Category: Barack Obama

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Barack Obama Financial Crisis Law Politics The Opinionsphere

Obama and the Rule of Law


[digg-reddit-me]Right-wingers and some conservatives are trying out a new approach in their attacks on Obama – as you can see from the growing meme on the right that Obama has no respect for the Rule of Law. I’ve come across this meme in a George Will column, a Wall Street Journal editorial, and in a blog post by Jim Manzi for the National Review / The American Scene all last week. All three authors have focused on one particular event – Obama’s role in the Chrysler sale/bankruptcy/bailout. I for one am glad to see the National Review and Wall Street Journal finally coming around to accepting the importance of the Rule of Law after eight years of promoting George W. Bush’s blatant disregard for the law – but I digress.

The past eight years have demonstrated to many Democrats and liberals the vital importance of the respect for the Rule of Law to a well-functioning state – as President Bush concentrated more and more power in the White House and asserted authorities both beyond and over the law – which is why an accusation that President Obama is not respecting the Rule of Law must be taken seriously.

It is hard though to take the example all three authors use seriously – Obama’s intervention in the Chrysler mess. I can understand why people might object to what Obama did – if you consider unions to be a malevolent force, you certainly don’t want them helped out – and it is unseemly that they donated so much to Obama only to be rewarded now (of course, the creditors also gave Obama a great deal of support.) But neither of these objections is based on Obama disrespecting the Rule of Law.

Certainly, even these authors are not accusing Obama of disrespecting the Rule of Law in the same manner as George W. Bush – who did not believe he was bound by law when acting to protect Americans. The unitary executive theory he accepted and Cheney, Addington, and others used, is a direct assault on the idea that the president is bound by the law. Obama does not take this position.

These authors make a big point of the fact that Obama is abrogating contracts – but this objection is a bit silly. Obama is not a party to these contracts – and thus has no obligation to honor them personally. The Contracts clause of the Constitution – the Law which it is being alleged Obama has broken – was meant to constrain the individual states rather than the President or even the Congress. Congress was in fact given the power to abrogate contracts through bankruptcy proceedings in the Constitution. Obama – in intervening in the case of Chrysler – helped to negotiate an out-of-court settlement of the matter. Out-of-court settlements happen all the time – and are welcomed by overburdened judges who see it as better to allow all sides to come to an agreement rather than having to order them to agree.

To call this a violation of the Rule of Law is disingenuous at best.

What these authors are right to be concerned about is the concentration of power that undermines the system of the Rule of Law – as the government’s role in backstopping the finance and auto industries leaves it with enormous leverage. But their fears should be allayed by the fact that most of these interventions are temporary. (Of course, George Will is on the record disbelieving this based on the old adage – as are all of Will’s beliefs – that once government has taken a power, it will not give it up.)

Liberals have continued to voice a different set of concerns about Obama’s respect for the Rule of Law – pointing to the many Bush administration positions Obama has accepted. But they key difference between Bush and Obama is that even as Obama may be putting forward positions on these issues which are controversial, Obama has given the sense he will concede if his legal means of asserting these claims are defeated. Bush in at least one instance refused to end a clearly illegal program despite the fact that his own Justice Department had declared it illegal. 

I do find a few areas of concern. The power of the executive branch has grown enormously in the financial crisis – between the Stimulus Bill and the bank bailout. While in the short-term this may be necessary, if steps are not taken, this would undermine the balance of power between the federal government and the states. While this in itself is not a violation of the Rule of Law – it does weaken the system which together helps maintain the Rule of Law. And it is this that conservatives and right-wingers seem to be ojecting to – but their rhetoric about the Rule of Law being disregarded is hyperventilationist – and for those who did not likewise say the same of our previous president, hypocritical.

But by far the most disturbing manner in which Obama is undermining the Rule of Law is in how his administration is keeping Bush’s policies on the matter of Bagram. The Supreme Court’s ruling on the rights of detainees to certain basic rights at Guantanamo was in a large part based on the idea that our government should not be able to deprive an individual of rights merely by moving them to a particular location. But this is exactly what the Obama administration is claiming with regards to the detainees brought to Bagram from around the world. Our nation’s freedoms are grounded in our traditions. This includes a respect for contracts, a balance of various powers, and an energetic chief executive – but at it’s base, our traditions are grounded in a single, fundamental restriction on the state. To quote Winston Churchill:

The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist.

