Tuesday, February 01, 2005

Another Gitmo Ruling

In another major ruling on Guantanomo Bay, a US district court has ruled in In Re Guantanamo Detainee Cases (creative name!) that detainees, even those that are not being charged with war crimes, still have the right to challange their designation as "enemy combatants" in the Courts. The district judge (who, interestingly, served as Chief Judge on the FISA Court) specifically held that the Combat Status Review Tribunals (CSRT) were not adequate in securing the rights of detainees.

The Court gives an example of testimony by one of the detainees (not one in the case) that aptly illustrates the bind that the prisoners are put in. It's too long to type in manually (the opinion was scanned, so I can't copy and paste), but you can find it at pages 46-48. Essentially, the government was asking the detainee if he knew any al-Qaeda, and he said he didn't think so, but he'd be happy to tell of his relationship with any specific person the Court had in mind. The Court refused to name any names, at which point the detainee asked how he could refute charges when he couldn't even see the point of reference from which the charges were being made.

The opinion also specifically blasts the lack of attorney's to represent the detainees. They get a "Personal Representative," but s/he isn't a lawyer and is obliged to reveal any inculpatory evidence he hears to the tribunal. As a result, "there is inherent risk and little corresponding benefit should the detainee choose to use the services of the personal representative." Furthermore, the proceedings allow evidence contained by way of torture to be admitted, another area in which the Court found fault. Finally, the Court blasted the Bush administration for its overly broad definition of "enemy combatant," which the government admitted could be applied to a person who taught English to the child of an al-Qaeda member.

I'll conclude with a particularly compelling passage from Reid v. Covert, cited by the Court.
At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.

Monday, January 31, 2005

A Journey of a Thousand Miles...

A heartfelt congratulations to the nation of Iraq for holding an election that, by virtually all accounts, appears to have been a resounding success (Daniel Drezner does a good job summing up preliminary coverage). It is quite obvious that this is a major victory against the insurgency, and all those who want to see a stable, and successful Iraq should applaud it.

However, our job is nowhere near done. The most important aspect of a democracy is not the first election, but the second, because that will show if government's will voluntarily cede power. Spencer Ackerman notes that "we've already seen a day of tremendous possibility, high Iraqi expectations, and hope that finally the accumulated wounds of 30 years of tyranny were ready for healing. It came on June 28 with the transfer of sovereignty, and by the next month it was squandered." There is a lot of potential behind these elections, but with expectations so high there is a lot of room to fall as well. And of course, assuming that the UIA wins the election (either outright or via coalition), we still have to deal with the Sistani/Sadr brawl which looks like it might be developing.

All of this notwithstanding, this was a historic day. We should all congratulate the Iraqi people on conducting what appears to have been a free, fair, and relatively violence-free voting process. May their democratic future be bright.

Wednesday, January 26, 2005

After All, It's Only Genocide

Sorry for the paucity of blogging as of late. I've been inundated with work, and it doesn't look like it's going to let up. I'm going to the Model UN conference at McGill University this weekend, so I'll be gone from Thursday until Sunday. I don't know if I'll have internet access up there, so I might not be posting again until Monday. Anyway, back to the matter at hand.

I've been chewing on this article (link: Andrew Sullivan) for a few days now. To sum it up briefly:
Iqbal Sacranie, secretary-general of the Muslim Council of Britain, has written to Charles Clarke, the home secretary, saying the body will not attend the [commemoration of the liberation of Auschwitz] unless it includes the "holocaust" of the Palestinian intifada.

Obviously, on a visceral level I'm infuriated that anyone would have the gall to compare the intifada with the holocaust. Anyone who engages in moral relativism at that level of myopia is ethically bankrupt, and deserved to be labeled as such.

However, I think it also is reflective of a deeper problem. The term "genocide" has become cheap. People toss it around carelessly, and on the flip side, the recognition of a legitimate ongoing genocide doesn't even provoke a reaction. Genocide is defined as "acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such." When Raphael Lemkin coined the term in 1944, he intended it to refer to the most horrific crime imaginable. Genocide was something that was supposed to force states to overcome their hesitance in intervening in other nation's affairs. It was the one crime that couldn't be excused by cries of "sovereignty." Because of the US' love affair with sovereignty, we didn't ratify and implement the Genocide Convention until 1989.

In 1994, Bill Clinton issued an order to the State Department warning them not to use the term "genocide" in reference to the ongoing atrocities in Rwanda. Clinton knew that the term "genocide" put both the moral and legal burden on the US to act, and after the Somalia debacle, that was the last thing he wanted. This was a morally abominable choice, to be sure, but at least we then recognized that genocide actually meant something. And Clinton absolved himself, in part, by intervening in Kosovo to stop the slaughter of ethnic Albanians there.

