Of Restrictions Actual and Desired

Clark Neily of the Institute for Justice is guest-blogging at the VC on the subject of "judicial engagement", which is one of those words conservatives use when they want to strike down disagreeable legislation while still keeping the term "activist" in their back pocket. Anyway, Neily's argument is that the court should as aggressively scrutinize whether a congressional act is sanctioned under a constitutional grant of power as they do when an act is said to violate a constitutional restriction on it.

For example, "[i]n cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them." By contrast, Neily complains, in cases involving more general police power claims (interestingly, Neily does not appear to limit his case to federal enactments), courts are far more deferential, engaging only in a bare-bones "rational basis review". "Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do." "[B]asic ... analytical consistency" demands it.

This is impressively atextual. "Free speech" is not just a "favored constitutional value". It is a constitutional restriction -- a thou shalt not right in the text. When courts apply strict standards of review to laws which seem to impinge on it, what they are in effect saying is that "this law appears to breach a constitutional proscription. So if it's going to fly in spite of that restriction, you better have a damn good reason for it." In effect, it is asking when we'll allow overriding social need to trump textual bars.

By contrast, constitutional clauses like the Commerce Clause are grant of power. It makes no sense to apply the same level of scrutiny to laws which facially violate the constitution to those that don't (of course, if the Court doesn't think a law impinges on free speech norms, we never get to strict review in the first place. The finding of a constitutional tension is a prerequisite to heightened judicial scrutiny). Neily is essentially importing in the key facet of the First and Fourteenth Amendments (their status as legal restrictions on governmental authority) into every constitutional clause by abstracting away from the text and calling everything a constitutional "value". While Neily might wish that constitutional grants of power were circumscribed more sharply than they are, the fact is that (particularly with respect to state governments) there is a presumed residual authority to act unless a law violates a particular block on power.

Exodus Origins: The Making and Unmaking of a Myth

There is a Jewish proverb about a man who had been spreading malicious lies about one of his neighbors. Feeling guilty about it, he went to his Rabbi and asked what he could do for penance. The Rabbi told him:

"Take three pillows outside, and tear them open so the feathers are cast to the wind."

The man did so, and returned to the Rabbi. The Rabbi then instructed him to go out and collect all the feathers.

"But that's impossible! The feathers have been scattered; it would be impossible to track them all down."

The Rabbi nodded sadly, and remarked that this is the danger of telling lies -- even if one feels genuinely guilty and wishes to recant, it is unlikely that they every can be truly returned to their box.

Columbia Professor Rashid Khalidi has taken to delivering a speech where he purports to tell the true story behind Leon Uris' famous novel Exodus. Khalidi claims that the novel was "commissioned" by "Edward Gottleib ... one of the founders of the modern public relations industry" and "father of the American iteration of Zionism." Gottlieb hired Uris to write the book and sent him off to Israel to do so.

By all appearances, Khalidi's claim is a complete fabrication. Martin Kramer thoroughly breaks it down -- indeed, I have to say I've rarely read a more systematic rib-cracking than the one Kramer delivers to Khalidi on this point. The supposed connection between Gottlieb (who was, at most, a middling figure in the public relations industry and had little to do with the broader American Zionist movement) and Uris can now be found in several books, including one published by the University of California Press. My guess is that Khalidi was relying on these sources when making his claim. But all the claims trace back to a 1985 (several decades after Exodus was published) PR advice book which recounts the story in similar terms, as an anecdote to aspiring young PR professionals.

In terms of historical evidence, this is a very thin reed. And it stands alone: Gottlieb's name does not show up in Uris' papers, he is unknown to either of Uris' biographers, there is no contemporaneous evidence or documentation relating any connection between Gottlieb and Uris whatsoever. The author of the 1985 anecdote says that it was recounted to him by Gottlieb himself, but -- given the time lag, lack of corroboration, and the tendency for PR professionals to perhaps slightly exaggerate while self-promoting -- he admits that he cannot vouch for its accuracy. In fact, Gottlieb's chief assistant on matters related to Israel claims to have no knowledge of such a link between her boss and Uris, and firmly concludes that none exists. The odds that this story is true, in sum, is almost infinitesimally small.

So Khalidi is engaging in abysmal history to weave a typical narrative of Zionist perfidy and malignancy, and now it has been debunked. Which is good. And Khalidi is a trained historian, so that makes his terrible methodology all the more scandalous. But unfortunately, the genie probably still won't be returned to the bottle.

True historical research -- digging up primary source documents and interviewing surviving subjects -- is hard work, and work I personally find breathtakingly boring. It's one reason why going into the field of History never interested me. I know what good historical methodology is, but I don't practice it -- I'm reliant on actual historians to do their job right the first time. I assume that when someone like Khalidi tells a tale like this, that he got his information via true historical exploration (or at least relies on others who did) -- not simply taking a trade paperback at face value. The problem, though, is that every time such a story -- even if false -- is recounted by people with impressive-sounding Columbia University titles or prestigious university presses -- it provides another secondary source which the average person (myself included) generally relies upon in order to understand history.

The New Peasant Class

One of the major questions that has floated around the "Occupy Wall Street" movement is the simple "what do they want?" Obviously, we can answer this in abstract terms: economic justice, easing of burdens on the lower and working classes, and (slightly more concretely) accountability for the people who got us into this mess in the first place (namely, Wall Street). But there has been very little in the way of specific policy proposals. Indeed, even the overall ideology is fuzzy -- supporters range from Ron Paulites (they are everywhere, aren't they) to socialists and communists, to mainstream unions, to some Democratic politicians, to relatively apolitical Americans who are simply overcome with frustration. My friend Matt Cole makes a decent defense of this mode of operation -- not making "demands" of the system but rather expressing itself in a more "aesthetic" or expressivist sense.

But Rorty Bomb has done some interesting work parsing the "We are the 99%" tumblr to try and figure out what the movement wants. And the results are sobering. OWS is not about mid-twentieth century liberalism -- increasing unionization leading to the suburban house and the two-car garage. Nor is it about socialist revolution -- smashing the capitalist state and redistributing power and dignity to the workers. What the 99% want, RB argues, is decidedly pre-modern -- bearing most in common with historical peasant revolts. They want to be free from the burden of crushing debt, have access to enough resources so they're not consistently living hand-to-mouth. That's it.

To people who think OWS is the first step to the opening a new horizon, this is profoundly demoralizing. There is nothing bold about these desires. They are ancient and basic; if anything, they are the result of people too downtrodden to dream of anything more.

But at the same time, the very simplicity of what is being asked for here also gives it greater moral punch. Surely, in a country as rich as ours, with the bounty we possess, we can give them this much.

It's Judeo-Christian!

For my own health, I try to avoid paying attention to the Christian Right. This means that I didn't notice they had their big "value voters" summit this week, which in turn means I didn't notice it overlapped with Yom Kippur.

And Back Atcha!

The Chinese Restaurant Association sends thanks to the Jewish people for our Christmas-day patronage. We, in turn, thank the Chinese Restaurant community for being open that day and welcoming us with open arms.

Project Runway PSA

If you're a Project Runway fan, I assume you've already discovered this, but in case you're like me and are late to the party ....

Laura Bennett has a Project Runway blog. It is incredible.

That is all.

Children of the Corn

Everybody around here is sniffly and stuffy -- myself included. Apparently, it's not a virus. Rather, it's the ongoing corn harvest, which supposedly sets off allergies left and right. Including, it seems mine -- worse even than I had in Minnesota (where I believe my New Student Week group was worried I would actually keel over and die while working in St. Paul).

Now, I'm allergic to many things. Some of them (grass, cats) I've even managed to nail down. Mostly, it's a mystery when my eyes suddenly start running water or my skin breaks out in hives. But I'm pretty sure I'm not allergic to corn. I mean, I eat corn all the time. Corn syrup is in literally 85% of the food I eat. How could a corn harvest set off an allergic reaction.

Oh whatever. At least it will be over in ... a month? It takes a month to harvest all the corn.

God damnit. I miss Chicago.

RIP Derrick Bell

Derrick Bell -- civil rights warrior, pathbreaking law professor, founder of critical race theory, and tireless advocate for justice, has passed away at age 80.

I never met Derrick Bell. I had the opportunity once when he came to speak at Carleton, but I was going out of town. I remember pulling aside my roommate -- a Math major with zero interest in politics, law, race, or anything primarily expressed via words -- handing him my copy of And We Are Not Saved, and informing him that he was going to Professor Bell's talk and he was getting my book autographed. Which my (quite saintly) roommate proceeded to do, and I still have that book on my desk to this day.