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Barack Obama Criticism Morality National Security Politics The Bush Legacy The Opinionsphere The War on Terrorism

Cheney Is Preemptively Politicizing The Next Attack

[digg-reddit-me]Stephen Hayes of the Weekly Standard is reporting that the CIA’s Information and Privacy Coordinator has rejected Cheney’s request to declassify documents Cheney insists prove that torture worked. As the CIA explained in what is an apparently leaked excerpt from their letter to Cheney:

In researching the information in question, we have discovered that it is currently the subject of pending FOIA litigation (Bloche v. Department of Defense, Amnesty International v. Central Intelligence Agency). Therefore, the document is excluded from Mandatory Declassification Review.

Essentially, the CIA’s response is that the form of Cheney’s request is improper – though they are not excluding it’s release by other means.  Though the Obama administration could have reached out and helped out Cheney by intervening and (technically independent of Cheney’s request) releasing the documents, they chose not to at this time. This is what is actually going on behind the blaring headlines: White House Snubs Cheny!

In requesting these documents be released, Cheney was echoing Mark Danner, a journalist for the New York Review of Books who published the leaked Red Cross memos that documented the torture conducted by the Bush administration. Danner explained why we needed to declassify any relevant documents – even if they proved torture worked:

Mr. Cheney’s politics of torture looks, Janus-like, in two directions: back to the past, toward exculpation for what was done under the administration he served, and into the future, toward blame for what might come under the administration that followed.

Put forward at a time when Republicans have lost power and popularity—and by the man who is perhaps the least popular figure in American public life—these propositions seem audacious, outrageous, even reckless; yet the political logic is insidious and, in the aftermath of a future attack, might well prove compelling…

The only way to defuse the political volatility of torture and to remove it from the center of the “politics of fear” is to replace its lingering mystique, owed mostly to secrecy, with authoritative and convincing information about how it was really used and what it really achieved.

Danner argues:

This is the only way we can begin to come to a true consensus about torture. By all accounts, it is likely that the intelligence harvest that can be attributed directly to the “alternative set of procedures” is meager. But whatever information might have been gained, it must be assessed and then judged against the great costs, legal, moral, political, incurred in producing it. Torture’s harvest, whatever it may truly be, is very unlikely to have outweighed those costs.

As Dawn Johnsen, who Obama has appointed to head the office that under Bush authorized torture, wrote for Slate:

Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.

All of this demonstrates why Obama must release these memos – for only with full disclosure, with the Bush torture program subjected to the only disinfectant a democracy has – the sunlight of public opinion and inspection – only then can we come to a consensus on torture. This is the inevitable logical end of Obama’s stated positions. And there is reason to suspect this is still the plan. Those who have reviewed these documents (aside from Cheney) have said they do not prove what Cheney insists they do. As Stephen Bradbury, the compliant head of the Bush Office of Legal Counsel in 2005 who replaced the right-wing but independent Jack Goldsmith, concluded in a still classified memo (which seems to be referencing the memos in question):

[I]t is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks…

So – if these memos don’t support the Cheney position – or offer only qualified support for it – why hasn’t Obama called Cheney’s bluff and just released them? Musn’t he be hiding something?

The one thing I have learned paying attention to Obama over these past few years is that it is often easiest to figure out what he means by listening to what he says. Obama has a way of setting a goal – then compromising, pushing deadlines off, hedging, keeping his mouth shut, and moving steadily forward – all while his opponents shriek and the media analyzes every small signal for portents of what is to come – until everyone misses the story and Obama’s goal is accomplished. This is the story of how Obama beat Hillary and McCain and of how the stimulus was passed.

On the issue of torture, Obama has been clear. He has ended the practice. He wishes to move on – but he does not wish to sweep the crimes of the Bush administration under the rug. He cannot appear eager to prosecute anyone – and he doesn’t seem to be. But he realizes that in a liberal democracy such as ours, there must be accountability. What is required is a balancing act – as he tackles the essentially political task of achieving a national consensus on the issue that will survive in the aftermath of the next crisis.