Fast-forward to today. Former Secretary of State Colin Powell has explicitly labeled the situation in Sudan a genocide. The US response? Nothing. The EU? Nothing. The UN? Nothing. Nothing could have done more damage than nothing. Whereas in 1994 we feared our obligation to stop genocide, in 2004 we act as if we don't have one at all. Genocide simply doesn't have the gravitas to motivate America to action anymore.

A corrupt bargain has been struck by the left and the right, probably without each party knowing it. The left gets to label each and every conflict in which a civilian dies as "genocide" (of course, drawing no distinction between unfortunate collateral damage and "intent to destroy"). The right gets to completely ignore the issue, regardless of whether the genocide claim is warranted or not. And of course, people keep dying. Dictators become emboldened. Ethnic hatreds rage unchecked. And "never again" happens again, and again, and again.

Who's Ready to Rumble?

The players continue to set up for the grand finale, with Ayatollah Ali Sistani's United Iraqi Alliance dropping its campaign promise to seek an immediate deadline for American troop withdrawal. Instead, its platform now claims "the Iraq we want is capable of protecting its borders and security without depending on foreign forces."

I consider this a positive expression of realism from the party most likely to come out on top in the upcoming elections. I'm skeptical that any Iraqi government, with the troop strength currently available, will be able to quell the insurgency. US troops are still essential for a stable Iraq. But the Iraq'd blog warns us of the potential pitfalls:
If the Alliance has run on any issues at all--and not just on its connections to Grand Ayatollah Ali Al Sistani--it's run on the promise to negotiate a U.S. troop withdrawal. Banners at Shia mosques read "Elections Are the Ideal Way to Expel the Occupier from Iraq." It may be that the Alliance, once elected, can persuade an anti-occupation Shia populace that a pullout can only occur after Iraqi capabilities exist. (And perhaps it'll seek to fill the capabilities gap with Shia militiamen.) Perhaps loyalty to Sistani can indeed trump the desire to be rid of a foreign presence. But the Alliance should be very prepared for Moqtada Al Sadr to exploit the issue to the hilt. Get ready for some serious inter-Shia tensions, right at the beginning of an elected transitional government that will have no shortage of difficulty writing a constitution and dealing with Sunni disaffection.

Sunday, January 23, 2005

Keeping the Faith

The Bull-Moose Blog hits the nail right on the head with this post. Frustrated though us liberals may be that the Bush administration refused to put its money where its mouth is, operates through a flawed prism when evaluating US foreign policy, and generally spits on the Democrats at every opportunity, we cannot let our anger cloud our reason. The Democratic foreign policy has been and must continue to be one that emphasizes the rights of mankind, the importance of democracy, and the willingness of the United States to fight for both of them. As the Bull-Moose puts it:
Idealistic rhetoric without practical deeds is vacant utopianism. Progressives, however, should not cede democratic idealism because Bush embraces it. They should not become left wing versions of Bret Scowcroft and Pat Buchanan. Rather, people of the left should connect with the progressive internationalist tradition of Truman and JFK which promoted freedom abroad based on practical deeds and economic justice at home.

Above all, progressives should not permit their justified spite of the Bushies to lead them to abandon a proud tradition of liberal internationalism.

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!

Monday, January 17, 2005

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.

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.

Sunday, January 16, 2005

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.

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.

Friday, January 14, 2005

Breaking News: Bush Admits a Mistake (Sorta)

According to CNN.com, President Bush may, for the first time, have admitted he's made a mistake!

Specifically, Bush said that "words have consequences" and conceded that maybe telling terrorists to "bring 'em on" may not have been the brightest idea.

Well, it's a start. For the record, the front page of CNN currently contains this story on the Armstrong Williams affair, and this story about prisoners escaping from Abu Gharib.

Perhaps, if Bush really puts his thinking cap on, he can identify a few more mistakes...

Thursday, January 13, 2005

Foundation for the Promotion of High School Debate

Former debate champion John McKay has announced that he is creating Voices: Foundation for the Promotion of High School Debate. So far, there isn't anything more to it than the announcement, but he hopes to run a charity tournament/round robin and camp to raise money for aiding debaters with fewer economic resources in competing on the national circuit.