Bell was a model to generations of students. He accomplished more in one lifetime than the average person could hope to do in three. I was introduced to him as an academic writer -- progenitor of "interest-convergence theory" and CRT founder -- but it is worth remembering that academia was really Bell's second career. He started off as an in-the-trenches warrior in the fight for civil rights, leading the NAACP in dozens of successful anti-segregation suits in the Jim Crow south. After a brief stint at the University of Southern California, Bell became the first tenured Black professor at Harvard. He eventually left Harvard in protest of their failure to hire a Black woman. The claim, as always, was that they couldn't find a "qualified" one. How they said that with a straight face to Bell -- who graduated from the decidedly non-elite University of Pittsburgh law school and proceeded to become one of the most influential scholars of the last quarter century -- is beyond me.

Rest in peace, professor. Be assured that your legacy lives on.

Who Gave Steve King a Magic Lamp?

Ah, Steve King. The Republican from Iowa has graced the pages of my blog at several points as among the dumbest members of Congress -- defending the "mendacity" of Republican leaders, worrying that women will never have babies if we allow them access to birth control, and referring to America as a nation of slackers. And today, we get a new entry: pining for a return to 19th century voting rules, where only propertied (White) men could vote. You think I'm exaggerating:

“[T]here was a time in American history when you had to be a male property owner in order to vote. The reason for that was, because they wanted the people who voted — that set the public policy, that decided on the taxes and the spending — to have some skin in the game."

King was making a "skin in the game" argument, and we'll put aside my general objections to that argument. I'm not 100% convinced that the only reason voting was restricted to white male property owners was that they, unlike the rest of the population, had "skin in the game". Call me a skeptic if you like.

But if the goal is to see America return to pre-Voting Rights Act electoral rules, King may be getting his wish. Check out this story from Tennessee, where a 96-year old Black woman who was able to vote during Jim Crow is facing disenfranchisement due to the state's draconian new voter ID requirement. The woman actually has a photo ID, just not one that counts under the law. So she went to get one that would qualify, but showing the clerk her (a) rent receipt, (b) lease copy, (c) voter registration card and (d) birth certificate wasn't enough to satisfy the clerk and get the card.

Rape and the Man on the Street

You know, I like the Harry's Place blog, but for whatever reason they are consistently terrible on the topic of rape. Today, HP co-blogger Libby T calls out as "hate speech" the following passage from Cath Elliot:

[R]apists don’t rape because they’re somehow evil or perverted or in any way particularly different from than the average man in the street: rapists rape because they can. Rapists rape because they know the odds are stacked in their favour, because they know the chances are they’ll get away with it. (Emphasis added by Libby)

Libby claims that Elliot is saying that all men are rapists-in-the-closet -- awaiting only the right opportunity. This, to me, is a misreading so egregious one wonders if it is willful.

The italicized portion of Elliot's quote references the empirically true claim that rapists are not demographically different from the population at large. In our heads, we have a vision of the rapist as this sort of sociopathic, damaged person with wild eyes and unkempt hair. But that isn't the case. The fact is there is little distinguishing him from the average person on the street (other than, of course, that he's a rapist). This is the case with most other "moral monsters" -- the banality of evil, so to speak. This doesn't mean that most men secretly harbor a desire to rape. What it does mean is that those men who do rape do so not because they scarred, diseased, or otherwise marked off from the general population in any noticeable way. The explanation for their conduct has to come from elsewhere.

This leads to Elliot's bigger point. The advantage of reframing the image of the rapist into one of this deviant soul is that it absolves the community of any responsibility for creating what is sometimes called by feminists "rape culture". Instead, under this view, rapists rape because they are pure evildoers so committed to malice that they will overcome society's strongest taboos and proscriptions to satisfy their depravity.

What Elliot is arguing, though, is that many rapists lack the sense that they are doing anything wrong in the first place. They think that the dominant sexual ethos of our society in fact sanctions their behavior (compare my post on Jewish extremist violence from earlier today) -- and this belief, of course, runs stronger when we remember that most rapes are not of the archetypical "stranger in a dark alley" variety. Armed with a belief that "no means yes" or pushing away is just playing "hard to get", they think that they are engaging in normal, uncontroversial social action. They might recognize the existence of some technical or formal bar against rape, but probably don't conceive of themselves as violating it. And in terms of social stigma, they are quite confident that nobody will stand in their way. They see themselves, at worst, as ordinary men in extraordinary situations (if they even see themselves as wrongdoers at all).

None of this implies most men think this way. That isn't the problem. The problem is that the minority of men who do think this way are not being informed that their behavior is intolerable. Rather, the message (e.g., from the rape jokes that are Elliot's target) is that they're a hilarious, endearing embodiment of mainstream masculinity.

"We Call Them Terrorists", Part II

A "price tag" attack by suspected Jewish extremists on an Israeli mosque has drawn condemnation from across the Israeli political spectrum. As well it should -- it is a despicable act that is an insult to Judaism as much as it is vicious to Muslims.

But the fact remains, the attack happened. And it is not a one-off: the "price tag" campaign is just that -- a campaign, promoted by extremist Jews who have decided "there are no innocents" and view the entire Muslim world as their targets. Jewish Hamasniks, in other words. And, like Hamas, they view themselves as authentic representatives of the faith and of their people. So the question is how to disabuse them of that notion.

A few years back, I wrote in defense of hate crimes laws that the perpetrators of anti-gay violence are morally indistinguishable from terrorists. Both are attacking not just to harm the particular victim, but also to send a message of hate to the group the victims are a part of (Jews, Muslims, Americans, or what have you). And part of the reason we have anti-terrorism laws is our recognition that this motivation is particularly malign and dangerous, and needs to be countered in the most forceful way possible.

In that post, I also talked about another reason why hate crimes laws are important: preventing the perpetrators from believing, even post-incarceration, that they were really speaking for the silent anti-gay majority. I drew the analogy to lynch cases, where, even if the perpetrators were prosecuted (and that was rare enough),

nothing was done to breakdown the notion that the motivation, too, was immoral. In such a context, it is so important to be very explicit in sending the opposing message. The South needed to be told--in the clearest possible way--that not only was murder wrong, but that the entire desire to force Black Americans into submission was reprehensible and rejected by the broader community.

Crafting special legislation for that problem (the ban on lynching that failed so many times in Congress) was such a signal.

So returning to Israel. It is clear that the extremists who enact "price tag" policies are willing to go to jail. That, indeed, is something they're proud of -- something they say with strength. But what if, instead of just calling them criminals (which they are), Israeli political leaders also called them terrorists?

It's a perfectly apt descriptor: surely, if a Palestinian set fire to a Jewish synagogue with the stated desire for vengeance against Israel's Palestine policy, nobody would hesitate to append the label. But in Israel, "terrorist" has a particular moral weight -- it represents the crystalline distillation of the threats and perils Israel and Israelis face on a daily basis. It is the emblem of all it means to be "against Israel". One can go to jail and still be a civil disobedient, boldly defending the silent Israeli majority via one's courageous acts of arson. It is difficult to maintain that sense of communal backing when the community has given you the label terrorist.

UPDATE: I see the "terror" label has in fact started to come out amongst Israeli institutions: the Shin Bet referred to it as "Jewish terror", and Sephardic Chief Rabbi Shlomo Amar also called the attack an act of "terrorism".

Herman Cain and the Legacy of Booker T. Washington

Ta-Nehisi Coates has a characteristically excellent post on Herman Cain and ill-conceived comparisons to Booker T. Washington. The claim is that Washington, unlike more "protest" modeled Black leaders, emphasized a program of self-uplift which is absent amongst dependency-minded Black leaders today. That's descriptively so wrong on every level as to be insulting, but Coates also observes that Washington's defining characteristic was that he was a leader in the Black community. "He built a black institution, that educated black people, and took his message to black audience. In short, Washington was a legitimate organic black conservative, rooted in the black community, propelled forth by his relationship to that community."

Cain, on the other hand, targets his message not to Blacks but to White populists largely hostile to Blacks. Coates thus draws a different analogy, to one William Hannibal Thomas, who once wrote the following:

The negro not only lacks a fair degree of intuitive knowledge, but so dense is his understanding that he blindly follows weird fantasies and hideous phantoms. So great is his predilection in this direction, that he appears incapable of understanding the difference between evidence and assertion, proof and surmise. These facts warrant the conclusion that negro intelligence is both superficial and delusive, because, though such people excel in recollections of a concrete object, their retentive memories do not enable them to make any valuable deductions, either from the object itself, or from their familiar experience with it.

Thomas (who fought for the Union in the Civil War and was wounded in combat) had great appeal to White populists at the turn of the century, but his support within the Black community was virtually nil even as Washington was at his apex. The problem isn't that there is no Washingtonian tradition in the Black community (if anything, it is found more in quasi-nationalists like Rev. Jeremiah Wright). The problem is that Black people don't like to be lectured out by "leaders" whose only connection to the Black community writ large is to harangue them.

Boxing Roundup: 10/2/11

I didn't watch the cards from last night, so this only a recap of tonight's HBO action, plus two of the fights earlier today in Germany.

