who is the "coolest" law professor in the academy. He nominates Alex Long of Oklahoma City University, but opens the floor for contestation.

My nominee is GW Law Professor Paul Butler. There are a few reasons to support this. For one, he is a blogger at BlackProf. This shows that he is hip and edgy and connected to the trends of us youthful folk. Remember, while old people can be "cool," what is cool is unquestionably defined by the young.

Drawing off that is the second and ultimately controlling reason for Butler's dominance in the field. Horwitz pitches Long on his use and analysis of musicians in law review articles. To that end, I submit that he is easily trumped by Professor Butler's article Much Respect: Toward a Hip-Hop Theory of Punishment, 56 Stan. L. Rev. 983 (2004). To open, let's start with the opening footnote:

Professor of Law, The George Washington University Law School. This Article was presented as a work-in-progress at Washington University School of Law and at a Stanford Law Review Symposium. I thank the participants in those events. Special shout out to Daniel Solove. Mad props to Christopher Bracey, Kimberly Jade Norwood, and Dorothy Roberts. Big up to my research assistants Jeremy Medovoy, Michael Robinett, and Eduardo Rodriguez.

Next, let's look at the article itself. The artists it references are ones that actual have "street cred": Nas, NWA, Jay-Z. In addition, it cites to suitably obscure people--one's who the truly connected and plugged in might know, but people "on the outside" will be left scratching their head saying "what?" Here we have people like Erykah Badu and Immortal Technique. These names, in terms of coolness, clearly beat out "GBV, Lester Bangs, the Specials, Manilow, Paul Westerberg, Mike Watt, Robbie Fulks, Waylon, Hank, and Uncle Tupelo," who are cited by Long and whom even Horwitz admits are getting a bit long in the tooth. Furthermore, the article manages to be an actual important contribution to the literature on punishment. I do believe utility is cool (think iPods). And by being published in the Stanford Law Review, it has the advantage of cross-over appeal--"ghetto made good," so to speak.

Put simply, rap trumps whatever it is Mike Watt does. Professor Butler is clearly the coolest law professor, and Much Respect to anyone who can prove me wrong.

Paul Butler for Coolest

Paul Horwitz wants to know who is the "coolest" law professor in the academy. He nominates Alex Long of Oklahoma City University, but opens the floor for contestation.

My nominee is GW Law Professor Paul Butler. There are a few reasons to support this. For one, he is a blogger at BlackProf. This shows that he is hip and edgy and connected to the trends of us youthful folk. Remember, while old people can be "cool," what is cool is unquestionably defined by the young.

Drawing off that is the second and ultimately controlling reason for Butler's dominance in the field. Horwitz pitches Long on his use and analysis of musicians in law review articles. To that end, I submit that he is easily trumped by Professor Butler's article Much Respect: Toward a Hip-Hop Theory of Punishment, 56 Stan. L. Rev. 983 (2004). To open, let's start with the opening footnote:

Professor of Law, The George Washington University Law School. This Article was presented as a work-in-progress at Washington University School of Law and at a Stanford Law Review Symposium. I thank the participants in those events. Special shout out to Daniel Solove. Mad props to Christopher Bracey, Kimberly Jade Norwood, and Dorothy Roberts. Big up to my research assistants Jeremy Medovoy, Michael Robinett, and Eduardo Rodriguez.

Next, let's look at the article itself. The artists it references are ones that actual have "street cred": Nas, NWA, Jay-Z. In addition, it cites to suitably obscure people--one's who the truly connected and plugged in might know, but people "on the outside" will be left scratching their head saying "what?" Here we have people like Erykah Badu and Immortal Technique. These names, in terms of coolness, clearly beat out "GBV, Lester Bangs, the Specials, Manilow, Paul Westerberg, Mike Watt, Robbie Fulks, Waylon, Hank, and Uncle Tupelo," who are cited by Long and whom even Horwitz admits are getting a bit long in the tooth. Furthermore, the article manages to be an actual important contribution to the literature on punishment. I do believe utility is cool (think iPods). And by being published in the Stanford Law Review, it has the advantage of cross-over appeal--"ghetto made good," so to speak.

Put simply, rap trumps whatever it is Mike Watt does. Professor Butler is clearly the coolest law professor, and Much Respect to anyone who can prove me wrong.