publius

Your Tax Dollars at Work

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by publius TPM Muckraker posted the YouTube clip below, which is an excerpt of testimony from GSA Chief Lurita Doan. Everyone should really watch the whole thing. It’s just mind-boggling. The act itself of turning GSA (the federal procurement agency in charge of making various purchases on behalf of the government) into a giant slush … Read more

Why It Matters

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by publius

Like Hilzoy and Josh Marshall, I think it’s important to address the “so what?” question in the ever-expanding U.S. Attorney scandal. And while I heartily endorse their excellent posts, I’d like to take a step back and put the scandal into an even broader context than they do. In particular, I think the scandal is an indictment of far more than the Bush administration alone, but instead extends to large chunks of modern conservative ideology as well. In this sense, limiting the critique to DOJ or Rove or even to the “rule of law” misses the forest for the trees.

If my critique of the Bush administration could be expressed in a single sentence, it would be this — they ignore and attack restraints on their power. This is the foundational conceptual thread that binds together so many of the scandals and controversies we’ve seen over the past few years. International law constraining your actions? Ignore it. War crimes statute limiting your interrogation methods? Ignore it (then delete it). Don’t like part of a congressionally-enacted statute? Issue a signing statement and ignore it. Pesky FISA cramping your style? Declare it unconstitutional. Geneva Convention got you down? Call it quaint. Is your habeas flaring up again? Delete it. Having problems with a special prosecutor? Lie to him. Are certain Democrats political threats? Prosecute them, or suppress their political base through fraud investigations or through not enforcing the Voting Rights Act. And if U.S. Attorneys refuse to go along? Fire them.

I could go on, but you get the point. And many similar critiques could be leveled against the Republican Party more generally on everything from Bush v. Gore, to the Texas redistricting, to the Medicare Rx bill vote, to the New Hampshire phone-jamming scandal, to the nuclear option, etc.

Note that these problems go beyond ignoring the rule of law. The rule of law is one type of restraint, but it’s not the only one. Deleting habeas, for instance, isn’t really ignoring the rule of law (like, say, the NSA scandal), it’s changing the law to maximize executive power. Again, the common theme here is ignoring or attacking that which prevents you from doing what you want to do. It’s almost like watching small children – they see something they want, and they try to get it without worrying about legal or procedural constraints.

Ok, fine you say — but so what? Why should we care? It’s not obvious, after all, that we should. Maybe ignoring the law is a net positive (from a utility perspective) in our bold new post-9/11 world.

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Viacom Killed the Video Star

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by publius

Mark Cuban’s prophecies came true last week as Viacom sued YouTube (Google) for a cool billion for copyright infringement. In response, some smart people like Lessig and Harold Feld (of Public Knowledge) are blaming the Viacom suit in part on the Supreme Court’s Grokster decision. I generally agree with that argument, but for somewhat different reasons. As I explained when Grokster came down, the case is a classic example of what happens when legal decisions become divorced from real world considerations.

First, some background. Prior to Grokster, the seminal Supreme Court case was Sony v. Universal City Studios (1984), which addressed Sony’s potential copyright liability for its newfangled VCR. Like Grokster, Sony involved the issue of secondary liability. Because the “primary” infringers were VCR users taping Miami Vice and Knots Landing, the issue was whether Sony could be “secondarily” liable for distributing the technology ultimately used for infringement. The Court said no, reasoning that the VCR was “capable of commercially significant noninfringing uses.” In other words, you could use it for good reasons too. Thanks to this decision, we have the video rental market.

Fast forward to 2005. As any sentient being would concede, Grokster was facilitating and promoting massive copyright infringement. The problem, though, was what to do about it (i.e, the concern was the remedy not the right). The challenge federal courts faced was to find a way to extend liability to Grokster without extending it to, say, Microsoft’s operating system (or Intel’s microprocessor). After all, many types of technologies – Grokster, Windows, a Dell notebook, Google’s search engine – can be used for both “infringing” and “noninfringing” purposes. It may sound absurd to hold Microsoft liable in copyright infringement for illegal file sharing, but I’d encourage you to try to come up with a clear legal test that reaches the Grokster software while simultaneously not reaching Windows XP.

