Macchiavelli, Mubarak, and Assange

The amazing thing, I suppose, is that it took nine days before things began to turn seriously violent in Egypt.

After Egypt’s dictator President Hosni Mubarak announced his intention to finish out his constitutional term of office and not seek re-election in regularly-scheduled elections this September, protesters calling for regime change in Egypt’s government seemed to split, with most of them crying that this wasn’t good enough and a sizable minority saying that Mubarak ought to be allowed to “depart with dignity” and make good on his vow to “die on Egyptian soil.” It turned ugly, people started throwing rocks, and now the Army wants the protests to end.

The U.S. response to all of this is diplomatic and nuanced in tone, too carefully and cautiously nuanced for some and not sufficiently bold and ideological for others. Many both in and out of Egypt fear that Mubarak’s announced leaves him sufficient time to put a puppet in place and that there will be no real change in how Egypt is governed, and that the United States actually has no particular problem with the idea that Egypt remaining only nominally democratic but a dependable ally is what we really want.

As I noted before with my comments about what Machiavelli would have thought of all this, that perception is probably exactly right. The problem is not that this policy is erroneous, it is that it has been stripped naked and its cynical, hard-headed realism is exposed for all the world to see. Consequently, the U.S. is losing standing and political capital with the very people out there in Tahrir Square, who for a week seemed to be open and sympathetic to the idea of engagement with the west and forming a secular democracy, who wanted a signal that they were thought of as the good guys in Washington and London and Paris.

Now, they’re not so sure. Now, they’re wondering if they have to look elsewhere for support. The handoff has been fumbled — it’s not clear whether that has been by some sort of mistake by Western diplomats, by Mubarak’s half-a-loaf concession, or if some kind of interference has made this all clear.

Which is why floating the idea of giving Julian Assange the Nobel Peace Prize on this of all days seems poignant. Assange wants to portray himself as a martyr for the cause of complete transparency in government, particularly the U.S. government. But that kind of transparency would prevent exactly the sort of public idealism/private realism maneuver which Machiavelli advises as the best way for statecraft and diplomacy to be practiced. Without the ability to be, well, Machiavellian about it, it forces a government outside of a situation like this to go all-in for one side or the other early on. It prevents hedging of bets, it raises the stakes of outcomes, and most importantly, it short-circuits the possibility of negotiated compromise settlements. Complete transparency means that gradual change becomes more difficult and revolutions, or violent repression of the same, become the only way change can take place.

Which is why Assange’s self-appointed mission of transparency is not a force for peace. Mubarak’s proposal contains the potential for being a tissue over the swapping of one strongman for another at the helm of the Egyptian ship of state, but it also contains enough of a framework for incremental change and a transition to democracy. That transition does not need to be generations long, but it probably can’t be successful overnight. Iraq did not transition from military dictatorship to constitutional democracy overnight, and neither will Egypt. Or Tunisia or Syria or Jordan or Libya or anywhere else that does not have a meaningful culture of peaceful political discourse and a tradition of democratic institutions upon which a constitutional republic can be built.

Mubarak’s compromise solution to protests against his government allows everyone some breathing room — it allows the West the breathing room it needs to assure itself that a new Egyptian government will not fall into the grips of radical Islamists or develop overt hostility to Israel. It allows the Egyptian military to stand back and not kill anyone, which it does not seem to want to do. It allows Mubarak the ability to withdraw from the field peacefully. It allows for democracy to actually develop in a way that will be enduring. And most of all, it allows the people of the various factions united only in their opposition to Mubarak’s authoritarian government the time to organize and present their visions of what Egypt could be in the future to the people of Egypt, without throwing rocks at each other or at pro-Mubarak forces and getting themselves hurt or killed.

This requires that there be some level of opacity in negotiations. This requires some tolerance of dissonance between public statements and official actions. It requires patience and nuance in forming policy. And it requires the maturity to tentatively accept compromise solutions. These are not things that radicalized crowds of protesters are good at. These are things that only leaders can do — and if Julian Assange forces their hands, radicalizes them, and prevents them from adopting these kinds of nuances, then he is not a force for peace, and he can look at the college kids in Cairo clashing with riot police and enjoy the spectacle of the world he has made.

Machiavelli On American Policy Towards The Egyptian Revolution

There seems to be some debate about whether the U.S. should be backing the Mubarak government in Egypt, backing the protestors, or standing back doing nothing.

Mubarak, after all, has been a good ally to the United States in a region of the world where that is not always the easiest thing to do; under his leadership Egypt has been both a leader in the Arab world and a symbol that peace with Israel and cooperation with the United States is possible.

On the other hand, obviously we want to see actual democracy in Egypt and if we take a principled approach to our relations with the rest of the world, the self-determination of the Egyptian people ought to be the highest goal we could encourage in that nation. We can be reasonably hopeful that a post-Mubarak Egypt would remain on good terms with the West, but not certain.

Standing by doing nothing, moreover, pleases no one and may embitter whatever leader comes out on top of Cario's current struggles. Egypt is the most ancient civilization on Earth and has the richest history of anywhere on Earth. So perhaps it is to the wisdom of the past that we should look:

...it is unnecessary for a prince to have all the good qualities I have enumerated, but it is very necessary to appear to have them. And I shall dare to say this also, that to have them and always to observe them is injurious, and that to appear to have them is useful; to appear merciful, faithful, humane, religious, upright, and to be so, but with a mind so framed that should you require not to be so, you may be able and know how to change to the opposite.

And you have to understand this, that a prince, especially a new one, cannot observe all those things for which men are esteemed, being often forced, in order to maintain the state, to act contrary to fidelity, friendship, humanity, and religion. Therefore it is necessary for him to have a mind ready to turn itself accordingly as the winds and variations of fortune force it, yet, as I have said above, not to diverge from the good if he can avoid doing so, but, if compelled, then to know how to set about it.

For this reason a prince ought to take care that he never lets anything slip from his lips that is not replete with the above-named five qualities, that he may appear to him who sees and hears him altogether merciful, faithful, humane, upright, and religious. There is nothing more necessary to appear to have than this last quality, inasmuch as men judge generally more by the eye than by the hand, because it belongs o everybody to see you, to few to come in touch with you. Every one sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the state to defend them; and in the actions of all men, and especially of princes, which it is not prudent to challenge, one judges by the result.

Il Signore Niccolò could be speaking directly to President Obama here. Actions should be strictly motivated by angles for advantage, and public statements should come dressed in the trappings of the highest moral ideals. Prior commitments and loyalties should only be honored in fact to the extent that honoring them is actually useful.

Mubarak has been a good and useful ally. But that is irrelevant. Which side we should support should be determined on which side promises to deliver more advantage to the U.S.A., and nothing more. Outwardly, we should be piously observant of the ideals of democratic self-determination, human rights and liberty, and the free traffic of both commerce and information among peoples.

How can we do this? The most sensible thoughts on the issue I've yet read can be found here.

If we can be reasonably confident that the Muslim Brotherhood will not get into a position of power, in a democratic Egypt, then Mubarak should be eased out peacefully, perhaps naming Mohammed ElBaradi as the "First Minister" or something like that. After a period of time, Mubarak resigns and retires to a sinecure somewhere that, importantly, is not in Egypt. Then a new constitution gets adopted, elections take place with the U.N. and Jimmy Carter and all the rest of the hoopla to make sure it's free and fair -- since as long as the really bad guys aren't going to call any meaningful shots, we like democracy.

But if there is a realistic chance that the bad guys could take power, then Mubarak stays.

Predictions for 2011

Completely undeterred by my decidedly spotty track record from last year, I'm forging ahead with bold predictions for 2011. A little different format this year, grouping my predictions by subject area:

International Relations:  No nuclear weapon for Iran, no overt military activity involving Iran. U.S. offers to broker peace settlement between India and Pakistan; both countries accept but no resolution reached. The civilized world, following a cue for the U.S. and China, will puss out and give more money and food to North Korea in exchange for their promise to not kill any more South Koreans until they do again. Turkey will cease attempting to gain membership in the European Union and make noises about withdrawing from NATO but not actually go through with it. Watch for religiously-motivated violence to dovetail in to Presidential elections in Nigeria, Mexico's drug violence to spread south of the border into Guatemala, and for Taliban/Al-Qaeda activity to spread from Afghanistan into Tajikistan.

Domestic Politics:  Congress will fail to impose meaningful spending cuts and by New Years' Day 2012, the U.S.A. will be more than fifteen trillion dollars in debt. Candidates announcing for the Republican nomination for President before year's end and will include at least Sarah Palin, Mitt Romney, Mike Huckabee, Tim Pawlenty, Ron Paul, Mike Pence, and John Thune.* The Republicans will shut down the Federal government and walk away from doing so with no significant gains to show for it. Emboldened by the prospect of such weak Republican competition, President Obama will announce no changes to his top Cabinet officers and no serious primary challenge to him will manifest in 2011. There are three gubernatorial elections in 2011 (Kentucky, Louisiana, and Mississippi), and Republicans will win them all. The Senate will consider filibuster reform and everyone will agree that the existing system has significant imperfections, but any attempt to actually change the filibuster rule for future Congresses will be, itself, filibustered.

