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Saturday, March 27, 2004
Speaking of "Offensive" Cartoons in University Newspapers:
The controversy Eugene blogged about yesterday reminded me of one of the more outrageous such incidents, back in the late 1980s. UCLA suspended an editor of the student newspaper for running an editorial cartoon ridiculing affirmative action preferences. In the cartoon, a student asks a rooster on campus how it got into UCLA. The rooster responds, "affirmative action." After the editor was sanctioned by UCLA, student editor James Taranto (now of OpinionJournal.com) reproduced the cartoon in the California State University, Northridge student newspaper and criticized UCLA officials for suspending the paper's editor for engaging in constitutionally protected expression. Northridge officials then suspended Taranto from his editorial position for two weeks for publishing controversial material "without permission." However, when Taranto threatened a lawsuit, the school removed the suspension from his transcript. UPDATE: Courtesy of Mr. Taranto, here's a reproduction of the original cartoon:  He writes, correcting my version of the story slightly: Ha, thanks for the trip down memory lane. Actually, the UCLA editor used the threat of a lawsuit to persuade the Communications Board (a student-government committee that oversaw the Bruin) to back down, though they claimed it was because they were satisfied with his apology, which was indeed quite groveling. For me, it took an actual lawsuit, which the defendants finally agreed to settle three weeks before the trial date. More details here.
Friday, March 26, 2004
More on the university student newspaper investigation:
Apparently the complaint brought against the newspaper and its faculty advisor (see the post several posts down, the one with the cartoon) cited as authority the American Indian Religious Freedom Act of 1996 (I think they might mean 1978), the Indian Civil Rights Act of 1968 (presumably mostly referring to this section), and the Southwest Missouri State University Nondiscrimination Policy (apparently here). None of these, it seems to me, comes even close to prohibiting cartoons such as the one involved in this incident -- though of course even if they did, they would be unconstitutional.
Headscarves contined:
Peter Northup offers a careful reading of, and response to this defense of the French ban on "ostentatious" religious symbols in schools, written by Patrick Weil, a member of the commission that recommended the ban. Weil argues that the ban is needed to prevent (mainly) students bullying and compelling other students into wearing headscarves. Peter replies that there might have been a case for the ban if the problem was girls being coerced by parents otherwise outside the reach of the school system, but that if the problem is inter-student violence then it should be the violent students, not their victims, who get penalized or restricted. Weil bemoans the fact that the ban was the only one of twenty-five commission recommendations adopted. He seems genuinely surprised, much after the fashion of people of goodwill who sit on government blue-ribbon commissions everywhere. Chirac convened them more or less explicitly for the purpose of getting a recommendation to ban headscarves. He got it. The mix of other recommendations (some of them commendably multiculturalist, such as an expansion of official holidays to include Jewish and Muslim as well as Christian ones)were no doubt important to the commissioners who understood themselves to be doing something other than rationalizing a ban; but they weren't of any importance to the French government. What Weil thought he and his fellow commissioners were doing bears relatively little relationship to what Chirac actually is doing. When I first blogged about the proposed law in December, I noted that Chirac had recently called the wearing of headscarves an "assault" against the republic. The following case seems straightforwardly analogous to me. The governor of a southern state circa 1960 has accepted the integration of the public schools, but refers to interracial dating by students as an assault against the state's values. A commission is convened, and finds that students involved in interracial dating are routinely threatened or beaten by other students. In sadness more than in anger, and in order to protect the victims, it recommends a ban on interracial dating-- or at least on ostentatious displays of same, like holding hands in hallways-- along with a number of other reforms to promote improved race relations. The governor does the obviously-expected thing, adoptes the recommendation for the ban and ignores the rest. The difference, of course, is that in France the government is coercing the targeted students in the opposite direction from what the violent students want, whereas in the hypothetical the government is coercing the targeted students in the same direction. But in both cases, the wrong students are getting coerced, and they're getting coerced under cover of their own protection by a government that openly wanted rid of the targeted behavior for reasons unrelated to the violence. UPDATE: Mark Kleiman's "not persuaded."I fail to see the analogy between banning a behavior that is being repressed by violence and banning a behavior that is being enforced by violence. Russell Arben Fox agrees with Mark about the analogy but agrees with me (I think) about the disconnect between the story about violence and the (unrelated and unsupportable) real reasons why the major officials of state support the ban.
University student newspaper being investigated for allegedly offensive cartoon:
 FIRE, the Foundation for Individual Rights in Education, writes: Southwest Missouri State University (SMSU), a public institution bound by the First Amendment, is investigating the faculty advisor and student editor of its campus newspaper, The Standard, for publishing an editorial cartoon that a Native American group found "offensive." SMSU has refused to rule out a formal hearing on the matter, has requested that Standard faculty advisor Professor Wanda Brandon and editor-in-chief Mandy Phillips attend "mediation" to discuss the issue, and, according to Philips, has contacted The Standard to "advise" it that even reporting on the administration's intervention in this case could violate university policy.
"SMSU's attack on free speech, freedom of the press, and due process must end immediately," said Greg Lukianoff, director of legal and public advocacy for FIRE. He added, "If publishing an innocuous satirical cartoon is sufficient to set off secret investigations and proceedings, then truly no speech is safe on America's college campuses."
The cartoon in question, printed in the November 21, 2003, issue of The Standard, was entitled "The 2nd Thanksgiving." It depicts two Native Americans meeting a Pilgrim woman with a gift of canned corn. The Pilgrim responds, "Gladys, the Indians are here and it looks like they brought corn . . . Again . . ." The cartoonist, who is not being investigated (and who is, himself, of Native American descent), later explained, "The point of the cartoon has nothing to do with Native Americans or Pilgrims . . . I was trying to reflect a common Thanksgiving tradition of a host griping about what their guest has brought to the dinner."
On the evening of December 2, 2003, three members of the student group American Indian Leaders of Today and Tomorrow came to The Standard's office. They complained about the cartoon to editor Mandy Phillips, who became nervous due to the level of anger the men displayed. The following morning, Phillips and Brandon filed a report with the Springfield Police. According to that report, the "very angry" men "threatened to have her [Phillips] fired as well as having the entire Navajo Nation rally against her and The Standard."
On December 5, Jana Estergard of SMSU's Office of Equal Opportunity (OEO) contacted Professor Brandon to request a meeting about a complaint regarding The Standard. At the time, Estergard would not say who was a target of the investigation, nor would she provide further details. Brandon pointed out that The Standard's bylaws expressly prohibit her from controlling the content of the paper, but neither this fact nor the First Amendment's guarantee of freedom of the press persuaded the OEO to drop its investigation. It was not until mid-January that Estergard gave Brandon even a brief summary of the charges against her. The complaint absurdly alleged that The Standard had violated a religious freedom law, a civil rights act, and university policy -- all simply by publishing a cartoon.
Estergard ominously drew Brandon's attention to an OEO regulation that prohibits the target of an investigation from even divulging the fact that he or she is being investigated. This regulation not only prevents the subject of an investigation from getting advice on how to proceed, but also ensures that questionable OEO activities will not be exposed to public scrutiny. Standard editor Mandy Phillips states that the OEO attempted to use this policy to prevent the newspaper from printing an article about the investigation.
