Justice DeLay-ed

Of course, no one with half a brain is really surprised to learn that some of Tom DeLay's minions have been indicted on counts of illegal fundraising and money laundering. But it still feels good to know that someone, somewhere still cares about democracy.

Tragically, that place isn't US Congress, where an ethics complaint filed against DeLay is likely to get ignored and/or buried. Why? Because if you out one corrupt congressman, then you have to start outing them all, and pretty soon...there are no congressmen left.

Rivkin/Casey v. Martinez Debate

I've made a decision on the Rivkin/Casey and Martinez debate over the question: "How should the U.S. try suspected terrorists?" In a very close decision, I give it to Martinez, though if this was a debate tournament it would be on a low-point win.

Rivkin and Casey cream Martinez on the legal aspect, doing a great job proving that these tribunals are legal under international law (news to me). At first glance, this was going to be enough for me to vote for them. But on closer reflection, the resolution is a question of morals, how SHOULD be try them, not how CAN we. The question then became whether or not Martinez focused enough on the "should" part in her first post to make that the framework (as it is closer to the original text of the question). Though she did get dragged into the legal debate more than was strategically wise, I concluded she focused enough on the "should" to make that a voter. Unfortunately, her best arguments were made only in the last post, but this quote from the first post is money.

The first week of proceedings before the military commissions was a travesty. The commission members (all but one of whom have no formal legal training) seemed perplexed when asked about basic legal concepts like "due process of law" and "reasonable doubt." One member confessed that he did not really know what the Geneva Conventions were—which is quite troubling given that the Conventions are the cornerstone of the modern laws of war. Even if he was not familiar with the Geneva Conventions before being appointed to the commission (though the Conventions are a mandatory topic in basic training) you would have thought this high-profile assignment might have caused him to study up. The presiding officer of the commission—the only lawyer in the bunch—was little better prepared. He reacted like a deer caught in the headlights when one defendant asked to represent himself or have a lawyer from his home country assigned to work with him. This type of request is hardly unusual, and both the civilian courts and courts martial have established legal standards for evaluating them. Because the military commissions are starting from scratch, however, every new issue of procedure or evidence will cause this kind of paralysis. And then there were the problems with the translators—apparently, they were so inadequate that the defendants and Arab-language journalists had to struggle to figure out what was going on. It's a good thing the government is not allowing audio or video recordings of the trials—it would be far too embarrassing.

It rather unfortunately seems that Martinez was flailing and just happened to catch a lucky break. But sometimes that's the way it works in debate. And I want to say that I was very impressed by Rivkin and Casey's ability to argue, persuasively, a position that I thought was both morally and legally untenable.

Of Politics and Principle

Matthew Yglesias shows yet another example of how President Bush cares more about his political prospects than he does about the safety of the American people.

Bush has adopted policies designed to keep the death count low, primarily by avoiding ground combat in the Sunni triangle. Good campaign tactics, needless to say, but, as ever, the Bush team seems better at winning elections than winning wars. By delaying any assault on the wily Salafi terrorists...lurking in Fallujah, Samarra, Ramadi, and Baquba until after November, we give them more time to dig in, prepare defenses, and strengthen their forces before the attack.

An important point comes next, so it gets a paragraph of its own: This plan will get people killed. If an assault is to be mounted, it should be done as soon as possible, before the adversary has been given months to prepare for it. The Marines and soldiers serving in Iraq volunteered for the military, but they've been conscripted into the Bush campaign. Decisions, as Lieutenant General James Conway recently stated, are being made on the basis of narrow political considerations rather than military ones. It's appropriate for generals to be subordinate to civilian politicians, but not to civilian campaign strategists. We're waging war as an extension of an electoral campaign, exposing our soldiers to harassing attacks right now and to a more difficult fight later on in order to help secure the president's re-election.

This is merely another link in the Bush train of letting his political concerns get in the way of unimportant things like safety. From Homeland Security to hunting terrorists to protecting our agents to Iraq today, President Bush has consistently opted to score political points at the expense of the American people. And now it appears that he's going to withdraw from Iraq as soon as he gets the electoral all-clear sign. The stakes are simply too high to let that continue.

Past Problems, Future Results

John Kerry just gave a major Iraq Speech at New York University.

TNR's "etc" says that Kerry hit a Triple. I think that its more along the lines of a Double. On the one hand, I really like Kerry's proposal on what he'd be doing in Iraq right now:

First, the President has to get the promised international support so our men and women in uniform don’t have to go it alone. It is late; the President must respond by moving this week to gain and regain international support.
...
The President should convene a summit meeting of the world’s major powers and Iraq’s neighbors, this week, in New York, where many leaders will attend the U.N. General Assembly. He should insist that they make good on that U.N. resolution. He should offer potential troop contributors specific, but critical roles, in training Iraqi security personnel and securing Iraq’s borders. He should give other countries a stake in Iraq’s future by encouraging them to help develop Iraq’s oil resources and by letting them bid on contracts instead of locking them out of the reconstruction process.