John says that debate is "the most valuable activity a high school student can partake in," and I couldn't agree more. For those of you who appreciate the analysis and commentary I give on this site, it was only possible because of the practice, training, and experience I had while competing in tournaments around the country. Debate teaches young men and women how to speak clearly, persuasively, and concisely, it shows them how to construct an argument, and it forces them to think critically about the most important issues that face our nation and our world. Most importantly, it exposes them to the immense variety of views that exist in this country, and thus creates a class of citizens who are aware that political life extends beyond their own particular partisan affiliation. These assets should be spread far and wide, to any student who wants them.

Like John, I was fortunate enough to be blessed with the means to attend these tournaments. However, many of my closest friends were not, and they had to work, fundraise, and scrape for every dollar to travel. Many of these people also happened to be some of the most talented debaters in the country, but many of them could not have succeeded without the support of a community willing to help finance their competition. Who knows how many more voices have been excluded from the debate world because they couldn't muster the funds to compete? Economics should not pose a obstacle to excellence, and any program which seeks to lower the barriers of entering debate has my fullfledged support.

I'll post more on this as more information comes out. However, I highly urge anyone who recognizes the importance of educating young people to be active and engaged citizens to aid and assist your local debate programs in whatever means possible.

Revisiting Booker (Already)

In my post on the three Supreme Court cases handed down yesterday, I wrote regarding Booker v. US:
"I'm not an expert...but I do dislike federal sentencing guidelines. So until I read the opinion closely...I'll call this a victory."

I may have spoke too soon. While I still haven't managed to read the opinion yet, it has come under A LOT of fire from the left. UNC Law Prof Eric Muller is happy to see the guidelines go, but caveats:
"I find myself wondering, though, about the impact on trial judges. If I'm right about appellate review, and the appellate courts are now more or less out of the business of reviewing guideline applications under any sort of even moderately rigorous standard of review, then the guidelines themselves might come to occupy the space of a sort of strange quasi-law. This will leave trial judges enormous discretion to use or abuse the guidelines to reach or avoid reaching desired or undesired sentencing outcomes without concern for correction. I hope I'm wrong about this, and that the result of today's decision will be more, rather than less, responsible trial court sentencing. But on this question, I think, the jury is (so to speak) out."

He continues in this vein in this post as well. Basically, he thinks that with the guidelines "advisory" but not "mandatory," defendants will have almost no grounds on which to challenge their sentences on appeal. What are they supposed to argue: that the trial court wasn't "advised" enough?

Dana Mulhaser argues that the ruling could give juries more power without giving them any more information. Since juries aren't told what their rulings mean in terms of sentencing (IE, they don't know the difference, in terms of punishment, between manslaughter and 2nd degree murder), if Congress decides to have juries rule on every aggravating question of fact (one way in which congress could get around Booker), then the result could be more harsher sentences in cases where the jury feels leniency should be in order--exactly the opposite of what liberals want.

Finally, Publius at the Legal Fiction blog argues that giving "discretion" to judges is a bad idea if what we want is fairer sentences. He argues:
"One of the recurring debates in law is about 'bright lines' versus 'standards' (or discretion). Your tendency to adopt one over the other is a function of the level of your trust (or distrust) of the official who will be making decisions. For example, the Warren Court distrusted state governments and especially local police in the context of protecting civil liberties (and you cannot divorce their jurisprudence from the civil rights struggle around them). They believed, rightly, that Alabama sheriffs would never protect the constitutional rights of black people. So, they adopted bright-line rules such as the exclusionary rule or Miranda warnings. If you cross these lines (e.g., if you don't give Miranda warnings), the defendant goes free. There is no discretion.
[...]
Fast forward to yesterday's decision. The real question you must answer before deciding whether to support the Guidelines is how much you trust judges in the context of sentencing. A lot of people, quite reasonably, believe that it's impossible to devise a just sentencing regime ex ante. Given the great diversity of factual situations, it's best to give judges a wide statutory range and leave the actual sentencing decision to their discretion. If John Kerry had appointed the entire federal judiciary, then maybe I would be a bit more likely to trust them. But progressives need to remember that the federal judiciary is overwhelmingly Republican and very anti-criminal...

It's more than a partisan concern. When the Guidelines were adopted, there was overwhelming evidence that criminal sentences varied along racial and class lines. The length of the sentences imposed by the Guidelines (especially gun and drug crimes) may be unjust, but they're not unfair. Everyone gets screwed equally. Yes, tossing the Guidelines will, at times, allow progressive judges to remedy some of the insanely long sentences that get issued for small amounts of drugs or gun possession (any Second Amendment-ers out there with me on this one? Brett?) But Booker will unfetter the Federalist Society too. And the Federalist Society, which fancies itself the guardian of classical liberalism, doesn't much care for criminals and really doesn't much care for the Fourth Amendment. It's just as possible that a lot of people will get increased sentences now that the Guidelines are gone."