Professor Brandon refused an OEO proposal of "mediation" to settle the issue. According to Brandon, "I decided this was not right and that it was in fact illegal for the OEO to attempt to put me and the editor through a process that could result in punishment." When asked about the free speech controversy, SMSU President Keiser told a local newspaper that he thought that the cartoon was "dumb" and said, "This is not a free speech issue. It's an education issue." . . .
FIRE requested that the OEO's investigation cease immediately and that SMSU reassure its students and faculty that it respects the Constitution and freedom of the press on campus. A day later, SMSU's general counsel replied, insisting that "Dr. Brandon has not been subjected to an investigation." He claimed, "the issue is education, not free speech." . . . This is obviously just one side's perspective, but I've found FIRE to be quite trustworthy in the past (and a news account in the March 5 Springfield News-Leader confirms many elements of FIRE's press release). If their statement of the facts is correct, then SMSU's actions are quite troubling. If the newspaper is indeed set up as independent of the administration and the faculty advisor, then any attempt to constrain the newspaper via "university policy" would likely be unconstitutional; and even setting aside the legalities, it would be wrong as a matter of academic freedom. Likewise, if the professor isn't allowed to control the newspaper, it's hard to see how SMSU can properly go after the professor. (If the newspaper were an official curricular project, for instance one for which students got journalism course credit, and the professor taught that class and got teaching credit for that, then the university administration could, I think, in considerable measure control how that class is taught -- but that doesn't seem to be what's happening here.) And they're especially troubling given how innocent the cartoon is (not that it's very funny, but it's surely not some sort of racist slur). Even genuinely offensive cartoons, of course, are constitutionally protected. But when something like this causes such a stir, then it shows a lack of perspective and common sense as well as a lack of respect for the First Amendment.
Note to grad students:
In summer 2002, I went to the Institute for Humane Studies' Social Change Workshop for grad students (and, as one of IHS's graduate summer research fellows, I was a TA of sorts at the workshop, presenting a paper and running discussion sections). There's going to be another one from June 19 to 25, and you should apply. Will Wilkinson, who works at IHS, explains why it's such a blast -- smart students, wonderful faculty, interdisciplinary, the works.
Interesting Virginia Postrel Column:
Did you know?: Before unionization and its attendant wage compression took hold, smart young women (and assumedly men) demanded a premium on the teaching market? I can't imagine why smart, ambitious, hard-working, and not unusually altruistic individuals would be willing to commit to a career in public school teaching today, knowing that they would get paid exactly the same as slow, dull, lazy colleagues. The young women I've known who have gone into public school teaching with SAT scores and ambition well above the median have either left for more entrepreneurial educational ventures or obtained master's degrees and were quickly promoted into academic administration.
Thought on watching the Democratic Unity DInner on C-SPAN:
Note to self:
Never, never, never, not even with an epically hagiographic video of one's own life as an introduction, be the guy who has to give a speech after Bill Clinton.
Thursday, March 25, 2004
Blogging as part of class requirements:
Christine Hurt, a lawprof at Marquette, has been running an interesting pedagogical experiment: [My] students were required to read the WSJ daily and to post weekly [here] on some topic that they read there. They were also required to comment to someone else's post four times in the semester. Both the students and I realized halfway through the semester that if I wanted to incentivize dialogue, then comments should be valued the same as posts. Next Fall, I will continue to use the blog, but will change the requirements to reflect this goal of dialogue and not just of independent "blurts." I do think the blog enables me to ascertain if students are catching on to concepts we discuss in class by watching them apply those same concepts to actual events.
This blog may or may not be of any interest to your general readers, but I think it is a rare blog in that it is not just professors blogging on legal topics or law students blogging on social or law school-related topics. Both students and [the 2] professors . . . blog on corporate law-related topics, with some guest bloggers (practitioners) chiming in on a semi-voluntary basis!
Israeli coders, Arab testers:
A reader writes, apropos checking sensitive source code for sabotage: I spoke to [someone] from the NSA, about this subject a couple of years back. As you probably know, although the NSA has teams of cryptographers at its disposal, a large amount of the successful interception it carries out is simply due to exploiting software faults in communications software. Consequently, in their other role, as advisor to the DoD about communications security issues, they focus on software assurance to an extent that often takes newcomers by surprise.
The NSA used to have a requirement that only American citizens should be allowed to work on sensitive source code, because they considered there to be too great a risk of backdoors being placed in the code by foreign nationals . . . . More recently, because of the number of H1(B)s and green cards in the computer industry, it's been impractical for the NSA to insist on that. Instead, what they've encouraged -- and this is the interesting and quite clever part -- is that programmers and testers should be of different nationalities. If you have Israeli coders, get Arabic testers. If you have British coders, get French testers. And so on.
A cute solution to the problem. But I don't know if it ever worked. I suspect the NSA still insists, though, that source code for sensitive systems be written by American companies on American soil, even if it isn't written by American fingers. Of course, even if the NSA's program worked for the NSA, it would be pretty expensive to adopt for the important source code and off-the-shelf object code used by lots of other organizations -- many of which are private companies -- that manage critical American infrastructure. Nor am I sure that it would work that well even if it were adopted. Still, it struck me as interesting enough to be worth mentioning.
Law & Aesthetics:
I'm passing this along from some Boalt Hall students: CREATIVE WRITING CONTEST
$150 cash prize
LAW & aesthetics
Imagine there is something called "Law & Aesthetics" that is studied and taught at law schools. Now, write its encyclopedia entry.
There are no restrictions other than those suggested by the title of the encyclopedia entry. As you see fit, your assignment is to invent the history and/or substance of Law & Aesthetics, a discipline that does not presently exist. You are encouraged to:- invent or rewrite history in order to accommodate your creative vision.
- attribute elements of the discipline to historical figures (artists, legal scholars, philosophers, judges, historians, etc.) or invent its participants out of whole cloth.
- integrate strands of existing theories and realms of inquiry you deem relevant or create something from scratch.
- chronicle the history and evolution of the discipline; catalog its adherents and critics and their contributions; detail its tenets and research program; summarize the leading books or articles; or all (or none) of the above.
- be creative.
This creative writing contest is open to Boalt Hall Faculty, Students and Staff.* Winning entries will receive appropriate recognition. The author of the best entry will receive $150.00.
Entries should be submitted to LawAesthetics@yahoo.com. The text of this announcement is available on request at this email address. Additional information probably will not be provided, however, in order to maintain a level playing field. Entries should be longer than, say, a dictionary entry but probably no more than a thousand or twelve hundred words. The submissions deadline is Wednesday, April 7, 2004. Contest rules may change; however, the cash prize will be awarded if a minimum number of entries are received.
*and some others: the contest is open to Boalt Hall students, faculty, and staff; and to their friends, family, and household members, and to the friends of these people. I am assured by the contest organizers that any reader of The Volokh Conspiracy is a friend of theirs.
Excellent Dahlia Lithwick piece on the oral arguments in the Pledge of Allegiance case.