This will be difficult. I and others have repeatedly recommended this from the very beginning. Delay has made only made it harder. After insulting allies and shredding alliances, this President may not have the trust and confidence to bring others to our side in Iraq. But we cannot hope to succeed unless we rebuild and lead strong alliances so that other nations share the burden with us. That is the only way to succeed.

Second, the President must get serious about training Iraqi security forces.

Last February, Secretary Rumsfeld claimed that more than 210,000 Iraqis were in uniform. Two weeks ago, he admitted that claim was exaggerated by more than 50 percent. Iraq, he said, now has 95,000 trained security forces.

But guess what? Neither number bears any relationship to the truth. For example, just 5,000 Iraqi soldiers have been fully trained, by the administration’s own minimal standards. And of the 35,000 police now in uniform, not one has completed a 24-week field-training program. Is it any wonder that Iraqi security forces can’t stop the insurgency or provide basic law and order?

The President should urgently expand the security forces training program inside and outside Iraq. He should strengthen the vetting of recruits, double classroom training time, and require follow-on field training. He should recruit thousands of qualified trainers from our allies, especially those who have no troops in Iraq. He should press our NATO allies to open training centers in their countries. And he should stop misleading the American people with phony, inflated numbers.

Third, the President must carry out a reconstruction plan that finally brings tangible benefits to the Iraqi people.

Last week, the administration admitted that its plan was a failure when it asked Congress for permission to radically revise spending priorities in Iraq. It took 17 months for them to understand that security is a priority … 17 months to figure out that boosting oil production is critical … 17 months to conclude that an Iraqi with a job is less likely to shoot at our soldiers.

One year ago, the administration asked for and received $18 billion to help the Iraqis and relieve the conditions that contribute to the insurgency. Today, less than a $1 billion of those funds have actually been spent. I said at the time that we had to rethink our policies and set standards of accountability. Now we’re paying the price.

Now, the President should look at the whole reconstruction package…draw up a list of high visibility, quick impact projects… and cut through the red tape. He should use more Iraqi contractors and workers, instead of big corporations like Halliburton. He should stop paying companies under investigation for fraud or corruption. And he should fire the civilians in the Pentagon responsible for mismanaging the reconstruction effort.

Fourth, the President must take immediate, urgent, essential steps to guarantee the promised elections can be held next year.

Credible elections are key to producing an Iraqi government that enjoys the support of the Iraqi people and an assembly to write a Constitution that yields a viable power sharing arrangement.

Because Iraqis have no experience holding free and fair elections, the President agreed six months ago that the U.N. must play a central role. Yet today, just four months before Iraqis are supposed to go to the polls, the U.N. Secretary General and administration officials themselves say the elections are in grave doubt. Because the security situation is so bad… and because not a single country has offered troops to protect the U.N. elections mission… the U.N. has less than 25 percent of the staff it needs in Iraq to get the job done.

The President should recruit troops from our friends and allies for a U.N. protection force. This won’t be easy. But even countries that refused to put boots on the ground in Iraq should still help protect the U.N. We should also intensify the training of Iraqis to manage and guard the polling places that need to be opened. Otherwise, U.S forces would end up bearing those burdens alone.

I think its very clear that this proposal is vastly superior to Bush's head-in-the-sand approach. Indeed, if you asked me, I couldn't tell you what Bush's strategy for Iraq is at the moment, beyond empty phrases like "winning the war" and "creating a healthy democracy." With all due respect, that's rhetorical crap, and Bush has not done one thing that would suggest he is serious about these or any other goal he's set for Iraq.

Also, this line particularly struck me:

In the dark days of the Cuban Missile Crisis, President Kennedy sent former Secretary of State Dean Acheson to Europe to build support. Acheson explained the situation to French President de Gaulle. Then he offered to show him highly classified satellite photos, as proof. De Gaulle waved the photos away, saying: “The word of the President of the United States is good enough for me.”

How many world leaders have that same trust in America’s president, today?

That loss of trust is both true and deeply tragic. I think Sen. Kerry is right to emphasize it.

The negatives in the speech come in two areas. First, Kerry continues to muddle his position on whether or not we were right, originally, to go into Iraq. Ideally, this should be tangential to the main point, which is 'what do we do now that we're there?' But the Bush campaign has seized upon this as the trump example of an indecisive Kerry, and I'm not happy that Kerry seemed to make Bush's job easier.