Economy:  Will muddle along with little significant improvement or decline in jobs or construction. (I feel that I'm being optimistic when I say this.) Inflation will rise above an annualized rate of 4% and there will be much wringing of hands and gnashing of teeth, to little effect. The government will attempt to kick-start mortgage lending and consumer credit with loan guarantees to banks; this will result in little economic growth, more bankruptcies, and increased governmental debt.

Law and the Courts: The Ninth Circuit Court of Appeals will affirm the trial court's ruling in Perry v. Schwarzenegger, on the grounds that no party with standing to do so lodged a challenge to the plaintiffs' claims, and offer no binding legal authority on the Fourteenth Amendment claims. This ruling will be appealed to the U.S. Supreme Court, which will grant certiorari for an expected oral argument in early 2012. There will be no nomination to the Supreme Court.

California: Governor Jerry Brown will propose an austerity budget and quickly find himself at odds with his own party. Republicans will be all but completely ignored in the ensuing mess, and the annual budget kabuki will last even longer than it did this record-breaking year. The state will fall once again into drought, and unemployment will remain at functionally its current level most of the year, measured in jobs created versus jobs lost. (Again, it's my opinion that I'm being optimistic here.) There will be very serious wildfires in the Sierra Nevadas, possibly affecting parts of the southern Sierra national parks like Kings Canyon and Sequoia.

Movies: It'll be a big year for superheroes and quasi-superheroes: Pirates of the Caribbean 4, Thor, Green Lantern, Harry Potter 7 (Part 2), and I Am Number Four should all do very well. Captain America: The First Avenger a little less so; the X-Men, Hangover, and Transformers sequels will also disappoint. Speaking of which, we will learn that the villains in the third and final Christopher Nolan Batman movie (which we won't see until 2012) will be Catwoman (who we will learn trained with Ra's al-Ghul before his demise in the first movie) and a lesser-known villain named Black Mask. I'll be most looking forward to Jon Favreau's Cowboys and Aliens. Someone will make "WikiLeaks: The Movie" (it'll have a better name than that, I hope) and it will lose money. After seeing the financial success of reality television, we will see the first of several "unscripted" reality movies starring "real people" and it will make money, inspiring numerous dreary, insipid imitators.

Note that for the first time on record, I'm abandoning my prediction that Britney Spears will publicly and loudly become a devout Christian. Oh, it's still coming, but I realize now why she hasn't yet. Despite everything, she still has too much and needs to hit rock bottom -- I'm talking about the puking-on-her-own-vomit-in-the-ER, bankruptcy-trustee-with-moving-crew-at-the-door, owes-scary-money-to-Lithuanian-mafia kind of rock bottom.

* Gary Johnson doesn't count; he has effectively announced already and while out of that group I easily like him the best, let's face it, he doesn't have a prayer.

Scorecard 2010

Here were my predictions for 2010, and here's how they did:

1. Jon Huntsman will resign as ambassador to China and begin to lay the groundwork for a Presidential bid in 2012.  Has not happened.  In retrospect, I failed to credit the idea that Ambassador Huntsman might actually like being the Ambassador to the PRC and that he might not really want to be President.
2. Foolishly, Democrats will campaign in 2010 against George W. Bush.  This will fail and result in gains by Republicans, but more in the House than the Senate.  Congressional Republicans will realize a net gain of only two or three seats in the Senate, leaving the Democrats still firmly in control of that body and reviving talks of abolishing the filibuster.  But, net gains in the House of Representatives will be such that the Democrats' majority in the lower chamber will be roughly ten seats and Republicans will optimistically talk of re-taking the House in 2012.  Democrats abandoned their strategy of running against George W. Bush in favor of atomizing local races, which was only partially effective; Republicans took the House but not the Senate, although their Senate gains were larger than I had predicted.
3. A reconciled health care "reform" bill will not be passed out of Congress until March or maybe even early April.  Its effect will be to very moderately increase taxes on middle-class Americans, only negligibly affect their actual health care options, and substantially inflate both the governmental deficit and the profits of enterprise-level health care providers.  I'm taking credit for calling this one pretty much correctly.
4. The net inflation rate of the United States for CY 2010 will be in excess of 4%.  Gratefully, this has not happened, but only because the Fed has kept the prime rate at a rock-bottom level.
5. President Obama will again increase the number of American troops deployed to Afghanistan.  This happened. That doesn't mean I'm happy about it because I'm not, especially because we're now talking about bringing them home with no apparent political objectives accomplished despite hard work and bloodshed by our military.
6. Canada's government will collapse, for real this time, and new elections will result in a badly-fragmented Federal Parliament with the BQ playing the role of powerbroker.  However, the BQ will not be able to leverage this into actual autonomy. Didn't happen; PM Harper took a hard hit, but survived.
7. An El Niño condition will manifest in the Pacific Ocean, relieving California's drought. In fact, it was a La Niña, but we had a wet winter at the start of 2010 and a wet winter at the end of 2010, and have been out of drought conditions all year.
8. Despite the economic help of favorable (that is, "wet") weather, California will increase sales taxes to 10.5% or higher, resulting in the highest sales tax in the nation.  Despite this, functionally all incumbents in the Legislature eligible for re-election will be re-elected in November and the Democrat nominee (who right now looks like Jerry Brown) will win the Governorship. Mostly happened. The only thing I got wrong was the sales tax hike.
9. A national newspaper of significant stature, I'm thinking the Boston Globe, will be liquidated. The Seattle Post-Intelligencer went all-online and has functionally diedas a result.
10. 2010 will be a good year for the stock market.  The S and P 500 will realize a net gain of over 20% in CY 2010.  As of today, the S and P 500 is 1,124.57, so that means that to win this prediction, the S&P will need to be at least 1,349.48 on December 31, 2010.  The year-end close was it was 1,257.64.
11. Iron Man 2 will be the biggest box office hit of the summer.  But another much-anticipated sequel in the same general genre, Tron 2, will disappoint and lose money.  Wall Street 2 and Sex And The City 2 will both prove to be so unwatchably bad that we all would have been better off had they not been made at all.  Remakes of Clash of the Titans and Red Dawn will both prove to be convincingly entertaining.  Mostly happened. Clash of the Titans disappointed; the release of Red Dawn has been delayed; Tron was fun to watch but looks on track to not make much of a profit compared to its production expenses.
12. In First Amendment news, the Supreme Court will decide for the government, 5-4, in the case of Salazar v. Buono, ruling that a large cross, originally built privately as a war memorial, later transferred to Federal land, then the subject of an Establishment Clause lawsuit, and then the subject of a law transferring the cross to the VFW.  The Court's decision will consider the longevity of the monument as a significant factor mitigating against the finding of an Establishment.  (I consider this a pessimistic prediction, for the record).  Justice Sonia Sotomayor will prove to be the decisive vote in favor of the government.  I nailed it right up to the Sotomayor prediction, which turned out to be wrong. The decisive vote was Anthony Kennedy.
13. In Second Amendment news, the Supreme Court will decide, by at least 7 votes, that the individual right to own weapons articulated in District of Columbia v. Heller will be "incorporated" into the Fourteenth Amendment and thus apply to the several states as well as to the national government.  However, the Court will unanimously decline the opportunity to expand the "privileges and immunities" clause embodied in the arguments.  Watch for the decision in McDonald v. City of Chicago to be one of the last decisions announced in June. I hit this one right on the head.
14. Brett Favre will play his final year for the Minnesota Vikings, and then retire.  For real this time because he'll be 41 years old and in at least moderate pain almost all of the time. He hasn't announced his retirement yet and there will be lots of jokes in August, but after the Vikings' disastrous season, it's clearly time for Brett to say goodbye.
15. Iran will successfully detonate a nuclear device.  This will cause much wringing of hands and gnashing of teeth and many Americans and a significant number of Europeans will consider this to be an existential threat.  While all of this is going on, the Russians will hem and haw and whistle tunelessly while staring at the ceiling while trying to blend into the background and go unnoticed.  However, the Iranians will not use their newly-developed nuclear weapon against anyone, including Israel. Gratefully, this did not happen.
16. On December 31, 2010, the U.S. national unemployment rate will be somewhere between 7.5% and 8.5%. I was too optimistic here; the unemployment rate hovered just under 10% all year.

Not so good this year. Hey, at least I didn't make any predictions as boneheaded as these:

10. U.S. Vice President Joe Biden: "More people are going to be put to work this summer."  June 17, 2010. Embarrassingly for me, Vice President Biden's prediction looks a lot like one of my own.

9. U.S. private citizen Meghan McCain: Sharron Angle, Charlie Crist, Christine O'Donnell, and Carly Fiorina will win their Senate races. November 2, 2010. All those candidates lost, three by decisive margins, congruent with polling data that had been available for weeks prior to Ms. McCain's prediction.

8. U.S. President Barack Obama: Guantanamo Bay's prison facilities will close within one year. January 22, 2009. Still over 150 prisoners there and only three trials have been held, all resulting in convictions.