Yoan Pablo Hernandez (25-1, 13 KOs) TD6 Steve Cunningham (24-3, 12 KOs)

Poor Cunningham. He can't catch a break (even the AP article mislabels its photo -- Cunningham is landing the punch, not eating it). He's got the building blocks to be a star: he's charismatic, has a good back story, a cool nickname ("U.S.S." -- he's a Navy guy), has a physique like Conan the Barbarian, and tends to be in exciting fights despite not having the most pop on the block. But of course, he isn't a star, because he's a cruiserweight, and Americans don't care about cruiserweights. So he fights in Europe, where bad things happen.

And tonight, a bad thing happened against Hernandez. In the first round, Cunningham was dropped, hard. He barely made it to his feet before the count was up (in fact, Hernandez's corner protested the count was long), and was out of it even when he did rise. It could have been stopped there, but Micky Vann let it continue, and Cunningham escaped the round.

After that, though Cunningham steadied himself and took over the rest of the fight. However, there was a headbutt that opened up a gash high on Hernandez's forehead. It wasn't a bad cut -- while it was bloody, it wasn't in a particularly dangerous location and didn't seem to be affecting Hernandez's vision. But inexplicably, the fight was stopped after six. And that cut short Cunningham's rally, where he was starting from behind on the cards but picking up momentum. Even accounting for that, I had the fight 57-56 (four rounds to two) for Cunningham. 57-56 Hernandez also would have been acceptable. But 58-55? 59-54? Outrageous.

And let's return to the stoppage again. What was that about? Here's the ring doctor:

Ring doctor Walter Wagner said he recommended the fight be stopped.

"The cuts weren't dangerous but the blood could have run into the eyes and affected his vision. I think the head clashes that the referee felt were accidental weren't entirely accidental. You can have different opinions there. Hernandez was at a disadvantage from the cuts, so I gave the recommendation," Wagner said.

Umm...what? The cuts weren't dangerous. They could have run into the eyes (but apparently were not). Hernandez was "at a disadvantage" -- which is not the standard for stopping the fight. And it isn't the doctor's job to determine whether the clashes were "accidental" or not (I think the announcers had it right in saying it was "reckless"). This is just a textbook case of a doctor completely botching his role, and it turned what was shaping up to be a dramatic comeback into a controversial victory for the wrong fighter.

Grzegorz Proksa (26-0, 19 KOs) RTD3 Sebastian Sylvester (34-5-1, 16 KOs)

A star fades, a star is born. Sylvester, a long-time German veteran last seen losing his middleweight title to Daniel Geale, was now facing rising prospect Grzegorz Proksa. Proksa picked him a part until Sylvester quit on his stool (a mix of accumulated punishment and an actual, factual, serious cut).

Proksa definitely impressed tonight. He was cocky, particularly for an Eastern Europe fighter, boxing with his hands down and moving with a fluidity one does not associate with fighters from that region. A little Sergio Martinez-esque. But in any event, one can say Sylvester is past his prime, and maybe. But he was a titlist the fight before this, and this is still a definite feather in Proksa's hat. Count me as one who wants to see more.

Andy Lee (27-1, 19 KOs) UD10 Bryan Vera (19-6, 12 KOs)

A rematch of Lee's first professional loss, a slugfest which I recall watching as one of the great upsets of 2008. I did think, however, that the stoppage in the fight was premature. And the fact remains that Lee still had the tools to be a blue-chip prospect, while Vera is Vera -- a game but exceedingly limited brawler.

Tonight, Lee seemed more concerned with exorcising the demon than with dazzling the crowd, boxing his way to a wide decision. Anyone who fights with a modicum of skill -- and can avoid being muscled around -- can beat Vera, and Lee certainly meets both of those qualifications. He certainly looked better than he did in the first Vera fight, or even than he did against Craig McEwan (where he needed a come from behind knockout to win). But he didn't look great, and I'm still left wondering how high his ceiling is.

Sergio Martinez (48-2-2, 27 KOs) KO11 Darren Barker (23-1, 14 KOs)

Darren Barker got no respect entering this fight. Hell, even Michael Buffer mispronounced his name. But he certainly earned one by exceeding expectations, even though all that meant in this case was that he was soundly beaten instead of obliterated.

Though Martinez won by knockout and was in control, this was not his most scintillating performance (of course, it was the fight I elected to introduce my non-boxing fan dad to Martinez). He seemed a little tentative, and rather unwilling to lead. Martinez remains a natural counterpuncher, and Barker took away that part of his game by keeping a high guard and just walking in without throwing punches. Martinez didn't want to let go until Barker did, but Barker closed the gap enough where it largely neutralized Martinez's speed advantage. Unfortunately, Barker didn't throw many punches either, so Martinez's pot shots were winning the early rounds.

As the fight progressed, Barker began to open up more, and Martinez was happy to oblige. Still, little was landing flush and the fight looked headed to a decision. A combination in the 10th wobbled Barker, however, and Martinez kept up the pressure in the 11th. The final punch that ended the fight did not appear to connect flush -- grazing Barker's glove before landing behind the ear -- but it was an accumulation of punishment that saw Darren Barker go down and out for the count.

Martinez continues to be in a situation where there just aren't that many fights for him. Middleweight is a wasteland -- Andy Lee is a top 10 guy at this point, and Martinez would tear him apart. Junior middleweight isn't all that much better, though Cotto or Margarito lurk there, it's not clear Martinez brings enough coin to get them to the table. Larry Merchant asked about fighting Bernard Hopkins at 170 lbs, but Martinez (correctly) demurred, noting that weight was simply too high for him (he's comfortable at middleweight, but certainly not particularly big for the 160 lbs division). It's unfortunate, because he really does have star potential. He's just the wrong body size at the wrong time.

What's Scary and Not About Anwar Al-Awalki

Anwar Al-Awalki, an American citizen affiliated with al-Qaeda, has been killed in a drone strike. This has set off a torrential debate about the legality of such strikes.

What's odd is that there is something worrisome about Al-Awalki -- but not what's getting most of the attention. It's not that he's a citizen. It's not that he was killed. It's rather a deeper lacuna in the laws of warfare and how they work (and don't work) in international conflicts against an enemy like al-Qaeda.

Let's start at the beginning, though. The argument being put out by folks like Glenn Greenwald is that liberals who were deeply concerned about President Bush's detainment policies should be apoplectic now that Obama has killed a man. There's obviously something intuitively plausible about this (killing is more serious than even indefinite imprisonment), but as a matter of law I think it's rather obviously wrong. In an armed conflict, the right of a party to kill opposing combatants is not controversial (it is subject to many restrictions, but none relevant here); however, if the combatant is captured, a plethora of new legal obligations open up.

Take a very uncontroversial example: The United States and Germany are engaged in a conventional war. An American soldier sees a German soldier. He shoots and kills him. Obviously, there is no legal problem with that. That's just war. One doesn't need a warrant or a trial, or even give an opportunity to surrender. On the other hand, if the soldier is captured, then a great many legal protections open up. One cannot, for example, summarily execute the person whom 10 minutes ago one would have had every legal right to kill. In fact, if one wants to charge them with a crime or impose any sort of punitive sanctions (POW confinement is considered non-punitive and for that reason standards attached to it are relatively generous), one has to afford considerable procedural protections. This, of course, is reflective of the peculiar status of war: it's legally sanctioned killing of individuals who have probably not committed (much less been convicted of) a crime.

Notably, nothing in the above argument turns on whether the German soldier was an American citizen or not. And it's not clear why it should -- a citizen who is engaged in armed conflict for a foreign party should, in the midst of such hostilities, be treated as a member of that armed group. And that seems reflected in both the letter and structure of the relevant law. First, as Matt Yglesias observes, one can lose one's citizenship already by "Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S." (8 U.S.C. 1481(a)(3)) -- it is more or less a failure of updating that this doesn't encompass non-governmental military actors engaged in hostilities against the U.S.. Second, in Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court in fact directly dealt with a situation where a German belligerent was also an American citizen.* Third, the Fifth Amendment doesn't restrict itself to citizens anyway (rather encompassing "persons") -- and that's good, for (as I'll explain below), the real worries about operations like this don't really become any less significant if the target is a non-citizen.

Andrew of Coffee House Talks tries to argue that because the Constitution carves out a specific crime of treason, an American citizen effectively can't be a military belligerent but must be charged with that particular crime. This is simply wrong: one can both be a combatant subject to the rules of warfare and a traitor. As explained above, once captured a person who has allegedly committed treason must be afforded constitutionally required procedural protections; but that does not mean they are somehow exempted from the normal (non-criminal) rules of war (the upshot of Andrew's argument is that every shot fired by the Union in the Civil War was illegal).

