Uncategorized

The gay marriage debate has rekindled my interest in a very important topic: judicial interpretation. I am a proponent of gay marriage. I think that legislatures ought to change marriage statutes to allow same-sex marriages. I believe that attempts to circumvent the legislative process by using judicial sleight-of-hand are dangerous to the process of American government, and are likely to make gay marriage an even more controversial subject than it has to be. I have written at length on the subject of judicial interpretation, most especially here , here, and here . Upon reading this article by Clayton Jones (Beware blogspot link, the entry in question is July 18, 2004.), I found an interesting classification system that might shed light on what people mean by judicial activism:

Read more

Disclaimer: I’m surrounded by conspiracy theorists who believe the impending economic dominance by China is driving everything from decisions in the War on Terror to the choices we make in fighting global warming. Of course articles like this by Ted C. Fishman don’t help:

China is everywhere these days, influencing our lives as consumers, providers, citizens. It has by far the world’s most rapidly changing large economy, and our reactions to it shift just as quickly. China is at one moment our greatest threat, the next our friend. It siphons off American jobs; it is essential to our competitive edge. China is the world’s factory floor, and it is the world’s greatest market opportunity. China’s industrial might steals opportunities from the developing world, even as its booming economy pulls poorer countries up (lately it has been getting credit for helping Japan out of its slump too). China exports deflation; it stokes soaring prices. China will boom; it will bust.

Fishman is not as alarmed by all this as some folks. He concludes the above statements by noting, “The truth about China is that, like all big countries, it is full of real contradictions.”

This is an excellent, albeit lengthy, article by the way, so if you get the chance I’d recommend it. It’s got plenty of food for thought, like “Increasingly, it is what Chinese businesses and consumers choose for themselves that determines how the American economy operates.” But the bit that jumped out at me as most worthy of consideration within the context of the conspiracy theorists’ worries was this:

Read more

I’m aware that Senator Hillary Clinton has been a special irritant for many of my side since her days of being First Lady / unelected co-President; I’m also aware that a case could be made that she deserves any little negative kharma that comes her way. Heck, I don’t even personally like the woman, based on what I’ve seen of her. But she was talking to a bunch of San Francisco Democrats about (in her opinion) necessary tax increases*; how did you expect her to frame the concept? In terms that the Cato Institute would have approved of?

So, no, I don’t think that she’s a Marxist or even a Socialist, just a Democratic politician (and, contrary to popular perception, the three concepts aren’t interchangeable) who was trying to explain a policy position of hers to a bunch of folks rather to the Left of her. The quote was pretty clear that she was telling her audience that they themselves were going to have to sacrifice for the common good – yes, yes, Ms. Rand, your loud and reflexive loathing of the very idea is noted for the record – and I’ve watched enough quotes from my side get mangled and/or taken out of context to be comfortable with assuming that a specific argument was meant to have universal significance. My personal opinions of the Senator from NY aside.

Mind you, if she starts talking like this in general, well, I’ll be less inclined to give her the benefit of the doubt…

(Via Tacitus: nothing personal, Bird Dog)

Moe

Read more

I can’t believe I’m saying this, but: David Brooks’ criticism Kerry’s remarks on the Varela Project is dead on.* The project has gathered 30,000 signatures on a petition to hold a referendum on whether to hold free elections. Castro has jailed many of its supporters.

Kerry told a Miami Herald reporter that it “has gotten a lot of people in trouble . . . and it brought down the hammer in a way that I think wound up being counterproductive.”

I don’t know very much about Cuba; I only learned the details of the Varela project because of this controversy. I do know blaming the victim when I see it. It’s especially bizarre from a candidate who fully supports the embargo–which to my inexpert eyes has proved, if not counterproductive, totally non-productive. But pushing for repeal or relaxation of the embargo could get Kerry “into trouble” in Florida.** Just as opposing the Iraq war would have gotten him into trouble. Just as opposing a constitutional amendment to take away people’s marriage licenses in his home state would have gotten him into trouble. Just as showing leadership now, instead of strategically lying low, could get him into trouble.

He has my vote; there’s no question. (Even if I believed that the Bush administration were a bunch of starry eyed defenders of freedom–and I so, so don’t–I’d have to vote for Kerry on grounds of competence alone.) There’s also no question that Kerry is capable of great courage. But he seems to have misplaced it lately, and I find myself really missing Howie, Johnny, and Wesley. If the rumors about Gephardt as the VP pick prove true, despite the American Prospect’s worthy efforts, I’ll miss them even more.

See Randy Paul, Kevin Drum, and Tacitus for more.

See also William Butler Yeats (first stanza, last two lines).

Read more

Even though it was fun working for the Orioles, I knew it wasn’t going to last forever. Anyway, now that we’re a couple of months into the season, I thought I’d revisit my original roundup post about all the teams. Just for a laugh, you know.

Read more

From the news conference today:

Q Mr. President, the Justice Department issued an advisory opinion last year declaring that as Commander-in-Chief you have the authority to order any kind of interrogation techniques that are necessary to pursue the war on terror. Were you aware of this advisory opinion? Do you agree with it? And did you issue any such authorization at any time?

THE PRESIDENT: No, the authorization I issued, David, was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That’s the message I gave our people.

Q Have you seen the memos?

THE PRESIDENT: I can’t remember if I’ve seen the memo or not, but I gave those instructions….

Q Returning to the question of torture, if you knew a person was in U.S. custody and had specific information about an imminent terrorist attack that could kill hundreds or even thousands of Americans, would you authorize the use of any means necessary to get that information and to save those lives?

THE PRESIDENT: Jonathan, what I’ve authorized is that we stay within U.S. law….