The lower courts didn’t even try. Applying a strong version of Sony, the Ninth Circuit simply ruled that, because Grokster had valid noninfringing uses, it could not be secondarily liable under Sony. In Grokster, the Court – motivated by understandable animus towards Grokster – unanimously reversed. To thread the tricky needle that the lower courts avoided, Justice Souter tried the following language:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. (emphasis added)

The italicized phrase is key. What Souter is trying to do here is to limit liability to parties, like Grokster, that openly and brazenly promote infringement while shielding more neutral hardware and software technology. The idea is that, before you can sue someone, you have to show specific factual evidence of an intent to infringe.

Sounds pretty good right? In theory, this is an excellent solution, and I’m sure it would have made an excellent law review article. The problem is that it’s a terrible terrible terrible rule in practice. It’s not merely that Grokster encourages litigation, it’s that it encourages disingenuous litigation filed only as a negotiating tactic (or as an attempt to get a settlement from a big pocket).

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My Endless War

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by publius Like Stoller, I see a lot of good in the 48-50 Senate “loss.” In fact, from the Democrats’ perspective, it was a pretty overwhelming victory in that it broke down almost completely on party lines. Let’s be honest — there’s no way realistically that Congress can stop the war. Even if it had … Read more

Public Service Announcement

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by publius It’s pledge week at Majikthise. I’d encourage people to help Lindsay stay off of drugs (i.e. pharma reporting) and continue with the journalism. Given the lack of institutional funding available for progressive writers, these efforts are both important and areas where progressive blogs can make a real difference.

Why Clinton’s Iraq Problem Matters

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by publius Having been on hiatus, I’ve spent some time lately wondering why I’m so viscerally blah about Hillary Clinton’s candidacy. Apparently I’m not the only one – she scored an anemic 4% in the latest MyDD straw poll. I’ve tried hard to come up with a Slate-like contrarian post about why my Clinton Blahs … Read more

The Scarlet Libby

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by publius For those of you disappointed that Rove and Cheney escaped Fitzgerald, there is a potential silver lining. They may not be going to jail, but they are going to have to live with the fact that Libby — a close friend and ally — is going to jail for something that they also … Read more

Barely Legal?

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by publius I’m not an expert in this field, and I certainly need more time to see how the statute I’ve cited below has been interpreted. But I think the text of this statute — the federal criminal obstruction of justice statute — might explain why Wilson and Domenici took so long to respond to … Read more

Defending “Wasted”

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by publius Politically speaking, I understand why Obama and McCain had to apologize for saying that soldiers’ lives were “wasted” in Iraq. I wish, though, that they had refused to do so. Refusing to say “wasted” is actually more disrespectful to our troops than saying it. A far better tribute would be to call a … Read more

Once Bitten, Twice Shy (Baby)

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by publius Turning back to the whole “should military force be on the table” debate, the Post today provides yet another reason why we would benefit from taking force off the table — namely, our saber-rattling is making international cooperation on Iran far more difficult. Russia, China and several European countries have become increasingly uncomfortable … Read more

The Million Dollar Question

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by publius Before Mickey Kaus is tempted to hang up the Mission Accomplished banner, I think it’s important to revisit the central assumption of those who, like me, think the surge is a bad idea. It all comes down to a single question really — Is the lack of security causing the sectarian strife, or … Read more

Cool It Down

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by publius Let me second this post by Yglesias and urge the MyDD/Feingold wing of the coalition to take a step back and get more realistic about Congress’s Iraq options. The goal of Democrats — and their allies — over the next two years should not and cannot be to stop the war cold turkey. … Read more

Procedure Ain’t Enough

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by publius Perhaps stung by the Iraq criticisms, Hillary Clinton has demanded that Bush come to Congress before taking any action against Iran. I don’t disagree with that position, but it’s woefully insufficient. Look, we’ve seen this play before. Democrats who opposed the Iraq war in 2002 but wouldn’t say so tried a procedural gambit … Read more

When Keeping It Credible Goes Wrong

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by publius

I’ve enjoyed the back and forth on the Iran litmus test. I think Hilzoy and Von have covered a lot of good ground, but I want to add a couple of important points.

First, everyone should be using the word “Publosonian,” as Von did. If you’re not, start. Do it now. Publosonian.

Second, and somewhat more importantly, a common assumption in the Iran debate shared across the political spectrum is that our ongoing threat of military force against Iran is necessary to keep the country honest. This assumption is essentially the “credible threat” theory that plays such a prominent role in game theory. Von expresses it well:

The possibility of attack is significant. It creates a bit of doubt — we don’t think they’ll attack, we don’t think they possibly can attack, but what if they do? Anyone who has been involved in negotiations (or litigation, for that matter) knows the value of doubt. Doubt of radical action is a sure way to keep folks honest and on point.