Children and the Establishment Clause:
Stephen Bainbridge makes a good point: In arguing the Pledge case, plaintiff Michael Newdow opined that:His daughter would be singled out by not saying the Pledge, and would be coerced to participate. "Imagine you're a third-grader in a class of 30 kids. That's enormous pressure to put on a child" to conform, Newdow said. I wonder if he's given any thought to how his daughter would feel if she goes down in history as the kid who took down the Pledge of Allegiance? Talk about being singled out! I wonder if he knows the story of William Murray, whose mother Madalyn Murray O'Hair got the Supreme Court to throw prayer out of the schools?Today, William Murray is a born-again Christian, "the No. 1 spokesman for prayer in the schools," in the words of U.S. Sen. Jesse Helms. He is also the author of five books, the most recent being "Let Us Pray." Before his mother died, Murray observed of his family that:Jesus says that "following me will cause brother to hate brother and separate mother from son." In the case of my family, that is an absolute truth. Most people who study that passage see it abstractly, but in the case of my family . . . it has been split in a variety of ways because of my desire to follow Jesus. My brother, my oldest daughter, and my mother. . . . Newdow, of course, may have a response: He might argue that he's defending the Constitution, defending the Constitution is the right thing to do, and he wants to teach his daughter to do the hard things even if it causes some social tension. He may also be a better judge of just how his daughter is likely to react on this. On the other hand, he might not be such a good judge of that; people with burning causes (even worthy causes) sometimes aren't quite as clear-sighted on such matters as they could be. Hard to tell for sure. Note, incidentally, that Joe Roth, one of the children on whose behalf the leading school prayer case Engel v. Vitale was field, grew up to be chairman of Twentieth-Century Fox, run Disney Motion Pictures, and now head his own Revolution Studios. According to a Newsweek article (May 25, 1992), "'Joe had to stand up at a very tender age,' a friend says. 'It made him dogged . . . very tough.'" I've seen no articles reflecting his own views on being involved in the litigation; if anyone knows of any, please pass them along. UPDATE: Clayton Cramer (who isn't wild about the Court's attempts to restrict religious speech by the government) notes that in his books, Murray does not come across as generally supporting teacher-led school prayer in classrooms, at least of the sort that the Court struck down in 1960s; Murray's views are apparently more complex -- he would endorse some prayers, such as graduation prayers, but not others. More in Cramer's post.
Early state constitutions:
Thorpe's American Charters Constitutions and Organic Laws 1492-1908 is an excellent resource, and it looks like it's now mostly online, together with some more recent state constitutions. (Thanks to Clayton Cramer for the pointer.)
More on the British self-defense -- or is it? -- conviction:
Matt Rustler, no enemy of self-defense rights, has some interesting details. (If the link doesn't take you to the right post, scroll down to "MORE CORRUPTION IN EUROPE.").
Flags:
A follow-up on the observation that there are few flags with any orange and brown on them, with thanks to many readers who responded: - Addition: Pink and purple seem scarce, too.
- Explanations: The chief explanations seem to be (1) medieval heraldic conventions, (2) relative visibility from a distance, and (3) the relative cost of various dyes way back when the granddaddy flags were designed. Items 2 and 3 of course may well have influenced 1.
- Cool site: "The world's flags given letter grades."
Samples:
"Pakistan A 88 / 100 Best use of the star and crescent. Unfortunately, it depicts something astronomically impossible, namely the eclipse of the moon by a star. But perhaps it's not a star but a nuclear satellite-weapon aimed at India?"
"Guam F 20 / 100 Name of country written on flag in ugly typeface. Notice that the M of Guam is larger than the other letters. I have given it this high a grade because it would actually make quite a nice tea towel."
- The Cleveland connection: See here.
Markets versus Politics - The Real Choice:
David's excellent point below is not just applicable to antitrust. Rather, it is the proper mode of analysis for all public policy questions, and it deserves to be reiterated. Too often policy arguments proceed as follows: A) the market "fails" because it does not produce the theoretically optimal result, therefore B) government intervention is necessary. But B does not follow from A. The failure of market processes to produce an optimal result does not ensure that the political process will do a better job. From a libertarian perspective - or any perspective that is inherently suspicious of government intervention - the burden should be on those advocating government intervention to explain why the political process can be expected to produce a better result than the marketplace. In such an inquiry, the theoretical virtues of government intervention are no more relevant than a basic equilibrium model of perfect competition. Both are blackboard abstractions that often have little bearing on what occurs in the real world. What matters is how political intervention -- and make no mistake, government intervention in the marketplace is always political -- is likely to affect the status quo ante, and whether the consequences of such intervention (and the attendant rent-seeking, transaction costs, etc.) constitute an improvement in the real world. Political intervention in the marketplace may be well intentioned, but that does not make it any more likely to generate positive results. Indeed, insofar as noble intentions leave the likely consequences of such interventions unexamined, such policies may make us all worse off. ADDENDUM: An example of well-intentioned political intervention with negative effects isthe Endangered Species Act. As I noted here, there is empirical evidence that in some parts of the country the ESA actually increases the rate of habitat loss. UPDATE: Henry Farrell at Crooked Timber takes liberties with this post, and commenter ASG catches him being too cute by half.
Pledge:
This year, as most years, teaching John Locke got me thinking about the Pledge of Allegiance. One major issue in thinking about Locke's Second Treatise is the difference between express and tacit consent. Most people most of the time only tacitly consent to the government they're living under. They accept the protection of the laws for their persons and their property, and so they accept the duty to obey those laws in turn. They, like the foreigner who's just passing through on the roads, have accepted the existing government's jurisdiction for as long as they're present, but have an arm's-length relationship to it. Only a minority ever become "members" of society by expressly consenting to the government. As I read Locke, this makes them eligible to vote, be taxed, and be conscripted, and makes them ineligible to emigrate and may affect their eligibility to rebel in accordance with natural law. (I'm still not sure about the last; and I seem to be idiosyncratic in thinking that the terms of Locke's argument leave only express consenters eligible for taxation.) In the United States, native-born citizens are very unlikely to ever expressly consent. Immigrants swear an oath of citizenship, but native-born citizens do not. The oath taken upon joining the military might count, but it's insufficient to make a citizen out of a noncitizen (noncitizens may serve in the military), so maybe not. Except... Except that nearly every schoolchild in America, every one who doesn't make a spectacle of him or herself by conscientiously objecting, is expected every schoolday to pledge allegiance to the flag of the United States of America
And to the Republic for which it stands
One nation under God, indivisivible, with liberty and justice for all which is, really, an awful lot like an oath of loyalty and citizenship. It's a thicker oath than the formal citizenship oath, "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God." In particular, immigrants aren't required to swear that they consider the United States "indivisible" (still a controversial claim in the 1890s, when the pledge was written), that they consider it "one nation" (still a controversial claim even now), or that they understand there to be any particular relationship between the nation and God (though their oath itself is taken in God's name). Neither are immigrants expected to engage in the odd bit of iconolatry that is swearing allegiance to a flag, and only secondarily to the republic for which it stands. The substance of the Pledge is actually quite strange all around, making no mention of Constitution or laws, and elevating the concepts of flag and nation all out of proportion to their real importance in the American republic. It's a relic of both a nasty moment in American assimilationist and ethnic-nationalist ideology (the same moment that gave rise to the Blaine Amendments that are blocking school choice and that conservatives rightly perceive to be anti-Catholic anachronisms) and of a time when the Civil War remained in living memory. It was never a neutral statement of the patriotic values everyone ostensibly shared; it was a deeply partisan account of what those values were. Maybe too much under Locke's influence, I'm of the view that oaths of loyalty matter, that they are to be taken seriously, and that their content is to be taken seriously. The current defenders of "under God" seem to be saying simultaneously that the Pledge is a matter of utmost civic importance and that it's a bit of harmless ceremonial claptrap. "Ceremonial Deism" is the phrase the Supreme Court has used in the past about, e.g., the announcement "God Save this honorable court!" and the motto "In God We Trust;" such stuff is held not to violate the Establishment Clause more or less on the grounds that it doesn't matter very much. But there does seem to me something profoundly different between walking around with quarters in one's pocket that say "In God We Trust" and expecting millions of schoolchildren to swear an oath, every day, to "one nation, under God." I know, I know, the Plegde isn't in any legal sense an oath of citizenship or loyalty. But it had the form and words of such an oath. The primary reason why it's not such an oath is that it's spoken by children who are incapable of understanding and consenting to its terms. But that seems to me good grounds for objecting to the whole business. If the words spoken meant what they said, then they shouldn't be expected of children, and shouldn't have to be repeated over and over again. If they don't mean what they say, then they degrade language and the sense of solemnity that should accompany the swearing of loyalty oaths. If the words are serious, then they're inappropriate for the context (and 'under God' is a violation of the Establishment Clause). If the words are not serious-- and they're not, anymore-- if they're just mindless blather, then they demean something that shouldn't be demeaned. If we were to switch from the Pledge to a one-time citizenship oath sworn at age 18, I think-- I hope-- that the words wouldn't look much like the Pledge's words, and would look more like the extant citizenship oath, minus the passages about foreign princes and potentates. None of this decisively tells one way or the other about the constitutionality of "Under God." If the whole pledge is mindless blather, then "Under God" is ceremonial Deism and is constitutional. But it does seem to me that the defenders of the Pledge ought to commit as to whether they think the words are mindless blather or not; and that there's something deeply objectionable about the whole enterprise either way.