I think he makes a good point, but I'm inclined to disagree for a few reasons.

First of all, with sentence guidelines as high as they are, right now the requirement is essentially the same as what conservative judges would give if they wanted to throw the book at defendants. How are they possibly going to go HIGHER if given discretion than what they already have been doing (maybe they'll give first time drug possessors the death penalty. That'll deter 'em!). Sure, there are some cases where judges might have liked to do an upward departure. But the Feeney amendment, which governed judges conduct on upward vs. downward departures, was much more lenient on judges who go up than go down. The fact remains there are both few instances where judges would want to issue tougher sentences but were precluded by the guidelines, and far fewer obstacles in the previous system that would block them from upward departures if they really were so inclined.

Second, I disagree with his claim that the system screws everyone over equally. That just isn't true. Not every criminal who gets 15 years for possessing ammunition is getting "screwed," some very much deserve it. But 15 years for an ex-felon who finds one bullet in his house and puts it in a drawer (sub. only, here via Proquest or here for Blog de Novo's summary)? They aren't getting "equally screwed;" one is getting far more screwed than the other. The whole problem is that while the sentence guidelines provide adequate punishments for certain crimes, they are wildly off base for others, because every crime is different.

That dovetails nicely with my third objection: I am inherently skeptical of one-size-fits-all rules in criminal law. The problem with hard rules is that they ignore or suppress context. Richard Delgado and Jean Stefancic note that
"Normative discourse...is highly fact-sensitive, which means that adding even one new fact can change intuition radically. For example, imagine a youth convicted of a serious crime. One's first response may be to urge severe punishment. But add one fact--he was seen laughing as he walked away from the scene--and one's intuition changes: Even more serious punishment now seems appropriate. But add another fact--he is mentally impaired or he was abused as a child--and now leniency seems in order." [Critical Race Theory: The Cutting Edge, xvii-xvii]

While guidelines can accommodate for some of these facts (via mitigating and aggravating factors, for example), the problem is that there are infinite combinations and permutations of facts that might surround even one type of crime. The idea that the legislature might be able to account for ALL of them in advance (much less how they interplay with each other) is a vain hope, but people can observe the relevant facts and relationships in individual situations and judge accordingly. The problem, as Publius points out, is that individuals might also add in subconscious class and/or racial biases to the process. But all that means is that there must be a renewed emphasis on rectifying those problems at the appellate level. Saying "some people will get screwed, so let's screw everybody" is not, in my view, a moral answer to the problem.

Election Fraud

Powerline makes the case for strengthening our laws against electoral fraud. I'm going to thread a bunch of needles here, because I agree with their conclusion while disagreeing with virtually all their warrants (which essentially boil down to: "It's the Democrats fault." Bad way to start).

They give three examples of "electoral fraud": Election 2000, where Gore "tried to steal the Presidency...and nearly succeeded," the 2004 Washington Governor race, where it "appears reasonably clear that the Democrats stole [the] race, and...will probably get away with it," and an alleged 46,000 voters registered to vote in both New York and Florida. Now, on the former, many Democrats (myself included) might be inclined to switch who was doing the stealing. If there was any case in the long line of legal mush that became Election 2000, it was the Supreme Court decision that was utterly and completely out of line (basically, it concocted a federal issue as a pretext for telling state judges how to interpret state law--a federal no-no.). To the middle case, its entirely possible that the voters were REGISTERED in both states but only voted in one (or didn't vote in either). Many people retire to Florida, or live part-time there. Is it inconceivable that they might have accidentally forgotten to cancel one of their registrations when they moved? I registered to vote in Minnesota when I got to college, but I'm not 100% positive that my Maryland registration is canceled. I can assure the folks at Powerline that I only voted in the snowball state, but perhaps they would like to check and see if evil college students like myself stole Minnesota from Bush's column as well. To the latter, even Rossi himself has (laudably) emphasized that nobody was trying to "steal the election". I'm sympathetic to Rossi's position, and part of the reason why is that he has been meticulous in casting the controversy as an issue of fairness, not partisanship. Powerline would do well to follow his lead. All of this, of course, raises the inevitable question: Is it possible for Powerline to address a real problem without a prerequisite level of sniping at Democrats? But I digress.