The other problem comes with regards to troop deployment. Kerry appears to simultaneously argue that Bush didn't commit enough troops to Iraq to stabilize it (which is true), and that Iraq drew our attention and manpower away from Al-Qaeda, enabling Osama Bin Laden to escape (which is also true). Both of these are accurate criticisms, but they are mutually exclusive in terms of remedy. In terms of political realities, we could only deploy enough troops to do one of these jobs, not both. This isn't to absolve Bush of his incompetence on the matter, since he allocated too few troops to BOTH projects. But I'm confused as to Kerry's proposed solution here, though ultimately it doesn't take away from the positives of his plan as a whole.

What I like most about this speech is that it attacks Bush on his home territory. The Accountability President? Then why were the only people fired over Iraq those who made accurate predictions? The need to be tough against terrorists? Then why is Bush flailing blindly at the "main front" for the war on terror? The need for solid, argumentative coherency (as opposed to "flipflopping")? Bush gave 23 reasons for the war in Iraq, the majority of which are discredited.

The more I think about it, the more I'm voting for Kerry because of all the reasons Bush strategists say I should vote for Bush. I want a President who stand solidly against terror, will aggressively move to target them, knows the importance and utter paramounce of homeland security, and above all, does not subordinate the safety of American people to score quick political points. On all of these fronts, President Bush has objectively been a disaster, and Sen. Kerry appears to have a remedy. That's enough for me.

Troop Movements

I want more troops in Iraq, but I don't think this is the way to do it.

Bipartisan Critique

CNN reports on Republican criticism of Bush's Iraq policy. These aren't backbenchers either, but the heavy hitters: McCain (AZ), Lugar (IL), and Hagel (NE). All have the reputation of a maverick streak, but rarely have they been this blunt criticizing the President. Sen. Lugar even went so far to label Bush "incompetent" when spending reconstruction money. Senators Kyl (AZ) and Graham (SC) also had more mild criticism for the Bush administration, but this is perhaps more telling as they are both considered GOP loyalists.

And while it wasn't from a Republican, this quote was on the money.

"The president's going to the United Nations [Tuesday]," [Delaware Senator Joe Biden] said. "You know what we list as our priorities for the United Nations General Assembly? Dealing with sex trade, which is important. Dealing with cloning. Dealing with spread of democracy.

"Not one word of Korea. Not one word with regard to Iraq. Not one word with regard to Iran. It's like Wonderland," said Biden, the ranking Democrat on the Senate Foreign Relations Committee.

Maybe President Bush has also been paying a bit too much attention to Rathergate compared to foreign and domestic policy.

In any event, its good to see that some Republicans are breaking away from the "support Bush at any cost" mentality.

Blogger Code of Ethics

This is something I've toying around for a long time. As I've been reading the blogosphere, I've noticed that ALOT of the blogs out there are not behaving like they want an objective search for truth, or a reasoned political discourse. Instead, they are partisan bombthrowers who only wish to score a quick 2 points for their preferred political allies. This, I think, is a negative trend, and one I think we should counteract before the internet turns into Cass Sunstein's "Republic.com". That being said, I give you my (very personal) take on the "blogger code of ethics" (keep in mind this really only applies to political blogs).

1) I will not be a partisan hack, nor will I engage in hatchet jobs on my political opponents that are grounded weakly or not at all in facts.
2) I will focus predominantly on issues, not personal lives or other tangents. While instances such as Rathergate deserve some attention, they don't deserve ALL of our attention and certainly don't outweigh the pressing issues that face our country.
3) I will do my best to present issues with as much factual grounding as possible.
4) If evidence turns up that proves I'm wrong, or casts my point in substantial doubt, I will either address the criticism or admit error.
5) If a political opponent says something that I think is smart, wise, well-advised, or I otherwise agree with, I will point it out.
6) I will at all times conduct myself in a manner that seeks to further, not hinder, intellectual debate on the issues.
7) Recognizing that full compliance with the above is often a case of judgment, I will make a good faith effort to comply with this code.

Do I expect this to have much effect? Probably not. But this, at least, is the code that I'm going to write this blog on.

Wow...Comments

I guess the Powerline plug has actually gotten me my first "real" (as in, from people I don't know) comments of this blogs existance. How cool! And considering that most of them seemed to center around me being foolish and wrong, I guess I need to tighten up my arguments.

Now, I won't normally do this (or if I do, it will be via e-mail), but I'm going to take this time to answer some of the comments personally, on the front page of the blog! That's YOUR prize for being an early reader!