This post by Kieran at Crooked Timber on antitrust law and libertarianism leads to the following thoughts: The right way to look at antitrust law is not whether economic theory suggests that particular monopolies can and will exist that can, in theory, be corrected through government action, to the benefit of both consumer welfare and economic efficiency. Microsoft's browser may or may not be such a monopoly, I lack the expertise to judge. The real question is whether, once one establishes a regime of antitrust law, whether that regime is going to do more overall harm than good. Sure, the antitrust authorities may identify "real" monopolists here and there. But they will also likely misapply economic theory, or apply the wrong economic theory, sometimes, and break up "monopolists" that were economically efficient and serving consumer welfare. Various companies will try their darndest to persuade the antitrust authorities that their competitors are "monopolists" that should be reined in. Every time they are wrong and the authorities don't believe them, their lobbying efforts (and the contrary lobbying efforts of the alleged monopolist) are a deadweight lost. Every time they are wrong and the antitrust authorities do believe them, further damage is done to the economy (plus the dead weight lobbying losses). Moreover, there is no reason to assume that antitrust authorities will always be pursuing the common good. Antitrust enforcement, and antitrust law itself, will develop through political mechanisms, and the authorities will be sorely tempted to punish the enemies of their political allies and reward their friends. Demagogic politicians will order their governments to go after large companies for political gain, not for sound economic reasons. Much of American antitrust law for many years was based on no economic theory whatsoever, but on general mistrust of "bigness," a desire to protect mom and pop businesses from more efficient competition, and demagoguery starting with the American king of the genre, Teddy Roosevelt. And so on. The losses from antitrust law can be huge: the costs of rent-seeking and countering rent-seeking alone can dwarf any gains from good antitrust enforcement, and antitrust enforcement won't necessarily be good. The question, to this extent, is whether you would rather have market outcomes be governed by Wall Street or K Street. Meanwhile, the losses from monopoly are not likely to be huge. The monopolist sells at a monopoly price, and gains monopoly prices, but the product is still, after all, on the market. And the available monopoly rents should lead to competitors trying to break the monopoly. So, in my view at least, the libertarian case for not having antitrust law is not that the market is perfectly efficient, but that regulation is worse. I'd be content to leave antitrust law to price-fixing, as the Reagan Justice Department did, but that leaves the regulatory superstructure in place, to create further mischief in the future. So abolish the Antitrust Division, reduce the FTC's functions to interstate fraud, and give it jurisdiction over price-fixing, too. And then be content with the results with an imperfect market.
Clarke Updates:
Instapundit is doing a nice job keeping up with the problems with Dick Clarke's book and testimony here (and scroll up for more). I agree with Stuart that serious criticisms of the government's failure to detect and prevent the atrocity of 9/11 should be taken seriously. But many of the "serious allegations" turn entirely on Clarke's credibility which seems to be imploding based on his prior contradictory statements in a variety of fora. This is looking more and more like a partisan hit by a demoted career staffer who happens to be promoting a book smack dab in the middle of the presidential election season. And from my brief listen to the hearings while driving from Ann Arbor to Indianapolis yesterday, it seems like some Democratic commissioners are more interested in blasting Condie Rice for not testifying before them under oath and with bolstering the Clinton administration's handling of terrorism, than they are in the question which they were ostensibly convened to answer. But I must admit that the posturing made me turn off the hearings, and turn on some good driving music, sooner than I otherwise would so perhaps I had a skewed impression of the questioning.
Ayres-Baleoff Bait-and-Switch?
Updates to my Scalia plane ticket post are here. UPDATE: Air travel guru Gary Leff e-mails to note that Scalia's round-trip ticket most likely originated in New Orleans, and not D.C., because "forgoing the outbound and using the return portion of a ticket only . . . is generally NOT acceptable even in the case of medical emergency -- it used to be but no longer is. And lack of space available accomodations on Air Force 2 would never have qualified, though an airline through the influence of its government relations department could presumably have made an exception." Scalia's memo itself is unclear on this point. Leff also notes that whether Scalia violated an airline's tariff rules by purchasing a round-trip ticket but only using one leg -- called throw-away ticketing if he used the first half and tossed the second -- depends on what airline he flew. It's prohibited on some airlines, but not others.