The point about who is doing the stealing isn't really relevant, because a stronger system would go far in alleviating the paranoia and conspiracy theories that are running rampant on both sides today. A system that prevents fraud would (presumably) prevent it equally by both parties, so if both parties feel they are the victim than both should support stronger statutes. At the same time, the OVERRIDING GOAL must be to make sure everybody's vote counts. This is why I support liberal "voter intent" constrictions. If someone checks off a box for "Bush," then, under a line for write-in candidates that says "Write Candidate's Name Here" writes "Bush" again, I think we can fairly say that's a vote for Bush. It shouldn't be tossed out as an overvote. And while preventing fraud is absolutely imperative, it is equally important that all legal voters get to vote. Provisional ballots are a step in the right direction, but it is also important to provide enough voting stations in crowded urban areas, and to cut down on the bureaucratic red tape so it is easier both for voters and officials to see who has voted and who is registered to vote.

Powerline says we need to "upgrade our electoral system and guard its integrity with at least the fervor that we bring to preventing, say, underage drinking." Speaking as an 18 year old college student, I think that's unfortunately about the level we care about it now.

Turning Into Fire

Sometimes, the best way to break out of a bad position is a full-out offensive. On the other hand, a full-out offensive can also be suicide.

When it comes to redistricting, that's apparently the choice we face. Kevin Drum earlier opined in opposition to Ahnold's proposal to move redistricting out of the hands of legislature and into the hands of a set of retired judges. While Drum and I both sympathize with this goal, we opposed it on the grounds that since Republicans would never follow suit, it would only hurt Democrats (see my concurrence here).

Peter Beinart authored a rejoinder, arguing that Democrats should a) agree to the proposal starting after the 2011 census and b) in the meantime, should use this proposal to push for the same reforms across the entire nation. Presumably, this could offset Democratic losses in California with pickups in Florida, Pennsylvania, and other GOP-controlled states where the legislature has artificially reduced the amount of Democratic-controlled seats.

Sounds great to me, but Drum has a caveat:
But is Beinart right? If Democrats led a charge to end gerrymandering, would it sweep the nation or would it sweep only the blue states where they were leading the charge? Make no mistake: this is a very high risk strategy that assumes Republican leaders can be embarrassed into following suit. Maybe they can, but count me as still needing to see a sign somewhere to give me faith.

In other words, its total victory or total defeat. If the Democrats can force Republicans into redistricting their own strongholds (as well as our own), then we'll have scored a huge victory for Democracy and competition. If the Democrats CAN'T "convince" the Republicans to do it, then the Democrats will lose dozens of seats and be sent into perpetual political exile.

So the question is: Do you feel lucky, punk?

Wednesday, January 12, 2005

Blockbuster Case Day

A bunch of big decisions came down from the Supreme Court today. The most important one, U.S v. Booker, is also the one I have the least to say about. Booker ruled that the controversial Blakely v. Washington decision applied to federal sentencing guidelines. From my vague recollections, Blakely held that Washington's sentencing guidelines were unconstitutional because they allowed for judges to make "upward departures" (IE, sentences higher than what was recommended by the guidelines), instead of referring the matter to juries. However, Booker didn't entirely toss out the guidelines, but it instead made them into ACTUAL guidelines: advisory, not mandatory. I'm not an expert on Blakely, but I do dislike federal sentencing guidelines. So until I read the opinion closely (it's 124 pages), I'll call this a victory.

The next case was Jama v. INS. The INS wished to deport Mr. Jama to Somalia, but as many readers know, Somalia doesn't have a functioning government. Jama protested that therefore the government couldn't "consent" to his deportation, and therefore he couldn't be sent there. This case particularly interests me, as one of the organizations aiding Jama in his case (Minnesota Advocates for Human Rights) presented in front of my "International Perspectives on Human Rights" class last term. When I inquired about the case, they said that they were confident based on oral argument that Jama would prevail. Apparently, they misread the situation, because the Court rejected Jama's claim by a 5-4 margin. Another point of interest in the Jama case is a quote by Judge Morris Arnold Shepard in the 8th Circuit Court of Appeals hearing of the case, currently residing in my AIM profile:
"We note...that between countries, it is not uncommon behavior to attempt to accomplish a task by asking politely first, and then to act anyway if the request is refused."

Too true.

Cases such as these always revolve around complex areas of statutory and immigration law, of which I am ill-qualified to comment on. However, I am seriously disturbed at the possibility of deporting someone to Somalia. A country like that, which is in the midst of an anarchic civil war and doesn't even approach "functionality," is hardly a place we would send even hardened criminals. I don't know whether Jama committed a crime or not, but I wouldn't wish that fate on anybody, let alone someone who may have just been fleeing war and oppression.