Starting with the comments in my "Thank You" post. This centered around my boredom with Rathergate and other topics of that nature.
Skb argues that 1) its presumptous to claim what is and is not relevant in this election and 2) that he wouldn't vote for Kerry if he lied about his wounds or Bush if he lied to get into the Guard. In a way he is correct, but I do think that these issues should be of secondary importance in the election. What our politicians did or didn't do 30 years ago is not particularly relevant to how they'll govern our country today. While I can perhaps see these issues as being relevant to the electoral decision as a whole, what I'm seeing (and condemning) is that these issues are seemingly pre-empting a rational discussion on the issues that face our nation, and I think that is deeply unfortunate.
Rmcleod argues more directly about the importance of Rathergate. I agree that it is an important issue. But the question is, should it be covered to the virtual exclusion of all others? As Orin Kerr puts it, it should have gotten a few blog posts, but it shouldn't have dominated the discussion. Even the debater in me, who, as Rmcleod points out, appreciates the need for legitimate, honest argumentation, also recognizes that between a case of bad factchecking and arguments over Iraq, Tax Cuts, Terrorism, and a myriad of other pressing issues, the precedence clearly should go to the latter.

Now to the Pledge Comments. These seem to fall into two broad categories, so I'll address each in turn.
First, saying the pledge in general. This is a complex issue. I'll admit I'm a bit torn, because I can see the validity of the points being made. At the same time, the general point about freedom vs compulsion still holds true. Call me anti-essentialist, but I'm going to honor my country on my terms, not the ones dictated to me by the government. However, that point I have to admit is far less important to me than the religious nature of the pledge.
My critique of the "under God" clause in the pledge seemed to be misunderstood. Terry actually gets my position backwards: I don't like "under God" BECAUSE I find it religiously demeaning. It implies that my faith can be reduced to a one-size-fits-all statement like "one nation under God," which is degrading. And the implication that my religion will somehow suffer if "under God" is taken out suggests that my faith can't survive without government training wheels, which is incredibly offensive. And I think that statements of many of the religious leaders who have fought against UG's removal have indeed characterized their position in terms of the need to protect America and organized religion against the ensuing wave of Godlessness. In any event, the fact that people like me can find fault in the pledge on pro-religion grounds is yet more proof that when government wades into religious messages, the result is invariably negative.
Matt points out specifically that the Pledge is merely an affirmation of certain values or ideals. That's great and laudable, but it only strengthens my argument as to the religious aspect. As Judge Reinhardt wrote in the 9th Circuit Court of Appeals ruling in US v. Newdow (328 F.3d 466, 2002)

In the context of the Pledge, the statement that the United States is a nation "under God" is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation "under God" is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase "one nation under God" in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and--since 1954--monotheism. A profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation "under Zeus," or a nation "under no god," because none of these professions can be neutral with respect to religion. The school district's practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, including the religious values it incorporates.

That innoculation of religious values, along with the obvious coercive attribute of a schoolhouse setting (that Mr. Mirengoff aptly describes) should make for a clear establishment clause violation, though there are many, many other reasons on which the UG clause falters constitutionally. The 9th circuit opinion gives an excellent analysis of these reasons (as the Supreme Court ruling focused on standing, it had a far less in-depth analysis of the constitutional issues at hand).

Finally, the statement that "I must be doing something right" in my writings on the pledge (considering all the wonderful benefits it got me) was intended to be humorous. I would HOPE that Carleton didn't let me in simply because it liked my politics (if they did, they'll be sorely mistaken, as I'm probably one of the most conservative students on campus, not that that says much).

Anyway, cheers to y'all!

Kerry on Iraq

Anthony Cordesman echoes a claim that I've been hearing alot recently: That while President Bush has unquestionably screwed up Iraq, Sen. Kerry has not articulated anyway to solve the problems Bush has created. This is a fair point, and for the most part, its an accurate criticism. However, there is at least one key point of differentiation between Kerry and Bush on Iraq policy. I blogged earlier on Spencer Ackerman's articulation of this difference, namely, that Sen. Kerry can secure international cooperation and support--even if its not of the military variety--that the reviled Bush cannot. That's an important plus for Kerry, and Bush is not helping matters by burying his head in the sand and pretending nothing is wrong.

I'd like to think this is the first step in answering Powerline's challenge for me to find Conservative reasons to vote for Kerry (as opposed to just voting against Bush). In fact, since I think a clear articulation of POSITIVE reasons to vote for Kerry is severely lacking, I'm going to start compiling positive reasons to vote for Kerry.

Starting off with...his education plan!

The folks at Powerline are very nice...and wrong

The folks at the Powerline Blog have been nice enough to mention my blog on their site. This marks the first time a major blog has linked to my own site. So thank you Powerline!