Wednesday, March 24, 2004
Why Dismissals of Clarke's Allegations Are Particularly Disappointing:
We live in a partisan world, of course, and so it is no surprise when partisan Republicans attack Richard Clarke. But I find the attacks from Rush Limbaugh and other partisans particularly disappointing. For most aspects of economic and social policy, ordinary citizens have access to the same data as the decisionmakers (e.g., unemployment figures, or rates of marriage among teenagers, or whatever). So we feel, justifiably, that we can make some judgments on our own about the wisdom of economic and social policy choices. We may be overconfident about our abilities in this regard, but there are data for our judgments. So when a former official comes forward and makes claims about the real actions and motivations of decisionmakers (e.g., the Administration wanted to help/hurt the rich/poor, and took X actions to effectuate that goal), we can evaluate those claims. The actions will generally be a matter of public record, and we can probably make some educated guesses about the motivations. At the same time, most citizens will not bother to engage in any detailed evaluations. So it does not seem outlandish that a sophisticated commentator might decide that she will take the time to analyze the former official's claims and then present her conclusions to the world. Many pundits do not engage in such careful analysis, but the point is that there is a role for such analysis by commentators, even if in execution it does not live up to its promise. The situation is quite different for matters of national security. As every administration notes (e.g., the Bush Administration with respect to Iraq, the Clinton and Bush Administrations with respect to their actions against Al-Qaeda), much of the information that informs their decisions is classified. Their argument is that they cannot reveal this information, because that would compromise national security. This argument strikes me as legitimate (and as a former DOJ lawyer, how could I believe otherwise?), but it means that those outside a pretty small circle of government decisionmakers are in the dark about the data that inform Administration actions. Indeed, the rest of us often do not know what actions have been taken (because they are secret). This means that, when a former key member of the policymaking team comes forward with an account of actions taken and not taken, and of the underlying data available to the decisionmakers, very few people have any basis for evaluating that account. The only competent evaluators are other members of that small circle. This also means that, if two members of that circle disagree on a question of fact, the rest of us have little basis for choosing one account over the another unless they give us more information (i.e., the basis for their factual assertions). If former key official A says X, and current key official B says not-X, it is hard to justify accepting either X or not-X. We can try to assess their motivations -- maybe the former official has an axe to grind, maybe the current official wants to deflect blame and/or protect the President (and thus remain in power) -- but A) that assessment is unlikely to yield a clear winner, in terms of credibility, and B) it doesn't address the basic question of whether or not X is true. Ideally, both sides will put forward not only their factual assertions but also the basis for them, giving us more information on which to ground our own conclusions. What's particularly striking in the case of Richard Clarke, though, is that the Administration has not made much of an effort to tell the "not-X" story, much less given us a factual basis for believing the "not-X" story. By and large the Administration has not been contesting Clarke's factual assertions -- and some of their attempts in that regard have backfired (such as Hadley's suggestion to 60 Minutes that Bush did not meet with Clarke in the situation room on September 12, a meeting that has now been confirmed). We don't have X versus not-X, so much as X versus "X is not as it seems in context." And the Administration has given us little factual basis for believing even that story. The Administration's version may be the correct one, but those of us outside the small circle of policy makers have little basis for so concluding. In light of all the above, those outside that small circle who are seeking to dismiss Clarke's allegations seem to be on particularly weak ground. He has made very serious allegations and put forward the basis for them, and thus far the Administration has done little to rebut them. Indeed, as Brad DeLong ably catalogues, many of the Administration's responses contradict one another (in fact, many statements by the same Administration official are inconsistent). Until the Administration responds more directly to his allegations (and the basis for them), I can't see the basis on which some can dismiss them. Commentators' dismissals appear to be a matter of faith, not reason.
Flag colors:
So why do so few countries' flags have brown or orange on them? Are those just objectively, cross-culturally ugly or non-patriotism-inducing colors?
Polygamy and Gay Marriage:
Maggie Gallagher has a seriously confused piece in the Weekly Standard that starts off by suggesting the danger that gay marriage will lead to polygamous marriage. She even throws in an Islamic bugaboo, wondering how long it will take Islamic leaders to recognize that the U.S. is not serious about enforcing its marriage norms and demand an acceptance of Muslim polygamy. Yet, later in the same piece, she emphasizes that heterosexual marriage is deeply rooted in Christian and Jewish "not to mention" Muslim tradition. Well, polygamous marriage is deeply-rooted in Muslim tradition, and, for that matter, Mizrahi (Eastern, non-Ashkenazic) Jews practiced polygamy from Mosaic times until the middle of the twentieth century when the new State of Israel banned the practice; and Ashkenazic Jews only banned the practice in the Middle Ages under Christian pressure. So, by Ms. Gallagher's reasoning, gay marriage may be awful, but maybe polygamy isn't so bad. Then there's oddity of both citing Islam as a source of eternal wisdom for its views on heterosexual marriage and as an existential moral danger for its views on polygamy in the same piece. If the anti-gay marriage forces are going to win the day, they are going to have to do better than such incoherent claptrap. I'll blog more about this some other time, but how come no one seems to have written (UPDATE: except for this snide piece) about the fact that the legal accouterments of divorce--a unilateral breakup leads to alimony, equal division of assets, etc., don't seem to be at all appropriate for a typical gay male couple? (UPDATE: because, to give you a very brief preview, they are generally intended to protect a partner who has given up financial gain and human capital for family reasons, and that is generally women of childbearing age). UPDATE: Nate Oman has an interesting post on the federal effort to stamp out polygamous marriage among Mormons in the 19th century. It wasn't easy, and it wasn't entirely successful.
Bush's Worst Appellate Nominee:
I have been a big fan of President Bush's judicial nominations, especially to the appellate courts. By and large, President Bush has appointed extremely capable and distinguished attorneys to the appellate bench. Indeed, the lowest ABA rating of any of Bush's initial nominees was received by Roger Gregory, a Clinton appointee Bush renominated in a (failed) effort to build good will with Senate Democrats. While there is no question the majority of Bush nominees have been quite conservative in their judicial philosophy, I believe the vast majority of them will acquit themselves with dignity, display intellectual rigor in their opinions, and adhere to legal principle. Americans should be proud to have the likes of John Roberts, Michael McConnell, Jeffrey Sutton, Jay Bybee, and even William Pryor on the federal bench (even if the latter was given a recess appointment). Bush's nomination of William G. Myers III to the U.S. Court of Appeals for the Ninth Circuit does not measure up to the standard set by this administration with the bulk of its judicial appointments. While I have no doubt that Myers is a capable attorney, I do not believe that he is particularly well-suited to the federal bench. While serving as solicitor for the Bush Interior Department, Myers failed to distinguish himself in any meangiful way. To the contrary, he appeared to adopt knee-jerk policy positions with relatively little thought or consideration. In one case, he pushed through a doctrinaire and poorly reasoned interpretation of a Supreme Court case in which he was involved -- an interpretation which may have satisfied Myers' pro-grazing bias, but undercut the administration's efforts to adopt market-based reforms on public lands. Worse, at least in the context of Myers' judicial nomination, the legal opinion had to be subsequently "clarified" because Myers' initial interpretation was so poor. (The initial opinion, M-37008, is here. The clarification memo is here.) Although I do not accept the charges of some groups that Myers is anti-environmental -- one can be pro-environment and anti-federal regulation -- I agree he was a poor choice for the federal bench. As things stand, Myers nomination will likely be approved tomorrow by the Judiciary Committee on a 10-9 party-line vote. After that, he may well join the ranks of Bush's filibustered nominees. While I generally believe that the Senate should provide broad deference to a President's judicial nominations, I will shed no tears if this nomination goes down in flames.
Sheikh Yassin, Hero?
Can a Western newspaper really publish a fawning obituary of Sheikh Yassin without mentioning a single one of his innocent victims? The Guardian can. Thanks to Scott Burgess for the pointer.
Twelve Year Old (Update: Now Determined to be Fourteen Years Old) Suicide Bomber:
Ha'aretz reports: "Israel Defense Forces paratroopers caught a Palestinian boy, aged 12, wearing an explosive belt at the Hawara roadblock south of Nablus in the West Bank on Wednesday afternoon... The army believes that the boy was meant to detonate the belt near the soldiers or near the nearby army base." This is not an anomaly, but the final product of years of brainwashing in Palestinian schools and media, glorifying "shaheeds" and telling children that their greatest duty is to become shaheeds. This short video, well worth viewing, shows what Palestinian children are taught. Can Palestinian society become any sicker? Israel's security barrier can't be built soon enough. UPDATE: "Abdu told soldiers of his dream of receiving 70 virgins in heaven, which his dispatchers had promised him, and said that he had been tempted by the promise of sexual relations with the virgins. He said that he had been bullied at school for his poor academic performance and that he had wanted 'to be a hero.'" So much for the "myth" that suicide bombers are tempted with promises of seventy virgins. Also, indications are that the kid was borderline retarded. Real heroes those Tanzim "fighters" are, sending a slow fourteen year old to blow himself up!