For Cheney, the political logic is also clear. He believes a crisis requires a strong executive empowered to do whatever is necessary. In defending this belief in the way he is, Cheney is setting Obama up to be politically kneecapped in the immediate aftermath of the next attack. Cheney is preemptively blaming Obama for the next significant terrorist attack – and preemptively politicizing the aftermath of that attack, preparing the ground for a resurgence of the Cheney model of the executive (which is in essence an elected tyrant). This is a truly dangerous game Cheney is playing.

Obama is struggling with how to counter this. He knows it is likely that America will be attacked in his first year in office. Both Bill Clinton and George W. Bush were tested in this way in the beginning of their presidencies. Obama must demonstrate that he is not going too far too fast in pushing back the Cheney model – lest that push be blamed for the next attack as Cheney wants it to be. Yet the Bush-Cheney policies are being legally challenged on every front – and even to delay rolling them back, Obama must defend them. What Obama needs is a gradual, thoughtful, public process.

My suspicion is that Obama will let Cheney continue to promise more openness and accountability. Cheney has already promised to testify before Congress; he is pressuring for the release of classified documents; he is making his case in the public arena. Cheney’s insistence on fighting this out in public will give Obama cover to convene a truth commission – perhaps Cheney himself may even call for one. This strategy would effectively deal with the very real threat that Cheney’s preemptive politicization of the next attack poses to the country and to the presidency.

And it means the photos just held back must be released; it means we must get to the bottom of what Nancy Pelosi knew and when she knew it; it means we must figure out what the well-timed leaks about Jane Harman and Nancy Pelosi were meant to accomplish; it means we must know how effective torture was or was not; it means we must have a truth commission. 

 

 

[Image by the World Economic Forum licensed under Creative Commons.]

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Barack Obama Conservativism Criticism Economics Financial Crisis Liberalism Political Philosophy The Opinionsphere

The intellectual deterioration of the conservative movement

Richard Posner has written one of those posts that gets talked about despite it’s lack of hyperventilation – it’s a thoughtful, reflective piece on what he calls the “intellectual deterioration of the once-vital conservative movement in the United States.” Posner summarizes the deteriotion:

[T]he policies of the new conservatism are powered largely by emotion and religion and have for the most part weak intellectual groundings [such that]the face of the Republican Party [has] become Sarah Palin and Joe the Plumber. Conservative intellectuals [have] no party.

Posner sees this decline as a symptom of the movement’s success. I think he’s half right.

Philip Bobbitt posited some time ago his theory of the evolution of the state – from princely city-states to kingly states to imperial states to the modern nation-state. The next step – according to Bobbitt – the one to which we are already evolving – is the market-state. And while a nation-state was legitimized in the eyes of it’s people by ensuring people were provided for (thus setting up the economic battle of the Cold War, as capitalism and Communism competed on this front), the market-state is legitimized by offering the maximum amount of opportunity for it’s citizens. Bobbitt’s theory is interesting – and if not entirely perfect, it is certainly useful. 

Given this structure, you can easily understand how the nation-state liberalism of Lyndon Johnson gave way over time to the market-state liberalism of Bill Clinton and Barack Obama. By this reading, conservatism did not so much win any more than nation-state liberalism “won.” Both were appropriate responses to their times.

Unfortunately for it’s proponents, conservatism (like nation-state liberalism in the 1970s) did not evolve with the times, but remained staticly committed to the principles that worked so well three decades earlier. The innovative ideas of the 1980s have become the brittle orthodoxies of the present. As conservative historian Niall Ferguson explained – “only the left” has a credible response to the issues of our day. The Right is still fighting the battles they won decades ago.