And what better way to repay them than to take issue with one of their posts?

Mr. Mirengoff remarks that no one at his daughter's school, Walt Whitman High School stands for the pledge. As a former student, I can vouch for the accuracy of this claim, but I would hardly ascribe the nefarious motives Mr. Mirengoff does.

Mr. Mirengoff says there are three reasons given by the students for this:

Three main reasons are cited. First, school starts early, and kids don't feel like standing up. Second, Bush is evil and the U.S. is pretty bad too. Third, with hardly anyone else standing, some feel uncomfortable doing so.

First of all, I would bet money that the first issue is far and away the most prevalent. We're teenagers. Ergo, we are lazy. That's just the way it is. And I'd bet a sizable portion of the people in groups two and three are really "ones" but think that laziness is a pretty poor reason and are embarrassed to say so.

For the second, I can't speak for most Whitman students. However, I do know that I have not stood for the pledge for a LONG time, dating well back into the Clinton admin. It has nothing to do with my (very real) dislike of Bush, because I think it is very important to distinguish between a nation and its government. I'll admit that at the start I didn't stand for the pledge because, yes, I was too tired. Now I don't recite the pledge on principle (more on that in a moment). I think that, to the extent that people are really not standing as protest against the administration, that's an unfortunate expression. However, if you believe that this administration has made a mockery of "liberty...for all" (Federal Marriage Amendment) and "justice for all" (Guantanomo Bay, Patriot Act, Hamdi/Padilla/Moussaoui), then I can see where they're coming from. I don't agree with their methodology (hell, I don't even agree with all they're protesting against), but not everyone has the type of time or energy to craft sophisticated and eloquent protests against authority. Sometimes, simplicity works.

The third I think is very interesting. I am very much inclined to believe that there is a sizable portion of the student body at Whitman who would stand but does not want to ostracize themselves by being "different" from the vast majority of the student population. Mr. Mirengoff is ABSOLUTELY right to point this phenomena out. Unfortunately, I doubt that he would be so quick to embrace the flipside of his argument, that in regions where the vast majority of students stand for the pledge, those who would prefer not to (let's assume out of true political or religious conviction) would feel pressured into standing. In the words of Lee v. Weisman they (the students who would stand but feel pressured not to, and those who wouldn't stand but feel pressured to) are being "psychologically coerced." The same people who are ready to jump down the throats of the liberal pinkos who are making young patriots uncomfortable about honoring their country are utterly dismissive of claims that people who object (religiously or otherwise) to the content of the pledge are "coerced" into participating in it by the patriotic majority. Mr. Mirengoff aptly though inadvertently illustrates the power of the "participate or protest" dilemma faced by so many children and teenagers every day. It just so happens that at Whitman, the "protesters" are in the majority. And the power of this psychological force, now recognized by Mr. Mirengoff, forms the linchpin of my opposition to the pledge in general. This type of coercion can be a force for good or for evil, and we'd all do well to remember that.

Now moving to my personal reasons for not saying the pledge. Even before the Newdow case, I was deeply troubled by the mention of "under God" in the pledge (indeed, I wrote my college essay and my national merit scholarship essay on it. Since I got into college and got the scholarship, I must be doing something right!). This is not because I'm an atheist. Indeed, I believe in God and consider myself a fairly religious person. Rather, its the implications of including "under God" that I find troubling.

First of all, I have always been confused as to the outcry of religious persons in America when it seemed that "Under God" would be taken out. They honestly seemed to view it as a threat to their faith. But what kind of faith requires government training wheels to be expressed? Maybe its because I'm Jewish and my people have had a lot of practice doing this, but it always seemed to me that the true test of faith was ones ability to hold it even when it wasn't part of the status quo. If your faith is so tenuous as to require governmental mandates to keep it afloat, then I think the problem is with our religious institutions, not with the government.

Second, people express religion in different ways. Religion is a deeply personal matter, and there is tremendous variance amongst Americans, even those who do believe in one God, on how to articulate their faith. Even within the same religious tradition there can be cleavages (for example, Jehovah's Witnesses and the Southern Baptists fall on the extreme opposite ends of the Pledge Case spectrum). So when the government proclaims one methodology of expressing faith to be paramount or proper, it has the effect of commoditizing religion, of turning it into a "one size fits all" proposition. I think that is tremendously patronizing of the deep personal and spiritual bound that religion represents, and I think that's what Justice Hugo Black meant when he said that "a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country...showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate." (Engel v. Vitale, 370 US 421, 431)

At root, I'm going to believe in God because I believe in God, not because my government tells me to. And I'm certainly not going to express my faith in terms of federally codified norms. That's not a celebration of religion, that's a mockery of it.

