November 30, 2009

Who Dat Gonna Beat Dem Saints?

Looking at the results of what should have been the toughest game on New Orleans' schedule, my guess would be no one, at least not in the regular season.  (Congratulations to Drew Brees for throwing a statistically perfect game, only the twenty-sixth quarterback to do so since 1980.)  Their remaining five games are at Washington (3-8); at Atlanta (6-5); home versus Dallas (8-3); home versus Tampa Bay (1-10); and finishing at Carolina (4-7).  No game is easy in the NFL but only Dallas looks like it will even be a challenge for them.  It seems a foregone conclusion that they will play Minnesota in the NFC championship game and, I guess, Indianapolis in the Super-Big Game At The End Of The Season(r).

Don't Rush To Judgment On Huckabee's Pardon

I’m not entirely sure Mike Huckabee can be blamed for the apparently-continued criminal activities of Maurice Clemons, who allegedly shot four police officers in Washington State to death over the weekend. To be sure, then-Governor Huckabee granted clemency to Clemons, who at the time was serving a 95-year sentence in an Arkansas prison. But we can’t reconstruct Clemons’ file now, whether he and his lawyers were able to put together enough evidence and argument such that Governor Huckabee might reasonably have thought that Clemons did not represent a continuing threat to society or even that he might have been rehabilitated from his former crimes.

Chief executives are given the power to pardon, commute, or otherwise excuse judicial punishments for a multitude of very good reasons, including a situation in which the black-letter law imposes an unjustly long or harsh punishment or when a prisoner demonstrates that clemency is called for. I’m not saying that was necessarily the case for Clemons, but it might have been. In Clemons’ case, it wasn’t just Huckabee who thought he should be let go, either -- a parole board independently reached the same conclusion, as Huckabee points out on his own PAC's website, although his press release does not admit of Huckabee being involved at all.

Obviously, Clemons’ crime in Washington is dreadful and terrifying. Our hearts should go out to the families of the slain officers. Assuming Clemons is guilty (and there is every reason to think he is), he deserves and will surely receive the harshest punishment that Washington State can mete out under its laws -- I don’t know offhand whether Washington has capital punishment or not.

It's easy to criticize the decision based on the results.  And fairly or not, right-wingers are using this opportunity to demonstrate that they can criticize one of their own, putting a damper on the presumed Presidential ambitions of Huckabee in 2012.  But the political question ought to be whether Huckabee exercised bad judgment in letting Clemons go based on the information available to him at the time, and that’s not such an easy decision to have made prospectively. And Clemons was out on bail from Washington State, where he also had a record and charges were pending against him there. After all, no one is pointing any fingers at the Washington judge who authorized bail in his case; bail can be denied entirely if there are good reasons to think the defendant will commit other crimes if freed.

UPDATE:  It's been pointed out to me that what Huckabee did was to commute Clemons' sentence, not to pardon him. The commutation rendered Clemons eligible for parole - and then the parole board, acting separately from Huckabee, went ahead and paroled him. That's not a pardon, although at this point that's a purely academic distinction.

Never-Ending War Tax

Representative David Obey has proposed a “war tax” in the Share Our Sacrifice Act.  This is, I presume, a progressive's idea of fiscal responsibility.  Most families would pay an additional 1% of their net income as a surtax to their 1040 form income taxes, with exemptions for families with an immediate member of the household who actually served in Iraq or Afghanistan since the 2001 attacks, or who lost an immediate relative in either the attacks or in military operations in one of those two theaters.  Progressively higher surtaxes would kick in for families with below-the-line income of over $150,000.

I am in favor of supporting America’s war efforts, and I am in support of deficit reduction. But Obey’s proposal is not a good idea, either from the standpoint of the war effort, or from the standpoint of deficit reduction.  But I will nevertheless indulge in a pluck at low-hanging fruit here, and point out why this is a bad idea.

This “war” is unlike any “war” we’ve ever been involved in. We are “at war” with… what or whom? Al-Qaeda? Islamo-facism? Terrorism? Terrorism is a tactic; al-Qaeda is a network of terrorists with vaguely similar sorts of political agendas; Islamo-fascism is an (ill-defined) ideology which we are prepared to tolerate in an ally (read: Egypt, the House of Saud) while still using as a rallying cry against our enemies (read: Iran, al-Qaeda). These are not things that we can be “at war” against, at least not in the traditional meaning of a war in that there is no organized political, national, or military opponent against which we can deploy our military.

I’ve previously floated the idea that maybe we were at war with the nascent Caliphate of Osama bin Laden, which would be one of the first times I can think of in history that one nation went to war not to a) displace the government of a hostile nation-state, b) suppress a rebellion against its own government, or c) conquer geographic territory but rather to prevent a nation-state from being created. Perhaps Muslim resistance to the Frankish Crusades would count as another such effort to prevent the creation of a new nation-state (they failed and had to wait 200 years and several internal political realignments to reconquer that territory), and maybe the Boer War would count for that, too.

Maybe U.S. military efforts to capture Pancho Villa, who had political aspirations above his banditry, are the most similar to what we’re doing now. Those actions were on both sides of the Rio Grande and we didn’t exactly have permission of the Mexican government to conduct military activities within their borders, although the Mexicans were hardly in a position to object. But that was all over relatively quickly.

We were at war with Iraq and Afghanistan -- we displaced the governments of the Taliban and Saddam Hussein and replaced them with governments friendlier to us. We occupied those nations militarily after succeeding in those efforts, and an insurgency against our puppet governments bred underneath us. So now, we’re supporting those governments from insurgents who would topple them. So what we are doing now is not war, it’s something else, something which lacks a concise moniker. Let’s call it “nation-building.” Our record at doing this sort of thing isn’t all that great, but that doesn’t mean this is necessarily a bad thing to do or that we can’t succeed. The nations we are building in Afghanistan and Iraq are significantly friendlier to us than those which preceded them and we will be better-off strategically if they succeed enough to the point that they can defend themselves (but not if they grow so powerful they become regional powers in their own right).

So the “war” that Obey wants us all to pay a supplemental tax on is a chimera, not a “war” in the true sense of the word, the sense meant by the Constitution when it gives Congress the power to declare war and the President the power to make war. This “war” will never really be over until and unless we decide it is. We get to decide when Iraq and Afghanistan are strong enough to stand or fall without our involvement. And they probably never will be as long as anyone still lives who reads this post on the date of its publication -- at least, I predict that no one alive today will ever again see a day when there are not active-duty U.S. military forces deployed to Iraq in significant numbers. I’m not so confident about making such a prediction in Afghanistan, a nation with little strategic significance and few natural resources.

Congressman Obey is one of the most liberal members of Congress* and so he is hoping, I suspect, to make the public groan under the pressure of this tax and demand that the “war” come to an end so the tax will end also. He is deceiving himself, and in the process, unwittingly proposing a deception on the American people -- because even if this were an honest “war” tax, the “war” will never really end and therefore it will become a permanent tax. 

If Congressman Obey thinks the American people are undertaxed, let him say so.  If he thinks that we must raise taxes to solve our governmental deficit, let him say so.  A credible, non-frivolous argument can be made to support such a claim.  Myself, I'd prefer to see some cuts in government spending, but David Obey never saw a non-military spending cut he didn't detest with the same sort of virulent hatred which normal people would reserve for pederasts.  And if I'm going to be made to pay more taxes, I want to see the government being more responsible with that money than it has proven to be.  Giving a government run by the likes of Obey more money strikes me as about as wise as giving a packet of matches to a developmentally-handicapped child who is already playing with gasoline.

*  Wisconsin is a weird place -- you can represent an almost completely rural district, like Obey does, and still be so ultra-liberal guys like Michael Moore tell you, "Whoa, dude, dial it back a little bit."

November 29, 2009

Weekend Weirdness, Volume VII

Yeah, I pretty much took off the weekend, except to talk about food.  But I wasn't going to leave you without your weirdness.  100% apolitical this weekend.

Consider, for example, the transvestite (female dressing as male) jazz musician who over the course of 54 years fooled at least two wives and three girlfriends in bed, one of whom thought she had been impregnated by her husband.

A better bar bet than "Albuquerque."  Home of the Indians!

Having trouble with your take-aways?  Call 911!

More zombies.  Like cowbell, you can never have too many zombies.

If you don't like your creepiness urban and English-speaking, may I suggest a visit to La Isla de la Munecas?

Stop.  Hammertime!

Good design isn't just for cheese-eaters any more -- it's a national security issue.  The "eye watching you" is not a "really comforting feeling," by the way.

Finally, one guy figured out yet another way to piss off his annoying neighbors.

November 26, 2009

Food Tips For The Holiday

Tip #1: If you're just having a few people for your Thanksgiving, you only need a turkey breast or a small ham. I used a 7-pound turkey breast and when I got it home, it was frozen solid and in a mesh bag -- you could have killed a man with that thing. After cooking, we're going to get probably 20,000 calories and five pound of meat off of this guy. That's plenty.

Tip #2: Start your bird at about 450 degrees and after about ten minutes, drop the temperature in your oven to 350. This sears the outside but still cooks the bird slow. Give yourself 20 minutes of roasting for every pound of bird, including bone and stuffing, that you've got in there. Then, give yourself an extra hour for basting and checking on internal temperature. Don't pull the bird from the oven to rest until the meat temperature close to the bone is 160 degrees. Use a probe thermometer to get there.