This is an example of an idea that is generally accurate in most situations, but inaccurate as applied to Iran. In fact, I would even argue that continuing to “credibly threaten” Iran militarily is the source of — not the solution to — many of our current problems. Frankly, the credible threat of military force is creating the conditions under which military force will become more likely.

I can’t take credit for this idea – I heard it at a policy lunch a few weeks ago. The speaker there noted several specific ways in which our ongoing military threat against Iran is actually undermining our interests, and I tend to agree to them.

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It’s Time for a Litmus Test on Iran

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by publius Don’t know about you, but I’m getting a little freaked out by the big Iran PR push we’ve been seeing (the one enabled by the NYT and the Post). There’s a lot here that doesn’t make sense, and I think the pro-war elements within the administration are taking advantage of people’s confusion about … Read more

The M & M Show

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by publius

A big news story is often significant not for its facts, but for the deeper sociological forces and fault lines lurking beneath the surface. Rodney King is the classic example. This story exploded not simply because the police severely beat King, but because it raised larger, more fundamental questions about race and class and criminal justice in the early 1990s.

Something similar is happening with the Marcotte/McEwan controversy, which (as Memeorandum illustrates) has simply exploded across the blogosphere. The reason, I think, is that the story not only hits bloggers in a personal and even threatening way, it also strikes at a very deep political nerve for liberals still recovering from the Clinton Wars and Swift Boats.

Anyway, I’ll get to all this, but there’s a lot of other interesting stuff to chew on here. So rather than trying to fit everything into an overarching narrative, here are some scattered observations:

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Excitable Chris Bowers

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by publius The Edwards/M&M controversy is extremely interesting on a number of different levels. I hope to write more tonight, but I do think the question is a bit more complex than Chris Bowers is making it out to be: The Edwards camp faces a series of simple choices right now: Are you with the … Read more

By Rudy’s Fruits, Ye Shall Know Him

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by publius In case you didn’t see it, Rudy went on Sean Hannity’s show yesterday to show that he’s, as Holly Hunter might say, bona fide. Hannity pressed him though on abortion: HANNITY: Where does Rudy Giuliani stand on abortion? And do you think Roe v. Wade is a good law, a bad law? GIULIANI: … Read more

Those Who Ignore The Past

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by publius

I spent a lot of the week on the Amtrak east coast line, so I picked up John Gaddis’ The Cold War:  A New History at one of the stations.  For those of you who, like me, know less about the Cold War than they should, it’s a good quick summary.  The book teeters on the edge of becoming a morality play at times, and I half-expected the world to break out in chants of "Rocky! Rocky!" by the end.  But as an intro, it’s a good place to start.

What really stood out as a reader in 2007 is the contrast the book provides between the Cold War and our new whatever-we-call-it-now war.  And the contrast shows just how dangerous it would have been if the Bush-Cheney-Kristol n’er-do-rights (and their working assumptions) had been in charge from 1946-1964.  Specifically, in a number of ways, the choices America made in the Cold War (and the consequences of those choices) discredits practically the entire Bush/Cheney approach to foreign policy.

Before I get into specific examples, what really stands out about the immediate aftermath of World War II is how fluid history became during this brief window of time.  The years 1946-1950 in particular was one of those rare historical periods in which the world was basically born anew.  Everything was in flux and therefore the choices made in that period had a disproportionate and lasting effect upon the shape of the world to come — just like the strikes to glowing-hot metal forever shape the sword as the metal cools.  For that reason, it was particularly important to have people making correct choices in this critical, formative period.  And for the most part, with notable exceptions, we did.  The world didn’t blow itself up after all.

Although it’s not on the scale of the postwar era, Bush did for good or bad create a new Middle East.  And like postwar Europe, Iraq and the larger Middle East are going to be forever shaped by the choices of the actors currently in charge.  Indeed, many of these irreversible choices have already been made, mostly for the worst.  Unfortunately, the world-historical importance of the moment is matched only by the utter incompetence of the people currently making decisions.  And with war with Iran looming and the brilliant new plan to align the Middle East along sectarian lines, the real question is whether the Bush administration will run out of time before or after it has to chance to engulf the entire region in war.