Thank You!

As usual, Daniel Drezner says aloud what I've been thinking privately, that is, that all the SBVT and typewriter font and Bush National Guard service reports and all that crap are not the slightest bit relevant in this election. Can the media (and blogosphere) at least PRETEND there are issues being debated here?

Presumably, this sort of media fatigue is helping contribute to Mr. Drezner's 60% probability of voting for Sen. Kerry for President and Barack Obama for Senator (Of course, Alan Keyes opposition to to direct elections of senators might also have something to do with it).

Zacarias Moussaoui Decision

The United States 4th Circuit Court of Appeals has handed down a decision in United States v. Moussaoui. I read the (90 page) opinion, and it appears that the court agreed with District Court Judge Robert Doumar that the government's proposed subsitutions for having certain suspected Al-Qaeda witnesses actually appear on the stand were not enough to survive constitutional scrutiny. However, it disagreed with Mr. Doumar in that any form of substitution was a violation of Mr. Moussaoui's rights, and gave guidelines for an alternative form of substitution to be used at trial. It also reinstated the possibility of the death penalty, which Judge Doumar threw out. The panal of Chief Judge Wilkins and Judges Williams and Gregory was unanimous on the unconstitutionality of the government's original proposal, however, Justice Gregory dissented as to the propreity of the alternative substitution method and the reinstatement of the death penalty.

Debate Club

Legal Affairs has just started a debate club featuring prominent legal academics and commentators arguing over important and pertinent legal issues of our time. Currently, Jenny Martinez is debating David Rifkin and Lee Casey on "How Should the US try suspected terrorists?"

In keeping with this sites debate tradition, I will judge the debate at its conclusion.

Anti-Privacy Cards?

I don't know how useful these will be, but they seem reasonably likely to help neg cases on the sept/oct topic (some people might recognize these from Matt Scarola's "rights talk kritik" of CFL Nationals Fame. But I don't know if he used these specific cards, or merely this author).

Mary Ann Glendon, Learned Hand Professor of Law at Harvard University, writes in "RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE"

[The Plantiff in Roe v. Wade] won the right that had been understood from its earliest appearance in the American legal system as "the right to be let alone." And let alone she was. No one . . . had been willing to help her either to have the abortion she desired, or to keep and raise the child who was eventually born.
...
Buried deep in our rights dialect is an unexpressed premise that we roam at large in a land of strangers, where we presumptively have no obligations toward others except to avoid the active infliction of harm. This legalistic assumption is one that fits poorly with the American tradition of generosity toward the stranger, as well as with the trend in our history to expand the concept of the community for which we accept common responsibility.

Also this quote set (which is a good block against gay rights aff cases):

Neglect of the social dimension of personhood has made it extremely difficult for us to develop an adequate conceptual apparatus for taking into account the sorts of groups within which human character, competence, and capacity for citizenship are formed. In a society where the seedbeds of civic virtue-families, neighborhoods, religious associations, and other communities-can no longer be taken for granted, this is no trifling matter.
...
Because individuals are partly constituted in and through relationships with others, a liberal politics dedicated to full and free human development cannot afford to ignore the settings that are most conducive to the fulfillment of that ideal.

Push Polling

Both literally and metaphorically.

First, the literal. The Milwaukee Journal-Sentiniel reports that the Moore Information Polling Group has been engaged in Push Polling for Bush. For those of you who don't know what that is, Push Polling is when the pollster asks a question that "pushes" the listener to support one side. For example, "Would you support John Kerry even though he kills puppies?" is a push question. A more subtle push question would be "Do you support Liberal Massachusetts Senator John Kerry for President?" This seeks to capitalize on many independent voters reflexive mistrust of the "liberal" label (and especially of the massachusetts sort!). Another push question (the one that allegedly was used by Moore) is "Whose position do you think is closer to the truth - those 'veterans who served with John Kerry' and say that he does not deserve the medals that he received, or John Kerry who disagrees with the veterans that he served with and who appear in the ad?"

Second, the metaphorical. Despite all the hysteria about Bush's rising national polling, on the state-by-state level Kerry is still hanging tough. The latest polls have him ahead in Colorado and Pennsylvania, states he was losing previously. He's also made up ground in Ohio, and Florida and Nevada are virtually tied. So maybe the media should hold off on claiming that Kerry is on the edge of death.

Pledge Update

The pledge might get back into the news with this article running in the Wisconsin State-Journal. While I'm inclined to believe that the administration did not have hostile motives towards the student in question, it still shows how the pledge can be divisive and has very real harms to students even when its recitation is not mandatory.