Tip #3: Drape your bird in bacon. Oh, yeah. Actually, this is a good suggestion -- turkey is naturally a relatively lean and dry meat and the bacon adds fat (as well as smoky, bacony flavor) and therefore moisture. If you do it right, your turkey will fall be so tender and moist it will fall apart when you use harsh language at it.

Tip #4: Use your pan drippings in the gravy. Mix it with chicken stock (or turkey stock if you can get it) and flour. Mix the stock and flour first, while the stock is cold, and then add only small amounts of flour to thicken until you get the consistency you want in your gravy because some like it thick and some like it thin.

Tip #5: If at all possible, try to have one chef in charge of the cooking and everyone else is "helping out" -- which means they are acting under the direction of the chef. "Chef" means "chief" and cooking is not a democracy. Further to that end, do try to avoid having your wife get into a rivalry with the wife of the other couple you're sharing Thanksgiving with about how and where things are going to be done. The Revolutionary Government in France was run by Committee after the Revolution, and things didn't work out so well. One chef per meal, please.

Tip #6: You don't have to wait until the food is served to break out the alcohol. Unless your family has a propensity to domestic violence, in which case I suggest no booze at all. But if you're dealing with a lot of unnecessary social tension, a martini while the bird is roasting really takes the edge off.

Happy Thanksgiving.

Plymouth, Massachusetts Bay Colony, 1620

I can feel confident that everyone reading this has one thing in common: internet access. That means that everyone reading this also has at least access to a computer. This means that everyone reading this possesses at least sufficient affluence to be able to access this blog in the electronic medium which is the sole manner of its publication. That means that if you are reading this, you are not destitute and you likely possess sufficient material wealth to not be hungry.

So on this day of thanksgiving (in the United States at least, although Readers from beyond the U.S. are of course welcome here) take a moment to consider what things were like back in the day. The pilgrims landed on what is today Cape Cod, Massachusetts, in the late summer of 1620. Nearly 400 years ago, this was (to them) wilderness territory, overgrown with a forbidding forest and little available foodstuffs. The legend goes that they made friends with the Indians and shared a multicultural feast.

If such a thing ever actually happened, we have no real record of it. What we have are records that the Puritans who came to America to seek religious and functional political liberty planted some quick-growing vegetables like cabbage, cucumbers, and carrots, learned how to hunt local game like deer and quail, and fished. The first Thanskgiving, if such a thing occurred, was really the first harvest of quick-growing winter vegetables, whatever forage could be found, and if they were lucky, the Puritans found some venison and smoked cod (which were then plentiful in the waters off New England; sadly, cod have been overfished and are now tightly controlled so they do not go extinct in the face of voracious humans who find them delicious).

The local Indian population might not yet have figured out why so many of their children and elders were getting sick. But the cause was the trades for seemingly high quality blankets and clothing they had made with the recent European arrivals. They could not have had a clue that all of those blankets were infiltrated with the variola major virus, which would cause them to all contract smallpox. Their European trading partners were all either smallpox survivors or had become environmentally inoculated to the virus because of its pervasive presence throughout urban Western Europe.

Whether the Puritans traded the blankets to the Indians knowing that they were engaged in what today would be called biological warfare or not is questionable, but it doesn't matter. The arrival of the Europeans was, by all accounts, an existential disaster for the people who were already here. For my part, I choose to believe that most of the European settlers didn't really know that they were trading death to the people with whom they dealt, because of course they didn't know about germs or how disease spread; they unconsciously cloaked their ignorance in religion and concluded that God must have somehow disapproved of these people -- perhaps because having heard the word of the Lord from their new neighbors, they chose to keep to their old ways.

We can't help the tragedy that struck those people. At the same time, as you sit in relative affluence and (I hope) health, give a thought the European colonists too. I will suggest to you that for the most part, these were good people, who had sincere beliefs and a desire to do good. They also had been driven from both their homeland and their temporary place of exile in the Netherlands by a desire to live their lives in a way that they thought was better than what they could get in the ancien regime. They were willing to brave a very hazardous and long crossing of the Atlantic Ocean, possible starvation, the daunting task of building homes out of the wilderness, and being away from friends and family, to pursue the dream of liberty. And in doing this, they brought their way of life with them, a way of life which remains fundamental to our society. They were brave, hardworking, and good people, and while we may criticize some things about them now, we do so from the comfort of our computer screens and from within the affluent, comfortable society that they built in much more difficult circumstances than we can even imagine. They deserve our honor and respect today, because in a very real way, what we have to be thankful for is the product of their labor and investment in the future.

November 25, 2009

Deferred Success

Sometimes it's hard to tell parody from what it's parodying. Take this for instance:

Now, I found this on comedy site   That's a good place to go to see things like people not setting their parking brakes, teenagers running out of talentcriminally bad parental priority-setting, and other sorts of cruel humor.  Almost always good for a laugh.

But there is a good purpose to using a harsh word like "fail."  Some people are simply too dense to understand that being told that your efforts have resulted in "deferred success" means that you haven't succeeded.  To be sure, kids especially will experience a visceral emotional reaction when they are told that they have failed, that their performance is unacceptable.  But how else are they going to know they need to do better next time?

While I can't be sure this isn't a joke about this sort of thing rather than the actual subject of such a joke, it's simply too realistic for me to dismiss it as parody.  But parody is a very good way to demonstrate the problem here:

A doctor who told her patients that they are in a state of "deferred health" would be talking nonsense and potentially putting her patient's lives at risk.  "You are ill," the doctor should say, "and here's how you get better."

A professional athlete who does not win a game has not "deferred victory." He has "lost."

Similarly, a lawyer does not tell her client that the judge has "deferred awarding you a favorable ruling." A lawyer defending an accused rapist with the claim that her client merely "deferred obtaining consent for sex" probably ought not to be in that line of work.

An accountant ought not advise his client that "You are experiencing a state of deferred profits" or it seems that you have deferred responding to a tax liability."  Sadly, this is exactly the sort of language that some accountants do use when breaking that bad news.  The clients need to hear, in plain English, what they need to do.  Just say it:  "You are operating at a loss."  "You owe taxes."  Good accountants break the bad news to their clients straight.

 Of course telling someone they've failed produces an unpleasant emotional reaction; that is the point.  That's how you get someone's attention.  "This isn't good enough."  I get that response sometimes too -- from judges, from clients,* from my employers, from my wife.  I don't like it, especially from my wife.  But without it, I don't know that where I'm going is not where I'm expected to be.  With it, I'm alerted to the fact that I need to straighten up my act and do better.  Learning to accept acknowledge and correct one's own shortcomings is a function of being a mature adult.

I'm also aware from my own experiences as an employer, and as a teacher, that delivering a message of failure is unpleasant.  I work on underperforming students ten times as much as I do on the ones who meet or exceed expectations.  I dread addressing the angst of students who think they have performed well when in fact they did not.  Combine that with grade inflation, in which there are only two grades, "A" and everything else, and then I need to deal with failure-angst coming from students whose performance is acceptable as well, and you've got the real down side of teaching.  But at the end of the day, particularly at a collegiate level, students have to own their own educations, and while I work hard to give the underperforming students ways to do that, the most valuable tool in my arsenal to get them to perform well is the ability to tell them that they haven't performed well.

When a teacher calls a student's performance a "deferred success," the student will not hear the word "deferred" but only hear the word "success," and combined with removing the emotional sting of the word "failure" from the response, this is a sure-fire recipe for additional results of the same unacceptable level.

*  I get it from opposing counsel, too, but that I disregard.

November 24, 2009

A Sweet Dinner At The White House

It seems hard to believe that there hasn't been an official state dinner at the White House yet during the Obama Administration.  I thought those were fairly regular sorts of occurrences for visiting ambassadors and heads of state of other nations, but in fact this seems to be the first one, to honor the visit of the Prime Minister of India.  And this is the menu:

Potato and Eggplant Salad
White House Arugula with Onion Seed Vinaigrette

2008 Sauvignon Blanc, Modus Oprendi, Napa Valley, California

Red Lentil Soup with Fresh Cheese
2008 Riesling Brooks "Ara", Willamette Valley, Oregon

Roasted Potato Dumplings with Tomato Chutney
Chick Peas and Okra
Green Curry Prawns
Carmelized Salsify with Smoked Collard Greens and Coconut Aged Basmati
2007 Granache, Beckman Vineyards, Santa Ynez, California

Pumpkin Pie Tart
Pear Tatin
Whipped Cream and Caramel Sauce
Sparkling Chardonay, Thibaut Janisson Brut, Monticello, Virginia

[With coffee]
Petits Fours and Coffee
Cashew Brittle
Pecan Pralines
Passion Fruit and Vanilla Gelees
Chocolate Dipped Fruit

First off, let me concur with Stephen Bainbridge that the Grenache paired with the prawns sounds like a disaster in the making.  I've had the Beckmen Grenache and while I think well of it and I'm excited to see a maker I've patronized get this sort of publicity, I think the White House sommelier could have made a better choice in this case.  It's a lighter, sweeter red, to be sure, but it is still going to be way more powerful than those shrimps.  I'd serve it with a salmon, a char, or some other robust pink-meated fish that had been simply grilled, but otherwise I'd reserve it for a stand-alone drink.