Finally, we get to Clark v. Martinez. Speaking by way of Justice Scalia, the Court ruled that illegal immigrants facing deportation cannot be detained indefinitely if there deportation is not likely to occur in the foreseeable future (for example, aliens from Cuba). Six months was the guideline given for detentions, though the Court held open the possibility of exceptions in extenuating circumstances. When I first glanced over the summary, I thought the Court had allowed for indefinite detention, and I found it amusing(/troubling) that the Court would offer less protection to illegal immigrants than it did to suspected terrorists (see Hamdi v. Rumsfeld). I'm glad the Court didn't take that step, and I think that Justice O'Connor's concurrence (noting that there might be acceptable situations where one could detain an alien beyond six months) struck the right balance. The point is to create manageable and effective, but humane guidelines, not to place security on a pedestal at any price to liberty.

Edit: Jama was 5-4, not 7-2. I apologze for the error.

Monday, January 10, 2005

Court Refuses to Hear Gay Adoption Case

UPDATE: 1/11/05 @ 5:25

In a depressing development, the Supreme Court has declined to hear an appeal challenging Florida's absurd and deeply degrading ban on allowing gay couples to adopt children (How Appealing with the link).

I'm obviously very disappointed to hear that they aren't taking the case. I think that the 11th circuits reasoning in the case was shoddy, and contrary to what the Washington Post article implies, it isn't in any way comparable to the Court denying cert to the appeal of Massachusetts' pro-gay marriage decision. Put simply, Lofton (the gay adoption case) has a federal issue, and Goodridge (the Massachusetts case) doesn't. The Florida law is wholly unique amongst the nation, the legislative history makes it clear that the guiding, if not entire, principle behind the law was naked animus toward Gay people, and the law as a whole seems entirely inconsistent with the Court's groundbreaking decision in Lawerence v. Texas.

Now, those who wish for equality must turn to the political process. There has been an effort to round up support for repealing this disgusting piece of discrimination, but I don't have too much hope. The American political body just isn't ready to consider gay Americans equal citizens quite yet.

At least Israel is getting it right.

UPDATE: Eugene Volokh weighs in, as does Larry Ribstein. Meanwhile, Pseudo-Polymath takes issue with labeling those who oppose gay rights as "haters" (be sure to see my response in his comments section!). To be clear, its possible to vote for a law that restricts gay rights and not be hateful (although I think the Florida law, being an outgrowth of Anita Bryant's anti-gay "Save the Children" campaign, was an expression of hate, pure and simple), the vote certainly isn't "innocent" and at the very least is reflective of prejudice. However, in the interest of cooperation, I'll cease tagging all anti-gay rights personnel as universally "hateful," and instead label them "prejudiced" (clearly I've learned a lesson or two from Mr. Bush about bipartisanship!).

Sunday, January 09, 2005

The Bland Leading the Bland

CNN is canceling Crossfire (link: Crooked Timber). Not a huge loss, as anyone who watched Jon Stewart's smackdown knows. But CNN's justification is interesting:
"Mr. Klein said he wanted to move CNN away from what he called 'head-butting debate shows,' which have become the staple of much of all-news television in the prime-time hours, especially at the top-rated Fox News Channel.
...
Mr. Klein specifically cited the criticism that the comedian Jon Stewart leveled at 'Crossfire' when he was a guest on the program during the presidential campaign. Mr. Stewart said that ranting partisan political shows on cable were 'hurting America.'

Mr. Klein said last night, 'I agree wholeheartedly with Jon Stewart’s overall premise.' He said he believed that especially after the terror attacks on 9/11, viewers are interested in information, not opinion."

I'm not sure that's what Jon Stewart was going for. The problem with shows like Crossfire, from my (and I believe Mr. Stewart's) perspective, isn't that they represent "opinion," it's that they concoct clashes between ideologies and thus artificially polarize America (as if it needs any help!). That's bad because it prevents interpartisan discourse and makes politics into a field of battle, rather than a reasoned, deliberative process.

But arguing that we shouldn't needlessly sow discord is not the same thing as arguing that we should eliminate all opinion from our information sources. Opinions are important, because they allow people to process the information given to them, prioritize it, catagorize it, and digest it. Most people don't think critically about the news they hear; opinion journalism forces them to account for different perspectives and allows to refine, or sometimes perhaps modify, their value systems and policy preferences. All of this is essential for a functioning democracy.

Opinions can be dangerous, of course. A demagogic pundit (Michael Moore, Ann Coulter) can do a lot of damage in a very short period of time. However, that's an argument for putting on sober, well-reasoned commentators on the air; it isn't an argument for eliminating commentary altoghther. One method seeks to combat demagoguery, the other tries to put its head in the sand and prays the problem will just go away. I'm sure we all know which option is better.