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Barack Obama Criticism National Security Politics The Opinionsphere The War on Terrorism Videos

Fox News uses Nazi propaganda to defend torture, attack Obama

[digg-reddit-me]As a preview to this Keith Olberman video, here’s quick review of the background on this: Andrew Sullivan wrote a post comparing the adopted hero of the right-wing, Winston Churchill, and current creature of the right-wing, Dick Cheney – specifically on the issue of torture. Sullivan explained that Churchill refused to torture German prisoners even with Britain being bombed daily by the Germans. He cited one of Britain’s chief interrogators during World War II on torture:

[He] did not eschew torture out of mercy. This was no squishy liberal: the eye was made of tin, and the rest of him out of tungsten. (Indeed, he was disappointed that only 16 spies were executed during the war.) His motives were strictly practical. “Never strike a man. It is unintelligent, for the spy will give an answer to please, an answer to escape punishment. And having given a false answer, all else depends upon the false premise.”…

Barack Obama then cited Churchill’s refusal to torture during a press conference – and aides later confirmed he reads Andrew Sullivan’s blog and had come across this information shortly before he brought it up at the press conference.

Immediately, the right-wing press began to try to reclaim Churchill as their hero re-branding him as a torturer and war criminal.

Take it away, Keith…

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Barack Obama Economics Financial Crisis

Theories of the Financial Crisis: Animal Spirits

[digg-reddit-me]David Brooks is a reliable barometer of the opinions and beliefs of the Washington establishment (and I don’t mean that as an insult.) The figure he cuts is a rather odd combination of an amateur (but insightful) anthropologist and a insider protecting the system. All of this makes it significant to note that David Brooks has on several occasions stated that the root of this financial crisis is a “loss of confidence.” He has stated this in several of his columns, including his one immediately following the September 15 freefall:

At its base, the turmoil wracking the world financial markets is a crisis of confidence.

Many of Geithner’s critics have said that he is treating the financial crisis primarily as a liquidity crisis – which is defined as “a ‘general feeling of mistrust in the banking system’ conducting to a temporary disappearance of credit.” This is a common form that a crisis of confidence in the financial system takes.  

The Congressional Oversight Panel in their report [pdf] written to evaluate the TARP bailouts, for example, described what they saw as one of Geithner’s asusmptions :

One key assumption that underlies Treasury’s approach is its belief that the system-wide deleveraging resulting from the decline in asset values, leading to an accompanying drop in net wealth across the country, is in large part the product of temporary liquidity constraints resulting from nonfunctioning markets for troubled assets. The debate turns on whether current prices, particularly for mortgage-related assets, reflect fundamental values or whether prices are artificially depressed by a liquidity discount due to frozen markets – or some combination of the two.

Paul Krugman has also often made this point – stating that Geithner seems to be acting as if we were in a liquidity crisis – in which the loss of confidence is the cause of the problem – instead of a solvency crisis – in which the loss of confidence is a symptom of the problem. 

Geithner, for his part, rejects this assertion that he is treating the problem as a liquidity crisis. When asked, he said it was, as all financial crises are, a combination of the two.

If this is primarily a crisis of confidence, there have been a number of historic examples of how these were contained. For example, this is a description of the resolution of the Panic of 1907 – in which J. P. Morgan’s timely intervention demonstrated how this could be done:

Shipments of gold were on the way from London to New York, and confidence had returned to the French Bourse, “owing,” reported one paper, “to the belief that the strong men in American finance would succeed in their efforts to check the spirit of the panic.” During a panic, confidence is almost as good as gold.

As politicans saw how these crises could be contained – and as they realized Morgan who had successfully beaten back several of these panics was getting near his end – they created the Federal Reserve to officially take on the role Morgan had been unofficially occupying, the lender of last resort and de facto regulator. 