Unlike Prof. Bainbridge, I also think the potatoes in tomato chutney are a bad pairing for the Grenache.  Unless that chutney turns out very light and watery, or is made from naturally-sweet grape or pear tomatoes, then I think the Grenache won't stand up to it -- tomatoes carry a hearty, acidic, robust taste that Grenache won't be able to compete with.  And it's very bad form for the sommelier to misspell "Grenache."

Finally, this is heavy on the sweets and desserts.  The sweet end courses all sound good, to be sure.  But so many!  And in fact, all the wines are sweet.  I'd say the driest wine of the bunch is the Sauvignon Blanc they're serving with those famous White House arugulas -- and that's about a middle-of-the-road wine on the sweet-versus-dry scale.  Frankly, I'd have thought that sophisticates like the Obamas would have preferred drier wines than this.

Given that this is a dinner for the Prime Minister of India, the prominence of the vegetarian selection is wise.  And maybe the plethora of sweet tastes is intended to cater to the preferences of Prime Minister Singh (or his wife).  To be sure, Indian cuisine has a sweet component to which is generally lacking in the heartier, more savory fare of European or New World origins, a sweetness which mixes with the heat of peppers and curries to much pleasure.  But all the same, man, this sounds like it was a sugar-heavy meal for President Obama, Prime Minister Singh, their families, and 220 of their closest friends crammed on short notice into a too-small room in the East Wing.

November 22, 2009

Weekend Weirdness, Volume VI

Is that a meep I hear, young man?  Better not be!

Can your cat do this?  Mine would like to but we don't get house guests like this very often.  Well, at least they're not this lazy.

These aren't cake wrecks.  These were all quite intentional.  Some are actually disturbing.

I don't even know how to describe this.  It's, um, animation.  Uses a lot of odd currencies.  I enjoyed St. Thomas More and M.C. Hammer, and some of the music is quite soothing.

Carl Sagan orders pizza, wings, and sub sandwiches with billions and billions of calories -- and reluctantly tips the already-stoned driver in good single-malt Scotch.  Speaking of which, if you're too lazy to look up at the stars while you're surfing the net at night, this might help your urge to engage in amateur astronomy.

I dinna billiv it, Cappen!  This!  Did not!  Actually!  Happen!  Sadly, though, this all probably did.

The hearts are all the same color.

How would the President dress if he came to visit in your home town?  Depends on the weather!

Bad crab!  (He should share.)

Transparent aluminum -- not just for Star Trek movies anymore; it may help us develop practical fusion technology.

November 20, 2009

Vikings Fans Are Everywhere These Days

A National Guard unit from Chippewa Falls, Wisconsin deployed to Iraq has encountered an unusual problem -- the Iraqi detainees under its custody have made known their affection for Minnesota Vikings quarterback Brett Favre.  If the fact that Iraqi terrorist suspects like Favre wearing purple is not proof postive that the Vikings' success is the product of a deal with Satan, I don't know what else I've got to do to prove that to you.

November 19, 2009

Senator Giuliani

So it appears that Rudy! Giuliani will run for Senate in 2010 and not Governor of New York.  This, I think, is not a good use of his skill set.  Rudy! is an executive; he has no experience in a deliberative body, no experience with the give-and-take logrolling that is inherently a part of legislative compromising.  I understand a desire to not be in Albany -- the New York Legislature is thoroughly controlled by someone who isn't Rudy! and there's no practical way to break in to that.

The Senate is, ultimately, a poor proving ground for grooming future Presidents.  It's not a partisan issue -- it's that the skill sets necessary for success in the Presidency are different than the skill sets necessary for success in the Legislature.  If Rudy! is thinking the Senate is a fine coda for his career, then fine.  But I can't believe he isn't thinking about challenging Obama in 2012.  Rudy! has charisma and is very smart, but his personality is ill-suited for the job.

Yesterday's News

This is one of the more conservative corners of California that I live in.  A Democrat hasn't been elected to represent this area in generations.  The central industry here is building aircraft for the Air Force and the nation's premier aircraft testing facility is located here.  Bear that in mind as I deliver this bit of news.

I had dinner tonight with a friend who works at the local Barnes & Noble, by far the largest and most prominent  bookstore in the area.  The store received a shipment of 144 copies of Going Rogue last Tuesday.  So far, the store has sold 8 copies of the book.  8/144 = 5.6%.  The book is moving so slowly they've already marked it down to the "40% off" category.

Maybe the book is selling really well online.

Six Options

I'm as committed as ever to the idea of due process.  I have plenty of intellectual companionship in saying that a trial is the right thing to do because indefinite detention is not a good option, and that we should have no fear of doing the right thing, as long as we do it the right way, but I'm also completely at a loss for what to do or thing when our government claims to be trying to do the right thing, but at the same time admits that it's all just for show. Having a show trial is worse than having no trial at all.  More thoughts from around the blogosphere more or less echoing this sentiment here, here, and here.

So now that I've argued passionately in favor of the rule of law even in a tough case like this one, I need to react to the fact that what I had been led to believe was a very legal, moral, and correct thing to do is revealed to be nothing but a sham.

One thing I'd point out -- in this exchange, Senator Grassley gets something wrong.  He says that our criminal law is "our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent."  I agree that our criminal law ought to be that clear.  But it's not -- a generation's worth of futzing around with the concept of "exigent circumstances" has transformed Miranda into a Swiss Cheese of a legal rule.  Now, if we tortured KSM, then yes, any evidence obtained thereafter is "fruit of the poisoned tree" and is properly excluded from the trial.  And while I labored mightily to not believe it was true, available evidence says that I was wrong before -- we did torture this particular prisoner.  But with the many "exigent circumstances" rules to Miranda, I have difficulty seeing a court excluding evidence of the confession he (purportedly) gave before the torturing started.  At this point, though, I'm not certain Miranda matters at all because the Constitution is evidently of little importance to the people in charge of solving the problem of what to do with these prisoners.

What I can do is say that it appears to me that as a nation, we have six viable options for how to proceed with this situation.  Here they are, in my order of preference.

So right now, it seems to me that the right thing to do is to have a military tribunal conduct the trial.  I absolutely agree that the trial must be venued in either New York City or Washington, D.C., because that's where the attacks took place.  (Having it in Pittsburgh, in recognition of the United Airlines Flight 11 flight in which passengers overpowered the hijackers, is silly because it appears that the target of that strike was going to be either the Capitol or the White House.)  And the trial should not be public, if we're going to be discussing classified evidence.  But the trial should be meaningful -- it should be before an unbiased panel (which I frankly think is more likely with a military court than a civilian one) and it should have a consequence one way or the other.  If there is an acquittal, then those charges are dismissed and the defendant goes free -- so long as he is not awaiting trial on some other crime.  Given that Eric Holder repeatedly and forcefully stepped on his own dick during yesterday's Senate hearings, this will now require that the Administration say publicly, loudly, and repeatedly that the Attorney General is being overruled by the President himself -- that if the trial results in acquittal, the result will be actual liberty for Khalid Sheikh Mohammed.  Such a statement will carry a heavy political price for the President to pay, but that's the consequence he must face for the singular error made by his hand-picked subordinate.  As a second-best alternative within this broad choice, hold the trial in a civilian court, but it appears that a military tribunal is a superior forum for this particular case, with the evidence at issue.  But either way, hold a real trial.

The next-best thing to do is to say that we have reviewed the available legal authority and find that the al-Qaeda prisoners in our custody right now are prisoners of war.  The necessary ingredient of being a prisoner of war is that the captive must have been engaged in the service of a foreign state and wearing a uniform of some kind; I do not think it an extraordinary or facile gloss on the situation to say that al-Qaeda was trying to create a new nation-state (to wit, the proposed Caliphate of Osama bin Laden) and that this nascent political entity had simply not issued uniforms to its warriors yet.  We could call the al-Qaeda detainees "prisoners of war" if we wanted to.  That would mean that ultimately, they will be charged with no crimes at all, and when al-Qaeda is no longer engaged in hostilities against the United States, they'll be let go.  That commits us to not torture these prisoners, which we shouldn't be doing anyway, and it gives them other rights while they're in custody under the Geneva Conventions.  And it bargains away our claim that these guys are nothing more fearsome than common criminals.  But it does make absolutely certain that there will be no trial and we will keep custody of them until the threat is gone.

The third-best thing to do would be to hold a Nuremburg-style trial for commission of "crimes against humanity."  For that, we'd need to enlist jurists and lawyers from other nations and have a public proceeding.  One of the useful precedents set by Nuremburg is that at those trials, the defense of tu quoque was not permitted -- so evidence of wrongdoing by the United States (i.e., torture of prisoners, use of military weapons causing civilian collateral damage) would be irrelevant and excluded.  The downside is that at Nuremburg, the lawyers and judges were making it up as they went along and the whole proceedings left the taste of a show trial to implement victor's justice.  But personally, I don't think they were actually show trials -- many of the Nuremburg defendants were acquitted and set free.

After that, we're out of options for dealing with these prisoners within the confines of the law.  So the fourth-best thing we could do, at this point, would be to just kill our prisoners.  Frankly, by the time we run out of good legal options, simple murder becomes the best political expedient.  I hope that no one is comfortable with that statement, by the way -- despite the fact that we are talking about people we're quite certain have a lot of blood on their hands and at least at one time were quite anxious to get more.  The reason for your discomfort with that statement is that it's quite evident that even if we did capture these bad guys "on the battlefield" and they aren't entitled to any Constitutional rights at all, they're our prisoners now and we have power over them.  My point about just killing them is that if we're going to dispense with actually complying with the law, and say that the only rule that applies to these guys is Rule .303, then we should do it right.  And then we must accept the moral and possibly legal consequences of doing so.  But this does have the two conveniences of intellectual consistency and and expedient result.  Again, I hope no one is comfortable with this.