Q Mr. President, I wanted to return to the question of torture. What we’ve learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that’s not very comforting. This is a moral question: Is torture ever justified?

THE PRESIDENT: Look, I’m going to say it one more time. If I — maybe — maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We’re a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of — from me to the government.

It does not comfort me.

The position the memo takes is that it is sometimes consistent with U.S. law, and international treaties, for the President to set aside acts of Congress and to order or authorize torture of prisoners. The administration will not release the memo to Congress, or say whether they adopted its findings, or discuss it in any way. So these answers tell us nothing.

The fact that the President won’t give a meaningful answer, perhaps tells us something. The fact that the Democrats on Judiciary are not sure they’ll find one G.O.P. Senator to cross the aisle and officially request the memo, according to this AP story, perhaps tells us something. The fact that Orrin Hatch told the AP that releasing the memos would “cause the deaths of our young people … by publicizing something that shouldn’t be publicized,” perhaps tells us something.

I don’t know whether Hatch is afraid for our troops, or afraid for Bush’s re-election, or both. But he’s afraid of something. If the memo is as hypothetical and harmless an exercise as some of the President’s supporters say, the best thing to do for our troops is to prove it. Release this memo, and release the ones that shows the advice was rejected, and explain what the policy actually is.

Read more

I’m swamped with a melange of matters, so it’s light posting from me this week.* Still, I have to pass the following along:

Heard a talk last Friday by one of the central players in the creation of a judiciary in Bosnia and Kosovo at the conclusion of the war. (Full disclosure: my firm represented the Bosnian and Croatian governments in certain post-conflict negotiations.) He said there were three central lessons from the Balkan conflict:

(1) If you provide police or peacekeepers, arm them.

(2) If you provide police or peacekeepers, provide a lot of them.

(3) The Germans and Canadians can be key allies because they are particuarly adept at translating Americanese into French and UNese. They understand us, and they are capable of making the French and the UN understand us — which is a rougher trick than you might think.

Well, one out of three . . . .

Read more

1) I hope newspapers don’t print headlines that say, without quotations marks or “allegedly” or “claims to be,” that this was revenge for Abu Ghraib. I don’t think the timing of this “execution” is coincidental–for one thing, if Zarqawi himself was videotaped, that was a risk he probably took for a reason. But I’m not sure that Nick Berg wouldn’t have been killed despite Abu Ghraib, and I am sure that if it weren’t this murder it would be another.

My best guess is that Abu Ghraib led to this only in that Zarqawi saw an opportunity. What he was trying to do–scare us, anger us into more abuses and deaths of innocents, inspire other Iraqis to kill innocent Americans in revenge, frighten Iraqis out of working with our troops and contractors, getting private contractors to leave Iraq, simply get his name in the papers–I don’t know. It made me much more angry than fearful, and I’m a giant wuss, so if he was trying to scare the American public I think he miscalculated. But he might have a narrower audience–if I were a civilian contractor trying to build Iraq’s infrastructure, or an Iraqi cooperating with the Americans I have no idea how I’d react.

And yes, it is at least possible that he wants us to be outraged–provoking overreaction is a tried and true terrorist strategy.

2) Neither justifies the other. I think we all agree on that. I wish people would also refrain from saying that one keeps the other “in perspective.” Perspective about what? That we’re morally superior to Zarqawi and his band of thugs? Whoop-de-freaking-do. I’m a liberal, antiwar, anti-Bush partisan, and yet I could not be less in need of that reminder. The few people who need it–ANSWER, etc.–will not listen to it. That this is what the interrogators were fighting? Most of the Abu Ghraib prisoners had no more to do with Zarqawi than Nick Berg had to do with torturing Iraqi prisoners. Abu Ghraib will probably win recruits for Zarqawi and Sadr, and definitely makes it less likely that Iraqis wil cooperate with U.S. troops or turn in neighbors whom they suspect of working for the terrorists.

Right now, I am certain, someone in the Middle East is telling someone else that Abu Ghraib keeps Berg’s murder “in perspective.” So f**k perspective. Until we ensure that these abuses won’t happen again, I think being pissed at everyone is a perfectly healthy response. (That link is highly recommended; one of the better blog comments I’ve ever read.)

3) There are a lot of comparisons of the press coverage. Some people are saying that if the press releases the photographs of Abu Ghraib, they are obligated to release the video of this. I don’t know. I think the relevant comparison is the videos of Abu Ghraib rather than the photos. I find a still photo much easier to take; I don’t know if I’d watch the videos of Abu Ghraib. But I know I’m not watching the video of the execution. I couldn’t handle it, and I feel no obligation to watch Zarqawi’s sick propaganda. I would not believe what was in the photographs of Abu Ghraib if I had not seen them, but I have no trouble at all believing what was in the video. And–this does me no credit, but I know I will find it harder to watch a kid my age from Philadelphia with a name and a family on the news be tortured and executed, than an anonymous Iraqi prisoner.

Read more

An honest question:
Would it be fair to say, based on his performance today, that Rumsfeld thought the worst thing about Abu Ghraib was that there were pictures; and seemed angriest when talking about those pictures being leaked to the press?

Or do I only say that out of partisanship, bitterness, and knowledge of how things like this play out when there are no pictures?

It could well be the latter. I do realize that it doesn’t seem real until you see it first hand. Rumsfeld sounded a lot more contrite, and hell, a lot more human, at the beginning of today’s hearings than he had before. That may be because he knows his job depends on it, but it also may be that he didn’t see all of the pictures until last night.

But, God. We need to learn to prevent these things before they happen, and certainly before pictures of them are broadcast on 60 Minutes and Al-Jazeera. And I’m not even a little confident that it will happen.

Read more