As panics are short, they generally do not affect the fundamentals of the economy – but in a liquidity crisis such as this, restoring confidence is a more delicate task. It involves restoring what John Maynard Keynes referred to as “animal spirits” – those positive energies that cause people to be trusting and optimistic that are essential to a thriving economy. As Keynes wrote in his seminal work, The General Theory of Employment, Interest, and Money:

Even apart from the instability due to speculation, there is the instability due to the characteristic of human nature that a large proportion of our positive activities depend on spontaneous optimism rather than mathematical expectations, whether moral or hedonistic or economic. Most, probably, of our decisions to do something positive, the full consequences of which will be drawn out over many days to come, can only be taken as the result of animal spirits – a spontaneous urge to action rather than inaction, and not as the outcome of a weighted average of quantitative benefits multiplied by quantitative probabilities. [my emphasis]

This idea of animal spirits has created an opening for what appears to be Obama’s favorite branch of economics – behavioral economics. While economics generally treats human beings as homo economics, rational, self-interested (indeed, selfish), individuals who act entirely to serve their best interest (and who know what their best interest is) – behavioral economics takes a more scientific view of human beings. They try to understand human behavior through testing and real-life examples rather than through theoretical models. Some of Obama’s top advsiors from Cass Sunstein to Austan Goolsbee are known to be proponents of behavioral economics. And a recent article by Chrystia Freeland in the Financial Times, suggests that Obama’s administration may be using behavioral economics to solve this crisis, describing how “emotions might yet save the economy“:

Judging by the upbeat economic message we have been hearing from the White House, the Treasury and even the Federal Reserve over the past six weeks, that is a shrewd guess. The authors argue that “we will never really understand important economic events unless we confront the fact that their causes are largely mental in nature”. Our “ideas and feelings” about the economy are not purely a rational reaction to data and experience; they themselves are an important driver of economic growth – and decline.

I don’t have the expertise to judge if this crisis is one of solvency or confidence or whatever else it may be. But at this point there is a feeling – almost of a wind at the back of the economy. (I certainly hope this is the case.) It does seem to me that the lack of confidence is a major cause (rather than merely a symptom) of this crisis; and Obama’s gradualist approach, with every move telegraphed and thus predictable – seems to be generating confidence.

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Barack Obama Domestic issues Political Philosophy Politics The Opinionsphere

Equality of Result versus Equality of Opportunity

[digg-reddit-me]It is noteworthy that a certain type of older conservative or right-wing intellectual finds it necessary to insist repeatedly that Obama’s politics is “the same old” stuff as liberals tried earlier in history. These olders intellectuals try to place Obama in the context of typical big-government liberals – and they presume by doing so they are taking the wind out of his sails and making him a more prosaic and less historic figure.

Victor Davis Hanson recently wrote a column explaining that Obama was interested in “the same old equality of result.” He describes the debate going back to the Greeks between “the equality of result” and “the equality of opportunity” – and he identified France with the first and America with the second. His implicit question: Do we want to become France? George Will and others have described Obama’s administration as the third or fourth wave of liberalism. There is a strong need among this group to get across the message that Obama isn’t different – he isn’t change – he’s just more of the same stuff that they – as Republicans – defeated back in 1980 and 1984 and 1994 and 2004. 

But insistince does not make it so.

Obama’s liberalism is not the liberalism of the Great Society or of Jimmy Carter – or even of Bill Clinton. Hanson, Will, and others refuse to acknowledge that in the debate between equality of result and equality of opportunity, they already won. Obamaism is about expanding equality of opportunity – which would be clear if Hanson were doing more than reciting talking points. Look at the three specific programs Hanson cites before claiming Obama wants “equality of results”:

…creating a new health care bureaucracy, cap-and-trade, allotting trillions more for education…

None of these try to achieve an “equality of results.” They are about ensuring people equal opportunity to succeed – and ensuring the market properly prices activities which are damaging to society in general. For example, if you want everyone to have an equal opportunity to succeed, you need to make sure that everyone who is intelligent enough and works hard enough can get an education. Health care costs and concerns have made it much more difficult for smaller businesses to succeed – so Obama is proposing to open up the federal program. This will even the playing field in competition between big and medium- to small-sized companies to a significant degree. Cap and trade imposes a market mechanism to take into account the costs of polluting activities.

Hanson and the others of his generation need to understand that they won the opportunity versus results debate. Liberalism today has evolved to deal with the demands of the moment. 

Perhaps they should focus on their own political philosophy to see that it does as well.