To get a sense of how different the current Deciders are from the Cold War Deciders, consider the following examples:

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My Trip to the Doctor

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by publius Ok, time to post. Here we go. I haven’t had a chance to talk about Bush’s State of the Union, but there are several interesting . . . “things”?  No. “Whachamawits”?  Jesus no. Let’s go with “things” . . . things to talk about.  I thought the speech was bad. The speech was … Read more

Yond Chairs Have a Lean and Hungry Look

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by publius One of the more annoying media narratives is that the rickety Democratic House is always on the verge of ripping apart along liberal and conservative fault lines. It’s not true of course, if for no other reason than that the House caucus doesn’t have many conservative Democrats following the white South’s political realignment. … Read more

The Root of the Problem

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by publius Glenn Reynolds, offering his thoughts on the surge: There’s also some reason to think we’re putting the screws to Iran [by adopting the surge]. On the other hand, I’ve been disappointed a number of times by the Bush Administration’s inexplicable unwillingness to deal with Iran’s fomenting of [the] insurgency — it’s really a … Read more

Place Your Bets

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by publius I’m putting the over/under on the percentage of Corner posts relating to Hillary over the next year at 41%.  I’ll take the over.

Romeo and Newly-Left

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by publius

There’s been an interesting back and forth on whether the so-called "netroots" is an honest-to-God political movement.  The whole thing was triggered by Matt Stoller’s TPM Cafe post, which led to a number of heated responses (rounded up here).  Ezra Klein sums them up:

The semi-complicated backstory is that Matt Stoller wrote a post on TPM
Cafe taking the 60s left to task, and a bunch of somewhat older, less
netrootsy bloggers struck back at it.

To be grossly general, the Stoller/Kos camp thinks that the netsroots (the New New Left) is successfully building new political institutions, while the 60s Left (the Old New Left) wasn’t very successful on that front.  The Sawicky/Newman camp disagrees, arguing the the 60s-80s Left built an unprecedented amount of political institutions, while the netsroots has accomplished very little in this respect.

What’s striking about this debate though is how much these two sides actually agree about.  Both sides — correctly I think — adopt a Marxist-type assumption that the key to political change is structural change.  In other words, to bring about real political change, you have to do things like build institutions and, more generally, take the steps necessary to assume actual political power. 

Along these lines, I’ve always thought the real achievement of the New Deal was the institutional framework it left in place to serve its constituency’s interests in the future (an achievement that carries on today).  In this sense, the regulatory state is the political manifestation of the progressive movement and a concrete monument to its success. 

The question then is whether we’re seeing something similar in the netsroots, or whether it’s just sound and fury, signifying nothing.   As Josh Marshall said, "Institutions Talk, Enthusiasm Walks."  Before I get to that question though, let me take a detour through Romeo & Juliet.  Bear with me here.

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Right and Wrong

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by publius

Kevin Drum weighs in on the recent back and forth about whether anti-war liberals were right for the wrong reasons:

If anti-war liberals were right about the war from the start, how come they don’t get more respect? Here’s the nickel version of the answer from liberal hawks: It’s because they don’t deserve it. Sure, the war has gone badly, but not for the reasons the doves warned of.

His post is already generating some testy responses and I’m sure this debate will — like a bad strain of herpes — be with us for a long time to come.  I’m not terribly interested in continuing this debate, but I do think that people shouldn’t lose the forest for the trees in assessing the “reasons” people opposed the war.

The logic of the pro-war liberals’ argument is:  (1) the anti-war people opposed the war for Reason X; (2) Reason X turned out to be wrong or unjustified; (3) therefore, their judgment isn’t any better than ours; and (4) they should shut their hippy traps.  But opposition to the war can’t be completely reduced to individual fact-specific arguments — you also have to factor in the larger environment in which the debate played out.  Speaking for myself, I opposed the war not so much because I was dead certain I had all the facts right, but because of my increasingly-intense skepticism of the broader context in which the pro-war argument was being made.

In other words, something just smelled funny about the whole thing — and I think this “smell” should have had right-thinking people jumping off the bus by March 2003.  More after the jump (my very first by the way).

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First, Accuse All the Lawyers of Treason

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by publius [Before I weigh in on Stimson’s attacks on law firms, I should disclose that my firm (though not me personally) represents some Guantanamo detainees.  So take that for what it’s worth.] Other than its obnoxiousness, the thing that really stands out about Stimson’s critique is the basic conceptual error that we’ve seen again … Read more

I Welcome My New Hilzoyian Overlords

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by publius So after a night of heavy drinking, Hilzoy apparently got on the computer and started inviting random people to join Obsidian Wings (Justin Timberlake was on the email I received for some reason).  So before she could revoke the offer, I accepted.  And you people are now, for better or worse, stuck with … Read more