Since the Supreme Court dodged the main issue in Newdow, this could set the stage for another pledge challenge (obviously a ridiculously premature statement). It certainly seems to fail Justice Kennedy's "psychological coercion" test articulated in Lee v. Weisman (505 US 577, 1992)

[P]ressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture, standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi's prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that, for her, the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention...To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means.

GOP Grumblings, Part 2

Just a few days ago, I blogged on the grumblings of some conservatives and their reticence to vote for President Bush.

Now, libertarian columnist Andrew Sullivan has announced he is supporting John Kerry in the 2004 election, joining other prominent libertarian academics who have decided Bush doesn't hold their values anymore.

And that's not all. Clay Risen writes in The New Republic (subscription only) that the normally stalwart CATO institute also may turn to Kerry.

[V]arious strands of criticism--on spending, civil liberties, the war--have come together to convince many Cato staffers that the best vote this fall might be for Kerry. For one thing, there is a growing belief at the Institute that the Republicans--not just Bush, but the congressional leadership as well--have sold out traditional small-government conservatives, spending lavishly to woo cultural conservatives and big business; Cato op-eds note that, during Bush's first three years, nondefense discretionary spending has increased 20.8 percent. Since last summer, scholars have chafed against the administration's fiscal profligacy in op-eds with titles like "overspending is not fiscal responsibility," "the bush betrayal," and "what fiscal discipline?" In contrast, New Democrats may not always talk the small-government talk, but Cato staffers note that, under Clinton, the Democrats reined in government spending and deregulated a broad swath of industries. "Perhaps we are being unfair to former President Clinton," wrote Cato fellow Veronique de Rugy for National Review Online in 2003, pointing out that Clinton reduced nondefense discretionary spending. At the same time, there is a more philosophical, and more cynical, pro-Kerry argument that has gained credence within the Institute--namely that the best way to limit government spending is to divide the parties' control between the executive and the legislative branches. And, given the GOP's advantage in Congress, the best way to affect such a division is to pull the lever for Kerry. In April, Bandow outlined this view in a widely syndicated column (originally published in Fortune), arguing that "the biggest impetus for higher spending is partisan uniformity, not partisan identity." Therefore, he urged his conservative readers, "Vote Democratic."

The official fracturing of the GOP coalitions has begun. Are the Rockefeller's next?

Washington Gay Marriage, Part 2

Another Washington state court has struck down the state's prohibition of gay marriage. The court in Castle v. State echoed a previous ruling by a seperate state court in Anderson v. Sims.

While overall, I preferred the rhetoric of the Anderson opinion, there was some good stuff to be found here too.

Strange as it seems, today the biological father and biological mother need never meet. One may need a government license to get married but no license is required to father or birth children. The traditional stable heterosexual union for the purpose of having a child does not need government approval and never has. But if the government is going to require that the government approve a civil contract, and approve several benefits that flow from such approval, then it must take care to treat all its citizens in an equal way. Even more important, just as the government is a real, but not named, party to the contract, any children that result are real,
but not named, parties to the contract. Same-sex couples can have children through artificial insemination and same-sex couples can adopt children all with the government’s approval. Where is the protection for these children?

Do we really need a study to understand that children thrive better in a stable family? When children lose family stability we go to great lengths through the use of foster families and adoption to bring them back into a stable family situation. When married parents divorce we take great care to do what we can to provide for the children’s loss of stability in the ‘broken’ family that results. On another level, even without children, surely stable couples as well as families are the foundation for a democratic stable society. If these observations of family are correct, and if the defendants are correct that stable families are the foundation of a stable state, then the question becomes, not what counts as “marriage,” but rather what counts as “family.” If the reason to protect marriage is the need for stable families then we need be clear as to what counts as a family upon which this stability rests. It seems to this court that stable families are a legitimate and compelling state interest for the benefit of the entire community. We, the community, need to come to know ourselves. We need to have the fortitude to see who we are and accept ourselves as we are. If we look at ourselves, and at our neighbors, what do we see that counts as a “family?”

For at least two generations we have understood “family” as something more than a man mating with a woman to have a child. A single parent is a family. Grandparents raising grandchildren without the help of the parents is a family. Adults giving foster children a home are a family. Same sex couples who adopt children are a family. Opposite sex couples who adopt children are a family. Single parents with children who marry each other bring into being a new family. A childless couple, same sex or opposite sex, can be a family. An older child raising his or her siblings is a family. There are other examples. Clearly, it seems to this court, a same sex couple, especially a same sex couple with adopted children, is a family. Is
this the kind of family that the government has an interest in making more stable? If an opposite sex couple without children is a family then on what basis is a same sex couple without children not a family? The community support that provides additional stability to the private vows of commitment of any couple comes into being because the community understands that this is in the best interest of the entire community. The community support for the private vow is to allow the creation of a civil contract. That is what marriage is. It is a civil contract approved by the community that carries with it many obligations, many benefits, and many burdens.