Moving further down the list, the fifth option is to do nothing -- that is, to do what we have been doing, holding these guys indefinitely without charges, without presenting evidence, and in a legal limbo that we refuse to resolve.  That has many, many disadvantages in that it leaves open and unresolved this festering problem.  I found the status quo unacceptable under Bush, why should it be any more acceptable under Obama?

But the worst thing we can do is pretend to comply with the law when we're actually not doing it.  A show trial actually goes further than the status quo towards making a mockery of our legal system and offering evidence to the world that we are willing to disregard the rule of law when it is inconvenient for us to comply with it.  This is worse than legal limbo because it turns our courts into vehicles of fraud.  Not using our courts at all is bad enough -- but tainting them with the corruption of a show trial is worse because it deprives the courts of legitimacy as surely as the Executive branch has abdicated its own legitimacy already, twice now under two different Presidents of both major parties.

And this last choice is the option that the Administration has apparently chosen to pursue.

If nothing else, America ought to stand for the rule of law.  Insisting upon the rule of law is why we had our Revolution in the 1770's.  Insisting upon the rule of law has made this nation rich, powerful, and righteous.  We disregard the rule of law at our peril.  That would be the start of a historic cancer that will eat away at us from within as surely as the decision of the Roman citizenry to eschew and outsource military service led to the rot and sudden collapse of their empire, because like the Roman martial ethic, the American legal ethic is the taproot of our greatness. I fear that the highly-polarized political atmosphere of this country is an environment ripe for that cancer to metastasize.

I have not yet perceived an existential threat to the nation in the misguided policies of the Obama Administration.  I have perceived serious long-term problems with our economic health, advocacy of policies doomed to be expensively ineffectual, and evidence of managerial incompetence.  These are not good things, but they are the sorts of problems that our government can adapt to and against which the Constitutional system of government was built to withhstand.  But this is the first time I've seen this Administration take a truly dangerous stance, to point a dagger directly at the still-beating heart of what makes the United States of America a nation of which I can be proud to be a citizen.  It broke my heart when the last Administration did the same thing and it breaks my heart now that I see it happening again.

Amateur Hour

Thank you very much, Attorney General Eric Holder, for mooting all of my high-falutin' Constitutional ideals.  I've gone to some length here and elsewhere to argue that it is very important to give even a dirtsack like Khalid Sheik Mohammed due process -- a meaningful trial, with evidence and cross-examination and a neutral finder of fact and all the other incidents of due process.

A trial in which the practical result is pre-determined, however, is not consistent with due process, and such a proceeding does not adhere to our ideals.  Which is why Attorney General Holder should not have said what he did today to the Senate Judiciary Committee:
SEN. GRAHAM:  [What happens] if, by some one in a million fluke, one of the defendants were acquitted?

AG HOLDER:  [Congress has already barred any Guantánamo detainees from being released inside the United States.  We would transfer them to the detention facility at Bagram Air Force Base in Afghanistan.] I certainly think that under the regime that we are contemplating, the potential for detaining people under the laws of war, we would retain that ability

SEN. GRAHAM:  So in the Sheikh Mohammed case, we've never going to let him go if something happened wrong in the federal court.

SEN. CRONYN:  What if a federal judge orders the Department of Justice to release Khalid Sheikh Mohammed?  Will you defy that order?

AG HOLDER:  We have taken the view that the judiciary does not have the ability necessarily to certainly require us to, with people who are held overseas, to release them.  It's hard for me to imagine a set of circumstances, given the other things that we could do with Khalid Sheikh Mohammed” that would result in him being freed.  Under the regime we are contemplating … the ability to detain under laws of war, we would retain that ability.

Eeee-diot!  I stick my neck out on a limb to say, "Hey, a trial is the right thing to do, it's very important to be true to our national ideals even when the stakes are this high," and then I get told that the result is pre-determined?  Either he's guilty or he's not.  If he's not, then what other charges are there to levy against him?  I'm told there are lots.  If there aren't, and there is a reasonable doubt of his innocence, then why in the hell are we holding him at all?

What Holder testified about fits well into the idea of calling him a prisoner of war.  It's a non-frivolous argument that this is what KSM really is.  After all, as one of my interlocutors elsewhere insists, KSM could readily be considered a "non-citizen enemy combatant [] captured on foreign soil [who is therefore not entitled to] substantially the same procedural protections enjoyed by U.S. citizens on American soil."  That sounds a lot like a prisoner of war to me -- insisting that he have to wear a standardized uniform in order to earn that status is putting form over substance there.  If he was literally captured on a battlefield, his clothing is insignificant.  And I'd agree that a POW is not entitled to criminal due process, because a POW is not considered a criminal at all.  Rather, a POW is held until hostilities are over, during which time we treat him humanely, and after which time we let him go.  How do we know when are hostilities over against a non-state adversary?  Pretty much the same way we determined that hostilities were underway.

Now, I think that if we had made a decisive move to classify him as a prisoner of war shortly after he was captured, we'd be on strong moral and legal ground there.  But we didn't do that' we called him an "enemy combatant" despite the fact that at the time, there was no such legal classification, and now it's nearly eight years since we captured the guy and he's been totally and completely in our power ever since.  To call him a "combatant" now strains credulity in my mind, and to call Guantanamo Bay "foreign soil" is nearly as much of a stretch.  The Cubans sure as hell don't control Gitmo -- we do.

But if he's a criminal, then he's a criminal.  That means we arraign him, get him a lawyer, put on our evidence, and hold a trial before a neutral finder of fact.  For my part, I think that's the way to go; the evidence says that he's a criminal and a murderer, and he should be treated as such.  I have great confidence that the evidence against KSM is overwhelming and a guilty verdict is the only result that can be reasonably foreseen.

There is no intermediate classification between POW and accused criminal known to our legal system.  He's one or the other.  He's either a military problem or a criminal justice problem.  Not both.  This whole "enemy combatant" label is and has always been something of a ruse, an effort to dodge dealing with the law as it is written.  An "enemy combatant" has the right to be shot on the battlefield by a U.S. soldier, and that's about it.  Once that person is captured and brought under our physical power, he stops being a "combatant" because he is no longer fighting anyone.  He is either a criminal or a prisoner of war.

I've said before and I say it again -- treat a criminal like a criminal.  Which means using due process; our own ideals require nothing less.  What if he's actually quite insane and delusional and really isn't the 9/11 mastermind?  If by some strange circumstance a jury finds that is a reasonable possibility, then we should let him go, because those are our rules.

But we aren't giving him due process if the effective result of the trial has already been determined. 

Now, there are those who will join Senators Graham and Cronyn in saying that if there is a risk that his dude walks free, that is an unacceptable risk.  I frankly disagree.

Recall what I said a few days ago about our susceptibility to terrorist attacks in the future.  We will only be attacked if the political winds shift such that someone can realize an advantage by attacking us.  Al-Qaeda attacked us in 2001 so that we could be used as an opposing force against which a new Caliphate could be organized.  That failed.  So why attack us again?  What gain do the bad guys get -- another shot at the Caliphate?

Recall also that it's not exactly difficult to get weapons on board airplanes if you really want to, that it wouldn't be that difficult to get something really dangerous smuggled into the country if you wanted to, that anyone who is clever and determined will be able to pull off some kind of asymmetric attack on innocent civilians here.  Ask anyone who lives in Oklahoma City -- all it takes is a U-Haul van and some fertilizer and you've got yourself a terrorist incident.  KSM is not and never was the only clever person in al-Qaeda.  If they want to attack us, they can.  They haven't, so it seems logical to conclude that they do not perceive any advantage ot themselves in doing so.

Recall also that Osama bin Laden and his creepy Egyptian sidekick have been at large since 2001 despite the concentrated and overwhelming efforts of the U.S. military to root them out, but somehow they haven't been able to harm us from their luxurious lodgings in some of the loveliest caves in the Hindu Kush.  If they hate us and want to destroy us so much, why haven't they done anything about it?  KSM was the #3 guy, and since then being the #3 guy in al-Qaeda is a little bit like getting issued a red uniform about the USS Enterprise.  And, hey, if KSM does return to the battlefield, maybe this time he'll get the bullet in his brain during battle that would so neatly solve all of these problems.

So if we're going to have a trial, it needs to be a trial that has meaning.  We get no advantage to ourselves in having a meaningless trial; such a thing only obscures the fact that we denied due process to someone accused of a crime and instead put on a show trial.