So the problem isn't that Al-Awalki was killed. And the problem isn't that Al-Awalki's a citizen. So what is the problem?

Two spring to mind. The first is whether Al-Awalki actually was a belligerent. Recall that this is basically the same worry that was most salient about the Bush administration's detainee policy -- there is no problem detaining actual enemy belligerents and neither is there a problem killing them, but there is a huge problem about doing those things to random innocent schmoes. But with Al-Awalki the controversy isn't really about that: nobody seems to dispute he was part of al-Qaeda, rather, the controversy seems to stem from his supposedly non-combat role. Now, as I understand it one can be part of an armed group while serving in a non-armed capacity (e.g., a radio operator or a quartermaster) and still be a valid target. But this is an area, though, where I simply don't know the relevant facts about Al-Awalki's role.

In any event, at best I can say that while Al-Awalki may not be the troublesome case, we can easily imagine a situation where the target denies being involved with al-Qaeda at all. And then we have a problem. In normal war, you know who the enemy is -- they wear a uniform. In fact, it's a breach of the laws of war not to. And that's because we want to make sure we can easily distinguish valid military targets from bystanders. But of course, al-Qaeda does not operate like that, and that makes things considerably more complex. We can say this is one more thing dickish about al-Qaeda and other terrorist organizations who do not distinguish themselves from civilian populations, but (while that's 100% true), it doesn't actually resolve the problem.

The second problem is that the above analysis does not have a spatial restriction. It could easily apply to alleged al-Qaeda belligerents on American soil. And this is difficult. On the one hand, it can't be the case that once someone reaches American soil, we have to treat them as a criminal and not a belligerent (see, e.g., the Civil War, and Quirin for that matter). On the other hand, if Al-Awalki had stepped off the plane in New York City, I think we'd all agree the proper response is to try and arrest him, not shoot him in the face.

The best answer I can give is that in areas where America exercises police power (i.e., American soil), there should an extremely high presumption in favor of using the police power to arrest alleged enemy belligerents, excepting only if they are currently engaged in hostilities. I don't know if a presumption of that variety is encoded in current positive law (the Posse Comitatus Act comes closest). But there are certainly excellent prudential reasons to prefer this -- aside from the importance above of ensuring we get the right guy, where do get said guy there's more intelligence to be gained from a live mind than a dead body.

* The citizen (Haupt) was executed. I think Quirin is problematic, not because Haupt was a citizen, but because once the belligerents were confined the procedural protections accorded were too lax.

Vicente Fox News

I think Mitt Romney has to be the odds-on favorite to win the GOP nomination. And when he does, this ad will guarantee that he'll be throttled amongst Latino voters.

Never Before Has the Supreme Court Been Asked To Uphold The Acronym "PPACA"....

Commenting on the United States' cert petition in the PPACA litigation, the Justice Department wrote:

Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.

Randy Barnett replies:

Each of those laws enjoyed bipartisan support when enacted; none were passed on a straight-line party vote. In fact, enacting so massive a social-welfare measure that affects every man, woman, and child in the United States in so partisan a manner was ... wait for it ... unprecedented.

For starters, I'm not sure what the argument is here. Does the Constitution change because Republicans threw a temper tantrum about this bill that was ... wait for it ... unprecedented in American legislative history? For that matter, I don't even know what it means to pass a law in a "partisan manner". It's hardly the case that Democrats acted to specifically prevent Republicans from joining the legislation, or locked them out of negotiations. Indeed, given the scope and breadth of GOP intransigence, I'd say they made (wait for it!) unprecedented efforts to include Republican voices. There are laws which were drafted specifically so as to "box out" the other party so they couldn't join on to an otherwise salutary policy accomplishment (e.g., The Unborn Victims of Violence Act). But PPACA wasn't anything like that.

But the entire subtext here is misleading. The Civil Rights Act was "bipartisan" primarily because America hadn't undergone the massive realignment whereby the South shifted from Democratic to Republican. But the fact that Southern Dixiecrats split ranks with their soon-to-be-ex-colleagues hardly implies anything about that law being less controversial at the time of passage. It just illustrates that we live in a political climate where party label more accurately reflects polarization.

Play Little Dumplings

This was a proposal to use recycled tires to create a children's playground for refugee children from Myanmar. As you can see, it appears to represent a terrifying squid-beast that the already-traumatized children are attempting to flee from as fast as their little legs can carry them.

DOMA Repeal Goes Bipartisan

The bill to repeal the Defense of Marriage Act (Freudian slip -- I started to write "Defense Against Marriage Act) has obtained its first Republican co-sponsor -- and she ain't no backbencher. It's Rep. Rep. Ileana Ros-Lehtinen (R-FL), chairwoman of the House Foreign Affairs Committee and two decade House veteran. Certainly, this is a far more joyous occasion then the last time I talked about Rep. Ros-Lehtinen on my blog!

Kudos to the Floridian, and congratulations to the gay rights movement for this significant step forward.

Race-Baiting is the Most Post-Racial Act of All

Shorter Roger Simon: The relevant locus point for thinking about race in America is a Black politician whose support amongst the Black community hovers around the Planck Constant. And you know he's "post-racial" because he likes to tell largely White audiences that most Black people can't think for themselves and remain "on the plantation."

Incidentally, Simon's general criticism of ethnically-affiliated institutions for historically marginalized groups (the column calls for the disbandment of the Congressional Black Caucus, which has "no justification any more, if [it] ever did.") would equally apply to, among other things, Cain's alma mater (Morehouse College) and the state of Israel.

Sunday Punch Roundup

A bit of a rough weekend here, and unfortunately Jill is out of town.

* * *

Melissa Harris-Perry on why (some) White liberals are turning on Obama.

An interesting retrospective by the participants in the notorious "Stanford Prison Experiment."

After a Palestinian stone-thrower apparently caused a car accident which killed a Jewish settler and his infant child, settler militants are vowing revenge, with one extremist Rabbi proclaiming "There are no innocents in war."

Convicts told: Go to church or go to jail. It's not an Establishment Clause violation, the police chief argues, because you've got a choice!

The Marine Times cover on the repeal of DADT is, indeed, fantastic.

I thought the Herman Cain fad had passed, but apparently nobody thought to tell Florida.

This is from a few days back, but the new Union of Jewish Students (UK) campaign for a two state solution respecting the rights and dignity of Israelis and Palestinians alike looks very cool. I'm dubious that it will have any impact on campus radicals, but hopefully it can make a dent on the middle.

US gives high-powered military equipment to Mid-East ally fighting terrorist organization which seeks an independent homeland for a stateless, oppressed people.

Looks like Congressional Republicans have been reading my Comment.

Spain Recognizes Israel as Jewish State

In what is seen as a shocking turnaround, Spain -- traditionally considered one of the most pro-Palestinian EU states -- has announced that it recognizes Israel "as the embodiment of the project to create a homeland for the Jewish people." In accordance with this, Spain also asserted that the Palestinian refugee problem should be resolved in a way that does not threaten Israel's Jewish demographic character.

This comes in the midst of an aggressive push by the Palestinian Authority for statehood recognition at the UN. One of the reasons the UN bid bothers me is that the UN -- being institutionally biased -- is a forum in which Palestinians don't have to concede anything to be given everything they want. It is an end-run around negotiations, because a considerable portion of the UN membership body doesn't think Israel has rights in the first place. It's effectively cost-free for Palestine, as it garners a huge (albeit symbolic) victory in exchange for nothing on their end.

But Spain's action suggests that some of the more prominent states supporting Palestinian statehood are going to tell the PA what it needs to hear -- that is, that a final status agreement is going to include concessions that respect Jewish and Israeli rights too. In others words, if the PA is going to press the issue, every issue has to be pressed -- including those Palestinians would like not to think about.

Deep in the Amazon

Stellar local journalism by the Allentown Morning Call reveals rather brutal working conditions at the local Amazon.com warehouse. Things are rough in that section of Pennsylvania right now, which means Amazon.com is perfectly happy to plow through an ever-rotating mass of temporary workers lured with the promise of a full-time job, then put through a blistering pace until they can't keep up and are fired or quit (or simply are injured).

UCI Students Convicted for Disrupting Speech

Last year we talked about an incident at UC-Irvine where various students affiliated with the university's Muslim Student Union disrupted a speech being given at the school by Israeli ambassador Michael Oren. UCI ended up suspending the MSU (the suspension was originally for a year, but this was reduced on appeal). But the students were also criminally charged under a California statute which prohibits "willfully disturb[ing] or break[ing] up any assembly or meeting that is not unlawful in its character", and have just been convicted.

Eugene Volokh analyzes the statute and its application against First Amendment doctrine and thinks it is constitutionally permissible as a legitimate time, place, and manner restriction.

Project Runway Power Rankings!

Oliv(i)er's departure last night left us with seven designers remaining. And while many are excited to see him go, let's be fair -- the last few challenges have not played to his strengths. I mean, that was two straight weeks with models who project into three-dimensional space!