Scalia's Real Ethical Lapse:
I believe Justice Scalia was correct not to recuse himself in the Energy Task Force case. His memo showed that many of the allegations were based on false premises. E.J. Dionne may believe that Scalia should recuse because of his close relationship to the administration (and his role in Bush v. Gore), fails to acknowledge -- let alone consider -- how such a policy would impact the Court. As Scalia noted, there have been many justices with close personal ties to the White House, and this has never been the basis for a recusal in a suit brought against a government official in his official capacity. Should Justice White have recused in cases involving RFK? I think not. (Nor, for the record, do I believe Justice Ginsburg should recuse in cases involving the NOW Legal Defense and Education Fund.) Nonetheless, as Ian Ayres and Barry Nalebuff point out, Scalia's memo does suggest that he purchased a round-trip plane ticket under false pretenses. They write in the NYT: He made a promise without any intention of fulfilling it. Justice Scalia is no doubt familiar with the legal term for such an act: it's called promissory fraud.
The airlines' policy may be annoying, inconvenient and customer-unfriendly. But they can legally insist that their passengers abide by it. And certainly a strict believer in the rule of law like Justice Scalia would agree. Then again, if a case about the airlines' pricing practices ever reaches the Supreme Court, maybe Justice Scalia should recuse himself. UPDATE: Several readers think the Ayres-Nalebuff argument is too cute by half. Even assuming that it would be wrong for Scalia to purchase a less-expensive round-trip ticket if he had no intention of using both legs -- and that a contract with such terms existed between the Justice and the airline, it's still not clear Scalia did anything wrong. Rabbi Mark Ankcorn writes: Scalia's memo specifically says he was invited by VP Cheney to fly with him on a "space available basis," which as anyone who's ever flown government (i.e. Military Airlift Command, among many others) knows means you can be bumped at any time up to the point where the wheels lift off from the ground. Given that his flight with the Vice President was not guaranteed and he wanted to have a vacation regardless of the Vice President's plans, he purchased a round-trip ticket to ensure that he would get there on time. Not using the first leg of a rt ticket because of unforeseen circumstances is specifically allowed by both policy and contract terms. As for the underlying issue, I believe it is perfectly acceptable for airlines to offer less-expensive round-trip tickets on the condition that the purchaser commit to flying round-trip. Although such a contract may be difficult, if not impossible, to enforce (other than by canceling the second leg of a trip if the first leg is unused, as some airlines do), an individual is morally bound to live up to the terms of such a contract into which they enter voluntarily. UPDATE: TMLutas and Contendem both note that Ayres and Nalebuff engage in a bit of bait-and-switch, by comparing the price of a restricted round-trip with an unrestriced one-way fare, the latter being far more expensive than a restricted one-way fare. More updates are up here.
Reader Defense of the President:
I received the following thoughtful response from a reader, an American now living in Europe: I agree with you that the President should be more forthright, but this almost never happens when in the midst of a war.
I have been doing research into WWII and when the Germans launched the offensive that became the Battle of the Bulge, the Americans were simply stunned [Think TET Offensive circa 1944]. There was quite a bit of criticism of the government that it should have known better, but the Roosevelt administration simply stonewalled and shut down opposition that was too loud. Roosevelt gets no flak for this because we were in an important war. Furthermore, the NY Times in 1945 began investigating the failed Sherman tank for its inadequacy and the government stonewalled on
that as well, despite the correct charge that thousands died because of this mistake.
The problem is that today, most on the left deny there's a war going on. So any failure is picked apart. In my view it
doesn't' matter how savvy the Prez is (and he isn't very media savvy) the Left just keeps pushing until anything sticks. In this environment something always will. If it's not the 911 probe, it's something else.
Heck, here in Europe the attack on Madrid is seen as refuting Bush, though I don't see how that is possible. Think about it, we won the war quickly, humanely and have done a great job of helping Iraq move to a stable democracy. The worst thing is that there were no WMDs. In a different world people would sigh with relief. Here it's GOTCHA.
You know the Manhattan Project was started because we feared the Germans had the bomb. It turns out they were no where near to getting it. I don't see anyone who bitched about that. Anyway, keep on writing. I generally concur with this writer--especially in his assertion that there is a divide between those who think we have been in a state of war since 9/11 and those who do not think we have been at war since then--but I still think that, in this media age, when asserting a controversial doctrine of preemption--which is necessarily based on intelligence of present capability and future intentions--when the capability turns out not to be as predicted, the President or someone in his administration should make some effort to explain why everyone was fooled by the intelligence. I myself am willing to give this President the benefit of the doubt on this question--WMDs played only a partial role in why I thought and still think the war was legal, justified, and good policy--but this country is deeply divided politically and this political situation needs to be factored into any war strategy. Initially, and perhaps even still, many would accept a credible explanation for why no explanation can be made at this time. Of course, no explanation will satisfy the most intense of Bush haters--especially those who cannot distinguish between the concept of a mistake and the concept of a lie--but some sort of explanation would be of great assistance to those who support the war or those who may not know what to think about it.
Justice Harlan's Libertarian Dissent in Plessy v. Ferguson:
I've recently reread Plessy v. Ferguson, and I was struck by some very libertarian language in the opinion that is almost always edited out of it by casebook editors: It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. 'Personal liberty,' it has been well said, 'consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law.' If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each. Thus, while Harlan was very eloquent in his denunciation of the racist aspects the train segregation law at issue in Plessy, he was well aware that segregation was imposed by the state, contrary to market forces, on unwilling blacks, some unwilling whites, a larger number of indifferent whites, and, for that matter, an unwilling train company. Indeed, Harlan thought that it was the law's infringement on personal liberty that was its fundamental constitutional flaw. Modern liberal scholars have been tempted to portray Harlan as an earlier incarnation of Earl Warren or William Brennan, implicitly on the theory that race liberals are always and must always have been liberals on all other issues. Harlan, it should be noted, was not always liberal on race--he was virulently anti-Chinese. But his jurisprudence does not fit well into modern liberal-conservative categories. He was a liberal on civil rights, a nationalist on economic issues, including the scope of the commerce clause, a strong believer in, and proponent of, natural rights theory, a moderate supporter of liberty of contract ( Adair v. United States), and a sufficiently strong opponent of "class legislation" that he actually wrote an opinion invalidated an anti-railroad law that drew a dissent from the most libertarian Justice on the Court, David Brewer ( Atchison, T. & S. F. R. Co. v. Matthews, 174 U.S. 96 (1899).) In any event, it's worth noting for much of American history, it's hard to find a strong correlation between racial views and views on statism versus libertarianism. The Supreme Court itself provides handy examples. The two strongest libertarians on the Court around the turn of the century, Brewer and Peckham, were also the most sympathetic to the Chinese, and Brewer, for his day, was also reasonably sympathetic with African Americans, especially in his private life. Holmes, who claimed to like laissez-faire but almost always voted for statism, had an appalling record on civil rights issues. But then again, Justice James McReynolds, a southerner and one of the leaders of the Court's libertarian wing in the 1920s and 30s, was a horrible racist and anti-Semite. On the other hand, McReynolds wrote an opinion protecting the rights of Japanese parents in Hawaii to teach their children in Japanese language schools. And so on.