I'm tired right now because I've let myself get angry about this and stay up too late at night. But it seems to me that the right testimony at the hearing should have been:

HYPOTHETICAL SMARTER-THAN-REAL-LIFE AG HOLDER:  Senator, we do not consider the possibility of KSM's acquittal to be sufficiently within the realm of probability to need to prepare any significant contingency plan for that event.  The evidence against him is overwhelming.  There are no admissibility problems with the bulk of the evidence.  The defense can be anticipate to make a number of procedural objections but these are well within our abilities to handle.  I can confidently tell you that KSM will be convicted.  You might as well ask what I would do if the sun rises in the north tomorrow as what would happen if he is acquitted, because it's just plain not going to happen.
But that's not what the Attorney General said.  Instead, what he said amounted to, "Well, we made a big show of talking all about how he was going to get due process and we were going to be true the Constitution even for our worst enemy.  But the result is as pre-determined as one of Stalin's show trials."  Holy crap on a stick.  If the trial doesn't mean anything to the defendant -- if his freedom isn't really at stake -- then he's not being tried at all.  He's being forced to participate in a farce. A child can understand that. A farce of a legal proceeding is debatably worse than no legal proceeding at all. It's certainly more dangerous.

In the field of respect for the Constitution, Obama and his people have now well and truly proven themselves to be better now than Bush and his people used to be.  These guys aren't interested in justice or principles or honesty or good government or even really doing anything any different at all.  They're interested in scoring political points for themselves, and to them, the Constitution is simply an obstacle to realizing that goal.

This ought to be unacceptable to Americans of all political stripes.

November 18, 2009

Trying Terrorists

I have to admit more than a little bit of frustration over the hue and cry, mainly from the right, about the upcoming trial of Khalid Sheikh Mohammed to be held in the United States District Court for the Southern District of New York.  There seems to be some sort of fear that (pick as many as you like) a) national security interests will be compromised if the trial is held there and thus innocent people will be endangered, b) that KSM will somehow use this public forum to grandstand and promulgate his ideas, c) that the Justice Department will use the trial as an opportunity to make political attacks on the Bush Administration, or d) the result of the judicial process will be an acquittal or a reversal of a conviction on appeal, and we cannot accept even a tiny risk that KSM might go free. 

For the record, here are this blog's positions on these issues:

  • If the prosecution does use the trial of KSM as an opportunity to score political points, this would be wildly inappropriate and should be censured by Congress.  The prosecution will be asking for the death sentence, and that means we need to take the proceedings seriously.  But we can't not have trials because there is a risk that prosecutors might not conduct themselves properly.
  • KSM has been in custody for many years now and there is functionally no chance that he knows or could broadcast relevant information to his co-conspirators.  He might propagandize a bit in an outburst at trial, but there are ways for the court to control that -- for instance, by confining him to a room where he watches the proceedings on closed-circuit television, the same way a court can do for any defendant who refuses to conduct himself appropriately during any trial.
  • The risk of KSM going free is functionally zero.  Even if he is acquitted, there are scores of other crimes of which he is suspected which we can investigate and prosecute him for.
  • National security information relative to terrorism is of its nature rapidly evanescent. Whatever information we had that we would use to describe the case against KSM is several years old.
  • If there is national security information that cannot be safely disclosed to the public, then the government should file a motion with the District Court to have the trial conducted before a military tribunal or in closed session. 
As to that last point, there is no reason this cannot be done consistently with due process. 

Due process is a fundamental Constitutional right, to be sure, but then again so are the rights to own weapons, speak and worship freely, vote, and be protected from unreasonable searches and seizures.  Constitutional rights are strong and important, but they are not absolute. All of those rights can be circumscribed under appropriate circumstances, to wit, when the government can show a compelling interest requiring them to be circumscribed and when the manner of circumscribing them is narrowly-tailored to acheive that compelling interest while allowing the right to be realized as much as is possible under the circumstances.  This is a difficult, but not impossible, thing to do -- and a military tribunal for a trial that invovles state secrets strikes me as a reasonable and achievable way to threat that needle. 

There is no reason for anyone to think that the finders of fact in a military tribunal would not be fair to KSM -- they would probably be more fair than a civilian jury, if you think about it -- and there is no reason to think that the procedures in the miltiary trial would not be as fair, if not more fair, than the procedures that would be in place in a civilian trial.

Due process requires that KSM be given a lawyer, preferably a lawyer of his choice.  There is no reason, however, that the lawyer cannot be screened to determine if the lawyer is a security risk, and a lawyer who represents an unacceptable security risk can and should be excluded if the nature of the case requires the lawyer to handle and evaluate sensitive or confidential information.

Due process requires that the decision to do all of these things be made by an Article III judge, one who is independent of the President and Congress.  That judge can be evaluated as a security risk also before the government discloses any sensitive evidence, and the evidence should be disclosed and reviewed in camera with a presumption that it will not be made public.

Due process requires that he be given a trial.  As I've written previously, we should afford due process not for his benefit but because it is a moral imperative upon us that we do so.  We are better than him, and that's precisely why we will treat him better than he treated his victims.

In fact, let's be clear -- KSM is human filth.  I will not stand idly by and watch our own government shred the Constitution for the sake of such a low-life as he.  He has been well and thoroughly defanged.  Putting him on trial "like a common criminal" is exactly the sort of demeaning behavior which is appropriate.  He should be treated like a common criminal, because that's what he is.  A murderer, a conspirator, and a bloodthirsty zealot.  But he is not an existential threat to our nation -- he's a scumbag but he isn't as important as that.

November 17, 2009

Runners World

This cover of Newsweek goes a long way towards making Sarah Palin look unprofessional and suggesting that she is not to be taken seriously.  When I first saw it, I wondered, "Why would she allow a photograph like that to be taken in the first place?"  I thought she was smarter than that.  She may have her own brand of sometimes earthy politics (recall the interview she gave a year ago in which she deliberately stood in front of a bleed-out funnel while Thanksgiving turkeys were being slaughtered behind her -- that was intentional imagery), but she does know to control her image.

A little looking around reveals that when she did the photo shoot, she thought the photos were going to be used in an athletic magazine, Runner's World, where professional dress is not how a subject of an article is expected.  And it only makes sense; she is an avid jogger.  To make it even slimier, it appears that Newsweek got the photograph without the permission of either the photographer or Runner's World.  One of those two owns and controls the copyright to that photograph.  Unclear, at best, how or if Newsweek got the rights to the photo.

I don't like a good portion of the prominent policy positions that former Governor Palin appears to have taken, either in the Presidential campaign or after.  I do like her concern about the strength of our money and I hope other politicians follow that lead.  I don't get the impression she's learned enough about public policy to be a serious candidate for high office -- but she is presumably smart enough to learn, and I think that if she seriously made the effort, she could overcome the impression of being an intellectual lightweight, similar to the way Ronald Reagan overcome his "Hollywood airhead" image.*  And ye Gods am I weary of the tawdry affairs of the insipid personal doings of Clan Palin and those somehow connected to it.

But this Newsweek thing ain't Sarah Palin's fault -- she's getting a bum deal about it from scuzzy, likely sexist newsmagazine editors.  It's fair to evaluate the political stances she takes, the candidates and politicians she associates with, where the money she raises comes from and how she spends it.  In other words, judge her as a politician, based on her behavior and her policies.  But I can't fault Palin for allowing herself to make a public appearance while dressed inappropriately.  There is nothing inappropriate about appearing for a photo shoot for Runner's World wearing clothing that is appropriate for, well, running

Newsweek should be ashamed of itself for an unfair and even deceptive cover photograph; even liberal media watchdogs are saying so.  Oh, and if you're going to review her book, make it a point to at least read it first.  It's not nearly as long as the health care reform bills.

* Reagan had the tutelage of none less than William F. Buckley, Jr. to get him up to speed on not just the big picture and finer details of public policy, but also the intellectual and philosophical underpinnings of that philosophy.  I don't know what kind of contemporary equivalent to Buckley could be found to play Yoda to Sarah Palin's Luke. And query if Palin would think such a thing was necessary, which is getting back to why I'm not particularly a fan of hers.

Not Taking The Pledge

From several of my favorite blogs comes a story that I find very touching.  A ten-year-old boy in Arkansas, with early ambitions of becoming a lawyer, said he starting thinking about the words in the Pledge of Allegiance, and decided that he could not in good conscience make that pledge.  The Pledge says that the flag and the nation stand for "liberty and justice for all," and he doesn't think that we do such a good job of providing liberty and justice to gays and lesbians.

In doing this, he has risked discipline from his teachers (the Constitution forbids disciplining a student for not reciting the pledge in a public school -- although he doesn't have a right to tell his teacher to "jump off a bridge," so his detention was a righteous one), teaching and harassment from his peers (who have called him "gay," and he says he's a straight ally -- I say, how do such phrases have meaning when you're ten?) and perhaps even the obloquy of his community.  Seeing as he showed up for his CNN interview wearing a T-shirt that says "Geeks 22 ever," maybe he's used to a little teasing.  The kid is obviously very bright and articulate, and old enough to start forming his own opinions about the world around him.  I think he'll do well in life.

How many Pledge advocates have ever really thought about what it says?  Let's break it down, why don't we?

"I pledge allegiance" -- Right off the bat, we can see that this is a political act.  "Allegiance" means "the loyalty of a citizen to his or her government or of a subject to his or her sovereign."  By taking the Pledge, you offering your emotional, intellectual and political adherence. To whom or what are you swearing fidelity?

" the flag of the United States of America," -- The object of your loyalty and fidelity is a flag.  What is a "flag?"  It is "a piece of cloth, varying in size, shape, color, and design, usually attached at one edge to a staff or cord, and used as the symbol of a nation, state, or organization, as a means of signaling, etc.; ensign; standard; banner; pennant."  You are offering your loyalty to a piece of cloth.  Note that the piece of cloth is a symbol of an inchoate entity.  You can't touch or feel the United States of America; the nation is not the same thing as the land that it controls politically, it is not a document (even the Constitution), it is not a person or a group of people.  It is an idea.  But the Pledge of Allegiance (sometimes incorrectly called the "Flag Salute") at this point does not promise loyalty to that idea, it promises loyalty directly to the symbol of that idea.  But, of course, it doesn't end there.