7. U.S. Gen. Stanley McChrystal: "We're not at the end of the military phase, but we're clearly approaching that." March 2, 2010. Gen. McChrystal was referring to Afghanistan, not Iraq, although in each theater we present have over 50,000 combat troops actively engaged in the vital job of killing bad guys.

5. (Tie) Greek Prime Minister George Papandreou and Irish Prime Minister Brian Cowen: "Our countries don't need to be bailed out" (paraphrase), February 21, 2010 and November 15, 2010. Within weeks of each prediction, both countries were bailed out of imminent financial collapse by special funds created by the EU and the IMF.

4. Newsweek Magazine: Venezuelan President Hugo Chavez will be ousted in a military coup, December 2009. While Chavez remains in power, Newsweek was sold for one U.S. dollar earlier this year.

3. Former Cuban dictator Fidel Castro: The U.S.A. will soon launch an overt attack on Iran, shortly followed by another overt attack on North Korea, June 25, 2010. That, um, didn't happen, El Commandante. Better luck next time.

2. Former U.S. Ambassador to the United Nations John Bolton: If Israel fails to launch an overt military strike on Iran within eight days, the Iranians will achieve a nuclear weapon, August 17, 2010. The Israelis (presumably) used a computer virus instead.

1. Russian Foreign Ministry Diplomatic Academy Dean Igor Panarin: "There is a high probability that the collapse of the United States will occur by 2010," March 3, 2009. Sharp political differences over seemingly vapid causes should not be mistaken for the imminent collapse of a common national identity.

...Stay tuned for my fearless predictions for 2011, some of which will be based on sober analysis and some of which I'm pulling straight out of um, parts of my body.

Closing Guantánamo Bay: The Buick Solution

General Motors has, after its traumatic financial reorganization, reduced its branding from eight or nine different brand names to four. One of its brands, GMC, is reserved for trucks, so it has only three levels of branding available for its passenger cars. Roughly speaking, Chevrolet is now the its entry-level GM brand, its mid-level brand is the Buick, and its luxury line is branded Cadillac. This will become important later on in this post, so just file that bit of background away as I move on to the substance of my thoughts this morning, which have to do with national security and justice.

It is probably beyond trite at this point to say that closing the prison for (accused) terrorist at the U.S. Naval Base on Guantánamo Bay, Cuba, is much easier said than done. While the facility itself can indeed be rendered into the past tense with a stroke of the President's pen, the prisoners therein cannot. And we are talking about some Very Bad Men in that prison.

Why close it at all, then? Why not stop worrying and learn to love Guantánamo? Well, in one sense, the President painted himself into a corner, having offered as a prominent campaign promise the closure of the facility. He's having his feet held to the fire on that from his left flank -- and, oddly, from his right, insofar as he's stuck his neck on the issue and seems completely incapable of admitting his own past naïvité on the matter.

One reason that is heard for closing the prison at Guantánamo is that it is purportedly the "number one recruitment tool" of Al Qaeda. Benjamin Wittes gives lie to that point. The presence of American military troops in Iraq and Afghanistan is the #1 recruitment tool we have handed the bad guys, and misconduct by U.S. military personnel is the #2 tool. If the objective is to starve Al Qaeda of new recruits, closing Guantánamo isn't going to make a lot of difference.

The pressure to close Guantánamo, at least according to Professor Wittes, is really in the form of diplomatic rhetoric from our European allies, who see the prison as a symbol of the Presidency of the detested George W. Bush. Ameliorating our European friends' distaste for our Immediate Past President is a markedly insubstantial justification for letting loose on the world about two hundred dirtbags against whom we have military intelligence strongly indicating a predilection for Blowing People Up.

This is particularly so when privately, most of the nations involved do not particularly want us to do this and are quite satisfied with our indefinite detention of people they do not particularly want delivered back to them. It seems we can point to Wikileaks for confirmation of that last fact.

So the real reason to loot at closing Guantánamo is that keeping Guantánamo open is somehow inconsistent with our own ideals. Having a federal prison located on a naval base outside the de jure territorial limits of the United States is not something that ought to give anyone much heartburn from a Constitutional law perspective. The Federal government can operate a prison, and it may do so wherever it exercises de facto power. Two things about Guantánamo are troubling from a Constitutional law perspective, though: 1) the claim that prisoners there are tortured, and 2) the prisoners are deprived of liberty without due process. Neither of these issues has anything to do with the location or name of where those things are purportedly happening.

As to the first issue, that too can be addressed with the stroke of a pen by the President. It can and should be addressed by Congress. The rule is, and ought to be, stark and simple. Regular Readers are familiar with it by now: no torture, ever. Someone who tortures someone else should be punished. We should be readily willing to offer inspections by NGOs for the purpose of verifying that we do not torture our prisoners because we should not be torturing our prisoners. This does not mean granting the NGO inspectors unfettered access to the prisoners, who are, after all, Very Bad Men.

As to the second issue, the practicalities of providing regular trials in civilian courts to at least the most prominent of these prisoners has proven a significant challenge. So far, only one such trial has taken place, U.S. v. Ahmed Khalfan Ghailani. Ghailani was charged with participating in the 1998 bombings of the embassies in Kenya and Tanzania which killed hundreds of people. The result of the trial was one conviction of conspiracy for the Tanzania bombing and acquittal on the other 284 counts brought against him. While I think this demonstrates the resilience of the regular court system to handle such cases, this ambiguous result is seen as a setback for the government's handling of these prisoners through the judicial process.

The significant issue raised by the Ghailani trial was that Ghailani's statements elicited under torture were excluded from evidence, as were interrogations that resulted from those torture-induced statements. This was the legally correct way for the court to handle the issue. Those who defend the use of torture point out that it is sometimes effective, that when done right it can elicit a great deal of information from the tortured prisoner. Maybe yes, and if so that's a very variable sort of case-by-case calculus, but torture is nevertheless incompatible with due process and incompatible with a ban on cruel and unusual punishment, both of which are Constitutional mandates and both of which are beyond the legitimate exercise of governmental power.*

More obnoxiously, the Administration announced before the trial started that Ghailani would not be freed regardless of the result of the trial. While this may be the right national security decision, it begs the question of why a trial is held at all. A show trial is not due process; indeed, it's better from a due process perspective to say "there will be no trial" than to have a meaningless trial.

So the question of dispensing due process to these prisoners is difficult. Civilian trials and civilian rules of justice in our civilian courts are the Cadillac of due process, but the Cadillac presents difficult challenges in this setting. So maybe we can't afford a Cadillac here.

Military tribunals may well be an effective answer to this conundrum; that might not be a Cadillac solution, but it might be a Chevy hatchback (I think those are called Aveos this year but I can't keep track anymore). Gets you where you want to go but not in any particular style or comfort, which translates to "it doesn't really look like something diplomatically or legally satisfactory."

Congress could solve this problem by creating a new court and a reasonable and fair set of rules of evidence and procedure designed to handle these issues. This could be a step up from a Chevy even if it falls short of being a Cadillac -- call it a Buick.

What we're doing right now isn't even on the GM rating scale -- it's walking. But if we can't afford a Cadillac and the Chevy isn't going to cut it, then the compromise is the Buick.

Congress has authority to do this under Articles I and III of the Constitution. Attempts have been made to go this route, but as of yet Congress has failed to exercise its power in this manner and the President has failed to pursue this solution. Were the President doing more than flailing about to balance the national security needs of keeping these Very Bad Men under our control, and the diplomatic and Constitutional imperatives of affording due process to everyone under our power, he would be tackling the problem from this angle. To be sure, there are complex issues here, but they can be worked out and we have no shortage of smart lawyers familiar with the issues who can contribute to resolving them.

Why he isn't, I don't know. Perhaps he hasn't had time to really consider this in between the myriad of other things demanding his attention; perhaps he lacks faith that Congress will put together something that strikes the right balance between these competing pressures; perhaps he genuinely lacks vision in this area or substantial concern for it, a bitterly disappointing proposition but one which I no longer find surprising. But that, in my sight, is the appropriate route towards undoing the Gordian knot of lawfully disposing of the Very Bad Men in Guantánamo Bay.


* I note that many of those who would defend the government's ability to use torture to extract information from a prisoner are of an identity with those who would criticize the government for reaching beyond the boundaries of its legitimate exercise of power by imposing the "individual mandate" of the "Obamacare" health reform law. Of course, a principled reading of the Constitution is too much to ask from any particular faction in politics these days and those of us who are willing to show real faith to the Constitution as an instrument of liberty and a practical and effective limitation on government's power are still looked on as the "crazy uncles" of American politics, who may raise a good point every now and again but mainly are to be politely disregarded.

Moral Vigilantes

This is what happens when a society succumbs to the pressure of fanatic religious moralism to the point that the ethic of minding your own business is discarded. Granted, Indonesia does not have a profound cultural or political tradition of privacy. But what we see here is a case of a religious majority imposing its ethics on those who do not share their beliefs -- and it is violent, cruel, and harmful to the society's economic and political growth. We should remember that in a free society, moral repugnance is not a good enough reason to outlaw something.

Julian Assange, Beta-Male Writ Large

In law, we make an exception to he hearsay rule for "dying declarations." The idea is that when someone is conscious of their own impending death, they attach special importance to the things they say, so that we may rely upon the truth of what is said.