Anyway, roughly halfway through the season, where do the designers stand in this viewer's humble opinion? Read on to find out!

(1) Viktor: After an iffy start, he's found his groove and become one of the strongest and most consistent designers on the show. A few of designs (particularly the gown which should have won the prints challenge) have been nothing short of stunning, although much of the time he's simply standing out amongst a weak field. Still, he seems to be in excellent shape to make Fashion Week.

(2) Anya: The fan favorite (as well as my own), I firmly believe that if this was Project Runway: Season 11 she'd be running away with it. Anya clearly has the most natural eye for design of any of the designers, and the strongest point of view that has lead to some truly beautiful garments. But while her sewing skills have mostly held up, we saw the first stumble this past challenge, and remains possible she could unravel (figuratively and literally).

(3) Josh M.: I know, I know -- I find him obnoxious too (though his too-obvious crush on Anya is adorable). And frankly, I don't think he's that good. But he does have some intriguing ideas, it's just an inability to edit that does him in. The cynic would say that if you throw enough details and features and flaps and pockets on a garment, of course some of them will be interesting (if only by accident). I say that I see some genuinely neat stuff on his outfits that signal a real point of view.

(4) Anthony Ryan: Another fan favorite, but annoyingly inconsistent, and a lot of times too safe. In client-challenges, Anthony Ryan seems to excel in giving the customer what he or she wants, which is a mixed-blessing, since clients often don't want something too cutting edge.

(5) Kimberly: Another extremely inconsistent designer. She's had several looks that demonstrate a real flair for design, but others that were just "wtf" moments. What's odd about Kimberly is that even though she typically does have good construction, I often don't feel like that's a strong suit, probably because sometimes the concept is so off-kilter that even making it "well" will still look bad.

(6) Bert: Bert started this season as the loveable curmudgeon, transitioned into a pure villain, and has since swung back to being (mostly) loveable. Good for Bert for showing genuine character growth! Unfortunately, Bert's design aesthetic doesn't lend itself to this show. He knows how to sew, and he knows how to work with clients (surprisingly enough, given his crotchety attitude), but he rarely makes looks that have any "pop", and that's going to catch up with him sooner rather than later.

(7) Laura Kathleen: Ugh. I don't see what the judges see in her. Laura Kathleen thinks she is so hot, and she's so not. Her designs are unified in being boring and off-the-rack; her avant-garde look was basically a dull prom dress. She doesn't have any major strengths as a designer that I can see, and she's exceptionally catty to boot. I hope she goes home and soon.

Will Palestine Be a State For All Palestinians?

This is a distressing interview published in Lebanon's Daily Star. Abdullah Abdullah, Palestine's ambassador to Lebanon, informs us that Palestinian refugees will not be given automatic citizenship in any newly created Palestinian state. This applies to Palestinians living in surrounding countries (including Lebanon), but also to Palestinians living in refugee camps in the West Bank and Gaza (that is, in the territory that comprises the to-be-created Palestinian state):

The ambassador unequivocally says that Palestinian refugees would not become citizens of the sought for U.N.-recognized Palestinian state, an issue that has been much discussed. “They are Palestinians, that’s their identity,” he says. “But … they are not automatically citizens.”

This would not only apply to refugees in countries such as Lebanon, Egypt, Syria and Jordan or the other 132 countries where Abdullah says Palestinians reside. Abdullah said that “even Palestinian refugees who are living in [refugee camps] inside the [Palestinian] state, they are still refugees. They will not be considered citizens.”

Abdullah said that the new Palestinian state would “absolutely not” be issuing Palestinian passports to refugees.
[...]
The right of return that Abdullah says is to be negotiated would not only apply to those Palestinians whose origins are within the 1967 borders of the state, he adds. “The state is the 1967 borders, but the refugees are not only from the 1967 borders. The refugees are from all over Palestine. When we have a state accepted as a member of the United Nations, this is not the end of the conflict. This is not a solution to the conflict. This is only a new framework that will change the rules of the game.”

Of course, PA policy on this matter is not set by their Ambassador to Lebanon. Still, this is extremely troublesome on several levels. In terms of the desire to resolve the conflict, it is notable that the Ambassador explicitly is disclaiming that as an objective or a result of attaining statehood. In this, he echoes right-wing Israeli sentiment that the Palestinian movement is not fundamentally about attaining self-determination, but about obliterating Israel as well. Meanwhile, from a human rights framework, the Ambassador's position maintains and ratifies the stateless status of millions of Palestinians, including many which would be under the jurisdiction of the new Palestine. That sort of callousness should give everyone pause.

Different Speeches for Different Audiences

Apparently, "the left" is disappointed with President Obama's UN speech, which focused primarily on chastising the international community for its obsessive focus on Israel and its deliberate apathy towards that state's security and legitimacy needs. They wanted to see a more aggressive push by the President towards restarting negotiations.

Whatever. First, the Obama administration has hardly been quiet about pushing for a return to the negotiating table. I'm not sure why it was particularly important that he lay out a 12-point plan before this particular body. Much like how the President's pressure on Palestinians apparently doesn't count because it wasn't sufficiently public, apparently it is valid practice to ignore the administration's tireless efforts to return the two parties to the negotiating table because it is merely being plastered over the front page of every newspaper in America, rather than at the UNGA.

But more importantly, forums matter, and this was a speech that the UNGA diplomats needed to hear. The fact of the matter is that one of the major obstacles to a just peace between Israel and Palestine is that a substantial portion of the international community rejects in principle basic things like "Israel shouldn't be destroyed" or "it's bad when suicide bombers blow up cafes in Tel Aviv". That norm has been for too long unchallenged, and it is a great thing that the President took it upon himself to break that streak. While Avigdor Lieberman's approval fills me with shame, it is notable that President Obama gave what Ha'aretz is calling "probably the warmest pro-Israel speech ever given at an annual UN General Assembly meeting by any U.S. president, bar none." This is a body that doesn't hear many such speeches, and it needs to.

Not every forum is like the UN, of course. Not every relevant location to the Israeli/Palestinian conflict is a place where Israeli concerns are systematically marginalized and the Jewish people are routinely denigrated. In other places, it is the Palestinians who are marginalized and ignored, and in those places people need to be informed of the legitimate aspirations and true suffering of the Palestinian people. And in other locations, the problem isn't really lack of awareness of either side's plight, but a simple need to get people back in a room together. And in those places, that's the message that should be sent.

But the UN is a specific audience, with a specific character flaw that needed to be picked out. It's not the only thing President Obama should do, but in this forum, before this audience, it was the right speech at the right time.

The Puzzle of Obama as Not Pro-Israel

NY Mag has a good and much-talked about article up on President Obama's struggles to be seen as "pro-Israel", even though by any objective metric he has been a stalwart supporter of the Jewish state. President Obama has leaned upon Israel, this is true, but he has also leaned upon the Palestinians as well. Moreover, Obama's pressure on Israel has in my view clearly been in support of policies in Israel's own interests anyway (the settlements are catastrophic for Israel from both a moral and strategic perspective). His outlook on the conflict mirrors of that of many prominent Israelis, most notably opposition leader Tzipi Livni.

But therein lies a large part of the problem. President Obama's positions are perfectly within the Israeli mainstream. But they happen to be reflected by the party out of power. The current Prime Minister and Obama do not see eye-to-eye. It is easy to cast personal and political tensions between the two as tension between America and Israel.

I actually think David Bernstein has a solid read on this. I don't think that Obama was actively trying to bring down Bibi's coalition (though I don't think he would have shed any tears if it had happened), but I agree that President Obama's avowed "anti-Likud" standpoint is going to be problematic when Likud is in power. President Obama is clearly correct that "pro-Israel" and "pro-Likud" are not the same thing, but the potential for political awkwardness is obvious.

Bernstein also notes the rise of Israel as a central part of conservative domestic political mobilization as something President Obama didn't anticipate. I think this is right as well, but I think Bernstein elides a critical part of this story. The effort by the GOP to turn Israel into a partisan wedge necessarily implies that there will be a concerted effort by GOP operatives to cast President Obama as anti-Israel regardless of whether the attack is fair or not. That's how politics works, of course -- it is not as if virulent Obama opponents are going to come out and say "hey, he's got a point." They are going to try and find an avenue for why whatever it is he's advocating represents bad policy by a bad president who should be defeated. The conservative critique, in other words, doesn't flow organically out of policy disputes, but is political theater promulgated by political opponents who hate Obama far more than they love Israel.