"...and to the Republic for which it stands," -- Here, we're getting closer to, but do not actually yet arrive at, the idea of the United States of America.  After first offering loyalty to a symbol, the Pledger now offers that same loyalty to a "Republic."  What is a "republic?"  It is a particular form of government:  "a state in which the supreme power rests in the body of citizens entitled to vote and is exercised by representatives chosen directly or indirectly by them."

" nation," -- Recall the history of the Pledge.  It was first written in 1892 by a Christian Socialist named Francis Bellamy.  (Oh noes, creeping socialism!)  In 1892, the Civil War was still within living memory, much as the Cold War is within living memory today.  Those among you Readers who believe that the United States should be referred to with the verb "are" rather than the verb "is," cannot in good conscience take this Pledge.  By taking the Pledge you acknowledge that the several States are ultimately subordinate to the Federal government, that they are part of a larger, unitary whole -- in the same way that your lung is an inseparable part of your entire body.  Federalism as practiced in American constitutional law is a subtle and sometimes slippery concept and always has been.  Balancing the Supremacy Clause and the Tenth Amendment is an intellectual tightrope, but faithfulness to the Constitution requires that we walk it.  The states are the repository of the vestigal power of the King of England and hold plenary power.  But ultimate power is in the national government.

"...under God," -- Again, recall your history.  This phrase was not in the 1892 draft of the Pledge; it was added in 1954 as part of an effort to root out "godless Communists" from within the ranks of the American citizenry.  (Never mind that Americans have a Constitutional right to be godless, and under a principled analysis of the document, a Constitutional right to be Communists, if they wish.)  I need not elaborately go over the fact that the Constitution does not reference "God," and even the Declaration of Independence (an important document although not one containing any legal authority) references a "Creator" rather than the simpler and less ambiguous word "God."  The 1954 amendment to the Pledge corrupts its core meaning because Americans who do not believe in God cannot in good faith recite it, and it therefore excludes a category of Americans from those whose loyalty is welcome.

"...indivisible,"  -- Remember, the original Pledge was written in 1892, when there were still plenty of people around who had fought in the Civil War.  If you're like me and think that the Civil War was the worst time in American history, a darker, bloodier, and more evil hour in hour history even than the early days of WWII, then you should be anxious to affirm with me the belief that our nation is at the end of the day a unitary whole and that we should never again see Americans fighting Americans.  On the other hand, if you'd like to see your state have the power to secede from the socialism that is infecting our government, perhaps you ought to leave the Pledge out of your next Tea Party.

"...with liberty and justice for all."  "Liberty" is "freedom from arbitrary or despotic government or control" and "justice" is "righteousness, equitableness, or moral rightness, lawfulness".  Now, at last, we get to the real ideas that are the United States of America.  The rule of law.  A government that protects the rights of the individual.  Equality and equity.  Due process.  Deeply libertarian ideals.  And ideals to which we will always fall short.  If I can fault this brave and intelligent young man from Arkansas, it is that he is allowing his frustration that in practice we fall short of this ideal to obstruct his view of the fact that as a nation we strive and struggle every day to bring ourselves closer to it.  Like a rainbow, this can only ever be a beautiful vision, always just out of reach, no matter how hard or fast we pursue it.  We do not deliver on our promise of liberty and justice for all, it is true.  But within the confines of our peaceful, democratic, and lawful government, we work as a people and a nation to chase that rainbow and the trend is to always move closer to it.

It is sad that so many Americans cannot look past the unpopularity of individuals who ask for this sort of treatment -- communists and atheists in the fifties, gays and lesbians in the particular case today -- and ironically, that these sorts of people have gone so far as to write their own bigotry and selective exclusion from these ideals into the Pledge itself.

For myself, I recite the old Pledge, the one without the phrase "under God."  I do not believe in God and it is my right as an American to not believe in God.  That Pledge was good enough for many generations of Americans and it's good enough for me.  I think swearing loyalty to a piece of cloth is silly, but swearing loyalty to a government that protects individual rights and the rule of law is not.  So long as that flag symbolizes a nation that truly and fundamentally stands for those ideals, I have no problem avowing loyalty to it.

And as a means of forswearing the possibility of return to the bloody days of the Civil War, the Pledge strikes me as worthy indeed.

And most importantly, I have no problem at all with a bright and brave young man who is righteously outraged to see that the nation to which he too would like to give his loyalty falls short of its own ideals and is making his own stand to make it better, to make us chase that rainbow.  That is the mark of the truest sort of patriot our country can produce, and for making that stand, Will Phillips, a fifth-grader from West Fork, Arkansas, earns this blog's particular mark of esteem, the Big Brass Ones Award.

Hat tips to, inter alia, Preaching to the Choir and Debate Link.  And a hearty round of "boos" to the CNN anchors, who seemed condescending towards this remarkable young man after the interview was done.

UPDATE:  Inspired by this story, another kid, a teenager from Wasila, Alaska, refused to stand for the pledge and got in big trouble, up to and including a threat by the principal to withhold his high school diploma.  Kind of a big deal.  As it turned out, his parents told him that they wanted him to stand, if not necessarily say the words out loud, and he decided to respect his parents' decision.  I guess I can understand that.  The blatant ignorance of the law displayed by his principal is appalling -- Alaska Statute 14.03.130(b) provides that:
A school district shall inform all affected persons at the school of their right not to participate in the pledge of allegiance. The exercise of the right not to participate in the pledge of allegiance may not be used to evaluate a student or employee or for any other purpose.
I know not reciting the Pledge is not a popular thing to do, and not standing for the pledge is a decision a lot of people will disagree with. But freedom means you must tolerate people who do things with which you disagree.

November 16, 2009

Odd Sourcing by ABC News

First, and perhaps most importantly, it's good work by ABC News to find all the massive B.S. that you can read about at -- relatively large amounts of money spent in congressional districts that do not exist, jobs saved that did not seem to ever exist in the first place, and so on.  Charitably, the "9th Congressional District" in Arizona (Arizona only has 8 districts) may refer to something other than one particular Congressional district, or some other geographical division of Arizona, and everything is called a "Congressional District" because someone putting together the otherwise rather-slick website doesn't know the difference between a Congressional District and some other kind of governmental unit.

But what's really odd is that the ABC News story appears to be replete with links -- but almost all of those links are to other ABC News stories.  Very few of them are to any kind of particularized source material and the only link to the actual government website containing bogus data is to the front page of the website.  You have to drill down and do your own research on that website -- which is actually pretty non-intuitive and difficult to find -- in order to verify the information that ABC is reporting.  (Here, for instance, is all the money being spent in Arizona, sorted by district, which reports a lot of non-existent districts.)

When I comment on something, I try to include direct, supporting links.  When you click on a link here, you'll typically get a direct link to my source material.  That's kind of how blogs work; because we bloggers don't write and publish bibliographies but the convention is to link to what you're basing your commentary on.  ABC News, however, seems to prefer to refer almost exclusively to itself -- even when the actual source material is one hyperlink away.

So, here's a major "bullshit!" call out to, and here's a "whafuck?" call out to ABC News.


My post this morning suggested that the real reason to pay attention to the Obama Bowgate issue is not whether protocol was breached or anti-royalist sentiments have been compromised, but rather that it reveals a degree of administrative and managerial incompetence within the upper levels of the executive branch of government, betraying the notion that Obama and his minions can "walk and chew gum at the same time," to use a phrase that was popular about a year ago during the Transition of Administrations from Bush to Obama.  I pointed out that the scenario pointed to a number of conundra which are common to all large organizations.

Wait a minute.  "Conundra"?  What the hell does "conundra" mean?

I intended to use the plural form of "conundrum," meaning a difficult and confusing problem.  There are several candidates for the proper plural form of this word, upon which persnickety grammarians are unable to consense:
  • Conundrums
  • Conundra
  • Conundrae
  • Puzzles
"Puzzles" would probably be the simplest word to use, but I'm a lawyer so of course that's not the one I chose.

In the link above, the plural form of "octupus" and "hippopotamus" are also discussed; "octopi" and "hippopotami" are certainly fun to say. "Genius" is another of this breed; the right plural form would appear to be "genii." So what if you go from the plural form of "twins" -- "gemini" -- back to the singular? Was Pollux the "geminus" of Castor? At the track meet, you unambiguously have a stack of "javelins," but what about that set of more than one "discus"? Are they "discusses"? Does that make talking about them "discussing"?*

It also brings to the fore questions of how to pluralize other Latinate and Greciate verbiage.  "Stadium," "memorandum," and "theorem" are all in this category -- we can refer to a number of "stadiums" but it seems the proper word would be "stadia," for the same reason that we refer to "memoranda" instead of "memorandums" -- but that doesn't explain how the shortened form of the word, "memo," is universally pluralized as "memos" instead of "memae." 

And there are "-f" and "-v" endings, as well, which appear to be relics of old German rather than Greek or Latin.  "Knife" to "Knives."  "Wolf" to "Wolves."  This, at least, is the result of phoneticization.  But what to make of "deer" and "fish"?