One of the authors working today whom I admire the most is Christopher Hitchens. Hitchens is dying of esophogeal cancer. It sounds icky and awful. Hitch looks worse than he ever did even when on a bender.

But the thing about Hitch is that he will not go quietly into his good night. He is writing, speaking, communicating, at the same furious pace he did before he fell ill, and is not only candid about the effects of the disease which will inevitably fell him, but candid about the world around him. His legacy will be that he is The Man Who Told Us The Truth. And here is a particularly vicious yet satisfying truth from Hitch.

All you need to know about Assange is contained in the profile of him by the great John F. Burns and in his shockingly thuggish response to it. The man is plainly a micro-megalomaniac with few if any scruples and an undisguised agenda. As I wrote before, when he says that his aim is "to end two wars," one knows at once what he means by the "ending." In his fantasies he is probably some kind of guerrilla warrior, but in the real world he is a middle man and peddler who resents the civilization that nurtured him.

Assange is no hero. He is something very close to an anarchist, someone who believes that the U.S. government is a force for unmitigated evil in the world and which requires secrecy to operate effectively. Assange is wrong on both counts. The U.S. government is a force for great good.

Yes, it is periodically guided by imperfect people who lose sight of their objectives, and it employs imperfect people who sometimes are willing to cut moral corners to achieve their objectives. It is too often corrupted by money, it is periodically steered by stupid policies motivated by cynical political gain, and it is an evolved mishmash of those bad policies and periodic attempts to reform them. But at the end of the day, it is a government that follows the direction and the will of a large, empowered citizenry made up of fundamentally decent and good people, people who want to work hard and be left alone, a people who want to see the world around them become peaceful, wealthy, and democratic not only because that is in their own best economic interests but because it's the best way to be.

Assange can't see that, for some reason, perhaps because he's too busy reading the mythology he's written about himself. His attitude towards Western governments, particularly but not exclusively the U.S. government, is kind of like seeing a very pretty girl who has a small flaw (say, a gap between her front teeth). Because she isn't perfect, he turns up his nose at her and treats her with scorn, classic Beta behavior.

What's more, the U.S. government is one of leakiest in world history and becoming more so every day. It's operated in an atmosphere of very spotty secrecy for most of its existence because of our First Amendment, the same fundamental part of our government which would protect Assange even as he sneers at it; a protection we would extend to him not because of any love for the man but rather because it is a part of our own morals and ideals. That First Amendment has created a healthy and free press, it has created a culture of openness and disclosure and truth, it forces our government to do what it does out in the full light of day for everyone to see. Wikileaks is a flashlight shone in the eyes of someone trying to operate in broad daylight. The recent diplomatic leaks are no different -- they disclose nothing of interest that was not known already. From a macro-perspective, it is an inconvenience, nothing more.

Assange's delicate ego is seen in a question-and-answer session he did with The Guardian. He responded to a bunch of questions that described him as a heroic figure and Wikileaks as a noble cause, but when someone raised an issue of potential harm that might come about because of its activities, he simply dismissed and did not answer the question:

JAnthony

Julian, I am a former British diplomat. In the course of my former duties I helped to coordinate multilateral action against a brutal regime in the Balkans, impose sanctions on a renegade state threatening ethnic cleansing, and negotiate a debt relief programme for an impoverished nation. None of this would have been possible without the security and secrecy of diplomatic correspondence, and the protection of that correspondence from publication under the laws of the UK and many other liberal and democratic states. An embassy which cannot securely offer dvice or pass messages back to London is an embassy which cannot operate. Diplomacy cannot operate without discretion and the protection of sources. This applies to the UK and the UN as much as the US.

In publishing this massive volume of correspondence, Wikileaks is not highlighting specific cases of wrongdoing but undermining the entire process of diplomacy. If you can publish US cables then you can publish UK telegrams and UN emails.

My question to you is: why should we not hold you personally responsible when next an international crisis goes unresolved because diplomats cannot function.

Julian Assange:

If you trim the vast editorial letter to the singular question actually asked, I would be happy to give it my attention.

Contrast this question, which is critical in tone of Assange, to the rest of the questions in the published session, and you may get an idea of why Assange didn't want to answer it. JAnthony asked a legitimate question. Yes, he was a bit verbose about it, but Assange claimed the ability to have understood "the singular question actually asked" but nevertheless failed to answer it. He can dish it out, but he can't handle criticism at all. The exchange could have been phrased thus:

Q: Although you point to things that diplomats have done that are bad, diplomats also do good things like preventing wars, facilitating change in bad governments, and encouraging economic development. Diplomats need secrecy in which to operate effectively, whether for good or for ill. By taking that secrecy away, aren't you really destroying all diplomacy, not just the bad stuff?

A: I refuse to answer that question on the grounds that it tends to make me look bad.

Which is why his recent arrest and imminent deportation to Sweden is probably causing him to have an existential crisis which will be reconciled in his mind by the idea that he is really being prosecuted for his Wikileaks activity by the vindictive U.S. government using Sweden as a puppet. It couldn't possibly be that he did something wrong (albeit something that seems rather petty to most of the world) or that the reason he has been singled out for prosecution is the very notoriety he has so carefully cultivated about himself.

Point is, Assange isn't telling the truth for the sake of the truth. He is something close to an anarchist; he wants to see western governments destroyed because they sometimes do bad things and has blinded himself to both the good that they also do and to the inevitably worse consequences that would follow if his agenda were successful. He is not the man who is telling us the truth; he is the man who is exposing ugliness for the sake of making the world an uglier place, because he is so enraged and threatened by its mere imperfection.

Give me Christopher Hitchens over Julian Assange any day of the week.

WikiLeaks - An Apparently Dissenting Perspective

Nothing in the leaked documents is substantively surprising. We all knew, or should have known, that Arab nations are very nervous about a nuclear Iran, and also very nervous about saying so publicly. We all knew, or should have known, that Russia's democracy is woefully corrupt and that some of its officials are in bed with organized crime. We all knew, or should have known, that some "diplomatic staff," of all nations, are really there to gather intelligence.

We also all knew, or should have known, that diplomats and other people working in government have opinions and make jokes to one another.

It's a great shame that many of these people will now have to be transferred, have their careers interrupted or put along different paths, and that there is a degree of embarrassment particularly but not exclusively about U.S. diplomacy. But it's not like diplomacy is going to stop, either by the U.S. or anyone else. It's not like intelligence gathering is going to stop, either by the U.S. or anyone else. There's more sunshine on the process now.

The likely result of all this is going to be greater use of "top secret" designations for documents that probably don't really need to be treated that way.

Whoever leaked the documents has committed a crime. WikiLeaks itself, however, is a media outlet and does not seem to have committed a crime. I take the claims that peoples' lives are in danger with a grain of salt -- the ones whose lives really are in danger because of the exposure can be moved and protected.

I don't pretend to know whether Sweden is right to pursue a rape indictment against Julian Assange. But that's an entirely separate matter than leaking these documents and as I recall, rumors of that indictment pre-dated anything relating to the diplomatic documents release. If Sweden is, either on its own or bowing to pressure from another nation, going after this prosecution because of the WikiLeaks thing, that's pretty scummy.

Overall, I'm not pleased that the whole thing happened, but the media, the blogosphere, and the pundits are assigning more importance to it than seems warranted.

The Most Significant News You Aren't Paying Any Attention To

Russia and China have agreed to dispense with using the dollar -- or the Euro -- in their bilateral international trade. They don't need to anymore; Russian and Chinese financial markets are sophisticated enough to trade rubles for renminbi.

A Few More Thoughts On Sharia Law

Today's Fish Wrapper has a piece today on Oklahoma's Measure 755, about which I wrote a few days ago. One of the things that I found important to note was the fact that the sponsors of the measure could not point to a single instance in which an Oklahoma court had actually applied Sharia law. The Fish Wrapper picked up that ball and ran with it:

Backers of the amendment have cited only three cases that they contend show the threat of Sharia law. In each case, though, the courts gave no special dispensation for Sharia law. The activists say the judges erred by treating Muslims as they would other religious groups because Islamic law does not give women the same rights as men.
In the first case, a Maryland court upheld a custody order from a Pakistani court that was decided under Islamic law. Judges in the U.S. are required by federal law to uphold foreign custody orders if they comply with American legal values, but Rodgers argued that no Islamic court could ever meet this criteria.
In the second case, a Texas court allowed a couple to mediate a property dispute with a private arbitrator. That arbitration was conducted under Islamic law.
It is not unheard of to have religious law dictate private arbitrations in the United States — some observant Jews arbitrate disputes in a rabbinical court — but Rodgers contended that Muslims should be treated differently because their legal system is inherently flawed.
In the third case, a New Jersey judge ruled that a Muslim man could not be guilty of raping his wife because, due to his religion, he believed that a woman is required to have sex with her husband. An appellate court swiftly overturned the ruling, noting that it conflicted with long-established 1st Amendment jurisprudence that holds that religion does not excuse criminal conduct. The appellate court noted that the same rationale was used, erroneously, to justify polygamous Mormon marriages in the 19th century.