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Barack Obama Criticism Law National Security Politics The Bush Legacy The Opinionsphere The War on Terrorism

Andrew C. McCarthy’s Self-Righteous Sophistry

[digg-reddit-me]Andrew C. McCarthy was a prosecutor on a few terrorism-related cases back in the 1990s. But it wasn’t until after September 11, 2001 that he found his true calling – writing opinion pieces for the National Review and Commentary. As a prosecutor, McCarthy had to go through that exhausting process of finding evidence to back up his case – and use that evidence to convince a skeptical audience that his case was right. As an opinion writer for two right-wing publications, McCarthy is free from both constraints as he preaches to the converted. McCarthy – who previously had a career as a criminal prosecutor – now uses this background to give him added credibility when discussing the two issues he cares most about: detainee policy in the War on Terrorism and torture. This is a man who said of McCain’s Anti-Torture legislation that it was “two parts grandstanding and one part suicide” and declared that McCain by supporting it, had “no business serving in a government whose first obligation is the security of the governed.” Of course, McCarthy found it necessary to support McCain over Obama in 2008 – because Obama was “disqualified” from office because of his ties to America-hating leftists – and because his policies were even more suicidal(!) than McCain’s. Yet, even so, over McCarthy’s strongly worded objections, America elected Obama.

You’ll never guess what happened next. Obama – being the partisan, leftist, America-hating, suicidal guy that he is – invited Andrew C. McCarthy to be part of a panel that advised him on the issue which McCarthy had been most vocal – the detention and torture of suspected terrorists. McCarthy, of course, would have none of it – and declined to join the force – taking the unusual step of releasing his letter of declination to the press and writing about it in an opinion piece in the National Review. 

All’s fair in love and politics – you might say. But it’s clear McCarthy has gone soft from years of presenting his arguments to those already agree with him.

Let’s look at a few of the premises to McCarthy’s piece:

Obama’s Bad Faith. McCarthy knows that Obama – in instructing the Justice Department to determine if any laws had been broken in instituting the torture policy of the Bush administration is acting in bad faith.

“[Obama] has unleashed his Justice Department to criminalize political disputes after claiming for weeks that he did not want to do this. And the president is being a bully about it…Any experienced prosecutor would know there is no criminal case here.” And what nefarious purpose does Obama have for bullying such upstanding citizens? ” McCarthy explains Obama’s prime motivation: “To satisfy his antiwar base and to put paid to commitments offered by his top campaign advisers.”

Obama’s Bad Faith (II). McCarthy also knows that Obama is acting in bad faith in creating this task force to advise him.

McCarthy clearly has divined Obama’s intentions as he declares that “the exercise known as the ‘President’s Detention Policy Task Force’ is a farce. The administration has already settled on a detainee policy: It is simply going to release trained jihadists.”

Bush’s Good Faith. Because McCarthy is so good at divining the intentions of people in the news, he also knows that the legal advisors to the Bush administration – including those who issued binding legal opinions for the Office of Legal Counsel at the Justice Department – were acting in good faith when they issued opinions in contravention of every precedent in American history.

“Former Justice Department attorneys John Yoo (now a law professor at Berkeley) and Jay Bybee (now a federal appeals-court judge in California), as well as other government attorneys, were asked during the emergency conditions that followed the 9/11 attacks to advise Bush administration policymakers on U.S. interrogation law. They did that in good faith and, despite the fact that it’s now de rigueur to castigate them, quite reasonably…Bad legal advice given in good faith is not an ethical violation.”

McCarthy doesn’t explain why he knows these men were acting within the legal definition of “good faith.” And for what it’s worth, Jack Goldsmith, a Republican who replaced Jay Bybee, one of the lawyers McCarthy is defending, as head of the Office of Legal Counsel, wrote of the torture memos that they were designed with the purpose of providing a “golden shield” to the interrogators, had “no foundation in prior OLC opinions, or injudicial decisions, or in any other source of law” and were deliberataly biased. That sounds like an acknowledgment of bad faith to me.

Criminalizing Advice. McCarthy – being an expert in national security law apparently – also knows that while the Office of Legal Counsel’s binding legal opinions “are controlling on questions of law within the Executive Branch” [pdf], they are also no different from any advice any lawyer gives. 