On top of it all, there's national soccer/football teams (similar to the pretentious nickname of Stanford University's sports teams).  When you refer to the national team of, say, Mexico, the word "Mexico" refers, in the plural form, to the team as a whole.  Reading a sports column that says "Mexico's players lack endurance" makes sense to me, but something like "Mexico will have to confront their lack of endurance" does not.

* Apologies to Eminem.  I totally stole his joke there.

Bowgate And Managerial Conundra

The image of President Obama bowing deeply while greeting Japan's Emperor Akihito has generated many spilt electrons of apoplectic outrage and instinctive, unthinking apologia.  But in fact, both the left and the right have it wrong.  And it's not the first time that this sort of imbroglio has happened, either.

The right has it wrong that Presidents do not bow before royalty.  (Query if this is a bow, although whether we call it a "bow" or not, the drop of the head carries a symbolic implication of subordination.)  The correct answer seems to be that some do and some do not.*  The right kind of bow for a President to give the Emperor -- or any royalty or other holdovers from the ancien régime against which America revolted at the beginning of her independence -- is a slight, subtle rocking forward from the waist, with a small nod of the head.  Nothing more than the sort of acknowledgment of recognition that one person might give to another across a crowded room, when it is inconvenient to cross the room and shake hands.

Obama, however, gave what seems to be known in Japan as the saikeirei bow, which is listed in some protocol guides as conveying "maximum respect" -- good in theory for protocol and diplomacy, but which in actual Japanese custom is used by a subordinate to greet a superior while delivering an apology for some kind of failure.  The proffer of a handshake during the bow is a further compounding of the subordination of the bower to the person to whom the bow is offered.  (Thanks to Doug Mataconis for the translation of the Japanese protocol manual.)

The fact of the matter is that there are elaborate and subtle protocols in Japanese culture about who bows to whom, when, for how long, and how deeply.  Gaijin like us can only hope to really understand the result of years of strong cultural pressures that impress upon upper-class Japanese society the norms and modes of how to behave in such situation.  As an intellectual exercise, then, Obama can be forgiven, in my mind, for getting it wrong.  But this is the sort of thing that people who study management of large organizations look at and are driven absolutely crazy.

See, somewhere in the Protocol Office of the State Department is someone who actually has the knowledge necessary to instruct the President about the optimal way to greet the Emperor.  Whether that's a strong-postured handshake between equals (something which has good emotional resonance for those of us with strong small-"r" republican sentiments) or a subtle Nixonian bow (the President is, after all, on the Emperor's turf)* is not all that important.  What's important is that there is someone with the right answer.

First, this person needs to have both the exposure to information and the initiative to have figured out that the President was going to travel to Japan and meet with the Emperor soon, thereby acting within this person's particular sphere of expertise.  How do you teach someone to pay attention to the news and realize that they have something of value to contribute?

Second, how do you teach them that not only would their contribution be useful, but that it is needed in the first place?  It's entirely possible that the protocol officer figured, "Hey, the President knows what he's doing, I don't need to get involved," or worse, "If I stick my head up here, I might get it cut off."  So you need to somehow teach someone the initiative to say, "Hey, maybe we ought to shoot a memo over and let the President's people give the big guy some tips on how to avoid a flap."

Third, assuming this person actually connects the dots and acts on the picture thus drawn, what happens to that memo, that e-mail, or whatever other communication results?  This protocol officer does not have direct access to the President, and for good reason.  If every protocol officer, every intelligence analyst, every budget officer, every Federal employee with expertise in any of the myriad fields of activity in which the President exercises general oversight, could communicate directly with the President, then the President would be too busy gathering information from all these people to act on it.  He must of necessity rely on subordinates to gather, process, filter, and prioritize information for him.  He must do so without directly knowing what information is being thus filtered.

In practice, there are a lot of filters between the protocol officer and the President.  The protocol officer's superior, the Secretary of State, the White House's protocol office, the President's secretary and Chief of Staff -- all these people exercise filtering functions and decide for the President what is and is not important enough to merit the President's attention.  If any of these people filter out important information, it gets lost.  So how do you separate the good stuff from the noise?

Fourth, assuming this information actually gets to the President, he needs to remember it and act on it.  The President has a lot on his mind and protocol can actually be quite a subtle thing -- and remember, we're dealing with something that non-Japanese find inherently confusing and complex here.  The President is doing more than just remembering how to bow when he's meeting the Emperor of Japan; there are a whole lot of diplomatic things going on at once.  And he's doing more on his trip than having tea -- there is actual roll-up-the-sleeves type of governmental work to be done with Japan's government, as well as the public ceremonies.  So the President himself might have simply not filed that bit of information away in the right way and blanked out when the time came to use it, and relied instead on his best guess.

Anyone can forget stuff like that when they get put on the spot.  I can recall a fellow Italian tourist telling me that he was embarrassed after meeting his friend's wife, because he had tried to use a form of Italian that was polite and formal, and his friend told him halfway through the dinner, "You don't have to treat her like she's the Pope."  In fact, there is a form of Italian that is very polite which is reserved for speaking with the Pope (basically, you use the third-person plural instead of the third-person singular conjugation of verbs).

Which is all to say, yeah, the President made a diplomatic mistake.  It's easy to see how that happened, though; this sort of information management, on-the-spot thinking, and cultural dissonance makes this sort of thing inevitable.  So now that the President's mistake has been pointed out and micro-analyzed down to its atomic particles, the real question is whether he possesses the administrative expertise to improve the process in the future.  This is the sort of thing about which I have always had reservations about Obama -- because his pre-Presidential background is entirely legislative and not executive or managerial in any way.

*  Does location matter?  If greeting the Emperor at the White House, is the protocol different than meeting the Emperor at the Imperial Palace?

November 15, 2009

Beating The Cowboys Should Have Been More Fun Than That

I don't want to complaint about a "W."  I'm glad we won.  But there are reasons to be discontented despite the win.  About the only real signs of life were the two touchdowns in the fourth quarter, one coming off a really sloppy fumble by Dallas.  And there 24 penalties called and 9 quarterback sacks, 5 of which were on Rodgers.  Overall, the game was miserably-played.

I've been saying the problem is the offensive line.  But maybe it's deeper than that.  There's a lot of very conservative play-calling, a lot of questionable failed challenges, and the Packers remain the most-penalized team in the NFL.  Those are coaching problems.

November 14, 2009

Weekend Weirdness, Volume V

Yes, it happens to us all.  Here's proof.  Man, Brendan Fraser looks like me!

Sick with the swine flu because no one will give you a vaccination?  Well, don't let that stop you from getting your buzz on!

You've fantasized about doing this.  You know you have.

I'll say it again -- gorillas are not the ancestors of humans.  They are our 310,000th cousins, 40,000 times removed.  And about as ugly as your sister.

At a big law firm I worked at what seems like a lifetime ago they once had an associate whose wife could play the piano.  I think these guys can relate to that kind of workplace wackiness.

You are...  Not Burt Likko.  But don't you kind of wish you were?

A running total of the number of days it has been since an active-duty NFL player has been arrested.  I found this on Veteran's Day and it had been 15 days since the last arrest.  It's on NBC Sports; do you think the fact that no NFL football is broadcast on any NBC or NBC-related network has anything to do with the fact that this is their take on the event.

November 13, 2009

Treat A Criminal Like A Criminal

What is Terrorism?

In 2003, I read a book by Caleb Carr called The Lessons of Terror.  In it, Carr argued that terrorism is a military threat and should be handled by the military in the way that the military handles things.  Specifically, he argued that terrorism should not and could not be effectively addressed using the criminal justice system, and attempting to shoehorn a military problem into a criminal-justice frame would not properly address the problem and could make things worse than they were before.

Carr has, I think, been proven partly right.  The strange hybrid of military force and criminal justice has harmed our reputation as international good guys, and caused us to compromise our ideals about due process.  What it has not done, however, is keep us any safer.  I explain why that is below.

What I think Carr got wrong -- what I was always uncomfortable with -- was addressing terrorism as a military threat.  Terrorism uses force to effect political change, that is certainly true.  In that sense, the terrorist's ultimate objective is the same as a soldier's.  But where the soldier seeks to eliminate the ability of his enemy to resist imposition of his nation's power, the terrorist seeks to alter his enemy's desires

Frequently, this is done by inciting or provoking action which would be considered overtly immoral if suggested by a calm populace, and that technique can only be used against a people who are fundamentally moral to begin with; those who would feel no moral compunction about doing to a terrorist what the terrorist would do to him are sociopaths already.  But when people with rational minds and moral codes of reasonable strength give in to panic and respond based on emotion alone, they risk playing into the hands of the terrorist. 

Regardless of the terrorist's succees or failure, however, terrorism and politics are inextricably intertwined.  The terrorist's goal is political change of some kind.

What is the Political Objective of Islamic Terrorism?

The typical terrorist seeks to effect some kind of political change. Often this is very successful. Al-Qaeda blew up train stations in Spain in 2004, and quite likely influenced the outcome of the imminent elections in Spain from what was going to be a narrow victory for the pro-war party into a narrow victory for the anti-war party. The implied message to the people of Spain was, "As long as you stand with the Americans, you are not safe, because we can do this to you again," and the people of Spain responded by electing an anti-war political coalition into power in their Parliament. Several months later, Spanish soldiers were all out of Iraq. That's effecting political change through violence and terror.