Oregon county bans all marriage:
Not a joke, read here. The bottom line?: "As of Wednesday, officials in the county of 79,000 people will begin telling couples applying for licenses to go elsewhere until the gay marriage debate is settled. "It may seem odd," Benton County Commissioner Linda Modrell told Reuters in a telephone interview, but "we need to treat everyone in our county equally.""
More on The Grey Album:
See my post from yesterday. Ernest Miller writes: "Educated Guesswork has an insightful response to the ongoing Grey Album controversy (Infringing mixes). The proposal is that rather than distribute the fully remixed version of the Beatle's White Album with Jay-Z's Black Album, one could distribute the mechanical instructions for remixing the albums: a remix recipe if you will. Those interested in the Grey Album would have to have access to both the White Album and Black Album in order to make use of the recipe, but the traditional elements of copyright would not be implicated in such a scheme. I believe that this is a brilliant model for our rip-mix-burn culture.
Of course, despite the fact that the traditional elements of copyright are not implicated, copyright holders do not like this vision of the remixed future. Indeed, that is one of the major issues in question in the ongoing "Clean Flicks" case involving similar technology used with DVDs. I say, let a thousand edits bloom, let us hurry the future of digital annotations." The full post offers useful links as well. It is debated how easy software can make this home remixing. For relevant links, click here, here, and here. Personally, I would like instructions for remixing Doris Day and Jamaican dancehall music.
Don't ask, don't tell?
"The number of gays dismissed from the military under the Pentagon's "don't ask, don't tell" policy has dropped to its lowest level in nine years as U.S. forces fought in Afghanistan and Iraq, according to a report by an advocacy group.
The military discharged 787 gay men and lesbians last year, according to the Servicemembers Legal Defense Network. It attributed the decline to the importance of U.S. operations in Afghanistan and Iraq.
The figure marks a 17 percent decrease from 2002 and a 39 percent drop from 2001, just before the conflicts began in Afghanistan and Iraq.
"You have to ask yourself, and you have to ask the Pentagon, why are the discharges going down?" said C. Dixon Osburn, executive director of the advocacy group and one of the report's authors. "When they need people, they keep them. When they don't, they implement their policy of discrimination with greater force."" Here is the full story. I'm all for a lower level of dismissals, but let's drop the hypocrisy. Examples such as this show that banning gays from the military conflicts with national security objectives. Is there any doubt what our priority should be?
Andrew Sullivan: 3/11--Europe's Second Munich?
In case you missed this essay by Andrew Sullivan in the Sunday Times of London, it is very long and very good. Read it from the beginning, but here is how it ends: It should be conceded immediately that the United States has been neither perfect in its conduct of the war nor innocent in its long history of engagement with the Middle East. Looking back with the advantage of hindsight, you could well argue that the U.S. committed too few troops to Afghanistan, misjudged the nuclear shenanigans in Pakistan, woefully under-estimated the security needs in post-war Iraq, and failed to mount as aggressive a diplomatic offensive in the months before the Iraq war as was necessary. It would also be hard to find characters more likely to rub Europeans up the wrong way than George Bush and Donald Rumsfeld. So let's concede all that. Let's concede also that almost every Western government misread the intelligence on Saddam's weapons of mass destruction. The deeper point is still this: even if you concede all this, the Islamist war against the West was not created by these mistakes. It existed and grew in strength and potency throughout the 1990s. it draws its roots from the Egyptian Brotherhood in the 1970s and 1980s. It is quite candid in its goals: expulsion of all infidels from Islamic lands, the subjugation of political pluralism to fascistic theocracy, the elimination of all Jews anywhere, the enslavement of women, the murder of homosexuals, and the expansion of a new Islamic realm up to and beyond the medieval boundaries of Islam's golden past. Bin Laden spoke of reclaiming Andalusia in Spain long before George W. Bush was even president. He was building terror camps and seeking weapons of mass destruction while Bill Clinton was in the White House. Blaming the policeman for exposing and punishing the criminal may feel good temporarily. But it is a fool's errand.
And the result of the counter-attack by the West - for all its mistakes - is a real, if still fragile, advance in Afghanistan and Iraq. I'm sorry, Mr Zapatero, but the liberation of millions from two of the most brutal police states in history is not now and never could be described as "a disaster." Even to utter that sentiment is to have lost even the faintest sense of moral bearings. And it is in absolutely no-one's interest either in Europe or America to see those two devastated countries implode or their fledgling democracies fail. Withdrawal from either place now would be catastrophic not just for those countries but for the momentum and power it would give those forces that now seek to destroy the West and any semblance of freedom in the Middle East. For Americans and Europeans to bicker among themselves about the past when their shared and mutual future hangs in the balance is close to suicidal.
We are in danger of missing the most important fact in front of us. It's a fact that, to his credit, Tony Blair has long grasped and still refuses to abandon. That fact is that we are at war. Local terrorism by itself, rooted in territorial or ethnic grievances, might be perceived as something less than a war. But global terrorism, fueled by a unifying Islamist ideology, and potentially armed with weapons more powerful than anything used by terrorists before, is a far more formidable foe. Appeasing this force will strengthen it; blaming allies because they have dared to confront it is simply to play into the hands of the enemy. To say so is not McCarthyite, as some have claimed. In free societies, free people should be able to differ about this with no consequences at all, just as the electorate in Spain should be perfectly free to exercise its democratic choice. That freedom of thought and discussion is what we are defending, after all. But that does not mean that that choice to appease or avoid is not a disastrous and potentially fatal one. What happened last week in Spain was easily the gravest event since al Qaeda struck the streets of New York. It's a portent of catastrophe for Europe. And only Europe, in the last resort, will be able to reverse it.
Tuesday, March 23, 2004
Religious charities, government aid, and more:
Mirror of Justice has some great posts on religious charities and the strings that may come attached with government aid, the Catholic Charities case, Catholic lawyers and the Church scandal, and more -- much worth reading.
Gotta Give Bush Lots of Credit for This One:
"Any country has the right to defend itself from terror. Israel has the right to defend herself from terror. And as she does so, I hope she keeps consequences in mind as to how to make sure we stay on the path to peace," Bush said in his first public comment on Monday's assassination of Hamas leader Ahmed Yassin. From Reuters, via Little Green Footballs. Reuters, by the way, can't seem to help itself, and blatantly editorializes in the midst of its news story: "Yassin's killing was a major setback to the U.S. 'road map' to Middle East peace, already mired in tit-for-tat violence." I don't recall anything in the road map that required Israel to sit back and allow its citizens to be murdered by Hamas, as happened last week in Ashdod. And the idea that the roadmap itself is worth anything so long as Arafat--who didn't hesitate to praise Yassin as a martyr who is on his way to heaven--remains in control of the Palestinian security services is a joke, and a pretense that the Bush Administration itself doesn't entertain.
Notre Dame Speech Postponed!
What with coordinating over 40 speaking dates, I suppose a screw up was bound to happen. Due to an understandable miscommunication, both the Michigan and Notre Dame Federalist Society chapters scheduled my talk for tomorrow, Wednesday, March 24th. I am very grateful that faculty commentator Patricia Bellia and the Notre Dame Federalists agreed to reschedule my talk for Thursday, April 15th (exact time to be announced). So I will be speaking tomorrow, Wednesday at the University of Michigan law school at noon as originally announced. Professor Don Herzog will comment. On Thursday, I will be at IU Bloomington, and on Friday at St. Louis University. My apologies to anyone who was planning to attend tomorrow at Notre Dame.