Let's Make a Deal

UPDATE: 1/10/05 @ 11:25 AM
I noted earlier that the prospect of getting the US to leave Iraq is probably the single issue that both the Shi'ites and Sunnis can unite around. So this article is quite intriguing (link: Kos).
"Iraq's most influential Sunni group will abandon its call for a boycott of Jan. 30 elections if the United States gives a timetable for withdrawing multinational forces, a spokesman for the group said Sunday."

If true, this brings about a tough decision for the US. On one hand, leaving Iraq too soon could be catastrophic. On the other hand, this is an incredible oppurtunity to put the elections back on-track. Since free elections offer the only hope, in my opinion, of getting Iraq back toward a stable and free future, I'm inclined to take the deal, with caveats. The US should be able to provide a "timetable" for withdrawal that is premised on and hinges upon certain levels of stability in the country and acceptance by all parties of the newly elected regime. If the US can make such a deal, I say we jump at it.

UPDATE: Iraq'd is also elated at the prospect. Bush may have been handed a oneshot deal to fix what had seemed to be an intractable failure. I suggest he take it.

Blinded by Mirrors: Fetishizing Our Own Oppression, Part Two

My first post on how people fetishize their own oppression got perhaps the biggest response of any blog post I've ever written (oddly enough, it was all via IM and not at all through commenting. Oh well). Strangely enough, I wasn't really happy with the post; I liked the topic but I thought it was poorly written. So here's a second go at it.

The first thing about self-fetishization (SF for short) is that pretty much everybody does it to an extent, but it gets more apparent the farther from the political middle one goes. Also, one can, depending on one's political leanings, SF either their own oppression (IE, how you are oppressed) or their own oppressing (IE, how you oppress others). Generally, Conservatives and Liberal minorities do the former, while Liberal majorities do the latter. Obviously, the second form of SF is a relatively new development; it is relatively unique to this era for a group to say, in essence, "we're not as good as we think we are." And I think that this is overall a good thing: It's beneficial for groups, especially empowered ones, to look in the mirror every once in awhile and recognize that they aren't the embodiment of justice, morality, and virtue.

Liberal SF was originally a response to the "my country right or wrong" jingoism that has been so pervasive across human history. Looking critically at the disconnect between stated social values and actual social action, liberals realized that we weren't actually what we said we were. Much, if not most, of the "American creed" was a myth; or at the very least, only accessible to certain people of privilege. Liberals thus became skeptical of actions justified on the basis of "American values," since so often these justifications were figleafs for the naked pursuit of national interest and were utterly separate (if not radically opposed) to the "values" they purported to uphold. Vietnam may have been the epitome of this dynamic. In a war that was fought for "democracy" and "freedom," the U.S. actively opposed democratic elections, installed oppressive dictatorships, "destroyed villages in order to save" them, and launched a brutal chemical warfare program that has had a serious longterm impact on the environment of Vietnam. None of these actions were in line with "American values," but they were all justified on that basis.

So far, so good. But what happened next was truly tragic. Amongst some elements of the radical left, a game of "oneupsmanship" commenced. Essentially, the object of the game was to prove liberal bona fides by opposing the exercise of US power. Basically, it consisted of a bunch of liberal academics saying "I'm so committed to progressive values that I'll oppose the U.S. even when its doing X!," where X is some US action justified on "American values." When X is an action like Vietnam, this makes sense, and is even laudable. When X is intervention to stop a genocide in Kosovo, it becomes incoherent. Eventually, with all the academics seeing just how far they would go, Vietnam, Kosovo, and Iraq all melded together into one grand narrative of US oppression, morally indistinguishable from one another. But in doing so, we are staring so intently into the mirror, so enraptured by our own gaze, that we forget that their are those in the world who are far worse off than ourselves. The Vietnamese people may have been far worse off in the wake of US intervention, but the Kosovar Albanians certainly weren't. Blinded by self-loathing, the SFers cannot see the ways that we--meaning the powerful--can aid the world instead of destroying it.