I've found one of those cases. It's called Qaddura v. Qaddura and it's a family law dispute from Texas. Rola and Jamal Qaddura got married in 1993. They had a religious ceremony first, in which an "Islamic Marriage Certificate" was signed and it included a dowry of $40,000 cash, payment of which was deferred, and a 1/2 interest in Jamal's house. An official marriage certificate was issued by the state of Texas a week later.

Six years after the marriage, Rola filed for divorce. She claimed the "Islamic Marriage Certificate" had the legal effect of a prenuptial agreement and should be enforced by the court to the effect that $40,000 and half of the house should be paid to her before the marital estate was liquidated and divided in half. Jamal said that the "Islamic Marriage Certificate" was induced by fraud and therefore was void.

The divorce court said in effect, "Dowries are contrary to public policy in modern-day Texas, and therefore we're going to treat this document as a nullity. Liquidate the entire estate and divide it in half equally." Meanwhile, primary custody of the kids was awarded to Rola. So each side got one big issue in their favor and one big issue against them. Rola's response to this was to file an appeal on the dowry issue, and then to sue Jamal and his brother for hiding assets. Jamal then sued Rola and her parents for endangering the children, which would have brought the custody issue back in play.

At this point, the case doesn't look all that different than any other nasty divorce that you read about in appellate case law -- this is Rich People Behaving Badly.

At some point, someone decided that the nastiness had gone on long enough and the dispute needed to come to a full and final end. An appeal to religion was made and Rola, Jamal, Jamal's brother, and Rola's parents all signed an "Islamic Arbitration Agreement," in which they agreed to submit the global dispute to the "Texas Islamic Court," which appointed three imams from three local mosques to resolve the dispute, and instructed the "Texas Islamic Court" to apply Sharia law to their decision-making process. The imams then said that they were going to re-examine the order of custody in favor of Rola and also going to re-examine the applicability of the dowry agreement -- so Rola had custody of the kids at risk again, and Jamal was at risk of having to pay more money to Rola again.

No one is happy with this, so they went back to the Texas courts with a dispute about the scope of the "Islamic Arbitration Agreement," which found its way to the Court of Appeal. The appellate court said, in essence, "This is your dispute, you can do what you want with it. You picked the arbitrators, who are these three imams. You picked the forum, which is this 'Texas Islamic Court' thingy. You picked the law that the arbitrators would apply, which is Sharia. You defined the scope of what these arbitrators would decide, which was everything. What we do is enforce contracts. You made a contract to give the whole dispute to the imams, so we're going to rubber-stamp whatever decision they make, even ones that reverse prior decisions by the trial court, unless you can show us a really good reason why we shouldn't, and you haven't done that yet. Go, now, arbitrate your divorce, and live with the result of your own decisions."

Which seems like exactly the right result to me. Unless a compelling governmental interest is subverted by what happens in the Sharia arbitration -- say, Rola is assumed to be a liar or not allowed to testify because she's female, thus violating the Equal Protections Clause -- the arbitration agreement should be enforced like any other contract.

The New Jersey criminal case looks like the trial judge made a mistake (probably as to interpreting the intent element of the crime of rape) but the appellate court's ruling seems right to me. All's well that ends well here, that's why we have appellate courts, and the law is clearer now. Note that the final and binding decision was made without regard for Sharia.

The Maryland custody case I haven't found. It seems as if the dispute about the case, if not necessarily within it, is about whether a Pakistani court can possibly comply with American legal values. I've found some differences in Sharia law to American legal principles:

• In Sharia, there is no separation of church and state. The government, individuals, religious institutions, and corporations are all equally subordinate to the will of Allah. This is a significant contrast with the First Amendment and the concepts found therein.
• Procedurally, the distinction between civil and criminal law is blurrier as compared to English common-law systems. Criminal prosecutions are initiated by the victims, not by the government. The victims have a voice in determining the punishment of a convicted criminal, but they are reminded by the court that the Koran requires Muslims to show mercy, temperance, and justice in so doing. In our system, of course, criminal prosecutions are the exclusive province of the state; any input from victims is ultimately advisory in nature.
• Individuals are held responsible for their own actions but not those of others. American legal concepts like agency, inducement, detrimental reliance, and respondeat superior are therefore substantially diminished in Sharia.
• The remedies for a particular case are not delimited by the law before judgment is rendered. A Sharia judge has great discretion to craft a remedy in a particular case in such a manner as to encourage the future behavior of all the parties, and of society in general, to act in harmony with the will of Allah; balancing that, when need be, against the idea of proportional justice ("the punishment should fit the crime"). Contrast that with limitations on the scope of civil contract and tort remedies, particularly punitive damages, and the limitations on availability of equitable relief found in U.S. and Commonwealth courts -- and with determinate sentencing, "three strikes" laws, and structured parole eligibility for criminal cases.
• There seems to be no right to a jury trial, or even a concept of a jury. This is not as important as it may seem at first blush, because in an arbitration setting in a U.S. court, one must by definition waive one's right to a jury trial.
• Social and family arrangements are to be treated with great caution because the presumption is a family is the way it is according to the will of Allah; therefore, a court should alter that structure only when there is a powerful and compelling reason to do so. This is different than the "best interests of the children" concept which is the overriding policy goal of most American family law.

With this last issue, I can see an argument going either way with regards to a U.S. court extending full faith and credit to a custody decision of a Pakistani court. If the Pakistani court relied on the status quo ante presumptions within Sharia, and ignored the interests of the children, then the U.S. court may need to re-examine that issue independently.

I haven't found any particular Sharianic statement to the effect that women cannot be witnesses or cannot initiate legal action, that they are presumed to be untruthful, or that they are in any formal sense of the word inferior to men when appearing before a Sharia court. To the contrary, the idea that everyone is equally subordinate to the will of Allah seems to suggest that a woman is equal to a man in Allah's eyes and therefore should be treated as a man's equal before a Sharia court. If that winds up being true in practice or not is a different question.

So yes, there are some significant differences between Sharia and U.S. law. But again, there is little here that seems so awful it can't be tolerated in a private arbitration agreement. And as a practical matter, the only way a U.S. court is going to deal with Sharia is by way of looking for substantial due process violations when it is asked to compel arbitration or confirm an arbitration award, or when it is asked to confirm and enforce a previous award of a foreign court pursuant to a treaty obligation or the Full Faith and Credit clause.

Silly Anti-Hapsburg Laws

I guess maybe to some people in Europe, it's not so silly to have laws that exclude the descendents of the former royal and noble families from becoming heads of state, but it seems rather silly to me that someone who can run for a country's Parliament and therefore theoretically become its Prime Minister and actual head of government cannot also run for President and become the country's honorary public figurehead:

A descendant of the Habsburgs is taking Austria to the European Court for Human Rights for not allowing him to run for president, his lawyer said Tuesday.
Ulrich Habsburg-Lothringen could not become a candidate in April 25 elections because he lacked the required number of signatures and Austrian law bars members of all ruling or former ruling families from running for the largely ceremonial post.
The Habsburg dynasty was once Europe's most influential royal house and held power from the 13th to the early 20th centuries.
The ban - which only applies to the presidency and is enshrined in the constitution - dates back to 1919 when Austria became a republic after centuries of monarchic rule. It was meant to quash any aspirations to reclaim the throne by members of the former royal family.
The complaint filed with the Strasbourg-based court argues that the ban violates Habsburg-Lothringen's human right to participate in democratic elections, said his lawyer, Rudolf Vouk.

Dr. Habsburg-Lothringen seems like a decent enough fellow on his own website; while there is plenty of blue blood in his veins it seems as though such money as he has is the result of what in America we would call a "small business" as a tree farmer, supplemented with work as a civil engineer and a raw materials purchasing agent for a paper plant.  His politics look to be well within the spectrum of socially-acceptable opinions of his nation, and he even has a blog! It's no more or less crankier than anyone else's; he's annoyed that the accident of his parentage excludes him from running for a particular office.

In America, we have both a ban on hereditary titles or grants of nobility, and a ban on laws that work a corruption of blood. These both seem like eminently fair and reasonable policies for all countries in this modern era of self-government. It's not Dr. Habsburg's fault that his ancestors were nobility. He is a citizen of his nation, he pays his taxes, he seems to have broken no laws. Maybe it's none of my business because I'm not Austrian, but if I were, I'd say, if he is otherwise eligible to run for President of his country, let him stand along with with his peers and solicit the approval of his fellow-citizens.

Since he can't even gather 6,000 signatures to be otherwise eligible to run, I don't think there's much danger that a Habsburg will actually be President of Austria anyway.

Hat tip to Robert Farley.

Fundamental Questions

While we in the USA take our democracy-within-a-republic very much for granted, we should not. It only takes a look across the Atlantic to our allies, trading partners, and friends in Europe to see people who look and act very much like us, but who nevertheless periodically confront much more fundamental questions about what good government is than we do. Here, we argue about marginal tax rates, marginal differences in expansion of government involvement in the health care system, and make noises about our debt but never really do much about it. Many of the social issues we confront and clash about are, in the grand scheme of things, really only so much noise. We aren't confronting basic issues like whether the government should nationalize every industry with 50 or more employers. We don't address questions like whether the military should provide police services. We have a very broad, very deep consensus in favor of our federalized republican form of government. In Europe and elsewhere, these kinds of issues are still in play.