Sometimes, it is not so successful. IRA terrorists seemed to be blowing up a pub in England once a week in the 1970's. Northern Ireland, however, remains part of the United Kingdom. The UK not only did not give the IRA its objective of withdrawal from Ulster, it redoubled its military presence there. Hamas, Hezbollah, and a variety of other Palestinian terrorist organizations have attempted to scare Israel out of the West Bank, Gaza Strip, and Golan Heights for many years now and while Israel's responses have not always been particularly noble, it never backed down.

Now consider 9/11. What was the political objective of 9/11? It was obviously a totally unprovoked attack on the United States. It was visually horrific and cost thousands of innocent lives. The shock, horror, and panic it produced were part of the attackers' objectives. But I think we've been wrong to say "They hate us because of our freedoms," or "They hate us for our way of life," or "They hate us because we're Christians." Those are not political objectives. What they wanted to do was something that we could not ignore, something that would compel us to make a counter-attack. They wanted us to invade Afghanistan.

Why? This one is easy; it was clear even in the immediate wake of the attacks. Osama bin Laden loudly proclaimed that the United States was at war with Islam and that he had struck a mighty blow in the name of the Prophet. In response, there was widespread fear about the creation of a new Caliphate, one hostile to the United States.

That got it partly right. The ultimate goal was the creation of a new Caliphate. The United States, however, was simply a catspaw that could be manipulated as an antipode to the organization of that new political entity. Bin Laden wanted to be Caliph -- that's why 9/11 happened.

You notice, though that bin Laden is not Caliph today. His political gambit failed. The Muslims of the world did not rally around him, did not thrill to his leadership, did not reject America as a foe and an enemy. Many Muslim nations deepened their alliances with the United States. Most Muslims around the world were as horrified as Christians, Jews, seculars, and pretty much everyone else at what had happened, and they were embarassed that they would be lumped in with those... those... well, "criminals" is about the right word for al-Qaeda and their excerable minions.

What's more, we did something that al-Qaeda did not anticipate we would do. We invaded Iraq.

I have little faith or support for the idea that the invasion of Iraq had much to do with al-Qaeda. The "link" between Saddam Hussein and al-Qaeda was always tenuous and with the clarity and benefit of hindsight, it is fairly clear that there was no coherent or meaningful link at all.

Nor would I sign on to the idea that the United States invaded Iraq for the purpose of frustrating bin Laden's bid to form a Caliphate. Frankly, I don't think the leadership of the country at that time was that subtle or that capable of projecting problems out. I think they saw that the country was in a state of heightened agitation and distress, that there was generalized fear of Arabs and Muslims, and found it a convenient time to attempt a gambit of our own, a bid to convert a wealthy and industrialized nation from one hostile to us into one friendly to us, and to give us a staging area from which we could directly challenge Iran's emerging bid to become a regional hegemon.

And this is the reason why we have not suffered another serious attack since 9/11.  It's not that the enemy stopped hating us, and it's not that they stopped having the ability to attack us.  They haven't run out of box cutters, they haven't run out of religious fanatics they can brainwash into suicide bombers, and our security measures haven't grown so sophisticated and effective that we're now immune from another clever attack.  The reason we haven't been attacked again is that there is at the moment no political gain for our enemies to realize by attacking us.

So, a happy although unplanned outcome of the invasion of Iraq was to radically shift the political focus of the Muslim world. The idea that Muslims needed to unite behind a Caliph dissolved into the deep, bloody, and frustratingly time-consuming ambiguities of the conflict in Iraq. There was even a time that much of the world considered the ongoing conflict in Afghanistan the "forgotten war."

Was The Attack At Fort Hood Terrorism or Crime?

Now, Afghanistan is back in the news more prominently these days, and it seems that Soon-to-be-Former-Major Hasan went on his rampage in order to avoid deployment there. So far as the early evidence circulating in the media would suggest, Hasan was not trying to get the United States to pull out of military operations in either Afghanistan or Iraq. He wasn't trying to change our political leadership or the policies it is pursuing. He just didn't want to go to Asia and fight his fellow Muslims, or more to the point, give aid and comfort to the soliders who were doing the actual fighting. His crime was committed in an effort to achieve a personal objective, not a political one.

This is why I don't think it's right to call Soon-to-be-Former-Major Hasan's attack at Fort Hood last Thursday an act of "terrorism."  The attack certainly evokes terror, moral revulsion, and demands for some kind of response.  Even here on this obscure little blog pressure to respond to the incident is strong and vocal.  There was criticism of President Obama for his immediate reaction, although I think he gave a fantastic speech at Fort Hood for the memorial service, the sort of speech that takes time to do right.

After all, what, really, is there to say about the attack itself?  No one will praise it.  No one will defend the moral correctness of the shooter.  (Well, maybe that's not exactly true.)  To be sure, it's interesting and disturbing that Major Hasan, who seems certain to be convicted of this crime, had somehow polarized his political and religious world view to call himself a "soldier of Allah" (There seems to be no evidence behind the rumor that he had sought some kind of contact with al-Qaeda.  If he had attempted to join up with al-Qaeda, that would make him a traitor, and that too would have been a criminal and not a military matter.)  Everyone will and should praise the heroics of the police officers who stopped the attack.

What's of interest now is how we respond to it.

So in that sense, it's better to view the Fort Hood attack through the lens of criminal justice rather than the lens of terrorism.  Think "Columbine, 1999" not "Munich, 1972."

What Is The Appropriate Response To The Shooting?

Which is why things like this -- about which I briefly wrote last night -- are particularly disturbing.  Bill Kristol epitomizes the response which causes me revulsion, qualitatively different than that of the attacks, but equally deep:

Say what, Mr. Kristol?
I was very struck also by Janet Napolitano’s comment, I hadn’t read it before to see her say that, that the number one priority is to bring him to justice is such a knee-jerk comment and such a stupid comment. He’s going to be brought to justice. He is not going to be innocent of murder. There are a lot of eyewitnesses to that. They should just go ahead and convict him and put him to death.
You know, back in the 1970's and early 1980's, there was something of a cultural backlash to the Supreme Court's taking on high-profile criminal procedure cases, and it was most prominent in the ranks of the conservative "movement" of that time.  You can see it perhaps most prominently in the Dirty Harry movies, where a tough cop, hamstrung by nonsensical liberal judges, "goes vigilante" and just takes out the bad guys, making the world a better place, and we the audience cheer him on as he breaks the rules in order to achieve the greater good -- the "greater good" being defined as ridding the world of scumbags who only debatably even count as human beings.  Kristol's comments are in perfect harmony with a cultural mindset that equates due process with inviting danger.

We get into a problem area when fantasy becomes the principal mental model actually used to guide the formation of policy.  When we start picking Supreme Court Justices who genuinely think that it is a crippling imposition on good police procedure for an officer to have to tell an arrestee that he has actually been arrested, we've crossed that line.  When we ask our Presidential candidates to make decisions about whether or not to authorize torture on the basis of "ticking time bomb" scenarios depicted on the Fox TV series 24 which have never had any analogue in real life, once again the intent is to form policies in reaction to fantasy and not reality.  We may soon be asking our politicians to offer ways to verify that none of our law enforcement officers are really infiltrators from a sleeper cell of Lizard People From Outer Space Who Want To Eat Us.

(Don't even get me started on other kinds of political policies built on fantasies, like the idea that taking the phrase "In God We Trust" off the money will make children grow up to be homosexuals, or that teaching evolution in schools instead of the Lord's Prayer was the reason we lost the Vietnam War or we'll lose our religious liberties if gay people get the same kinds of property rights as staight people do, or whatever other bullshit policies are based on religious fantasies.  Those are every bit as pernicious, but for now, I'm content to confine myself to fantasies about terrorists found in movies, television, and video games.)

Soon-to-be-Former-Major Hasan apparently commited a terrible, awful crime.  But it was a crime.  It was not an act of war.  It was not a political statement.  It was not terrorism.  He is an accused criminal and like every other accused criminal within our government's power, he is entitled to due process.  I refer you, Bill Kristol and fans of his, to The Memo which I recirculated recently.  While there does not seem to be much doubt about Hasan's actions, application of the criminal procedures that are the very foundation of our national identity are critical to reaching justice.  Which is why he is, at this moment, only an "accused" killer despite the lack of any real doubts that he pulled the trigger

How We Treat Criminals

We don't get to re-brand a criminal act as "terrorism" simply because his deeds are horrific.  We don't get to put the Constitution on hold for a particular case just because someone calls it "terrorism" instead of what it really is.  We don't get to set our own morals aside even though someone else has done something very immoral.  Has it not occured to any of you Bill Kristol fans that Soon-to-be-Former-Major Hasan may very well be insane?  If he is, then we will not and ought not to treat him the same way we would a sane person.  That sort of examination is part of our justice system and it is not taken lightly by the courts.

The title of this post is "Treat A Criminal Like A Criminal."  That means arrest him, investigate the facts, proceed based on the facts, provide the same fair process and meaningful access to the justice system everyone gets including having a competent lawyer, put on a trial, present evidence and test it by cross-examination, prove the case beyond a reasonable doubt, sentence according to the same factors that apply to everyone.  That's how we treat criminals in this nation -- with dignity, due process, and according to moral standards worthy of a nation that is founded upon the rule of law.

Accused criminals get due process in the United States.  All of them.  This is not up for debate.