Both cases will almost certainly be consildated for hearing by the state Supreme Court. However, the ball is rolling folks.

The Difference

I'm on my way out, but this post from Spencer Ackerman's Iraq'd blog succinitly sums up the difference between Kerry and Bush's Iraq position.

Kerry and Bush share one major plank of an Iraq policy: Both support rapidly training and equipping Iraqis to take over security responsibilities, a position that used to be known as "Iraqification." This is the right strategy in the medium-to-long term. Bush and Donald Rumsfeld chose to make it a strategy for the immediate term, and the result is the chaos that a President Kerry would inherit. At this late hour, with anti-occupation fury a widely shared sentiment among Iraqis, adding more U.S. troops, even if it were an option, is likely to generate even more hostility, as the CSIS report referenced below points out. Bush made this mistake. A Kerry administration would have to live with it.

The key issue on which Kerry's position on Iraq diverges from Bush's is on internationalization. As I've written before, I don't see much hope for foreign troops in any significant number to relieve overburdened U.S. forces. However, Kerry's internationalization strategy doesn't only mean foreign troops. It means a renewed diplomatic push for debt forgiveness and foreign aid that Bush has been unable to produce. While I'm not expecting a President Kerry to hit the foreign-treasury jackpot, it's likely that Kerry could produce at least some diplomatic results that the loathed Bush can't.

Furthermore, Kerry does have at least one idea that I think is valuable for the future of Iraq on its own terms, and it's one that Bush probably will never embrace. That is, holding a regional conference on stabilizing Iraq, "in order to secure a pledge of respect for Iraq's borders and non-interference in IraqÂ’s internal affairs." This means dealing diplomatically with decidedly disgusting regimes like Syria and Iran. In particular it means dealing with Iran at a time of international crisis over its nuclear program. But, as a new poll from the International Republican Institute demonstrates (caution: PowerPoint), Iraqis view all the regional countries as playing net negative roles in the country. Unless there can be some attempt--and it might fail--to secure regional cooperation, Iraq will continue its swift descent into becoming the Lebanon of the early 21st century, with neighboring countries intensifying their attempts to coopt or prop up various Iraqi factions. It's not a question of such regional diplomacy being a particularly enticing option. It's a question of Bush's disastrous occupation bringing us to the point where we have to prioritize: Is the prospect of stabilizing Iraq important enough to us to bring us to the negotiating table with Iran--especially while we try to stop Iran's nuclear program? Bush's preferred approach is to pretend the dilemma doesn't exist, and have his speechwriters concoct some soundbite that portrays the resulting chaos as a speedbump on the inexorable road to Middle Eastern democracy.

In short, a Kerry administration will be inheriting an Iraq policy that will suffer from several severe constraints. Those constraints are due to the disaster of President Bush's occupation--notably, the unwillingness to send more troops to provide security early on and the subsequent inability for most reconstruction projects to actually occur, to name just two particularly cataclysmic mistakes. More than anything else, bitter experience demonstrates why Bush is unqualified for another four years of presiding over Iraq policy. Kerry might indeed lead the occupation further into the ditch. The last year has proven that Bush definitely will. And, given a choice between some measure of hope and no hope at all, I think the choice is pretty clear.

Despite the GOP spin, Kerry's position on Iraq has been rather stable. He's been for the war and against the methods we used to fight it. Since Bush's methods have led to disaster, I'm not unopen to new ideas to fight what remains a very important US objective.

Religious Thought

Religion isn't really the main subject of this blog, but this quote has always interested me.

West of Kabul, East of New York by Tamim Ansary Pg. 145-6

Are certain beliefs and behaviors good because God commands them? Or does God command them because they are good?

….If certain beliefs are good only because God commands them, it means that God might change his directives at any time. Logically its possible that justice and charity would suddenly be foul and murder good. Incest and Child Molestation might be celebrated deeds…while the moral and ethical weaklings among us would succumb to such corrupt and contemptible temptations as love, generosity and hope.

Unthinkable, you say, that God would ever promulgate such an ethos? Why not—because it wouldn’t be right? If you think that way, you’ve slipped over to the other side. You’ve assumed that right and wrong, good and bad have a status prior to God and more fundamental than He. If God cannot, from his almighty and unknowable will, enjoin murder and cruelty as virtues, God is not limitless or omnipotent.

Thoughts?