I was reminded of this after reading a Portuguese blogbuddy celebrate the centennial of the proclamation of the Republic of Portugal today. One hundred years ago today, the purportedly constitutional monarchy fell and democratic rule became the government of Portugal. I say "purportedly" because an earlier King had imposed what was effectively a dictatorship within the framework of that Constitutional scheme, which resulted in his assassination.  The Portuguese have the good taste to not celebrate the anniversary of the assassination but rather of the subsequent proclamation of a republican form of government as the worthwhile date to commemorate.*  Now, because the author of this blog is a lawyer, he celebrated the holiday with a question -- was it worth it?

In response to the post, I took the time to educate myself about the events of the last century in his nation -- this is the sort of thing I think Wikipedia is good for -- and found an erratic history, one of republican government displacing monarchy, then collapsing into a quasi-fascism, then being usurped by military governments, and only within my lifetime returning to a parliamentary democracy in line with the bulk of Europe.  Looking at Portugal's economic history, it appears that its degree of economic prosperity has roughly coincided with the degree of freedom afforded its people during the last century. The Portuguese were always industrialized and compared with global nations never impoverished, but they've done much better for themselves under republican forms of government than the authoritarian alternatives that were tried. This hardly strikes me as a coincidence but I'm prejudiced in that regard.

On my counterpart's blog, I argued (with the aid of a translation tool since I have no Portuguese myself) that in broad terms, a form of government founded upon the rule of law will necessarily trend towards a republican form of government and away from an authoritarian model. I also argued that a government founded upon popular rule will eventually reach a republican level (which I did not define there as meaning "representative democracy" but that's what I meant) because anarcho-capitalism and direct democracy are simply too inefficient to provide for effective government and therefore even autonomous individuals who find themselves in such an environment will eventually come around to the idea that they need a government with teeth.  I'm borrowing heavily from both Nozick and Rawls here, but that brings me to my question for the morning, one which all you political theory junkies out there will enjoy. And I mean both of you.

My premise asks that you assume a large body of self-governing people who are dedicated to the idea of the rule of law. Is it inevitable that such people will choose a form of government that incorporates a substantial amount of representative democracy?  Or could they rationally, and consistent with their dedication to the rule of law, adopt an authoritarian form of government?  I know that democratic means have resulted in fascist military governments in multiple places during the 20th century (Portugal among them), so what lesson can we take from that -- did those elections represent a real choice by the voters or was there some sort of departure from the peoples' commitment to the rule of law?

It might also be the case that we do not have enough data points in history to plot a curve here -- meaningful self-government is a relatively new phenomenon in human history, after all.

Ultimately, it seems to me not, although I wonder if I must resort to special pleading when considering the cases of Germany and Italy in the 1930's, or if those can be written off as extreme points in the inevitable cycle of right-versus-left power shifts that will take place within a democratic system in response to fluctuating internal economic and external diplomatic conditions. I certainly hope that the rule of law leads to meaningful self-government, and I can't think of a way it wouldn't (eventually), but I've not poured enough brainpower into the issue to be satisfied that this is necessarily the case -- and the example of the rise of fascism in the 20th century suggests to me that I might be wrong.


* Touchingly, it looks to me like the most significant national holiday of Portugal celebrates the nation's greatest poet, Luís Vaz de Camões. Nothing like that here -- July 4 is a fine day to celebrate for our political history, but we have no holidays dedicated to the arts and our Portuguese friends have set an example that we ought to consider following.

A Text About 2 Years Of President Obama

In response to a query from a Reader in Portugal, written so that hopefully an automatic translator wouldn't lose too much meaning:

I can tell that your English is much better than my Portuguese. I had to use a computer translator to understand your blog. (I confess I do not understand the ongoing story about the penguins at all. Is it a parody of your government?) Hopefully you can make use of my thoughts.

I get the idea that you are as cynical about your government as I am about mine. Still, I hope what I have to say is useful to you. There was once a tradition in the US that we can criticize our President and our government only among ourselves, and that we should leave our political differences at the nation's borders. In this day and age, that is nonsense - the entire world can read about Americans arguing over politics on the internet and hear us doing it on television, so it is useless to hide the fact that we have strong differences of opinion over here.

In my opinion, President Obama has been a tremendous disappointment. I knew before he was elected that he would change our health care system so that we would pay more taxes for it but not get any real different service from our doctors and hospitals. That has come true. I knew before he was elected that he would continue the wars in Iraq and Afghanistan, while falsely claiming to be bringing them to an end. That has come true also.

But, he promised us that he would work to bring down our national debt. Instead, it has increased by 50% since he took office. He promised us that he would protect our civil liberties and would respect the limits on government power enshrined in our Constitution. Instead, he has continued to spy on American e-mail without getting search warrants, continued to hold prisoners in Guantanamo Bay without giving them access to attorneys, used government money to subsidize private religious activities, and treated gay people like second-class citizens. He has not even managed to appoint enough judges to adequately fill vacancies on our courts, despite having a very friendly Congress which ought to have given him the ability to appoint nearly anyone he wanted.

I do not think any President could have stopped our economy from crashing the way it did. But a responsible President would have found a way to mitigate that damage without giving billions of dollars to the very corporations that were responsible for setting up that fall. To be sure, President Bush did similar kinds of things, and if we had elected John McCain instead of Barack Obama to be President, I doubt things would be very different from what they are.

Obama has delivered on all his campaign promises that I did not like and he has broken all his campaign promises that I did like. Americans may have better emotions about their government with him as the President; people in other nations may have better emotions about the US with him in office. But I think Obama lacks the skills to really be a good President because he never did the sorts of things earlier in his career that would have trained him to become a real leader. If the USA were led by a Prime Minister instead of a President, maybe he'd have been good at that job. But that is not our form of government.

The most frustrating thing, however, is that I see no evidence to support the idea that the other major political party in the U.S. will select a candidate for President in 2012 who will be any better than Obama. I dislike feeling so hopeless, but I can take solace from the fact that the US is still a major industrial power, a wealthy nation, and one that is governed by laws and a strong Constitution -- so President Obama can only do so much damage while he's in charge, and eventually will have to step aside for someone else, who will probably wind up doing a different kind of damage in his or her own way.

I do not know very much about politics in Portugal or its economy. I know that your Prime Minister has reached out to other political parties and has promised reform and efficiency in government and that must have cost him a lot of political support. I know there was a scandal concerning whether he had earned his degree at university, which seems like it is not as important as whether he is leading the government in a good direction or a bad one, and there seems to be a lot of questions about whether he is taking money from companies in exchange for government contracts. In that sense he seems to me to be like former US President Clinton or Italy's Prime Minister Berlusconi -- he may be corrupt and dishonest personally, but it also seems like he's actually a capable leader and must possess some degree of charm in person. You would know better than I, of course.

It also seems like your nation, like mine, has confronted some difficult financial choices recently; at least your Parliament has confronted Portugal's looming pension problem in a meaningful if not entirely satisfactory way, which is more than I can say about our Congress and our pension problem here in the USA.

As one lawyer to another, I say to place your trust and hopes in the rule of law, and to remember that the most important, yet least understood, decisions about what life will be like in the future in a civilized nation are made in its courts and not its parliaments. Do not forget that you play an important role in that system.

Thanks for your note, [Portuguese Reader], and I hope to hear from you again.

- TL

What Obama Hath Wrought

To say that the Presidency of Barack Obama has been a disaster from a governmental restraint perspective is the understatement of the century.  Granted, the century is still young.  But can anyone doubt that Terry Michael's claims that libertarians should have endorsed and got behind Obama have been, at best, demonstrated as almost exactly wrong.  Yes, there are progressives condemning Obama as too conservative and conservatives condemning him as too liberal, but both are missing the point.

President Barack Obama is a statist, whose real agenda is maximizing the power of the national government and in particular that of the executive branch.  His real agenda for the direction of American government is a continuation, if not an acceleration, of the process begun under George W. Bush, a process with its roots in the creation of the Department of Homeland Security and Medicare Part D, which came to full flower in the bipartisan bank bailouts of 2008 and the government buyout of General Motors and Chrysler, and reached a triumph with the health care reform law.

Just like his predecessor -- no, even more callously and crassly than his predecessor -- Obama has suborned compliance with the law to his own political advantage.  Consider, for instance, this interview with an editor at the Associated Press concerning the Obama White House's attitude towards the Freedom of Information Act:

...shortly after President Obama took office, the department had instituted a highly unusual policy that is unprecedented at other federal agencies in which many hundreds of FOIA requests that had been submitted by members of the media, citizens, advocacy groups, members of Congress were being vetted by political staff who didn't know anything about the Freedom of Information Act.

They were allowing the political staff to govern the release of the information. Nothing could be released until the political advisers agree that it was okay to send it out the door. [¶] ... either the political staff, the senior staff in Secretary Napolitano's office were dictating which releases could be disclosed to the public and to the media and to the members of Congress, frankly, and when they could be disclosed.