This type of masochism is the intellectual equivalent of "cutting," we inflict hurt upon ourselves (in the form of attacking our oppressive ways) in order to relieve the pain of being part of the oppression. By speaking out so vociferously even against ourselves, we hope to absolve ourselves of the guilt we feel, since we KNOW that we, too, benefit from the very structures we criticize. However, like cutting, SF hurts its cause more than it helps. Nobody looks at someone with razor slashes and thinks to themselves: "I want to be just like her!" similarly, the majority of Americans understandably don't want to live the remainder of their lives in perpetual self-flagellation; if that's what it takes to oppose oppression, then they'll pick the status quo, thanks. (Conservative minorities, briefly, work in the mirror image of liberal majorities. Guilty about perceived injustices perpetuated in their name, they elevate the "oppressions" caused by the quest for racial justice to prove that they are bona fide Conservatives).

Conservatives, too, SF, but in a very different way. The civil rights movement of the 1960s painfully demonstrated to many Americans that their privileged status was not a result of "merit" or "hard work," but a consequence of centuries of violent suppression and legal, social, and political inequities that made racial, sexual, and other ethnic minorities into a permanent political underclass. As America progressed, it became increasingly unacceptable for the dominant class to overtly express racism, sexism, or other forms of "isms" in order to justify the maintenance of their privileged position. The game had changed, and now the prevailing political discourse centered around "equality" and "rights." And the dominant class reacted accordingly. Whenever the government took express actions to rectify the fruits of discrimination, the majority, now put on the defensive, complained of "reverse discrimination." Giving preference to Black applicants to college is no different than giving preference to White applicants, they argued. Whereas many Whites might have admitted that Blacks were oppressed in the 1950s, in the 1980s they thought it was Whites who were faced with systematic inequality, barriers to achievement, and oppressive double standards.

Probably if you asked most Whites whether or not the discrimination they faced was worse than that faced by Blacks throughout most of their history, they'd admit that Blacks had seen worse. Even if one opposes Affirmative Action, it is apparent that it is a comparatively lesser harm than Jim Crow or Slavery. However, by elevating the "oppression" Whites faced so that it was now the equal to the horrors Whites had perpetuated on minority Americans, Whites could lay claim to the moral highground--while defending the very system of privilege they admitted was unjust! All the benefits of being racist, without the social disgrace of actually joining the KKK.

Conservative SF also serves another purpose: it allows the groups that reached the middle class via New Deal programs to avoid extending the same programs to the new underclass which needs them as much to succeed. Again, deep down, most of these people know that they had help in reaching their relative levels of prosperity, they didn't just pull themselves up by their bootstraps. However, by simultaneously elevating the nature of their struggle (by emphasizing their own hard work and deemphasizing the government aid that got them their) and degrading the status of the current underclass (tagging them as "welfare queens" who "don't even want to work"), the new middle class created a culture of victimization in itself that justified cutting back on the very programs which had granted their privilege in the first place. The middle class was being "robbed" of its hard earned middle class status in order to aid a set of people who were "too lazy to get a job" because they couldn't pull themselves up without some sort of aid. Of course, there is a very good reason why they couldn't just pull themselves up like their now-middle class predecessors: the story was a myth. None of the groups, past or present, had succeeded alone. However, the middle class was encouraged by conservatives to SF their own hardships to provide a contrast to the current poor, justifying inequitable treatment on the basis of "equality."

Finally, we get to the SF by liberal minority groups. These groups have a valid, current claim to oppression. However, what often gets lost in the mirror is that there are many forms of oppression, and most people are both the oppressors and the oppressed in different forms. A Black, Christian, Male, for example, gets the benefits of Christian and Male hegemony at the same time as he is suffering from the effects of White Racial hegemony. The population of black, African, disabled, pagan, lesbian women being rather small, it is fair to say that the majority of persons in the world today both reap benefits and pay tribute to the hierarchy system. However, rather than recognize this, many minority groups elevate their own oppression so they can dodge responsibility for fixing the oppression they participate in. Hence, one sees a African-American church loudly preaching for racial justice on one day, then engaging in the most vulgar forms of homophobia the next. When pressed, the community becomes defensive: How can you accuse ME of oppression? Can't you see that WE'RE the ones being oppressed here?

The real tragedy of the self-fetishization trend is that it causes people to talk past each other. When everyone sees oppression only in themselves, the ability to actually solve oppression (which, after all, is an evil that requires both an oppressor and an oppressee) becomes impossible. Blinded by mirrors, communication is reduced to cross-claims of who are the real oppressors, who are the real oppressed, and what obligations, if any, we all have to end it. The answer, of course, is that we are all the oppressors, all the oppressed, and we all have to work to end it to the best of our abilities. The liberal majorities must realize that ending oppression requires them to take action, the conservative majorities must realize that ending oppression requires them to make sacrifices, and the liberal minorities must realize that ending oppression requires them to look beyond the mirror of their own situation. Only then can the world truly end oppression.