The most obvious example of this was Noah Pollak, who in 24 hours did a complete 180 on his beliefs about what policies were good for Israel after realizing the opportunity to launch an attack ad against the President. This helps illuminate part of President Obama's sin: he is guilty of caring about Israel enough to actually have opinions about it, and try and promote them. People like Pollak, on the other hand, appear to be complete mercenaries when it comes to Israel -- they don't have actual beliefs about what is best for Israel, they just have a political calculation about how to use Israel to hurt Obama. Others explicitly urge that to be "pro-Israel" is to lack any such beliefs -- a standpoint which is frankly bizarre. If I told you I cared deeply about America and its future, and you said "Oh really? What policies do you support?" and I replied "oh, it doesn't matter to me -- whatever the current government decides, I'll just support that", you'd be right to challenge just how deep my commitment runs. Caring about something means having opinions about it.

Obviously, one can be genuinely pro-Israel and disagree with President Obama. But a sober look at political realities requires us to admit that a not-insubstantial portion of the political attack on Obama comes from those who have no discernible (or at least stable) opinions about Israel at all -- who view Israel as a useful rhetorical tool to bash the President and will happily mouth whatever position makes those attacks feasible at any given time. These people, of course, are no real friends of Israel at all, and as Robert Wexler boldly put forth today, it is Israelis who will "pay in blood" for it.

Mearsheimer's New Friend

I'm pretty skittish about the term "self-hating Jew". Remember that post I wrote about how self-loving Jews is a better moniker? Most of the time, it seems fairer and more sensible, and keeps the focus of the debate where it belongs.

But there are exceptions. Gilad Atzmon, for example, describes himself as a "proud self-hating Jew". So far from me to disagree. Anyway, Atzmon is one of the most vicious and vitriolic anti-Semitic writers out there today -- even stalwart anti-Zionists of the "[I] want the state of Israel to be destroyed" mold think he's beyond the pale -- and even the briefest perusal of his writings demonstrates a proclivity for attacking Jews, Judaism, and Jewishness with the fervor of a neo-Nazi.

So it is disappointing to see that, if Atzmon's publisher is to be believed, John Mearsheimer has endorsed Atzmon's new book. You can follow the links to see some of what that endorsement entails, with Atzmon approvingly quoting proto-Nazi Otto Weininger (himself an early Atzmon prototype) on the subject of Jews and Jewishness.

It has to be said that, deserved condemnations aside, there is something deeply tragic about this. The Israel Lobby, in addition to whatever moral problems there might be with it, was also a bad book on a purely scholarly level. And Mearsheimer has only slipped from there -- his list of "good Jews" was an appalling exercise, and this latest step towards the depths of anti-Semitic depravity is even worse. But once upon a time, Mearsheimer was an important international relations scholar. His theories on neo-realism were (and are) exceptionally important. Ironically, The Israel Lobby itself is virtually incomprehensible under Mearsheimer's own theoretical model (neo-realism posits that domestic lobbies should be descriptively irrelevant in international relations).

I don't mean to say we should forgive Mearsheimer simply because he was once important and had valuable things to say. But we should recognize the tragedy of the fall. It has been swift, shocking, and very, very ugly.

Bibi: Dumb or Wrong?

Tom Friedman has a column up lambasting Bibi Netanyahu for putting Israel's future as a Jewish, democratic state at risk. Matt Yglesias says there's "an awful lot to agree with" in Friedman's column, but argues that he gives Bibi too much credit in attributing his postures to ignorance. Rather, Yglesias' argues, Bibi has made it evident that he has a strong substantive commitment to the settler project, and all the damage Israel's taking to its international reputation are costs Bibi is absorbing with open eyes. It's not that Bibi is making a "misstep" -- he's just made a calculation that his allegiance to settlements is worth growing international isolation.

I'll parrot Yglesias' words back: there's "an awful lot to agree with" in that. I do agree that Bibi is substantively committed to a vision of greater Israel that is in my view immoral and unsustainable. While he has some recognition that a Palestinian state will have to come into existence eventually, he doesn't really have any plan for it, nor does he have any qualms about gobbling up as much of the West Bank as possible before that day occurs. This is important to note, because while Israel has had leaders willing to make bold strides for peace, Bibi is not one of them, and that fact has to be part of any short-term appraisal of how Israel and Palestine got to the position they're in right now.

Still, I don't think it gets the whole story either. First, I'll reiterate my view that Bibi's primary motivator is neither ignorance about Israel's situation, nor ideological commitment to Greater Israel, but simply short term personal/political self-interest. Yglesias cites his decision to stay with Likud when Ariel Sharon broke off to form Kadima as proof of his status as an ideologue who is willing to gamble, but I think it is more consistent with basic political self-preservation instincts. Even while Sharon was part of Likud, Netanyahu was constantly sniping at him from the right--that's a large part of why Sharon packed up and left. Netanyahu would have had no credibility in Kadima and would have been marginalized if he'd tried to join. Leading Likud's rump faction was clearly his best move, and it did indeed pay off.

Second, Yglesias' point that Bibi knows and is willing to accept growing international isolation as a price to pay for settlements doesn't account for a key aspect of Bibi's worldview: that international isolation is simply a fact of life of Israel no matter what it does, and has little to do with the settlement project at all. Settlements are the current preferred rhetoric for folks who find it impolitic to simply say they dislike Israel as a concept, but they aren't actually playing any causal role. True or not (I think it's more true than Yglesias thinks but less than Bibi does), for someone who believes that "international isolation" is going to be a relative non-factor in one's analysis, because it isn't something that can be helped.

Finally, the fact that Netanyahu has, at times, recognized the need for a Palestinian state and respects Israel's democratic character indicates, to me, that settlement expansion is at the very least not his only ideological commitment. He is not just a National Union MK in drag. But I think he's simply too mentally weak to see the tension, and thus is attempting to delude himself that Israel can maintain its current path without consequence. It is a painful choice for Bibi, and sometimes when people are faced with painful choices they just attempt to put off choosing, covering their eyes to the dilemma in front of them. That, too, is part of what Bibi is doing.

The Laziest Nation on Earth

Most politicians go around telling folks that America "is the greatest nation on earth." A bit of patriotic puffery, perhaps, but not without some truth either -- our accomplishments, influence, and reach stand unrivaled across human history. But Rep. Steve King (R-IA) has a different perspective. America is "a nation of slackers" -- and that's why we have an unemployment crisis.

Now, since Rep. King is among the dimmest bulbs in Congress, I feel compelled to explain again that the unemployment rate only includes persons who lack a job but are still pursuing one (otherwise it would include, for example, full-time students, and that makes no sense). So the idea that unemployment is simply the result of people slacking off is -- in addition to insanely offensive -- not really possible to square with what unemployment measures.

Michael Moore's Frustrations Boil Out Into Racism

Left-winger Michael Moore (Moore is not, to my knowledge, a registered Democrat, finding them too moderate for his tastes) has lashed out against Barack Obama, finding him to be acting too White for his tastes: "I went into the polls voting for the black guy, and what I got was the white guy..."

Bill Maher (who is a professional jerk) finds it funny too. As Ta-Nehisi Coates observes, it's just racist.

. It really is no better than the Kenyan anti-colonial bit, and in fact is good deal worse. I said this yesterday on twitter, but it would be as if my Jewish accountant messed up my taxes and I said, "Dude, you're Jewish, what the hell?!?!"

In fact, I'd be getting exactly what I deserved. If you paid more attention to Obama's skin color, than to his speeches, the voluminous amounts of journalism noting his moderation, his two books which are, themselves, exercises in moderation, than you have chosen to be ignorant.

You are now being punished for that ignorance. No one should feel sorry for you. Try not being racist.

This whole "acting White" phenomenon is so ridiculous anyway. It's just a racialized stand-in for "I don't like nerds" or "I don't like squares". But of course, the race-element to it invests it with an extra historical punch. And when White people arrogate to themselves the right to determine who is and isn't authentically Black (and, in effect, tokenize the entire Black race as their pet revolutionaries) -- yeah, that's pretty racist.

Rep. Joe Walsh (R-Hamas)

Freshman Republican Representative Joe Walsh (R-IL) has introduced a resolution endorsing any Israeli annexation of the West Bank. In doing so, he explicitly promoted a "one state" solution to the Israeli/Palestinian conflict:

Walsh asserted that "there is no such thing as a two-state solution, and no such thing as land for peace. The ultimate peace is going to come through annexation, through Israel having sovereignity over the whole land, from the Mediterranean to Jordan."

Hamas could scarcely say it better. A one-state solution ends up with a huge Palestinian minority; likely an eventual Palestinian majority. At which point they vote to rename "Israel" "Palestine", abolish the state's Jewish character, and in all probability inaugurate all sorts of illiberal and discriminatory legislation against Jewish residents.

I've noted before that Walsh is no friend of Israel or the Jews. And here we see proof of that. Walsh is advocating nothing less than the end of Israel, the end of the Zionist dream of a Jewish democratic homeland. It renders him arguably the most overtly anti-Israel Congressman since Cynthia McKinney (D-GA), and the Jewish community should let him hear it.