That’s why “If the Holder Justice Department decides your good-faith advice promoted what it considers illegal activity, you could face criminal prosecution or ruinous ethical charges.”

Criminalizing Policy Disputes. McCarthy also apparently believes that if an administration sets a policy that is criminal, no one should be held responsible. So, now that it is clear that war crimes were committed – and that any nation in the world can now prosecute those American officials responsible thanks to Ronald Reagan’s Convention Against Torture. The only way to prevent other nations from bringing up Americans on charges of war crimes is to have our own investigation. McCarthy sees all this – yet maintains that instituting a policy of torture is a mere policy decision. Would McCarthy continue to hold this position if the war crime were genocide instead? If the Office of Legal Counsel declared genocide legal, the president ordered it be done, and other carried it out – would it still be a policy dispute that shouldn’t be criminalized? McCarthy’s point about not prosecuting torture only holds then if you first buy his declaration that “torture” isn’t illegal – or at least it shouldn’t be.

Mitigating Circumstances. Despite the fact that these lawyers provided advice that McCarthy still considers sound and McCarthy testifies were acting on good faith, McCarthy still wishes to qualify that these men gave these opinions in “wartime service to the country” under “the emergency conditions that followed the 9/11 attacks.” These facts don’t matter if you believe as McCarthy does that we should still agree with them now – but by bringing them up, the indicate, perhaps a single humanizing glimmer of doubt.

A few odds and ends.

The Uighurs. McCarthy speaks of how Obama is preparing to unleash the Uighurs who are “trained jihadists” who, once released, will be “plotting to menace and murder us” onto American soil! For those ignorant of the plight of the Uighurs, this can sound quite alarming. The facts are a bit less so. The Uighurs have been cleared of any charges as of five years ago, and it was declared that they “pose no terrorist threat” and have “not [been] charged with fighting or plotting against the United States.” Which brings us to the question: Why haven’t we repatriated them to their home country as the Bush administration did with hundreds of detainees? Because they are Chinese seperatists who China has vowed to execute if they return. Why not to a outside state? Because China has made threats against any nation that accepts them. (Albania accepted some of the Uighurs a few years ago – and since has faced threats from China.) McCarthy though – knowing the facts – decides to obfuscate all these “technicalities” – so he can focus on the core “truth” – that Obama wants to unleash trained jihadists in your neighborhood!

The standards of justice. Finally, is a throwaway point McCarthy makes as he concludes his feat of sophistry. He blames Obama for the fact that he has “no plan for what to do about the terrorists there, many of whom cannot be tried under the standards of the civilian justice system.” Those with critical faculties might wonder – why is it that these terrorists can’t be tried in a manner consistent with American traditions of justice? McCarthy himself prosecuted terrorists – and wannabe terrorists – it’s his claim to fame. So why can’t these men who participated in a far worse crime be tried now?

And here we return to the beginning – because our justice system has accepted the long-held truth – that confessions tainted by torture are likely to be untrue – and so are ignored. Thus, these men who attacked America – who killed Americans – who McCarthy is opposed to – can never be brought to justice according to our traditions.

McCarthy does have some good advice for the man he considers unfit for public office – a leftist, America-hating, dangerous man who is aiding our enemy. McCarthy advises Obama: “We can arrive at a sound policy, or not, without demonizing our adversaries as crooks and cads.”

Perhaps – but you can’t write for the National Review with that attitude these days.

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Barack Obama Domestic issues Economics Financial Crisis History Politics The Opinionsphere

The Value of a Safety Net

Jean Edward Smith points out the obvious yet neglected truth about Franklin Delano Roosevelt’s achievements:

The safety net provided by the New Deal allows time for government to move deliberately.

This is one of the extraordinary things about the legacy of FDR – that even as the nature of the state itself has changed significantly since he was president, the institutions he created still serve some – if not the same purpose – as they did back then.

Today, the safety net created by Roosevelt is an essential stabilizing factor in our society – on the order of regular elections, a civil society, a judiciary, a balance of powers. 

The initial intention of these social safety net programs was consisent with the nation-states of the day, as they competed to see who could provide a minimal standard of living for various at risks groups – such as the elderly and the poor. But today it is far more useful as a stabilizing factor allowing businesses and government officials and individuals adequate time to respond appropriately to financial crises.