USA Today Scandal Update: This Salon story about Kelley's fabrications is headlined, "Bloodthirsty Arabs, Vigilante Jews," but no bloodthirsty Arabs appearing in any of Kelley's stories are actually noted by the author. Rather, the story talks about a fabricated Pakistani child who wants to blow up the World Trade Center (Pakistanis are not, of course, Arabs; surely Salon headline writers know this?), and the possibility that Kelly fabricated having witnessed a Palestinian ambulance carrying weaponry--a practice for which there is ample alternative documentation. My previous post on Kelley can be found here.
The Administration's Costly Mistake:
I had planned to blog about this over the weekend, but got side tracked. In light of the controversy over Clarke's accusations and especially the administration's response--and the discussion of it by my fellow Conspirators--I think Andrew Sullivan is on the right track. Though he is writing in the context of WMD's it applies here as well: A considerable number of Americans -- including many in the pro-war camp -- believe this administration has not been forthright enough about the reasons for the intelligence failure. What the president should have done, in my view, was give a talk to the American people a few months ago, tell them exactly what we had and hadn't found, and explain that, although some of the intelligence turned out to be flawed, he still took the right decision in the circumstances. Bush made too much of the WMDs before the war as a casus belli not to confront this issue directly when it emerged we were wrong. Instead, he acted defensively. He first denied there was a problem, then he dismissed the problem, then he justified his actions regardless, without taking full responsibility for the errors. In a word, it made him look insecure and weak. Yes, there was a risk in fussing up directly to an intelligence failure. But it turns out that the risk of simply ducking and spinning was greater. The reason he has lost standing is because insecurity is not something people look for in a war leader. There were many times that Churchill had to tell Britons of mistakes or failures or difficulties. When confronted with errors of the kind that Bush's intelligence made in Iraq, a good war leader steps up to the plate. When asked about the lack of stockpiles of WMDs as opposed to evidence of possible WMD programs, such a leader doesn't irritatedly respond, "What's the difference?" Part of the Aznar lesson is that people don't like being bamboozled. If Bush doesn't learn that soon, he may learn it the hard way in November.(my bold) (John Stewart made much the same observation of the administration at his Boston concert last Saturday night--though he was much funnier.) Bush (or someone) needed to explain exactly what made them think Iraq had WMDs. Some have speculated that it was electronic surveillance of inter-Iraqi discussion of WMD's that was either disinformation or deliberate misleading by or of Saddam. But this is mere speculation. The administration actually knows what happened and needed to explain it. Even if sources and methods are somewhat compromised, this is far better than compromising political support for the entire mission. The American people would understand a good faith reliance on bad intelligence, but it would be much easier if they had some idea of the nature of the bad intelligence that led to inaccurate conclusions. Part of this is simply the price one pays for an inarticulate President. I vehemently reject the equation of articulateness with intelligence. But inarticulateness can be a serious liability when nuanced explanations from the Commander-in-Chief are required. But I do not, however, believe that inarticulateness is the whole problem. I know not the cause, only the effect. And the effect is as Andrew Sullivan describes: The Bush team, the President himself, does not address serious questions raised about its conduct in a completely careful and serious manner. Bush's falling approval numbers, as well as his falling trustworthy numbers, are in large measure a product of the primary season in which he was the object of unrelenting attacks ("Bush lied!"). But an even larger part of the problem lies at the doorstep of the administration itself. For these charges would not have been nearly as effective if the President and his team had more effectively confronted and accounted for their own obvious errors.
I'm no expert...
On the ins and outs of counterterrorism policy, or the national security and intelligence bureaucracy more generally. Dan Drezner is much closer to being such an expert. When I walked into his office and said, "So what should we think about Clarke?" he replied that he was writing his blog post at that very moment. So, does Clarke have a personal incentive to stick it to this administration? Absolutely. Does he know what he's talking about? Absolutely. Can what he says can be ignored? Absolutely not. There's much more. I have to say that the administration's responses are making Clarke look more and more credible all the time. See lots from Josh Marshall, and this roundup from Ryan Lizza. Particularly damaging is Dick Cheney arguing that Clarke doesn't know what he's talking about because the Bush administration moved him off al-Qaeda duty and onto cyberterrorism-- which did take place, but a month after 9/11. Everything Clarke says about the White House in the months before and days immediately after 9/11 can be true without substantially impugning either the post-9/11 counterterrorism policy or the war in Iraq. What his account does necessarily impugn is the judgment and decision-making abilities of the administration principals. In particular, it bears out the charge Matt Yglesias has been making since before the Clarke story debuted: that the administration's security principals were so state-centric in their focus that it impaired their ability to understand the magnitude of the al-Qaeda threat. (See here, here, here, and here.) It's not as though I knew what Matt charges Rice and Rumsfeld didn't know in 2000-01-- that non-state terrorists were a or the central threat to American national security. But it seems like Clarke did know that, and tried to communicate it-- and it seems he met an excess of resistance from officials who were state-centric in general and Iraq-centric in particular. As Dan also points out, It's worth remembering that every new administration needs about six months to work out the foreign policy kinks -- flash back to the Clinton team's firxt six months if you think this is a recent problem. To claim that they were slow to move on Al Qaeda misses the point -- unless it was a campaign issue, every new administration is slow to move on every policy dimension.
Furthermore, as the Washington Post reports, in the end the administration did get this one right, in the form of a September 10, 2001 deputies meeting that agreed upon a three-part, three-year strategy to eject Al Qaeda from Afghanistan. For all of Clarke's accusations about the Bush team's neglect, it's hard to see how things would have changed if this decision had been made a few months earlier. Post-9/11, for all of Clarke's claims about intimidation to show Iraq caused 9/11, the policy outcome was that we ejected the Taliban from Afghanistan. Iraq was put on the back burner. I'm someone who's been less than thrilled with Bush's management of foreign policy. Some of what Clarke says disturbs me, particularly about homeland security. But for this case, it does look like the system worked.
The best thing for this administration is to say in response to Clarke would be: "Yes, if we could turn back time, we'd have given AQ more consideration. But it probably would not have prevented 9/11. And don't claim that we could solve a problem in eight months that the last team -- in which Clarke was the lead on this policy front -- couldn't solve over eight years." Clarke's account doesn't affect the underlying argument for going into Iraq; it doesn't affect the evaluation of the Afghan campaign; and it might not mean that anything was left undone pre-9/11 that one could have known should have been done. But it does affect how we should view the judgment, the competence, and the trustworthiness of the administration pursuing those policies.
Black + White = Grey:
Surely you know the Beatles's White Album, and rapper Jay-Z did the Black Album. One enterprising producer (Brian Burton) mixed the two together, using creative sampling techniques. He came up with The Grey Album, which drew legal opposition from The Beatles. Imagine rap beats, riffs and lyrics with White Album instrumentals and vocal snippets in the background. This article provides the best survey of the debate I have seen so far. The case for allowing such remixes?: "...the law gives copyright owners too much control, in part because getting permission to sample an existing work is rarely as simple as one artist call |