The Unrepentant

A former St. Andrew's student convicted of racially abusing an Israeli classmate has been sentenced to a fine of 300 pounds payable to the victim and 150 hours of community service. He intends to appeal, but also had this to say about the student he abused:

“Mr Reitblat was an American studying over here so he’s from a rich family – I hope he gives the compensation to a good cause and doesn’t just fund his own greed.

Going straight back to the well with the "rich greedy Jew" trope I see. Well, at least he learned a valuable lesson.

(The victim actually is planning on donating the funds to victims of terrorist attacks in Israel).

Jewish Jihadists

Tablet Mag has a mesmerizing piece up about the young women who attend a radical settler school deep in the West Bank, where they are raised to be extremist warriors against any agent (Israeli, Arab, or otherwise) seeking to remove them from the area. The article does a good job capturing the raw religious fervor underlying the girls (albeit also eroticizing it in a more-than-a-little-creepy manner). It also makes quite clear the utter disdain these radicals have for Israel and the bulk of the Jewish people more generally. Though they consider themselves fighters for the Jewish people, they have no qualms about violently resisting the state of Israel (and proudly boast of attacking Arabs and their desire for "vengeance"). This love/hate relationship they hold towards the broader Jewish community -- seeing themselves as authentic representatives of the people while simultaneously viewing most of their religious compatriots with contempt -- is a quality they share with certain other, similarly marginal strains of the Jewish communal tent.

But the most important point is the way the girls and their teachers talk is virtually identical to how radical Islamist extremists speak. This is not surprising -- expected overlaps amongst fanatical religious extremists aside -- the young women at times explicitly hold out Arab terrorists as models, wondering why Jews can't be more like them (once again, folks I thought to be my enemy are apparently instead models to emulate). They mock traditional Jewish concerns for justice and repairing the world, in favor of a vision of theocratic autocracy imposed at the tip of a sword. They are, in effect, Jewish Jihadists.

What's the Downside?

The line on the upcoming NY-09 special election (triggered by the resignation of ex-Rep. Anthony Weiner (D)) is that Republican Bob Turner appears likely to score the sizable upset in this Democratic-leaning district. Turner has leveraged the anger some ancestrally Democratic but hawkish Jews (e.g., the Russian Jewish community) have towards President Obama's policies on Israel to pull into a small but noticeable lead as polls come to a close.

It certainly will be a feather in the GOP's cap if they win this race. But that's not what the post is about. Rather, it is about some last-minute mailers going out by Turner's allies attacking, once again, the proposed construction of an Islamic Center near Ground Zero.

Doug Mataconis, who says he probably wouldn't support the Democrat in this race, sees this and asks: "Do New York Republicans Really Want To Win An Election By Appealing To Religious Intolerance?"

Really? Do we even need to ask at this point?

Why wouldn't they? The tragic fact is that a significant portion of the American population doesn't think that Muslims should have the same rights as other religious groups to build Mosques. There is very little downside to latching on to it. If even the ADL is willing to join in the hit parade, why should Republicans feel skittish about it?

Refuse To Be Terrorized

It is the tenth anniversary of 9/11. There is a lot to reflect upon, most notably, the many thousands who lost their lives that day. It was a dark day for America, but also a day of courage, where brave men and women demonstrated that heroism and honor were well-represented amongst ordinary Americans who happened to be in New York, Washington, and onboard Flight 93.

How best to honor their memory? How best to defend against the scourge that killed them? Spencer Ackerman has it right: The best way to beat terrorism is to refuse to be terrorized. To stand firm and resolute and insure that not a thread of our constitutional fabric, not an inch of our democratic tradition, not a morsel of our civic values, are sacrificed at the terrorist's altar. That's how we win, and they lose. And that's how you honor American courage.

Just Why Do We Have Employment Discrimination Laws?

A provision in President Obama's proposed American Jobs Act would prohibit employers from discriminating against prospective employees on the grounds that they are currently unemployed. This is in response to reports that some companies are limiting job openings by explicitly turning away job-seekers who are not currently employed elsewhere.

In the Washington Post, Charles Lane takes aim at the proposal, with a hearty concurrence from Jonathan Adler. While I don't have a strong opinion yet on the provision itself (having just learned of it), I have to say I find Lane and Adler to be very unpersuasive critics. Both, in my view, give a short-shrift to the purposes that underlie employment discrimination law -- narrowing its ambition in ways that would not just obviate the need for an "unemployment discrimination" provision, but many other anti-discrimination provisions they claim to support.

Lane makes the case that for some firms in some cases, it is perfectly rational to discriminate on basis of immediate past employment history. For example, a company might prefer a candidate who is up to date on current trends in the industry versus one who would need time to get up to speed. Consequently, we should be reluctant to "assign malicious intent without a lot more specific information", and trust the market to punish firms that do discriminate in an inefficient manner.

Lane's argument could be (and sometimes is) used against all employment discrimination laws (if it's really irrelevant, the market will solve, otherwise, it's rational market choice and should be left alone). Adler at least makes an effort to preserve some of them by analogizing to racial discrimination, where, for much of our nation's history, a company who attempt to hire in a non-discriminatory fashion would be beset by boycotts, intimidation, and violence. Even though racial discrimination is inefficient and race is not relevant to job qualifications, it would persist because no company could break from the status quo and hire racial minorities without incurring huge costs. Employment discrimination laws are justified in such cases to solve a first mover problem (and, notably, companies would prefer such a law to be in place for that very reason).

The first problem with this distinction is that it probably doesn't apply today -- it seems unlikely that in 2011 a company which did hire Blacks would face a coordinated campaign of violence and intimidation as a result -- which means it is hard for Adler to avoid arguing that employment discrimination law as a whole has passed its prime and should be repealed (which maybe he does think, I don't know). But in any event, the second, larger problem is that it doesn't even touch on a different rationale behind employment discrimination laws: that certain sorts of appraisals should be restricted even where they're arguably relevant, either because they're morally inappropriate or because we believe whatever efficiency gains might exist from a free market system are outweighed by the damage done to the discriminated-against group member and general American values of inclusion.

The obvious example on this front is discrimination on basis of disability. One clearly can think of many cases where disability is relevant in an employment decision; and far more where it is isn't so clearly irrelevant so as to demand an inference of "malicious intent". Nonetheless, we bar it anyhow, both because we think the harms it imposes upon the disabled outweigh whatever efficiency gains would manifest from an open market, and because we've made an assessment that such discrimination is morally suspect as a general rule. The ADA, of course, has not been an economic catastrophe -- whatever economic losses it has created by barring "efficient" discrimination we appear happy to absorb as a cost for a more inclusive American society.* Meanwhile, we don't have the ADA because we think employers are malicious -- this is the misleading strawman that tells us that for their to be discrimination, there must be some villain cackling about how much he hates minorities. Not at all -- we often have anti-discrimination laws not because there are evildoers who need to be warded off, but rather because there is a maldistribution of opportunity in our society that we view as unfair.

Now, one element of disability discrimination law (indeed, most employment discrimination provisions -- race is a notable exception) is that if an employer actually can prove that the disability is relevant to bona fide occupational qualification (BFOQ), then that is a valid affirmative defense. So we don't even ban this sort of "efficient discrimination", we just force employers to back it up. This defense apparently is incorporated into the proposed unemployment discrimination provision. Indeed, it appears that provision is stricter still -- barring such discrimination only when it was the sole rationale for the employer decision (thus giving a pass to "mixed motive" cases, where employment status was one reason among others for the employer's decision).

Lane recognizes these caveats but darkly warns that they'll be "endlessly litigated before settled case law emerged" and thus will act as a deterrent to company hiring (Adler concurs). This is unlikely: as noted, the provisions parallel already extant statutory rules in Title VII. Far from being a judicial blank slate, it overlays itself upon anti-discrimination rules that are quite settled and well-known to HR professionals -- they stand out only in that they track the weakest threads of contemporary anti-discrimination law. It would be difficult to imagine a new regulation that would be more easily absorbed by the business community. Adler's assumption that companies will simply avoid hiring people at all for fear of being sued under the new provision seems more than a little melodramatic.

* It is also possible that there is a separate sort of first mover problem being solved here, where it was irrational for any one firm to recalibrate itself to be inclusive towards the disabled but a net utility boost could come once we unlocked the potential of a hitherto underutilized segment of our society. One thing that I think capitalism does very well is that it is adaptable to varying sets of constraints: when a new restriction is imposed, firms don't throw up their hands and give up, they look for new ways to create wealth and utility consistent with the new regime.

Has the Fever Broke?

The situation in Egypt with respect to Israel has badly deteriorated, with Israeli diplomatic staff forced to evacuate after the embassy was attacked by a mob. As distressing as that scene was -- and it was -- it also appears to be non-representative of either the current Egyptian government or the leaders of the protest movement. Indeed, six stranded embassy staffers were rescued by a team of Egyptian commandos, and the Egyptian government has promised to prosecute those responsible for the attack.