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Barack Obama Law Political Philosophy Politics The Opinionsphere

Replacing Souter

There’s a few different schools of thought on how Obama should go about replacing Justice David Souter. Dahlia Lithwick – a few months ago – called on Obama to make his next appointment “a hero, a bomb-throwing, passionate, visionary, liberal Scalia.” Others are just calling for Obama to place someone liberal enough to counter-balance the extreme conservatives appointed by Bush. Conservatives and right-wingers are calling on Obama to appoint someone “moderate” – though given the political circumstances, it is almost guaranteed that they will not accept any appointment, no matter how “moderate.” All of this is based on a rather direct analysis of the Supreme Court – presuming that decisions are and will be made based on political viewpoints. 

I’m not trying to say that we should accept Justice Roberts’s oft-cited analysis of the judge as umpire – just calling the law as he sees it. I thought Obama made an excellent point back in July 2007 when he critiqued this view:

 When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. You know, he’s good to his dog. He’s so well qualified.”

I said, well look, that’s absolutely true and … in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

Ed Whelan over at the Corner is trying to make a big deal out of what he’s calling Obama’s lie – which is that judicial philosophy is unimportant. He cites the above quote as proof Obama thinks judicial philosophy is unimportant – but he doesn’t seem to have read it closely, as you can clearly see Obama say:

[I]t’s those five percent of the cases that really count.

The person Whelan really should be attacking – if he believes judicial philosophy is unimportant – is Justice Roberts who sought to minimize the role of politics in his decisions (at least in his pre- and post-appointment rhetoric.)

But what I’m interested most in is a justice who can move the other members of the Court – either through personality or their compelling understanding of the law. One historical type that has moved the Court would be a politician – such as Sandra Day O’Connor or Earl Warren – whose personality drew other justices to accept some of their decisions, and gradually shaped the Court over time. This is why I think it’s a bad idea to appoint a liberal version of Justice Scalia – whose personality actually hurt his politics. Jennifer Granholm is a good possibility on this front. As would Hillary Clinton or Al Gore if they were only younger.

In the alternative, Obama could appoint an ideologically interesting thinker – who is liberal, but nevertheless, thinks outside of the box. The two people that come to mind on this score are Cass Sunstein and Lawrence Lessig. Lessig is probably too young yet – and Sunstein has not only encountered surprising resistance to his appointment to an obscure position, but he probably would like an opportunity to take a crack at enhancing that position and testing his theories on libertarian paternalism. 

Finally, I like Harold Koh for the post – even though it is unlikely he fits into any of the above two categories. He’s national security thinker with a great resume. I don’t know his record on most issues – but I’ve heard him speak on national security law – my main interest – and he has strong, nuanced positions, viewing our national security apparatus as a whole system rather than as a series of isolated issues. He would be a strong voice in reigning in an executive branch that has barely pulled back in terms of it’s assertions of power in the national security arena.

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Barack Obama

Obama’s 100 Days

[digg-reddit-me]Richard Reeves makes the observation that must underlie any evaluation of the First 100 days of Barack Obama’s presidency:

[W]e know from observing the modern presidency that there may be very little relation between a president’s first 100 days and the next 1,361. The presidency is essentially a reactive job; any president — be it John F. Kennedy or Barack Obama — inevitably becomes a creature of events unforeseen.

I’ll leave the lengthy evaluations of Barack Obama’s first 100 days to others – but I would wager that the most significant accomplishment of Obama’s short time in office has not been any legislation or government programs or foreign policy – but instead his turning around of the mood of America, giving hope where these was despair.

Specifically, I am referring to a mood captured by the rise in the right track/wrong track numbers since Obama’s election and inaguration. Despite all the continued dire news, Obama has been able to somehow instill a sense of optimism in this short time. In this way, the start to his presidency has been similar to Franklin Delano Roosevelt and Ronald Reagan – who likewise took power after an unpopular president who bequeathed them a foundering economy. All turned around public opinion before anything else – and based on this, achieved their later successes.