[Interviewer Q:] But you're saying that they vetted the people who are making the requests. They were looking at the backgrounds of those people?

[A:] The documents that we got described in remarkable detail a process by which the FOIA staff, the career staff at the Department of Homeland Security were instructed to provide, along with a synopsis of the request for information, detailed information about where the person lived, who it was, was it a reporter, was it not, was it an advocacy organization, what was the interest of the advocacy organization. All of this is highly, highly unusual under the act.

In other words, who you were and where you stood politically affected what information the government would release, when it would release it to you, and what portions of it would be redacted. To be fair, the interview goes on to suggest that this policy has been changed and depoliticized somewhat. But the fact that it even occurred to someone to suborn the FOIA process to political considerations demonstrates that the law is viewed as an obstacle to achieving political goals.

And why shouldn't they view the law as an obstacle and not a goal? Obama and the Obamamen view the Constitution as an obstacle rather than a goal. The Fourth Amendment, for instance, is just as much an inconvenience to Obama and his security personnel as it was to Bush and the Bushmen, and their solution is the same -- get private companies, unbounded by the Fourth Amendment, to do all the government's without-good-cause spying on American citizens by proxy.  And Obama and his legislative minions have taken Bush's national security claims further than Bush ever did -- reserving the right to summarily execute an American citizen abroad who is accused* of aiding al-Qaeda, and what's more, making it a crime to offer that American citizen the assistance of counsel.  He has even left truck-sized loopholes in his own orders that continue to authorize the use of torture of prisoners in American custody.**

These things should not make you feel better that Obama is protecting our freedoms and our way of life.  These are attacks on our freedoms and our way of life.  Just like George Bush did before him.  What's worse, these attacks come from within our nation, within our government, come wrapped in the flag to make dissent and criticism of them appear unpatriotic and risky, and because they come from a Democratic President rather than a Republican one, leave the political left of the country largely silent in a damning exposure of their hypocrisy.  Not that the political right comes off much better in my analysis; they loudly condemn Obama doing today exactly the same sort of thing that they cheered Bush on for doing two years ago and the commitment of the "tea party movement" to meaningfully reducing the government's powers can be relied upon only for so long as the President of the United States is not a Republican, at which point we're back to the partisan-polarized dialogue about government power we had going in 2007.

There are meaningful and important differences between America's two political parties.  But I have come closer to thinking that the differences are not so important as the similarities.  There is no significant political organization in America devoted to individual freedom and restraining the power of government.  There is no significant political organization in America focused on the reduction of our government's spending deficit, much less elimination of its debt.  For too long we have allowed fallacious arguments about "the other guy" to distract us from the fact that the people entrusted with safeguarding our Constitution have been the ones subverting it.  "Yeah, but that other guy is really a bad dude and we should be scared of him!" is not a valid rebuttal to

Osama bin Laden masterminded the destruction of some very large buildings and the deaths of over three thousand people, which was an awful thing.  But as awful as it was, America survived that attack.  America was and is stronger than that.  As long as we are a free people, we always will be.  It is only from within, and not from without, that America can truly be defeated.  And the ones who possess the power to defeat America are the ones who ought to be leading it.  America will not be defeated on a battlefield or a chess match.  It will be defeated if and when it morphs into something new and different from what it has been.  That is why we should beware of efforts to change the definition of what an "American" really is.  That is why we should be educated and vigilant and principled with regards to how our government conducts itself.  And so far, my verdict is that we are still at risk.


* Probably correctly, I will stipulate.  That's not the point.
**  I've said it before and I'll say it again -- the rule should be "No torture.  Ever."

The Global Search And Replace Test Of Bigotry

From the Beeb, one of the bigger stories making the rounds today:

An Arab man convicted in Israel of rape because he pretended he was a Jew when he had consensual sex with a Jewish woman has called the verdict racist.  [¶]  Sabbar Kashur, 30, was found guilty of "rape by deception" by the Israeli court and sentenced to 18 months in jail.  [¶] According to the complaint filed by the woman, the two met in a Jerusalem street in 2008 and had sex that day.  [¶] When she discovered he was not Jewish, but an Arab, she went to the police.  [¶] Kashur was arrested and charged with rape and indecent assault, but the charges were later replaced by a different charge of "rape by deception".

A story about a random hook-up leading to a one night stand (or, one day stand in this case) followed by post-encounter regret is very common.  Such a series of events culminating in an accusation of rape for what was actually a consensual act is disturbing, but common, enough as well.  Adding the explosive elements of race, religion, and international politics to the mix of sexual politics gives this story real legs.

Seduction is, when examined closely, a sometimes ugly business involving not only deception of one's quarry, but also the preying upon the target's psychological vulnerabilities, a deliberate compartmentalization of the emotional richness of sex from the physical pleasure of the act, and choosing to empower one's own narcissism and physical aggression over one's morality and empathy.  Despite all this, seduction is not (or rather, ought not to be) a criminal act.  My first impulse, then, is say to the woman here, "Your story isn't one of rape, it's one of seduction.  You consented.  I'm glad you didn't get physically hurt.  Don't believe everything some random dude says when you've only just met him for the first time."

On the other hand, it's also the case that we should allow individuals to make intimate decisions on whatever basis they choose, and that includes race and/or religion.  One should be free to choose dating, sexual, or marriage partners of a favored group and no explanation need be offered -- Caucasian guys who really dig Asian women do not need to justify themselves and are not committing a crime by refusing to date, for instance, Latina women.  You and I might not approve of someone else using an explicitly racial filter to screen potential partners out, but we're not talking about government or even employment decisions here.  And I'm not ready to say that having a racially-explicit dating preference is something that contains enough malice to conform to the common understanding of the term "racist."

Maybe she pursued him and he just went along for the ride.  Or maybe (which seems most likely to me) they met and had one of those youthful prolonged conversations-with-sudden-infatuations and when things started to get all kissy-kissy, he didn't bother to correct her assumptions about what side of the tracks he came from.  Or, maybe he went way over the top with a line like "Oh yeah, baby, I'm like, totally in the tribe; I was awarded the Medal of Valor after my stint in the Second Lebanon War, but now I'm a pediatric cardiologist in at Tel Aviv Children's Hospital," and she believed it.  Does it matter?  Even if she was lied to in order to further the seduction, that ought not to be a crime -- not that I condone using deception to get sex, but let's keep it in perspective.  And at the end of the day, my perspective is not about the woman accusing the man of rape -- it's about the court convicting him.

Consider, for a moment, the fact that some people of sub-Saharan African descent have light enough skin that, to use the terminology of a fortunately-bygone era here in the United States, they could and sometimes did "pass for white."  Bear that in mind as I substitute some words in the story and produce this result:

A n Arab Black man convicted in Israel New York of rape because he pretended he was a Jew Caucasian when he had consensual sex with a Jewish Caucasian woman has called the verdict racist.  [¶]  Sabbar Kashur, 30, was found guilty of "rape by deception" by the Israeli New York court and sentenced to 18 months in jail.  [¶]  According to the complaint filed by the woman, the two met in a Jerusalem Greenwich Village street in 2008 and had sex that day.  [¶]  When she discovered he was not Jewish Caucasian, but an Arab African-American, she went to the police.  [¶]  Kashur was arrested and charged with rape and indecent assault, but the charges were later replaced by a different charge of "rape by deception".

...Which makes seeing the event, viewed as a whole, as an exercise in bigotry by the Israeli justice system that much easier, doesn't it?

Courts are supposed to serve not only as neutral arbiters of fact but also dispensaries of justice.  Laws are supposed to address real problems in society.  Prosecutors and judges and juries are not required to check their common sense at the door; they ought to think about what they are doing, particularly before sending someone to prison for a heinous crime.  Someone along the way should have looked at this and put a stop to it.  That did not happen for Mr. Kashur, and it is difficult indeed to imagine that the complex stew of race, religion, violence, history, and international politics -- all factors which had nothing to do with a peaceful, consensual seduction -- did not play a substantial role in what appears to be a miscarriage of justice.

No American Equivalent

I am actually a little bit stunned at this. And it remains to be seen if the Tory/LD coalition government in the UK will take any action on this or whether it's only so much window dressing. But can you even imagine something like this being done here in the States?

That's Deputy PM Nick Clegg in the video making that rather extraordinary post-election promise.  This link takes you to a webpage of Her Majesty's Government where individual citizens can explain how they believe their civil liberties are being abridged and at minimum some government flack is going to read the complaints and compile them in a report.

I've got to imagine that there will be a lot of cranks complaining about nothing they can clearly articulate and a fair number of people griping about paying taxes and a number of partisan hacks poisoning the well with complaints about innocuous policies.  But it's not like there aren't things for Brits to complain about.  Their government watches their citizens' spending habits, reserves the right to eavesdrop on their telephone conversations and e-mails, and utilizes criminal justice procedures the likes of which would shock civil libertarians here in the States.  And you simply can't walk around pretty much anywhere in London and especially in the Tubes without a CCTV camera monitoring you.