Meanwhile, Bibi went out of his way to praise President Obama for his leadership during the crisis:

Netanyahu praised the United States for intervening with Egypt in order to rescue the Israelis. “I would like to express my gratitude to the President of the United States, Barack Obama. I asked for his help. This was a decisive and fateful moment. He said, ‘I will do everything I can.’ And so he did. He used every considerable means and influence of the United States to help us. We owe him a special measure of gratitude,” Netanyahu said.

That's the sort of language that, to me, is designed to extend beyond the proximate events and heal deeper wounds. If so, it is a welcome development and worth noting.

UPDATE: Speaking of fevers breaking, Turkey is backing off earlier threats to send in its navy in escort of new flotillas. Baby steps, people.

Retaliatory Measures

The Israeli foreign ministry is contemplating various retaliatory measures against Turkey after the latter expelled the Israeli ambassador, cut military ties, and is threatening to provide military escort to any new flotilla seeking to break Israel's blockade of Gaza. It's typical Lieberman fare: pugnacious, probably counterproductive, and forcing the Prime Minister's office to distance itself. The main highlights are beginning cooperation with the PKK (a Kurdish terrorist organization working to establish an independent Kurdish state in Southeast Turkey), including potential weapons sales, and flooding the UN with complaints about Turkey's treatment of minorities (such as the Kurds).

I'm obviously not wild about supplying weapons to a recognized terrorist organization. But I will admit to finding ironically appealing sending a convey to southeast Turkey filled with Kurdish-language instruction books and other educational materials geared towards the Kurdish people. Totally non-violent "solidarity" measures, but I guarantee Turkey would flip out (Kurdish language and culture is heavily suppressed by the Turkish government). And hey, if we're talking about supporting national self-determination for local populations under the heel of another power, well, what's good for the goose....

As for the human rights complaints, both Israel and Turkey long have a habit of using such proclamations as proxies for diplomatic conflicts (see, e.g., declarations regarding the Armenia genocide). Still, it's not as if there aren't serious points of concern that deserve public airing: For example, the Turkish prime minister threatened to expel 100,000 undocumented ethnic Armenians if resolutions regarding said genocide were passed (ironic, no?).

On the other hand, there is no reason to think that UN human rights bodies will give Turkey anything but a clean bill of health no matter how serious its violations are. After all, countries in the UNHRC's good graces can get away with quite a bit: Sri Lanka earned laudations for its actions against the Tamils in the midst of killing up to 1,000 civilians a day. There is no reason to think that the UN holds any particular interest in holding Turkey accountable for wrongdoing, and it will be particularly resistant to doing so when it seen as acting on Israel's instigation, so it is not clear what any Israeli complaints would accomplish.

How It'll Go

My girlfriend told me that the early response to Obama's speech from various pundit-types was positive. She was optimistic. I, on the other hand, forwarded this account of what we could expect:

Day 1: Media tells us that Obama's speech was decent, relatively noncontroversial fare -- focusing on bipartisan solutions which have a history of support from both parties.

Day 2: Republicans claim that they've never heard anything more radical in their entire lives, and that basically we're witnessing the rebirth of Maoism combined with Nazism.

Day 3: "Is Obama's jobs plan fascist? The controversy brews!"

Cite as precedent: The individual mandate, "based on 1967 borders".

There's Always Someone

When various rabble-rousers in Egypt were agitating to annul the peace treaty with Israel, I remarked somewhat smugly that "reputation for rabid warmongering aside, there is no political constituency of note in Israel that has called for a repudiation of peace with Egypt. It seems that once Israel makes a final agreement with one of its neighbors, it is capable of keeping it with little fuss from its citizens' end." So of course I read an Israeli editorial in Ynet that proposes doing just that. Because Lord knows if Israel didn't have its share of morons it would just be too easy.

Fortunately, it does seem like this guy is quite the marginal figure -- there remains "no political constituency of note" making this call that I've seen. And even in Egypt, the claim that there is some groundswell support for annulling the treaty is also badly overstated (the "million man march" that was planned to press for canceling the treaty drew terribly). But still, it's just so, so annoying.

Clarification: We're Dumb

I love it when newspapers issue "clarifications" regarding statements that were actually just flagrantly false. Here's USA Today, "clarifying" that a pay raise "could very well bump you into the next tax bracket, possibly leaving you with less money." As Jon Chait notes, there is no situation where a pay raise could leave you with less money due to increased taxes, because our tax system is graduated. Worse yet, the column was entitled "math tips". Come on, people -- even I can get this.

Spy Games

I remember being quite blase when a story broke about Israel spying on the US. I just didn't find it that shocking. Nations -- even friendly nations -- don't take each other at their word. They spy on each other. It didn't surprise me that Israel spies on us, and I'd be shocked if we don't spy on Israel.

And it turns out we do! Again, nothing shocking here. If anything, the most interesting twist is that the leaker was an Israeli Jew working for the FBI on contract, who was worried about what he perceived to be Israel's overly aggressive tendencies (he gave the info he intercepted to a left-wing Jewish blogger). It's such a delicious inversion of the trope that Jews can't be trusted to put American interests over Israeli ones.

Hell's Kitchen All-Stars: Heroes and Villains

Another episode of Hell's Kitchen, another day where Elise is still in the kitchen. Alas. But I did enjoy getting to see some of my old favorites make a return -- indeed, I'd have liked to hear more about where they are now. I admit to not being the biggest Trev fan, but I adore Jillian, Tennille, and even Van (Season 6 was the first one I saw, so it has a special place in my heart). And as for Ben, well, he was the recipient of one of the coldest Chef Ramsey remarks in the show's history (he pulled Ben aside and whispered in his ear "I want you out."), but I guess that didn't do any permanent damage.

Anyway, someone speculated that this episode was a dry run for a potential "Hell's Kitchen All-Stars". Which is an awesome idea on its own. But what would be even awesomer would be to make it into a "heroes versus villains" affair. Two teams of eight, one composed of fan favorites, the other, famous HK antagonists.

So below is my roster for Hell's Kitchen All-Stars: Heroes and Villains. All participants had to at least make the black jackets, but not win, in their respective seasons. Beyond that, it's a purely subjective assessment on my part. So, without further delay....

Heroes

Ralph (Season #1, Second Place)
Julia (Season #3, Fourth Place)
Petrozza (Season #4, Second Place)
Paula (Season #5, Second Place)
Ariel (Season #6, Third Place)
Tennille (Season #6, Fourth Place)
Jillian (Season #8, Third Place)
Will/Jennifer (Season #9, ??? Place -- obviously, one of them won't win, and while I'll be shocked if Will doesn't win this season, I can't just assume it).

Villains

Sara (Season #2, Fourth Place)
Jen (Season #3, Third Place)
Corey (Season #4, Third Place)
Suzanne (Season #6, Fifth Place)
Benjamin (Season #7, Third Place)
Russell (Season #8, Second Place)
Sabrina (Season #8, Sixth Place)
Elise (Season #9, ??? Place, but apparently she doesn't win).

What do you think?

Going Proactive?

In the Jerusalem Post, Dana Gordon makes the argument that Israel should get out in front of Palestine's statehood bid by submitting a statehood proposal of its own, with terms that include the necessary protections Israel needs as part of a final resolution of the conflict. This, Gordon argues, would be a "proactive" move by Israel that would allow it to recapture the terms of the debate and stem the international sentiment that it is the primary obstructionist towards peaceful resolution of the conflict.

I do think this is a decent idea, but I also think Gordon oversells it. First, Israel is not "strong now". Israel currently has a historically -- almost comically (were it not also so tragic) -- weak government that almost certainly could not launch a bold stroke like this on such a short timeframe. Second, Gordon is considerably more confident than I that a rejection by Palestinians and their allies would be considered a reflection upon them. Why? The counterargument is easy -- that Israeli demands were unreasonable or illegitimate, and that Palestinians had every right to reject them in favor of more favorable terms -- terms which would come up for a vote several weeks later when the Palestinian proposal came up. It might muddy the waters a bit, but to cast it as some sort of unstoppable move of moral jujitsu is wildly off the mark.

What the proposal does have in its favor is that, in its roundabout way, it effectively restores a situation of bilateral negotiations between Israel and Palestine. Israel and Palestine would both be putting their terms on the table, and would know where the other stands. The fact that both plans would be subjected to a UNGA vote would almost be a side theater. I care about as much what the U.N. General Assembly says about the Israeli/Palestinian conflict as I do what the Dixiecrat Party has to say about the NAACP. But ignore them. The idea of putting parameters on the table is meaningful, and in that sense I think it is important for Israel to become "proactive" again.