Given the abysmal, dismissive, and disappointing performance of the Obama Administration on civil liberty matters, I simply cannot imagine the government of the United States undertaking a similar sort of initiative with any degree of seriousness.

An Atheist In Charge Down Under

When I first heard that Australia had got a new Prime Minister, the first woman to hold that position, I sort of yawned. The idea of a woman leading a nation is simply not remarkable to me; women have been in politics long enough and enough women have demonstrated political ability and nerve that it's been proven to my satisfaction many times over that women can lead politically as well as men.

But when I found out that she does not believe in God, I sat up and took notice. Better yet, she is forthright and then dismissive about the matter:

She says does not go through religious rituals for the sake of appearance.

"I am not going to pretend a faith I don't feel," she said.

"I am what I am and people will judge that.

"For people of faith, I think the greatest compliment I could pay to them is to respect their genuinely held beliefs and not to engage in some pretence about mine."

"I grew up in the Christian church, a Christian background. I won prizes for catechism, for being able to remember Bible verses. I am steeped in that tradition, but I've made decisions in my adult life about my own views.

"I'm worried about the national interest. About doing the right thing by Australians. And I'll allow people to form their own views about whatever is going to drive their views."

Prime Minister Gillard attained her office by way of a squabble between two factions of the Labor Party, in which it appeared that she led a movement by the more leftward wing to wrest control of the leadership from the Tony Blair-like market reform Laborites led by the former Prime Minister, Paul Kevin Rudd. This is not an auspicious beginning to her leadership of her nation; she must now re-unify her own party and turn the government around, because the opposition Tories can point to both tough economic times and disunity within the Labor party when it comes time for elections again. Gillard will have her work cut out for her.

Talk about things that could never happen here.

Props To Prime Minister Cameron

The new government in the United Kingdom has done what needed to be done.  It cut spending.  Some social welfare benefits are being frozen, others capped, some given conditions.  It adjusted taxes, raising taxes in some places and easing the blow with tax cuts elsewhere.  A great many governmental benefits and taxes will both be indexed to inflation.  Even the Queen gets to feel the pinch.

It will be unpopular with British taxpayers and voters.  It will hurt; good people who work hard and try to do a good job at what they do in either the public or the private sectors, will experience setbacks; for some, they will be significant.  The new budget will severely strain the political coalition that formed the new government.  It is, in short, an austerity budget for the UK.

And it is precisely what Britain needs in both the short and long runs.  It is precisely the sort of thing that ought to be happening in the U.S. and any other industrialized nation whose central government's primary mission has become writing checks to its own nonproductive citizens.

Congratulations to Prime Minister David Cameron and his coalition partner, Deputy PM Nick Clegg.  It must have sucked to do, gentlemen, but it needed doing.  You have rendered Her Majesty's government and the United Kingdom a great service and set an example for the rest of the world to follow.

A Contrary Voice On McChrystal

Everyone is blogging, talking, and tweeting about the profile of General Stanley McChrystal in the current edition of Rolling Stone, which hit the Internets today.  What seems to be catching everyone's attention is a combination of the dismissive to disrespectful tone towards the Obama Administration that Gen. McChrystal allowed the reporter to see and which he seems to foster and encourage in his staff, and the fact that McChrystal so openly airs his policy disagreements with the President concerning the proper manner in which to handle U.S. military involvement in Afghanistan.

No one I've yet read seems to have given the remotest thought pay any attention to the fact that McChrystal also seems to have little time for Hamid Karzai.  Perhaps this is because because the President of Afghanistan is so obviously a second-tier player in the struggle to pacify that country, resulting from the impotence of the government he commands.

No, the big issue is McChrystals' obvious disrespect for the commander-in-chief, as evidenced by slurs, dismissals, and public contradiction of his surrogates, in the form of the Vice President, the Ambassador to Afghanistan, and Cabinet officials.  Many people call McChrystal's attitude insubordinate and some have called for his resignation, recall, or firing.  He has been summoned to a sit-down with the President about the article and it has so far earned the approbation of "poor judgment" from the White House.

I won't disagree with saying that allowing the Rolling Stone reporter to get this close to him and his staff, and airing his attitude towards the President so publicly, is "poor judgment."  It's appallingly unprofessional.  But I also don't think McChrystal is insubordinate.  He doesn't like the President and disagrees with the President's policies.  No one ever said he had to like the President; he has a right as an American to disagree with the President's policies.

What he has to do is follow the President's orders and implement the policies he's instructed to implement as best he can and using all the skills, personnel, and materiel available to him to do so.  If you read the article closely, you will see that he argued for implementing a counter-insurgency policy in Afghanistan -- and prevailed; the President agreed with that suggestion as a matter of fact if not in explicit terms, and gave McChrystal nearly all of the men and materiel that he requested to implement that policy.  The President is perhaps unenthusiastic about the policy but that's what the decision is.

There is no insubordination because I cannot find a spot in the article in which McChrystal is described as disobeying an order given to him by the President or even by the Pentagon.  He might be portrayed from the article as dragging his feet on things he does not think are good ideas, of creating policies of his own to do things he wants done in his way, and putting his hand in politics in Washington, Kabul, London, and elsewhere to try and create an atmosphere favorable to doing things his way.  But the very nature of his position requires this of him.  Counterinsurgency, as we've come to know from the Iraq war, requires a close relationship between the occupying military and the government which it is trying to prop up.  That government, in turn, takes as many cues from events in Washington and London and Paris as it does from events in Kabul and Kandahar.

Perhaps more to the point, a general given command of an entire theater is supposed to create policies to implement the mission.  He isn't supposed to be a mechanic turning wrenches at Bagram.  He's supposed to be identifying and solving problems on his own.  To criticize a man in McChrystal's position for making and implementing the policies he thinks are the right ones is to criticize a business executive for doing things that he believes will maximize profits for his corporation.  Maybe you disagree with those decisions; that's one thing.  But he's supposed to be making them.  As to orders given to him, he certainly has a hand in fashioning what they are, but he has not disobeyed them and has not held himself out as having superior authority to the President.

This may be an indiscreet man, less politically savvy than one would prefer and one too willing to use leaks to influence the political dynamics at home to get his way.  Perhaps he let his ego get in the way of establishing a good relationship with the President; perhaps the President's fundamental disinterest in military matters is partly to blame for that, too.  But my impression after reading the article is that he is not insubordinate, and he does not represent a threat to civilian control of the military.  This is not a situation akin to the challenge to civilian control of the military that Douglas MacArthur came to represent in 1951.

The real issue, it seems to me, is that counterinsurgency doesn't seem to have been the right choice.  Not just President Obama, but also General McChrystal himself appears to have doubts and ambivalence about it.  It hasn't produced any results yet.  And the story is not so much that a General in the military would clearly prefer to be reporting to a different commander-in-chief than he does -- the story is that this General, having argued and successfully politicked for something approximating this policy, is having a hard time getting it implemented the way he wants and a harder time selling it to his troops.  Here's the real money quote from the article if you were to ask me:

"Fuck, when I came over here and heard that McChrystal was in charge, I thought we would get our fucking gun on," says [Staff Sgt. Kennith] Hicks, who has served three tours of combat. "I get COIN. I get all that. McChrystal comes here, explains it, it makes sense. But then he goes away on his bird, and by the time his directives get passed down to us through Big Army, they're all fucked up – either because somebody is trying to cover their ass, or because they just don't understand it themselves. But we're fucking losing this thing."

That seems to me to be profound evidence of a political failure on McChrystal's part.  General level officers have jobs that are political and executive rather than operational in nature.  If McChrystal can't get the orders he needs distributed to the soldiers in the way that they should be implemented, if he can't get the soldiers who need to implement those orders to understand and embrace their mission, that's a failure by a military leader to get his own job done, never mind whether or not the politicians in D.C. are sticking their fingers in what the General is trying to do.

That's not to say the President comes out of this article looking good.  He doesn't; my impression of Obama from the article is that Obama has no good ideas of his own for Afghanistan and agreed to counterinsurgency because no one else gave him any better ideas.  But the article isn't so much about Obama as it is about a general who has (had?) a plan but can't seem to make it happen because he can't find a way navigate the course he wants to steer between the people to whom he reports and the people who report to him.

Which gets us back to the big picture.  That picture is that as in Iraq, there is no "winning" the war in Afghanistan.  At best, there may be sufficiently stable enough conditions that a substantial withdrawal of U.S. military forces can be accomplished with honor and credibility.  For that to happen, there has to be a functioning government that is more or less within the orbit of the industrialized West.  That, everyone seems to agree, is not a destination yet on the horizon.  If a reasonably-functioning government cannot be established, then Kabul 2015 is going to look a lot like Saigon 1975.

Let me throw out an idea for your consideration.  Maybe you won't like it, and I'm not 100% behind it myself.  But I think it deserves some thought.  Democracy in Afghanistan is not the answer.  The "reasonably-functioning government" in Afghanistan that we must create will inevitably be based on a competent, centrally-controlled military; the involvement of a democratic process in selecting the people who ultimately command that military is a secondary concern at best and more likely somewhere between an irrelevancy and an impediment to the real goal.